inquiries act 2014file/14-67a004.docx · web view2019-03-01 · (1)it is not a reasonable excuse...

Version No. 004

Inquiries Act 2014No. 67 of 2014

Version incorporating amendments as at1 July 2016

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purpose and overview 12 Commencement 23 Definitions 24 Act binds the Crown 7

Part 2—Royal Commissions 8

Division 1—Establishment of Royal Commissions 8

5 Establishment of Royal Commission by letters patent 86 Publication of letters patent 97 Concurrent Royal Commissions 98 Relationship with the Royal prerogative 9

Division 2—Arrangements to facilitate Royal Commissions 10

9 Staffing and services 1010 Certain public sector values do not apply to Royal

Commission staff 1111 Expenses and financial obligations of Royal Commission 11

Division 3—Conduct of inquiries by Royal Commissions 12

12 Manner of inquiry of Royal Commission 1213 Commissioners may act separately 1214 Evidence 1315 Participation in Royal Commission inquiries 1316 Practice directions, statements and notes 13

Division 4—Powers of Royal Commissions for production of documents and other things and obtaining evidence 14

17 Power to compel production of documents and other things or attendance of witness 14

18 Variation or revocation of notice to produce or notice to attend 15

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19 Service of notice to produce or notice to attend 1720 Witness already in custody 1821 Power to take evidence on oath or affirmation 1822 Powers in relation to documents and other things 1823 Failure to comply with notice or requirement 19

Division 5—Control of proceedings and publication of information and evidence 20

24 Access to Royal Commission proceedings 2025 Power to expel persons who disrupt proceedings 2026 Restriction on publication of information relating to Royal

Commission inquiries 21

Division 6—Entry, search and seizure powers of Royal Commissions 22

27 Authorised officers 2228 Search warrant 2229 Procedure for executing search warrant 2430 Copies or receipts to be given for documents or other things 2531 Return of documents and other things 26

Division 7—Application of privileges and statutory secrecy to Royal Commissions 27

32 Legal professional privilege does not apply 2733 Privilege against self-incrimination does not apply 2734 Statutory secrecy and confidentiality provisions 28

Division 8—Reports of Royal Commissions 29

35 Report of Royal Commission 2936 Adverse findings 2937 Tabling of Royal Commission report 30

Division 9—Protection from legal liability 31

38 Compellability of commissioners 3139 Protection of participants 32

Division 10—Royal Commissions and courts 32

40 Admissibility of answers, information, documents and other things 32

41 Referral of questions of law to Supreme Court 33

Division 11—Assistance for witnesses 33

42 Costs of attending Royal Commission 33

Division 12—Confidentiality, sharing and use of information 34

43 Confidentiality for Royal Commission officers 34

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44 Disclosure or provision of information by commissioners or authorised persons 35

45 Taking advantage of information 35

Division 13—Offences 36

46 Offence to fail to comply with a notice to produce or attend 3647 Offence to fail to take oath, make affirmation or answer

question 3648 Offence to contravene exclusion or restriction orders 3749 Offence to hinder, obstruct or cause serious disruption to

proceeding 3850 Offence to make false or misleading statements or produce

false or misleading documents or other things 3851 Offence for employers to take detrimental action against

employees 3952 Offence of taking detrimental action against commissioners 40

Part 3—Boards of Inquiry 41

Division 1—Establishment of Boards of Inquiry 41

53 Establishment of Board of Inquiry by Order in Council 4154 Concurrent Boards of Inquiry 4255 Conversion of Board of Inquiry into a Royal Commission 43

Division 2—Arrangements to facilitate Boards of Inquiry 44

56 Staffing and services 4457 Certain public sector values do not apply to Board of Inquiry

staff 4558 Expenses and financial obligations of Board of Inquiry 45

Division 3—Conduct of inquiries by Boards of Inquiry 46

59 Manner of inquiry of Board of Inquiry 4660 Members may act separately 4661 Evidence 4762 Participation in Board of Inquiry inquiries 4763 Practice directions, statements and notes 47

Division 4—Powers of Boards of Inquiry for production of documents and other things and obtaining evidence 48

64 Power to compel production of documents and other things or attendance of witness 48

65 Variation or revocation of notice to produce or notice to attend 4966 Service of notice to produce or notice to attend 5067 Witness already in custody 5168 Power to take evidence on oath or affirmation 5269 Powers in relation to documents and other things 5270 Failure to comply with notice or requirement 53

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71 Access to Board of Inquiry proceedings 5372 Power to expel persons who disrupt proceedings 5473 Restriction on publication of information relating to Board of

Inquiry inquiries 54

Division 6—Application of statutory secrecy to Boards of Inquiry 55

74 Statutory secrecy and confidentiality provisions 55

Division 7—Reports of Boards of Inquiry 57

75 Report of Board of Inquiry 5776 Adverse findings 5777 Tabling of Board of Inquiry report 57


78 Compellability of members 5979 Protection of participants 59

Division 9—Boards of Inquiry and courts 60




82 Costs of attending Board of Inquiry 61


83 Confidentiality for Board of Inquiry officers 6284 Disclosure or provision of information by members or

authorised persons 6385 Taking advantage of information 63


86 Offence to fail to comply with a notice to produce or attend 6487 Offence to fail to take oath, make affirmation or answer

question 6488 Offence to contravene exclusion or restriction orders 6589 Offence to hinder, obstruct or cause serious disruption to



employees 6692 Offence of taking detrimental action against members 67

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Part 4—Formal Reviews 69

Division 1—Establishment of Formal Reviews 69

93 Establishment of Formal Review by instrument 6994 Conversion of Formal Review into a Board of Inquiry 7095 Conversion of Formal Review into a Royal Commission 71

Division 2—Arrangements to facilitate Formal Reviews 72

96 Staffing and services 7297 Certain public sector values do not apply to Formal Review

staff 7398 Expenses and financial obligations of Formal Review 73

Division 3—Conduct of Formal Review inquiries 74

99 Manner of inquiry of Formal Review 74100 Members may act separately 74101 Evidence 74102 Participation in Formal Review inquiries 74103 Practice directions, statements and notes 75


104 Access to Formal Review proceedings 75105 Power to expel persons who disrupt proceedings 76106 Restriction on publication of information relating to Formal

Review inquiries 76

Division 5—Reports of Formal Reviews 78

107 Report of Formal Review 78108 Adverse findings 78109 Tabling of Formal Review report 79


110 Compellability of members 80111 Protection of participants 80

Division 7—Formal Reviews and courts 81




114 Costs of attending Formal Review 82


115 Confidentiality for Formal Review officers 83

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116 Disclosure or provision of information by members or authorised persons 83

117 Taking advantage of information 84


118 Offence to contravene exclusion or restriction orders 85119 Offence to hinder, obstruct or cause serious disruption to



employees 86122 Offence of taking detrimental action against members 87

Part 5—General 88

Division 1—General provisions for inquiries 88

123 Powers of Royal Commissions and Boards of Inquiry 88124 Transfer of records 89125 Exemption from Freedom of Information Act 1982 89126 Continuity of inquiries 90

Division 2—Ancillary provisions for offences 91

127 Definitions 91128 Criminal liability of officers of bodies corporate—accessorial

liability 91129 Offences by bodies corporate 92130 Maximum fine for bodies corporate 92131 Responsible agency for the Crown 93132 Proceedings against successors to public bodies 93

Division 3—Regulations 94

133 Regulations 94

Part 7—Transitional 96

150 Inquiries by commissions and boards under Part IVA of the Constitution Act 1975 96

Schedules 97

Schedule 1—Offences to which accessorial liability attaches 97

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Endnotes 98

1 General information 98

2 Table of Amendments 100

3 Amendments Not in Operation 101

4 Explanatory details 102

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Version No. 004


Version incorporating amendments as at1 July 2016

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purpose and overview

(1) The main purpose of this Act is to provide for the establishment and conduct of inquiries in Victoria.

(2) In overview, this Act provides for—

(a) the establishment and conduct of the following types of inquiry—

(i) Royal Commissions;

(ii) Boards of Inquiry;

(iii) Formal Reviews; and

(b) powers for each type of inquiry; and

(c) matters relating to privilege, secrecy and protection from liability in relation to inquiries; and

(d) offences in relation to inquiries.

(3) However, this Act does not apply to or affect inquiries established otherwise than under this Act.Note

See sections 8 and 53(3).

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2 Commencement

(1) Subject to subsection (3), this Act, other than section 148, comes into operation on a day or days to be proclaimed.

(2) Section 148 comes into operation on the later of—

(a) the day on which section 3 comes into operation; and

(b) the day on which section 158 of the Legal Profession Uniform Law Application Act 2014 comes into operation.

(3) If a provision of this Act, other than section 148, does not come into operation before 1 August 2015, it comes into operation on that day.

3 Definitions

In this Act—

* * * * *

authorised officer—see section 27;

Board of Inquiry means a Board of Inquiry established under section 53;

Board of Inquiry officer means a member or a member of staff of a Board of Inquiry;

chairperson—

(a) of a Royal Commission, means—

(i) if there is only one commissioner, that commissioner; or

(ii) if there is more than one commissioner, the commissioner specified in the letters patent

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S. 3 def. of Australian legal practitioner repealed by No. 67/2014 s. 148.

establishing the Royal Commission as the commissioner who is to chair the Royal Commission;

(b) of a Board of Inquiry, means—

(i) if there is only one member, that member; or

(ii) if there is more than one member, the member specified in the establishing Order for the Board of Inquiry as the member who is to chair the Board of Inquiry;

(c) of a Formal Review, means—

(i) if there is only one member, that member; or

(ii) if there is more than one member, the member specified in the establishing instrument for the Formal Review as the member who is to chair the Formal Review;

commissioner means a person appointed to constitute a Royal Commission, whether solely or with other persons;

Court Services Victoria has the same meaning as in the Court Services Victoria Act 2014;

Crown Prosecutor means the Chief Crown Prosecutor, a Senior Crown Prosecutor, a Crown Prosecutor or an Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

Electoral Commissioner has the same meaning as in the Electoral Act 2002;

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establishing instrument, in relation to a Formal Review, means the instrument under section 93 establishing the Formal Review;

establishing Order, in relation to a Board of Inquiry, means the Order in Council under section 53 establishing the Board of Inquiry;

Formal Review means a Formal Review established under section 93;

Formal Review officer means a member or a member of staff of a Formal Review;

function includes power and duty;

IBAC has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

judicial officer means any of the following—

(a) a Judge of the Supreme Court;

(b) a reserve Judge of the Supreme Court;

(c) an Associate Judge of the Supreme Court;

(d) a reserve Associate Judge of the Supreme Court;

(e) a Judge or reserve Judge of the Supreme Court who is appointed or assigned to VCAT;

(f) a judge of the County Court;

(g) a reserve judge of the County Court;

(h) an associate judge of the County Court;

(i) a reserve associate judge of the County Court;

(j) a person referred to in paragraph (f) or (g) who is appointed or assigned to VCAT;

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S. 3 def. of judicial officer substituted by No. 10/2015 s. 12(a).

(k) a magistrate;

(l) a reserve magistrate;

(m) a magistrate or reserve magistrate who is appointed or assigned to the Children's Court, the Coroners Court or VCAT;

(n) a reserve coroner;

(o) a person appointed under section 94 of the Coroners Act 2008;

(p) a judicial registrar of the Supreme Court, the County Court, the Magistrates' Court, the Children's Court or the Coroners Court;

member—

(a) of a Board of Inquiry, means a person appointed by the establishing Order for the Board of Inquiry;

(b) of a Formal Review, means a person appointed by the establishing instrument for the Formal Review;

(c) of VCAT, has the same meaning as member has, in relation to the Tribunal, in section 3 of the Victorian Civil and Administrative Tribunal Act 1998;

member of staff—

(a) of a Royal Commission, means any staff, consultant or Australian legal practitioner referred to in section 9;

(b) of a Board of Inquiry, means any staff, consultant or Australian legal practitioner referred to in section 56;

(c) of a Formal Review, means any staff or consultant referred to in section 96;

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S. 3 def. of member amended by No. 10/2015 s. 12(b).

non-judicial member of VCAT means a member of VCAT who is not a judicial officer;

notice to attend—

(a) in relation to a Royal Commission, means a notice served under section 17(1)(b), (c) or (d);

(b) in relation to a Board of Inquiry, means a notice served under section 64(1)(b), (c) or (d);

notice to produce—

(a) in relation to a Royal Commission, means a notice served under section 17(1)(a);

(b) in relation to a Board of Inquiry, means a notice served under section 64(1)(a);

perform a function includes exercise a power;

police gaol has the same meaning as in the Corrections Act 1986;

police officer has the same meaning as in the Victoria Police Act 2013;

prison has the same meaning as in the Corrections Act 1986;

publish means disseminate or provide access to the public or a section of the public by any means, including by—

(a) publication in a book, newspaper, magazine or other written publication; or

(b) broadcast by radio or television; or

(c) public exhibition; or

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S. 3 def. of non-judicial member of VCAT substituted by No. 10/2015 s. 12(c).

(d) broadcast or electronic communication—

and publication must be construed accordingly;

Royal Commission means a Royal Commission established under section 5, including a Royal Commission referred to in section 55 or 95;

Royal Commission officer means a commissioner or a member of staff of a Royal Commission;

Victorian court means any of the following—

(a) the Supreme Court;

(b) the County Court;

(c) the Magistrates' Court;

(d) the Children's Court;

(e) the Coroners Court;

Victorian Inspectorate has the same meaning as in the Victorian Inspectorate Act 2011.

4 Act binds the Crown

This Act binds the Crown in right of Victoria and, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Note

See also sections 8 and 131.

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Part 2—Royal Commissions

Division 1—Establishment of Royal Commissions5 Establishment of Royal Commission by letters

patent

(1) The Governor, with the advice of the Premier, may issue a commission by letters patent under the Public Seal of the State appointing one or more natural persons to constitute a Royal Commission to inquire into and report on the terms of reference specified in the letters patent.

(2) Letters patent issued under this section—

(a) must specify the following—

(i) the person or persons appointed to constitute the Royal Commission;

(ii) if more than one person is appointed, the person who is to chair the Royal Commission;

(iii) the terms of reference of the Royal Commission; and

(b) may specify any or all of the following—

(i) a time by which the Royal Commission is to report on its inquiry;

(ii) whether the commissioners may perform functions conferred on them under the law of the Commonwealth, another State or a Territory;

(iii) whether the Royal Commission is authorised to incur expenses and financial obligations to be met from the Consolidated Fund and, if so, the maximum amount of those expenses and obligations;

Part 1—Preliminary


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(iv) the manner in which the inquiry of the Royal Commission is to be conducted;

(v) if there is more than one commissioner, which (if any) of the functions of the Royal Commission must be performed by the commissioners jointly and which (if any) may be performed by one or more commissioners separately;

(vi) any other matter the Governor considers appropriate.

Note

See section 123 for restrictions on the scope and powers of a Royal Commission in relation to certain entities.

6 Publication of letters patent

The Premier must cause the letters patent establishing a Royal Commission, and any variation of them, to be published in the Government Gazette as soon as practicable after they are issued or varied.

7 Concurrent Royal Commissions

If provided for in the letters patent establishing a Royal Commission, a commissioner may perform any functions that are conferred on the commissioner under the law of the Commonwealth, another State or a Territory in conjunction with the performance of the commissioner's functions under this Act.

8 Relationship with the Royal prerogative

Nothing in this Act affects the prerogative of the Crown to issue a commission for an inquiry other than under this Act.



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Division 2—Arrangements to facilitate Royal Commissions

9 Staffing and services

(1) There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary for a Royal Commission to perform its functions.Note

See also section 18 of the Public Administration Act 2004, which provides for delegation powers of a public service body Head under that Act. That section would permit employment functions under that Act to be delegated to the chairperson of a Royal Commission.

(2) The chairperson of a Royal Commission may—

(a) enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body; and

(b) engage persons with suitable qualifications and experience as consultants; and

(c) engage one or more Australian legal practitioners to assist the Royal Commission as counsel; and

(d) enter into agreements or arrangements for the provision of any other services to the Royal Commission.

(3) The engagement of an Australian legal practitioner under subsection (2)(c) may only be made with the approval of the Premier.

(4) The employment or engagement of members of staff of a Royal Commission may be on any terms and conditions the chairperson considers appropriate and all members of staff are subject to the direction of the chairperson.



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(5) The chairperson of a Royal Commission may, by instrument, delegate to another Royal Commission officer a function under this section, other than this power of delegation.Note

Section 18(2) of the Public Administration Act 2004 provides for subdelegation of powers delegated under that section.

10 Certain public sector values do not apply to Royal Commission staff

If the public sector values referred to in section 7(1)(a)(i) and (c)(iii) of the Public Administration Act 2004 would, but for this section, apply to a member of staff of a Royal Commission, those public sector values do not apply to the member of staff in respect of their employment or engagement with the Royal Commission.Note

Section 7(1)(a)(i) and (c)(iii) of the Public Administration Act 2004 deal with providing advice to the Government and implementing Government policies and programs.

11 Expenses and financial obligations of Royal Commission

(1) Expenses and financial obligations may be incurred by a Royal Commission to be met from the Consolidated Fund only—

(a) if authorised by the letters patent establishing the Royal Commission; and

(b) to the extent of the maximum amount specified in the letters patent.

(2) The Consolidated Fund is appropriated to the extent necessary to allow expenses and financial obligations to be incurred and met as authorised by subsection (1).



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(3) To avoid doubt, subsection (1) does not prevent—

(a) the entering into of agreements or arrangements, or the engagement of persons, under section 9 at no cost to the Royal Commission; or

(b) the incurring of expenses and financial obligations to be met from sources other than the Consolidated Fund.

Division 3—Conduct of inquiries by Royal Commissions

12 Manner of inquiry of Royal Commission

A Royal Commission may conduct its inquiry in any manner that it considers appropriate, subject to—

(a) the requirements of procedural fairness; and

(b) the letters patent establishing the Royal Commission; and

(c) this Act, the regulations and any other Act.

13 Commissioners may act separately

(1) This section applies if a Royal Commission is constituted by more than one commissioner.

(2) Subject to this Act and the letters patent establishing the Royal Commission, the chairperson of the Royal Commission may determine from time to time that any of the functions of the Royal Commission may be performed by one or more commissioners separately.Example

Subject to the letters patent, the chairperson could determine that the individual commissioners hold concurrent hearings.



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14 Evidence

A Royal Commission is not bound by the rules of evidence or any practices or procedures applicable to courts of record and may inform itself on any matter as it sees fit.

15 Participation in Royal Commission inquiries

(1) A Royal Commission may allow, to the extent and in the manner determined by the Royal Commission—

(a) any person to appear or otherwise participate in an inquiry; and

(b) any person to be legally represented in an inquiry.

(2) In allowing a person to appear or participate in an inquiry, or to be legally represented, the Royal Commission may have regard to the following factors—

(a) whether the person has any direct or special interest in the subject matter of the inquiry;

(b) the likelihood that the Royal Commission may make an adverse finding against the person;

(c) the ability of the person to assist the Royal Commission in the inquiry;

(d) the age of the person;

(e) any other matter the Royal Commission considers relevant.

16 Practice directions, statements and notes

(1) A Royal Commission may from time to time issue practice directions, statements or notes in relation to its inquiry.



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(2) Practice directions, statements or notes issued under subsection (1) must not be inconsistent with the letters patent, this or any other Act or any regulations made under this or any other Act.

(3) Practice directions, statements or notes issued under subsection (1) are not legislative instruments within the meaning of the Subordinate Legislation Act 1994.

Division 4—Powers of Royal Commissions for production of documents and other things and

obtaining evidence17 Power to compel production of documents and other

things or attendance of witness

(1) For the purposes of its inquiry, a Royal Commission may serve written notice on a person requiring the person to—

(a) produce a specified document or other thing to the Royal Commission or a Royal Commission officer before a specified time and in the specified manner; or

(b) attend the Royal Commission at a specified time and place to produce a specified document or other thing; or

(c) attend the Royal Commission at a specified time and place, and from then on from day to day until excused, to give evidence; or

(d) attend the Royal Commission at a specified time and place, and from then on from day to day until excused, to give evidence and to produce a specified document or other thing.



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(2) A notice to produce or notice to attend in relation to a Royal Commission—

(a) must be in the prescribed form (if any); and

(b) must contain the following information—

(i) a statement outlining the provisions of sections 23 and 46;

(ii) examples of what may constitute a reasonable excuse for failing to comply with the notice;

(iii) how the person may object to the notice;

(iv) any other prescribed information; and

(c) must be served in accordance with section 19.

(3) Subsection (2)(a) does not apply to a notice to produce or notice to attend for the purposes of an inquiry of a Royal Commission that is being conducted concurrently under this Act and under the law of the Commonwealth, another State or a Territory.

18 Variation or revocation of notice to produce or notice to attend

(1) A person on whom a notice to produce or notice to attend in relation to a Royal Commission is served may make a claim to the Royal Commission—

(a) that the person has or will have a reasonable excuse for failing to comply with the notice; or

(b) in the case of a notice to produce, or a notice to attend under section 17(1)(b) or (d), that a document or other thing specified in the notice is not relevant to the subject matter of the inquiry.



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(2) Without limiting what may be a reasonable excuse for the purposes of subsection (1)(a), it is a reasonable excuse for a person to fail to comply with a notice by refusing to give information to a Royal Commission if the information—

(a) in the case of a natural person, might tend to incriminate the person or make the person liable to a penalty in relation to—

(i) proceedings for an offence with which the person has been charged that have not finally been disposed of; or

(ii) proceedings for the imposition or recovery of a penalty that have been commenced against the person but not finally disposed of; or

(b) is the subject of parliamentary privilege; or

(c) is the subject of public interest immunity; or

(d) is prohibited from disclosure by a court order; or

(e) is prohibited from disclosure by a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Royal Commission; or

(f) is prohibited from disclosure by a provision of another enactment that is prescribed by the regulations for the purposes of section 34.

(3) If the Royal Commission is satisfied that the person's claim is made out, the Royal Commission, by further written notice served on the person, may vary or revoke the notice.



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(4) A Royal Commission, by further written notice served on a person, may at any time on its own initiative vary or revoke a notice to produce or notice to attend served on the person.

(5) A notice varying or revoking a notice to produce or notice to attend must be served in accordance with section 19.

19 Service of notice to produce or notice to attend

(1) Subject to subsection (2), a notice to produce or notice to attend, or a notice varying or revoking a notice to produce or notice to attend, must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the notice.

(2) A Royal Commission may serve a notice to attend requiring immediate attendance by a person if—

(a) the Royal Commission considers on reasonable grounds that a delay in the person's attendance is likely to result in—

(i) evidence being lost or destroyed; or

(ii) the commission of an offence; or

(iii) the escape of the person on whom the notice is served; or

(iv) serious prejudice to the conduct of the inquiry to which the notice relates; or

(b) the person on whom the notice is served consents to immediate attendance.

(3) A notice to produce or notice to attend directed to a natural person must be served by serving a copy of the notice on the person personally.

(4) A notice to produce or notice to attend directed to a body corporate must be served by leaving a copy of the notice at the registered office or principal



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place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 18 years of age.

(5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.

20 Witness already in custody

(1) If a notice to attend a Royal Commission is issued to a person who is in a prison or a police gaol, the Royal Commission may give a written direction that the person be brought before the Royal Commission as required by the notice to attend.

(2) A direction under subsection (1) must be in the prescribed form (if any).

21 Power to take evidence on oath or affirmation

(1) A Royal Commission may require a person attending an inquiry of the Royal Commission, whether in accordance with a notice to attend or otherwise, to give evidence or answer questions on oath or affirmation.

(2) A commissioner, or a member of staff of the Royal Commission who is authorised to do so by a commissioner, may administer an oath or affirmation to a person for the purposes of subsection (1).

22 Powers in relation to documents and other things

(1) A commissioner, or a member of staff of a Royal Commission authorised by a commissioner, may—

(a) inspect any document or other thing produced to the Royal Commission; and

(b) retain the document or other thing for as long as is reasonably necessary for the purposes of the inquiry; and



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(c) copy any document or other thing produced to the Royal Commission necessary for the purposes of the inquiry.

(2) If the retention of a document or other thing under subsection (1) ceases to be reasonably necessary for the purposes of its inquiry, the Royal Commission, at the request of a person who appears to be entitled to the document or other thing, must cause the document or other thing to be delivered to the person unless it has been given to another person or body under section 44.

(3) A reference in this section to the purposes of an inquiry includes a reference to—

(a) the disclosure of information under section 44; and

(b) any concurrent Royal Commissions.

23 Failure to comply with notice or requirement

(1) If the chairperson of a Royal Commission is satisfied that a person has, without reasonable excuse, failed to comply with a notice to produce or notice to attend in relation to the Royal Commission or a requirement under section 21, the chairperson may apply to the Supreme Court for an order under this section.

(2) On an application under subsection (1), the Supreme Court may order the person to comply with the notice or requirement within the period specified by the Court.

Note




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Division 5—Control of proceedings and publication of information and evidence

24 Access to Royal Commission proceedings

(1) A commissioner may make an order excluding any person from a proceeding of the Royal Commission if—

(a) prejudice or hardship might be caused to any person, including harm to their safety or reputation; or

(b) the nature and subject matter of the proceeding is sensitive; or

(c) there is a possibility of any prejudice to legal proceedings; or

(d) the conduct of the proceeding would be more efficient and effective; or

(e) the commissioner otherwise considers the exclusion appropriate.

(2) The Royal Commission must cause a copy of the order to be posted—

(a) on a door of the place where the proceeding is being conducted; or

(b) in another conspicuous place where notices are usually posted at the place where the proceeding is being conducted.

(3) An order made under subsection (1) is not a legislative instrument within the meaning of the Subordinate Legislation Act 1994.

25 Power to expel persons who disrupt proceedings

A Royal Commission may expel a person from a proceeding of the Royal Commission if the person disrupts the proceeding.



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26 Restriction on publication of information relating to Royal Commission inquiries

(1) Subject to subsection (2), a commissioner may make an order prohibiting or restricting the publication of—

(a) any information that may enable the identity of a person who has given, or is to give, information or evidence to the Royal Commission for the purposes of an inquiry to be ascertained; or

(b) any information or evidence given to the Royal Commission for the purposes of an inquiry.

(2) A commissioner may make an order prohibiting or restricting the publication of information or evidence if—


(b) the nature and subject matter of the information is sensitive; or



(e) the commissioner otherwise considers the prohibition or restriction appropriate.

(3) If the order is made during a proceeding, the Royal Commission must cause a copy of the order to be posted—




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(4) If the order is made in relation to information that is given by the Royal Commission to another person, the Royal Commission must cause a copy of the order to be given to that person.

(5) An order made under this section is not a legislative instrument within the meaning of the Subordinate Legislation Act 1994.

Division 6—Entry, search and seizure powers of Royal Commissions

27 Authorised officers

(1) For the purposes of this Division, an authorised officer is—

(a) the chairperson of a Royal Commission; or

(b) a person authorised under subsection (2).

(2) The chairperson of a Royal Commission may authorise a person for the purposes of this Division.

28 Search warrant

(1) Subject to subsection (2), an authorised officer may apply to the Magistrates' Court for a search warrant in relation to either or both of the following—

(a) particular premises, if the authorised officer believes on reasonable grounds that entry to the premises (including any vehicle, vessel or aircraft on or in those premises) is necessary for the purpose of the Royal Commission's inquiry;



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(b) a particular vehicle, vessel or aircraft located in a public place, if the authorised officer believes on reasonable grounds that entry to the vehicle, vessel or aircraft is necessary for the purpose of the Royal Commission's inquiry.

(2) If a magistrate is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under subsection (1)(a) or (b), the magistrate may issue a search warrant authorising any police officer or other prescribed person named in the warrant—

(a) to enter and search the premises or vehicle, vessel or aircraft named or described in the search warrant and inspect any document or other thing at those premises or on or in that vehicle, vessel or aircraft; and

(b) to make a copy of any document that the police officer or other person reasonably considers may be relevant to the inquiry; and

(c) to take possession of any document or other thing that the police officer or other person reasonably considers may be relevant to the inquiry.

(3) A search warrant issued under this section must state—

(a) the purpose for which the search is required; and

(b) any conditions to which the search warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and



23

(d) a day, not later than 28 days after the issue of the search warrant, on which the search warrant ceases to have effect.

(4) A search warrant must be in the prescribed form (if any).

(5) Except as otherwise provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section.

29 Procedure for executing search warrant

(1) On executing a search warrant, the person executing it—

(a) must announce that the person is authorised by the search warrant to enter the premises, vehicle, vessel or aircraft, as the case requires, unless, in the case of a vehicle, vessel or aircraft, it is in a public place; and

(b) if the person has been unable to obtain unforced entry, must give any person at the premises or in control of the vehicle, vessel or aircraft an opportunity to allow entry to the premises, vehicle, vessel or aircraft, as the case requires.

(2) A person executing a search warrant need not comply with subsection (1) if the person believes on reasonable grounds that immediate entry to the premises, vehicle, vessel or aircraft is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the warrant is not frustrated.



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(3) If the occupier is present at premises where a search warrant is being executed, the person executing the warrant must—

(a) identify themselves to the occupier; and

(b) give the occupier a copy of the warrant.

(4) If the occupier is not present at premises where a search warrant is being executed, the person executing the warrant must—

(a) identify themselves to a person at the premises who is apparently over the age of 18 years; and

(b) give that person a copy of the warrant.

(5) If there is no person apparently over the age of 18 years present at premises where a search warrant is being executed, the person executing the warrant must leave a copy of the warrant in a conspicuous place at the premises unless the Royal Commission has given a direction under subsection (6).

(6) A Royal Commission may direct that a copy of a search warrant not be left at premises where no person apparently over the age of 18 years is present if the Royal Commission is satisfied that it would be contrary to the public interest for the copy to be left at the premises.

30 Copies or receipts to be given for documents or other things

(1) If a person takes possession under a search warrant of—

(a) a document, disk or tape or other thing that can be readily copied; or



25

(b) a storage device the information in which can be readily copied—

the person, on request by the occupier, must give a copy of the document, thing or information to the occupier as soon as practicable after taking possession of it, unless it would be contrary to the public interest to do so.

(2) If a person takes possession of a document or other thing under a search warrant and has not provided a copy of the document, thing or information under subsection (1) the person must provide a receipt for the document or other thing as soon as practicable after taking possession of it.

(3) A receipt under subsection (2) must be in the prescribed form (if any).

31 Return of documents and other things

(1) A Royal Commission must take all reasonable steps to return a document or other thing seized under a search warrant to the person from whom it was seized if the document or other thing is required as evidence relating to a legal proceeding.

(2) A Royal Commission must immediately take all reasonable steps to return a document or other thing seized under a search warrant to the person from whom it was seized if the Royal Commission is no longer satisfied that its retention is necessary for the purposes of—

(a) an inquiry; or

(b) a report of the Royal Commission on an inquiry; or

(c) a legal proceeding arising out of, or connected with, an inquiry.



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Division 7—Application of privileges and statutory secrecy to Royal Commissions

32 Legal professional privilege does not apply

(1) It is not a reasonable excuse for a person to refuse or fail to comply with a requirement under this Act to give information (including answering a question) or produce a document or other thing to a Royal Commission that the information, document or other thing is the subject of legal professional privilege.

(2) Information or a document or other thing does not cease to be the subject of legal professional privilege only because it is given or produced to a Royal Commission in accordance with a requirement to do so under this Act.

33 Privilege against self-incrimination does not apply

(1) Subject to subsection (2), it is not a reasonable excuse for a person to refuse or fail to comply with a requirement under this Act to give information (including answering a question) or produce a document or other thing to a Royal Commission that the information, document or other thing might tend to incriminate the person or make the person liable to a penalty.Note

See section 40 as to the admissibility of answers, information, documents and other things given to a Royal Commission.

(2) It is a reasonable excuse for a natural person to refuse or fail to comply with a requirement referred to in subsection (1) that the information, document or other thing might tend to incriminate the person, or make the person liable to a penalty, in relation to—



27

(a) proceedings for an offence with which the person has been charged that have not finally been disposed of; or

(b) proceedings for the imposition or recovery of a penalty that have been commenced against the person but not finally disposed of.

34 Statutory secrecy and confidentiality provisions

(1) It is not a reasonable excuse for a person to refuse or fail to comply with a requirement under this Act to give information (including answering a question) or produce a document or other thing to a Royal Commission that another enactment prohibits the person from giving the information or producing the document or other thing or imposes a duty of confidentiality on the person in relation to the information, document or other thing.

(2) The person is not subject to any criminal, civil, administrative or disciplinary proceedings or action only because the person complies with the requirement.

(3) Subsections (1) and (2) do not apply to—

(a) a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Royal Commission; or

(b) a provision of another enactment that is prescribed by the regulations for the purposes of this section.

(4) If a Royal Commission receives information or a document or other thing referred to in this section in an inquiry, any provision of another enactment that prohibits the disclosure of the information, document or other thing or imposes any other duty of confidentiality in relation to the information,



28

document or other thing does not apply to the Royal Commission.

Division 8—Reports of Royal Commissions35 Report of Royal Commission

(1) A Royal Commission must deliver a report of its inquiry to the Governor.

(2) A report may contain any recommendations the Royal Commission considers appropriate.

(3) A report must be delivered—

(a) within the time specified in the letters patent establishing the Royal Commission; or

(b) if no time is so specified, as soon as practicable after the Royal Commission completes the inquiry.

36 Adverse findings

(1) If a Royal Commission proposes to make a finding that is adverse to a person, the Royal Commission must be satisfied that the person—

(a) is aware of the matters on which the proposed finding is based; and

(b) has had an opportunity, at any time during the course of the inquiry, to respond on those matters.

(2) A Royal Commission must consider a person's response under subsection (1)(b) (if any) before making a finding that is adverse to the person.

(3) If the Royal Commission includes a finding that is adverse to a person in its report, the Royal Commission must fairly set out the person's response under subsection (1)(b) (if any) in the report.



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37 Tabling of Royal Commission report

(1) Within 30 days after the Governor receives the report of a Royal Commission, the Premier must cause the following material (the Royal Commission material) to be laid before each House of Parliament or, if neither House is then sitting, to be given to the clerk of each House—

(a) a copy of the report; or

(b) a copy of part of the report, together with a statement that the remaining part of the report is not to be tabled in Parliament at this time, including the reasons why it is not to be tabled; or

(c) a statement that the report has been received but is not to be tabled in Parliament at this time, including the reasons why it is not to be tabled.

(2) If the Premier proposes to give the Royal Commission material to the clerk of each House, the Premier must—

(a) give at least one business day's notice of the Premier's intention to do so to the clerk of each House; and

(b) give the Royal Commission material to the clerk of each House on the day indicated in the notice.

(3) The clerk of each House must—

(a) notify each member of the House of the receipt of a notice under subsection (2)(a) on the same day that the clerk receives that notice; and

(b) make available copies of the Royal Commission material for each member of the House as soon as practicable after the Royal



30

Commission material is received under subsection (2)(b); and

(c) cause the Royal Commission material to be laid before the House on the next sitting day of the House.

(4) Royal Commission material that is given to the clerks under subsection (2)(b) is taken to have been published by order, or under the authority, of the Houses of Parliament.

(5) The publication of Royal Commission material in accordance with this section is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and of any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the Royal Commission material as if it were a report to which those sections applied and had been published by the Government Printer under the authority of Parliament.

(6) If the report of a Royal Commission is not tabled, or is tabled in part, under this section and the Premier subsequently determines that the report, or a further part or parts of the report, should be tabled, this section applies, with any necessary modifications, to the tabling and publication of the report or the relevant part or parts of the report.

Division 9—Protection from legal liability38 Compellability of commissioners

(1) A person who is or was a commissioner is not compellable to give evidence in relation to the Royal Commission in any criminal, civil, administrative or disciplinary proceedings.



31

(2) Nothing in subsection (1) prevents a person who is or was a commissioner giving evidence voluntarily.

39 Protection of participants

(1) A commissioner has, in respect of the performance of the commissioner's functions as commissioner, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(2) A member of staff of a Royal Commission has, in the performance of the person's functions in the Royal Commission's inquiry, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(3) A person legally representing another person in a Royal Commission's inquiry has the same protection and immunity as an Australian legal practitioner has in representing a party in proceedings in the Supreme Court.

(4) A person who gives information or evidence, or produces a document or other thing, to a Royal Commission has the same protection and immunity as a witness has in proceedings in the Supreme Court.

Division 10—Royal Commissions and courts40 Admissibility of answers, information, documents

and other things

(1) Any answer, information, document or other thing given or produced to a Royal Commission by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—



32

(a) an offence against this Act; or

(b) an offence against section 254 or 314 of the Crimes Act 1958 in relation to the Royal Commission.

(2) Subsection (1) does not apply to a document or other thing if it was obtained, or could have been obtained, independently of its production to the Royal Commission, either before or after its production, by the person seeking to tender it in evidence, or otherwise to use it, in the other proceedings.

(3) In this section—

other proceedings means criminal, civil or administrative proceedings before a court, tribunal or person acting judicially or disciplinary proceedings, including proceedings that were pending when the answer, information, document or other thing was given or produced to the Royal Commission.

41 Referral of questions of law to Supreme Court

(1) The chairperson of a Royal Commission may refer any question of law arising in an inquiry to the Supreme Court for decision.

(2) A referral may be made under subsection (1) at the request of any person or on the chairperson's own initiative.

Division 11—Assistance for witnesses42 Costs of attending Royal Commission

(1) This section applies to a person who attends a Royal Commission—

(a) in accordance with a notice to attend; or

(b) at the request of the Royal Commission.



33

(2) Subject to subsection (3), the person is entitled to be paid expenses and allowances in accordance with the prescribed scale.

(3) Subsection (2) does not apply—

(a) in an inquiry that is being conducted concurrently under this Act and under the law of the Commonwealth, another State or a Territory, unless the letters patent establishing the Royal Commission provide otherwise; or

(b) if the letters patent establishing the Royal Commission do not authorise the Royal Commission to incur expenses or financial obligations to be met from the Consolidated Fund.

Division 12—Confidentiality, sharing and use of information

43 Confidentiality for Royal Commission officers

A person who is or was a Royal Commission officer must not knowingly disclose any information acquired by the person by reason of being a Royal Commission officer, or in the course of the performance of functions under this Act or any other Act, except—

(a) for the performance of the functions of the Royal Commission officer under this or any other Act; or

(b) for the purpose of any criminal proceedings under section 254 or 314 of the Crimes Act 1958 in relation to the Royal Commission; or

(c) if the information is in the public domain at the time of the disclosure, otherwise than as a result of a disclosure that the person knows or ought to have known was unlawful; or



34

(d) as is otherwise authorised or required under this Act or any other Act.

Penalty: 120 penalty units or imprisonment for 12 months.

Note

Section 128 applies to an offence against this section.

44 Disclosure or provision of information by commissioners or authorised persons

(1) A commissioner or a person authorised by a commissioner may at any time provide or disclose any information referred to in section 43, or give any document or other thing, to any person or body if the commissioner or authorised person—

(a) considers that the information, document or other thing is relevant to the performance of the functions of the person or body; and

(b) considers it appropriate to disclose the information or give the document or other thing to the person or body.

(2) If a document or other thing is given to a person or body under subsection (1), the person or body must, at the request of a Royal Commission officer, return the document or other thing if it ceases to be reasonably necessary for the person or body to retain the document or other thing for the purposes for which it was given to the person or body.

45 Taking advantage of information

(1) This section applies to a person to whom information is given by a Royal Commission or a Royal Commission officer during the course of the Royal Commission's inquiry.



35

(2) The person to whom the information is given must not take advantage of the information to benefit the person or any other person.

Penalty: 120 penalty units or imprisonment for 12 months or both.

Note

Section 128 applies to an offence against this subsection.

(3) A person does not commit an offence against subsection (2) if the information is in the public domain at the time the person takes advantage of it, otherwise than as a result of a disclosure that the person knows or ought to have known was unlawful.

Division 13—Offences46 Offence to fail to comply with a notice to produce or

attend

A person who is duly served with a notice to produce or notice to attend in relation to a Royal Commission must not, without reasonable excuse, refuse or fail to comply with the notice.

Penalty: 240 penalty units or imprisonment for 2 years.

Notes

1 See Division 7 which provides for the non-application of various privileges and statutory secrecy and confidentiality provisions.

2 See also section 72 of the Criminal Procedure Act 2009, which deals with the evidential burden of proof.

3 Section 128 applies to an offence against this section.

47 Offence to fail to take oath, make affirmation or answer question



36

(1) A person who is duly served with a notice to attend a Royal Commission under section 17(1)(c) or (d) must not, without reasonable excuse—

(a) refuse or fail to take an oath or make an affirmation when required to do so; or

(b) refuse or fail to answer a question that the person is required to answer by the Royal Commission.


Note

See also section 72 of the Criminal Procedure Act 2009, which deals with the evidential burden of proof.

(2) A person does not commit an offence against subsection (1) unless, before the person is required to take the oath or make the affirmation or answer the question, the Royal Commission informs the person that refusal or failure to do so without reasonable excuse is an offence.

48 Offence to contravene exclusion or restriction orders

(1) A person must not engage in conduct that constitutes a contravention of an order of a commissioner under section 24(1) or 26(1) that is in force if the person—

(a) knows that the order is in force; or

(b) is reckless as to whether the order is in force.


Note


(2) An offence against subsection (1) is an indictable offence.



37

49 Offence to hinder, obstruct or cause serious disruption to proceeding

A person must not engage in conduct that hinders, obstructs or causes serious disruption to a proceeding of a Royal Commission if the person—

(a) intends to hinder, obstruct or disrupt the proceeding; or

(b) is reckless as to whether the conduct may hinder, obstruct or disrupt the proceeding.


50 Offence to make false or misleading statements or produce false or misleading documents or other things

(1) A person must not make a statement to a Royal Commission that the person knows to be false or misleading in a material particular.


Note

See section 314 of the Crimes Act 1958 in relation to perjury and section 254 of that Act in relation to the destruction of evidence.

(2) A person must not produce a document or other thing to a Royal Commission that the person knows to be false or misleading in a material particular unless the person indicates to the Royal Commission the respect in which it is false or misleading and, to the extent practicable, provides the correct information.



38


51 Offence for employers to take detrimental action against employees

(1) An employer must not dismiss or threaten to dismiss an employee or take or threaten to take any other detrimental action against an employee because—

(a) the employee has given information to a Royal Commission; or

(b) the employer believes that the employee has given or will give information to a Royal Commission.


Notes


2 Section 128 applies to an offence against this subsection.

(2) It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in subsection (1)(a) or (b) was not a substantial reason for the dismissal or other detrimental action.

(3) Subsection (1) does not apply if an employer dismisses or threatens to dismiss an employee or takes or threatens to take any other detrimental action against an employee because—

(a) the employee unlawfully gave information to a Royal Commission; or

(b) the employee contravened section 50 of this Act or section 314 of the Crimes Act 1958



39

in respect of the information given to a Royal Commission.

52 Offence of taking detrimental action against commissioners

(1) A person must not take detrimental action against another person who is or was a commissioner because the other person is or was a commissioner.

Penalty:240 penalty units or imprisonment for 2 years.

Note


(2) It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in that subsection was not a substantial reason for the detrimental action.



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Part 3—Boards of Inquiry

Division 1—Establishment of Boards of Inquiry53 Establishment of Board of Inquiry by Order in

Council

(1) On the recommendation of the Premier, the Governor in Council, by Order in Council published in the Government Gazette, may appoint any one or more natural persons to constitute a Board of Inquiry to inquire into and report on the terms of reference specified in the Order.

(2) The establishing Order—


(i) the person or persons appointed to constitute the Board of Inquiry;

(ii) if more than one person is appointed, the person who is to chair the Board of Inquiry;

(iii) the terms of reference of the Board of Inquiry;


(i) a time by which the Board of Inquiry is to report on its inquiry;

(ii) whether the members may perform functions conferred on them under the law of the Commonwealth, another State or a Territory;

(iii) whether the Board of Inquiry is authorised to incur expenses and financial obligations to be met from the Consolidated Fund and, if so, the



41

maximum amount of those expenses and obligations;

(iv) whether the chairperson is authorised to engage one or more Australian legal practitioners to assist the Board of Inquiry as counsel;

(v) the manner in which the inquiry of the Board of Inquiry is to be conducted;

(vi) if there is more than one member, which (if any) of the functions of the Board of Inquiry must be performed by the members jointly and which (if any) may be performed by one or more members separately;

(vii) any other matter the Governor in Council considers appropriate.

Note

See section 123 for restrictions on the scope and powers of a Board of Inquiry in relation to certain entities.

(3) Nothing in this Act affects the establishment of a board of inquiry, or applies to a board of inquiry established, under another Act.Example

Section 15 of the Parliamentary Administration Act 2005 provides for the establishment of boards of inquiry under that Act.

54 Concurrent Boards of Inquiry

If provided for in the establishing Order for a Board of Inquiry, a member may perform any functions that are conferred on the member under the law of the Commonwealth, another State or a Territory in conjunction with the performance of the member's functions under this Act.



42

55 Conversion of Board of Inquiry into a Royal Commission

(1) The Governor, by letters patent issued in accordance with section 5 to the members of a Board of Inquiry, may convert the Board of Inquiry into a Royal Commission.

(2) If a Board of Inquiry is converted into a Royal Commission—

(a) the members of the Board of Inquiry become commissioners; and

(b) any members of staff of the Board of Inquiry become members of staff of the Royal Commission; and

(c) any information or evidence given to or obtained by, and any documents and other things produced to, the Board of Inquiry are taken to have been given to, obtained by or produced to the Royal Commission; and

(d) any notices to attend or notices to produce served by the Board of Inquiry that are still in force are taken to be notices to attend or notices to produce served by the Royal Commission; and

(e) any arrangements or agreements entered into by or on behalf of the Board of Inquiry that are in force continue in force as if they had been entered into by or on behalf of the Royal Commission.

(3) Subsection (2) is subject to the letters patent referred to in subsection (1).

(4) The conversion of a Board of Inquiry into a Royal Commission takes effect on the day on which the letters patent are published in the Government Gazette under section 6.



43

Division 2—Arrangements to facilitate Boards of Inquiry


(1) There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary for a Board of Inquiry to perform its functions.Note

See also section 18 of the Public Administration Act 2004, which provides for delegation powers of a public service body Head under that Act. That section would permit employment functions under that Act to be delegated to the chairperson of a Board of Inquiry.

(2) The chairperson of a Board of Inquiry may—



(c) if authorised to do so by the establishing Order for the Board of Inquiry, engage one or more Australian legal practitioners to assist the Board of Inquiry as counsel; and

(d) enter into agreements or arrangements for the provision of any other services to the Board of Inquiry.

(3) The engagement of an Australian legal practitioner under subsection (2)(c) may only be made with the approval of the Premier.

(4) The employment or engagement of members of staff of a Board of Inquiry may be on any terms and conditions the chairperson considers appropriate and all members of staff are subject to the direction of the chairperson.



44

(5) The chairperson of a Board of Inquiry may, by instrument, delegate to another Board of Inquiry officer a function under this section, other than this power of delegation.Note


57 Certain public sector values do not apply to Board of Inquiry staff

If the public sector values referred to in section 7(1)(a)(i) and (c)(iii) of the Public Administration Act 2004 would, but for this section, apply to a member of staff of a Board of Inquiry, those public sector values do not apply to the member of staff in respect of their employment or engagement with the Board of Inquiry.Note


58 Expenses and financial obligations of Board of Inquiry

(1) Expenses and financial obligations may be incurred by a Board of Inquiry to be met from the Consolidated Fund only—

(a) if authorised by the establishing Order for the Board of Inquiry; and

(b) to the extent of the maximum amount specified in the establishing Order.

(2) The Consolidated Fund is appropriated to the extent necessary to allow expenses and financial obligations to be incurred and met as authorised by subsection (1).



45

(3) To avoid doubt, subsection (1) does not prevent—

(a) the entering into of agreements or arrangements, or the engagement of persons, under section 56 at no cost to the Board of Inquiry; or

(b) the incurring of expenses and financial obligations to be met from sources other than the Consolidated Fund.

Division 3—Conduct of inquiries by Boards of Inquiry

59 Manner of inquiry of Board of Inquiry

A Board of Inquiry may conduct its inquiry in any manner that it considers appropriate, subject to—


(b) the establishing Order for the Board of Inquiry; and


60 Members may act separately

(1) This section applies if a Board of Inquiry is constituted by more than one member.

(2) Subject to this Act and the establishing Order, the chairperson of the Board of Inquiry may determine from time to time that any of the functions of the Board of Inquiry may be performed by one or more members separately.Example

Subject to the establishing Order, the chairperson could determine that the individual members hold concurrent hearings.



46

61 Evidence

A Board of Inquiry is not bound by the rules of evidence or any practices or procedures applicable to courts of record and may inform itself on any matter as it sees fit.

62 Participation in Board of Inquiry inquiries

(1) A Board of Inquiry may allow, to the extent and in the manner determined by the Board of Inquiry—



(2) In allowing a person to appear or participate in an inquiry, or to be legally represented, the Board of Inquiry may have regard to the following factors—


(b) the likelihood that the Board of Inquiry may make an adverse finding against the person;

(c) the ability of the person to assist the Board of Inquiry in the inquiry;


(e) any other matter the Board of Inquiry considers relevant.


(1) A Board of Inquiry may from time to time issue practice directions, statements or notes in relation to its inquiry.

(2) Practice directions, statements or notes issued under subsection (1) must not be inconsistent with the establishing Order, this or any other Act or any regulations made under this or any other Act.



47


Division 4—Powers of Boards of Inquiry for production of documents and other things and

obtaining evidence64 Power to compel production of documents and other

things or attendance of witness

(1) For the purposes of its inquiry, a Board of Inquiry may serve written notice on a person requiring the person to—

(a) produce a specified document or other thing to the Board of Inquiry or a Board of Inquiry officer before a specified time and in the specified manner; or

(b) attend the Board of Inquiry at a specified time and place to produce a specified document or other thing; or

(c) attend the Board of Inquiry at a specified time and place, and from then on from day to day until excused, to give evidence; or

(d) attend the Board of Inquiry at a specified time and place, and from then on from day to day until excused, to give evidence and to produce a specified document or other thing.

(2) A notice to produce or notice to attend in relation to a Board of Inquiry—

(a) must be in the prescribed form (if any); and

(b) must contain the following information—

(i) a statement outlining the provisions of sections 70 and 86;



48

(ii) examples of what may constitute a reasonable excuse for failing to comply with the notice;

(iii) how the person may object to the notice;

(iv) any other prescribed information; and

(c) must be served in accordance with section 66.

(3) Subsection (2)(a) does not apply to a notice to produce or notice to attend for the purposes of an inquiry of a Board of Inquiry that is being conducted concurrently under this Act and under the law of the Commonwealth, another State or a Territory.

65 Variation or revocation of notice to produce or notice to attend

(1) A person on whom a notice to produce or notice to attend in relation to a Board of Inquiry is served may make a claim to the Board of Inquiry—

(a) that the person has or will have a reasonable excuse for failing to comply with the notice; or

(b) in the case of a notice to produce, or a notice to attend under section 64(1)(b) or (d), that a document or other thing specified in the notice is not relevant to the subject matter of the inquiry.

(2) Without limiting what may be a reasonable excuse for the purposes of subsection (1)(a), it is a reasonable excuse for a person to fail to comply with a notice by refusing to give information to a Board of Inquiry if the information—

(a) in the case of a natural person, might tend to incriminate the person or make the person liable to a penalty; or



49

(b) is the subject of parliamentary privilege; or

(c) is the subject of legal professional privilege; or

(d) is the subject of public interest immunity; or

(e) is prohibited from disclosure by a court order; or

(f) is prohibited from disclosure by a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Board of Inquiry; or

(g) is prohibited from disclosure by a provision of another enactment that is prescribed by the regulations for the purposes of section 74.

(3) If the Board of Inquiry is satisfied that the person's claim is made out, the Board of Inquiry, by further written notice served on the person, may vary or revoke the notice.

(4) A Board of Inquiry, by further written notice served on a person, may at any time on its own initiative vary or revoke a notice to produce or notice to attend served on the person.

(5) A notice varying or revoking a notice to produce or notice to attend must be served in accordance with section 66.

66 Service of notice to produce or notice to attend

(1) Subject to subsection (2), a notice to produce or notice to attend, or a notice varying or revoking a notice to produce or notice to attend, must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the notice.



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(2) A Board of Inquiry may serve a notice to attend requiring immediate attendance by a person if—

(a) the Board of Inquiry considers on reasonable grounds that a delay in the person's attendance is likely to result in—

(i) evidence being lost or destroyed; or

(ii) the commission of an offence; or

(iii) the escape of the person on whom the notice is served; or

(iv) serious prejudice to the conduct of the inquiry to which the notice relates; or

(b) the person on whom the notice is served consents to immediate attendance.

(3) A notice to produce or notice to attend directed to a natural person must be served by serving a copy of the notice on the person personally.

(4) A notice to produce or notice to attend directed to a body corporate must be served by leaving a copy of the notice at the registered office or principal place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 18 years of age.

(5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.

67 Witness already in custody

(1) If a notice to attend a Board of Inquiry is issued to a person who is in a prison or a police gaol, the Board of Inquiry may give a written direction that the person be brought before the Board of Inquiry as required by the notice to attend.

(2) A direction under subsection (1) must be in the prescribed form (if any).



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68 Power to take evidence on oath or affirmation

(1) A Board of Inquiry may require a person attending an inquiry of the Board of Inquiry, whether in accordance with a notice to attend or otherwise, to give evidence or answer questions on oath or affirmation.

(2) A member of the Board of Inquiry, or a member of staff who is authorised to do so by a member of the Board of Inquiry, may administer an oath or affirmation to a person for the purposes of subsection (1).

69 Powers in relation to documents and other things

(1) A member of a Board of Inquiry, or a member of staff who is authorised by a member of a Board of Inquiry, may—

(a) inspect any document or other thing produced to the Board of Inquiry; and

(b) retain the document or other thing for as long as is reasonably necessary for the purposes of the inquiry; and

(c) copy any document or other thing produced to the Board of Inquiry necessary for the purposes of the inquiry.

(2) If the retention of a document or other thing under subsection (1) ceases to be reasonably necessary for the purposes of its inquiry, the Board of Inquiry, at the request of a person who appears to be entitled to the document or other thing, must cause the document or other thing to be delivered to the person unless it has been given to another person or body under section 84.

(3) A reference in this section to the purposes of an inquiry includes a reference to—

(a) the disclosure of information under section 84; and



52

(b) any concurrent Boards of Inquiry.

70 Failure to comply with notice or requirement

(1) If the chairperson of a Board of Inquiry is satisfied that a person has, without reasonable excuse, failed to comply with a notice to produce or notice to attend in relation to the Board of Inquiry or a requirement under section 68, the chairperson may apply to the Supreme Court for an order under this section.

(2) On an application under subsection (1), the Supreme Court may order the person to comply with the notice or requirement within the period specified by the Court.

Note



71 Access to Board of Inquiry proceedings

(1) A member of a Board of Inquiry may make an order excluding any person from a proceeding of the Board of Inquiry if—





(e) the member otherwise considers the exclusion appropriate.



53

(2) The Board of Inquiry must cause a copy of the order to be posted—





A Board of Inquiry may expel a person from a proceeding of the Board of Inquiry if the person disrupts the proceeding.

73 Restriction on publication of information relating to Board of Inquiry inquiries

(1) Subject to subsection (2), a member of a Board of Inquiry may make an order prohibiting or restricting the publication of—

(a) any information that may enable the identity of a person who has given, or is to give, information or evidence to the Board of Inquiry for the purposes of an inquiry to be ascertained; or

(b) any information or evidence given to the Board of Inquiry for the purposes of an inquiry.

(2) A member may make an order prohibiting or restricting the publication of information or evidence if—




54




(e) the member otherwise considers the prohibition or restriction appropriate.

(3) If the order is made during a proceeding, the Board of Inquiry must cause a copy of the order to be posted—



(4) If the order is made in relation to information that is given by the Board of Inquiry to another person, the Board of Inquiry must cause a copy of the order to be given to that person.


Division 6—Application of statutory secrecy to Boards of Inquiry

74 Statutory secrecy and confidentiality provisions

(1) A Board of Inquiry may require a person to give information (including answering a question) or to produce a document or other thing despite the provision of another enactment that prohibits the disclosure of the information, document or other thing or imposes any other duty of confidentiality



55

on the person in relation to the information, document or other thing.

(2) If the Board of Inquiry specifies that subsection (1) applies to its requirement—

(a) it is not a reasonable excuse for the person to refuse or fail to comply with the requirement that another enactment prohibits the person from giving the information or producing the document or other thing to the Board of Inquiry or imposes a duty of confidentiality on the person in relation to the information, document or other thing; and

(b) the person is not subject to any criminal, civil, administrative or disciplinary proceedings or action only because the person complies with the requirement.

(3) Subsections (1) and (2) do not apply to—

(a) a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Board of Inquiry; or

(b) a provision of another enactment that is prescribed by the regulations for the purposes of this section.

(4) If a Board of Inquiry receives information or a document or other thing referred to in this section in an inquiry, any provision of another enactment that prohibits the disclosure of the information, document or other thing or imposes any other duty of confidentiality in relation to the information, document or other thing does not apply to the Board of Inquiry.



56

Division 7—Reports of Boards of Inquiry75 Report of Board of Inquiry

(1) A Board of Inquiry must deliver a report of its inquiry to the Governor.

(2) A report may contain any recommendations the Board of Inquiry considers appropriate.


(a) within the time specified in the establishing Order for the Board of Inquiry; or

(b) if no time is so specified, as soon as practicable after the Board of Inquiry completes the inquiry.

76 Adverse findings

(1) If a Board of Inquiry proposes to make a finding that is adverse to a person, the Board of Inquiry must be satisfied that the person—



(2) A Board of Inquiry must consider a person's response under subsection (1)(b) (if any) before making a finding that is adverse to the person.

(3) If the Board of Inquiry includes a finding that is adverse to a person in its report, the Board of Inquiry must fairly set out the person's response under subsection (1)(b) (if any) in the report.

77 Tabling of Board of Inquiry report

(1) Within 30 days after the Governor receives the report of a Board of Inquiry, the Premier must cause the following material (the Board of Inquiry material) to be laid before each House of



57

Parliament or, if neither House is then sitting, to be given to the clerk of each House—

(a) a copy of the report; or

(b) a copy of part of the report, together with a statement that the remaining part of the report is not to be tabled in Parliament at this time, including the reasons why it is not to be tabled; or

(c) a statement that the report has been received but is not to be tabled in Parliament at this time, including the reasons why it is not to be tabled.

(2) If the Premier proposes to give the Board of Inquiry material to the clerk of each House, the Premier must—

(a) give at least one business day's notice of the Premier's intention to do so to the clerk of each House; and

(b) give the Board of Inquiry material to the clerk of each House on the day indicated in the notice.



(b) make available copies of the Board of Inquiry material for each member of the House as soon as practicable after the Board of Inquiry material is received under subsection (2)(b); and

(c) cause the Board of Inquiry material to be laid before the House on the next sitting day of the House.



58

(4) Board of Inquiry material that is given to the clerks under subsection (2)(b) is taken to have been published by order, or under the authority, of the Houses of Parliament.

(5) The publication of Board of Inquiry material in accordance with this section is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and of any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the Board of Inquiry material as if it were a report to which those sections applied and had been published by the Government Printer under the authority of Parliament.

(6) If the report of a Board of Inquiry is not tabled, or is tabled in part, under this section and the Premier subsequently determines that the report, or a further part or parts of the report, should be tabled, this section applies, with any necessary modifications, to the tabling and publication of the report or the relevant part or parts of the report.

Division 8—Protection from legal liability78 Compellability of members

(1) A person who is or was a member of a Board of Inquiry is not compellable to give evidence in relation to the Board of Inquiry in any criminal, civil, administrative or disciplinary proceedings.

(2) Nothing in subsection (1) prevents a person who is or was a member of a Board of Inquiry giving evidence voluntarily.


(1) A member of a Board of Inquiry has, in respect of the performance of the member's functions as member, the same protection and immunity as a



59

judge of the Supreme Court has in the performance of the judge's duties as judge.

(2) A member of staff of a Board of Inquiry has, in the performance of the person's functions in the Board of Inquiry's inquiry, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(3) A person legally representing another person in a Board of Inquiry's inquiry has the same protection and immunity as an Australian legal practitioner has in representing a party in proceedings in the Supreme Court.

(4) A person who gives information or evidence, or produces a document or other thing, to a Board of Inquiry has the same protection and immunity as a witness has in proceedings in the Supreme Court.

Division 9—Boards of Inquiry and courts80 Admissibility of answers, information, documents

and other things

(1) Any answer, information, document or other thing given or produced to a Board of Inquiry by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—


(b) an offence against section 254 or 314 of the Crimes Act 1958 in relation to the Board of Inquiry.

(2) Subsection (1) does not apply to a document or other thing if it was obtained, or could have been obtained, independently of its production to the Board of Inquiry, either before or after its



60

production, by the person seeking to tender it in evidence, or otherwise to use it, in the other proceedings.


other proceedings means criminal, civil or administrative proceedings before a court, tribunal or person acting judicially or disciplinary proceedings, including proceedings that were pending when the answer, information, document or other thing was given or produced to the Board of Inquiry.


(1) The chairperson of a Board of Inquiry may refer any question of law arising in an inquiry to the Supreme Court for decision.


Division 10—Assistance for witnesses82 Costs of attending Board of Inquiry

(1) This section applies to a person who attends a Board of Inquiry—

(a) in accordance with a notice to attend; or

(b) at the request of the Board of Inquiry.

(2) Subject to subsection (3), the person is entitled to be paid expenses and allowances in accordance with the prescribed scale.

(3) Subsection (2) does not apply—

(a) in an inquiry that is being conducted concurrently under this Act and under the law of the Commonwealth, another State or a



61

Territory, unless the establishing Order for the Board of Inquiry provides otherwise; or

(b) if the establishing Order does not authorise the Board of Inquiry to incur expenses or financial obligations to be met from the Consolidated Fund.


83 Confidentiality for Board of Inquiry officers

A person who is or was a Board of Inquiry officer must not knowingly disclose any information acquired by the person by reason of being a Board of Inquiry officer, or in the course of the performance of functions under this Act or any other Act, except—

(a) for the performance of the functions of the Board of Inquiry officer under this or any other Act; or

(b) for the purpose of any criminal proceedings under section 254 or 314 of the Crimes Act 1958 in relation to the Board of Inquiry; or




Note




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84 Disclosure or provision of information by members or authorised persons

(1) A member of a Board of Inquiry or a person authorised by a member may at any time provide or disclose any information referred to in section 83, or give any document or other thing, to any person or body if the member or authorised person—



(2) If a document or other thing is given to a person or body under subsection (1), the person or body must, at the request of a Board of Inquiry officer, return the document or other thing if it ceases to be reasonably necessary for the person or body to retain the document or other thing for the purposes for which it was given to the person or body.


(1) This section applies to a person to whom information is given by a Board of Inquiry or a Board of Inquiry officer during the course of the Board of Inquiry's inquiry.



Note




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Division 12—Offences86 Offence to fail to comply with a notice to produce or

attend

A person who is duly served with a notice to produce or notice to attend in relation to a Board of Inquiry must not, without reasonable excuse, refuse or fail to comply with the notice.


Notes

1 See Division 6 in relation to statutory secrecy and confidentiality provisions.


3 Section 128 applies to an offence against this section.

87 Offence to fail to take oath, make affirmation or answer question

(1) A person who is duly served with a notice to attend a Board of Inquiry under section 64(1)(c) or (d) must not, without reasonable excuse—

(a) refuse or fail to take an oath or make an affirmation when required to do so; or

(b) refuse or fail to answer a question that the person is required to answer by the Board of Inquiry.




64

Note

See also section 72 of the Criminal Procedure Act 2009, which deals with the evidential burden of proof.

(2) A person does not commit an offence against subsection (1) unless, before the person is required to take the oath or make the affirmation or answer the question, the Board of Inquiry informs the person that refusal or failure to do so without reasonable excuse is an offence.

88 Offence to contravene exclusion or restriction orders

(1) A person must not engage in conduct that constitutes a contravention of an order of a member of a Board of Inquiry under section 71(1) or 73(1) that is in force if the person—




Note




A person must not engage in conduct that hinders, obstructs or causes serious disruption to a proceeding of a Board of Inquiry if the person—




65




(1) A person must not make a statement to a Board of Inquiry that the person knows to be false or misleading in a material particular.


Note

See section 314 of the Crimes Act 1958 in relation to perjury and section 254 of that Act in relation to the destruction of evidence.

(2) A person must not produce a document or other thing to a Board of Inquiry that the person knows to be false or misleading in a material particular unless the person indicates to the Board of Inquiry the respect in which it is false or misleading and, to the extent practicable, provides the correct information.




(a) the employee has given information to a Board of Inquiry; or



66

(b) the employer believes that the employee has given or will give information to a Board of Inquiry.


Notes





(a) the employee unlawfully gave information to a Board of Inquiry; or

(b) the employee contravened section 90 of this Act or section 314 of the Crimes Act 1958 in respect of the information given to a Board of Inquiry.

92 Offence of taking detrimental action against members

(1) A person must not take detrimental action against another person who is or was a member of a Board of Inquiry because the other person is or was a member of a Board of Inquiry.




67

Note





68

Part 4—Formal Reviews

Division 1—Establishment of Formal Reviews93 Establishment of Formal Review by instrument

(1) The Premier, by instrument, may appoint any one or more natural persons to constitute a Formal Review to inquire into and report on the terms of reference specified in the instrument.

(2) A Minister other than the Premier may, with the Premier's approval, by instrument appoint any one or more natural persons to constitute a Formal Review to inquire into and report on the terms of reference specified in the instrument.

(3) The establishing instrument for a Formal Review—


(i) the person or persons appointed to constitute the Formal Review;

(ii) if more than one person is appointed, the person who is to chair the Formal Review;

(iii) the terms of reference of the Formal Review; and


(i) a time by which the Formal Review is to report on its inquiry;

(ii) whether the Formal Review is authorised to incur expenses and financial obligations and, if so, the maximum amount of those expenses and obligations;



69

(iii) the manner in which the inquiry of the Formal Review is to be conducted;

(iv) if there is more than one member, which (if any) of the functions of the Formal Review must be performed by the members jointly and which (if any) may be performed by one or more members separately;

(v) whether persons who attend the Formal Review at the request of the Formal Review are entitled to be paid expenses and allowances;

(vi) any other matter the Premier or other Minister making the instrument considers appropriate.

94 Conversion of Formal Review into a Board of Inquiry

(1) The Governor in Council, by Order published in the Government Gazette in accordance with section 53, may convert a Formal Review into a Board of Inquiry.

(2) If a Formal Review is converted into a Board of Inquiry—

(a) the members of the Formal Review become members of the Board of Inquiry; and

(b) any members of staff of the Formal Review become members of staff of the Board of Inquiry; and

(c) any information or evidence given to or obtained by, and any documents and other things produced to, the Formal Review are taken to have been given to, obtained by or produced to the Board of Inquiry; and

(d) any arrangements or agreements entered into by or on behalf of the Formal Review that

S. 93(3)(b)(v) substituted by No. 10/2015 s. 13.



70

are in force continue in force as if they had been entered into by or on behalf of the Board of Inquiry.

(3) Subsection (2) is subject to the establishing Order for the Board of Inquiry.

(4) The conversion of a Formal Review into a Board of Inquiry takes effect on the day on which the establishing Order is published in the Government Gazette under section 53.

95 Conversion of Formal Review into a Royal Commission

(1) The Governor, by letters patent issued in accordance with section 5 to the members of a Formal Review, may convert the Formal Review into a Royal Commission.

(2) If a Formal Review is converted into a Royal Commission—

(a) the members of the Formal Review become commissioners; and

(b) any members of staff of the Formal Review become members of staff of the Royal Commission; and

(c) any information or evidence given to or obtained by, and any documents and other things produced to, the Formal Review are taken to have been given to, obtained by or produced to the Royal Commission; and

(d) any arrangements or agreements entered into by or on behalf of the Formal Review that are in force continue in force as if they had been entered into by or on behalf of the Royal Commission.

(3) Subsection (2) is subject to the letters patent referred to in subsection (1).



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(4) The conversion of a Formal Review into a Royal Commission takes effect on the day on which the letters patent are published in the Government Gazette under section 6.

Division 2—Arrangements to facilitate Formal Reviews


(1) There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary for a Formal Review to perform its functions.Note

See also section 18 of the Public Administration Act 2004, which provides for delegation powers of a public service body Head under that Act. That section would permit employment functions under that Act to be delegated to the chairperson of a Formal Review.

(2) The chairperson of a Formal Review may—



(c) enter into agreements or arrangements for the provision of any other services to the Formal Review.

(3) The employment or engagement of members of staff of a Formal Review may be on any terms and conditions the chairperson considers appropriate and all members of staff are subject to the direction of the chairperson.



72

(4) The chairperson of a Formal Review may, by instrument, delegate to another Formal Review officer a function under this section, other than this power of delegation.Note


97 Certain public sector values do not apply to Formal Review staff

If the public sector values referred to in section 7(1)(a)(i) and (c)(iii) of the Public Administration Act 2004 would, but for this section, apply to a member of staff of a Formal Review, those public sector values do not apply to the member of staff in respect of their employment or engagement with the Formal Review.Note


98 Expenses and financial obligations of Formal Review

(1) Expenses and financial obligations may be incurred by a Formal Review only—

(a) if authorised by the establishing instrument for the Formal Review; and

(b) to the extent of the maximum amount specified in the establishing instrument.

(2) To avoid doubt, subsection (1) does not prevent the entering into of agreements or arrangements, or the engagement of persons, under section 96 at no cost to the Formal Review.



73

Division 3—Conduct of Formal Review inquiries99 Manner of inquiry of Formal Review

A Formal Review may conduct its inquiry in any manner that it considers appropriate, subject to—


(b) the establishing instrument for the Formal Review; and


100 Members may act separately

(1) This section applies if a Formal Review is constituted by more than one member.

(2) Subject to this Act and the establishing instrument for the Formal Review, the chairperson of the Formal Review may determine from time to time that any of the functions of the Formal Review may be performed by one or more members separately.Example

Subject to the establishing instrument, the chairperson could determine that the individual members hold concurrent hearings.

101 Evidence

A Formal Review is not bound by the rules of evidence or any practices or procedures applicable to courts of record and may inform itself on any matter as it sees fit.

102 Participation in Formal Review inquiries

(1) A Formal Review may allow, to the extent and in the manner determined by the Formal Review—




74


(2) In allowing a person to appear or participate in an inquiry, or to be legally represented, the Formal Review may have regard to the following factors—


(b) the likelihood that the Formal Review may make an adverse finding against the person;

(c) the ability of the person to assist the Formal Review in the inquiry;


(e) any other matter the Formal Review considers relevant.


(1) A Formal Review may from time to time issue practice directions, statements or notes in relation to its inquiry.

(2) Practice directions, statements or notes issued under subsection (1) must not be inconsistent with the establishing instrument, this or any other Act or any regulations made under this or any other Act.



104 Access to Formal Review proceedings



75

(1) A member of a Formal Review may make an order excluding any person from a proceeding of the Formal Review if—





(e) the member otherwise considers the exclusion appropriate.

(2) The Formal Review must cause a copy of the order to be posted—





A Formal Review may expel a person from a proceeding of the Formal Review if the person disrupts the proceeding.

106 Restriction on publication of information relating to Formal Review inquiries

(1) Subject to subsection (2), a member of a Formal Review may make an order prohibiting or restricting the publication of—



76

(a) any information that may enable the identity of a person who has given, or is to give, information to the Formal Review for the purposes of an inquiry to be ascertained; or

(b) any information given to the Formal Review for the purposes of an inquiry.

(2) A member may make an order prohibiting or restricting the publication of information or evidence if—





(e) the member otherwise considers the prohibition or restriction appropriate.

(3) If the order is made during a proceeding, the Formal Review must cause a copy of the order to be posted—



(4) If the order is made in relation to information that is given by the Formal Review to another person,



77

the Formal Review must cause a copy of the order to be given to that person.


Division 5—Reports of Formal Reviews107 Report of Formal Review

(1) A Formal Review must deliver a report of its inquiry—

(a) to the Premier; and

(b) if the Formal Review was established by a Minister other than the Premier, to that Minister.

(2) A report may contain any recommendations the Formal Review considers appropriate.


(a) within the time specified in the establishing instrument for the Formal Review; or

(b) if no time is so specified, as soon as practicable after the Formal Review completes the inquiry.

108 Adverse findings

(1) If a Formal Review proposes to make a finding that is adverse to a person, the Formal Review must be satisfied that the person—



(2) A Formal Review must consider a person's response under subsection (1)(b) (if any) before



78

making a finding that is adverse to the person.

(3) If the Formal Review includes a finding that is adverse to a person in its report, the Formal Review must fairly set out the person's response under subsection (1)(b) (if any) in the report.

109 Tabling of Formal Review report

(1) The relevant Minister may cause a copy of the report of a Formal Review to be laid before each House of Parliament or, if neither House is sitting, to be given to the clerk of each House.

(2) If the relevant Minister proposes to give the report to the clerk of each House, the relevant Minister must—

(a) give at least one business day's notice of the relevant Minister's intention to do so to the clerk of each House; and

(b) give a copy of the report to the clerk of each House on the day indicated in the notice.



(b) make available copies of the report for each member of the House as soon as practicable after the report is received under subsection (2)(b); and

(c) cause the report to be laid before the House on the next sitting day of the House.

(4) A copy of a report that is given to the clerks under subsection (2)(b) is taken to have been published by order, or under the authority, of the Houses of Parliament.



79

(5) The publication of a copy of a report in accordance with this section is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and of any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the copy of the report as if it were a report to which those sections applied and had been published by the Government Printer under the authority of Parliament.


relevant Minister means—

(a) for a Formal Review referred to in section 93(1), the Premier;

(b) for a Formal Review referred to in section 93(2), the Minister who established the Formal Review.

Division 6—Protection from legal liability110 Compellability of members

(1) A person who is or was a member of a Formal Review is not compellable to give evidence in relation to the Formal Review in any criminal, civil, administrative or disciplinary proceedings.

(2) Nothing in subsection (1) prevents a person who is or was a member of a Formal Review giving evidence voluntarily.


(1) A member of a Formal Review has, in respect of the performance of the member's functions as member, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.



80

(2) A member of staff of a Formal Review has, in the performance of the person's functions in the Formal Review's inquiry, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(3) A person legally representing another person in a Formal Review's inquiry has the same protection and immunity as an Australian legal practitioner has in representing a party in proceedings in the Supreme Court.

(4) A person who gives information or evidence to a Formal Review has the same protection and immunity as a witness has in proceedings in the Supreme Court.

Division 7—Formal Reviews and courts112 Admissibility of answers, information, documents

and other things

(1) Any answer, information, document or other thing given or produced to a Formal Review by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—


(b) an offence against section 254 of the Crimes Act 1958 in relation to the Formal Review.

(2) Subsection (1) does not apply to a document or other thing if it was obtained, or could have been obtained, independently of its production to the Formal Review, either before or after its production, by the person seeking to tender it in evidence, or otherwise to use it, in the other proceedings.



81


other proceedings means criminal, civil or administrative proceedings before a court, tribunal or person acting judicially or disciplinary proceedings, including proceedings that were pending when the answer, information, document or other thing was given or produced to the Formal Review.


(1) The chairperson of a Formal Review may refer any question of law arising in an inquiry to the Supreme Court for decision.


Division 8—Assistance for witnesses114 Costs of attending Formal Review

(1) This section applies to a person who attends a Formal Review at the request of the Formal Review if the establishing instrument for the Formal Review—

(a) provides that persons who attend the Formal Review at the request of the Formal Review are entitled to be paid expenses and allowances; and

(b) authorises the Formal Review to incur expenses and financial obligations.

(2) The person is entitled to be paid expenses and allowances in accordance with the prescribed scale.

S. 114 substituted by No. 10/2015 s. 14.



82


115 Confidentiality for Formal Review officers

A person who is or was a Formal Review officer must not knowingly disclose any information acquired by the person by reason of being a Formal Review officer, or in the course of the performance of functions under this Act or any other Act, except—

(a) for the performance of the functions of the Formal Review officer under this or any other Act; or

(b) for the purpose of any criminal proceedings under section 254 of the Crimes Act 1958 in relation to the Formal Review; or




Note


116 Disclosure or provision of information by members or authorised persons

(1) A member of a Formal Review or a person authorised by a member may at any time provide or disclose any information referred to in section 115, or give any document or other thing, to any person or body if the member or authorised person—



83



(2) If a document or other thing is given to a person or body under subsection (1), the person or body must, at the request of a Formal Review officer, return the document or other thing if it ceases to be reasonably necessary for the person or body to retain the document or other thing for the purposes for which it was given to the person or body.


(1) This section applies to a person to whom information is given by a Formal Review or a Formal Review officer during the course of the Formal Review's inquiry.



Note





84

Division 10—Offences118 Offence to contravene exclusion or restriction

orders

(1) A person must not engage in conduct that constitutes a contravention of an order of a member of a Formal Review under section 104(1) or 106(1) that is in force if the person—




Note




A person must not engage in conduct that hinders, obstructs or causes serious disruption to a proceeding of a Formal Review if the person—






85


(1) A person must not make a statement to a Formal Review that the person knows to be false or misleading in a material particular.


(2) A person must not produce a document or other thing to a Formal Review that the person knows to be false or misleading in a material particular unless the person indicates to the Formal Review the respect in which it is false or misleading and, to the extent practicable, provides the correct information.




(a) the employee has given information to a Formal Review; or

(b) the employer believes that the employee has given or will give information to a Formal Review.


Notes




86




(a) the employee unlawfully gave information to a Formal Review; or

(b) the employee contravened section 120 in respect of the information given to a Formal Review.

122 Offence of taking detrimental action against members

(1) A person must not take detrimental action against another person who is or was a member of a Formal Review because the other person is or was a member of a Formal Review.


Note





87

Part 5—General

Division 1—General provisions for inquiries123 Powers of Royal Commissions and Boards of

Inquiry

(1) A Royal Commission or Board of Inquiry cannot inquire into or exercise any powers in relation to any of the following persons or bodies—

(a) the Auditor-General;

(b) the Ombudsman;

(c) the Electoral Commissioner;

(d) the IBAC;

(e) the Victorian Inspectorate;

(f) the Director of Public Prosecutions for Victoria;

(g) a Crown Prosecutor;

(h) a Victorian court;

(i) VCAT;

(j) a judicial officer;

(k) a non-judicial member of VCAT;

(l) a member of the staff of Court Services Victoria in relation to the performance of judicial or quasi-judicial functions of a Victorian court.

(2) To avoid doubt, it is not the intention of this Act to alter or vary section 94B, 94E or 94F of the Constitution Act 1975.

(3) Nothing in this section prevents a person or body referred to in subsection (1) from giving evidence or information, or producing a document or other



88

thing, voluntarily to a Royal Commission or Board of Inquiry.

124 Transfer of records

(1) When a Royal Commission, Board of Inquiry or Formal Review ceases to exist, all its records are to be transferred to the Department of Premier and Cabinet, unless the Premier, by instrument, determines that they are to be transferred to another public office.

(2) Despite subsection 8A of the Public Records Act 1973, the Department of Premier and Cabinet or other public office must cause the records to be transferred to the custody of the Public Record Office as soon as practicable after their receipt.

(3) Records transferred to the Department of Premier and Cabinet, another public office or the Public Record Office under this section are to be held and dealt with on the same basis, and in the same manner, as the basis on which they were held, and the manner in which they could be dealt with, by the Royal Commission, Board of Inquiry or Formal Review.

(4) This section is subject to any arrangements made under section 2B(b) of the Public Records Act 1973.


public office has the same meaning as in the Public Records Act 1973.

125 Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to—

(a) a document that is in the possession of a Royal Commission, Board of Inquiry or Formal Review; or



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(b) a document of a Royal Commission, Board of Inquiry or Formal Review that is in the possession of an agency at any time during which the Royal Commission, Board of Inquiry or Formal Review is in existence.


agency has the same meaning as in the Freedom of Information Act 1982;

document has the same meaning as in the Freedom of Information Act 1982.

126 Continuity of inquiries

(1) If a Royal Commission consists of more than one commissioner, a change in commissioners, or any other variation of the letters patent for the Royal Commission, does not affect the continuity of the Royal Commission.

(2) If a Board of Inquiry or Formal Review consists of more than one member, a change in membership, or any other variation of the establishing Order for the Board of Inquiry or establishing instrument for the Formal Review, does not affect the continuity of the Board of Inquiry or the Formal Review.

(3) Without limiting subsection (1) or (2)—

(a) any members of staff of the Royal Commission, Board of Inquiry or Formal Review continue as members of staff; and

(b) any information or evidence given to or obtained by, and any documents and other things produced to, the Royal Commission, Board of Inquiry or Formal Review before the variation may continue to be taken into consideration by the Royal Commission, Board of Inquiry or Formal Review; and



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(c) any arrangements or agreements entered into by or on behalf of the Royal Commission, Board of Inquiry or Formal Review that are in force immediately before the variation continue in force.

(4) This section is subject to the letters patent, establishing Order or establishing instrument.

Division 2—Ancillary provisions for offences127 Definitions

In this Division—

body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer in relation to a body corporate means—

(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or

(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.

128 Criminal liability of officers of bodies corporate—accessorial liability

(1) If a body corporate commits an offence against a provision specified in Schedule 1, an officer of the body corporate also commits an offence against the provision if the officer—

(a) authorised or permitted the commission of the offence by the body corporate; or

(b) was knowingly concerned in any way (whether by act or omission) in the



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commission of the offence by the body corporate.

(2) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

(3) An officer of a body corporate may commit an offence against a provision specified in Schedule 1 whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

(4) This section does not affect the operation of Subdivision (1) of Division 1 of Part II of the Crimes Act 1958.

129 Offences by bodies corporate

(1) If in a proceeding for an offence against this Act or the regulations it is necessary to establish the intention of a body corporate, it is sufficient to show that a servant or agent of the body corporate had that intention.

(2) A statement made by an officer of a body corporate is admissible as evidence against the body corporate in any proceeding against the body corporate for an offence against this Act or the regulations.

130 Maximum fine for bodies corporate

(1) If a body corporate is found guilty of an offence against this Act or the regulations and the court has power to fine the body corporate, it may,

S. 128(4) substituted by No. 10/2015 s. 15.



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unless the contrary intention appears, impose on the body corporate a fine not greater than 5 times the amount of the maximum fine that could be imposed by the court on a natural person found guilty of the same offence committed at the same time.

(2) This section has effect despite—

(a) anything to the contrary in the Sentencing Act 1991; and

(b) the prescription of a maximum fine for the offence applicable to all offenders.

131 Responsible agency for the Crown

(1) If proceedings are brought against the Crown for an offence against this Act or the regulations, the responsible agency in respect of the offence may be specified in any document initiating, or relating to, the proceedings.

(2) In this section, the responsible agency in respect of an offence is the agency of the Crown—

(a) whose acts or omissions are alleged to constitute the offence; or

(b) if that agency has ceased to exist, that is the successor of that agency; or

(c) if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency.

(3) The responsible agency in respect of an offence is entitled to act in proceedings against the Crown for the offence and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceedings are conferred or imposed on the responsible agency.

(4) The person prosecuting the offence may change the responsible agency during the proceedings



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with the leave of the court.

132 Proceedings against successors to public bodies

(1) Proceedings for an offence against this Act or the regulations that were commenced against a public body before its dissolution, or that could have been commenced against a public body if not for its dissolution, may be continued or commenced against its successor if the successor is a public body.


public body has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011.

Division 3—Regulations133 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations—

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstance; and

(c) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person or class of persons; and

(d) may provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions



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and either wholly or to the extent specified; and

(e) may confer powers or impose duties in connection with the regulations on any specified person or specified class of persons; and

(f) may apply, adopt or incorporate with or without modification, any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed (whether under this or any other Act) or published by any person—

(i) wholly or partially or as amended by the regulations; or

(ii) as formulated, issued, prescribed (whether under this or any other Act) or published at the time the regulations are made or at any time before then; or

(iii) as formulated, issued, prescribed (whether under this or any other Act) or published from time to time; and

(g) may impose a penalty not exceeding 20 penalty units for a contravention of the regulations.

* * * * *

Pt 6 (Headings and ss 134–149) repealed by No. 67/2014 s. 149.



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Part 7—Transitional

150 Inquiries by commissions and boards under Part IVA of the Constitution Act 1975

(1) Despite the repeal of Part IVA of the Constitution Act 1975—

(a) a former commission or former board has, and is to be taken always to have had, the power to continue a current inquiry; and

(b) the Governor in Council may amend the letters patent or other instrument of appointment of a former commission or former board in relation to a current inquiry as if that Part had not been repealed.


current inquiry means an inquiry by a former commission or former board that was begun but has not been completed before the repeal of Part IVA of the Constitution Act 1975;

former board means a board appointed under section 88C of the Constitution Act 1975 before the repeal of Part IVA of that Act;

former commission means a person or persons to whom a commission was issued under section 88B of the Constitution Act 1975 before the repeal of Part IVA of that Act.

Pt 7 (Heading and s. 150) inserted by No. 10/2015 s. 16.

S. 150 inserted by No. 10/2015 s. 16.



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Schedules

Schedule 1—Offences to which accessorial liability attaches

Section 128

1 Section 43

2 Section 45(2)

3 Section 46

4 Section 48(1)

5 Section 51(1)

6 Section 52(1)

7 Section 83

8 Section 85(2)

9 Section 86

10 Section 88(1)

11 Section 91(1)

12 Section 92(1)

13 Section 115

14 Section 117(2)

15 Section 118(1)

16 Section 121(1)

17 Section 122(1)

* * * * *

═══════════════

Sch. 2 repealed by No. 67/2014 s. 149.



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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 21 August 2014

Legislative Council: 4 September 2014

The long title for the Bill for this Act was "A Bill for an Act to provide for the establishment and conduct of inquiries in Victoria, to make related and consequential amendments to other Acts and for other purposes."

The Inquiries Act 2014 was assented to on 23 September 2014 and came into operation as follows:

Sections 1–147, 149 on 15 October 2014: Special Gazette (No. 364) 14 October 2014 page 2; section 148 on 1 July 2015: section 2(2).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).



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• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other materialAny explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. See section 36(3)(3D)(3E).



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2 Table of AmendmentsThis publication incorporates amendments made to the Inquiries Act 2014 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Inquiries Act 2014, No. 67/2014Assent Date: 23.9.14Commencement Date: S. 148 on 1.7.15: s. 2(2); s. 149 on 15.10.14: Special

Gazette (No. 364) 14.10.14 p. 2Note: S. 149 repealed Pt 6 (ss 134–149), Sch. 2 on 1.7.16Current State: This information relates only to the provision/s

amending the Inquiries Act 2014

Parliamentary Committees and Inquiries Acts Amendment Act 2015, No. 10/2015

Assent Date: 21.4.15Commencement Date: Ss 12–16 on 22.4.15: s. 2Current State: This information relates only to the provision/s

amending the Inquiries Act 2014

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––



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3 Amendments Not in OperationThere are no amendments which were Not in Operation at the date of this publication.



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4 Explanatory detailsNo entries at date of publication.



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