Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Criminal Justice Legislation Amendment
Criminal Justice Legislation Amendment Bill
1997
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The primary purpose of the Bill is to introduce new measures for and
heighten existing processes of accountability of the Criminal Justice
Commission.
Reasons for the objectives and how they will be achieved
The Parliamentary Criminal Justice Committee has a statutory
responsibility to monitor and review the discharge of the functions of the
commission as a whole and report to the Legislative Assembly on any
matters pertinent to the commission.
Successive Parliamentary Criminal Justice Committees have
recommended changes to the Criminal Justice Act to improve the levels of
accountability of the commission, both to the Committee and through
judicial review.
Administrative cost to Government of implementation
The cost to Government of the creation of the office of Parliamentary
Commissioner will depend on the number of complaints made about the
Criminal Justice Commission. This will determine whether the role should
be full-time or part-time and the number of staff needed to assist the
Parliamentary Commissioner.
Fundamental legislative principles
The Bill seeks to promote fundamental legislative principles in several
2
Criminal Justice Legislation Amendment
ways.
For instance, the primary purpose of the Bill is to increase the
accountability of the Commission to the parliamentary committee which
supervises it and ultimately through that committee to the Parliament.
Several provisions seek to provide for greater judicial scrutiny of the
Commission by altering the existing procedure for judicial review of the
activities of the Official Misconduct Division.
The Bill imposes additional safeguards on the capacity of the
Chairperson of the Commission to delegate the special coercive powers
contained in Part 3 of the Criminal Justice Act.
The Bill enshrines the capacity of a person adversely affected by a report
of the Official Misconduct Division to be given an opportunity to comment
on the report.
The Bill provides a new process for dealing with complaints against the
Commission. This should advance the rights of individuals who seek to
complain about the Commission.
The Bill establishes the office of Parliamentary Commissioner. It should
be noted that the Bill restricts the capacity to challenge the actions of the
Parliamentary Commissioner to acts done negligently and in bad faith. In
those cases, it is still necessary to obtain leave to proceed. It is considered
that the office of Parliamentary Commissioner warrants this level of
protection. The Parliamentary Commissioner is a creature of Parliament and
is subject to the instruction of the parliamentary committee. The
Parliamentary Commissioner will report only to the parliamentary
committee and, subject to special provisions for the withholding of
confidential information, will act under the direction of the parliamentary
committee.
In relation to investigations by the Parliamentary Commissioner, the
Commission will not be able to claim privilege, such as legal professional
privilege. It is considered that in order to achieve effective scrutiny of the
Commission the Parliamentary Commissioner must have as much access
as is possible to the information held by the Commission.
Consultation
Successive Parliamentary Criminal Justice Committees have engaged in
3
Criminal Justice Legislation Amendment
extensive consultation with the community in their reviews of the
operations of the commission. The Bill was also recently made available for
a brief period of consultation.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 states the short title, the Criminal Justice Legislation
Amendment Act 1997.
Clause 2 provides for commencement of the Act by proclamation.
PART 2--AMENDMENT OF CRIMINAL JUSTICE
ACT 1989
Clause 3 provides that this part of the Act amends the Criminal Justice
Act 1989.
Clause 4 provides for the insertion of additional objects in relation to the
role of the parliamentary committee in overseeing the operations of the
commission, dealing with complaints about the commission and requesting
a parliamentary commissioner to exercise certain powers.
Clause 5 provides for the amendment of certain existing definitions and
inserts new definitions, needed for the purpose of the amendments. A
specific change is to include the Queensland Corrective Services
Commission as a unit of public administration, which will be subject to the
jurisdiction of the commission. The parliamentary committees over time
expressed differing views as to whether the Queensland Corrective Services
Commission should be subject to the jurisdiction of the commission,
however, with the corporatisation of the government-owned corrective
services such as prisons, these services are now subject to the
commission's jurisdiction. There is no reason why the officers within the
Queensland Corrective Services Commission, engaging in policy and other
work should not be subject to the commission's jurisdiction. The clause
relocates the definition of "unit of public administration" into a specific
4
Criminal Justice Legislation Amendment
definition section.
Clause 6 provides that a person who is the parliamentary commissioner
is not able to be appointed as a member of the commission.
Clause 7 amends section 12 by providing for the appointments of
members, other than the member who must be a legal practitioner, to be the
subject of statewide advertisement.
Clause 8 provides for the amendment of section 14 to encourage the
making of staggered appointments of commission members to ensure that
all members do not complete their terms at once, which would result in a
drain of corporate memory.
Clause 9 provides for the amendment of section 15 to ensure that in
relation to appointments to casual vacancies of over 12 months duration that
the procedures for advertisement should apply. The reason is that the length
of the term warrants an open process of advertisement and selection. It is
presently the case that casual vacancies of any duration do not need to be the
subject of advertisement.
Clause 10 provides for the insertion of new ss 16A and 16B, which
provisions allow meetings of the commission to be undertaken by
telephone or by flying minute, subject to subsequent written ratification.
This will allow urgent matters to be decided by the Commission.
Clause 11 provides for the amendment of section 19 to continue to allow
the commission to determine its internal structure. The clause also ensures
that staff report to the commission.
Clause 12 provides for the deletion of section 20, which is considered to
be superfluous.
Clause 13 provides for the amendment of section 21 to impose a
requirement on the commission to report to the committee on a matter
specified by the committee concerning the functions of the commission or
the administration of criminal justice.
Clause 14 omits section 24, because it is undesirable and seems to limit
the role of the part-time members rather than encourage their active
involvement in all operational matters.
Clause 15 provides for the amendment of s 25 to ensure that where a
legal practitioner from outside the commission is used to conduct a hearing
5
Criminal Justice Legislation Amendment
that the use of that practitioner is approved by the parliamentary committee.
The aim is to encourage as much as possible the use of the existing
resources of the chairperson, legally qualified commission staff or other
commissioners to conduct such hearings, rather than outside persons.
Clause 16 provides for the amendment of section 26 (Commission's
reports) in order to clarify the commission's obligation to furnish reports
and to achieve the parliamentary committee's recommendations in reports
13 and 38 that there should be a definition of "a report of the Commission"
for the purposes of section 26.
Clause 17 provides for the amendment of section 27 (Commission's
report on court procedures and confidential matter) in accordance with
recommendations of the parliamentary committee. The second
parliamentary committee concluded that s.27(2) has the potential to reduce
the efficiency of the accountability process and the capacity of the
parliamentary committee to review the commission. The current
parliamentary committee was concerned that the commission is not
required to advise the committee of the reasons why it deems a matter to be
confidential and may not inform the parliamentary committee that it has
withheld information. The amendments permit the disclosure of
confidential information to the parliamentary committee, the Minister or the
Speaker. The amendments provide a procedure in which the commission
may refuse to disclose information to the parliamentary committee, but
must disclose the reasons for the decision as to non-disclosure. The
amendment establishes a register of information withheld under this
provision and provide for inspection of that register.
Clause 18 provides for the insertion of new section 28A, which achieves
the parliamentary committee's recommendation that confidential
information which is not disclosed in a commission report may nonetheless
be disclosed to the committee.
Clause 19 provides for the amendment of section 29 (Role and
functions) to ensure that the commission has overall responsibility for and
capacity to give guidelines to the Official Misconduct Division.
Clause 20 provides for the amendment of section 33 (Reports of
division) to provide for reports to be made to and responsibility for action
to lie with the commission, rather than the chairperson. The amendments
provide for a person whose conduct is adversely reported on in a report to
be given a reasonable opportunity to comment on the report. The changes
6
Criminal Justice Legislation Amendment
ensure that all relevant information is provided to the person to whom the
final report is provided under the section and that the director of public
prosecutions may require further information, as suggested by the
parliamentary committee in report 13. The amendments also give the
commission the capacity to direct that the commission should respond to
complainants in respect of certain types of matters.
Clause 21 provides for the amendment of section 34 (Judicial review of
division's activities) to ensure that the application for judicial review is
brought against the commission. The amendments seek to make the
procedure for judicial review more accessible, by imposing a similar costs
regime as applies under the Judicial Review Act. It has been suggested that
the potential for costs to be awarded against the applicant deters all but the
monied or foolish, thereby rendering this provision an illusion rather than
an effective procedure for judicial scrutiny of the fairness of investigations.
Clause 22 provides for the amendment of section 36 (Establishment of
section) to ensure that particular decisions are made by the commission.
Clause 23 provides for the amendment of s 38 (Handling of
complaints etc by complaints section) to ensure that the commission may
give binding orders or directions under this section.
Clause 24 provides for the amendment of the heading to Division 8 of
Part 2 to remove the words "and Coordination" from the title of the
Research and Coordination Division. It was suggested by the parliamentary
committee in Report 26 that this division should not have a coordination
role.
Clause 25 provides for the amendment of section 56 (Role and
functions) to remove the coordination role of the Division.
Clause 26 provides for the amendment of section 63 (Access to
register) to limit the number of people whom may access the witness
protection register to the chairperson and director of that division, but allow
access by any commissioner.
Clause 27 provides for the amendment of section 64 (Employment by
commission) to ensure that the Minister must approve not only the original
setting of remuneration and conditions but also changes to them. The
references to specific positions are deleted. It is considered that there should
be maximum flexibility given to the commission to establish internal
structures and positions.
7
Criminal Justice Legislation Amendment
Clause 28 provides for the amendment of section 66 (Engagement of
services) to clarify that this section is subject to s.25.
Clause 29 provides for the amendment of section 67 (Officers of the
commission) to allow the commission, subject to the arrangements
established in section 19, to issue directions about the performance of duties
by officers of the commission.
Clause 30 provides for the insertion of new s 68A, which limits the
chairperson's power of delegation of the powers conferred under Part 3 by
requiring prior approval by the commission and subsequent notification to
the parliamentary committee. It is considered that given the very serious
nature of the powers involved, any delegation is a serious matter and ought
to be carefully scrutinised.
Clause 31 provides for the amendment of section 69 (Notice to discover
information). The amendment allows a legally qualified commissioner to
issue notices under the section. The amendment is partly based on the
commission's 1991 submission to the parliamentary committee, that the
word "custody" does not extend to information that is in the possession or
control of a person, and that the terms "possession, custody and control"
are not necessarily mutually exclusive. Under section 94(5), a person is not
compellable to disclose a secret process of manufacture applied by the
person solely for a lawful purpose. However, this exemption does not apply
to the notices issued under section 69 of the Act. The amendment ensures
that the exemption will apply to section 69 notices.
Clause 32 provides for the amendment of section 84 (Further powers
of officers of commission), by deleting two sub-sections, which are
considered to be undesirable, because they operate to render legal an
otherwise unlawful act of surveillance. It is considered that the commission
ought to be subject to the law.
Clause 33 provides for the amendment of section 88 (Prohibition of
publication of evidence etc.) to achieve the parliamentary committee's
recommendation concerning the insertion of a section 88(2) arising from its
concern that employees are not able to inform their employer that they have
attended at an investigative hearing at the commission. The amendment
ensures that this advice can also be given to a lawyer or immediate family
member. The parliamentary committee was also concerned that persons
who complain to the parliamentary committee about the conduct of the
commission in an investigation, which is subject to a blanket no publication
8
Criminal Justice Legislation Amendment
order, may commit an offence against the Act by informing the
parliamentary committee of the details of that hearing.
The clause also ensures that information against an accused person,
whom is charged with an offence, may be passed on to that person, unless
the court otherwise orders. The need for a clause requiring this disclosure
was suggested by private legal practitioners.
Clause 34 provides for the replacement of section 90 (Hearings open to
public unless commission otherwise orders) in accordance with
recommendations by the parliamentary committee, that there should be a
general rule that investigative hearings are conducted in private. It is
considered that the potential damage to an individual's reputation from the
conduct of a public hearing is so great, that the general rule ought to be that
there be private hearings.
Clause 35 provides for the amendment of section 94 (Obligation to
adduce evidence), in accordance with recommendations of the
parliamentary committee, about the position of a person who has been
charged with an offence, but the charge has not been finally dealt with or
disposed of.
Clause 36 provides for the amendment of section 98 (Inspection of
material in commission's custody) in accordance with recommendations
by the parliamentary committee, that the parliamentary committee should be
able to inspect and take copies of non-operational records.
Clause 37 provides for the amendment of s 102 (Disclosure to
commission not breach of confidence) to add to the section any
organisational unit of the commission.
Clause 38 provides for the amendment of s 103 (Personal protection
for witnesses etc) to add to the section any organisational unit of the
commission.
Clause 39 provides for the insertion of new section 116A which
continues in existence the membership of the parliamentary committee
despite dissolution of the Legislative Assembly, in accordance with the
parliamentary committee's recommendations. This will ensure that the
important oversight role continues in the dissolution period.
Clause 40 provides for the amendment of section 118 (Functions and
powers) to confer on the parliamentary committee, as recommended by it,
the capacity to issue guidelines on the operation of the commission and to
9
Criminal Justice Legislation Amendment
give directions to the commission.
Clause 41 inserts new sections governing the powers of the
parliamentary committee and the parliamentary commissioner, as
recommended by the parliamentary committee.
S 118A to S 118D
These provide for the process of issuing, tabling and disallowance of
guidelines to the commission.
S 118E
This provides for the giving of directions to the commission to carry out
an investigation.
S 118F
This establishes a formal role for the committee in dealing with
complaints about the commission and for the process for dealing with those
complaints.
S 118G
This provides for the appointment of the parliamentary criminal justice
commissioner.
S 118H
This provides for the qualifications of the parliamentary commissioner.
S 118I
This sets out the disqualifications as parliamentary commissioner.
S 118J
This provides for the means of selecting the parliamentary
commissioner.
S 118K
This provides the method of appointing the parliamentary commissioner.
S 118L
This provides for the appointment of a person to act as parliamentary
commissioner.
S 118M
10
Criminal Justice Legislation Amendment
This provides for the duration of the appointment of the parliamentary
commissioner.
S 118N
This provides for when the office of the parliamentary commissioner
becomes vacant.
S 118O
This provides for the remuneration of the parliamentary commissioner.
S 118P
This provides for the oath to be taken by the parliamentary
commissioner.
S 118Q
This provides for the administrative and support services for the
parliamentary commissioner.
S 118R
This sets out the functions of the parliamentary commissioner.
S 118S
This ensures that the parliamentary commissioner cannot be required by
the parliamentary committee to disclose to the committee information
lawfully withheld from the committee by the commission.
S 118T
This establishes the powers of the parliamentary commissioner and in
particular specific powers in relation to the commission and its staff.
S 118U
This vests in the parliamentary commissioner the possession, custody
and control of all records of the Commission of Inquiry constituted by
order in council of 7 October 1996 published in the gazette of that date at
pages 475 and 476. The disposition of those records is also provided for.
S 118V
This provides for the relinquishment of records mentioned in S11U by
the present custodian.
S 118W
11
Criminal Justice Legislation Amendment
This confers on the parliamentary commissioner the powers of a
commission of inquiry.
S 118X
This provides that the confidentiality provisions in relation to information
given to or obtained by the commission or imposed on an officer of the
commission do not apply under Part 4A.
S118Y
This provides that in relation to an investigation under Part 4A, the
commission is not entitled to claim privilege.
S118Z
This ensures that investigations by the parliamentary commissioner are
in private unless otherwise authorised by the committee.
S 118A
This protects the parliamentary commissioner from suit, for example,
from liability for acts done in good faith and without negligence.
Clause 42 provides for the amendment of section 120 (Application
pursuant to s 34) to ensure that the court is able to receive in camera
evidence from the commission to test properly the commission's
contentions in relation to an investigation. This is based on the committee's
views in report 26 that the commission is not sufficiently reviewable by the
Supreme Court.
Clause 43 provides for the amendment of section 123 (Application
pursuant to s 82) to achieve the Committee's recommendation in Report
38 that s.123(2) be amended to specifically exempt the parliamentary
committee from the ambit of the provision, so that the parliamentary
committee is able to examine listening device application material, as part of
its audit of the commission's use of its coercive powers without being first
required to obtain the approval of a Supreme Court Judge.
Clause 44 provides for the amendment of section 132 (Confidentiality
to be maintained) to achieve the following parliamentary committee
recommendations made in report 38:
· That the confidentiality clause applies not only to officers of the
Parliamentary Service (both past and present) but also to persons
who are from time to time employed, engaged or otherwise
12
Criminal Justice Legislation Amendment
retained by the committee (both past and present); and
· That it specifically provides that it will not be in contravention of
s.132 for information to be provided which may assist in the
investigation of an alleged contravention of s 132.
Clause 45 provides for the amendment of section 137 (False
complaints or information) to establish an offence where a person
wilfully causes a false complaint to be made to the commission.
Clause 46 provides for the amendment of section 143 (Proof of
commission actions) to remove the capacity to issue conclusive certificates
so as to enhance the capacity of the court to scrutinise the commission's
activities.
Clause 47 inserts a new section 147B to impose a requirement on the
commission to give the responsible Minister from time to time details of
proposed and actual expenditure. This will allow the Minister to fulfil the
Minister's responsibilities in relation to the Commission. This should not
impact on the operations of the Commission because it merely requires the
provision of financial information.
Clause 48 provides for the insertion of a new section 149 continuing in
operation any divisions of the commission until the commission decides
otherwise.
PART 3--AMENDMENT OF PARLIAMENTARY
COMMITTEES ACT 1995
Clause 49 provides that this Part amends the Parliamentary Committees
Act 1995.
Clause 50 provides for the amendment of section 6 (Application of Act
to committees established by assembly etc) to impose a requirement for a
Ministerial response to reports of the parliamentary committee.
13
Criminal Justice Legislation Amendment
© The State of Queensland 1997