Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Banking and Financial Services
Commission of Inquiry Bill 2017
No. , 2017
(Senators Whish-Wilson, Hanson, Hinch, Lambie, Roberts and Xenophon)
A Bill for an Act to establish an inquiry into
banking and financial services in Australia, and for
related purposes
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline of this Act ............................................................ 2
4
Act binds Crown ................................................................................ 2
5
Definitions ......................................................................................... 3
Part 2--Establishing the Banking and Financial Services
Commission of Inquiry
5
6
Establishment of Commission ........................................................... 5
7
Terms of reference ............................................................................. 5
8
Report to the Parliament .................................................................... 7
Part 3--Powers of the Banking and Financial Services
Commission of Inquiry
9
9
Hearings ............................................................................................ 9
10
Counsel assisting the Commission .................................................. 10
11
Power to summon witnesses and take evidence ............................... 10
12
Arrest of witness failing to appear ................................................... 10
13
Search warrants ............................................................................... 11
14
Access to certain material held by ASIC, APRA or RBA ............... 12
15
Powers of Commission in relation to documents and other
things ............................................................................................... 13
Part 4--Offences
14
16
Unauthorised presence at hearing or publication of evidence .......... 14
17
Failure of witnesses to attend or produce documents ...................... 14
18
Refusal to be sworn or give evidence .............................................. 15
19
Acts or omissions on different days to constitute separate
offences ........................................................................................... 15
20
False or misleading evidence ........................................................... 15
21
Destroying documents or other things ............................................. 15
22
Intimidation or dismissal of witnesses ............................................. 16
23
Preventing witnesses from attending ............................................... 16
24
Bribery of witness............................................................................ 17
25
Fraud on witness .............................................................................. 17
26
Contempt of Commission ................................................................ 17
Part 5--Operation of the Commission
19
27
Death or incapacity of member ........................................................ 19
ii
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
28
Remuneration and allowances ......................................................... 19
29
Staff of the Commission .................................................................. 19
30
Protection of member and others ..................................................... 19
31
Legal and financial assistance ......................................................... 20
32
Reimbursement of witness expenses ............................................... 20
33
Commission may communicate information ................................... 21
34
Rules ................................................................................................ 21
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
1
A Bill for an Act to establish an inquiry into
1
banking and financial services in Australia, and for
2
related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the Banking and Financial Services Commission of
8
Inquiry Act 2017.
9
Part 1 Preliminary
Section 2
2
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day after this Act receives the Royal
Assent.
2. Sections 3 to
34
The day the Consolidated Revenue Fund is
appropriated to fund the Banking and
Financial Services Commission of Inquiry.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Simplified outline of this Act
13
This Act requires the Senate to appoint a member to a Banking and
14
Financial Services Commission of Inquiry that reports to
15
Parliament on particular matters relating to the banking and
16
financial services industry.
17
4 Act binds Crown
18
This Act binds the Crown in each of its capacities.
19
Preliminary Part 1
Section 5
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
3
5 Definitions
1
In this Act:
2
APRA means the Australian Prudential Regulation Authority.
3
ASIC means the Australian Securities and Investments
4
Commission.
5
Commission means the Banking and Financial Services
6
Commission of Inquiry established under section 6.
7
financial service entity means an entity (other than a
8
Commonwealth entity or company) that provides banking or
9
financial services including the following:
10
(a) an ADI (authorised deposit-taking institution) within the
11
meaning of the Banking Act 1959;
12
(b) an entity that carries on the business of undertaking liability,
13
by way of insurance (including reinsurance), in respect of
14
any loss or damage, including liability to pay damages or
15
compensation, contingent upon the happening of a specified
16
event, including:
17
(i) a general insurer within the meaning of the Insurance
18
Act 1973; and
19
(ii) an entity undertaking life insurance business within the
20
meaning of the Life Insurance Act 1995;
21
(c) an entity required by section 911A of the Corporations Act
22
2001 to hold an Australian financial services licence or hold
23
an authorisation from a licensee;
24
(d) an entity that engages in a credit activity within the meaning
25
of the National Consumer Credit Protection Act 2009;
26
(e) a superannuation entity within the meaning of the
27
Superannuation Industry (Supervision) Act 1993.
28
Judge means a Judge of a court created by the Parliament or of the
29
Supreme Court of a State or Territory.
30
legal practitioner means a barrister, a solicitor, a barrister and
31
solicitor, or a legal practitioner, of the High Court or of the
32
Supreme Court of a State or Territory.
33
Part 1 Preliminary
Section 5
4
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
member means the member of the Commission appointed under
1
section 6.
2
misconduct includes conduct that:
3
(a) constitutes an offence against a Commonwealth law; or
4
(b) constitutes negligence, breach of trust or breach of duty; or
5
(c) is unconscionable or unethical; or
6
(d) breaches a professional standard.
7
President means the President of the Senate.
8
RBA means the Reserve Bank of Australia.
9
rules means rules made under section 34.
10
Speaker means the Speaker of the House of Representatives.
11
Establishing the Banking and Financial Services Commission of Inquiry Part 2
Section 6
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
5
Part 2--Establishing the Banking and Financial
1
Services Commission of Inquiry
2
3
6 Establishment of Commission
4
(1) A Commission is established by this subsection, to be known as the
5
Banking and Financial Services Commission of Inquiry.
6
(2) The Commission is constituted by one member appointed for this
7
subsection by a resolution of the Senate.
8
(3) A person is not eligible for appointment as the member unless the
9
person is a former Judge.
10
7 Terms of reference
11
(1) The Commission must inquire and advise the Parliament on the
12
following in relation to the banking and financial services industry:
13
(a) the nature, extent and effect of any misconduct by directors,
14
officers, employees, auditors, actuaries, advisers or agents
15
who hold, or have held, a position of responsibility in relation
16
to a financial service entity (including the effect of any
17
misconduct on the stability of the Australian financial system
18
and the broader Australian economy);
19
(b) whether any practices within financial service entities have
20
contributed to any misconduct mentioned in paragraph (a),
21
including (without limitation) the ethical standards, culture
22
and structures of those entities and the employment and
23
remuneration practices of entities and the provision of money
24
or other benefits to directors, officers or employees of those
25
entities;
26
(c) whether existing schemes and prudential frameworks
27
providing for an Australian Government guarantee (including
28
the Financial Claims Scheme):
29
(i) are adequately limiting the risk to the Commonwealth to
30
provide the guarantee; and
31
Part 2 Establishing the Banking and Financial Services Commission of Inquiry
Section 7
6
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
(ii) are structured to ensure the liabilities of financial
1
service entities are appropriately shared by relevant
2
financial service entities; and
3
(d) the adequacy of existing laws and policies relating to
4
financial service entities to regulate and address misconduct
5
in the industry including (without limitation):
6
(i) the notification of misconduct within a financial service
7
entity (including protections available to persons who
8
disclose instances of misconduct in the public interest);
9
and
10
(ii) the investigation and enforcement of contraventions of
11
laws and policies; and
12
(iii) the penalties for contraventions of the law;
13
(e) the effectiveness of mechanisms for consumers of financial
14
services who suffer detriment as a result of misconduct by a
15
financial service entity, including (without limitation) the
16
processes for:
17
(i) making complaints about services provided by financial
18
service entities; and
19
(ii) seeking and receiving compensation or addressing any
20
dispute;
21
(f) the funding, independence and performance of regulators of
22
financial service entities and dispute resolution bodies
23
(relevant entities), including (without limitation):
24
(i) whether the relevant entities are sufficiently funded to
25
perform their functions; and
26
(ii) whether the relevant entities are independently
27
performing their functions in the public interest;
28
(g) the activities of financial service entities in relation to any
29
political parties (within the meaning of the Commonwealth
30
Electoral Act 1918) and the impact of those activities on the
31
effective regulation of the industry, including (without
32
limitation):
33
(i) the lobbying activities of financial service entities and
34
any representative bodies for the industry; and
35
(ii) donations made by financial service entities to political
36
parties;
37
Establishing the Banking and Financial Services Commission of Inquiry Part 2
Section 8
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
7
(h) any matter reasonably incidental to a matter mentioned in the
1
above paragraphs.
2
(2) However, the Commission is not required to inquire, or to continue
3
to inquire, into a particular matter to the extent that it is satisfied
4
that the matter has been, is being, or will be, sufficiently and
5
appropriately dealt with by:
6
(a) another inquiry or investigation (including any inquiry or
7
investigation being conducted by the Australian Securities
8
and Investments Commission); or
9
(b) a criminal or civil proceeding.
10
(3) In inquiring and advising in accordance with subsection (1), the
11
Commission may give priority to matters which, in the
12
Commission's opinion, have greater potential for harm.
13
8 Report to the Parliament
14
(1) The Commission must submit to the President and the Speaker a
15
report containing:
16
(a) its findings of fact; and
17
(b) any recommendations relevant to the inquiry that the
18
Commission thinks fit.
19
(2) The report must be submitted on or before the end of the period of
20
1 year starting on the commencement of this section, unless that
21
period is extended by a resolution of the Senate.
22
(3) The Commission must submit with its report a record of so much
23
of the evidence before the Commission as the Commission thinks
24
necessary to substantiate its findings of fact and its conclusions.
25
(4) If the Commission is of the opinion that, if any of its findings or
26
conclusions or any of the evidence given before the Commission
27
were to be laid before the Houses of the Parliament:
28
(a) a person who has been or may be charged with an offence
29
might not receive a fair trial for the offence; or
30
(b) the conduct of an investigation of a breach or possible breach
31
of the law might be prejudiced; or
32
Part 2 Establishing the Banking and Financial Services Commission of Inquiry
Section 8
8
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
(c) the existence or identity of a confidential source of
1
information in relation to the enforcement or administration
2
of the law might be disclosed or a person enabled to ascertain
3
the existence or identity of that source; or
4
(d) there might be prejudice to the safety or reputation of a
5
person;
6
the Commission may submit those findings or conclusions, or that
7
evidence, to the President and the Speaker in a separate report,
8
together with a statement of its opinion.
9
(5) As soon as practicable after receiving the report and record of
10
evidence, the President and the Speaker must cause copies of the
11
report and record, other than a separate report submitted under
12
subsection (4), to be laid before the Senate and the House of
13
Representatives.
14
Powers of the Banking and Financial Services Commission of Inquiry Part 3
Section 9
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
9
Part 3--Powers of the Banking and Financial
1
Services Commission of Inquiry
2
3
9 Hearings
4
(1) For the purposes of its inquiry the Commission may hold hearings
5
at places in Australia determined by the Commission.
6
(2) A hearing is to be public, unless the Commission thinks the
7
circumstances in particular instances require otherwise.
8
(3) The member must preside at a hearing before the Commission.
9
(4) A person who appears before the Commission, or who is or is
10
likely to be affected by evidence given before the Commission,
11
may be represented by a legal practitioner.
12
(5) If a hearing is to be conducted in private, the only persons who
13
may be present are persons authorised by the Commission and
14
legal practitioners representing them.
15
(6) Subject to this Act, a hearing may be conducted as the Commission
16
thinks fit.
17
(7) The Commission must make a record of a hearing.
18
(8) The following must not be published except in accordance with a
19
direction of the Commission:
20
(a) evidence given before the Commission;
21
(b) the contents of a document, or a description of a thing,
22
produced to the Commission or seized pursuant to a warrant
23
issued under section 13;
24
(c) any information that might enable a person who has given
25
evidence before the Commission to be identified;
26
(d) the fact that any person has given or may be about to give
27
evidence at a hearing.
28
(9) The Commission must not give a direction to publish such material
29
if to do so might prejudice the safety or reputation of a person or
30
Part 3 Powers of the Banking and Financial Services Commission of Inquiry
Section 10
10
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
prejudice the fair trial of a person who has been or might be
1
charged with an offence.
2
10 Counsel assisting the Commission
3
The Commission may appoint a legal practitioner to assist the
4
Commission as counsel, either generally or in relation to a
5
particular matter or matters.
6
11 Power to summon witnesses and take evidence
7
(1) The member may, by a written summons signed by the member
8
and served on a person, summon the person to attend a hearing at a
9
time and place specified in the summons:
10
(a) to give evidence; or
11
(b) to produce documents or things specified in the summons.
12
(2) At a hearing, the member may:
13
(a) require a witness either to take an oath or to make an
14
affirmation; and
15
(b) administer the oath or affirmation to the witness.
16
(3) At a hearing, the following persons may, so far as the Commission
17
thinks appropriate, examine or cross-examine any witness on any
18
matter that the Commission considers relevant:
19
(a) counsel assisting the Commission;
20
(b) a person summoned or otherwise authorised to appear before
21
the Commission;
22
(c) a legal practitioner authorised to appear before the
23
Commission for the purposes of representing any person at
24
the hearing.
25
(4) The Commission may require a witness to answer any question that
26
the Commission considers relevant.
27
12 Arrest of witness failing to appear
28
(1) If a person served with a summons to attend before the
29
Commission as a witness fails to attend in accordance with the
30
Powers of the Banking and Financial Services Commission of Inquiry Part 3
Section 13
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
11
summons, the member may, on proof of the service of the
1
summons, issue a warrant to arrest the person.
2
(2) A warrant authorises the arrest of the witness, the bringing of the
3
witness before the Commission and the detention of the witness in
4
custody for that purpose until the witness is released by order of
5
the member.
6
(3) A warrant may be executed by any member of the Australian
7
Federal Police or of the police force of a State or Territory, and the
8
person executing the warrant has power to break and enter any
9
place, building or vessel in order to execute it.
10
(4) The arrest of the witness under this section does not relieve the
11
witness from any liability incurred by reason of non-compliance
12
with the summons.
13
13 Search warrants
14
(1) The Commission may issue a search warrant if:
15
(a) the Commission has reasonable grounds for suspecting that
16
there may be relevant material, at that time or within the next
17
24 hours, upon any land or upon or in any premises, vessel,
18
aircraft or vehicle; and
19
(b) the Commission believes on reasonable grounds that, if a
20
summons were issued for the production of the material, it
21
might be concealed, lost, mutilated or destroyed.
22
(2) A search warrant authorises a member of the Australian Federal
23
Police or of the Police Force of a State or Territory, in accordance
24
with its terms:
25
(a) to enter upon the land or upon or into the premises, vessel,
26
aircraft or vehicle; and
27
(b) to search the land, premises, vessel, aircraft or vehicle for
28
relevant material; and
29
(c) to seize any relevant items found upon the land or upon or in
30
the premises, vessel, aircraft or vehicle and deliver things
31
seized to the Commission; and
32
(d) to make copies or extracts, including electronic copies or
33
extracts, of any relevant documents found.
34
Part 3 Powers of the Banking and Financial Services Commission of Inquiry
Section 14
12
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
(3) A search warrant must:
1
(a) state the purpose for which the warrant is issued; and
2
(b) state whether entry is authorised to be made at any time of
3
the day or night; and
4
(c) include a description of the kinds of things authorised to be
5
seized; and
6
(d) specify a day, not later than one month after the date of issue
7
of the warrant, at the expiration of which the warrant ceases
8
to have effect.
9
(4) If, in the course of searching for relevant material in accordance
10
with a search warrant, the person executing the warrant finds any
11
other thing that the person believes on reasonable grounds to be
12
connected with that material and the person believes on reasonable
13
grounds that it is necessary to seize that thing in order to prevent its
14
concealment, loss, mutilation or destruction, the warrant authorises
15
the person to seize that thing.
16
(5) For this section, material or a document is relevant if it has
17
evidential value relevant to the Commission's inquiry.
18
14 Access to certain material held by ASIC, APRA or RBA
19
(1) The member, may, by notice in writing given to ASIC, APRA or
20
RBA (the regulating entity), require the regulating entity:
21
(a) to produce to the Commission documents and other materials
22
relating to the inquiry; or
23
(b) permit the Commission, together with such persons as are
24
specified in the notice, to have access to documents or
25
materials referred to in paragraph (a).
26
(2) The regulating entity must comply with a notice under
27
subsection (1).
28
(3) The regulating entity may make available to the Commission, at
29
the request of the member, documents or materials (other than
30
documents or materials referred to in subsection (1)), being
31
documents or materials relevant to the matter into which the
32
Commission is inquiring.
33
Powers of the Banking and Financial Services Commission of Inquiry Part 3
Section 15
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
13
(4) To avoid doubt, this section applies despite:
1
(a) section 127 of the Australian Securities and Investments
2
Commission Act 2001; and
3
(b) section 56 of the Australian Prudential Regulation Authority
4
Act 1988; and
5
(c) sections 79A and 79B of the Reserve Bank Act 1959.
6
15 Powers of Commission in relation to documents and other things
7
(1) The Commission, or a person authorised in writing by the member,
8
may:
9
(a) inspect any documents or other things produced before, or
10
delivered to, the Commission; and
11
(b) retain the documents or other things for so long as is
12
reasonably necessary for the purposes of the Commission's
13
inquiry; and
14
(c) in the case of documents produced before, or delivered to, the
15
Commission, make copies of matter relevant to the
16
Commission's inquiry.
17
(2) When a document or other thing is no longer needed by the
18
Commission for its inquiry, the Commission is to return the
19
document or thing to the person who appears to be entitled to it, or
20
deal with it at that person's direction.
21
Part 4 Offences
Section 16
14
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
Part 4--Offences
1
2
16 Unauthorised presence at hearing or publication of evidence
3
A person commits an offence if:
4
(a) the person is present at a private hearing of the Commission
5
without being authorised under subsection 9(5); or
6
(b) the person publishes material in contravention of
7
subsection 9(8).
8
Penalty: Imprisonment for 6 months.
9
17 Failure of witnesses to attend or produce documents
10
(1) A person commits an offence if, when served with a summons to
11
appear at a hearing before the Commission:
12
(a) the person fails to attend as required by the summons; or
13
(b) the person fails to attend from day to day unless excused, or
14
released from further attendance, by the member.
15
Penalty: Imprisonment for 6 months.
16
(2) It is a defence to a prosecution for an offence in subsection (1) if
17
the person has a reasonable excuse.
18
(3) A person attending a hearing before the Commission commits an
19
offence if the person refuses or fails to produce a document or
20
other thing that the person was required to produce by a summons
21
under this Act served on the person or that the person was required
22
to produce by the member.
23
Penalty: Imprisonment for 6 months.
24
(4) It is a defence to a prosecution for an offence in subsection (3) if:
25
(a) the document or other thing was not relevant to the matter
26
into which the Commission was inquiring; or
27
(b) the person has a reasonable excuse.
28
Offences Part 4
Section 18
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
15
18 Refusal to be sworn or give evidence
1
A person appearing as a witness at a hearing before the
2
Commission commits an offence if, without reasonable excuse:
3
(a) the person refuses or fails to comply when required pursuant
4
to subsection 11(2) either to take an oath or make an
5
affirmation; or
6
(b) the person refuses or fails to answer a question that the
7
person is required to answer by the member.
8
Penalty: Imprisonment for 6 months.
9
19 Acts or omissions on different days to constitute separate offences
10
If a person commits an offence under section 17, and the person
11
does or omits to do the same thing at a hearing of the Commission
12
held on some other day, each such act or omission constitutes a
13
separate offence.
14
20 False or misleading evidence
15
(1) A person commits an offence if, at a hearing before the
16
Commission, the person gives evidence that is to the knowledge of
17
the person false or misleading with respect to any matter that is
18
material to the inquiry being made by the Commission.
19
Penalty: Imprisonment for 5 years.
20
(2) A court of summary jurisdiction may hear and determine
21
proceedings in respect of such an offence if the court is satisfied
22
that it is proper to do so and the defendant and prosecutor consent.
23
21 Destroying documents or other things
24
(1) A person commits an offence if, knowing or having reasonable
25
grounds to believe that a document or other thing is or may be
26
required in evidence before the Commission, the person wilfully:
27
(a) conceals, mutilates or destroys the document or thing; or
28
(b) renders the document or thing incapable of identification; or
29
Part 4 Offences
Section 22
16
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
(c) in the case of a document, renders it illegible or
1
indecipherable.
2
Penalty: Imprisonment for 2 years.
3
(2) A court of summary jurisdiction may hear and determine
4
proceedings in respect of such an offence if the court is satisfied
5
that it is proper to do so and the defendant and the prosecutor
6
consent.
7
22 Intimidation or dismissal of witnesses
8
(1) A person commits an offence if the person uses, causes, inflicts, or
9
procures any violence, punishment, damage, loss or disadvantage
10
to a person because the person appeared as a witness before the
11
Commission or because of any evidence given by the person before
12
the Commission.
13
Penalty: Imprisonment for 5 years.
14
(2) An employer commits an offence if the employer dismisses an
15
employee from employment or prejudices an employee in
16
employment because the employee:
17
(a) appeared as a witness before the Commission; or
18
(b) gave evidence before the Commission; or
19
(c) produced a document or thing pursuant to a summons or
20
requirement under section 11.
21
Penalty: Imprisonment for 5 years.
22
(3) Subsection (2) does not apply if the employee was dismissed or
23
prejudiced in his or her employment for some reason other than the
24
reasons listed in that subsection.
25
23 Preventing witnesses from attending
26
A person commits an offence if the person wilfully prevents or
27
wilfully endeavours to prevent a person who has been summoned
28
to attend as a witness before the Commission from attending or
29
from producing anything in evidence in accordance with the
30
summons.
31
Offences Part 4
Section 24
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
17
Penalty: Imprisonment for 12 months.
1
24 Bribery of witness
2
A person commits an offence if:
3
(a) the person gives, confers, or procures, or promises or offers
4
to give or confer, or to procure or attempt to procure, any
5
property or benefit of any kind to, upon, or for, any person,
6
upon any agreement or understanding that any person called
7
or to be called as a witness before the Commission will give
8
false testimony or withhold true testimony; or
9
(b) the person attempts by any means to induce a person called
10
or to be called as a witness before the Commission to give
11
false testimony or to withhold true testimony; or
12
(c) the person asks, receives or obtains or agrees or attempts to
13
receive or obtain any property or benefit of any kind, whether
14
for the person or for any other person, upon any agreement or
15
understanding that any person will as a witness before the
16
Commission give false testimony or withhold true testimony.
17
Penalty: Imprisonment for 5 years.
18
25 Fraud on witness
19
A person commits an offence if the person practises any fraud or
20
deceit, or knowingly makes or exhibits any false statement,
21
representation, token, or writing, to any person called or to be
22
called as a witness before the Commission with intent to affect the
23
testimony of that person as a witness
24
Penalty: Imprisonment for 2 years.
25
26 Contempt of Commission
26
A person commits an offence if:
27
(a) the person wilfully disturbs or disrupts a hearing of the
28
Commission; or
29
(b) the person makes any statement that is false and defamatory
30
of the Commission; or
31
Part 4 Offences
Section 26
18
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
(c) the person commits any wilful contempt of the Commission.
1
Penalty: Imprisonment for 12 months.
2
Operation of the Commission Part 5
Section 27
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
19
Part 5--Operation of the Commission
1
2
27 Death or incapacity of member
3
If the member dies, becomes physically or mentally incapable of
4
performing his or her functions or, by notice in writing to the
5
President, resigns his or her appointment, the member's position
6
becomes vacant and the Senate is to appoint a new member in
7
accordance with section 6.
8
28 Remuneration and allowances
9
(1) The member is to be paid the remuneration and allowances
10
applicable to an acting Justice of the Federal Court.
11
(2) A person appointed as the member ceases to hold office in that
12
capacity 7 days after submitting the report of the Commission to
13
the President and the Speaker.
14
29 Staff of the Commission
15
(1) The Commission may appoint staff as considered necessary for the
16
performance of the inquiry.
17
(2) The terms and conditions of appointment (including remuneration)
18
are to be determined by the Commission.
19
(3) While a person is performing services for the Commission
20
pursuant to this section, that person must perform his or her
21
functions and duties in accordance with the directions of the
22
Commission.
23
30 Protection of member and others
24
(1) The member has, in the performance of his or her functions and the
25
exercise of his or her powers, the same protection and immunity as
26
a Justice of the High Court.
27
Part 5 Operation of the Commission
Section 31
20
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
(2) A legal practitioner assisting the Commission or representing a
1
person at a hearing before the Commission has the same protection
2
and immunity as a barrister has in appearing for a party in
3
proceedings in the High Court.
4
(3) Subject to this Act, a person summoned to attend or appearing
5
before the Commission as a witness has the same protection as a
6
witness in proceedings in the High Court.
7
31 Legal and financial assistance
8
(1) A person who is appearing or is about to appear, or a person who is
9
entitled to appear, before the Commission may apply to the
10
Commission for assistance under this section.
11
(2) The Commission must obtain the advice of the President in relation
12
to an application.
13
(3) The President may, if he or she is satisfied that:
14
(a) it would involve substantial hardship to the person to refuse
15
the application; or
16
(b) the circumstances of the case are of such a nature that the
17
application should be granted;
18
request the Commission to authorise the provision by the
19
Commonwealth to that person such legal or financial assistance in
20
respect of that person's appearance as the President determine.
21
(4) Any request by the President under this section is to be either
22
subject to conditions or unconditional.
23
(5) The Commission must comply with a request under subsection (3).
24
32 Reimbursement of witness expenses
25
(1) A witness (other than a representative of a financial service entity)
26
who appears before the Commission in answer to a summons may
27
be paid expenses in accordance with the scale that applies to
28
witnesses appearing before the High Court.
29
Operation of the Commission Part 5
Section 33
No. , 2017
Banking and Financial Services Commission of Inquiry Bill 2017
21
(2) The Commission may direct that a witness who appears before a
1
Commission without a summons may be paid expenses in
2
accordance with that scale.
3
(3) In applying that scale to a witness, the Commission has the powers
4
and functions of the taxing officer.
5
33 Commission may communicate information
6
If, in the course of its inquiry, the Commission obtains information
7
that relates, or may relate, to the commission of an offence, or
8
evidence of the commission of an offence against a law of the
9
Commonwealth, of a State or of a Territory, the Commission may,
10
if in the opinion of the Commission it is appropriate to do so,
11
communicate the information or give the evidence to:
12
(a) the Attorney-General of the Commonwealth or of a State or
13
Territory; or
14
(b) APRA; or
15
(c) ASIC; or
16
(d) RBA; or
17
(e) the Australian Crime Commission; or
18
(f) the Commissioner of the Australian Federal Police or of the
19
Police Force of a State or Territory; or
20
(g) the authority or person responsible for the administration or
21
enforcement of that law.
22
34 Rules
23
(1) The Minister may, by legislative instrument (and subject to
24
subsection (2)), make rules prescribing matters:
25
(a) required or permitted by this Act to be prescribed by the
26
rules; or
27
(b) necessary or convenient to be prescribed for carrying out or
28
giving effect to this Act.
29
(2) To avoid doubt, the rules may not do the following:
30
(a) create an offence or civil penalty;
31
(b) provide powers of:
32
Part 5 Operation of the Commission
Section 34
22
Banking and Financial Services Commission of Inquiry Bill 2017
No. , 2017
(i) arrest or detention; or
1
(ii) entry, search or seizure;
2
(c) impose a tax;
3
(d) set an amount to be appropriated from the Consolidated
4
Revenue Fund under an appropriation in this Act;
5
(e) directly amend the text of this Act.
6
[Index] [Search] [Download] [Related Items] [Help]