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Queensland
MISCONDUCT TRIBUNALS
BILL 1997
Queensland
MISCONDUCT TRIBUNALS BILL 1997
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Main objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PART 2--MISCONDUCT TRIBUNALS
Division 1--Misconduct tribunal panel and members
5 Appointment of misconduct tribunal panel members . . . . . . . . . . . . . . . . . . 7
6 Qualifications of tribunal members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7 Nomination for appointment as tribunal member . . . . . . . . . . . . . . . . . . . . . 7
8 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9 Conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 Removal from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Division 2--Establishment and composition of tribunals
11 Senior member to establish misconduct tribunal . . . . . . . . . . . . . . . . . . . . . 9
PART 3--JURISDICTION
Division 1--Charges of official misconduct against prescribed
persons
12 What is "official misconduct" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13 Jurisdiction--original . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14 Tribunal's original jurisdiction exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Division 2--Appeals against decisions on charges of other
misconduct against prescribed persons
15 What is a "reviewable decision" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
16 Jurisdiction--appellate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2
Misconduct Tribunals
PART 4--PROCEEDINGS
Division 1--Starting proceedings
17 Proceedings--original jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18 Proceedings--appellate jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Division 2--Procedures of misconduct tribunals
19 Procedure following start of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
20 Misconduct tribunal's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
21 Representation before tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
22 Misconduct tribunal may keep documents etc. . . . . . . . . . . . . . . . . . . . . . . . 13
23 Conduct of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
24 Hearings open to public unless tribunal otherwise orders . . . . . . . . . . . . . . . 15
Division 3--Misconduct tribunal decisions
25 Misconduct tribunal decisions--original jurisdiction . . . . . . . . . . . . . . . . . . 16
26 Misconduct tribunal decisions--appellate jurisdiction . . . . . . . . . . . . . . . . . 17
27 Misconduct tribunal may refer matter for investigation . . . . . . . . . . . . . . . . 17
28 Misconduct tribunal's power to suspend punishment . . . . . . . . . . . . . . . . . . 18
Division 4--Protection of persons associated with misconduct
tribunals
29 Protection of members, legal representatives and witnesses . . . . . . . . . . . . 19
30 Disclosure to tribunal not breach of confidence etc. . . . . . . . . . . . . . . . . . . . 19
Division 5--Contempt of misconduct tribunal
31 Contempt of misconduct tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
32 Punishment of contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
33 Conduct that is contempt and offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Division 6--Miscellaneous
34 Allowance to witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
35 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
36 Tribunal to keep record of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
PART 5--APPEALS
37 Appeal from misconduct tribunal in original jurisdiction . . . . . . . . . . . . . . . 22
PART 6--GENERAL
38 Parliamentary committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
39 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3
Misconduct Tribunals
40 Registrar and tribunal staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
41 Authentication of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
42 Judicial notice of certain signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
43 Application of Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
44 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
45 Rule-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
46 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
PART 7--TRANSITIONAL PROVISIONS AND AMENDMENTS
47 Existing proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
48 Acts amended--sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SCHEDULE 1
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . 27
CRIMINAL JUSTICE ACT 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
JUDICIAL REVIEW ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
POLICE SERVICE ADMINISTRATION ACT 1990 . . . . . . . . . . . . . . . . . . 32
PUBLIC SECTOR ETHICS ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
PUBLIC SERVICE ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
WHISTLEBLOWERS PROTECTION ACT 1994 . . . . . . . . . . . . . . . . . . . . 33
SCHEDULE 2
DICTIONARY . . . . . . . . . . . . . . . . . . . . . . . 34
1997
A BILL
FOR
An Act to provide for the establishment and operation of misconduct
tribunals, and for other purposes
s1 6 s4
Misconduct Tribunals
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Misconduct Tribunals Act 1997. 4
5
Commencement
2. This Act commences on a day to be fixed by proclamation. 6
objects 7
Main
3. The main objects of this Act are to provide for the establishment and 8
operation of misconduct tribunals that-- 9
(a) act independently, and in a way that is-- 10
(i) fair and impartial; and 11
(ii) effective and efficient; and 12
(b) have jurisdiction to hear and decide-- 13
(i) charges, of a disciplinary nature, of official misconduct 14
against prescribed persons; and 15
(ii) appeals from particular decisions made in relation to 16
charges, of a disciplinary nature, made against prescribed 17
persons. 18
19
Dictionary
4. The dictionary in schedule 2 defines particular words used in this Act. 20
s5 7 s7
Misconduct Tribunals
PART 2--MISCONDUCT TRIBUNALS 1
1--Misconduct tribunal panel and members 2
Division
of misconduct tribunal panel members 3
Appointment
5.(1) The Governor in Council may, by gazette notice, appoint qualified 4
individuals as members of a panel of misconduct tribunal members (the 5
"tribunal panel"). 6
(2) The tribunal panel is to consist of at least 6 tribunal members. 7
(3) The Governor in Council is to appoint 1 tribunal member as the 8
senior member of the tribunal panel (the "senior member"). 9
of tribunal members 10
Qualifications
6.(1) A person is qualified for appointment as a tribunal member if the 11
person is-- 12
(a) nominated for appointment by the Minister; and 13
(b) a barrister or solicitor of the Supreme Court of at least 5 years 14
standing. 15
(2) However, a person is not qualified for appointment as a tribunal 16
member if the person holds office in-- 17
(a) a unit of public administration; or 18
(b) the commission. 19
(3) In this section-- 20
"office in a unit of public administration" does not include an office-- 21
(a) held in an educational institution; or 22
(b) held merely because the person is the holder of another office. 23
for appointment as tribunal member 24
Nomination
7.(1) The Minister may nominate a person for appointment as a tribunal 25
member only after-- 26
s8 8 s 10
Misconduct Tribunals
(a) advertising State-wide for applications; and 1
(b) consulting with the chairperson of the commission; and 2
(c) obtaining the support of a multi-party majority of the members of 3
the parliamentary committee for the nomination. 4
(2) In this section-- 5
"multi-party majority", of the members, includes all of the members, but 6
does not include a majority of the members consisting only of 7
members of the political party or parties recognised in the Legislative 8
Assembly as being in government. 9
of appointment 10
Duration
8.(1) A tribunal member may be appointed for a term not longer than 11
3 years. 12
(2) Appointment as a tribunal member is on a part-time basis. 13
(3) A tribunal member may be appointed for a further term, but the 14
member must not serve as a tribunal member for more than 6 years in total. 15
(4) A tribunal member may resign by signed notice of resignation given 16
to the Minister. 17
of appointment 18
Conditions
9.(1) A tribunal member is to be paid the remuneration and allowances 19
decided by the Governor in Council. 20
(2) A tribunal member holds office on the conditions not provided in this 21
Act decided by the Governor in Council. 22
from office 23
Removal
10. The Governor in Council may, by written notice given to a tribunal 24
member, remove the member from office if the member-- 25
(a) is incapable of properly discharging the functions of a tribunal 26
member; or 27
(b) is unfit to hold the office. 28
s 11 9 s 13
Misconduct Tribunals
Division 2--Establishment and composition of tribunals 1
member to establish misconduct tribunal 2
Senior
11.(1) The senior member may establish a misconduct tribunal to hear a 3
particular matter within the jurisdiction of misconduct tribunals. 4
(2) The misconduct tribunal is to consist of the senior member or another 5
tribunal member chosen by the senior member. 6
(3) The registrar must, within 3 days after the establishment of a 7
misconduct tribunal, give notice of the tribunal member constituting the 8
tribunal to-- 9
(a) the prescribed person to whom the matter relates; and 10
(b) the person making the charge against the prescribed person; and 11
(c) if the person making the charge is not the principal officer for the 12
unit of public administration in which the prescribed person is or 13
was employed--the principal officer. 14
PART 3--JURISDICTION 15
Division 1--Charges of official misconduct against prescribed persons 16
is "official misconduct" 17
What
12. In this Act, "official misconduct" has the same meaning as in the 18
Criminal Justice Act 1989.1 19
20
Jurisdiction--original
13. A misconduct tribunal has jurisdiction ("original jurisdiction") to 21
1 See the Criminal Justice Act 1989, sections 31 (Official misconduct)
and 32 (General nature of official misconduct)
s 14 10 s 16
Misconduct Tribunals
hear and decide charges, of a disciplinary nature, of official misconduct 1
made against a prescribed person. 2
original jurisdiction exclusive 3
Tribunal's
14.(1) A charge, of a disciplinary nature, of official misconduct made 4
against a prescribed person may be heard and decided only by a misconduct 5
tribunal. 6
(2) Subsection (1) applies to the exclusion of authority given by law to 7
any other person or tribunal to hear and decide, at first instance, disciplinary 8
charges made against the prescribed person. 9
(3) A decision of a misconduct tribunal exercising original jurisdiction is 10
binding on and must be given effect by all persons concerned. 11
(4) Subsection (3) applies subject to section 37.2 12
2--Appeals against decisions on charges of other misconduct 13
Division
against prescribed persons 14
is a "reviewable decision" 15
What
15. A "reviewable decision" is-- 16
(a) a decision made in relation to a disciplinary charge of misconduct 17
made against a prescribed person, other than a decision made by a 18
court or a misconduct tribunal; or 19
(b) a finding mentioned in the Police Service Administration Act 20
1990, section 7.4(2A)(b),3 that a prescribed person is guilty of 21
misconduct. 22
23
Jurisdiction--appellate
16. A misconduct tribunal has jurisdiction ("appellate jurisdiction") to 24
hear and decide an appeal against a reviewable decision. 25
2 Section 37 (Appeal from misconduct tribunal in original jurisdiction)
3 Section 7.4 (Disciplinary action)
s 17 11 s 18
Misconduct Tribunals
ART 4--PROCEEDINGS 1
P
1--Starting proceedings 2
Division
jurisdiction 3
Proceedings--original
17. The commission or a principal officer for a unit of public 4
administration may start a proceeding against a prescribed person in a 5
misconduct tribunal's original jurisdiction by-- 6
(a) filing a written charge of official misconduct with the registrar; 7
and 8
(b) giving to the prescribed person a copy of the charge. 9
jurisdiction 10
Proceedings--appellate
18.(1) The commission or a prescribed person against whom a 11
reviewable decision has been made may start a proceeding in a misconduct 12
tribunal's appellate jurisdiction-- 13
(a) by filing a notice of appeal with the registrar-- 14
(i) identifying the decision to which the appeal relates; and 15
(ii) stating clearly the grounds for the appeal; and 16
(b) by giving a copy of the notice to each other party to the appeal. 17
(2) The notice of appeal must be filed with the registrar-- 18
(a) if the appeal relates to a reviewable decision notice of which must 19
be given to the commission or prescribed person under the Police 20
Service Administration Act 1990, section 7.44--within 14 days 21
after the day on which the notice was given; or 22
(b) otherwise--within 14 days after the day on which the reviewable 23
decision was announced. 24
(3) The parties to an appeal are-- 25
(a) the prescribed person; and 26
4 Section 7.4 (Disciplinary action)
s 19 12 s 20
Misconduct Tribunals
(b) the person who made the reviewable decision; and 1
(c) if the appeal is started by the commission--the commission. 2
2--Procedures of misconduct tribunals 3
Division
following start of proceeding 4
Procedure
19.(1) The registrar must ask the senior member to establish a 5
misconduct tribunal to hear and decide the matter as soon as practicable 6
after-- 7
(a) a proceeding is started; and 8
(b) if the proceeding is started in the tribunal's original 9
jurisdiction--the registrar receives written notice that a copy of 10
the charge made against the relevant prescribed person has been 11
given to the person. 12
(2) If the hearing relates to a proceeding in a misconduct tribunal's 13
original jurisdiction, the commission or principal officer for the unit of 14
public administration that started the proceeding must give to the prescribed 15
person a copy of the brief of evidence, including copies of any witness 16
statements, to be presented at the hearing-- 17
(a) as soon as practicable after the charge is filed; or 18
(b) in accordance with directions of the misconduct tribunal 19
established for the hearing. 20
tribunal's powers 21
Misconduct
20.(1) A misconduct tribunal may give the orders about a proceeding it 22
considers appropriate. 23
(2) A misconduct tribunal may order a person to do 1 or more of the 24
following-- 25
(a) attend a hearing until excused; 26
(b) give evidence, on oath or affirmation; 27
(c) give to the tribunal, in the way the tribunal orders-- 28
s 21 13 s 22
Misconduct Tribunals
(i) a stated document or class of document; or 1
(ii) a stated thing; or 2
(iii) specified information. 3
(3) Without limiting the ways the tribunal may order a document, thing 4
or information to be given, the tribunal may order that the document, thing 5
or information be given to the tribunal at a stated reasonable place and time. 6
(4) A person to whom a tribunal order applies must comply with the 7
order, unless the person has a reasonable excuse. 8
(5) It is a reasonable excuse for a person to fail to answer a question or to 9
produce a document if answering the question or producing the 10
document-- 11
(a) might tend to incriminate the person; or 12
(b) would disclose a communication to which legal professional 13
privilege attaches. 14
(6) The tribunal may enforce its order by filing a copy of it in a registry 15
of the Supreme Court. 16
(7) On filing, the order is enforceable as if it were an order of the 17
Supreme Court. 18
(8) The tribunal may give leave to amend a written charge of official 19
misconduct if satisfied-- 20
(a) the amendment is of a minor nature; and 21
(b) giving leave to make the amendment would not be unfair to the 22
prescribed person. 23
before tribunal 24
Representation
21. A party to a proceeding before a misconduct tribunal may appear in 25
person or be represented by a lawyer or someone else. 26
tribunal may keep documents etc. 27
Misconduct
22.(1) If a document or thing is given to a misconduct tribunal, the 28
tribunal-- 29
s 23 14 s 23
Misconduct Tribunals
(a) may keep the document or thing for the period it considers is 1
reasonably necessary; and 2
(b) must allow a person who, if the document or thing were not in 3
the tribunal's possession, would have a right to inspect it, to 4
inspect it at all reasonable times and places; and 5
(c) for a document--may copy or take extracts from the document. 6
(2) While the tribunal keeps a document or thing, the tribunal must 7
permit a person otherwise entitled to possession of the document or thing to 8
inspect, make copies of, photograph, or take extracts from, the document or 9
thing, at the reasonable time and place the tribunal decides. 10
of proceeding 11
Conduct
23.(1) When conducting a hearing in a proceeding, a misconduct tribunal 12
must-- 13
(a) observe natural justice; and 14
(b) act as quickly, and with as little formality and technicality, as is 15
consistent with a fair and proper consideration of the issues 16
before it. 17
(2) In conducting the hearing, the tribunal-- 18
(a) is not bound by the rules of evidence; and 19
(b) may inform itself of any thing in the way it considers appropriate; 20
and 21
(c) may decide the procedures to be followed for the proceeding. 22
(3) However, the tribunal must comply with this division and any 23
procedural rules. 24
(4) If the tribunal is exercising appellate jurisdiction, the appeal is by way 25
of rehearing on the evidence ("original evidence") given in the proceeding 26
before the original decision-maker ("original proceeding"). 27
(5) However, the tribunal may give leave to adduce fresh, additional or 28
substituted evidence ("new evidence") if the tribunal is satisfied-- 29
(a) the person seeking to adduce the new evidence did not know, or 30
could not reasonably be expected to have known, of its existence 31
s 24 15 s 24
Misconduct Tribunals
at the original proceeding; or 1
(b) in the special circumstances of the case, it would be unfair not to 2
allow the person to adduce the new evidence. 3
(6) If the tribunal gives leave under subsection (5), the appeal is-- 4
(a) by way of rehearing on the original evidence; and 5
(b) on the new evidence adduced. 6
(7) A person nominated by the tribunal for the purpose may administer 7
an oath or affirmation, or take a statutory declaration, required by the 8
tribunal. 9
(8) The tribunal may conduct a proceeding in the absence of the 10
prescribed person who is the subject of the charge if-- 11
(a) for a proceeding in original jurisdiction--it is satisfied the 12
prescribed person has been-- 13
(i) given a copy of the charge; and 14
(ii) notified of the date, time and place of the proceeding; and 15
(iii) given the opportunity to be present or to be legally 16
represented at the proceeding; and 17
(b) for a proceeding in appellate jurisdiction--it is satisfied the 18
prescribed person has been-- 19
(i) notified of the date, time and place of the proceeding; and 20
(ii) given the opportunity to be present or to be legally 21
represented at the proceeding. 22
open to public unless tribunal otherwise orders 23
Hearings
24.(1) A misconduct tribunal hearing is open to the public unless the 24
misconduct tribunal orders, before or during the hearing, that it be closed to 25
the public. 26
(2) The tribunal may order the hearing be closed to the public only if it 27
considers an open hearing would be unfair to a person or contrary to the 28
public interest, having regard to-- 29
(a) the subject matter of the hearing; or 30
s 25 16 s 25
Misconduct Tribunals
(b) the nature of the evidence expected to be given. 1
(3) The tribunal may order the hearing be closed to the public while it 2
considers whether to make an order under subsection (2). 3
(4) If the tribunal orders the hearing to be closed to the public, it may 4
make an order-- 5
(a) deciding who may be present at the hearing; or 6
(b) prohibiting the publication of any of the following matters, if it 7
considers publication of the matter would be unfair to a person or 8
contrary to the public interest-- 9
(i) the fact a person has given, or may give, evidence before the 10
tribunal; 11
(ii) information that may help to identify a person who has 12
given, or may give, evidence before the tribunal; 13
(iii) evidence given before the tribunal; 14
(iv) the contents of, or a summary of, a record produced to the 15
tribunal. 16
(5) A person must not contravene an order under subsection (4). 17
Maximum penalty--100 penalty units or 1 year's imprisonment. 18
(6) In this section-- 19
"hearing" includes part of a hearing. 20
Division 3--Misconduct tribunal decisions 21
tribunal decisions--original jurisdiction 22
Misconduct
25.(1) A misconduct tribunal exercising original jurisdiction may, if it 23
finds the charge proved, order that the prescribed person-- 24
(a) be dismissed; or 25
(b) be reduced in rank or salary level; or 26
(c) forfeit, or have deferred, a salary increment or increase to which 27
the prescribed person would ordinarily be entitled; or 28
s 26 17 s 27
Misconduct Tribunals
(d) be fined an amount decided by the misconduct tribunal to be 1
deducted from-- 2
(i) the person's periodic salary payment in an amount not more 3
than an amount equal to the value of 2 penalty units per 4
payment; or 5
(ii) the person's monetary entitlements, other than 6
superannuation entitlements, on termination of the person's 7
service. 8
(2) In deciding the amount for subsection (1)(d)(ii), a tribunal may have 9
regard to the value of any gain to the prescribed person from the person's 10
official misconduct. 11
(3) The tribunal may publish its reasons for decision. 12
tribunal decisions--appellate jurisdiction 13
Misconduct
26.(1) A misconduct tribunal exercising appellate jurisdiction may make 14
the following orders-- 15
(a) confirm the decision appealed against; 16
(b) set aside the decision and substitute another decision; 17
(c) set aside the decision and return the matter to the original 18
decision-maker with the directions the tribunal considers 19
appropriate. 20
(2) In substituting another decision, the misconduct tribunal may impose 21
any punishment provided for on a finding of the charge being proved even 22
though the original decision-maker's power to impose the punishment may 23
have been restricted. 24
(3) The decision of the tribunal is final and conclusive, and is binding on, 25
and must be given effect by, all persons concerned. 26
tribunal may refer matter for investigation 27
Misconduct
27.(1) A misconduct tribunal exercising original or appellate jurisdiction 28
may, by order, refer a matter for investigation, or further investigation, with 29
a view to the taking of a criminal proceeding or for another purpose. 30
s 28 18 s 28
Misconduct Tribunals
(2) The matter may be referred to-- 1
(a) the commission; or 2
(b) the principal officer for the unit of public administration in which 3
the prescribed person is employed. 4
(3) The tribunal may adjourn its proceeding until the investigations are 5
completed. 6
tribunal's power to suspend punishment 7
Misconduct
28.(1) This section applies if punishment has been imposed on a 8
prescribed person by-- 9
(a) a misconduct tribunal exercising original or appellate jurisdiction; 10
or 11
(b) the decision-maker of a reviewable decision. 12
(2) A misconduct tribunal may order that punishment imposed on the 13
prescribed person be suspended if the tribunal considers it is appropriate to 14
do so in the circumstances. 15
(3) The tribunal must state an operational period for the period of 16
suspension and the suspension may be given on conditions. 17
(4) If the prescribed person is found to have committed an act of 18
misconduct or official misconduct or to have contravened a condition 19
during the operational period, on the finding-- 20
(a) the suspension on the punishment is revoked; and 21
(b) the punishment imposed has immediate effect. 22
(5) If the prescribed person is not found to commit an act of misconduct 23
or official misconduct or contravene a condition during the operational 24
period, the punishment imposed on the person is taken to have been 25
satisfied. 26
(6) Subsection (4) does not limit the person's liability to punishment for 27
the further act of misconduct or official misconduct. 28
s 29 19 s 30
Misconduct Tribunals
Division 4--Protection of persons associated with misconduct tribunals 1
of members, legal representatives and witnesses 2
Protection
29.(1) A tribunal member has, in the performance of the member's 3
duties for a misconduct tribunal, the same protection and immunity as a 4
Supreme Court judge. 5
(2) A lawyer or other person appearing before a misconduct tribunal has 6
the same protection and immunity as a barrister appearing in a proceeding 7
in the Supreme Court. 8
(3) A person required to attend or appearing before a misconduct tribunal 9
as a witness has the same protection as a witness in a proceeding in the 10
Supreme Court. 11
to tribunal not breach of confidence etc. 12
Disclosure
30.(1) A person is not liable, civilly, criminally or under an 13
administrative process, for-- 14
(a) giving information to a tribunal for a hearing; or 15
(b) producing a document or thing to a tribunal for a hearing. 16
(2) Without limiting subsection (1)-- 17
(a) in a proceeding for defamation, the person has a defence of 18
absolute privilege for publishing the disclosed information; and 19
(b) if the person would otherwise be required to maintain 20
confidentiality about the disclosed information under an Act, oath, 21
rule of law or practice--the person-- 22
(i) does not contravene the Act, oath, rule of law or practice for 23
making the disclosure; and 24
(ii) is not liable to disciplinary action for making the disclosure. 25
s 31 20 s 32
Misconduct Tribunals
5--Contempt of misconduct tribunal 1
Division
of misconduct tribunal 2
Contempt
31. A person is in contempt of a misconduct tribunal if the person-- 3
(a) insults the tribunal or a tribunal member acting as a tribunal 4
member; or 5
(b) deliberately interrupts the tribunal's hearing; or 6
(c) creates or continues or joins in creating or continuing, a 7
disturbance in or near a place where the tribunal is conducting a 8
hearing; or 9
(d) does anything that would be contempt of court if the tribunal were 10
a judge acting judicially. 11
of contempt 12
Punishment
32.(1) A contempt of a misconduct tribunal may be punished under this 13
section. 14
(2) The tribunal, or the senior member, may certify the contempt in 15
writing to the Supreme Court (the "court"). 16
(3) For subsection (2), it is enough for the certifier of the contempt to be 17
satisfied there is evidence of contempt. 18
(4) If the tribunal or senior member certifies a person's contempt of the 19
tribunal to the court, the court must inquire into the alleged contempt. 20
(5) The court must hear-- 21
(a) witnesses and evidence that may be produced against or for the 22
person charged with the contempt; and 23
(b) any statement given by the person in defence. 24
(6) If the court is satisfied the person has committed the contempt, the 25
court may punish the person as if the person had committed the contempt in 26
relation to a proceeding in the court. 27
(7) The Rules of the Supreme Court apply, with all necessary changes, to 28
the court's investigation, hearing and power to punish. 29
s 33 21 s 35
Misconduct Tribunals
(8) The tribunal's or senior member's certificate of contempt is evidence 1
of the matters contained in the certificate. 2
(9) The person is not excused from attending before the tribunal in 3
obedience to the order of the tribunal or a court merely because the person is 4
punished or liable to punishment under this section for contempt of a 5
misconduct tribunal. 6
that is contempt and offence 7
Conduct
33.(1) If conduct of an offender is both contempt of a misconduct 8
tribunal and an offence, the offender may be proceeded against for the 9
contempt or for the offence, but the offender is not liable to be punished 10
twice for the same conduct. 11
(2) In this section-- 12
"offender" means a person guilty, or alleged to be guilty, of contempt of 13
the tribunal. 14
Division 6--Miscellaneous 15
to witnesses 16
Allowance
34. A witness who appears at a misconduct tribunal hearing is entitled to 17
be paid the allowance prescribed under a regulation for attendance at the 18
hearing or, if no allowance is prescribed, the reasonable allowance decided 19
by the member constituting the tribunal. 20
osts 21
C
35.(1) Each party to a hearing must bear the party's own costs of the 22
hearing. 23
(2) However, a misconduct tribunal may make an order about the 24
payment of a party's costs if in particular circumstances it is satisfied it is 25
appropriate to do so. 26
s 36 22 s 37
Misconduct Tribunals
to keep record of proceeding 1
Tribunal
36.(1) A misconduct tribunal must keep a record of its proceeding. 2
(2) The record may be kept in the way the misconduct tribunal considers 3
appropriate. 4
PART 5--APPEALS 5
from misconduct tribunal in original jurisdiction 6
Appeal
37.(1) The following persons may appeal against a decision of a 7
misconduct tribunal exercising original jurisdiction-- 8
(a) the prescribed person in relation to whom the decision was made; 9
(b) the principal officer for the unit of public administration in which 10
the prescribed person is or was employed; 11
(c) the commission, whether or not the commission was a party to 12
the proceeding before the tribunal. 13
(2) The appeal may be made to the Supreme Court-- 14
(a) without leave--on 1 or more of the following grounds-- 15
(i) denial of natural justice; 16
(ii) error of law; 17
(iii) manifestly excessive or inadequate level of penalty; or 18
(b) with the leave of a Supreme Court judge--on 1 or both of the 19
following grounds-- 20
(i) error of fact; 21
(ii) the decision can not be supported having regard to-- 22
(A) the evidence and the proceeding before the misconduct 23
tribunal; and 24
(B) any evidence that may be given in the appeal. 25
(3) The appeal must be started within 28 days after the day on which the 26
s 38 23 s 38
Misconduct Tribunals
tribunal's decision is announced. 1
(4) The appeal must be decided on the evidence and proceedings before 2
the tribunal, unless the court-- 3
(a) if leave is given under subsection (2)(b)--orders the matter be 4
heard afresh, completely or partly; or 5
(b) in any case--otherwise orders. 6
(5) The court may, on application by a party or its own initiative, transfer 7
the appeal to a District Court at any time after the appeal is started. 8
(6) If an order is made under subsection (5)-- 9
(a) the appeal must be continued and disposed of in the District 10
Court; and 11
(b) a District Court judge may exercise any of the powers under this 12
section that would have been exercisable by a Supreme Court 13
judge if the order had not been made. 14
(7) An appeal may be under the Rules of the Supreme Court or, in so far 15
as the rules do not provide, as directed by a Supreme Court judge. 16
(8) If an appeal is allowed other than on the ground of manifestly 17
excessive or inadequate level of penalty, the court may, by order-- 18
(a) set aside the decision and substitute another decision; or 19
(b) set aside the decision and remit the matter to any misconduct 20
tribunal with the directions the court considers appropriate. 21
(9) If an appeal on the ground specified in subsection (2)(a)(iii) is 22
allowed, the court may set aside the penalty order and substitute another 23
penalty the misconduct tribunal was authorised to order and the court 24
considers should have been ordered by the tribunal. 25
PART 6--GENERAL 26
committee 27
Parliamentary
38.(1) The parliamentary committee may conduct a review of 28
s 39 24 s 42
Misconduct Tribunals
misconduct tribunals when it reviews the activities of the commission for 1
the Criminal Justice Act 1989, section 118(1)(f).5 2
(2) However, the parliamentary committee is not authorised to inquire 3
into a particular proceeding before a misconduct tribunal. 4
report 5
Annual
39. As soon as practicable after the end of each financial year, but within 6
2 months after the end of the financial year, the senior member must 7
prepare and give to the parliamentary committee and the Minister a written 8
report about the operation of misconduct tribunals during the year. 9
and tribunal staff 10
Registrar
40.(1) The chief executive may appoint a registrar of misconduct 11
tribunals for this Act. 12
(2) The registrar, and other staff necessary to enable misconduct tribunals 13
to exercise their functions (the "registrar's staff"), are to be employed 14
under the Public Service Act 1996. 15
(3) The office of registrar may be held in conjunction with any other 16
office in the public service. 17
of documents 18
Authentication
41. A document requiring authentication by a misconduct tribunal is 19
sufficiently authenticated if it is signed by the member constituting the 20
tribunal or the senior member. 21
notice of certain signatures 22
Judicial
42. Judicial notice must be taken of the signature of a tribunal member if 23
it appears on a document issued by a misconduct tribunal. 24
5 Section 118 (Functions and powers)
s 43 25 s 45
Misconduct Tribunals
of Criminal Code 1
Application
43. It is declared that-- 2
(a) a proceeding before a misconduct tribunal is a judicial proceeding 3
under the Criminal Code, chapter 16; and 4
(b) a person constituting a misconduct tribunal is the holder of a 5
judicial office for the Criminal Code, chapter 16; and 6
(c) a misconduct tribunal is a tribunal for the Criminal Code, 7
chapter 16. 8
9
Confidentiality
44.(1) This section applies to a person who-- 10
(a) is or has been-- 11
(i) a tribunal member; or 12
(ii) the registrar; or 13
(ii) a member of the registrar's staff; and 14
(b) in that capacity acquired information about another person's 15
affairs or has access to, or custody of, a document about another 16
person's affairs or a thing belonging to someone else. 17
(2) A person to whom this section applies must not disclose the 18
information, or give access to the document or thing, to anyone else. 19
Maximum penalty--100 penalty units or 1 year's imprisonment. 20
(3) However, a person may disclose the information or give access to the 21
document or thing to someone else-- 22
(a) to the extent necessary to perform the person's functions under or 23
in relation to this Act; or 24
(b) if the disclosure or giving of access is otherwise required or 25
permitted by law. 26
power 27
Rule-making
45. The senior member may make rules, not inconsistent with this Act, 28
about the practice and procedure of misconduct tribunals. 29
s 46 26 s 48
Misconduct Tribunals
power 1
Regulation-making
46. The Governor in Council may make regulations under this Act. 2
PART 7--TRANSITIONAL PROVISIONS AND 3
AMENDMENTS 4
proceedings 5
Existing
47.(1) A matter started in the original or appellate jurisdiction of a 6
misconduct tribunal constituted under the Criminal Justice Act 1989, but 7
unheard, is taken to have been started in the original or appellate jurisdiction 8
of a misconduct tribunal under this Act. 9
(2) A matter started in the original or appellate jurisdiction of a 10
misconduct tribunal constituted under the Criminal Justice Act 1989 and 11
partly heard may be dealt with as if this Act had not been enacted. 12
amended--sch 1 13
Acts
48. Schedule 1 amends the Acts mentioned in it. 14
15
27
Misconduct Tribunals
CHEDULE 1 1
S
MENDMENTS 2
¡A
section 48 3
CRIMINAL JUSTICE ACT 1989 4
´
1. Section 2(a)(vi)-- 5
omit. 6
2. Section 2(a)(vii), `(vi)'-- 7
omit, insert-- 8
`(v)'. 9
3. Section 19(1), `and tribunals'-- 10
omit. 11
4. Section 19(1)(b)-- 12
omit. 13
5. Section 19(1)(c) to (e)-- 14
renumber as section 19(1)(b) to (d). 15
6. Section 20, heading, `, jurisdiction etc.'-- 16
omit, insert-- 17
`of divisions of commission'. 18
28
Misconduct Tribunals
SCHEDULE 1 (continued)
7. Section 20(2)-- 1
omit. 2
8. Section 25(2), `(other than a misconduct tribunal)'-- 3
omit. 4
9. Section 33(2)(b)-- 5
omit. 6
10. Section 39, heading, `Principal officer's duty upon'-- 7
omit, insert-- 8
`Commission's duty on'. 9
11. Section 39(1), `Where'-- 10
omit, insert-- 11
`If'. 12
12. Section 39(1), words after paragraph (b)-- 13
omit, insert-- 14
`the commission must charge the prescribed person with the relevant 15
official misconduct by way of a disciplinary charge. 16
`(1A) The charge may be dealt with only by a misconduct tribunal under 17
the Misconduct Tribunals Act 1997.'. 18
13. Section 39(1A) to (3)-- 19
renumber as section 39(2) to (4). 20
29
Misconduct Tribunals
SCHEDULE 1 (continued)
14. Part 2, divisions 6 and 7-- 1
omit. 2
15. Part 2, divisions 8 to 11-- 3
renumber as part 2, divisions 6 to 9. 4
16. Section 69(4)(a), `referred to in section 46'-- 5
omit. 6
17. Section 74(1)(a)-- 7
omit, insert-- 8
`(a) may summon a person to attend before the commission on a day 9
and at a time and place specified in the notice and to then and 10
there give evidence in relation to the subject matter of the 11
commission's investigation; and'. 12
18. Section 74(2)-- 13
omit. 14
19. Section 74(3)-- 15
renumber as section 74(2). 16
20. Section 79(2)(a), `, or to a disciplinary charge of official misconduct 17
before a misconduct tribunal'-- 18
omit. 19
21. Section 79(2)(b), `or charge'-- 20
omit. 21
30
Misconduct Tribunals
SCHEDULE 1 (continued)
22. Section 86(b), `or tribunal'-- 1
omit. 2
23. Section 87, `or a misconduct tribunal'-- 3
omit. 4
24. Section 87, `or the tribunal'-- 5
omit. 6
25. Section 92(2), `, other than a misconduct tribunal exercising its 7
jurisdiction,'-- 8
omit. 9
26. Section 94(6)-- 10
omit. 11
27. Section 100(1)(b)-- 12
omit. 13
28. Section 100(1)(c)-- 14
renumber as section 100(1)(b). 15
29. Section 104(1), `Industrial Relations Act 1990'-- 16
omit, insert-- 17
`Workplace Relations Act 1997'. 18
31
Misconduct Tribunals
SCHEDULE 1 (continued)
30. Section 106(e), `, a person constituting a misconduct tribunal'-- 1
omit. 2
31. Section 106(f)(ii)-- 3
omit. 4
32. Section 106(f)(iii) and (iv)-- 5
renumber as section 106(f)(ii) and (iii). 6
33. Section 108(7), `or misconduct tribunal'-- 7
omit. 8
34. Section 108(7), ` or, as the case may be, tribunal'-- 9
omit. 10
35. Section 125(b)(i), `or before a misconduct tribunal'-- 11
omit. 12
36. Section 125(b)(ii), `and the office of a person constituting a 13
misconduct tribunal is each'-- 14
omit, insert-- 15
`is'. 16
37. Section 125(b)(iii), `and a misconduct tribunal is each'-- 17
omit, insert-- 18
`is'. 19
32
Misconduct Tribunals
SCHEDULE 1 (continued)
JUDICIAL REVIEW ACT 1991 1
´
1. Schedule 2, section 3(2), `under that Act'-- 2
omit, insert-- 3
`under the Misconduct Tribunals Act 1997'. 4
OLICE SERVICE ADMINISTRATION ACT 1990 5
´P
1. Section 1.4, definition "official misconduct", `sections 2.22 and 6
2.23'-- 7
omit, insert-- 8
`sections 31 and 32'. 9
2. Section 4.5(3)(c), `referred to in the Criminal Justice Act 1989 10
where'-- 11
omit, insert-- 12
`under the Misconduct Tribunals Act 1997 if'. 13
3. Section 7.4-- 14
insert-- 15
`(2A) If the prescribed officer-- 16
(a) decides a disciplinary charge of misconduct brought against the 17
officer; or 18
(b) when deciding a charge of breach of discipline brought against the 19
officer, finds the officer is guilty of misconduct; 20
the commissioner must give written notice of the decision, including the 21
discipline imposed on the officer, or the finding and the discipline imposed 22
33
Misconduct Tribunals
SCHEDULE 1 (continued)
on the officer to the criminal justice commission and the officer within 1
14 days after making the decision or finding.'. 2
UBLIC SECTOR ETHICS ACT 1994 3
´P
1. Section 2, definition "tribunal", paragraph (d), `the Criminal Justice 4
Act 1989'-- 5
omit, insert-- 6
`the Misconduct Tribunals Act 1997'. 7
UBLIC SERVICE ACT 1996 8
´P
1. Section 109(3)(f), `the Criminal Justice Act 1989'-- 9
omit, insert-- 10
`the Misconduct Tribunals Act 1997'. 11
WHISTLEBLOWERS PROTECTION ACT 1994 12
´
1. Schedule 6, definition "tribunal", paragraph (d), `within the 13
meaning of the Criminal Justice Act 1989'-- 14
omit, insert-- 15
`under the Misconduct Tribunals Act 1997'. 16
17
34
Misconduct Tribunals
CHEDULE 2 1
S
ICTIONARY 2
¡D
section 4 3
"appellate jurisdiction" see section 16. 4
"commission" means the criminal justice commission. 5
"official misconduct" see section 12. 6
"original jurisdiction" see section 13. 7
"parliamentary committee" means the criminal justice committee of the 8
Legislative Assembly. 9
"prescribed person" means a person who is a prescribed person under the 10
Criminal Justice Act 1989, section 39. 11
"principal officer", for a particular unit of public administration, see the 12
Criminal Justice Act 1989, section 3. 13
"punishment" includes sanction and penalty. 14
"registrar" means the registrar of misconduct tribunals appointed under 15
section 40. 16
"reviewable decision" see section 15. 17
"senior member", of the tribunal panel, see section 5(3). 18
"unit of public administration" see the Criminal Justice Act 1989, 19
section 3. 20
21
© State of Queensland 1997
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