2017
2017
2017-08-15
act
government
publicspecial
act.reprint
allinforce
2017-08-03
2017-08-03
1
2017-08-15
act-1987-015
2017
none
act-2017-036
20e34276-a9be-44dd-8fca-4c8faeae0669
9876db4d-03e0-4284-977f-6506d8abf04a
Repeal:
This Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 15.8.2017.
An Act to amend the Charitable Fundraising Act 1991 to
enable public inquiries to be conducted under the Act.
1Name of
Act
This Act is the Charitable
Fundraising Amendment (Inquiries) Act
2017.
2Commencement
This Act commences on the date of assent to this
Act.
Schedule 1Amendment of Charitable Fundraising Act 1991 No
69
[1]Section 4
Definitions
Insert in alphabetical order in section 4
(1):
public
inquirer, in relation to a public inquiry, means the person
appointed under Part 3A to conduct the public inquiry.
public
inquiry means a public inquiry under Part
3A.
[2]Section 29 Search
warrant
Omit “conducted under this Act” from
section 29 (1).
Insert instead “conducted under this Part
or Part 3A”.
[3]Section 41 Recovery of certain
expenses
Insert “or public inquirer (or their
agents)” after “authorised inspector” in section 41
(2).
[4]Section 41
(2)
Insert “or inquirer” after “the
inspector”.
[5]Section 41 (2A) and
(2B)
Insert after section 41 (2):
(2A)
In addition to the Minister’s powers under
subsections (1) and (2), the Minister may direct that the costs of an inquiry
under Part 3 or a public inquiry are payable by 2 or more persons or
organisations in the proportions that the Minister considers appropriate. The
costs are payable by those persons or organisations in the proportions
directed and are recoverable from each of them in a court of competent
jurisdiction as a debt due to the Crown.
(2B)
Subsection (2A) extends to:
(a)
an inquiry under Part 3 that began (but was not
completed) before the commencement of the subsection, and
(b)
if an inquiry began under Part 3 and then became
a public inquiry—the costs of both the inquiry under Part 3 and the
public inquiry.
[6]Section 41
(6)
Insert after section 41 (5):
(6)
When deciding whether to direct a person or
organisation to make payments under this section, the Minister must take into
account the financial viability of the person or
organisation.
[7]Part 3A
Insert after Part 3:
Part 3APublic
inquiries
Division 1Preliminary
41ADefinitions
In this Part:
existing
non-public inquiry—see section 41C (1).
qualified
person—see section 41B (3).
Division 2Establishment of public
inquiries
41BAppointment of public
inquirers to conduct public inquiries
(1)
The Minister may appoint a qualified person to
conduct a public inquiry into:
(a)
any person, organisation or matter into which the
Minister may cause an inquiry to be made by an authorised inspector under Part
3, or
(b)
any other matter associated with fundraising
appeals.
(2)
The Minister may appoint a public inquirer only
if the Minister and the Premier consider that it is in the public interest for
a public inquiry to be conducted.
(3)
A person is a qualified
person only if the person holds or has held office
as:
(a)
a Judge of the Supreme Court of the State or any
other State or a Territory, or
(b)
a Judge of the Federal Court of Australia,
or
(c)
a Justice of the High
Court.
(4)
However, a person is not a qualified person if
the person is a member of the Legislative Council or of the Legislative
Assembly or is a member of a House of Parliament or legislature of another
State or Territory or of the Commonwealth.
41CReconstitution of existing
non-public inquiry as public inquiry
(1)
The Minister may appoint an authorised inspector
conducting an inquiry under Part 3 (an existing
non-public inquiry) to be a public inquirer for that inquiry
if:
(a)
the inspector is a qualified person,
and
(b)
the Minister and the Premier consider that it is
in the public interest for a public inquiry to be
conducted.
(2)
If such an appointment is made:
(a)
the existing non-public inquiry is, on and from
the time of the appointment, to be conducted as a public inquiry under this
Part, and
(b)
the public inquiry is to be in relation to the
same matters as the existing non-public inquiry unless the instrument of
appointment provides differently, and
(c)
any matters requiring compliance under Division 1
of Part 3 in relation to the existing non-public inquiry that have not yet
been complied must still be complied with, and
(d)
any search warrant issued under Division 1 of
Part 3 in relation to the existing non-public inquiry remains valid and can be
executed, and
(e)
any person who was engaged to assist the
authorised inspector conducting the existing non-public inquiry, or allowed to
represent a person in the existing non-public inquiry, may continue to assist
or represent in the public inquiry, and
(f)
any information or evidence that was obtained
under Division 1 of Part 3 in relation to the existing non-public inquiry may
be used in and for the purposes of the public inquiry, and
(g)
any other matter or thing that had effect in
relation to the existing non-public inquiry continues to have effect in
relation to the public inquiry.
(3)
A public inquirer for a public inquiry that was
previously an existing non-public inquiry may give such directions as the
public inquirer considers appropriate to facilitate the reconstitution of the
existing non-public inquiry as a public inquiry.
(4)
This section extends to existing non-public
inquiries that began (but were not completed) before the commencement of this
Part.
41DProtection from
liability
A public inquirer has, in the exercise of
functions under this Part as a public inquirer, the same protection and
immunity as a Judge of the Supreme Court.
41EReports on public
hearings
(1)
The Minister may, in the instrument of
appointment of a public inquirer, require the public inquirer to prepare and
provide to the Minister one or more reports on a public inquiry (including
reports before the public inquiry is concluded) on specified matters within a
specified time.
(2)
The public inquirer must prepare any report
required by the Minister.
(3)
The Minister may cause a copy of a report
provided to the Minister to be published in any way that the Minister
considers appropriate, including by publishing it on a website or tabling it
in one or both Houses of Parliament.
(4)
A copy of a report to be tabled in a House of
Parliament may be presented to the Clerk of the House if the House is not
sitting when it is sought to be tabled.
(5)
A copy of a report presented under subsection
(4):
(a)
is, on presentation and for all purposes, taken
to have been laid before the House, and
(b)
may be printed by authority of the Clerk of the
House, and
(c)
if so printed, is taken to be a document
published by or under the authority of the House, and
(d)
is to be recorded:
(i)
in the case of the Legislative Council—in
the Minutes of the Proceedings of the Legislative Council,
and
(ii)
in the case of the Legislative Assembly—in
the Votes and Proceedings of the Legislative
Assembly,
on the first sitting day of the House after receipt of
the copy of the report by the Clerk.
41FProcedural guidelines relating
to public inquiries
(1)
A public inquirer is to issue guidelines relating
to the conduct of the public inquiry if the public inquirer considers it in
the public interest to do so.
(2)
Without limiting subsection (1), the guidelines
may provide guidance on the following aspects of the conduct of the public
inquiry:
(a)
the investigation of evidence that might
exculpate relevant persons,
(b)
the disclosure of exculpatory and other relevant
evidence to relevant persons,
(c)
the opportunity to cross-examine witnesses as to
their credibility,
(d)
providing relevant persons and other witnesses
with access to relevant documents and a reasonable time to prepare before
giving evidence,
(e)
any other matter the public inquirer considers
necessary to ensure procedural fairness.
(3)
The public inquirer is to ensure that the
guidelines are made publicly available.
(4)
In this section:
relevant
person means a person against whom substantial allegations
have been made in the course of or in connection with the public
inquiry.
Division 3Hearings
41GHearings
(1)
A public inquirer may hold hearings in connection
with a public inquiry.
(2)
A hearing is to be held in public unless the
public inquirer directs differently.
(3)
The public inquirer may direct that a hearing (or
part of a hearing) be held in private if satisfied that it is desirable to do
so because of the confidential nature of any evidence or matter or for any
other reason.
(4)
When deciding whether to direct that a hearing be
held in private (and without limiting subsection (3)), one of the matters that
the public inquirer must take into account is the effect of a public hearing
on the reputation of any persons appearing before the public
inquiry.
(5)
If the public inquirer directs that a hearing (or
part of a hearing) is to be held in private, the public inquirer may give
directions as to the persons who may be present at the hearing (or that part
of the hearing).
41HRight of
appearance
(1)
Any Australian legal practitioner appointed by
the Crown to assist a public inquirer may appear before a public
inquiry.
(2)
If it is shown to the satisfaction of the public
inquirer that any person is substantially and directly interested in any
subject-matter of a public inquiry, the public inquirer may allow the person
(the affected
person) to appear at the public inquiry or a specified part
of the public inquiry.
(3)
The public inquirer may authorise:
(a)
a person giving evidence at a public inquiry,
or
(b)
an affected person,
to be represented by an Australian legal practitioner at
the public inquiry or a specified part of the public
inquiry.
(4)
The public inquirer is required to give a
reasonable opportunity for a person giving evidence at a public inquiry to be
legally represented.
41ILegal and financial assistance
for witness
(1)
A witness who is appearing or about to appear
before a public inquiry may apply to the Minister for legal or financial
assistance.
(2)
The Minister may approve the provision of legal
or financial assistance to the applicant if the Minister is of the opinion
that this is appropriate, having regard to any one or more of the
following:
(a)
the prospect of hardship to the witness if
assistance is declined,
(b)
the significance of the evidence that the witness
is giving or appears likely to give,
(c)
any other matter relating to the public
interest.
(3)
On giving the approval, the Minister may
authorise the provision to the witness of legal or financial assistance
determined by the Minister in respect of the witness’s appearance before
the public inquiry. The assistance is to be provided out of money provided by
Parliament for the purpose.
(4)
The assistance may be provided unconditionally or
subject to conditions determined by the Minister.
(5)
The Minister may delegate one or more of the
Minister’s functions under this section to the Secretary of the
Department of Finance, Services and Innovation.
41JWitnesses
A public inquirer may issue a summons to a person
to appear before the public inquirer at a time and place named in the
summons:
(a)
to give evidence, or
(b)
to produce such documents or other things (if
any) as are referred to in the summons,
or both.
41KEvidence on oath or
affirmation
A public inquirer may, at a hearing of a public
inquiry, take evidence on oath or affirmation and for that purpose:
(a)
the public inquirer may require a person
appearing at the hearing to give evidence either to take an oath or to make an
affirmation in a form approved by the public inquirer, and
(b)
the public inquirer, or any other person
authorised by the public inquirer, may administer an oath or affirmation to a
person so appearing at the hearing.
41LExamination and
cross-examination of witnesses
(1)
A person authorised or required to appear at a
public inquiry, or an Australian legal practitioner or other person allowed to
represent a person at a public inquiry, may, with the leave of the public
inquirer, examine or cross-examine any witness on any matter that the public
inquirer considers relevant.
(2)
If an Australian legal practitioner is appointed
to assist the public inquirer at a public inquiry, the Australian legal
practitioner may examine or cross-examine any witness on any matter that the
public inquirer considers relevant.
(3)
Any witness examined or cross-examined under this
section has the same protection and is subject to the same liabilities as if
examined by the public inquirer.
41MRestrictions on publication of
evidence
A public inquirer may give directions preventing
or restricting the publication of evidence given before the public inquirer or
of matters contained in documents obtained or received by the public
inquirer.
41NProtection from
incrimination
(1)Self-incrimination not an
excuse
A person is not excused from a requirement under
this Part to produce a record, document or thing, to give information or
evidence or to answer a question on the ground that the record, document,
thing, information, evidence or answer might incriminate the person or make
the person liable to a penalty.
(2)Answer, information or
evidence not admissible if objection made
However, any record, document or thing produced,
or information, evidence or answer given, by a natural person in compliance
with a requirement under this Part is not admissible in evidence against the
person in civil or criminal proceedings (except as provided by subsection (3))
if:
(a)
the person objected at the time to doing so on
the ground that it might incriminate the person, or
(b)
the person was not warned at an appropriate time
that the person may object to producing the record, document or thing, or
giving information, evidence or answer, on the ground that it might
incriminate the person.
(3)
Subsection (2) does not prevent any record,
document or thing produced, or information, evidence or answer given, by a
natural person in compliance with a requirement under this Part from being
admitted in evidence in:
(a)
proceedings for an offence against this Part
(including section 30 as extended to this Part by section 41S),
or
(b)
proceedings for contempt in relation to a public
inquiry, or
(c)
proceedings in connection with the revocation or
refusal of an authority or the variation, revocation or imposition of
conditions on an authority under this Act.
(4)Appropriate time for giving
warning about incrimination
An appropriate time for warning a
person is any of the following times:
(a)
the time when the requirement to produce the
record, document or thing, or give the information, evidence or answer, is
made,
(b)
in the case of evidence required to be given when
appearing before a public inquirer, any time after the start of the appearance
before the inquirer,
(c)
at or about the time immediately before the
person produces the record, document or thing or gives the information,
evidence or answer.
(5)Further
information
Further information obtained as a result of a
record, document or thing produced or information, evidence or answer given in
compliance with a requirement under this Part is not inadmissible on the
ground:
(a)
that the record, document, thing, information,
evidence or answer had to be produced or given, or
(b)
that the record, document, thing, information,
evidence or answer might incriminate the person.
(6)Application of section to
reconstituted existing non-public inquiries
This section extends to a requirement made under
Division 1 of Part 3 in relation to an existing non-public inquiry before it
was reconstituted as a public inquiry if the requirement had not yet been
complied with when it was reconstituted.
Note—
Section 41C (2) (c) operates to require
compliance with requirements made under Division 1 of Part 3 in relation to an
existing non-public inquiry that becomes a public inquiry if the requirements
have not yet been complied with.
Division 4Powers of public
inquirer
41OPowers of public inquirer
generally
(1)
A public inquirer has, for the purposes of a
public inquiry, all the powers, rights and privileges that the Supreme Court
(or any Judge of the Supreme Court) has in, or in relation to, any proceedings
concerning each of the following matters:
(a)
compelling the attendance of
witnesses,
(b)
compelling witnesses to answer questions that the
public inquirer considers to be relevant to the public
inquiry,
(c)
compelling the production of documents or other
things,
(d)
punishing persons guilty of contempt or of
disobedience of any direction, order or summons made or issued by the public
inquirer.
(2)
This section is in addition to, and does not
limit, any other power, right or privilege conferred on a public inquirer by
another provision of this Part.
41PInvestigative powers under
Division 1 of Part 3
(1)
The provisions of sections 27 (Power of Minister
to require accounts etc) and 28 (Power of entry and inspection) extend to
public inquiries.
(2)
For this purpose:
(a)
any reference to an inquiry under Part 3 is to be
read as including a reference to a public inquiry, and
(b)
any reference to the purposes of any inquiry
under Part 3 is to be read as including a reference to the purposes of any
public inquiry, and
(c)
any reference to the Minister is to be read as
including a reference to a public inquirer.
41QSearch
warrant
(1)
The public inquirer may direct an authorised
inspector to apply to an authorised officer (within the meaning of the Law Enforcement (Powers and Responsibilities) Act
2002) for a search warrant if the public inquirer has
reasonable grounds for believing that documents or things relating to a matter
relevant to a public inquiry are kept at a particular place and that:
(a)
the place is used as a dwelling,
or
(b)
a person having custody or control of those
documents or things has neglected or failed to comply with a requirement under
this Act to produce them or to furnish copies of or extracts from them,
or
(c)
the place is unoccupied or the occupier is
temporarily absent.
(2)
A direction under this section operates to
authorise the authorised inspector to make an application under section 29
even if the inspector does not have the kind of belief referred to in section
29 (1).
(3)
To avoid doubt, a search warrant issued under
section 29 on an application directed under this section may extend to things
as well as documents.
Division 5Miscellaneous
41RApprehension of
witnesses
(1)
If a person served with a summons to attend a
public inquiry as a witness fails to attend in answer to the summons, the
public inquirer may, on proof by statutory declaration of the service of the
summons, issue a warrant for the apprehension of the
witness.
(2)
A warrant under this section authorises the
apprehension of the witness and his or her being promptly brought before the
public inquirer and detained in a correctional centre or elsewhere for that
purpose until released by order of the public inquirer.
(3)
A warrant issued under this section may be
executed by any police officer, or by any person to whom it is addressed, and
the person executing it may use such force as is reasonably necessary for the
purpose of entering any premises for the purpose of executing
it.
(4)
The issue of a warrant or the apprehension of a
witness does not relieve the witness from any liability incurred by the
witness for non-compliance with a summons.
41SOffences in relation to public
inquiries
(1)
Section 30 (Offences in relation to inquiries)
extends to public inquiries with the following modifications:
(a)
the reference in section 30 (a) to a notice under
Division 1 of Part 3 is to be read as including a reference to a notice under
this Part (including a notice given in exercise of the powers conferred by
section 41P),
(b)
the reference in section 30 (b) to a document
referred to in section 27 (1) (e) is to be read as including a reference to a
document that relates to any matter in question in a public
inquiry,
(c)
the reference in section 30 (c) to an oath
required to be taken under Division 1 of Part 3 is to be read as including a
reference to an oath or affirmation required under this
Part,
(d)
the reference in section 30 (d) to the exercise
of functions under Division 1 of Part 3 by the Minister or an authorised
inspector is to be read as including a reference to the exercise of functions
under this Part by a public inquirer or an authorised
inspector.
(2)
A person must not contravene:
(a)
a direction of a public inquirer that prohibits
the person from being present at a hearing (or part of a hearing) of a public
inquiry, or
(b)
a direction of a public inquirer that prevents or
restricts the publication of evidence given before the public inquirer or of
matters contained in documents obtained or received by the public
inquirer.
Maximum penalty (subsection (2)): 10 penalty
units.
41TExclusion of personal
liability
(1)
No liability is incurred by the Crown, and no
personal liability is incurred by any of the following persons, for any act
done or omitted, or for any statement made or issued, by any of them in good
faith for the purposes of establishing or conducting a public inquiry:
(a)
the Minister,
(b)
the Secretary of the Department of Finance,
Services and Innovation,
(c)
a person employed in the Public Service or
engaged to assist the public inquirer to conduct a public
inquiry.
(2)
No liability is incurred by a person for
publishing in good faith:
(a)
a statement referred to in subsection (1),
or
(b)
a fair report or summary of such a
statement.
(3)
Subsections (1) and (2) extend to acts, omissions
and statements occurring in connection with an existing non-public inquiry
(including one begun before the commencement of this Part) that becomes a
public inquiry under this Part.
(4)
An Australian legal practitioner assisting a
public inquirer or representing a person before a public inquirer has the same
protection and immunity as a barrister has in appearing for a party in
proceedings in the Supreme Court.
(5)
Subject to this Part, a person summoned to attend
or appearing before a public inquirer as a witness, or producing a document or
other thing to the public inquiry, has the same protection as a witness in
proceedings in the Supreme Court.
(6)
No criminal or civil liability (apart from under
the provisions of this Act) attaches to a person for compliance, or purported
compliance in good faith, with any requirement made under this
Part.
(7)
In particular, if a person gives any statement of
information or produces any document or other thing under a production
requirement, no civil liability attaches to the person for doing so, whether
that liability would arise under a contract or
otherwise.
(8)
In this section:
barrister has the same meaning as in
the Legal Profession Uniform Law
(NSW).
41UReview of
Part
The Minister is to ensure that the operation of
this Part during the 3 years after its commencement is reviewed and that a
report on the outcome of the review is published within 12 months after the
end of that 3 year period.
[8]Schedule 2 Savings and
transitional provisions
Insert before clause 1:
Part 1General
[9]Schedule 2, clause 1
(1)
Insert “or any Act that amends this
Act” after “this Act”.
[10]Schedule 2, clause 1
(3)
Omit “in the Gazette”. Insert instead
“on the NSW legislation website”.
[11]Schedule
2
Insert after clause 1:
Part 2Provisions consequent on
enactment of this Act
[12]Schedule
2
Insert after clause 2:
Part 3Provisions consequent on
enactment of Charitable Fundraising Amendment
(Inquiries) Act 2017
3RSL inquiry reconstituted as
public inquiry
(1)
This clause applies in relation to the inquiry
under Part 3 of this Act (the RSL
inquiry) into the following persons and organisations for
which the Minister appointed the Honourable Patricia Anne Bergin SC on 15 May
2017 (the existing
authorised inspector) as the authorised inspector:
(a)
The Returned and Services League of Australia
(New South Wales Branch) (“RSL NSW”), including but not limited to
the members of the governing body and officers of RSL NSW,
(b)
the RSL Welfare and Benevolent Institution (also
known as “RSL DefenceCare”) and its trustees (collectively,
“WBI”), including but not limited to the members of the governing
body and officers of WBI,
(c)
RSL Life Care Limited (“LifeCare”),
including but not limited to the members of the governing body and officers of
LifeCare.
(2)
The existing authorised inspector is taken, on
and from the commencement of the amending Act, to have been appointed under
section 41C (as inserted by the amending Act) to be a public inquirer for the
RSL inquiry. As a result, section 41C (2) and (3) apply to the appointment as
if the appointment had been duly made by the Minister under that
section.
(3)
In this clause:
amending
Act means the Charitable
Fundraising Amendment (Inquiries) Act
2017.
Historical
notes
Table of amending
instruments
Charitable
Fundraising Amendment (Inquiries) Act 2017 No 36. Assented
to 14.8.2017. Date of commencement, assent, sec 2.