(4) Within 10 business days after the designated proponent has given the Minister the documents required under subsection (3), the designated proponent must publish the finalised statement in accordance with the regulations.
105 Recommendation report
(1) The Secretary must prepare, and give to the Minister, a recommendation report relating to the action. The report must include recommendations on:
(a) whether the taking of the action should be approved under Part 9; and
(b) if approval is recommended, any conditions that should be attached to the approval.
(2) The recommendation report must be given to the Minister after the Minister receives the finalised environmental impact statement under section 104 and before the end of the period applicable under paragraph 130(1B)(d) in relation to the action.
Note: This is the period within which the Minister must decide whether or not to approve the taking of the action.
Division 7—Inquiries
Subdivision A—Preliminary
106 Simplified outline
The following is a simplified outline of this Division:
This Division provides for the Minister to appoint commissions to carry out inquiries in a flexible way into the impacts of actions.
Commissioners have powers to call witnesses, obtain documents and inspect places for the purposes of their inquiries.
Commissioners must report to the Minister and publish their reports.
Subdivision B—Establishment of inquiries
107 Appointing commissioners and setting terms of reference
(1) If the Minister decides that the relevant impacts of an action must be assessed by inquiry under this Division, the Minister must:
(a) appoint in writing one or more persons (the commissioners) as a commission to conduct the inquiry and report to the Minister in relation to the action; and
(b) specify in writing (the terms of reference):
(i) the matters relating to the action that are to be the subject of the inquiry and report; and
(ii) the period within which the commission must report to the Minister.
Note 1: The Minister may revoke an appointment and amend terms of reference. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: Subdivision E contains more provisions about the basis on which a commissioner holds office.
(2) If the Minister appoints 2 or more commissioners for an inquiry, the Minister must appoint one of them to preside at the inquiry.
(3) In specifying in the terms of reference the matters relating to the action that are to be the subject of the inquiry and report, the Minister:
(a) must specify the relevant impacts of the action; and
(b) if subsection (4) or (4A) applies—may specify other certain or likely impacts of the action.
(4) For the purposes of paragraph (3)(b), the Minister may specify other certain or likely impacts of the action if:
(a) the action is to be taken in a State or self‑governing Territory; and
(b) the appropriate Minister of the State or Territory has asked the Minister administering this section to ensure that the inquiry reports on those other impacts to help the State or Territory, or an agency of the State or Territory, make decisions about the action; and
(c) the action:
(i) is to be taken by any person for the purposes of trade or commerce between Australia and another country, between 2 States, between a State and a Territory or between 2 Territories or by a constitutional corporation; or
(ii) is an action whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.
Note: Paragraph (4)(a) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(4A) For the purposes of paragraph (3)(b), the Minister may specify other certain or likely impacts of the action if:
(a) the referral of the proposal to take the action is, because of section 37AB of the Great Barrier Reef Marine Park Act 1975, taken to be an application for a permission for the purposes of that Act; and
(b) the Great Barrier Reef Marine Park Authority has asked the Minister to ensure that the report includes information about those other impacts for the purposes of deciding whether to grant the permission.
(5) The Minister may also specify in the terms of reference the manner in which the commission is to carry out the inquiry.
108 Publicising inquiry
(1) As soon as practicable, the commission must publish in accordance with the regulations and in any other way it thinks fit:
(a) the terms of reference; and
(b) the information relating to the action given to the Minister under this Chapter before the Minister made the decision under Division 3 to use an inquiry to assess the relevant impacts of the action.
(2) The commission need not publish the information described in paragraph (1)(b) if, before the Minister appointed the commission, the designated proponent of the action published:
(a) a draft report under section 98 (which deals with draft public environment reports); or
(b) a draft statement under section 103 (which deals with draft environmental impact statements).
However, in this case the commission must publish as described in subsection (1) notice of the fact that the draft report or draft statement has already been published.
Subdivision C—Conduct of inquiries
109 Procedure of inquiries
(1) A commission must comply with the terms of reference in conducting its inquiry.
(2) Subject to this Division, a commission:
(a) may determine the procedure to be followed in its inquiry; and
(b) is not subject to any directions by an employee of the Commonwealth or by a Commonwealth agency; and
(c) is not bound by the rules of evidence.
110 Inquiry to be public
(1) A hearing held as part of an inquiry must be conducted in public, except so far as the commission directs otherwise.
(2) The commission must make publicly available (in any way the commission thinks fit) the content of any submission or evidence given to the commission in writing, except so far as the commission directs otherwise.
(3) If the commission believes that it is desirable in the public interest, the commission may:
(a) give directions that all or part of the inquiry be held in private, specifying the persons who may be present; and
(b) give directions prohibiting or restricting the publication of all or specified passages of submissions or evidence given to the commission orally or in writing.
111 Calling witnesses
Summoning witnesses
(1) A commissioner may, by writing signed by the commissioner, summon a person to appear before the commission at a time and place specified in the summons to give evidence and produce any documents mentioned in the summons.
Failure of witness to attend
(2) A person served with a summons to appear as a witness at an inquiry by a commission must not:
(a) fail to attend as required by the summons; or
(b) fail to appear and report from day to day unless excused or released from further attendance by or on behalf of the commission.
Note: A defendant bears an evidential burden in relation to the excuse or release from further attendance mentioned in paragraph (2)(b). See subsection 13.3(3) of the Criminal Code.
Offence
(3) A person who contravenes subsection (2) commits an offence punishable on conviction by imprisonment for not more than 6 months, a fine of not more than 30 penalty units, or both.
Allowances for witnesses
(4) A person summoned by a commission to appear as a witness at an inquiry is entitled to be paid by the Commonwealth such allowances for travelling and other expenses as are prescribed by the regulations.
112 Dealing with witnesses
Power to administer oath or affirmation
(1) A commissioner may administer an oath or affirmation to a person appearing as a witness before the commission.
Note: This means that proceedings before the commission are judicial proceedings for the purposes of Part III of the Crimes Act 1914, which creates various offences relating to judicial proceedings.
Refusal to be sworn or to answer questions
(2) A person appearing as a witness at an inquiry by a commission must not:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to answer by the commissioner (or the commissioner presiding at the inquiry if there is more than one commissioner for the inquiry); or
(c) refuse or fail to produce a document that the person was required to produce by a summons served on the person.
Offence
(3) A person who contravenes subsection (2) commits an offence punishable on conviction by imprisonment for not more than 6 months, a fine of not more than 30 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
No privilege against self‑incrimination
(4) An individual is not excused from answering a question or producing a document on the ground that answering the question or producing the document would tend to incriminate the individual or to expose the individual to a penalty.
Answers and documents cannot be used in criminal proceedings
(5) However, none of the following is admissible in evidence in criminal proceedings against the individual (except proceedings under section 491):
(a) the answer to the question;
(b) the production of the document;
(c) any information, document or thing obtained as a direct or indirect consequence of answering the question or producing the document.
Sworn witnesses may also give written evidence on oath
(6) A commission may permit a person who is appearing as a witness before the commission and has been sworn or has made an affirmation to give evidence by tendering a written statement and verifying it by oath or affirmation.
113 Dealing with documents given to commission
Inspecting and copying documents produced or given at inquiry
(1) A commissioner, or a person assisting a commission and authorised by a commissioner to do so, may:
(a) inspect a document produced or given to the commission; and
(b) make a copy of, or take an extract from, the document.
Keeping documents produced or given at inquiry
(2) A commission may keep for a reasonable period a document produced or given to the commission.
114 Inspections of land, buildings and places
(1) If a commissioner, or a person authorised by a commissioner, enters any land, building or place by consent as described in section 115 or under a warrant issued under section 116, the commissioner or person may:
(a) inspect the land, building or place; and
(b) inspect any material on the land, or on or in the building or place.
(2) However, the commissioner or authorised person may not make the inspection if:
(a) the person occupying or in charge of the land, building or place asks the commissioner or authorised person to produce his or her identity card or other written evidence of his or her identity; and
(b) the commissioner or person does not produce it.
(3) A person (the offender) commits an offence punishable on conviction by imprisonment for not more than 6 months if:
(a) the offender obstructs or hinders another person; and
(b) the offender knows the other person is a commissioner, or a person authorised by a commissioner, acting under subsection (1) or a warrant issued under section 116.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
115 Entering premises by consent
(1) A commissioner, or a person authorised by a commissioner, may enter land, a building or a place at any reasonable time for any reasonable purpose of an inquiry, if the person (the occupant) occupying or in charge of the land, building or place consents.
(2) Before obtaining the consent, the commissioner or authorised person must inform the occupant that the occupant may refuse to give consent.
(3) The commissioner or authorised person may not enter the land, building or place if:
(a) the occupant asks the commissioner or authorised person to produce his or her identity card or other written evidence of his or her identity; and
(b) the commissioner or authorised person does not produce it.
(4) An entry by a commissioner or authorised person with the occupant’s consent is not lawful if the occupant’s consent was not voluntary.
116 Entering premises under warrant
(1) A commissioner may apply to a magistrate for a warrant authorising the commissioner or a person authorised by the commissioner to enter any land, building or place if the commissioner has reason to believe that it is necessary or desirable for the purposes of an inquiry for the commissioner or person to enter the land, building or place for the purposes of the inquiry.
Note: Section 117 allows applications for warrants to be made by telephone.
(2) If the magistrate is satisfied by information on oath or affirmation that the issue of the warrant is reasonably required for the purposes of the inquiry, he or she may grant a warrant authorising the person named in the warrant to enter the land, building or place for the purposes specified in the warrant.
(3) The magistrate must specify in the warrant the date after which the warrant ceases to have effect.
(4) The person named in a warrant may not enter the land, building or place if:
(a) the person occupying or in charge of the land, building or place asks the person named in the warrant to produce his or her identity card or other written evidence of his or her identity; and
(b) the person named in the warrant does not produce it.
117 Warrants by telephone or other electronic means
Application
(1) A commissioner may apply to a magistrate for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
Voice communication
(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.
Information
(3) An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn or affirmed.
Issue of warrant
(4) The magistrate may complete and sign the same form of warrant that would be issued under section 116 if, after considering the information and having received and considered any further information he or she required, the magistrate is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
Notification
(5) If the magistrate decides to issue the warrant, the magistrate must inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
Form of warrant
(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the magistrate:
(a) the form of warrant completed by the applicant; and
(b) if the information referred to in subsection (3) was not sworn or affirmed—that information duly sworn or affirmed.
Attachment
(8) The magistrate must attach to the documents provided under subsection (7) the form of warrant completed by the magistrate.
Presumption
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
118 Identity cards
(1) The Minister may cause to be issued to a commissioner or a person authorised by a commissioner an identity card:
(a) in a form approved by the Minister; and
(b) containing a recent photograph of the person to whom it is issued.
(2) As soon as practicable after the commission to which the commissioner was appointed has reported to the Minister on its inquiry, the commissioner or authorised person must return his or her identity card to the Minister.
(3) A person must not contravene subsection (2).
Penalty: 1 penalty unit.
119 Contempt
(1) A person commits an offence punishable on conviction by a fine of not more than 30 penalty units if:
(a) the person insults, disturbs or uses insulting language towards another person; and
(b) the person knows the other person is a commissioner exercising the powers or performing the functions or duties of a commissioner.
(2) A person commits an offence punishable on conviction by a fine of not more than 30 penalty units if:
(a) the person creates a disturbance, or takes part in creating or continuing a disturbance, in or near a place; and
(b) the person knows the place is a place where a commission is holding an inquiry.
(3) A person must not:
(a) interrupt an inquiry by a commission; or
(b) do any other act or thing that would, if a commission were a court of record, constitute a contempt of that court.