Judicial Commission of Victoria Regulations 2017

Judicial Commission of Victoria Regulations2017

S.R. No. 38/2017

table of provisions

Regulation Page

Part 1—Preliminary 1

1 Objectives 1

2 Authorising provision 2

3 Commencement 2

4 Definition 2

Part 2—Prescribed persons, bodies andinformation 3

5 Prescribed persons and bodies 3

6 Prescribed information for written notice to produce material document or thing 3

7 Prescribed particulars for receipt for documents or things seized 4

8 Prescribed tribunal for purposes of eligibility for appointment as Director 4

Part 3—Assistance for witnesses 6

9 Reimbursement of expenses 6

10 Attendance allowance for expert witnesses 6

11 Attendance and general allowances for other witnesses 6

12 Meals and accommodation 7

13 Travelling expenses 9

14 Evidence of expenses 9

Part 4—Prescribed forms 11

15 Witness summons for hearing before an investigating panel 11

16 Direction about a witness already held in custody 11

17 Search warrant 11

18 Notice of application to determine privilege 11

Part 5—Other matters 12

19 Proof of age 12

20 Additional actions before the questioning of a witness or requiring the production of documents orthings 12

Schedule 1—Forms 13

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Part 1—Preliminary

Judicial Commission of Victoria Regulations2017

S.R. No.

statutory rules 2017

S.R. No. 38/2017

Part 1—Preliminary

Judicial Commission of Victoria Regulations2017

S.R. No.

Judicial Commission of Victoria Act 2016

Part 1—Preliminary

Judicial Commission of Victoria Regulations2017

S.R. No.

Judicial Commission of Victoria Regulations2017

Part 1—Preliminary

Judicial Commission of Victoria Regulations2017

S.R. No. 38/2017

The Governor in Council makes the following Regulations:

Dated: 6 June 2017

Responsible Minister:

MARTIN PAKULA

Attorney-General

ANDREW ROBINSON

Clerk of the Executive Council

Part 1—Preliminary

1 Objectives

The objectives of these Regulations are to prescribe—

(a) persons, bodies, tribunals, information and other matters necessary to be prescribed under the Judicial Commission of Victoria Act 2016; and

(b) the manner of calculating the amount of assistance provided to witnesses summoned to attend a hearing before an investigating panel; and

2 Authorising provision

These Regulations are made under section 146 of the Judicial Commission of Victoria Act 2016.

3 Commencement

These Regulations come into operation on 1 July 2017.

4 Definition

In these Regulations—

the Act means the Judicial Commission of Victoria Act 2016.

Part 2—Prescribed persons, bodies andinformation

5 Prescribed persons and bodies

For the purposes of paragraph (g) of the definition of law enforcement agency in section 3(1) of the Act, the following persons and bodies are prescribed—

(a) the Australian Border Force;

(b) the Australian Securities and Investments Commission;

(d) the Australian Transaction Reports and Analysis Centre;

(e) the Australian Crime Commission;

(f) the Chief Municipal Inspector appointed under section 223A of the Local Government Act 1989;

(g) municipal monitors appointed under section223CA of the Local Government Act 1989.

6 Prescribed information for written notice to produce material document or thing

For the purposes of section 69(2)(b) of the Act, awritten notice must contain the following information—

(a) a description of how the document or thing may be produced to the investigating panel;

(b) that it is an offence for a person not to comply with a written notice under section69 of the Act unless the person
has a reasonable excuse.

7 Prescribed particulars for receipt for documents or things seized

For the purposes of section87(2) of the Act, the prescribed particulars for a receipt for documents or things seized under a search warrant are the following—

(a) the premises where the document or thing was seized;

(b) the name of each authorised officer conducting the search;

(d) the time the document or thing was seized;

(e) the description of the document or thing;

(f) the location of the document or thing when seized;

(g) the name of the person from whom the document or thing was seized.

8 Prescribed tribunal for purposes of eligibility for appointment as Director

For the purposes of section 128(3)(a) of the Act, the following tribunals are prescribed—

(a) the Administrative Appeals Tribunal established under the Administrative Appeals Tribunal Act 1975 of the Commonwealth;

(b) the ACT Civil and Administrative Tribunal established under the ACT Civil and Administrative Tribunal Act 2008 of the Australian Capital Territory;

(c) the Northern Territory Civil and Administrative Tribunal established underthe Northern Territory Civil and Administrative Tribunal Act of the NorthernTerritory;

(d) the Civil and Administrative Tribunal of New South Wales established under the Civil and Administrative Tribunal Act 2013 of New South Wales;

(e) the Queensland Civil and Administrative Tribunal established under the Queensland Civil and Administrative Tribunal Act 2009 of Queensland;

(f) the South Australian Civil and Administrative Tribunal established underthe South Australian Civil and Administrative Tribunal Act 2013 of SouthAustralia;

(g) the State Administrative Tribunal establishedunder the State Administrative Tribunal Act 2004 of Western Australia.

Part 3—Assistance for witnesses

9 Reimbursement of expenses

(1) For the purposes of section 83 of the Act, the prescribed allowance for expenses incurred in complying with a witness summons is set out in this Part.

(2) An allowance under this Part must not be paid to—

(a) a person whose conduct is being investigated by the Judicial Commission or, in the case of a body corporate, its representative; or

(b) a prisoner of the Crown.

10 Attendance allowance for expert witnesses

A witness who is called to attend a hearing beforean investigating panel or to produce documents or other things to an investigating panel in a professional or expert capacity is entitled to reimbursement of the amount of income actually lost in attending the hearing upto$300 per hour, but not exceeding $1500 perday.

11 Attendance and general allowances for other witnesses

(1) This regulation applies to a witness who is called to attend a hearing before an investigating panel or to produce documents or other things to an investigating panel other than in a professional or expert capacity.

(2) A witness who is engaged in an income-producing occupation and loses income because of their attendance at a hearing before an investigating panel or their attendance to produce documents or things to an investigating panel is entitled to reimbursement of the amount of income actually lost up to $100 per hour, but not exceeding $600per day.

(3) A witness who is not engaged in an incomeproducing occupation but who necessarilyincurs expenditure (other than childcare expenses) because of their attendance ata hearing before an investigating panel or theirattendance to produce documents or things toan investigating panel that is not provided for inregulation12 is entitled to reimbursement of the amount of the actual expenditure incurred, upto a maximum of $50 for each day.

(4) If a witness incurs childcare expenses because oftheir attendance at a hearing before an investigating panel or their attendance to produce documents or things to an investigating panel, the witness is entitled to reimbursement of those reasonable childcare expenses.

12 Meals and accommodation

(1) A witness who is called to attend a hearing beforean investigating panel or to produce documents or other things to an investigating panel, and who is necessarily absent from their home by reason of their attendance, is entitled tobe paid the following allowances for meals during their absence—

(a) if the witness is absent from their home overnight—

Capital city / Any other location
Breakfast / $17.70 / $15.75
Lunch / $19.75 / $18.05
Dinner / $34.05 / $31.15
Total / $71.50 / $64.95 / ;

(b) if the witness is absent for a part of a day only, departing and returning the same day—

Breakfast / $12.40
Lunch / $12.40
Dinner / $16.50
Total / $41.30 / .

(2) Despite subregulation (1), a witness is only entitled to be paid an allowance—

(a) for breakfast, if the witness is absent fromtheir home by reason of their attendance atthe examination between 7.00a.m. and9.30a.m.; and

(b) for lunch, if the witness is absent from theirhome by reason of their attendance attheexamination between 12.00 p.m. and3.00p.m.; and

(c) for dinner, if the witness is absent from theirhome by reason of their attendance attheexamination between 6.00 p.m. and8.00p.m.

(3) A witness who is called to attend a hearing beforean investigating panel or to produce documents or other things to an investigating panel, and who is necessarily absent fromtheir home overnight because of their attendance at the hearing is entitled to a reimbursement of the cost incurred by them of alternative accommodation, up to a maximum of $150 for each night of their absence.

13 Travelling expenses

(1) Subject to subregulation (2), a witness who is called to attend a hearing before an investigating panel or to produce documents or other things to an investigating panel, is entitled to bepaid an allowance in respect of the expense of travelling to and from the place where the witness is required to attend equal to the cost of the most economical form of transport having regard to—

(a) the distance required to be travelled; and

(b) the time spent travelling; and

(d) any other matter the Judicial Commission considers relevant.

(2) If the witness uses their own vehicle, the witness is entitled to an allowance of 18 cents for each kilometre travelled to or from the place where the witness is required to attend.

14 Evidence of expenses

The Judicial Commission must not approve the payment of an amount to a witness under this Part unless the witness produces to the satisfaction of the Judicial Commission evidence—

(a) in the case of regulations 10 or 11(2), thatasa result of attending the hearing or producing documents or things the witness has sustained, or will sustain, a loss of income, or of time that the witness wouldotherwise have devoted to an incomeproducing occupation; and

(b) in the case of regulations 11(3) or (4) or12(3), of the expenditure or cost incurredby the witness; and

(c) in the case of regulation 12(1), that the witness was absent from their home by reason of attendance at a hearing at the relevant times specified in regulation 12(2); and

(d) in the case of regulation 13(1), of the cost of themost economical form of transport.

Part 4—Prescribed forms

15 Witness summons for hearing before an investigating panel

For the purposes of section 71 of the Act, the prescribed form of a witness summons is Form 1 in Schedule 1.

16 Direction about a witness already held in custody

For the purposes of section 75(2)(a) of the Act, the prescribed form of a direction as to a witness already held in custody is Form 2 in Schedule 1.

17 Search warrant

For the purposes of section 84(3) of the Act, the prescribed form of a search warrant is Form 3 in Schedule 1.

18 Notice of application to determine privilege

For the purposes of section 94(6) of the Act, the prescribed form of a notice of an application to determine a claim of privilege is Form 4 in Schedule 1.

Part 5—Other matters

19 Proof of age

For the purposes of section 72(2) of the Act, the following constitutes proof of age—

(a) an Australian birth certificate or certified birth extract;

(b) an Australian passport;

(d) any other document or evidence that satisfies the investigating panel about a person's age.

20 Additional actions before the questioning of a witness or requiring the production of documents orthings

For the purposes of section 77(1)(e) of the Act, the investigating panel must take the following actions before a witness is asked any questions orrequired to produce a document or thing—

(a) if the investigating panel administers an oath or affirmation to a witness under section 78 ofthe Act and the witness is using an interpreter, the investigating panel must administer an oath or affirmation to the interpreter in accordance with section 22(2) of the Evidence Act 2008;

(b) if the witness is required to be accompanied by a parent, guardian or an independent person, inform that parent, guardian or independent person of the witness' rights andobligations as specified in section 77(1)(c) of the Act.

Schedule 1—Forms

Form 1

Regulation 15

Judicial Commission of Victoria Act 2016

Witness Summons

TO: [insert name of person to whom witness summons is directed]

ADDRESS: [insert address]

THIS WITNESS SUMMONS IS IMPORTANT.
PLEASE READ IT CAREFULLY.

FAILURE TO COMPLY WITH THIS WITNESS SUMMONS
MAY BE AN OFFENCE. PENALTIES INCLUDING IMPRISONMENT MAY APPLY.

The Judicial Commission of Victoria requires you under section 70 of the Judicial Commission of Victoria Act 2016 to attend to give evidence at a hearing before an investigating panel or to produce documents or other things to an investigating panel.

When and where must you attend?

You must attend at [insert address] *immediately/*on [insert date] at [inserttime] *a.m./*p.m.

What are you required to do?

You will be required to produce to the investigating panel the following documents or things that are in your possession or control:

[specify documents or things]

[name]

[title]

Date: [insert date]

[attach statement outlining specified matters with respect to the witness summons]

* Delete if not applicable.

Form 2

Regulation 16

Judicial Commission of Victoria Act 2016

Direction About a Witness Already HeldinCustody

TO: [insert name of person in charge of place where witness is held in custody]

AT: [insert name and address of place where person is held in custody]

In accordance with section 75 of the Judicial Commission of Victoria Act2016 ("the Act"), I direct that [name of person in custody] born on [insertdate of birth of person held in custody] who is detained at [insertname of place where person is held in custody] be delivered into thecustody of [insert name of person to whom the person in custody is tobedelivered] to be brought before the investigating panel

AT: [insert address to which person in custody is to be brought]