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23 2004

Commissions of Investigation Act 2004

PART 3

Investigations and Related Matters

Conduct of investigations.

10. —(1) A commission may, subject to this Act and the commission's rules and procedures, conduct its investigation in the manner that it considers appropriate in the circumstances of the case.

(2) In conducting an investigation, a commission shall, to the greatest possible extent consistent with its duties under this Act—

(a) seek the voluntary co-operation of persons whose evidence is desired by the commission in relation to any matter within its terms of reference, and

(b) facilitate such co-operation.

(3) Subsection (2) is not to be taken to limit in any way the powers given by sections 16, 17 and 28 to a commission or a member of a commission.

(4) A commission shall conduct its investigation as expeditiously as a proper consideration of the matter referred to the commission permits.

In general evidence to be given in private.

11. —(1) A commission shall conduct its investigation in private unless—

(a) a witness requests that all or part of his or her evidence be heard in public and the commission grants the request, or

(b) the commission is satisfied that it is desirable in the interests of both the investigation and fair procedures to hear all or part of the evidence of a witness in public.

(2) Where the evidence of a witness is heard in private—

(a) the commission may give directions as to the persons who may be present while the evidence is heard,

(b) legal representatives of persons other than the witness may be present only if the commission—

(i) is satisfied that their presence would be in keeping with the purposes of the investigation and would be in the interests of fair procedures, and

(ii) directs that they be allowed to be present,

(c) the witness may be cross examined by or on behalf of any person only if the commission so directs, and

(d) any member of the commission or a person who has been appointed under section 8 and is authorised by the commission to do so may, orally or by written interrogatories, examine the witness on his or her evidence.

(3) A person (including a member of the commission) shall not disclose or publish any evidence given or the contents of any document produced by a witness while giving evidence in private, except—

(a) as directed by a court,

(b) to the extent necessary for the purposes of section 12 ,

(c) to the extent otherwise necessary in the interests of fair procedures and then only with the written consent of the chairperson or, if the commission consists of only one member, the sole member, or

(d) to a tribunal in accordance with section 45 .

(4) Subsection (3) is not to be taken to prohibit the publication in a report under this Act of any facts established by a commission on the basis of evidence received in private.

(5) A person who contravenes subsection (3) is guilty of an offence.

Duty to disclose substance of evidence to other witnesses, etc., and to give them a chance to comment.

12. —(1) Subject to subsection (2), a commission shall disclose to a person—

(a) who is directed to attend as a witness before the commission,

(b) who attends voluntarily to give evidence to the commission, or

(c) about whom evidence is given to the commission,

the substance of any evidence in its possession that, in its opinion, the person should be aware of for the purposes of the evidence that person may give or has given to the commission.

(2) Subsection (1) does not require the disclosure of the source of any evidence given or document produced by a witness while giving evidence in private under section 11 , unless the commission considers that, in view of the purposes of the investigation or in the interests of fair procedures, the source should be disclosed.

(3) A commission shall give a person to whom it discloses the substance of evidence under subsection (1) an opportunity to comment by written or oral submissions on the evidence.

Duty to inform witnesses of commissions' powers and to advise them of their own rights and obligations.

13. —(1) Before a person gives evidence to a commission, whether voluntarily or on being directed by it to do so, the commission shall give the person a written statement—

(a) specifying the commission's powers under sections 16, 17 and 28, and

(b) indicating that, if the person does not voluntarily co-operate with the commission or withdraws co-operation, the commission will exercise any of those powers as it considers necessary.

(2) If no legal representative is present to advise a witness, the commission shall advise the witness of his or her legal rights and obligations while giving evidence on oath or affirmation.

(3) The duties imposed on a commission under this section may be performed by any member of the commission or by any person appointed under section 8 and authorised by the commission to perform those duties.

Form and manner in which evidence may be given.

14. —(1) Subject to Subsection (4), a commission may receive evidence given—

(a) orally before the commission,

(b) by affidavit, or

(c) as otherwise directed by the commission or allowed by its rules and procedures, including by means of a live video link, a video recording, a sound recording or any other mode of transmission.

(2) A witness who attends before a commission to give evidence may be required to give evidence on oath or affirmation.

(3) Any member of a commission may administer any oaths or take any affirmations necessary for the purposes of an investigation.

(4) A witness who gives evidence otherwise than by attending in person before the commission or by means of a live video link shall provide the commission with a sworn statement in a form acceptable to it indicating that—

(a) the evidence was given by him or her,

(b) the evidence was given voluntarily, and

(c) to the best of his or her knowledge, the content is true and accurate.

(5) A commission that has received evidence from a witness who is required to provide a sworn under subsection (4) or who is the subject of a direction under section 16 (1)(h) may request additional information from the witness relating to that evidence.

(6) Subject to subsection (8), a witness shall, within the period specified in the request, comply with a request made to him or her under subsection (5).

(7) The requirements of subsection (4) relating to the provision of a sworn statement apply also to any evidence given in response to a request under subsection (5).

(8) A witness who claims to be entitled under any rule of law or enactment to refuse to disclose information requested under subsection (5) shall, for the purposes of section 21 and within the period specified in the request, provide the commission with a written statement specifying the grounds for the claim, including the privilege or the duty of confidentiality relied on.

Powers to establish rules and procedures relating to evidence and submissions.

15. —(1) A commission may, having regard to sections 11 to 14 and in particular the need to observe fair procedures, establish or adopt rules and procedures for—

(a) receiving and recording evidence, and

(b) receiving submissions.

(2) The rules and procedures of a commission may, among other things, specify—

(a) the form in which and the means by which evidence or submissions may be received by it, and

(b) the conditions subject to which evidence or submissions may be received by it by means of a live video link, a video recording, a sound recording or any other mode of transmission.

(3) Where a commission consists of more than one member, its rules and procedures may, among other things, provide that evidence may be given before a single member or before more than one but fewer than all the members.

(4) Evidence given under a provision of a commission's rules and procedures authorised by subsection (3) is considered to have been given to all the members of the commission.

(5) A commission shall make copies of its rules and procedures available to persons likely to be affected by them.

Powers relating to witnesses and documents.

16. —(1) For the purposes of an investigation, a commission may do any or all of the following:

(a) direct in writing any person to attend before the commission on a date and at a place and time specified in the direction and there to give evidence and to produce any document that is in the person's possession or power and is specified in the direction;

(b) direct a witness to answer questions that it believes to be relevant to a matter under investigation;

(c) examine a witness on oath or affirmation or by use of a statutory declaration or written interrogatories;

(d) examine or cross examine any witness to the extent the commission thinks proper in order to elicit information relevant to a matter under investigation;

(e) direct a witness to produce to the commission any document that is in his or her possession or power and is specified in the direction;

(f) direct in writing any person to—

(i) provide the commission with a list, verified by affidavit, disclosing all documents in the person's possession or power relating to a matter under investigation, and

(ii) specify in the affidavit any of the listed documents that the person objects to producing to the commission and the basis for the objection;

(g) direct in writing any person to send to the commission any document that is in the person's possession or power and is specified in the direction;

(h) direct a person who made a statement or answered a question while being interviewed by a person appointed under section 8 to provide the commission with a sworn statement in a form acceptable to it confirming, if such is the case—

(i) that the statement was made or the answer given by him or her voluntarily, and

(ii) that to the best of his or her knowledge the content is true and accurate;

(i) give any other directions that appear to the commission to be reasonable.

(2) The powers of a commission under subsection (1) may be exercised by any member authorised in accordance with section 15 (3) by the commission's rules and procedures to receive evidence on its behalf, and for that purpose a reference in subsection (1), (3), (6), (8) or (9) of this section to “a commission” or “the commission” is to be read as a reference to the authorised member.

(3) A person who attends, whether voluntarily or otherwise, before a commission is entitled to be paid by the specified Minister such amount in respect of the expenses of his or her attendance as is determined in accordance with guidelines prepared by that Minister with the consent of the Minister for Finance and after consulting with the commission.

(4) The rules of court relating to the discovery of documents in proceedings in the Court apply with any necessary modifications in relation to the disclosure of documents under subsection (1)(f).

(5) Where a statement made or an answer given to a person appointed under section 8 is confirmed in accordance with a direction under subsection (1)(h) of this section, the statement or answer is considered to have been received as evidence by the commission.

(6) Where a person does not comply with a direction given by a commission under this section, the Court may, on application by the chairperson or, if the commission consists of only one member, by the sole member—

(a) order the person to comply with the direction, and

(b) make any other order the Court considers necessary and just to enable the direction to have full effect.

(7) If a person against whom an order is made under subsection (6)(a) fails to comply with the direction specified in the order, the Court may deal with the matter as if it were a contempt of the Court.

(8) A person who, without reasonable excuse, fails to comply with a direction under subsection (1)(a) to attend before a commission is guilty of an offence.

(9) The failure of a person to comply with a direction under subsection (1)(a)

(a) may be punished as a contempt even though it could be punished as an offence, and

(b) may be punished as an offence even though it could be punished as a contempt,

but the person is not liable to be punished twice.

(10) In subsection (3) “expenses” does not include any legal costs.

Power to direct certain persons to pay costs.

17. —(1) If as a result of a person—

(a) failing, without reasonable excuse, to comply with a direction under section 16 ,

(b) failing, without reasonable excuse, to comply with a request under section 14 (5) or 21(5), or

(c) otherwise obstructing an investigation,

a commission incurs costs that it would not otherwise have incurred, it may, in writing, direct the person to pay to the Minister for Finance those costs, including legal costs as taxed by a Taxing Master of the Court and costs arising from any delay in completing the investigation.

(2) If any person who attends before or gives evidence to a commission is adversely affected as a result of an act or omission described in any paragraph of subsection (1), the commission may—

(a) on its own initiative, or

(b) at the request of the person adversely affected,

direct the person whose act or omission had that result to pay to the person adversely affected all or part of any costs (including legal costs as taxed by a Taxing Master of the Court) that he or she incurred as a result of the act or omission.

(3) A direction of a commission to pay costs under subsection (1) or (2) does not take effect until it is confirmed by the Court on application by the chairperson of the commission or, if a commission consists of only one member, by the sole member.

(4) On application under subsection (3) for an order confirming a direction of the commission to pay costs to the Minister for Finance or another person, the Court may—

(a) make an order confirming the direction with or without modification, or

(b) refuse to make such an order.

(5) Subject to subsection (3), any sum payable pursuant to a direction under this section may be recovered as a simple contract debt in any court of competent jurisdiction.

(6) A person may be directed to pay costs under this section even though the act or omission that resulted in the direction is punishable as contempt or as an offence against a provision of this Act, and the direction does not prevent the person being punished for contempt or the bringing of proceedings in respect of the offence.

Offence of making false statement.

18. —Any person who, while giving evidence pursuant to this Act, makes a statement material in the investigation concerned that the person knows to be false or does not believe to be true is guilty of an offence.

Evidence given to commissions not admissible in certain proceedings.

19. —(1) None of the following is admissible as evidence against a person in any criminal or other proceedings, except proceedings in relation to an offence against section 18 :

(a) a statement or admission made by the person to a commission or to a person appointed under section 8 ;

(b) a document given or sent to a commission pursuant to a direction or request of the commission to the person;

(c) a document specified in an affidavit of documents made by the person and given to a commission pursuant to a direction or request of the commission.

(2) Subsection (1) is not to be taken to limit in any way the application of section 45 (3) to evidence received by a commission and made available to a tribunal under section 45 (1).

Privileges and immunities of witnesses.

20. —A person who gives evidence to a commission or who produces or sends documents to a commission as directed by the commission—

(a) has the same immunities and privileges in respect of that evidence or those documents, and

(b) is, in addition to the penalties provided by this Act, subject to the same liabilities,

as a witness in proceedings in the Court.

Determinations on privilege.

21. —(1) Subject to subsection (4), nothing in this Act compels—

(a) the disclosure by any person of any information that the person would be entitled under any rule of law or enactment to refuse to disclose on the grounds of any privilege or any duty of confidentiality, or

(b) the production of any document in the person's possession or power containing such information.

(2) Where a person claims to be entitled under any rule of law or enactment to refuse, on the grounds of any privilege or any duty of confidentiality—

(a) to disclose any information required in the course of an investigation by a commission (including information required in response to a request made under section 14 (5) or to a question put under section 16 and information in a statement or answer that is the subject to a direction under section 16 (1)(h), or

(b) to produce any document in the person's possession or power that the person is directed under this Act to produce,

the commission may, subject to subsection (4) of this section, determine whether the privilege or the duty of confidentiality applies to that information or document.

(3) Where the commission determines that the privilege or the duty of confidentiality relied on by a person as grounds for refusing to disclose information referred to in subsection (2)(a) does not apply to the information, the person shall disclose that information to the commission unless the determination is overturned under section 22 .

(4) A determination may only be made under subsection (2)(b) in relation to a document if the commission has—

(a) examined the document, and

(b) considered a written statement provided by the person concerned specifying the grounds for the claim, including the privilege or duty of confidentiality relied on.

(5) For the purposes of subsection (4), the person concerned shall, at the commission's request—

(a) submit the document to the commission within the period specified in the request, and

(b) unless exempted under subsection (6), provide the commission, within that period, with the written statement referred to in subsection (4)(b).

(6) A person who has already provided the commission with an affidavit under section 16 (1)(f) specifying the basis for objecting to the production of a document need not provide a written statement under subsection (5)(b) of this section concerning the same document.

(7) If a person does not, within the specified period, comply with a request of a commission to submit a document for a determination under this section or to provide a written statement under subsection (5)(b)

(a) the chairperson of the commission or, if the commission consists of only one member, the sole member may apply to the Court for an order directing the person to comply with the request, and

(b) on the hearing of the application, the Court may make or refuse to make the order.

(8) Where the commission determines that the privilege or the duty of confidentiality relied on as grounds for refusing to produce a document applies to any of the information in the document, the document is not considered to be evidence received by the commission, except to the extent authorised under subsection (10).

(9) Where the commission determines that the privilege or duty of confidentiality relied on as grounds for refusing to produce a document applies to any of the information in the document, the commission may cause to be prepared a summary version of the document that excludes that information, but only if—

(a) the document so allows, and

(b) in the commission's opinion, it is in the interests of both the investigation and fair procedures to do so.

(10) Where a commission causes a summary version of a document to be prepared in accordance with this section, the summary version forms part of the evidence received by the commission.

(11) Where the commission determines that the privilege or the duty of confidentiality relied on as grounds for refusing to produce a document does not apply to any of the information in the document, the document is considered for the purposes of this Act to have been received as evidence by the commission unless the determination is overturned under section 22 .

Right of appeal to High Court against determinations on privilege.

22. —(1) A person whose refusal to disclose information or to produce a document is the subject of a determination by a commission under section 21 (2) may appeal to the Court against that determination.

(2) The appeal must be brought within 14 days after the person concerned was notified by the commission of the determination.

(3) On the hearing of the appeal, the Court may make any order or give any direction it thinks fit, including an order—

(a) confirming the determination under appeal, or

(b) modifying or overturning that determination.

Guidelines concerning recovery of legal costs necessarily incurred by witnesses.

23. —(1) With the consent of the Minister for Finance and after consulting with the commission concerned, the specified Minister shall prepare general guidelines concerning the payment by the specified Minister to witnesses of legal costs necessarily incurred by them in connection with an investigation.

(2) For the purposes of this section and section 24 , legal costs are necessarily incurred by a witness in connection with an investigation by a commission if—

(a) the good name or conduct of the witness is called into question by any evidence received by the commission, or

(b) other personal or property rights of the witness are at risk of being jeopardized as a result of any evidence received by the commission.

(3) The guidelines may—

(a) restrict the types of legal services or fees for which payment may be made, and

(b) otherwise limit (including by specifying maximum amounts) the extent to which legal costs may be paid.

(4) Before evidence is given to a commission, the commission shall give the witness a copy of the guidelines prepared by the specified Minister.

Request for recovery of legal costs necessarily incurred and certain other expenses.

24. —(1) Where a witness requests a commission to direct that all or part of the legal costs necessarily incurred by the witness in connection with its investigation be paid by the specified Minister, the commission may—

(a) if satisfied as to the matters specified in subsection (2) of this section and that the payment comes within the guidelines prepared under section 23 , direct that such amount of those costs as it considers reasonable be paid to the witness, or

(b) if not so satisfied, refuse to give such direction.

(2) Before a direction is given under subsection (1), the commission is to be satisfied that—

(a) the legal costs were necessarily incurred, and

(b) the level and amount of those costs are reasonable.

(3) For the purpose of satisfying itself as to the matters specified in subsection (2), the commission shall consider all relevant factors, including—

(a) the nature, complexity and extent of the evidence given to the commission by the witness,

(b) the nature, complexity and volume of any documents or list of documents provided by the witness to the commission,

(c) whether evidence given by or relating to the witness was given in private or in public,

(d) whether the witness was cross examined by or on behalf of other persons,

(e) whether there has been any improper failure by the witness to co-operate with the commission in its investigation and, if so, the degree of failure, and

(f) any potential consequences for the witness arising from the publication of the commission's report.

(4) After considering all relevant factors, the commission may direct that a witness be paid less than the maximum amount provided for in the guidelines prepared under section 23 in respect of any legal costs necessarily incurred by the witness.

(5) If a witness who has incurred heavy expenses (other than legal costs) because of—

(a) the nature, volume or location of the documents produced by the witness,

(b) the location outside the State from which the witness travelled to attend before the commission, or

(c) any other factor not within the control of the witness,

requests payment of all or part of those expenses, the commission may, on being satisfied that they were necessary in the circumstances, direct that such amount of the expenses as it considers reasonable be paid by the specified Minister.

(6) On receiving a direction under this section, the specified Minister may request the commission to review the direction if he or she considers that the amount specified in it is excessive having regard to—

(a) in the case of a request for payment of legal costs necessarily incurred, the guidelines prepared under section 23 and relevant factors referred to in subsection (3) of this section, and

(b) in the case of a request for payment of expenses incurred as described in subsection (5), the ability of the witness who made the request to pay those expenses.

(7) On receiving a request to review a direction under this section, a commission may—

(a) reduce the amount specified in the direction, or

(b) confirm that amount.

(8) The specified Minister shall, in accordance with a direction of a commission, pay to a witness requesting payment of legal costs or other expenses—

(a) the amount specified in the direction, or

(b) if that amount is reduced under subsection (7), the reduced amount.

Signing of written directions.

25. —A written direction of a commission must be signed by—

(a) the chairperson or a member designated by the chairperson, or

(b) if the commission consists of only one member, by the sole member.