National Integrity Commission Bill 2018 (No 2); National Integrity Commission Bill 2019 [2019] AUPJCHR 76 (17 September 2019)

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Purpose	The bills establish the Australian National Integrity Commission as an independent public sector anti-corruption commission for the Commonwealth
Portfolio	Senator Larissa Waters (National Integrity Bill 2018 (No. 2)); Adam Bandt MP (National Integrity Commission Bill 2019)
Introduced	National Integrity Commission Bill 2018 (No. 2): Senate, 29 November 2018 (and restored to the notice paper) National Integrity Commission Bill 2019: 9 September 2019
Rights	Privacy and reputation; not to incriminate oneself; freedom of expression and assembly; liberty; freedom of movement; effective remedy
Status	Seeking additional information

1.9 The National Integrity Commission Bill 2019 (the 2019 bill) includes almost identical measures as the National Integrity Bill 2018 (No. 2) (the 2018 bill), and as such these bills are considered together.

1.10 The committee previously examined the 2018 bill in its Report 2 of 2019, and has examined other similar bills in earlier reports.^[2] The committee has also previously raised human rights concerns in relation to Commission of inquiry related powers in royal commissions on a number of occasions.^[3] As the 2018 has now passed the Senate and is before the House of Representatives, the committee now seeks the legislation proponent's advice in relation to a number of matters previously commented on.

1.11 The bills seek to establish the Australian National Integrity Commission (the Commission), consisting of the National Integrity Commissioner (the Commissioner), the Law Enforcement Integrity Commissioner and the Whistleblower Protection Commissioner. They also seek to establish the appointment of the Parliamentary Joint Committee on the Australian National Integrity Commission and the Parliamentary Inspector of the Australian National Integrity Commission, as an independent officer of the Parliament. The purpose of the Commission is to promote integrity and accountability and investigate corruption in relation to Commonwealth public administration.^[4]

1.12 The bills propose to confer wide-ranging coercive powers on the Commissioner to inquire into and report on matters relating to alleged or suspected corruption involving a public official or Commonwealth agency.^[5] The Commissioner may undertake an inquiry on their own initiative or at the request of a member of parliament.^[6] An inquiry may relate to the integrity of public officials, corruption or the prevention of corruption generally in Commonwealth agencies, or corruption generally, or the prevention of corruption, in or affecting Australia.^[7] 'Corrupt conduct' is defined broadly by clause 9 in each bill, and applies to 'corruption issues' arising no more than 10 years prior to the day the bills would commence.^[8]

1.13 The Commissioner's powers would include the power to compel a person to provide information or to produce documents or things;^[9] the power to summon a person to attend hearings and require them to produce documents;^[10] powers for information sharing between the Commission and head of a Commonwealth agency;^[11] the power to order an individual to deliver their passport in certain circumstances;^[12] the power to apply to arrest a person and for the purposes of executing an arrest warrant, to break into and enter relevant premises;^[13] the power to apply for warrants to enter premises and seize materials;^[14] and compulsory assistance powers.^[15] The Commission would also have public reporting obligations at the end of investigations and public inquiries,^[16] with the Commissioner retaining the discretion to exclude sensitive information from the report.^[17] Proposed offences for non-compliance with Commission orders range from 6 months imprisonment^[18] to two years imprisonment or 120 penalty units (currently $25,200) or both.^[19]

1.14 The bills provide that a person would not be excused from giving information, answering a question or producing a document or thing when given a notice under section 72, or summonsed under section 82, on the ground that to do so might tend to incriminate them.^[20] A partial 'use immunity' would apply, which provides that information given, or documents or things produced, by persons compelled to provide them is not admissible in evidence against the person in criminal proceedings or other proceedings for the imposition or recovery of a penalty.^[21] However, no 'derivative use immunity' is provided which would prevent information or evidence indirectly obtained being used in criminal proceedings against the person. The penalty for non-compliance with an order to give evidence or produce a document or thing under section 72, or a summons under section 82, is imprisonment for up to two years.^[22]

1.15 Where the Commissioner seeks to issue an opinion or finding that is critical of a Commonwealth agency or person, the Commissioner must generally provide a reasonable opportunity for the person or agency to be heard or make submissions.^[23] However, this opportunity does not have to be provided where the Commissioner is satisfied that a person may have committed a criminal offence, contravened a civil penalty provision, engaged in conduct that could be the subject of disciplinary proceedings or termination of appointment or employment, and that an investigation or any related action would be compromised by giving the person the opportunity to make submissions.^[24]

1.16 Part 9 of the bill also seeks to provide for whistleblower protection and clause 178 provides that if the Whistleblower Protection Commissioner is investigating or conducting a public inquiry, Parts 5-7 of the bill would apply to the Whistleblower Protection Commissioner as if a reference to the National Integrity Commissioner were a reference to the Whistleblower Protection Commissioner. As such, all of the coercive powers conferred on the Commissioner are also conferred on the Whistleblower Protection Commissioner. The committee's comments below in relation to the Commissioner therefore apply equally to the powers of the Whistleblower Protection Commissioner.

1.17 The collection, storing and use of a person's private and confidential information under the Commission's proposed coercive evidence gathering powers engages and limits the right to privacy.^[25] More generally, investigation of, and reporting on, individuals may impact on the right to privacy and reputation of these individuals. The right to privacy and reputation is also engaged where a critical finding is made without the person against whom the finding is made first having the opportunity to respond.

1.18 The right to privacy protects against arbitrary and unlawful interference with an individual's privacy and reputation.^[26] Limitations on this right will be permissible where they pursue a legitimate objective, are rationally connected to that objective and area a proportionate means of achieving that objective.

1.19 The statements of compatibility note that the measures engage and limit the right to privacy but state that safeguards incorporated in the bills mean that the right to privacy has been permissibly limited.^[27] The statements of compatibility identify the objective of the bills as being to 'prevent, investigate, expose and address corruption issues involving or affecting Commonwealth public administration.'^[28] This appears likely to be a legitimate objective for the purposes of international human rights law. Powers to enable the Commissioner to investigate particular matters, collect evidence and report on its findings would also appear to be rationally connected to this objective.

1.20 However, in order to be a proportionate limitation on the right to privacy, measures that permit the collection and disclosure of personal information need to be sufficiently circumscribed to ensure that they are only as extensive as is strictly necessary to achieve their objective. In this instance, the measures in the bills allow for broad powers to conduct investigations and broad inquiry powers and it is unclear whether the safeguards in place are adequate.

1.21 The bills would permit the Commission to investigate 'corrupt conduct', which is defined broadly to include a broad range of conduct by public officials as well as conduct by any person who could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by the Parliament, a Commonwealth agency or public officials.^[29] It also extends to conduct that occurred up to 10 years before the commencement of the bills.^[30] The broad range of conduct that is covered, as well as its retrospective application, is relevant to the proportionality of the measure. The statements of compatibility do not explain why it is necessary for the scope of the powers to extend to investigating conduct that occurred in the past.

1.22 In addition, clause 145 provides that the exercise of powers of search and arrest can be conferred on 'a staff member' of the Commission, if the Commissioner consider they have suitable qualifications or experience. The explanatory memorandum notes that it is essential that authorised officers are 'experienced, diligent and trustworthy' because they will be exercising powers of search and arrest.^[31] However, it does not explain why it is necessary or appropriate to allow these powers to be exercised by persons who are not police officers, nor does it explain why it is not possible to specify what constitutes 'suitable qualifications or experience' in the bill, rather than leaving these matters to the discretion of the Commissioner.

1.23 The right to reputation is also engaged where a critical finding is made without the person against whom the finding is made first having the opportunity to respond. The statements of compatibility note that the 'right to due process and procedural fairness is maintained in this bill to ensure that no opinions or findings that are critical of a person or agency are publicly released unless they have been given an opportunity to appear and make submissions to the Commission'.^[32] However, as noted above, and per subclause 62(2), there are circumstances in which the Commissioner does not have to provide a person with an opportunity to be heard. As such, it appears that the Commissioner would have the ability to make findings critical of a person without the person first having the opportunity to respond, which raises questions as to whether the limitation on a person's right to reputation is proportionate.

1.24 The committee notes that the bills would provide the proposed National Integrity Commission with broad coercive evidence gathering powers, which limits the right to privacy and reputation. In order to assess whether any limitation on this right is proportionate, the committee seeks the legislation proponents' advice as to:

1.25 Requiring a person to answer questions, provide information or produce documents, even if it may incriminate them, engages and limits the right not to incriminate oneself. The specific guarantees under international human rights law of the right to a fair trial in relation to a criminal charge include the right not to incriminate oneself.^[33] The right not to incriminate oneself may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate way of achieving that objective.

self-incrimination is limited to achieve the legitimate objective of ensuring 'that the public interest is served by not having crucial and relevant material relating to corruption withheld'.^[34] The aim of serving the public interest by investigating corruption in public administration is likely to be a legitimate objective for the purposes of international human rights law. Partially removing the privilege against self-incrimination and therefore allowing access to more material in an investigation is likely to be rationally connected to (that is, effective to achieve) this objective.

1.27 In relation to the proportionality of the measure, the existence of immunities is one relevant factor in determining whether such measures impose a proportionate limitation on the right not to incriminate oneself. Use and derivative use immunities prevent compulsorily disclosed information (or anything obtained as an indirect consequence of making a compulsory disclosure) from being used in evidence against a witness. As noted, a partial 'use immunity' would be provided here to persons compelled to provide self-incriminating information,^[35] but no 'derivative use immunity' would be provided to prevent information or evidence indirectly obtained from being used in criminal proceedings against the person. While the inclusion of both use and derivative use immunities is relevant to an assessment of the proportionality of any measure that limits the right not to incriminate oneself, they are not the only factors that may be relevant to whether the limitation is the least rights restrictive approach to achieving a legitimate objective. The committee has previously raised concerns as to the compatibility of substantially similar measures in previous commission of inquiry bills with the right not to incriminate oneself.^[36]

1.28 The committee notes that the bills seek to abrogate the privilege against self-incrimination and therefore limit the right to a fair hearing.

1.29 The committee seeks the legislation proponents' advice as to why subclauses 79(3) and 102(4) do not include a 'derivative use immunity', to ensure information, documents or things obtained indirectly as a result of compelling a person to give evidence to the Commission, are not admissible in evidence against them.

1.30 Paragraph 93(1)(d) of the bills provide that it would be a contempt of the Commission to knowingly insult, disturb or use insulting language towards the commissioner while the commissioner is exercising their powers. Paragraph 93(1)(e) provides that a person would commit a contempt if they knowingly create a disturbance in or near a place where a hearing is being held for the purpose of investigating a corruption issue or conducting a public inquiry.

1.31 Clause 96 of the bills provides that a person may be detained by a constable or 'authorised officer' for the purposes of bringing them before the relevant court for the hearing of an application to deal with contempt.^[37] The court may impose a condition on release including, for example, that they surrender any travel document or passport.^[38]

1.32 Prohibiting insulting language or communication, or the wilful disturbance or disruption of a hearing of the Commission, engages and may limit the right to freedom of expression and the right to freedom of assembly. The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of an individual's choice.^[39] The right to freedom of assembly protects the right of individuals and groups to meet and engage in peaceful protest and other forms of collective activity in public.^[40] These rights may be subject to permissible limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals and the limitations must be rationally connected and proportionate to such objectives.

1.33 The statements of compatibility do not address whether these rights are engaged or permissibly limited by the measures. While the protection of the Commission's office and holding of hearings may be a legitimate objective for the purposes of the international law, it is not clear whether the terms 'insults, disturbs or uses insulting language' towards the commissioner are drawn so broadly that they may limit legitimate criticism of, or objection to, the Commission and its activities. The committee previously raised these concerns in relation to the 2017 version of these bills,^[41] and in relation to such powers in the case of Commissions of inquiry and Royal Commissions.^[42]

1.34 The committee notes that clause 93, in making it a contempt of the Commission for a person to: insult the National Integrity Commissioner; or create a disturbance in or near a place where a commission hearing is being held, limits the rights to freedom of expression and assembly.

1.35 The statements of compatibility do not address these rights, and as such, the committee seeks the legislation proponents' advice as to the compatibility of clause 93 with the rights to freedom of expression and assembly,^[43] in particular:

1.36 Empowering the Commissioner to authorise the detention of a witness, without requiring an application to a court, engages and limits the right to liberty. This right, which prohibits arbitrary detention, requires that the State should not deprive a person of their liberty except in accordance with law. The notion of 'arbitrariness' here includes elements of inappropriateness, injustice and lack of predictability.^[44]

1.37 The statements of compatibility do not acknowledge that the right to liberty is engaged and, consequently, provide no assessment of whether the limitation is permissible.

1.38 The committee notes that clause 96, in empowering the National Integrity Commissioner to direct the detention of a witness who the Commissioner considers is in contempt of the Commission, limits the right to liberty.

1.39 The statements of compatibility do not address this right, and as such, the committee seeks the legislation proponents' advice as to the compatibility of clause 96 with the right to liberty,^[45] in particular:

1.40 Under clause 103 of the bills, the Commissioner may apply to a judge of the Federal Court for an order that a person deliver their passport to the Commissioner in certain circumstances. These include where a person has appeared at, or been summonsed to attend a hearing, and there are reasonable grounds to believe that the person may be able to give evidence or produce documents or things relevant to the inquiry, and there are reasonable grounds for suspecting that the person has a passport and intends to leave Australia.^[46]

1.41 The right to freedom of movement includes the right to leave a country.^[47] As such, where a person is required to surrender their passport this engages and limits the right to freedom of movement. The right to leave a country can permissibly be limited, including where it is rationally connected and proportionate to achieve the legitimate objectives of protecting the rights and freedoms of others, national security, public health or morals, and public order.

1.42 However, the statements of compatibility do not address the engagement of this right, and so no assessment is provided as to whether the measures constitute a permissible limitation. The committee notes that clause 103 would apply to a person who has already appeared at the hearing and who is not subject to a summons to appear, so long as the Commissioner has reasonable grounds for believing they may be able to give further evidence relevant to the investigation or public inquiry. This could potentially restrict such a person from leaving Australia for an indefinite period of time pending completion of the Commission's investigation or public inquiry.

1.43 The committee notes that clause 103, in empowering the National Integrity Commissioner to apply to a court for an order that a witness surrender their passport, limits the right to freedom of movement.

1.44 The statements of compatibility do not address this right, and as such, the committee seeks the legislation proponents' advice as to the compatibility of clause 103 with the right to freedom of movement,^[48] in particular:

1.45 Clause 274 seeks to confer immunity from civil proceedings in the following instances:

1.46 Furthermore, under clause 274(3), if information, evidence, a document or thing has been given or produced to the Commissioner, a person is not liable 'to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the information or evidence was given or the document or thing was produced'.

1.47 Giving immunity from civil liability to persons means others are not able to bring civil actions to enforce legal rights, which may engage the right to an effective remedy.^[49] This right requires state parties to establish appropriate judicial and administrative mechanisms for addressing claims. While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), state parties must comply with the fundamental obligation to provide a remedy that is effective.^[50]

1.48 The statements of compatibility do not identify that this right is engaged, and so no assessment of its engagement is provided.

1.49 The committee notes that clause 274, in conferring immunity from civil liability on certain persons, may limit the right to an effective remedy.

1.50 The statements of compatibility do not address this right, and as such, the committee seeks the legislation proponents' advice as to whether clause 274 limits the right to an effective remedy, in particular whether there are any other mechanisms by which a person whose rights are violated may seek a remedy.

[3] See the committee's previous analysis of Commissions of inquiry and Royal Commissions: Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018) pp. 2-10; Report 7 of 2018 (14 August 2018) pp. 91-110; Report 11 of 2017 (17 October 2017) pp. 49-53; Report 4 of 2017 (9 May 2017) pp. 28-34, Report 6 of 2017 (20 June 2017) pp. 35-49; Report 4 of 2017 (9 May 2017) pp. 42-45; Report 4 of 2017 (9 May 2017) pp. 66-69; Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 14-18; Thirty-eighth report of the 44th Parliament (3 May 2016) pp. 21-26; Third Report of 2013 (13 March 2013) pp. 42-48, Seventh Report of 2013 (5 June 2013) pp. 91-92.

[4] Statement of compatibility (SOC) of the 2018 bill, p. 88, and the 2019 bill, p. 78. The statements of compatibility in relation to each bill are identical. For ease of referencing, consequent references will be made only to the page numbers of the statement of compatibility accompanying the 2018 bill.

[15] Clause 130 of the bills would permit the authorised officer executing a search warrant to apply for an order requiring a specified person to assist with access to a computer or computer system in some circumstances.

[16] Clauses 64, 70 and 233 of the bills. The Commission would also be required to produce an annual report under clause 232 of the bills.

[18] Subclause 130(3) of the bills, relating to a failure to comply with an order to assist with access to a computer or computer system.

[25] The committee has previously raised concerns as to the compatibility of identical measures with the right to privacy when it first considered the 2018 (No. 2) Bill in Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 136-145.

[36] See, for example, Parliamentary Joint Committee on Human Rights Report 12 of 2017 (28 November 2017) p. 95; Report 7 of 2018 (14 August 2018) pp. 92-96; Report 11 of 2017 (17 October 2017) pp. 49-50; Report 6 of 2017 (20 June 2017) pp. 36-37; Report 4 of 2017 (9 May 2017) pp. 42-43; Report 4 of 2017 (9 May 2017) pp. 66-67.

[37] 'Authorised officer' is defined in clauses 8 and 145 of the bills to mean 'a staff member of the Commission whom the National Integrity Commission considers has suitable qualifications or experience' or a member of the Australian Federal Police. The bills do not explain what qualifications or experience would be necessary for such appointment.

[43] The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

[45] The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

[48] The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

[50] See UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4) (2001) [14].

Australian Parliamentary Joint Committee on Human Rights

National Integrity Commission Bill 2018 (No 2); National Integrity Commission Bill 2019 [2019] AUPJCHR 76 (17 September 2019)