Prime Minister and Cabinet Legislation Amendment (2017 Measures No 1) Bill 2017 [2017] AUSStaCSBSD 139 (10 May 2017)

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Purpose	This bill seeks to amend various Acts administered by the Prime Minister to: • update outdated provisions; • repeal redundant Acts; • align annual reporting requirements of the Auditor-General with his or her responsibility to the Parliament; and • amend the Royal Commissions Act 1902 to provide Commissioners with the power to require a person to give a written statement and increase penalties for non-compliance
Portfolio	Indigenous Affairs
Introduced	House of Representatives on 30 March 2017

Reversal of evidential burden of proof^[100]

1.128 Proposed subsection 3(6A) makes it an offence, when served with a notice, not to give information or a statement in writing to a Royal Commission. Proposed subsection 3(6C) provides a defence for this offence, stating that it is a defence to a prosecution for this offence if the information or statement was not relevant to the matters into which the Commission was inquiring. The offence carries a maximum penalty of imprisonment for two years.

1.129 Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

1.130 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.131 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The reversals of the evidential burden of proof in proposed subsection 3(6C) have not been addressed in the explanatory materials.

1.132 As the explanatory materials do not address this issue, the committee requests the Minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[101]

Pending the Minister's reply, the committee draws Senators' attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

Privilege against self-incrimination^[102]

1.133 As outlined above, proposed subsection 3(6A) makes it an offence not to give information or a statement in writing to a Royal Commission when served with a notice to do so. Proposed subsection 3(6B) states that this subsection does not apply if a person has a reasonable excuse. Proposed subsection 6A(1A) provides that it is not a reasonable excuse for the purposes of subsection 3(6B) for a natural person to refuse or fail to give information or a statement that the person is required to give under subsection 2(3C) on the ground that giving information or a statement might tend to incriminate the person or make the person liable to a penalty.

1.134 The explanatory memorandum explains that subsection 6A(1A) would override the privilege against self-incrimination for a person required to give information or a statement.^[103] It notes that this is consistent with the abrogation of the privilege in the existing legislative provisions and the abrogation of the privilege 'supports a Commission's function to inquire into and report on matters of public importance'.^[104]

1.135 In addition, item 28 amends existing section 6DD to ensure that a statement or disclosure made by a person in response to a notice by the Commission is not admissible in evidence against the person (except in relation to proceedings for an offence against the Royal Commission Act 1902). This provides a use immunity (but not a derivative use immunity).

1.136 The committee recognises there may be circumstances in which the privilege against self-incrimination can be overridden. However, abrogating the privilege represents a serious loss of personal liberty. In considering whether it is appropriate to abrogate the privilege against self-incrimination, the committee will consider whether the public benefit in doing so significantly outweighs the loss to personal liberty. In determining the appropriateness of abrogating the privilege against self-incrimination the committee also looks to whether the legislation includes a use and derivative use immunity; which provides that the information or documents produced, or anything obtained as a direct or indirect consequence of the production of the information or documents, is not admissible in evidence in most proceedings against the person.

1.137 In this case a use immunity is included by the amendments in item 28 but there is no derivative use immunity. As such, evidence obtained as an indirect result of the person being required to give information or make a statement can be used against that person in criminal proceedings. This is made clear by existing section 6P of the Royal Commissions Act 1902, which provides that where, in the course of inquiring into a matter, a Commission obtains information that relates to the contravention of the law, it may communicate that information to certain persons, including the police and the Director of Public Prosecutions. The explanatory memorandum states that, in this way, 'the evidence cannot be used against the person in any proceeding but may be used to obtain further evidence against the person'.^[105] No explanation is given as to why no derivative use immunity is included in the Act. Generally the committee would expect information to be included explaining whether providing such immunity would significantly undermine investigatory functions. Additionally, limited information is given as to why it is considered necessary to abrogate the privilege against self-incrimination, other than the general statement that this supports the Commission's functions.

1.138 The committee requests the Minister's detailed justification for the proposed abrogation of the privilege against self-incrimination, in particular why no derivative use immunity is provided, by reference to the matters outlined in the Guide to Framing Commonwealth Offences.^[106]

Significant penalties^[107]

1.139 A number of provisions in Schedule 5 of the bill propose to substantially increase the penalties relevant to offences in relation to royal commissions. Currently under the Royal Commissions Act 1902 the following offences are subject to a penalty of up to 6 months imprisonment or a $1000 fine:

1.140 It is proposed that this be amended to a penalty of imprisonment for two years (without the option of the imposition of a fine). The explanatory memorandum states that the purpose of these amendments is to implement recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption.^[112] No further explanation is given for the substantial increase in penalties for these offences.

1.141 The Hon John Dyson Heydon AC QC stated in the Royal Commission into Trade Union Governance and Corruption that there was a marked inadequacy of existing penalties for a number of offences in the Royal Commissions Act 1902. Recommendation 78 recommended that the penalty for the offence be increased to at least a maximum of two years imprisonment or a fine of 120 penalty units or both. The report noted that the reason for selecting two years imprisonment was that 'this is consistent with the penalties available for failure to comply with notices issued by the Australian Securities and Investment Commission [ASIC] and the Australian Competition and Consumer Commission [ACCC]'.^[113]

1.142 However, it is not clear that a significant penalty of up to two years imprisonment for a failure to attend as a witness; produce documents or things; be sworn in; or answer questions, is a comparable penalty to other similar offences. In particular, under the Competition and Consumer Act 2010 it appears that a failure to furnish information or produce documents to the ACCC or appear before the ACCC is subject to imprisonment up to 12 months or a fine not exceeding 20 penalty units.^[114] Additionally, a failure to attend, be sworn or make an affirmation, answer a question or produce a document before the Australian Competition Tribunal is subject to up to 12 months imprisonment or a fine not exceeding 20 penalty units.^[115]

1.143 Additionally, while some offences relating to ASIC's investigation powers subject a person to up to two years imprisonment or 100 penalty units (or both), for a failure to appear for examination, answer a question or produce documents,^[116] other provisions appear to provide for lower penalties. For example, an offence of failing to attend a hearing conducted by ASIC, or to take an oath or an affirmation or answer a question or produce a document at the hearing, is subject to up to three months imprisonment or 10 penalty units.^[117] Similarly, a failure to attend, be sworn or make an affirmation, furnish or publish information, answer a question or produce a document before the Commonwealth Ombudsman is subject to up to three months imprisonment or 10 penalty units.^[118]

1.144 The committee notes that the Guide to Framing Commonwealth Offences states that a penalty 'should be consistent with penalties for existing offences of a similar kind or of a similar seriousness'.^[119] In addition, the Guide provides that a 'notice to produce or attend' provision, being a provision that allows an enforcement or regulatory agency to require a person to produce information or documents, or to appear at a hearing to answer questions, should, if this is to be an offence, generally be subject to six months imprisonment and/or a fine of 30 penalty units.^[120]

1.145 It is therefore not apparent to the committee that increasing the penalty to two years imprisonment (without the option of a fine) for a failure to attend as a witness, produce documents or things, be sworn in or answer questions before a Royal Commission is an appropriate penalty by reference to comparable Commonwealth offences and the requirements in the Guide to Framing Commonwealth Offences.

1.146 The committee therefore seeks the Minister's detailed advice as to what is the level of penalty applicable to all comparable Commonwealth offence provisions relating to a failure of a person to attend or be sworn in or affirmed as a witness, answer questions or produce documents. If such comparable provisions are not subject to two years imprisonment (and without the possibility of a fine), the committee requests the Minister's detailed justification for the proposed increase in penalties in relation to offences relating to royal commissions (noting that the powers under the Royal Commissions Act 1902 could apply to any person in Australia relating to any matter for which the executive has established a Royal Commission).

Pending the Minister's reply, the committee draws Senators' attention to the provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

[101] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[106] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 94–99.

[113] See paragraph 27 of Chapter 10, Reform of the Royal Commissions Act 1902, Volume 5 of the Final Report, Royal Commission into Trade Union Governance and Corruption, 2015.

[119] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 39.

[120] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 89 and 93.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests