Prime Minister and Cabinet Legislation Amendment (2017 Measures No 1) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 207 (14 June 2017)

• Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017
• Reversal of evidential burden of proof 74
• Privilege against self-incrimination77
• Significant penalties82

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Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017

Purpose	This bill seeks to amend various Acts administered by the Prime Minister to: • update outdated provisions; • repeal redundant Acts; • align annual reporting requirements of the Auditor-General with his or her responsibility to the Parliament; and • amend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
Bill status	Before House of Representatives
Scrutiny principle	Standing Order 24(1)(a)(i)

2.195 The committee dealt with this bill in Scrutiny Digest No. 5 of 2017. The Assistant Minister responded to the committee's comments in a letter dated 30 May 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Assistant Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 1.

Reversal of evidential burden of proof ^[74]

Initial scrutiny – extract

2.196 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.

2.197 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.

2.198 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.

2.199 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.

2.200 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.^[75]

Assistant Minister's response

2.201 The Assistant Minister advised:

The Committee requests advice 'as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof)' in [connection with the proposed defences to the offence of refusing or failing to give information or a statement in writing pursuant to a notice to do so issued by a Commissioner]. The Committee notes that its 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, Infringement Notices and Enforcement Powers'.
To assist with understanding the provision questioned by the Committee, outlined below is a description of how the defence provisions operate in the context of the Bill.
Item 2 of Schedule 5 of the Bill proposes to amend the Royal Commissions Act 1902 to give a Commissioner a new power to issue a written notice requiring a person to give information or a statement in writing. Item 11 of Schedule 5 of the Bill makes it an offence for a person to refuse or fail to comply with that notice. That item also makes provision for certain defences to that offence, namely, where a person has a 'reasonable excuse' (proposed subsection 3(6B)) or where the person asserts that the requested information or statement is not relevant to a Commission's inquiry (proposed subsection 3(6C)).
The Bill adopts existing policy in subsection 13.3(3) of the Criminal Code Act 1995 which provides that 'a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter'.
In terms of the 'evidential burden', through subsection 13.3(6) of the Criminal Code, a defendant relying on the proposed defences in the Bill needs to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. Where that evidential burden is discharged by the defendant the prosecution then has the legal burden of disproving that matter (i.e. beyond reasonable doubt) (subsection 13.3(2) of the Criminal Code).
The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides that an 'offence-specific defence' is a defence that 'reverse[s] the fundamental principle of criminal law that the prosecution must prove every element of the offence' and that a matter should only be included in an offence-specific defence where:
- it is peculiarly within the knowledge of the defendant;
- it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter [see paragraph 4.3.1 of the Guide].
Where a person seeks to rely on the proposed defence of 'reasonable excuse' to justify not giving information or a statement in writing as requested by a Commissioner, the defendant needs to bring that excuse to the attention of the prosecution (for example, that the information or statement has not been given because the information is subject to legal professional privilege). The factual circumstances to support the existence of the excuse (or the defence) will be known to the defendant (eg that the information being requested is or might be privileged). It is going to be significantly more difficult and costly for the prosecution to adduce evidence that suggests the information or statement requested is not privileged, than for the defendant to adduce evidence to support the privilege claim.
Similarly, if a defendant claims that the information required to be given to a Commissioner is not relevant to the Commission's inquiries, the factual circumstances to support the existence of that excuse ( or the defence) is going to be within the knowledge of the defendant.
The approach in the Bill for the offence-specific defences is consistent with other offences for failure to comply with summonses in the Royal Commissions Act (see e.g. subsections 3(1B), (2B), (3), (5) (6)).

Committee comment

2.202 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice that where a defendant seeks to rely on the proposed defence of 'reasonable excuse', he or she will need to bring that excuse to the attention of the prosecution and the factual circumstances to support the existence of the excuse will be known to the defendant and it would be significantly more difficult and costly for the prosecution to adduce evidence. The committee also notes the Assistant Minister's advice that if the defendant claims that the information required to be given is not relevant to the Commission's inquiries, the factual circumstances to support the existence of that excuse is going to be within the knowledge of the defendant.

2.203 The committee notes that the Guide to Framing Commonwealth Offences^[76] provides that the matters must be 'peculiarly' within the knowledge of the defendant, rather than just within the defendant's knowledge. However, the committee considers it likely in these instances that the matters required to be established for these defences will often be peculiarly within the defendant's knowledge.

2.204 The committee requests that the key information provided by the Assistant Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.205 In light of the information provided, the committee makes no further comment on this matter.

Privilege against self-incrimination^[77]

Initial scrutiny – extract

2.206 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.

2.207 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.^[78] 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'.^[79]

2.208 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).

2.209 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.

2.210 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'.^[80] 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.

2.211 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.^[81]

Assistant Minister's response

2.212 The Assistant Minister advised:

The Committee requests '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'.
Item 2 of Schedule 5 of the Bill inserts new subsection 2(3C) into the Royal Commissions Act to give a member of a Royal Commission the power to issue a written notice requiring a person to give information or a statement in writing to the Commission. It is an offence for a person to refuse or fail to comply with that notice. Further, new subsection 6(1A) provides that it is not a reasonable excuse for a person to fail comply with the notice on the ground that the information or statement might tend to incriminate the person or make the personal liable to a penalty.
The Guide to Framing Commonwealth Offences provides that 'the privilege against self-incrimination may be overridden by legislation where there is clear justification for doing so' and 'if the privilege against
self-incrimination is overridden; the use of incriminating evidence should be constrained'.
As explained in the Explanatory Memorandum of the Bill, the justification for a partial abrogation of the privilege against self-incrimination is to support a Commission's function to inquire into, and report on, matters of public importance. In doing so, that approach gives weight to the public benefit in equipping Royal Commissions with appropriate investigative powers. The abrogation of the privilege against self-incrimination is not absolute and there are limits and safeguards on the abrogation.
On safeguards, the privilege against self-incrimination still applies where the giving of information or a statement might tend to incriminate the person in relation to an offence, and the person has been charged with the offence, and the charge has not been finally dealt with by a court (see amendments to sections 6A(3) and (4) of the Royal Commissions Act as proposed by items 20-25 of Schedule 5 of the Bill). Furthermore, if incriminating evidence is obtained by a Royal Commission, it is proposed that the 'use' immunity in section 6DD of the Royal Commissions Act apply so that any information or statement given by the person is not admissible in evidence against that person in any civil or criminal proceedings.
It is also acknowledged that a Commissioner may communicate information or evidence that relates to a contravention of the law to certain office holders such as the police or the Director of Public Prosecutions where the Commissioner considers it appropriate to do so (section 6P). It is not proposed to introduce a 'derivative use' immunity to prevent any incriminating evidence being used to gather other evidence against the person because it would unreasonably hinder the ability of law enforcement agencies to investigate and prosecute matters reported on by a Royal Commission.
The approach in the Bill to partially abrogate the privilege against self-incrimination, and not to give a 'derivative use' immunity for a person required to give information or a written statement to a Commission, is consistent with the approach in the Royal Commissions Act for a person who is summonsed to appear or to produce documents (see e.g. sections 6A and 6P).

Committee comment

2.213 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice that the justification for abrogating the privilege against self-incrimination is to support a Commission's function to inquire into and report on matters of public importance and so equips Royal Commissions with appropriate investigative powers. The committee also notes the Assistant Minister's advice that it is not proposed to introduce a derivative use immunity to prevent any incriminating evidence being used to gather other evidence against the person 'because it would unreasonably hinder the ability of law enforcement agencies to investigate and prosecute matters reported on by a Royal Commission'.

2.214 The committee reiterates that abrogating the privilege against self-incrimination represents a serious loss of personal liberty. In considering whether it is appropriate to abrogate the privilege, the committee will consider whether the public benefit in doing so significantly outweighs the loss to personal liberty and 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).

2.215 In this case while a use immunity is included by the amendments in item 28, 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. The Assistant Minister's advice does not suggest that providing such immunity would undermine the Commission's investigatory functions. Rather, it states that it would unreasonably hinder law enforcement agencies investigation and prosecution of matters reported on by a Royal Commission, but provides no reasons for that conclusion.

2.216 In light of the information provided to the committee, the committee has scrutiny concerns about the abrogation of the privilege against self-incrimination (particularly without the inclusion of a derivative use immunity). The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of abrogating the privilege against self-incrimination.

Significant penalties^[82]

Initial scrutiny – extract

2.217 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:

• failure to attend as a witness before a Royal Commission, or to attend from day to day;^[83]

• failure of a witness or a person served with a notice to produce a document or other thing;^[84]

• failure of a witness to be sworn or to make an affirmation;^[85]

• failure of a witness to answer any question relevant to the inquiry.^[86]

2.218 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.^[87] No further explanation is given for the substantial increase in penalties for these offences.

2.219 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]'.^[88]

2.220 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.^[89] 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.^[90]

2.221 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,^[91] 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.^[92] 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.^[93]

2.222 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'.^[94] 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.^[95]

2.223 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.

2.224 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).

Assistant Minister's response

2.225 The Assistant Minister advised:

The Committee notes that it is 'not apparent to the Committee that increasing the penalty [from 6 months imprisonment or $1000, or both] to two years' imprisonment (without the option of a fine) for a failure to attend as a witness, produce documents or things, be sworn 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.
The Committee therefore seeks '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 the offences relating to Royal Commissions (noting that the powers under the Royal Commissions Act could also apply to any person in Australia relating to any matter for which the executive has established a Royal Commission).
In relation to the Committee's comment that the proposed amendments to increase the penalties for certain offences do not give an option of a fine, I refer the Committee to the Explanatory Memorandum for the Bill which explains that section 4B of the Crimes Act 1914 applies so that a court has discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment (see e.g. paragraphs 64 and 67 of the Explanatory Memorandum).
It is acknowledged that the Guide to Framing Commonwealth Offences states that 'if non-compliance with a notice to produce or attend is to be an offence, the maximum penalty for non-compliance should generally be six months' imprisonment and/or a fine of 30 penalty units' (para 9.4.1). The Guide also includes a principle that a penalty should be consistent with penalties for existing offences of a similar kind or of a similar seriousness (para 3.1.2). That latter principle has particular application in this case.
The Bill implements recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption. The Hon John Dyson Heydon AC QC recommended that the Royal Commissions Act be amended 'to increase the penalties for a failure to comply with a summons to attend, a failure to comply with a notice to produce, a failure to be sworn or answer questions, and a failure or refusal to provide documents to at least a maximum penalty of 2 years' imprisonment or a fine of 120 penalty units or both'.
In making that recommendation, Commissioner Hedyon observed that the existing penalty for those offences is 'inadequate', and explained that a penalty of up to 2 years' imprisonment is consistent with other penalties applicable to a failure to comply with notices, such as notices issued by the Australian Security and Investments Commission (section 63 of the Australian Securities and Investments Commission Act 2001). The proposed penalty is also consistent with the Law Enforcement Integrity Commissioner Act 2006 (section 78). Penalties for other similar offences are examined further in Commissioner Heydon's Final Report (see pages 626 and 630 and footnote number 16).

Committee comment

2.226 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice that section 4B of the Crimes Act 1914 would apply so a court has a discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment. The committee also notes the Assistant Minister's advice that the penalty of up to two years imprisonment was chosen because of the recommendation by Commissioner Hedyon and that it is consistent with other penalties applicable to a failure to comply with notices.

2.227 The committee thanks the Assistant Minister for referring the committee to Commissioner Heydon's report in relation to penalties for other similar offences. The committee notes that the report refers to a number of other provisions which empower regulators to exercise compulsory information-gathering powers.^[96] The committee notes in relation to the compulsory examination powers of regulators, only the powers under the Australian Securities and Investments Commission Act 2001 (ASIC Act) provide for up to two years imprisonment.^[97] The other five regulatory regimes listed^[98] provide for penalties between 30 penalty units (without imprisonment) to 6 or 12 months imprisonment for failure to comply with a notice.^[99] Note too that the Ombudsman Act 1976 provides that 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.^[100] In contrast, Commissioner Heydon's report later notes that failure to comply with notices issued by the Australian Crime Commission (now Australian Criminal Intelligence Commission) carries a penalty of up to five years imprisonment or 200 penalty units.^[101] The committee also notes that the Assistant Minister advised that the penalty in the bill is consistent with the Law Enforcement Integrity Commissioner Act 2006 which provides a period of up to two years imprisonment for failure to comply with a notice to give information or to produce a document or thing.

2.228 The committee's review of the legislative provisions in this area indicates that a range of penalties apply in relation to a failure to comply with compulsory requirements to provide information or produce documents or things across the Commonwealth statute book. However, the committee is only aware of three enforcement regimes that allow for a penalty of imprisonment of over 12 months: ASIC, the Australian Criminal Intelligence Commission and the Australian Commission for Law Enforcement Integrity. The committee notes that these contexts appear to be quite different to those of Royal Commissions. ASIC notices apply in a regulatory context and the other two bodies apply in relation to the investigation of serious and organised crime and the investigation of law enforcement agencies and their staff. In contrast, notices issued by a Royal Commission to witnesses to attend to give evidence, produce a document or answer a question, could apply to any person in any context, depending on the subject matter under investigation by the Royal Commission.

2.229 The committee notes that the proposed maximum penalty of two years' imprisonment for non-compliance with a notice for a witness to attend to give evidence, produce a document or answer a question before a Royal Commission is mostly inconsistent with the maximum penalties in other comparable Commonwealth offences. Therefore, from a scrutiny perspective, the proposed significant increase in penalty does not appear to be appropriate in the circumstances, particularly 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.

2.230 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of significantly increasing the maximum period of imprisonment in these circumstances.

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[74] Schedule 5, item 11, subsection 3(6C).

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

[76] Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011.

[77] Schedule 5, items 19-25 and 28.

[78] Explanatory memorandum, p. 19.

[79] Explanatory memorandum, p. 19.

[80] Explanatory memorandum, p. 19.

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

[82] Schedule 5, items 4, 7, 10, 11, 13, 15 and 16.

[83] Subsection 3(1) of the Royal Commissions Act 1902.

[84] Subsections 3(2) and (4) and 6AB(1) and (2) of the Royal Commissions Act 1902.

[85] Section 6 of the Royal Commissions Act 1902.

[86] Section 6 of the Royal Commissions Act 1902.

[87] Explanatory memorandum, p. 15.

[88] 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.

[89] See section 155 of the Competition and Consumer Act 2010.

[90] See sections 160 and 161 of the Competition and Consumer Act 2010.

[91] See section 63(1) of the Australian Securities and Investments Commission Act 2001.

[92] See section 63(3) of the Australian Securities and Investments Commission Act 2001 (relating to contraventions of section 58).

[93] See section 36 of the Ombudsman Act 1976.

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

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

[96] See paragraphs 117 to 129 of chapter 8, volume 5 of the Final Report, Royal Commission into Trade Union Governance and Corruption, 2015.

[97] While the report states that the powers under the Competition and Consumer Act 2010 provide for up to two years imprisonment, the relevant provision of the Act relating to the power to obtain information, documents and evidence currently only provides for up to one year imprisonment (see section 155(6A) of the Competition and Consumer Act 2010).

[98] Namely section 155 of the Competition and Consumer Act 2010 (20 penalty units/12 months imprisonment); section 8E of the Taxation Administration Act 1953 (first offence, 20 penalty units, more than two offences, 50 penalty units/12 months imprisonment); sections 55, 62C, 81 and 115 of the Insurance Act 1973 (3-6 months imprisonment); sections 269 and 270 Superannuation Industry (Supervision) Act 1993 (30 penalty units); section 335(2) Fair Work (Registered Organisations) Act 2009 (30 penalty units).

[99] See paragraphs 117 to 129 of chapter 8, volume 5 of the Final Report, Royal Commission into Trade Union Governance and Corruption, 2015.

[100] See section 36 of the Ombudsman Act 1976.

[101] Sections 21A and 30 of the Australian Crime Commission Act 2002. See footnote 16 on page 627 of chapter 10, volume 5 of the Final Report, Royal Commission into Trade Union Governance and Corruption, 2015.