National Integrity Commission Bill 2017 [2017] AUSStaCSBSD 381 (15 November 2017)

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Purpose	This bill seeks to establish a National Integrity Commission for: • the investigation and prevention of misconduct and corruption in all Commonwealth departments, agencies, federal parliamentarians and their staff; • the investigation and prevention of corruption in the Australian Federal Police and the Australian Crimes Commission; and • providing independent advice to Ministers and parliamentarians on conduct, ethics and matters of proprietary
Sponsor	Mr Adam Bandt MP
Introduced	House of Representatives on 23 October 2017
Scrutiny principle	Standing Order 24(1)(a)(i)

Fair hearing^[69]

1.97 The bill provides that a National Integrity Commissioner (Commissioner) may conduct an investigation into whether a public official has engaged or may engage in corrupt conduct. Clause 33 provides that after completing an investigation the Commissioner must prepare a report of the investigation. Clause 31 provides that the Commissioner must not disclose findings or opinions critical of an agency or a person in a report, unless the Commissioner has first given the head of the agency or the person an opportunity to be heard.

1.98 However, subclause 31(2) states that a hearing is not required if the Commissioner is satisfied that a person:

1.99 In effect, in particular circumstances the bill attempts to exclude an obligation to give a person a fair hearing prior to the completion of a report. Yet subclause 33(3) specifically provides that a report may recommend that a person's employment be terminated. This raises questions as to whether this provision unduly trespasses on a personal right, given that a fair opportunity to be heard is thought to be a fundamental common law right.^[70]

1.100 The explanatory memorandum does not justify the exclusion of a fair hearing, but merely repeats the terms of the bill.^[71] The committee notes that although the Commissioner may decide to exclude from its report 'sensitive information' where it is desirable in the circumstances^[72] there is no requirement to do so in relation to critical findings or opinions which are contained in the report in relation to persons who have not been afforded a fair hearing. In addition, although sensitive information which is excluded from the report must be included in a supplementary report (which sets out the information and the reasons for excluding it), only the primary report must be tabled in Parliament.^[73] However, both the report and any supplementary report must be given to the Prime Minister.

1.101 Given the capacity of findings and opinions mentioned in subclause 31(2) to adversely affect a person's reputation^[74] and the characterisation of the right to be heard as a fundamental common law right, the bill may, without further clarification, give rise to considerable interpretive difficulties in the courts. For example, it may be that a court could imply a right to be heard prior to the Prime Minister tabling a report in Parliament in relation to any critical findings or opinions that had not been disclosed pursuant to subclause 31(2) and which was not excluded from the report as 'sensitive' information.

1.102 The committee accepts that the need to preserve the efficacy of any continuing or future investigations in relation to corruption is clearly a legitimate public interest, but it is unclear whether there are sufficient protections in place to protect an individual who is not afforded a right to be heard.

1.103 In addition, paragraph 31(7)(b) provides that a person against whom the Commissioner intends to make a critical finding or opinion, may appear before the Commissioner in person or may, with the Commissioner's approval, be represented by another person. This therefore gives the Commissioner the power to refuse to approve that a person may be represented by another person, including their lawyer. Given the nature of the interests and rights at stake and the potential complexity of the issues which may be raised, there may be circumstances where a fair hearing may be compromised if a person is refused permission to be represented.

Legal professional privilege^[75]

1.105 Clause 43 provides that, for the purposes of investigating a corruption issue, the Commissioner may request that a person give specified information or produce specified documents or things. Subclause 43(5) states that for the purposes of clauses 45 to 48, the power to request or require a person to produce information and documents includes the power to request or require the production of materials that are subject to legal professional privilege. Although clauses 46 and 47 indicate a person may refuse or fail to provide information on the ground of legal professional privilege, there are a number of limitations and the Commissioner may, after considering materials over which privilege has been claimed, determine whether to accept or reject the claim. In relation to the production of a document or thing, a person may refuse a request if a court has found the document or thing to be subject to legal professional privilege.^[76] If the Commissioner accepts the claim of privilege they must 'disregard' the material for the purposes of any report or decision he or she makes.^[77] However, given that the Commissioner would have received the material by this point, it is unclear how well this prohibition in relation to any decision would work in practice. Similar issues arise in relation to clauses 64, 65 and 66.

1.106 The committee has long taken the view that legal professional privilege is a fundamental principle of the common law, and will closely examine legislation which removes or diminishes this right. The explanatory memorandum is silent on the extent to which the legislation is intended to modify the applicable common law principles and the justification for these modifications.^[78]

1.107 The committee requests the Member's justification as to why the bill seeks to limit the application of legal professional privilege.

Strict liability offences
Reverse evidential burden of proof^[79]

1.108 Clause 48 creates two offences for a person to refuse or fail to comply with a request to produce documents or give information if the Commissioner has decided to reject a claim that the information or document is subject to legal professional privilege. The offences are punishable by a fine of $1000 or imprisonment for 6 months. The offences are stated to be subject to strict liability.^[80] Similar issues arise in relation to clause 66, with subclause 66(3) attaching strict liability to the relevant offences, which are also punishable by a fine of $1000 or imprisonment for 6 months. The explanatory memorandum provides no justification as to why the offences are subject to strict liability.

1.109 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[81]

1.110 In addition, the Guide to Framing Commonwealth Offences states that the application of strict liability is only considered appropriate where the offence is not punishable by imprisonment and only punishable by a fine of up to 60 penalty units for an individual.^[82] In this instance, the bill proposes applying strict liability to offences that are subject to up to 6 months imprisonment. The committee reiterates its long-standing scrutiny view that it is inappropriate to apply strict liability in circumstances where a period of imprisonment may be imposed.

1.111 In addition, subclauses 48(4) and (6) and subclauses 66(4) and (6) also introduce a number of exceptions (offence-specific defences) to these strict liability offences. 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.

1.112 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.

1.113 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 clauses 48 and 66 have not been addressed in the explanatory materials.

1.114 As the explanatory materials do not address these issues, the committee requests the Member's justification:

1.115 The committee's consideration of the appropriateness of a provision which imposes strict liability or reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[83]

Privilege against self-incrimination^[84]

self-incrimination is abrogated in relation to requests for information, documents or things made by the Commissioner when investigating a corruption issue, or from requirements to answer a question or produce a document or thing when summoned to attend a hearing. The privilege is not completely abrogated as it is subject to a 'use immunity', which means that self-incriminatory disclosures cannot be used against the person who makes the disclosure in criminal proceedings or other proceedings for the imposition or recovery of a penalty. However, this use immunity only applies if a person, prior to producing information or documents or things, claims that doing so may tend to incriminate them or expose them to a penalty. The use immunity is stated as operating only as a 'direct' use immunity (i.e. applying in relation to information, documents or things provided as a result of clause 49) and does not amount to a 'derivative' use immunity, which would prevent the use of the compelled information in the gathering of other evidence against the person. In addition, subclause 49(4) sets out a number of proceedings in which the use immunity will not be available, including a number of criminal proceedings and, in the case of a Commonwealth employee, disciplinary proceedings.

1.117 The explanatory memorandum states that the abrogation of the privilege against self-incrimination, is necessary so as to ensure that the Commissioner can be given access to information, documents and things relevant to an investigation into a corruption issue. It also states that the inclusion of a use immunity ensures that a person's compliance with a request for information, documents or things under clause 43 cannot be used against them in criminal proceedings or proceedings for the recovery of a penalty, except in those proceedings specified in subclause 49(4).^[85]

1.118 The committee accepts that the privilege against self-incrimination may be overridden where there is a compelling justification for doing so. In general, however, the committee considers that any justification for abrogating the privilege will be more likely to be considered appropriate if accompanied by both a use and derivative use immunity (providing that the information or documents produced or answers given, 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). In this case, the committee notes that the bill includes a use immunity but not a derivative use immunity (meaning anything obtained as a consequence of the requirement to produce a document or answer a question can be used against the person in criminal proceedings). In addition, a person is required to, before giving the information, documents or things, claim that doing so may incriminate them. This has the potential to mean the use immunity could become unavailable simply because a person has not had adequate legal advice prior to producing the information, documents or things and therefore was not aware of the need to make a claim of self-incrimination prior to providing the information.

1.119 To assist its consideration of whether the proposed abrogation of the privilege against self-incrimination is justified, the committee requests the Member's advice on the following matters, with particular reference to the matters outlined in the Guide to Framing Commonwealth Offences:^[86]

Search and entry powers^[87]

1.120 Clause 71 gives an 'authorised officer' the authority to execute an arrest warrant and, if the officer believes on reasonable grounds that a person is on any premises, to break and enter into those premises. Authorised officers may also apply for search warrants (including ordinary and frisk searches of the person) and carry out such searches.^[88] As set out in clause 110, the National Integrity Commissioner may appoint a person to be an authorised officer if they are either a staff member of the National Integrity Commission whom the Commissioner considers has suitable qualifications or experience, or a member of the Australian Federal Police (AFP).

1.121 Although it is possible to identify circumstances in which an appropriate person may not be a current member of the AFP (for example, if they were a former member or a member of a State or Territory police force) the committee is concerned that 'police powers' such as the powers of arrest and the power to conduct personal searches may be conducted by persons other than sworn police officers. The explanatory memorandum notes that it is essential that authorised officers are 'experienced, diligent and trustworthy' because they will be given powers to arrest and to apply for and execute search warrants.^[89] However, the explanatory memorandum does not explain why it is appropriate to allow these powers to be exercised by persons other than police officers, nor does it explain why it is not possible to specify what constitutes 'suitable qualifications or experience' in the bill, rather than this being left to the discretion of the Commissioner.

1.122 Clause 78 also sets out conditions under which an authorised officer may apply for a number of different search warrants. Subclause 78(4) seeks to allow an authorised officer to apply for a warrant to carry out 'an ordinary search or a frisk search of a person' if they have reasonable grounds for suspecting the person possesses or will possess in the next 72 hours any evidential material and for believing the material might be concealed, lost, mutilated or destroyed if the person was served with a summons.

1.123 The committee takes the view that any new powers to search persons require strong justification, a position that is also taken by the Guide to Framing Commonwealth Offences.^[90] While there may be circumstances in which the granting of new powers to search persons can be justified, the committee expects that the reasons for any such proposal would be addressed in detail in the explanatory memorandum. In this instance, the explanatory memorandum provides no justification as to the need to provide personal search powers to authorised officers.

1.124 The committee considers it may be appropriate to amend the bill to limit the exercise of search and arrest powers to police officers, or, at a minimum, to include greater legislative guidance on what constitutes 'suitable qualifications or experience' with respect to appointing a person as an authorised officer, and seeks the Member's advice in relation to this.

1.125 The committee also requests the Member's justification for providing authorised officers with the power to apply for a warrant to carry out an ordinary or frisk search of a person, with reference to the principles set out in the Guide to Framing Commonwealth Offences.^[91]

[69] Clause 31. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

[70] See eg, Saeed v Minister for Immigration and Citizenship [2010] HCA 23 [14-15].

[75] Clauses 43 and 45–48 and clauses64-66. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.

[79] Clauses 48 and 66. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.

[81] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

[82] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.

[83] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25 and 50-52.

[84] Clauses 49 and 67. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

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

[87] Clauses 71. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.

[90] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 102–3.

[91] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 102–3.

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