Banking and Financial Services Commission of Inquiry Bill 2017 [2017] AUSStaCSBSD 98 (29 March 2017)

• Banking and Financial Services Commission of Inquiry Bill 2017
• Coercive powers1
• Offence provisions6

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Banking and Financial Services Commission of Inquiry Bill 2017

Purpose	This bill seeks to establish a parliamentary inquiry into the banking and financial services sector that reports to Parliament on particular matters
Sponsor	Senators Peter Whish-Wilson, Pauline Hanson, Derryn Hinch, Jacqui Lambie, Malcolm Roberts and Nick Xenophon
Introduced	Senate on 22 March 2017

Coercive powers^[1]

1.2 This bill seeks to establish a parliamentary commission of inquiry into the banking and financial services sector which would report to Parliament on particular matters. Part 3 of the bill outlines the powers of the proposed Banking and Financial Services Commission of Inquiry. These powers include coercive powers such as:

• the power to summon witnesses and take evidence;

• arrest of witnesses for failing to appear before the inquiry;

• search warrants;

• access to certain material held by the Australian Securities and Investments Commission, the Australian Prudential Regulation Authority and the Reserve Bank of Australia; and

• the power to inspect, retain and copy documents and other things.

1.3 The explanatory materials do not explicitly or separately address the need for the proposed Commission to have each of these significant coercive powers, nor do they address the question of whether or not the common law privilege against self-incrimination is abrogated by subclause 11(4) (which provides that the Commission may require a witness to answer any question).

1.4 The statement of compatibility broadly suggests that 'all of the relevant protections afforded to witnesses in Royal Commission and judicial trials are replicated in the bill'.^[2] Furthermore, it is suggested that:

Evidence that threatens the safety or reputation of witness, exposes the identity of a confidential source, would prejudice a fair trial or an investigation shall not be publicly disclosed. Similarly, the Commission has the power to hold private hearings to ensure the rights of witnesses are protected.^[3]

1.5 The committee notes this information, however no further detail is provided in relation to how all of the relevant protections afforded to witnesses in Royal Commission and judicial trials are actually applied in the bill. In addition, it appears that there are provisions in the Royal Commissions Act 1902 which are not replicated in this bill. For example, while the privilege against self-incrimination is abrogated by section 6A of the Royal Commissions Act 1902, there are limited protections in that Act for witnesses in relation to criminal and other proceedings already commenced. This provision does not appear to be replicated in this bill.

1.6 The committee generally expects that where a bill seeks to confer coercive powers on bodies, the explanatory materials should address the issues discussed in chapters 7–10 of the Guide to Framing Commonwealth Offences.^[4]

1.7 The committee therefore seeks the Senators' advice as to the appropriateness of providing the proposed Parliamentary Commission of Inquiry with significant coercive powers and how all relevant protections afforded to witnesses in Royal Commissions and judicial trials (as stated in the explanatory memorandum) are replicated in the bill. The committee’s consideration of the appropriateness of coercive provisions is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[5]

Pending the Senators' advice, 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.

Offence provisions^[6]

1.8 Part 4 of the bill outlines various offences relating to the conduct of the inquiry. These offences (and the associated penalties)^[7] include:

• unauthorised presence at a hearing or unauthorised publication of evidence (6 months imprisonment);

• failure of a witness to attend or produce documents (6 months imprisonment);^[8]

• refusal to be sworn or given evidence (6 months imprisonment);

• false or misleading evidence (5 years imprisonment);

• destroying documents or other things (2 years imprisonment);

• intimidation or dismissal of witnesses (5 years imprisonment);

• preventing witnesses from attending (12 months imprisonment);

• bribery of a witness (5 years imprisonment);

• fraud on witness (2 years imprisonment); and

• contempt of the Commission (12 months imprisonment).

1.9 The explanatory materials do not explicitly address the reason for the level of penalties imposed for each of the offences, many of which are significant. In addition, some of the offences appear to place an evidential burden of proof on the defendant if they seek to rely on an exception to the offence.^[9]

1.10 The committee generally expects that where a bill includes criminal offence provisions, the explanatory materials should address the issues discussed in chapters 2–4 of the Guide to Framing Commonwealth Offences.^[10]

1.11 The committee therefore seeks the Senators' advice in relation to the appropriateness of the offence provisions in this bill, including the level of penalties and the apparent reversal of the evidential burden of proof. The committee’s consideration of the appropriateness of criminal offence penalties is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[11]

Pending the Senators' advice, 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.

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[1] Clauses 11–15.

[2] Explanatory memorandum, p. 8.

[3] Explanatory memorandum, p. 8.

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

[5] Attorney-General’s Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, chapters 7–10.

[6] Part 4.

[7] See clauses 16–26.

[8] Note that clause 19 provides that where a person commits an offence under clause 17, and the person does or omits to do the same thing at a hearing of the Commission held on another day, each such act or omission constitutes a separate offence.

[9] See subclauses 17(2), 17(4) and 22(3).

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

[11] Attorney-General’s Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, chapters 2–4.