National Integrity (Parliamentary Standards) Bill 2018 [2019] AUSStaCSBSD 5 (13 February 2019)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	This bill seeks to create: • statutory codes of conduct for members of each House of Parliament and their staff; • a statutory basis for a parliamentarians' register of interests; • a Parliamentary Integrity Adviser, to provide independent advice and guidance to members and staff; and • a Parliamentary Standards Commissioner, to assist presiding officers, the Ethics and Privileges Committees, the Prime Minister and the National Integrity Commission with assessment, investigation and resolution of breaches of applicable codes of conduct
Sponsor	Ms Cathy McGowan MP
Introduced	House of Representatives on 3 December 2018

Reversal of evidential burden of proof^[19]

1.39 Clauses 35 and 67 of the bill seek to make it an offence for a person who is or was the Parliamentary Integrity Adviser (Integrity Adviser) or the Parliamentary Standards Commissioner (Commissioner) to use or disclose certain kinds of protected information,^[20] in circumstances where the use or disclosure is not authorised or required by the bill. Subclauses 35(2) and 67(2) seek to create exemptions

(offence-specific defences) to the offences in clauses 35 and 67, which provide that the offences do not apply to the extent that the relevant person uses or discloses the information in good faith and in purported compliance with provisions of the bill.

1.40 Clauses 37 and 69 of the bill seek to make it an offence for any other person involved in the administration of the Act to record, use or disclose information relating to an ethics or integrity issue or to an alleged or suspected contravention of a code of conduct. Subclauses 37(2) and 69(2) seek to create exemptions (offence-specific defences) to these offences, which provide that the offences do not apply if the recording, use or disclosure of the relevant information is in the person's performance of functions under the Act, or authorised by the Act or another Act.

1.41 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 the evidential burden in relation to that matter.

1.42 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 evidential 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.

1.43 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 nevertheless expects any reversal of the evidential burden of proof to be justified. In this instance, the explanatory materials provide no justification for the reversals of the evidential burden of proof in the provisions identified at paragraphs [1.39] and [1.40] above, merely restating the operation and effect [21] those provisions.²¹

1.44 In the event that the bill progresses further through the Parliament, the committee may request further information from the legislation proponent.

1.45 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of including offence-specific defences, which reverse the evidential burden of proof, in subclauses 35(2), 37(2), 67(2) and 69(2).

Fair hearing^[22]

1.46 The bill provides that the Commissioner may conduct an inquiry into alleged or suspected contraventions of parliamentary and ministerial codes of conduct. Clauses 46 and 57 provide that, after completing an inquiry, the Commissioner must prepare a report. The report must set out the Commissioner's findings, the evidence and other material on which those findings are based, and any recommendations that the Commissioner thinks fit to make.^[23]

1.47 Clauses 47 and 58 provide that the Commissioner must not include in a report in relation to an investigation of a corruption issue, an opinion or finding that is critical of a person (either expressly or impliedly), unless the Commissioner has first given the person a statement setting out the opinion or finding, and given the person a reasonable opportunity to appear before the Commissioner to make submissions in relation to the opinion or finding. However, subclauses 47(2) and 58(2) provide that a hearing is not required if the Commissioner is satisfied that:

1.48 In effect, subclauses 47(2) and 58(2) attempt to exclude an obligation to give a person the right to be heard prior to the completion of a report. This is despite the fact that subclauses 46(3) and 57(3) expressly provide that a report may recommend taking disciplinary action against a person, or taking action with a view to having a person charged with a criminal offence. The committee notes that the explanatory memorandum provides no justification for limiting the right to a fair hearing. It merely sets out the operation and effect of the relevant provisions.^[24] Additionally, while subclauses 46(4) and 57(4) would allow the Commissioner to exclude sensitive information from a report, they would not require the Commissioner to do so.

1.49 Given the capacity of findings and opinions in an inquiry report to affect a person's reputation,^[25] 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, a court may infer a right to be heard before the Commissioner gives the report to a Privileges Committee or the Prime Minister, or before the report is tabled in Parliament.^[26]

1.50 The committee also notes that, under paragraphs 47(5)(b) and 58(5)(b), a person appearing before the Commissioner to make submissions in relation to an adverse finding or opinion may be represented by another person, but only with the Commissioner's permission. This would appear to give the Commissioner the power to refuse to allow a person to be represented—including by their lawyer. Given the nature of the rights and interests at stake and the potential complexity of the issues that may be raised, the committee considers that there may be circumstances in which a person's right to a fair hearing may be compromised if the Commissioner refuses to allow that person to be represented.

1.51 In the event that the bill progresses further through the Parliament, the committee may request further information from the legislation proponent.

1.52 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of:

Immunity from liability^[27]

1.53 Clause 94 seeks to confer immunity from liability on certain persons for actions taken in the course of exercising powers, or performing functions or duties, in good faith and in accordance with the Act. These persons include the Integrity Adviser, the Commissioner, persons assisting those authorities, and an Assistant Parliamentary Standards Commissioner. Clause 94(3) extends this immunity to the giving of information and evidence, and to the production of documents.

1.54 These immunities would remove any common-law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that, in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve a personal attack on the honesty of the decision maker. As such, the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.55 The committee expects that, if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum provides no explanation for this provision, merely restating the terms of the provision.^[28]

1.56 In the event that the bill progresses further through the Parliament, the committee may request further information from the legislation proponent.

1.57 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of conferring an immunity from liability on a broad range of persons.

Significant matters in delegated legislation^[29]

1.58 Clause 101 seeks to empower the Governor-General to make regulations for the purposes of the bill. Subclause 101(2) seeks to provide that the regulations may require that information or reports that are required to be given under prescribed provisions are also to be given to prescribed persons in specified circumstances. The committee notes that certain reports prepared in accordance with the bill may contain personal information, or contain opinions or findings that may have an adverse effect on a person's reputation.^[30]

1.59 The committee's view is that significant matters, such as the persons to whom reports may be given, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The committee notes in this regard that legislative instruments, made by the executive, are not subject to the level of parliamentary scrutiny inherent in bringing about proposed changes in the form of an amending bill.

1.60 In this instance, the explanatory memorandum provides no justification for leaving the persons to whom reports may be provided to delegated legislation, nor does it provide any examples of the persons to whom it may be necessary to provide a report. It merely restates the operation and effect of the relevant provisions.^[31]

1.61 In the event that the bill progresses further through the Parliament, the committee may request further information from the legislation proponent.

1.62 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving to delegated legislation the persons to whom reports prepared in accordance with the bill may be given.

[19] Subclauses 35(2), 37(2), 67(2) and 69(2). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[20] Clause 35 applies to 'protected Adviser information', defined in clause 31 as information about a person, matter or issue obtained by the Parliamentary Integrity Adviser in the course of exercising powers, performing duties or functions, under or in accordance with Division 2 of Part 4 of the bill. Clause 67 applies to 'protected Commissioner information', defined in clause 63 as information about a person, matter, issue or allegation obtained by the Parliamentary Standards Commissioner in the course of exercising powers, or performing functions or duties, under or in accordance with Division 2 or 3 of Part 5 of the bill.

[22] Subclauses 47(2) and 58(2). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[26] Clause 48 would require the Commissioner to give a report of any inquiry into a contravention of a parliamentary code of conduct to the Privileges Committee of the House to which the report relates. Under clause 51, the Privileges Committee may be required to table the report in both Houses of Parliament. Clause 59 would require the Commissioner to give the Prime Minister the report of any inquiry into a contravention of a ministerial code of conduct. Clause 62 may require the Prime Minister to table the report in both Houses of Parliament.

[27] Clause 94. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[29] Subclause 101(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[30] For example, an inquiry report prepared in accordance with clause 46 or 57 may include sensitive information, and may recommend taking action to initiate disciplinary proceedings or to have a person charged with a criminal offence. Pursuant to clause 7, 'sensitive information' would be defined by the National Integrity Commission Bill 2018, and would include information that could endanger a person's safety, identify a confidential source of information (e.g. an informant), or unreasonably disclose a person's personal affairs.

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