Australian Federal Integrity Commission Bill 2021; Australian Federal Integrity Commission Bill 2021 (No 2) [2021] AUSStaCSBSD 253 (1 December 2021)

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

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Australian Federal Integrity Commission Bill 2021
Australian Federal Integrity Commission Bill 2021 (No. 2)

Purpose	These bills seek to establish an Australian Federal Integrity Commission as an independent public sector anti-corruption commission for the Commonwealth.
Sponsor	Senator Rex Patrick Dr Helen Haines MP [No. 2 Bill]
Introduced	Senate on 20 October 2021 House of Representatives on 25 October 2021 [No. 2 Bill]

1.2 The committee commented on similar bills in Scrutiny Digest 15 of 2018. The committee reiterates a number of its previous scrutiny concerns in relation to these bills as set out below.

Fair hearing^[1]

1.4 Both bills provide that a Federal Integrity Commissioner may conduct an investigation into whether a public official has engaged or may engage in corrupt conduct. Clause 66 provides that after completing an investigation the Federal Integrity Commissioner must prepare a report of the investigation. The report must set out the Federal Integrity Commissioner's findings, the evidence and other material on which those findings are based, any action that the Federal Integrity Commissioner has taken or proposes to take, and any recommendations that the Commissioner sees fit to make.^[2] Clause 64 provides that the Federal Integrity Commissioner must not include in the report an opinion or finding that is critical of a Commonwealth agency or a person unless the Federal Integrity Commissioner has first given the head of the agency or the person an opportunity to be heard.

1.5 However, subclause 64(2) provides that a hearing is not required if the Federal Integrity Commissioner is satisfied that:

1.6 In effect, subclause 64(2) attempts 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 subclause 66(3) expressly provides that a report may recommend terminating a person's employment, taking action against a person with a view to having the person charged with an offence, and initiating disciplinary proceedings. This raises questions as to whether subclause 66(2) unduly trespasses on the right to a fair hearing. 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.^[3]

1.7 The committee also notes that while clause 66 would allow the Federal Integrity Commissioner to exclude 'sensitive information' from a report, it would not require the Federal Integrity Commissioner to do so. Additionally, while sensitive information excluded from a report must be included in a supplementary report, it is only the primary report that must be tabled in Parliament.^[4]

1.8 Given the capacity of findings and opinions mentioned in subclause 64(2) to adversely affect a person's reputation,^[5] 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 Minister tabling a report in Parliament in relation to any critical findings or opinions that had not been disclosed pursuant to subclause 64(2) and which was not excluded from the report as 'sensitive' information.

1.9 The committee also notes that, under paragraph 64(7)(c), a person appearing before the Federal Integrity Commissioner to make submissions in relation to an adverse finding or opinion may be represented by another person, but only with the Federal Integrity Commissioner's approval. This would appear to give the Federal Integrity 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.

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

Coercive powers^[6]

1.11 Clause 76 of both bills seeks to provide that, for the purposes of investigating a corruption issue, the Federal Integrity Commissioner may, by notice in writing, require a person to give information, or produce documents or things, if the Federal Integrity Commissioner has reasonable grounds to suspect that the information, documents or things will be relevant to the investigation of a corruption issue. Clause 81 seeks to make if an offence to fail to comply with a notice, punishable by imprisonment for two years.

1.12 Clause 86 also seeks to provide that the Federal Integrity Commissioner may summon a person to attend a hearing at a time and place specified in the summons, and to give evidence and produce documents or things, if the Federal Integrity Commissioner has reasonable grounds to suspect that the evidence, documents or things will be relevant to the investigation of a corruption issue or the conduct of a public inquiry. Clause 96 seeks to make it an offence to fail to attend a hearing, to answer a question or to produce a document or thing. These offences would be punishable by imprisonment for between 12 months and two years.

1.13 As set out below at [1.27] to [1.35], the bill also provides that a person is not excused from answering a question or producing a document when served with a notice or summoned to attend on the ground it may incriminate the person or expose them to a penalty. This thereby abrogates the common law privilege against self‑incrimination.

1.14 Each bill further proposes to allow the Federal Integrity Commissioner to take action in circumstances where the Federal Integrity Commissioner considers that a person is in contempt of the Australian Federal Integrity Commission (the Commission) in relation to a hearing. Clause 97 provides that a person is in contempt of the Commission if (among other matters) the person fails to attend a hearing as required by a summons, refuses or fails to answer a question, or knowingly gives evidence that is false or misleading in a material particular. Clause 98 provides that, if the Federal Integrity Commissioner is satisfied that a person is in contempt of the Commission in relation to a hearing, the Federal Integrity Commissioner may apply either to the Federal Court or the Supreme Court of the State or Territory in which the hearing is held for the person to be dealt with in relation to the contempt.

1.15 Where a bill seeks to confer coercive powers on persons or bodies, the committee would expect the explanatory materials to provide a sound justification for the conferral of such powers, by reference to principles set out in the Guide to Framing Commonwealth Offences.^[7] In this instance, the explanatory memorandum provides no such justification, merely restating the operation and effect of the relevant provisions.^[8]

1.16 The committee also notes that, under clause 88, a person appearing at a hearing, but not giving evidence, may be represented by a legal practitioner only if the Federal Integrity Commissioner considers it is necessary for that person to be involved in the hearing. 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 Federal Integrity Commissioner refuses to allow that person to be represented. The committee notes that the explanatory memorandum does not explain why this provision is considered necessary and appropriate, nor does it provide examples of the special circumstances which might justify legal representation.

1.17 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of conferring on the Federal Integrity Commissioner broad coercive powers to require persons to give information, answer questions, and produce documents and things.

Arrest and search warrants^[9]

1.18 Clause 108 of the bills seeks to provide that an authorised officer may apply to a judge for a warrant to arrest a person, if the authorised officer believes on reasonable grounds that:

1.19 Clause 109 seeks to provide that, for the purposes of executing an arrest warrant, the authorised officer may (among other matters) break into and enter relevant premises. This power is subject to a number of limitations, including a prohibition on entering premises during night hours, a requirement to inform the person of the reasons for the arrest, and a prohibition on subjecting the arrestee to greater indignity than is reasonable and necessary in the circumstances.

1.20 Proposed Division 3 of Part 6 further provides for that an authorised officer may apply for a number of different kinds of search warrant. These include warrants to search premises and to conduct an ordinary search or a frisk search of a person.^[10] Under such warrants, an authorised officer would be permitted to (among other matters) search premises, vehicles and vessels for evidential material, seize such things as are considered relevant to the investigation, and conduct search and frisk procedures.^[11] These powers are subject to the limitation that a search warrant may not authorise a strip search or a search of a person's body cavities.^[12]

1.21 The committee further notes that the Guide to Framing Commonwealth Offences indicates that any new powers to search persons require a strong justification.^[13] While noting that there may be some circumstances in which the granting of new powers to search persons can be justified, the committee would expect an explanation as to why these powers are considered necessary and appropriate to be included in the explanatory memorandum. In this instance, the explanatory memorandum provides no such explanation, merely restating the operation and effect of the relevant provisions.^[14]

1.22 Clause 125 further provides that, in executing a search warrant, an authorised officer may obtain such assistance, and use such force against persons and things, that is necessary and reasonable in the circumstances. Where a person assisting an authorised officer is also an authorised officer or a police constable, that person would be permitted to use such force against persons and things as is reasonable and necessary in the circumstances. Otherwise, the person assisting would be permitted only to use such force against things (not persons).

1.23 The committee notes that the Guide to Framing Commonwealth Offences states that the inclusion in a bill of any use of force power for the execution of warrants should only be allowed where a need for such powers can be identified. In this regard, it states that a use of force power should be accompanied by an explanation and justification in the explanatory materials, as well as a discussion of proposed accompanying safeguards that the agency intends to implement.^[15] In this instance, the explanatory memorandum states that:

1.24 However, the explanatory memorandum does not appear to explain the circumstances in which it may be necessary to use force (for example, by providing relevant examples). Moreover, it does not appear to discuss any specific safeguards with respect to the use of force.

1.25 The committee further notes that the explanatory memorandum does not explain why it is considered necessary and appropriate for an authorised officer to obtain assistance, nor does it provide any examples of the persons who may be called on to assist or the circumstances in which assistance may be necessary. The committee also notes that neither bill appears to place any limits on the persons who may assist authorised officers in executing powers under a warrant, or impose any requirements as to those persons' qualifications or expertise.

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

Privilege against self-incrimination^[17]

1.27 As outlined above, clause 76 seeks to allow the Federal Integrity Commissioner to give a written notice to any person, requiring that person to give the Federal Integrity Commissioner such information, documents or things as are specified in the notice. Clause 86 seeks to allow the Federal Integrity Commissioner to summon a person to attend a hearing, to give evidence, and to produce such documents or things as are specified in the summons. Subclauses 83(1) and 105(1) provide that a person is not excused from complying with a notice or summons on the grounds that to do so would tend to incriminate that person or expose them to a penalty.

1.28 Subclauses 83(1) and 105(1) would therefore override the common law privilege against self-incrimination, which provides that a person cannot be required to answer questions or produce material which may tend to incriminate them.^[18]

1.29 The committee recognises that there may be certain circumstances in which the privilege against self-incrimination can be overridden. However, abrogating this privilege represents a serious loss of personal liberty. In considering whether it is appropriate to abrogate the common law privilege against self-incrimination, the committee will consider whether the public benefit in doing so significantly outweighs the loss of personal liberty, in light of any relevant information in the explanatory materials.

1.30 In considering whether it is appropriate to abrogate the privilege against self-incrimination, the committee will also consider the extent to which the abrogation is limited by a 'use' or 'derivative use' immunity. A 'use' immunity generally provides that information or documents produced in response to a statutory requirement will not be admissible in evidence against the person that produced it. A 'derivative use' immunity generally provides that anything obtained as a direct or indirect consequence of the production of the information or documents will not be admissible in evidence against that person.

1.31 In this respect, the committee notes that 'use' immunities are provided in subclauses 83(3) and 105(4). Those subclauses provide that, where a person gives information, answers questions, or provides a document or a thing, pursuant to a notice under clause 76 or a summons under clause 86, the information, answers, documents and things are not admissible as evidence against that person. However, 'derivative use' immunities (which would prevent information or evidence indirectly obtained from being used in criminal proceedings against the person) have not been included.

1.32 In addition, the committee notes that subclauses 83(3) and 105(4) set out a number of proceedings in which the 'use' immunity would not be available. These include proceedings for the confiscation of property, certain criminal proceedings and, where the person is a Commonwealth employee, disciplinary proceedings. The committee further notes that, for the 'use' immunity in subclause 105(4) to apply, the person would have to claim that giving the relevant answer, or producing the document or thing, might tend to incriminate the person or expose them to a penalty before doing so. This has the potential to mean that the 'use' immunity may become unavailable merely because the person has not had adequate legal advice prior to answering a question, or producing a document or thing, and was therefore unaware of the need to make a claim of self-incrimination.

1.33 The committee is also notes that subclauses 83(2) and 105(3) provide that the relevant 'use' immunities would not apply to the production of a document that is, or forms part of, a record of existing or past business.

1.34 The explanatory memorandum provides no explanation as to why derivative use immunities have not been provided, nor does explain why it is considered necessary or appropriate to abrogate the privilege against self‑incrimination. It merely restates the operation and effect of the relevant provisions.^[19]

1.35 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.

Legal professional privilege^[20]

1.36 Clause 102 seeks to provide that a person must not refuse or fail to answer a question at a hearing on the ground that the answer would disclose a communication that is subject to legal professional privilege. Clause 103 similarly seeks to provide that a person must not refuse or fail to produce a document or thing at a hearing on the ground that the document or thing is subject to legal professional privilege. A person would commit an offence of strict liability if they refuse or fail to answer a question, or to produce a document or thing.^[21]

1.37 The provisions identified above would appear to abrogate legal professional privilege. As recognised by the High Court,^[22] legal professional privilege is not merely a rule of substantive law but an important common law right which is fundamental to the administration of justice. The committee therefore considers that privilege should only be abrogated or modified in exceptional circumstances. Where a bill seeks to abrogate legal professional privilege, the committee would expect a sound justification for any such abrogation to be included in the explanatory memorandum. In this instance, the explanatory memorandum provides no such justification—merely restating the operation and effect of the relevant provisions.^[23]

1.38 Additionally, the committee considers that, where legal professional privilege is abrogated, 'use' and 'derivative use' immunities should ordinarily apply to documents or communications revealing the content of legal advice, in order to minimise harm to the administration of justice and to individual rights. As outlined above at [1.31], 'use' immunities are provided in relation to the information, answers to questions, documents and things given pursuant to a notice or a summons. However, the bill does not contain 'derivative use' immunities. The explanatory memorandum provides no explanation as to why such immunities have not been included.

1.39 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of abrogating legal professional privilege.

Evidentiary certificate constitutes prima facie evidence^[24]

1.40 Clause 98 seeks provide that, if the Federal Integrity Commissioner is of the opinion that a person is in contempt of the Commission in relation to a hearing, the Federal Integrity Commissioner may apply either to the Federal Court or the Supreme Court of the State or Territory in which the hearing is held for the person to be dealt with in relation to the contempt.

1.41 Subclause 98(3) provides that the application must be accompanied by a certificate that states the grounds for making the application, and the evidence in support of the application. Subclause 99(3) provides that, in proceedings relating to the application, a certificate under subclause 98(3) is prima facie evidence of the matters specified in the certificate.

1.42 The committee notes that where an evidentiary certificate is issued, this allows evidence to be admitted into court which would need to be rebutted by the other party to the proceeding. While a person still retains the right to rebut or dispute those facts, that person assumes the burden of adducing evidence to do so. The use of evidentiary certificates therefore effectively reverses the evidential burden of proof, and may, if used in criminal proceedings, interfere with the common-law right to be presumed innocent until proven guilty. Consequently, the committee would expect a detailed justification for any proposed powers to issue or use evidentiary certificates to be included in the explanatory materials. In this instance, the explanatory memorandum provides no justification for allowing evidentiary certificates to be used in proceedings relating to contempt of the commission, merely restating the operation and effect of the relevant provisions.^[25]

1.43 Additionally, the committee notes that the Guide to Framing Commonwealth Offences states, in relation to criminal proceedings, that evidentiary certificates:

1.44 The Guide to Framing Commonwealth Offences further provides that evidentiary certificates 'may be appropriate in limited circumstances where they cover technical matters sufficiently removed from the main facts at issue'.^[27]

1.45 In this instance, it appears that the matters that may be included in a certificate given in accordance with subclause 98(3) could cover the entirety of the Commissioner’s evidence as to why a person should be held in contempt. Consequently, the committee considers it unlikely that a certificate would cover only formal or technical matters sufficiently removed from the relevant proceedings—such as might make its use appropriate.

1.46 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of providing that a certificate provided in accordance with subclause 98(3) is prima facie evidence of the matters specified in the certificate (noting that such a certificate may cover most if not all of the evidence provided by the Commission as to why a person should be held in contempt).

Reversal of evidential burden of proof^[28]

1.47 A number of clauses in the bills seek to create offences, and a number of these include offence-specific defences, which reverse the evidential burden of proof.

1.48 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[29] 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.

1.49 While in these instances the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to raise evidence to positively prove the matter), the committee expects any reversal of the evidential burden of proof to be justified. In these instances, the explanatory memorandum provides no such justification, merely restating the operation and effect of the relevant provisions.

1.50 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of including a number of offence-specific defences (which reverse the evidential burden of proof).

Strict liability offence^[30]

1.51 Subclause 104(1) would make it an offence for a person who has been served with a summons to attend a hearing or produce a document or thing to refuse or fail to answer a question or produce a document or thing in circumstances where subclause 102(2) or 103(2) (which provide for legal professional privilege for communications in relation to appearances before the Commissioner) do not apply. Subclause 104(2) would make this an offence of strict liability, subject to a penalty of imprisonment for up to 6 months or 10 penalty units.

1.52 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 person 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.

1.53 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.^[31] In this instance, the explanatory memorandum provides no such justification, merely restating the operation and effect of the relevant provisions.^[32]

1.54 The committee also notes that 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.^[33] In this instance, the bills propose applying strict liability to an offence that is 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.

1.55 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of applying strict liability to the offence at clause 104, particularly as it is subject to a custodial penalty.

Investigations and inquiries by Whistleblower Protection Commissioner^[34]

1.56 Part 9 of each bill also seeks to provide for whistleblower protection and Division 3 of Part 10 seeks to provide for the appointment of a Whistleblower Protection Commissioner. Clause 181 provides that if the Whistleblower Protection Commissioner is investigating or conducting a public inquiry, Parts 5, 6 and 7 of the bills would apply to such an investigation or inquiry as if a reference to the Federal Integrity Commissioner were a reference to the Whistleblower Protection Commissioner and a reference to a corruption issue were a reference to a whistleblower protection issue.

1.57 As such, all of the committee's scrutiny concerns outlined above regarding the potential for the powers of the Federal Integrity Commissioner to unduly trespass on personal rights and liberties would apply equally to the powers of the Whistleblower Protection Commissioner.

1.58 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of conferring all of the coercive investigation and inquiry powers outlined above on the Whistleblower Protection Commissioner.

Immunity from civil liability^[35]

1.60 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.

1.61 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.

1.62 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.^[36]

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

[1] Subclause 64(2). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[6] Clauses 76, 86, and 88. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[7] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, Chapters 7-10.

[9] Clauses 108 and 109; and proposed Division 3. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[13] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 102-103.

[15] Attorney-General’s Department A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 80.

[17] Subclauses 83(1) and 105(1). The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[20] Paragraph 83(4)(c), clauses 102 and 103, paragraph 105(5)(c). The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[21] Clause 104. The offence would be punishable by imprisonment for 6 months or 10 penalty units.

[24] Subclauses 98(3) and 99(3). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[26] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 54.

[27] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 55.

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

[30] Subclause 104(2). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

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

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

[34] Clause 181. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

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