CHAPTER 2


CHAPTER 2

PENALTY PROVISIONS IN OTHER LEGISLATION

Introduction

2.1 The purpose of this Chapter is to examine penalty provisions in other Commonwealth legislation for offences similar to those included in the Productivity Commission Bill.

2.2 In evidence to the Committee, the Attorney-General's Department reiterated that the offence provisions included in the Bill were not uncommon in Commonwealth legislation, and that the penalties applied under the Bill were within the range of penalties normally imposed for such offences. [1]

Survey

2.3 The Committee surveyed a sample of relevant Commonwealth legislation. In undertaking this survey, it became clear that many Commonwealth Acts authorise persons to demand, collect and assess information for various purposes. Offence provisions such as those included in the Bill are routinely included in many of these Acts, which might broadly be grouped together as follows:

  • Acts which relate to revenue matters, for example, by providing people with access to a benefit, or requiring them to contribute to the payment of a levy or tax;
  • Acts which create quasi-judicial tribunals or other bodies authorised to make or review determinations;
  • Acts which create investigative bodies or organisations, including those which are authorised to investigate compliance with particular statutory requirements (eg, the Australian Securities Commission or the Australian Competition and Consumer Commission), and those which are authorised to establish a set of facts (eg, a Royal Commission or the Official Receiver or trustee in Bankruptcy); and
  • Acts which create organisations to conduct research, provide advice to Government or undertake inquiries.

2.4 Some legislation (for example, the Trade Practices Act 1974) creates both investigative and adjudicative organisations, and so may be referred to in more than one category. Each category is discussed in more detail below.

Revenue legislation

2.5 The Attorney-General's Department advised the Committee that penalty provisions were commonly included in legislation that “involved making claims in relation to the revenue”:

    In most of those cases there is money coming from revenue and people are being paid amounts by reference to statements that they make …

    In relation to those sorts of circumstances … there is usually as part of the regime a power to compel that information relating to those sorts of claims be put in the legislation so that any discrepancies or assertions about whether the preconditions have been satisfied for the payment of the money can be verified. [2]

2.6 Therefore, the making of a false statement in relation to a claim for a benefit or to avoid a levy is usually penalised as a criminal offence. [3] Table 2, reproduced on the following page, sets out a number of such provisions.

Quasi-judicial tribunals

2.7 Difficulties that may arise in ensuring that information is provided to courts are usually addressed by offences such as perjury and the power to punish for contempt. Equivalent statutory offences are often included in legislation which creates tribunals or other bodies to make or review determinations.

2.8 A specific connection between the offences in the Bill and offences going to the administration of justice was made by Dr Smith from the Australian Institute of Criminology:

    The types of offences in the Productivity Commission Bill 1996 are similar to those which deal with the administration of justice. They are forms of conduct which strike at the way in which government operates.

Table 2: Penalty Provisions in `Revenue' Legislation

Act Fail to provide information Knowingly provide false information Fail to attend or produce documents Wilfully obstruct or hinder; contempt Intimidate witness
Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994, ss 20, 23, 37 30 pu 30 pu - - -
Agricultural and Veterinary Chemicals Code Act 1994, Schedule, ss 144, 145 30 pu 30 pu - - -
Bounty and Capitalisation Grants (Textile Yarns) Act 1981, ss 18, 21K - 6 mths; $3000 &/or 6 mths 6 mths - -
Bounty (Bed Sheeting) Act 1977,s 18 - $1000 &/or 3 mths $1000 &/or 3 mths - -
Bounty (Machine Tools and Robots) Act 1985, s 35 - $1000 &/or 6 mths $1000 - -
Bounty (Photographic Film) Act 1989, s 24 - 6 mths 6 mths - -
Cattle and Beef Levy Collection Act 1990, ss 12, 17 $6000 12 mths - 6 mths -
Child Support (Assessment) Act 1989, ss 159, 161 6 mths 6 mths 6 mths - -
Child Support (Registration and Collection) Act 1988, ss 119, 120 $2000 $2000 $2000 - -
Coal Excise Act 1949, s 27 - - - $100 -
Petroleum (Submerged Lands) Act 1967, ss 117, 126 $10,000 $10,000 $10,000 $5000 -
Primary Industries Levies and Charges Collection Act 1991, ss 23, 24 $6000 12 mths - - -
Social Security Act 1991, ss 1304-1307; 1343-1350 12 mths 12 mths - - -
Student and Youth Assistance Act 1973, ss 150, 343-347 6 mths; 12 mths - - - -
Taxation Administration Act 1953, ss 8E, 8M, 8R - $3000 $2000 $2000 &/or 6 mths -
Veterans' Entitlements Act 1986, s 128 $1000 &/or 6 mths $2000 &/or 12 mths $1000 &/or 6 mths - -

    They are treated generally as very serious in the calendar of the sort of conduct which is outlawed in our community.

    With administration of justice, for example, we have offences of perjury which carry very lengthy gaol terms. The Model Criminal Code Officers Committee has a recommendation for a 10-year maximum gaol term for perjury. This is not in exactly the same category, but it is still an offence which strikes at the way in which government operates. Through things like giving false or misleading information, it has an element of deception about it. [4]

2.9 Again, the statutory penalties imposed for these offences vary considerably. Table 3 sets out some of the relevant provisions:

Table 3: Penalty Provisions in Legislation Creating `Adjudicative' Bodies

Act Fail to provide information Knowingly provide false information Fail to attend or produce documents Wilfully obstruct or hinder; contempt Intimidate witness
Administrative Appeals Tribunal Act 1975, ss 61, 62, 62A, 63 $1000 &/or 3 mths $1000 &/or 3 mths $1000 &/or 3 mths $1000 &/or 3 mths -
Broadcasting Services Act 1992, ss 201, 202, 208 - 1 yr 1 yr 1 yr -
Copyright Act 1968 ss 172, 173 - - $1000 &/or 3 mths $1000 &/or 3 mths -
Defence Force Discipline Appeals Act 1955, ss 43-46 - - $1000 or 6 mths $1000 or 6 mths -
Human Rights and Equal Opportunity Commission Act 1986, ss 23, 25, 26 - $2500 &/or 3 mths [indiv]; $10,000 [corp] $1000 [indiv]; $5000 [corp] $1000 [indiv]; $5000 [corp] $2500 &/or 3 mths [indiv]; $10,000 [corp]
Migration Act 1958, ss 370-372; 432-434 - 12 mths 6 mths 12 mths -
Native Title Act 1993, ss 171-177 - 40 pu 20 pu 40 pu -
Trade Practices Act 1974, ss 44ZG-44ZK; ss 152DE-152DJ - 12 mths 6 mths 6 mths 12 mths
Trade Practices Act 1974, ss 160-162A - - $2000 or 12 mths [indiv]; $10,000 [corp] $2000 or 12 mths [indiv]; $10,000 [corp] $2000 or 12 mths [indiv]; $10,000 [corp]
Veterans' Entitlements Act 1986, ss 168-170 - $2000 &/or 12 mths $1000 &/or 6 mths $2000 &/or 12 mths -

Investigative bodies

2.10 A number of Acts establish organisations, or empower individuals, to investigate and monitor compliance with the provisions of those Acts. Such bodies are usually given wide powers to obtain information from those suspected of having breached the legislation. Table 4, following, sets out some relevant penalty provisions in this area:

Table 4: Penalty Provisions Involving `Investigative' Bodies

Act Fail to provide information Knowingly provide false information Fail to attend or produce documents Wilfully obstruct or hinder; contempt Intimidate witness
Aboriginal Councils and Associations Act 1976, ss 69,70 - $1500 $200 $1500 -
Australian Securities Commission Act ss 63, 64, 65, 66 100 pu &/or 2 yrs; 50 pu &/or 12 mths; 10 pu &/or 3 mths 100 pu &/or 2 yrs; 10 pu &/or 3 mths 100 pu &/or 2 yrs; 50 pu &/or 12 mths; 10 pu &/or 3 mths 100 pu &/or 2 yrs; 50 pu &/or 1 yr -
Australian Wine and Brandy Corporation Act 1980, ss 39ZH, 42(4) - 6 mths [indiv]; $5000 [corp] $3000 - -
Bankruptcy Act 1966, ss 264A, 264C, 264E, 265A, 267A, 267C - 12 mths $1000 &/or 6 mths $1000 &/or 6 mths; 12 mths -
Civil Aviation Act 1988, s 32AJ - - 30 pu - -
Commonwealth Electoral Act 1918, s 316 - $1000 &/or 6 mths $1000 - -
Financial Transaction Reports Act 1988, ss 28, 29, 33A(3) 2 yrs 5 yrs - 10 pu -
Migration Act 1958, ss 18-23, 257, 6 mths 6 mths; 12 mths - 6 mths -
National Crime Authority Act 1984, ss 29, 30, 33, 35 - 5 yrs or $20,000 [on indictment]; $2000 or 1 yr [summarily] $1000 or 6 mths $2000 or 1 yr -
Ombudsman Act 1976, s 36 $1000 or 3 mths $1000 or 3 mths $1000 or 3 mths $1000 or 3 mths -
Ozone Protection Act 1989, ss 62, 63, 64 - 2 yrs;

12 mths

12 mths 6 mths -
Privacy Act 1988, ss 65, 66 $2000 &/or 12 mths [indiv]; $10,000 [corp] $2000 &/or 12 mths $2000 &/or 12 mths $2000 &/or 12 mths -
Royal Commission Act 1902, ss 3, 6, 6H, 6L-6O - 5 yrs or $20,000 [on indictment]; $2000 or 1 yr [summarily] $1000 or 6 mths $200 or 3 mths $1000 or 1 yr
Telecommunications Act 1991, ss 365, 400, 401 20 pen units 6 mths $2000 - -
Trade Practices Act 1974, s 155 $2000 or 12 mths [indiv]; $10,000 [corp] $2000 or 12 mths [indiv]; $10,000 [corp] $2000 or 12 mths [indiv]; $10,000 [corp] $2000 or 12 mths [indiv]; $10,000 [corp] -

Research and advisory bodies

2.11 Most research organisations created under Commonwealth legislation have no power to compel others to provide them with information, and no penalty provisions apply. As noted above, neither the Bureau of Industry Economics nor the Economic Planning Advisory Commission (both of which have been incorporated into the Productivity Commission) had these powers.

2.12 Other research organisations which have no power to compel the attendance of witnesses or the production of documents include:

  • the Australian Law Reform Commission, the functions of which include (in relation to matters referred to it by the Attorney-General) the review of Commonwealth laws to bring them into line with current conditions, ensure they meet current needs, remove defects and simplify them; and to consider proposals for making and consolidating Commonwealth laws, and encouraging uniformity between State and territory laws; [5]
  • the Administrative Research Council, the functions of which include monitoring the classes of non-reviewable administrative decisions, inquiring into the adequacy of the law, the practice and the procedure relating to the review of administrative decisions, and making recommendations to the Minister; [6]
  • the Australian Institute of Health and Welfare, the functions of which include the collection and production of health and welfare related information and statistics, and the publication of reports; [7]
  • the Australian Science, Technology and Engineering Council, the functions of which include the advancement of scientific knowledge; the identification and support of new ideas in science, technology and engineering likely to be of national importance, and fostering innovation in these areas in industry; and the practical development and application of scientific discoveries – the Council has specific statutory powers to collect information and conduct inquiries; [8] and
  • the Australian Institute of Marine Science, the functions of which include the carrying out of research and development in relation to marine science and marine technology and the publication of reports. [9]

2.13 The Anti-Dumping Authority, the functions of which include making recommendations to the Minister as to whether a dumping duty notice or a countervailing duty notice should be published, or whether an anti-dumping measure should be continued, and also to provide reports to the Minister on anti-dumping matters, and which has a specific power to conduct inquiries, similarly has no power to compel the attendance of witnesses or the provision of information. However, particular provisions make it an offence to knowingly provide false or misleading information (penalty: $2000 for an individual and $10,000 for a corporation) and to intimidate a witness (Penalty: $1000 for an individual and $5000 for a corporation). [10]

2.14 The Australian Bureau of Statistics (ABS) has functions and powers under the Australian Bureau of Statistics Act 1975 and the Census and Statistics Act 1905. Under the Australian Bureau of Statistics Act 1975, the functions of the ABS include the collection and analysis of statistics for Government. In performing these functions, the ABS has no power to compel the provision of information. [11] Under the Census and Statistics Act 1905, the functions of the Statistician include the taking of the Census, and the collection of such statistical information as directed by the Minister. In performing these functions, the ABS does have power to compel the provision of information and the answering of questions, but no penalty of imprisonment may be imposed. [12]

2.15 As noted above, the Industry Commission was given such statutory powers, supported by penalty provisions. A similar power was given to the Prices Surveillance Authority (prior to its merger with the then Trade Practices Commission in 1996). Under sections 32, 35 and 36 of the Prices Surveillance Act 1983 (repealed), a fine of $1000 could be imposed for failing to provide information or documents or answer questions, and knowingly providing false or misleading information.

2.16 The Resource Assessment Commission, the functions of which include holding inquiries and making reports on “resource matters” as referred [13] also has such powers. Under sections 52, 53 and 54 of the Resource Assessment Commission Act 1989, a fine of $3000 may be imposed for failing to provide information or documents or answer questions. Knowingly providing false or misleading information and intimidating a witness each attract a maximum penalty of 6 months imprisonment.

General observations

2.17 The above survey indicates that imprisonment is frequently applied as a penalty for offences relating to the provision of information in cases involving revenue matters, and organisations which investigate breaches or statutes or make determinations. Many research and advisory bodies have no power to compel the provision of information; most of those which have this power do not make imprisonment available as a penalty for a failure to provide information (though it may be made available for providing misleading information or intimidating witnesses).

2.18 In addition, there is often a significant variation in the penalties imposed for apparently similar offences, and some (but not all) statutes attempt to draw a distinction between the seriousness of various offences (for example, the penalties in some statutes draw a distinction between failing to provide information and knowingly providing false information).

Footnotes

[1] Attorney-General's Department, Briefing for the Senate Standing Committee for the Scrutiny of Bills: Proposed Penalties in the Productivity Commission Bill (23 September 1997); Transcript of Evidence, p 5 (Mr C Meaney).

[2] Transcript of Evidence, p 9 (Dr R Smith).

[3] Transcript of Evidence, p 7 (Mr C Meaney).

[4] Transcript of Evidence, p 9 (Dr R Smith).

[5] Australian Law Reform Commission Act 1996 s 21.

[6] Administrative Appeals Tribunal Act 1975 s 51.

[7] Australian Institute of Health and Welfare Act 1987 s 5.

[8] Australian Science, Technology and Engineering Council Act 1978 ss 5, 7.

[9] Australian Institute of Marine Science Act 1972 s 9.

[10] Anti-Dumping Authority Act 1988 ss 5, 7, 8, 24, 27. An “anti-dumping” matter is defined as a matter relating either to the imposition of duties under the Anti-Dumping Act, or the operation of that Act or the Customs Tariff (Anti-Dumping) Act 1975.

[11] Australian Bureau of Statistics Act 1975 s 6(1).

[12] Census and Statistics Act 1905, ss 8, 9, 10(4), 14 and 15.

[13] Resource Assessment Commission Act 1989 s 6. A “resource matter” is defined as any matter relating to the use of a resource, including whether a use of a resource is compatible with other uses of that resource or other resources; and also the nature or extent of the environmental, cultural, social, industry, economic or other effects of the use of a resource: s 3.