CHAPTER 4
CONCLUSIONS AND RECOMMENDATIONS
Introduction
4.1 The purpose of this Chapter is to set out the Committee's conclusions
and recommendations.
Conclusions
4.2 On the information obtained during the inquiry, a number of conclusions
might be drawn. First, it is clear that the appropriateness of penalties
is ultimately a matter for the Parliament. Penalties specified in legislation
should reflect current conditions and the sentencing practices of the
courts.
4.3 Secondly, it is also clear that there are inconsistencies in the
approach to penalties imposed for offences such as those included in the
Productivity Commission Bill. Such inconsistencies are apparent in the
types of penalties imposed: some statutes impose penalties of imprisonment,
some provide for imprisonment and a fine as alternatives, some provide
for imprisonment potentially in addition to a fine, and others provide
only for a fine. Such inconsistencies are also apparent in the size of
the penalty imposed – some statutes impose greater penalties than
others for apparently similar offences.
4.4 In part, these inconsistencies may arise because offences such as
failing to provide information, or providing false and misleading information,
may themselves be of differing gravity, or may differ in seriousness depending
on circumstances. They are, arguably, more serious in the investigation
of a suspected statutory breach, or where a determination or adjudication
is to be made, or where a claim is made which involves a potential financial
benefit. In these circumstances, there is often only a single source of
information.
4.5 They are, arguably, of less seriousness where an organisation is
seeking information simply as a basis for research, or to provide advice.
In these circumstances there are often alternative sources of information.
There may be no need to compel the provision of information at all. If
there is such a need, it is less likely that it need be supported by a
penalty of imprisonment.
4.6 In part, these inconsistencies may also arise because of changes
in sentencing policy. For example, as a policy matter, a penalty of imprisonment
for 3 months is no longer specified. They may also arise because the functions
performed by an organisation may change over time. Penalties that are
appropriate for an organisation making recommendations with direct financial
consequences (such as the Tariff Board) may no longer be suitable for
an organisation providing general advice on microeconomic reform (such
as the Productivity Commission). Penalties may no longer be appropriate
if they have not been reviewed for many years, or because different circumstances
existed at the time of their inclusion.
4.7 There is a need to ensure that penalties for all offences are as
consistent, as fair and as appropriate as possible. Penalties should deter
potential offenders but not, as suggested by the Australian Chamber of
Manufactures, become totally counter-productive.
4.8 As proposed by the Law Reform Commission, imprisonment is a necessary
penalty of last resort. To ensure that the penalties in legislation comparable
to the Productivity Commission Bill remain appropriate, the range and
severity of non-custodial penalties should be increased, and imprisonment
should be retained only for those offences (or for offences in particular
circumstances) which Parliament sees as sufficiently serious. It is unlikely
that imprisonment will be an appropriate penalty where an individual declines
to provide information to an organisation which undertakes inquiries focussing
on policy matters, research or the collection of information. It is more
likely to be appropriate where an individual knowingly misleads an organisation
for monetary gain, or to prejudice a quasi-criminal investigation. It
is also more likely to be appropriate where someone suffers prejudice
as a consequence of providing information.
4.9 Ultimately, there is a need to review and clarify the criteria which
govern penalty regimes for Commonwealth legislation.
Recommendation
The Committee recommends that the Attorney-General:
- develop more detailed criteria to ensure that the penalties imposed
for offences involving the giving or withholding of information are
more consistent, more appropriate, and make greater use of a wider range
of non-custodial penalties; and
- make such criteria available to Ministers, drafters and to the Parliament.