CHAPTER 8


CHAPTER 8

PENALTY PROVISIONS FOR 'INFORMATION' OFFENCES IN COMMONWEALTH LEGISLATION

Introduction

8.1 During the 38th Parliament, in addition to its scrutiny work, the Committee undertook an inquiry into a matter referred to it by the Senate.

8.2 On 3 September 1997, the Senate debated a series of amendments to the Productivity Commission Bill 1996. These amendments concerned appropriate penalties for offences such as failing to provide information, or providing false and misleading information, to the proposed Productivity Commission. In general terms, the amendments proposed to substitute a fine for a penalty of imprisonment. [1]

8.3 After debate, the Senate agreed to refer these penalty provisions to the Committee for inquiry and report by 29 October 1997. [2]

8.4 On 30 September 1997, the Committee held a public hearing on the reference at which it took evidence from representatives of the Australian Institute of Criminology and the Commonwealth Attorney-General's Department. Officers of both organisations undertook jointly to prepare a paper to address concerns expressed by the Committee, and to provide some general background on the philosophy of judicial punishment. To enable the preparation of this paper, the Committee was granted an extension of time until 20 November 1997 to report. [3]

8.5 On 17 November 1997 the Committee tabled an interim report and appended to it the joint Briefing Paper referred to above. The Interim Report concluded by noting:

In the light of the issues raised by the [briefing] paper, the committee finds that determining the appropriate penalties for these kinds of offences requires a longer and more thorough inquiry and will be seeking the approval of the Senate to do so.

8.6 On 19 November 1997, the Committee was granted a further extension of time, and the inquiry's terms of reference were amended to require the Committee to report on “the appropriate basis for penalty provisions in legislation comparable to the Productivity Commission Bill 1996”.

8.7 The Committee tabled its final report on 25 June 1998. In that report, after examining both the penalty provisions in the Productivity Commission Bill and other similar legislation, and the general principles which govern such penalty provisions, the Committee concluded that:

  • the appropriateness of penalties for statutory offences is ultimately a matter for the Parliament;
  • the penalties specified in legislation should reflect current conditions and the sentencing practices of the courts;
  • there were inconsistencies in the approach to penalties imposed for `information-based' offences such as those included in the Productivity Commission Bill;
  • such inconsistencies were apparent in the types of penalties imposed: some statutes provided for a penalty of imprisonment, others provided for imprisonment and a fine as alternatives, others provided for a fine and, in default of payment, imprisonment, and yet others specified only a fine;
  • such inconsistencies were also apparent in the size of the penalty imposed: some statutes appeared to provide greater penalties than others for similar offences;
  • in part, these inconsistencies might have arisen because offences such as failing to provide information, or providing false and misleading information, might differ in seriousness depending on circumstances. They might be more serious where the investigation of a suspected statutory breach was involved or where an adjudication was to be made. They might be less serious where there was a refusal to provide accurate information to an organisation which sought it simply as a basis for research or advice;
  • in part, these inconsistencies might have arisen because of changes over time in sentencing policy. For example, the Committee was told that, as a policy matter, a penalty of imprisonment for 3 months was no longer specified in legislation;
  • inconsistencies might also arise because the functions performed by an organisation may change over time. Penalties that are appropriate where an organisation is making recommendations with direct financial consequences (such as the Tariff Board) may no longer be appropriate when the role of that organisation changes to the provision of general advice on microeconomic reform (such as the Productivity Commission); and
  • penalties in general might no longer be appropriate if they have not been reviewed for many years, or because circumstances which existed at the time of their inclusion have now changed.

8.8 The Committee adopted the view of the Law Reform Commission that imprisonment remains a necessary penalty of last resort. The Committee's report continued:

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.

Ultimately, there is a need to review and clarify the criteria which govern penalty regimes for Commonwealth legislation. [4]

8.9 The Committee recommended 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.

8.10 On 14 December 1998, the Minister for Justice and Customs forwarded a response to the Committee's report. In responding, the Minister noted the Committee's recommendation and agreed that there was a need to review the penalty levels of some classes of Commonwealth offences:

In that respect, the Government is moving to rationalise many of the classes of offences identified in the report as part of its program to implement recommendations of the Gibbs Committee and Model Criminal Code Officers Committee and the Government's policy of simplifying legislation. The Commonwealth Criminal Code is being progressively developed over the next few years. It will include administration of justice offences to update and rationalise offence provisions designed to protect the integrity of bodies like the Productivity Commission and other tribunals (for example, interference with witnesses). That exercise will ensure that penalties will be consistent, fair and appropriate.

When the review of penalty levels and applicable principles has taken place I will ensure that the relevant information is disseminated as recommended by the Committee.

Barney Cooney
Chairman

Footnotes

[1] See, for example, Senate, Hansard, 3 September 1997, pp 6271-2 (Senator the Hon N Sherry).

[2] Journals of the Senate, No 122, 3 September 1997, p 2419.

[3] Journals of the Senate, No 137, 28 October 1997, p 2737.

[4] Scrutiny of Bills Committee, Eighth Report of 1998, p 216.