Page 5141 - Week 13 - Thursday, 29 November 2018
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The bill provides that the commission may decide to hold a public examination with corresponding powers to compel the attendance of witnesses. In doing so, this again may limit a number of rights under the Human Rights Act, including to privacy, freedom of movement, a fair trial, and rights in criminal proceedings.
After considering the submissions received and the experiences of other bodies tasked with investigating corruption, the 2017 select committee concluded that the integrity commission should be able to hold public examinations to discharge its legitimate objectives. The 2018 select committee reiterated the view that the legislation should be neutral as to whether a public or private examination could be conducted. In deciding whether to hold an examination in public or in private, the commission must consider whether it is in the public interest to hold a public examination, and whether a public examination can be held without unreasonably infringing a person’s human rights.
A proportionality test must be undertaken where human rights are proposed to be limited. General precedence exists within the ACT context for what the courts will consider in determining whether the limitation on a person’s human rights is justified. It is likely that the integrity commissioner will undertake a similar approach in determining whether a public examination is beneficial.
I draw members’ attention to the bill’s provisions that punish acts of contempt committed against the commission. An act of contempt includes conduct such as failure to comply with a preliminary inquiry or an examination, for example, refusing to provide information to the commission, produce a document or other thing, or answer a question.
A contempt power is necessary to persuade uncooperative witnesses to change their mind and provide information to answer questions required to further the commission’s investigation. However, experience in other jurisdictions indicates that witnesses may not cooperate until the late stages of a court prosecution, that is, in the weeks immediately prior to trial.
Referring contempt to the Supreme Court is the preferred approach, given the commission’s inquisitorial function. The commission will punish acts of contempt by referring the matter to the ACT Supreme Court, which will deal with the matter as though the act of contempt committed against the commission were an act of contempt against the Supreme Court.
The majority of existing Australian integrity commissions are vested with the power to certify and refer acts of contempt to the Supreme Court. This contrasts with the normal criminal process, where offences are reported to police, investigated, charged, and prosecuted by the DPP after a length of time.
The expedited trial procedure used by most commissions in Australia provides integrity commissions with timely resolution of issues of contempt. If the Magistrates Court were to determine whether contempt of the commission has taken place, the status of contempt proceedings in the Supreme Court would be lost. Appeals from the
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