The claim
Prime Minister Scott Morrison has not yet ruled out delivering on one of the government’s 2018 commitments: a federal anti-corruption body.
In November last year, Social Services Minister Anne Ruston defended the strength of the government’s proposed Commonwealth Integrity Commission in an interview on the ABC’s Insiders program.
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“Our particular bill suggests that the powers of the commission are well in excess of a royal commission,” she said.
Is that correct?
RMIT ABC Fact Check investigates.
The verdict
Senator Ruston’s claim is overblown.
While the new body would have some powers comparable to those of a royal commission, it cannot be said that its overall powers would be “well in excess”.
The Royal Commissions Act is relatively brief, leaving scope for commissioners to use their powers broadly. In contrast, the much longer CIC bill imposes many constraints, including how investigations can be initiated and carried out.
In particular, there are significant limitations on the powers in the proposed “public sector division”, covering most of the public service, parliamentarians, higher education providers and research bodies.
In this division, the CIC would lack the power to hold public hearings. Legal experts told Fact Check public hearings increased the effectiveness of royal commissions and contributed to their investigative ability.
There are also limitations in this division on what types of conduct can be investigated, who can be investigated and how much of its work can be reported publicly, in contrast to royal commissions.
Experts told Fact Check that these restrictions undercut the new body’s powers in a way that did not apply to royal commissions.
They also pointed out that the CIC would have less ability than a royal commission to exercise the powers it did have, because its proposed annual budget fell well below the cost of many single-issue royal commissions.
The experts said when it came to coercive powers, the government’s bill would establish a number of powers comparable to those of a royal commission.
These include the ability to compel witnesses and evidence, to create penalties for failure to appear and to apply for search warrants and telecommunication intercepts.
‘Our particular bill’
In the Insiders interview in November 2021, Senator Ruston made her claim about the powers of the proposed body after criticising the Labor opposition for failing to support the government’s draft legislation.
“The bill has been out as an exposure draft for, I think, 12 months,” she said.
“My understanding is there is no change to the bill. The bill that was provided to the Labor Party, that we sought their support [for] 12 months ago, is the bill that we currently wish to bring into the Parliament and we are asking for the Labor Party’s support.”
Thus, Fact Check has assessed Senator Ruston’s claim on the basis of the government’s exposure draft legislation released in November 2020.
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Tracing the claim
Comparing the CIC with royal commissions appears to have first been raised by then attorney-general Christian Porter in November 2020.
In a media release announcing the draft legislation, Mr Porter said the CIC would have”greater investigatory powers than a Royal Commission”.
The same assertion of “greater investigatory” powers can also be found in a statement on the Attorney-General’s Department’s website.
In contrast, Senator Ruston’s claim referred to the CIC’s “powers” without qualification.
Similarly, Liberal backbencher Jason Falinski wrote on Facebook the CIC would have “stronger powers than a royal commission” and fellow backbencher Dave Sharma claimed the CIC draft legislation had “powers akin to a royal commission”.
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On this basis, Fact Check has assessed the claim in the context of the CIC’s broader powers beyond those of investigation.
What is a royal commission?
The Australian Law Reform Commission explains that a royal commission is an inquiry established by a government “usually to ascertain factual circumstances and make recommendations”.
The Royal Commissions Act 1902 establishes powers for the Governor-General to commission a person or persons to investigate into and report on any particular issue that relates to or is connected with “the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth”.
As set out in a previous fact check, royal commissions have in recent times been established to inquire into suspected wrongdoings, but in the past have also been set up for experts to propose solutions to policy problems.
The ALRC notes that: “Royal commissions occupy a unique place in the Australian system of government, being the highest form of inquiry on matters of public importance.”
The powers of a royal commission
The ALRC explains that a federal royal commission has coercive information-gathering powers including the ability to summon a witness to give evidence or produce documents.
The Royal Commissions Act creates a number of statutory offences for failure to comply.
However, penalties such as fines and imprisonment are imposed by a court and not the royal commission itself.
The ALRC quoted from a 1954 High Court decision: “The commission can neither decide nor determine anything and nothing that it does can in any way affect the legal position of any person. Its powers and functions are not judicial.”
The parameters of a royal commission’s investigation are typically broad and established via its terms of reference.
Hearings are normally held in public and its findings are published in the form of a report.
The government’s proposed integrity commission
According to the statement on the Attorney-General’s Department website, the Commonwealth Integrity Commission was proposed “to strengthen integrity arrangements across the federal public sector”.
“The CIC would be a centralised, specialist centre for the prevention and investigation of corruption in the Commonwealth public sector and higher education and research sectors,” a departmental explanatory document reads.
“The CIC would be established as a new independent statutory agency, subsuming and replacing the existing Australian Commission for Law Enforcement Integrity.”
As noted, in November 2020 Mr Porter released draft legislation outlining the government’s proposal for the CIC.
Under the government’s proposal, the CIC would be split into two divisions.
The “law enforcement integrity division” would have jurisdiction over certain federal law enforcement agencies, such as the federal police, as well as public sector agencies with investigative functions, like the Department of Home Affairs.
The “public sector integrity division” would investigate parliamentarians, the public service, higher education providers and other Commonwealth entities.
Using ABS data and other government reports, researchers at Transparency International Australia, a not-for-profit anti-corruption research and advocacy organisation, calculated the law enforcement division would account for approximately 20 per cent of its remit with the remaining 80 per cent falling into the public sector division.
Which division covers which agencies?
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Law enforcement division |
Public sector division |
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Source: Attorney-General’s Department
Differences between the two divisions
The department’s fact sheet says in relation to each division that the commission can investigate “conduct that involves an abuse of office or perversion of the course of justice”.
Beyond that, there are differences.
The public sector division can only investigate these matters “where this conduct would also constitute one of a list of corruption-related offences against a law of the Commonwealth.”
The law enforcement division is not subject to this restriction. In addition, it can investigate “corruption of any other kind… giving priority to serious and systemic corruption”.
Referrals in the public division can only be made by certain individuals including the Attorney-General, the responsible minister for the agency investigated, Commonwealth Integrity Office Holders and certain parliamentarians.
Investigations in the law enforcement division can be referred by anyone — including members of the public.
The powers to hold public hearings and publish findings also differ significantly between the two divisions.
Hearings relating to the law enforcement division would be held in public. In contrast, hearings relating to the public sector division, including politicians and their staffers, “must be held in private”, the government’s bill says.
The exposure draft refers to various reports by the integrity commissioner. In one case, reports relating to both divisions must include proposed actions or actions taken and any recommendations made by a commissioner.
However, only in the law enforcement division can those reports include the Commissioner’s findings and the evidence on which those findings are based.
The bill also places explicit limitations on public reporting about “a parliamentarian, the office of a parliamentarian or a staff member of the office of a parliamentarian”.
The two divisions have the same rules when it comes to coercive information-gathering powers, with courts able to impose penalties including fines and imprisonment for failure to comply.
Comparing coercive powers
In saying the CIC would have “greater investigatory powers” than a royal commission, both Mr Porter’s initial statement and the Attorney-General’s website point to six similar examples:
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hold hearings and compel witnesses to testify
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enter and search premises
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require people to surrender documents and other evidence
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use telecommunication interceptions
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have individuals arrested
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confiscate passports
Although this is not an exhaustive list of the available powers to the proposed integrity commission, professor of public policy and law at Griffith University and board member of Transparency International Australia AJ Brown told Fact Check it served as a useful comparison between the two bodies.
In comparing the legislation, Professor Brown noted there was no significant difference between the two commissions’ respective powers to require people to surrender documents and other evidence, or the ability to compel witnesses to testify or to enter and search premises.
In terms of issuing arrest warrants, Professor Brown said there were some differences with the CIC having a remit to make arrests in relation to offences whereas a royal commission’s arrest powers were limited to offences relating to a failure to appear before the commission.
But while the CIC has a broader scope in respect to arrests, it is required to apply for warrants via a superior court judge whereas a royal commission has the power to issue a warrant directly, he said.
Both the CIC and a royal commission would have the power to order telecommunication intercepts. However, under provisions of the Surveillance Devices Act 2004, the CIC would likely be able to make applications directly to a court whereas a royal commission must first seek approval via the relevant Commonwealth minister (currently the Prime Minister), Professor Brown noted.
Similarly, the CIC does have specific provisions to confiscate passports that are not found in the Royal Commissions Act. But in practice, a royal commission would have the ability through its general powers to apply to a court to have a passport confiscated.
Senior fellow at the Centre for Independent Studies Scott Prasser, who has written books on royal commissions and was a member of the advisory committee to the Australian Law Reform Commission’s review of the Royal Commision Act, also told Fact Check that similar coercive powers were available.
Comparing public hearings
When it comes to public hearings, associate professor and deputy director of the Australian Centre for Justice Innovation at Monash University Yee-Fui Ng pointed to a significant difference between the Royal Commissions Act and the government’s bill.
“A royal commission has the power to conduct public hearings, which is a power that the CIC does not have for the public sector division,” she said.
“The division covering ministers, public servants, advisors — the main part of the public service — does not have that major power.”
Dr Prasser told Fact Check public hearings were fundamental to the function of royal commissions.
“The whole purpose of royal commissions and public enquiries is that they are open, people can see them and they can see the evidence being given,” he said.
He added that royal commissioners had the discretion to hold hearings out of public view in certain circumstances, for example where it was deemed necessary to protect the identity of a witness, but that it was a “normal expectation they would be held in public”.
Is a public hearing part of the investigative process?
In a bills digest analysing a 2019 amendment of the Royal Commissions Act, the Australian Parliamentary Library referenced a leading law textbook about royal commissions by barrister and now Commonwealth Solicitor-General Stephen Donaghue, who characterised public hearings as a strong investigative tool available to a commissioner.
“Royal Commissioners are frequently reluctant to use private hearings, as they diminish the capacity of Commissions to acquire information from the public, undermine public confidence in Commissions, and reduce the ‘cleansing effect’ of hearings,” it reads.
Professor Brown told Fact Check the power to hold public hearings was crucial to the function of a royal commission as a “sunlight mechanism” and was “widely understood as one of the most important powers and functions of a royal commission”.
“There are multiple reasons why the public nature of hearings are fundamental to the investigative value of a royal commission,” he said.
“It also influences the truth of evidence people give, for the same reason as when people are called to give evidence in an open court, it influences what they say because they know everybody can hear them.
“There may be other specific powers of compulsion or discovery which the CIC would have under the legislation, which the Royal Commissions Act doesn’t include, but these fade into insignificance compared to the power to call evidence in public hearings.
“The power is there for the law enforcement division … covering 20 per cent of the [Commonwealth] sector, but to then claim that this means it is as good or better than a royal commission for all purposes would essentially be misleading and deceptive.”
In response to a government request to evaluate the CIC legislation, both the Australian Human Rights Commission and the Law Council of Australia commented on the role of the public hearings.
The AHRC noted public hearings would benefit investigations by “encouraging witnesses to come forward” while the LCA said public hearings were “essential to the effective and transparent operation of an anti-corruption agency.”
Scope, resources and operational context
Dr Prasser told Fact Check there were significant legislative differences between the CIC and royal commissions when it came to the ways in which investigations could be initiated and carried out.
While the Royal Commissions Act is comparatively brief and mainly concerned with powers of investigation, the CIC legislation is substantially longer and more complex setting out parameters around factors such as what constitutes corruption and how investigations may be initiated.
Dr Prasser said that in practice, this resulted in “all sorts of curtailments or requirements for how the commission will operate” compared with a royal commission.
Professor Brown noted these issues of scope and jurisdiction differed from the narrow interpretation of “investigative powers” referenced by the Attorney-General’s department but said they were important factors pertaining to how these powers could be exercised
“It’s one thing to have a power, but if you don’t have the jurisdiction to use that power — then what’s it worth?” he said.
One key jurisdictional difference of a royal commission, Dr Prasser said, was a commissioner’s discretion to take a broad interpretation of its terms of reference. The CIC on the other hand would be bound by legislation to limit its focus on a more narrowly defined set of issues.
Associate Professor Ng also told Fact Check that the powers of the two organisations should be considered in the context of the effectiveness of the body.
“It’s not just a question of the technicalities of what powers are or are not there, it’s a question of how this body is to be effective,” she said.
Specifically, she pointed to the high threshold of conduct that constituted a Commonwealth criminal offence present in the public sector division as acting on a limiter of the other coercive powers of the commission.
“If an issue can’t be investigated in the first place, then you couldn’t invoke those powers anyway,” she said.
Dr Prasser also pointed to differences in resourcing between the two bodies.
“There’s usually no curtailment on a [royal commission’s] resources,” he said.
Resourcing was also identified as a potential limiter of the CIC in a report published by the Grattan Institute evaluating the proposed legislation stating: “The modest budget proposed also raises questions about whether it will be able to adequately fulfil its remit.”
The report noted an annual funding allocation for the CIC of $30 million. However, ACLEI, which will be subsumed by the CIC and form the enforcement division, already has a budget of $20 million, leaving only $10 million to fund the activities of the public sector division, or substantial budget cuts within the enforcement division.
In contrast, budget papers show a total allocation of $145.3 million over two years to fund the Royal Commission into Defence and Veteran Suicide. A further $28.9 million over two years was allocated to the Department of Veterans Affairs to assist in responding to information requests from the Commission.
Why compare the CIC to a royal commission?
There are many examples of existing dedicated state and territory anti-corruption bodies as well as those overseas. So what is the value in comparing the CIC to a royal commission?
According to Dr Prasser, the comparison with a royal commission was in some senses symbolic as it evoked a sense of importance in the public eye.
“The law reform commision made it clear we should keep the term ‘royal commission’ because people appreciate its prestige and status in our system of government,” he said.
He noted that other inquiries, such as those under established under the Quarantine Act, also had similar powers to royal commissions but did not carry the same sense of importance to the public.
Former counsel assisting the NSW ICAC and director at think tank the Centre for Public Integrity Geoffrey Watson told Fact Check it was an important comparison.
“In Australia, a royal commissioner is given ample and wide powers to investigate.”
He noted that most other anti-corruption bodies in the Commonwealth were treated as standing royal commissions, because they represented the gold standard with their strong powers and wide-ranging discretion.
Similarly, Professor Brown argued the powers of a royal commission were the appropriate mechanism for an integrity agency.
“The new agency should have the powers of a royal commission, so the government’s bill should be fixed to provide for this,” he said.
Professor Ng said another useful comparison would be considering how the CIC measured up against equivalent integrity oversight bodies.
For example, she pointed to significant constraints on the referral process that prevented the public sector division from acting on tip-offs from the public or whistleblowers.
“The [public sector division of the] CIC has less powers than equivalent oversight bodies (such as the Ombudsman and Auditor-General) as it cannot conduct own-motion investigations or receive referrals directly from the public,” she said.
This issue was also raised by the Grattan Institute, The Law Council of Australia and the Australian Human Rights Commission in their responses to the exposure draft.
Principal researcher: Sonam Thomas
Sources
- Parliament of Australia, parliamentary sitting dates, 2022
- Scott Morrison, press release, 7 February 2022
- Scott Morrison, press release, 13 December 2018
- ABC, Insiders, November 28 2021
- Attorney-General’s Department, Commonwealth Integrity Commission consultation draft, November 2020
- Christian Porter, press release, 2 November 2020
- Attorney-General’s Department, CIC Fact Sheet, November 2020
- Jason Falinski, Facebook, 3 November 2020
- Dave Sharma, Twitter, 2 November 2020
- ALRC, Commissions of inquiry, 16 August 2010
- Royal Commissions Act 1902
- RMIT ABC Fact Check, Can ASIC do the same job as a financial industry royal commission?, 9 June 2016
- High Court of Australia, Lockwood v. the Commonwealth 1954
- ALRC, Royal Commissions and official inquiries, 10 February 2010
- Australian Government, About Royal Commissions
- Transparency International Australia, Governing for integrity A blueprint for reform, April 2019
- Commonwealth Integrity Commission Bill 2020 (exposure draft)
- Surveillance Devices Act 2004
- ALRC, Review of the Royal Commissions Act, April 2009
- Royal Commissions Amendment (Private Sessions) Bill 2019
- LCA, Commonwealth Integrity Commission consultation draft, 18 February 2021
- AHRC, Submission to the Commonwealth Integrity Commission Consultation, 12 February 2021
- The Grattan Institute, Submission on the Commonwealth Integrity Commission
- The draft legislation, February 2021
- Commonwealth of Australia, Budget Paper No. 2 2021-22, May 2021
- Quarantine Act 1908
