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National

RMIT ABC Fact Check

Scott Morrison says the government's proposed integrity commission would have the powers of a royal commission. Is that correct?

Scott Morrison CIC Fact Check Anne Ruston Christian Porter Commonwealth (Geopolitical Entity) RMIT ABC Fact Check ALRC Dave Sharma Department of Home Affairs

Prime Minister Scott Morrison says the government's proposed model for a federal anti-corruption commission has the powers of a royal commission. (ABC News: Luke Stephenson)

The claim

Under attack from Opposition Leader Anthony Albanese during the third leaders' debate on the Seven Network, Prime Minister Scott Morrison defended his government's proposed bill to establish a federal integrity commission.

"The bill has powers of search, it has powers compelling witnesses. It has powers of a royal commission," Mr Morrison said.

Is that correct? RMIT ABC Fact Check investigates.

The verdict

Mr Morrison is cherrypicking.

Experts told Fact Check there were indeed similarities between the coercive powers of a royal commission and the government's proposed model for a federal anti-corruption commission.

For example, as referenced by Mr Morrison, the powers of search and the ability to compel witnesses to appear before the commission are comparable.

Other similarities include powers to require people to surrender documents and other evidence, the ability to apply for telecommunication intercepts, and the power to have individuals arrested or passports confiscated.

However, by highlighting the similarities between the respective bodies, Mr Morrison's claim obscures important and fundamental differences.

The Royal Commissions Act is relatively brief, leaving scope for commissioners to use their powers broadly. In contrast, the much longer Commonwealth Integrity Commission bill imposes many constraints, including how investigations can be initiated and carried out.

In particular, there are significant differences in powers in the proposed "public sector division", covering most of the public service, parliamentarians, higher education providers and research bodies — estimated to be 80 per cent of the proposed commission's remit.

In this division, unlike a royal commission, the CIC would lack the power to hold public hearings.

There are also differences 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 government's proposed model has some powers which are similar to those of a royal commission, but its "public service division" cannot hold public hearings. (Facebook: Royal Commission into Defence and Veteran Suicide)

A previous claim

Fact Check has previously tested a similar claim from Social Services Minister Anne Ruston.

In November 2021, Senator Ruston said: "Our particular bill suggests that the powers of the commission are well in excess of a royal commission."

Fact Check found that claim to be overblown, based on expert interpretation of the government's exposure draft legislation released in November 2020.

At the time, other Coalition politicians had made similar versions of the same 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 website.

Much like Senator Ruston, Liberal backbencher Jason Falinski wrote on Facebook the CIC would have "stronger powers than a royal commission", while fellow backbencher Dave Sharma claimed the CIC draft legislation had "powers akin to a royal commission".

Mr Morrison's claim comes closer to that of Mr Sharma, in that he did not claim that the powers of the government's proposed model for an integrity commission would be greater, and did not mention "investigative powers".

What is a royal commission?

Royal commissions typically investigate issues of national importance publicly. (Royal Commission into Institutional Responses to Child Sexual Abuse)

As set out in Fact Check's analysis of Senator Ruston's claim, 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 established in an earlier 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?

Law enforcement division	Public sector division
Australian Criminal Intelligence Commission Australian Federal Police Australian Transaction Reports and Analysis Centre Department of Home Affairs Department of Agriculture, Water and the Environment Australian Competition and Consumer Commission Australian Prudential Regulation Authority Australian Securities and Investments Commission Australian Taxation Office	Public service departments and agencies Parliamentary departments, statutory agencies Commonwealth companies and Commonwealth corporations Higher education providers and research bodies that receive Commonwealth funding Commonwealth service providers and any subcontractors they engage Parliamentarians and their staff

Source: Attorney-General's Department

The two divisions compared

The law enforcement division would be able to hold hearings in public, but the public service division, which includes politicians, would not. (Supplied)

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.

Which powers are similar?

There are indeed some similarities in the powers vested in a royal commission and in the government's proposed model.

Upon the release of the government's consultation draft, both Mr Porter's initial statement and the Attorney-General's website point to six similar examples:

hold hearings and compel witnesses to testify
enter and search premises
require people to surrender documents and other evidence
use telecommunication interceptions
have individuals arrested
confiscate passports

Mr Morrison specifically referred to the first two of these examples.

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 previously told Fact Check it served as a useful comparison between the two bodies.

Professor Brown said there was no significant difference between the government's model and a royal commission for these two particular powers.

This also applied to the ability to require people to surrender documents and other evidence.

On the other powers, there are some minor differences.

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 royal commissions and the government's proposed model can use phone taps, but the method of ordering them is different. (Unsplash: Jim Reardan)

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 previously told Fact Check that similar coercive powers were available.

Spot the difference: public hearings

The ability to hold hearings in public is a key power of a royal commission. (Supplied: Royal Commission into Defence and Veteran Suicide)

Experts spoken to by Fact Check for its previous analysis identified some major differences between the government's proposed CIC and a royal commission.

Importantly, a royal commission has the power to conduct public hearings.

As associate professor and deputy director of the Australian Centre for Justice Innovation at Monash University Yee-Fui Ng observed, the presence of public hearings marks a 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."

So why is this an important distinction when comparing the two bodies?

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".

Furthermore, as Professor Brown argued, public hearings represented an important investigative power of a Royal Commission.

"[A royal commission] is all about gaining evidence by calling people to hearings, but then also exposing that evidence to a public audience which then triggers more evidence from other people," Professor Brown 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."

A longer bill constrains powers

In all three of the leaders debates, Mr Morrison explicitly referenced the length of the Government's proposed CIC bill, in the third debate speaking of "347 pages of legislation".

But as experts previously told Fact Check, the length of the CIC exposure draft actually acted as a constraint on its powers.

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 were also 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.

"It's about whether the design is set up so it can investigate matters of concern — and the way it's currently set up, it would not do so."

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.

The question of resourcing

A further difference between the two bodies relates to their respective funding.

As Dr Prasser noted, there was usually no curtailment on a royal commission's resources.

"Some royal commissions cost more money than the total budget of anti-corruption bodies around Australia," he said.

Resourcing was also identified as a potential limiter of the CIC in a February 2021 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 that the 2019-20 budget set out an annual funding allocation for the CIC of $30 million once fully established. However, the existing Australian Commission for Law Enforcement Integrity which will be subsumed by the CIC to 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.

Sources

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