4.1 The purpose of this Chapter is to set out the Committee's conclusions and recommendations.


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.


The Committee recommends that the Attorney-General:

  1. 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
  2. make such criteria available to Ministers, drafters and to the Parliament.