Page 2034 - Week 06 - Wednesday, 6 June 2018
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allow the commission to provide authoritative leadership in line with the bill’s objectives.
The commission is not bound by the rules of evidence but instead may inform itself of a matter in any way that it deems appropriate. In exercising its functions with as little formality and technicality as possible, the commission must accept written submissions which may not ordinarily be accepted as part of legal hearings.
This approach also allows for some of the complexity surrounding legal evidentiary burdens to be relaxed and means that more evidence, or types of evidence, may be considered by the commission without regard for legal precedent. This would mean that hearsay may be applicable in certain circumstances outside settled common law exceptions. The legal background of the commissioner or presiding officer is important to allow the informed discretion in terms of evidence admitted and what evidence may have subsequent uses.
Notwithstanding those broad powers, the commission must comply with the rules of natural justice and consider potential subsequent use of information obtained by the commission in the course of their investigation. Safeguards have been put in place to ensure the rules of natural justice are legislatively protected.
One of the primary functions of the commission is to investigate and expose corruption. The commission is limited to making findings of fact and opinion, such as whether corrupt conduct has occurred. This makes the commission unique and requires broad investigative powers. Without the ability to inform itself as it sees fit, the commission would be restricted to evidence that could be admitted in court and this would impair its functions.
The evidentiary thresholds in court are deliberately high as there are clearly delineated punishments attached to those offences and conduct. However, the commission has no powers to enforce any penalties, except in relation to conduct against itself, such as contempt of the commission. It is therefore appropriate that the commission has a discretion to act in a manner which enables them to most effectively and efficiently carry out their duties.
Importantly, an examination must be conducted in public, unless the commission decides it is in the public interest to hold the examination in private. This is essential to many of the commission’s core objectives and functions, including fostering public confidence, exposing corruption and informing educative resources for preventing future corruption. Public hearings are a key accountability mechanism and allow the commission to be authoritative, impartial and a diligent public face of integrity.
As discussed in the committee’s report, and demonstrated in many jurisdictions, public examinations are an essential tool of anti-corruption and integrity bodies. Examinations often follow extensive private investigations. There is evidence to suggest a correlation between the effectiveness of integrity bodies and their ability to hold public examinations.
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