Bills Digest no. 131 2005–06
Law Enforcement Integrity Commissioner Bill
2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Law Enforcement Integrity
Commissioner Bill 2006
Date introduced: 29 March 2006
House: House of
Representatives
Portfolio: Attorney-General
Commencement: The substantive provisions commence 6 months after
Royal Assent, unless commenced earlier by Proclamation.
To establish an Australian Law Enforcement Integrity Commission
( ACLEI ) with power to investigate and report on corruption in the
Australian Federal Police ( AFP ), the Australian Crime Commission
( ACC ), the former National Crime Authority ( NCA )(1)
and prescribed Commonwealth law enforcement agencies.
The Law Enforcement Integrity Commission Bill 2006 ( the LEIC
Bill ) is part of a package of three Bills. The other Bills in the
package are:
- the Law Enforcement Integrity Commission (Consequential
Amendments) Bill 2006 ( the Consequential Amendments Bill ),
and
- the Law Enforcement (AFP Professional Standards and Related
Measures) Bill 2006 ( AFP Professional Standards Bill ).
The Consequential Amendments Bill amends a number of
Commonwealth Acts so that officers of the Australian Law Integrity
Commission will have access to special investigatory powers such as
telecommunications interception, surveillance devices, controlled
operations and assumed identities.
Background
Ad hoc royal commissions have been established from time to time
in the States to investigate allegations of
corruption.(2) Additionally, a number of jurisdictions
have ongoing statutory anti-corruption agencies with
royal-commission powers. Agencies with statutory powers to
investigate corruption and misconduct in the public sector
generally have been established in New South Wales, Queensland and
Western Australia. In NSW and Victoria, there are independent,
specialist agencies that investigate police misconduct.
In NSW, the functions of the Independent Commission Against
Corruption include investigating, detecting and preventing
corruption in the public sector, and educating the public sector
and the public about corruption and its detrimental
effects.(3) The Police Integrity Commission is
responsible for detecting, preventing and investigating serious
police misconduct and for managing other agencies in detecting and
investigating police misconduct.(4)
In Queensland, the functions of the Crime and Misconduct
Commission include combating organised crime, assisting the public
sector to prevent crime and misconduct, investigating complaints of
misconduct, undertaking research, and compiling and analysing
intelligence.(5)
In Western Australia, the functions of the Corruption and Crime
Commission of Western Australia include combating and reducing
organised crime, reducing misconduct in the public sector,
investigating corruption and educating public sector staff about
the Commission s role and their notification
responsibilities.(6)
In Victoria, the Director, Police Integrity is responsible for
ensuring that ethical and professional standards are maintained in
the Victoria Police and for ensuring that police corruption and
serious misconduct is detected, investigated and prevented. The
Director s powers now include own motion
investigations.(7)
At present, there is no standing Commonwealth body with royal
commission-like powers charged with investigating corruption in
Commonwealth agencies. However, under the Complaints
(Australian Federal Police) Act 1981, complaints about the AFP
can be made to the Ombudsman or to the AFP s internal complaints
mechanisms. The Ombudsman can take over an investigation or conduct
the investigation from the beginning.
In 1996, the Australian Law Reform Commission report,
Integrity: but not by trust alone reviewed the complaints
and disciplinary processes of the AFP and NCA. Among other things
the report recommended that a new body, the National Integrity and
Investigations Commission, should be the external complaints and
anti-corruption authority for the AFP and the NCA and should have
royal-commission powers.(8)
On 25 May 2004, the Australian newspaper reported that
a former Victorian drug squad detective working at the ACC was
facing criminal charges.(9) On 14 June 2004, the ABC
Four Corners program claimed that the ACC had been tainted
by two corrupt officers seconded from NSW and
Victoria.(10) On 16 June 2004, the Attorney-General and
the Minister for Justice and Customs announced that the
Commonwealth would establish an independent anti-corruption
body:
While no evidence exists of systemic corruption
within the Australian Crime Commission (ACC), the Australian
Federal Police (AFP) or other Commonwealth law enforcement
agencies, the Government has decided there should be an independent
body with the powers of a Royal Commission to address corruption at
the Federal level should it arise.(11)
Justice and Customs Minister, Senator Chris Ellison, said the
announcement was not connected with the Four Corners
program:
what brought this to light was the engagement we
ve had with the Victorian Government, which wants telephone
intercept powers to be given to the ombudsman That s entirely
inappropriate.
Now that caused us to examine our situation,
neither the Victorian ombudsman or federal ombudsman should have
those telephone intercept powers and we ve said, Well we should
have an independent body with telephone intercept powers and the
powers of a royal commission to oversight federal law
enforcement.(12)
In September 2005, Minister Ellison said that the federal
integrity body would initially oversee the AFP and the ACC. He also
indicated that the jurisdiction of the commission would be able to
be expanded by the use of regulations and referred to the following
second-tier agencies the Department of Immigration, the Australian
Taxation Office, the Australian Customs Service and, perhaps,
Centrelink.(13)
As stated earlier in this Digest, three Australian jurisdictions
have standing anti-corruption commissions. Victoria has a Director,
Police Integrity. In each case, statutory oversight mechanisms are
also provided:
- in NSW, the Inspector of the Independent Commission
Against Corruption audits the operations of the Commission and
investigates complaints against the Commission. The Joint
Parliamentary Committee on the Independent Commission Against
Corruption monitors and reviews the Commission and the Inspector.
The Parliamentary Joint Committee on the Ombudsman and the Police
Integrity Commission monitors the work of the Police Integrity
Commission and reviews its functions. The Inspector of the Police
Integrity Commission can investigate complaints about the
Commission and reports to Parliament.
- in Queensland, the Parliamentary Crime and Misconduct
Committee monitors and reviews the performance of the Crime and
Misconduct Commission and reports to Parliament. It also
participates in the selection of Commissioners.(14) A
Parliamentary Inspector is responsible for investigating complaints
against the Crime and Misconduct Commission and also reports to the
Parliamentary Committee.
- in Western Australia, the Joint Standing Committee on
the Crime and Corruption Commission monitors the Commission s work
and reports to Parliament. The Parliamentary Inspector of the Crime
and Misconduct Commission audits the Commission s work,
investigates complaints against the Commission and makes
recommendations to Parliament.
- In Victoria, the Special Investigations Monitor (SIM)
monitors the activities of the Director, Police Integrity and the
exercise of the Director s powers. The SIM reports to Parliament on
the use of the Director s powers.(15)
Clause 3 provides that the objects of the
legislation are to:
- facilitate the detection and investigation of corruption in law
enforcement agencies
- enable criminal prosecutions and civil penalty proceedings to
be brought as a result of those investigations, and
- maintain and improve the integrity of law enforcement agency
staff.
The definitions of corruption issue , corrupt conduct , law
enforcement agency and law enforcement function are pivotal to much
of the work of the Integrity Commissioner.
The Integrity Commissioner s functions include investigating and
reporting on corruption issues. Special coercive powers like
requiring people to produce information or documents or give
evidence can be exercised when the Commissioner is investigating a
corruption issue. Clause 7 defines corruption
issue as an issue of whether a current or former staff member of a
law enforcement agency has or may have engaged in corrupt conduct ;
is, or may be, engaging in corrupt conduct ; or will, or may in the
future, engage in corrupt conduct.
Corrupt conduct is broadly defined and means conduct that
involves abuse of office, conduct engaged in to pervert the course
of justice or conduct that involves or is engaged in for the
purpose of corruption of any other kind. It includes conduct that
was engaged in before the commencement of the proposed Law
Enforcement Integrity Commissioner Act 2006 (clause
6).
Clause 5 defines law enforcement agency to
mean:
- the AFP
- the ACC
- the former NCA, or
- any other Commonwealth government agency that has a law
enforcement function and is prescribed by regulation.
The last part of the definition has a potentially wide reach
because of the broad definition of law enforcement function
(clause 5). Law enforcement function means the
functions of investigating whether a Commonwealth offence has been
committed or civil penalty proceedings may be brought; preparing
material for prosecution or bringing civil penalty proceedings;
collecting, analysing or distributing information in order to
assist the enforcement of Commonwealth law; or assisting in
carrying out these functions.
It is noteworthy, however, that additional Commonwealth agencies
with law enforcement functions will not be brought within the ambit
of the Commissioner s investigatory powers unless the Government
prescribes them by regulation. For further comment, see the
Concluding Comments section of this Digest.
New Part 3 sets out the Integrity Commissioner
s functions. These include:
- investigating and reporting on corruption issues
- referring corruption issues to law enforcement agencies for
investigation
- managing, overseeing or reviewing corruption investigations by
law enforcement agencies
- at Ministerial request, conducting public inquiries into
corruption issues or corruption generally in law enforcement
agencies
- collecting, analysing and disseminating data about corruption
in law enforcement agencies and other Commonwealth government
agencies with law enforcement functions
- reporting and making recommendations to the Minister on the
need for legislative or administrative action on corruption
generally. These reports and recommendations can be made on the
Commissioner s own initiative or at Ministerial request
(clause 15).
The Commissioner is charged with giving priority
to serious corruption and systemic corruption (clause
16). Serious corruption is corruption by law enforcement
agency staff that could result in the person being charged with an
offence punishable by a term of at least 12 months imprisonment
(clause 5).(16) Systemic corruption
means instances of corrupt conduct that reveal a pattern of corrupt
conduct in a law enforcement agency or agencies (clause
5).
The Commissioner can enter into written
agreements with the heads of law enforcement agencies in relation
to specified matters. These include the kind of issues that are
significant corruption issues in relation to a particular agency
and the level of detail required to notify the Commissioner of a
corruption issue (clause 17).
New Part 4 sets out how
corruption issues can be brought to the Commissioner s attention.
These are:
- referral by the portfolio Minister
- notification by the head of a law enforcement agency, or
- referral by other people (clauses 18, 19 and
23, respectively).
New section 19 requires the head of a law
enforcement agency to notify the Commissioner of allegations of
corruption issues as soon as practicable after becoming aware of
them. The LEIC Bill also contains rules about what must happen when
an agency head notifies the Commissioner. For instance, if an
agency head notifies the Commissioner of a significant corruption
issue, he or she must give the Commissioner relevant documents,
stop any existing investigation into that issue and take reasonable
steps to prevent loss, destruction or fabrication of evidence
(subclause 20(1)). The law enforcement agency head
must also pass on new information that comes to hand
(clause 21).
In the case of a corruption issue that is not
identified as a significant corruption issue, the head of the
agency must, in general, ensure that any investigation being
conducted is completed. If no investigation is underway, the agency
head must, in general, investigate (clause 20). If
the agency head decides not to investigate for example, because the
complaint is frivolous, vexatious or not bona fide the agency head
must advise the Commissioner and indicate why the decision was made
(clause 22).
Referrals by other people may be done anonymously
and may be written or oral (clause 23).
There are special provisions for referrals by
prisoners (clause 24). Facilities must be provided
to a prisoner who wishes to refer an allegation to the Integrity
Commissioner. In particular, the prisoner must be able to use a
sealed envelope and have the envelope delivered without undue
delay.
The ways in which the Integrity Commissioner can
deal with corruption issues are set out in clause
26. He or she can:
- investigate the issue either alone or jointly with another
government agency or State or Territory integrity agency (State and
Territory integrity agencies are prescribed agencies that
investigate police corruption)(17)
- refer the issue to the law enforcement agency or the AFP and
elect whether to oversee or manage the investigation, or
- manage or oversee an investigation that is being conducted by a
law enforcement agency.
The criteria for deciding how to deal
with a corruption issue are set down in clause 27.
They include:
- the need to ensure that the issue is fully investigated
- the rights and obligations of the law enforcement agency to
investigate the issue
- the resources that are available to the Commissioner, the AFP
and the law enforcement agency, and
- the need to balance the Commissioner s role in dealing with
corruption issues and ensuring that the heads of law enforcement
agencies take responsibility for managing their agencies.
The Bill also deals with how the Integrity
Commissioner is to handle corruption issues that relate to
secondees from government agencies (clause
29). Secondees are people seconded from Commonwealth,
State or Territory agencies to the AFP, ACC, former NCA, or
prescribed law enforcement agencies (clause
10).
In the case of corruption issues that relate to
secondees, the Integrity Commissioner must, with some exceptions,
inform the head of the person s home agency and may arrange for the
head of the home agency to investigate the issue (clauses
29 and 30). If the secondee is from a State or Territory
police force, the Integrity Commissioner may refer the matter to
the relevant State or Territory integrity agency. Subclause
29(9) sets out the criteria that the Integrity
Commissioner must use when deciding how to deal with a corruption
issue involving a secondee. These criteria are similar to the
criteria set out in clause 27.
The Commissioner may decide to take no further
action in relation to a corruption issue that has been notified or
referred to him. However, if the issue is a serious corruption
issue the Commissioner can only decide to take no further action if
satisfied that the issue is already being investigated by another
agency, is frivolous or vexatious, not made in good faith or will
be the subject of legal proceedings (clause
31).
If the Minister refers a significant corruption issue to the
Integrity Commissioner, the Commissioner must advise the Minister
in writing, as soon as reasonably practicable of what action he or
she intends to take (clause 33).
Where the allegation relates to a law enforcement agency, the
Commissioner must advise the head of that agency of how he or she
intends to deal with the corruption issue. However, such advice
need not be given if it would be likely to prejudice the
investigation or action taken as a result of the investigation. In
this case, the Commissioner must inform the relevant Minister
(clause 35). Similar rules apply to advising the
heads of home agencies and integrity agencies where an allegation
relates to a secondee (clause 36).
The Commissioner may also advise the person to whom a corruption
allegation relates of how the Commissioner intends to deal with the
issue (clause 37).
A person who has referred a matter to the Integrity Commissioner
under clause 23 and who elects to be kept informed
of action must also be advised in writing as soon as reasonably
practicable of what action the Commissioner intends to take
(clauses 25 and 34). However, the person need not
be advised if the Commissioner is satisfied that to do so is likely
to prejudice the investigation of the corruption issue or action as
a result of that investigation.
In addition to being empowered to deal with corruption issues
that are referred or notified, the Commissioner can also deal with
corruption issues on his or her own initiative (clause
38).
If the corruption issue relates to a law enforcement
agency, the Commissioner must advise the agency head in
writing as soon as reasonably practicable (clause
39). An exception to this obligation exists if the
Commissioner considers that advising the agency head is likely to
prejudice the investigation of the corruption issue or any action
taken as a result of the investigation. In such a case, the
Commissioner must advise the Minister of the decision and the
reasons for it.
If the corruption issue relates to a secondee who is
employed by a government agency, the Commissioner must
advise the head of the person s home agency of his or her decision
to investigate the issue or arrange for the head of the home agency
to investigate the issue (clause 40).
If the corruption issue relates to a secondee whose
home agency is a State or Territory police force, the
Commissioner must also advise the head of any relevant State or
Territory integrity agency of how he or she proposes to deal with
the matter (clause 40).
An exception to the obligations in clause
40 is where advising the head of the home agency or the
integrity agency would be likely to prejudice the investigation or
any action taken as a result of the investigation
(subclause 40(5)). However, in such a case, the
Commissioner must inform the relevant Minister and give reasons for
the decision (subclause 40(6)).
The Commissioner may also advise the person who is the subject
of a corruption allegation of his decision to investigate or refer
the allegation to a State or Territory police force or integrity
agency (clause 41).
Clause 42 allows the Commissioner to reconsider
how a corruption issue should be dealt with.
If the Commissioner has decided to refer a corruption issue to a
law enforcement agency, the AFP, a Commonwealth government agency,
a State or Territory government agency or a State or Territory
integrity agency, the Commissioner must give the head of that
agency relevant information or documents (clauses 43 and
44).
Under clause 70, the Commissioner has a
continuing obligation to pass on information relevant to the
investigation.
New Part 6 applies if the Commissioner
investigates a corruption issue (alone or jointly) (clause
47).
Clause 48 provides that the Commissioner can
conduct an investigation in the manner he or she thinks fit.
However, he or she has a number of obligations under new
Part 6. These are summarised below.
Where a corruption allegation has been referred
by the Minister or notified by the head of a law enforcement
agency, the Commissioner must keep those people informed of
progress of the investigation (subclauses 52(1) and
(2)).
In the case of a section 23 referral (ie by a
person other than the Minister or a law enforcement agency head)
the Commissioner need only keep the person informed of progress if
the person has elected to be kept informed (clause
52).
If the corruption issue relates to a secondee who
is an employee of a government agency, the head of the home agency
or the head of the relevant integrity agency, must be kept informed
of progress (clause 53).
In general, the Commissioner cannot include an opinion or
finding that is critical of a government agency or person in a
report unless the agency head or the person has first been given a
copy of the opinion or finding and an opportunity to respond
(clause 51).
Clause 54 requires the
Commissioner to prepare a report once an investigation is
completed. The report must set out findings, the evidence on which
the findings are based, any action that the Commissioner proposes
to take, any recommendations and the reasons for them.
The Commissioner must exclude section 149 certified
information from the report if public hearings were held
during the course of the investigation. Clause 149 enables the
Attorney-General to certify that the disclosure of certain
information or documents would be contrary to the public interest
on certain grounds. These grounds are listed in subclause
149(2) and are described later in this Digest.
The Commissioner may exclude
sensitive information or section 149 certified information
that the Commissioner thinks it desirable to exclude. The
expression, sensitive information has a wide reach. It includes
information the disclosure of which could prejudice Australia s
security, defence or international relations or relations between
the Commonwealth and States; information that would disclose
certain deliberations of Commonwealth, State and Territory
Executive Governments; information that could reveal a confidential
source of information in relation to the enforcement of the
criminal law; and information that could endanger public or
individual safety (clause 5).
In deciding whether to exclude information
from the report, the Commissioner must seek an appropriate balance
between the public interest that would be served by including the
information and the prejudicial consequences that might result
(subsequently referred to as the appropriate balance test in this
Digest).
If the Commissioner excludes information, it
must be put in a supplementary report that also sets out the reason
for the exclusion (clause 54).
The Commissioner must:
- give the Commonwealth Minister the report and any supplementary
report (subclause 55(1)), and
- give copies of the report to the head of the relevant law
enforcement agency, home agency or integrity agency. However,
section 149 certified information must be excluded from these
reports if the disclosure would contravene the certificate that has
been issued. Copies of all or part of any supplementary report may
also be provided to the heads of these agencies (subclauses
55(2)-(5))
The Commissioner may require the head of a law enforcement
agency to advise him or her of any follow-up action that is
proposed in response to recommendations made in the report. If the
Commissioner is not satisfied with the response, he or she can
refer the matter to the relevant portfolio Minister. The
Commissioner may also advise Parliament s two Presiding Officers
for presentation to Parliament (clause 57).
However, there seems to be no requirement that material given to
the Presiding Officers must be tabled within any particular
timeframe.
Last, the Commissioner may advise the person who was
investigated of the outcome of the investigation but must not
disclose any section 149 certified information and may decide not
to disclose sensitive information that is desirable in the
circumstances to exclude (clause 59).
If the Commissioner has decided to deal with a
corruption issue by referring it to a law enforcement agency for
investigation or by managing or overseeing that investigation, then
either the head of the agency or a person nominated by the head of
the agency is the contact for the investigation (clause 60
and subclause 5(1)).
Clauses 61 and 62 explain the difference
between managing and overseeing an investigation conducted by a law
enforcement agency.
If the Commissioner manages an investigation carried
out by a law enforcement agency, the Commissioner must give the
nominated contact for the investigation detailed guidance
about the planning and carrying out of the investigation. The
agency head must ensure that these guidelines are adhered to and
that staff cooperate with the Integrity Commissioner
(clause 61).
Overseeing an investigation means that the Commissioner
gives general guidance about carrying out the
investigation. The agency head must ensure that the agency follows
that general guidance (clause 62).
The Commissioner may require progress reports and periodic
reports from law enforcement agencies that are investigating a
corruption issue (clauses 63 and 64). The head of
a law enforcement agency that is investigating a corruption issue
must also keep the Minister informed of progress. Where the issue
was referred by another person under clause 23,
the agency head must also keep that person informed of progress if
the person elects to be kept informed (clause
65).
Reporting obligations extend to all Commonwealth government
agencies not just to law enforcement agencies.
When an investigation conducted by a Commonwealth agency is
completed, the head of the agency must prepare a report setting out
findings, the evidence on which the findings were based, any action
that is proposed and the reasons for that action. A copy of the
report must be given to the Integrity Commissioner. If the
investigation has been carried out by the AFP and relates to
another law enforcement agency, a copy of the report must be given
to the head of the law enforcement agency (clause
66).
The Commissioner can make comments or recommendations in
relation to the report or the investigation that preceded it. The
head of the agency must respond to the Commissioner s request. If
the Commissioner is not satisfied with the response, the
Commissioner may refer the matter to the responsible Minister and
may also send a copy of the material to Parliament s two presiding
officers for presentation to each chamber. Section 149 certified
material must be excluded from material sent to the two Presiding
Officers. Once again, there appears to be no requirement that the
material given to the Presiding Officers must be tabled within any
particular timeframe. Where it is desirable to do so, sensitive
information can also be excluded (clause 67). In
deciding whether to exclude sensitive information, the appropriate
balance test is applied.
There are similar obligations on advising the person who
referred the corruption issue of the outcome of the investigation
(clauses 68 and 69).
Clause 71 provides that the Minister may ask
the Integrity Commissioner to conduct a public inquiry into a
particular corruption issue or issues, issues about corruption
generally in law enforcement agencies, or issues about the
integrity of staff members of law enforcement agencies. The
Commissioner must call for submissions (clause
72).
After conducting a public inquiry, the Commissioner must produce
a report setting out findings, the evidence on which the findings
are based, action that the Commissioner proposes to take under
new Part 10, any recommendations and the reasons
for those recommendations. Section 149 certified information must
be excluded from the report. The Commissioner may also exclude
information that is sensitive information where it is desirable to
do so, subject to the appropriate balance test. If the Commissioner
excludes information, this information must be included in a
supplementary report (clause 73). The report and
supplementary report must be given to the Minister. The Minister
must table a copy of the report in Parliament but need not table
the supplementary report (clauses 74 and 203).
The Bill enables the Commissioner to exercise coercive powers
when conducting investigations, public inquiries and hearings.
For the purposes of investigating a corruption
issue, the Integrity Commissioner s powers include:
- requiring persons, including staff of law enforcement agencies,
to provide information, documents or things (clauses 75 and
76)
- retaining documents or things that are produced in response to
section 75 or 76 requests while it is necessary to do so for the
purposes of the investigation (clause 77).
It is an offence to fail to comply with a request made under
section 75 or 76. The penalty is 2 years imprisonment
(clause 78).
A person must not comply with a section 75 or section 76
requirement if the information of document contains section 149
certified information and the disclosure would contravene the
section 149 certificate (subclause 150(2)).
A lawyer may refuse to give information,
documents or things to the Commissioner if the information or
document contains a privileged communication (clause
79). Privilege will not attach if the person to whom or by
whom the communication was made consents to the information or
document being provided. Further, if a lawyer claims the privilege
and there is no waiver, the Commissioner can require the lawyer to
provide the name and address of the person by whom or to whom the
communication was made.
A person is not excused from complying with a
section 75 or section 76 requirement on the ground of
self-incrimination (clause 80). Use immunity
applies to the information, documents or things if a person claims
that they might be incriminated either before producing the
information etc or in a written statement that accompanies the
information etc.(18) With certain exceptions, this
immunity protects the person from criminal prosecution or
proceedings for the imposition or recovery of a penalty.
Nor is a person excused from complying with a
section 75 or section 76 requirement on the grounds that to do so
would:
- disclose legal advice given to a Minister or a Commonwealth
government agency
- disclose a communication between the officer of a Commonwealth
government agency and another person that is protected by legal
professional privilege, or
- breach a secrecy provision other than a taxation secrecy
provision or a law enforcement secrecy provision (subclause
80(5)).(19)
The Bill protects people required to provide
information or documents who would otherwise commit an offence by
doing so (subclause 80(7) and clause 81). Clause
81 also protects such people indirectly via the application of Part
III of the Crimes Act 1914 (Cwlth). Part III contains
offences such as intimidating and deceiving a witness or preventing
a witness appearing.
When investigating a corruption issue or conducting a public
inquiry, the Commissioner may hold hearings (subclause
82(1)).
Hearings for investigations conducted by the Integrity
Commissioner may be held in public or in private (subclause
82(3)). Matters that must be taken into account by the
Commissioner in deciding whether to hold a such a hearing in public
include whether evidence that may arise is confidential or relates
to the commission of an offence; any unfair prejudice to a person s
reputation that might occur if the hearing is held in public; and
the public interest in having a public hearing (subclause
82(4)).
Hearings for public inquiries must be held in public
but parts of hearings can be held in closed session
(subclause 82(5)).
Additionally, some evidence must be given in private and
witnesses may request that their evidence be given in closed
session (see Evidence below).
The Commissioner can summon a person to attend a hearing to give
evidence or produce documents or things (clause
83).
In the case of a hearing held in order to investigate a
corruption issue, a summons requiring a person to give evidence
must so far as is reasonably practicable , set out the general
nature of the matters that the person will be questioned about.
However, this requirement does not apply if the Commissioner thinks
it would prejudice the investigation (subclause
83(5)).
A non-disclosure notation on a summons is a notation prohibiting
the disclosure of information about the summons or any official
matter connected with the summons. Non-disclosure notations can
only be made where a hearing is to be held in private.
The Commissioner must include a non-disclosure notation
on the summons if satisfied that failure to do so would
reasonably be expected to prejudice:
- a person s safety or reputation
- the fair trial of a person
- the investigation to which the hearing relates or another
corruption investigation or any action taken as a result of such an
investigation.
The Commissioner may include a
non-disclosure notation if satisfied that failure to do so
would prejudice the same matters listed above or if
failure to do so would otherwise be contrary to the public interest
(clause 91).
A summons that includes a non-disclosure notation
must be accompanied by a statement setting out the rights and
obligations found in clause 92 (disclosure
offences and defences).
Clause 92 contains disclosure offences. It is
an offence to disclose information about a summons or any official
matter connected with a summons if the summons is subject to
non-disclosure notation, the notation has not been cancelled and a
period of five years since the summons was issued has not expired
(subclause 92(1)). The penalty is imprisonment for
12 months.
Subclause 92(1) provides a defence if the
disclosure is permitted by the notation. Other defences relate to
disclosures by or to particular classes of person eg disclosures
made to a lawyer in order to obtain legal advice or disclosures
made to a legal aid officer in order to obtain financial assistance
under the Act. Secondary disclosure offences are also created
(subclauses 92(3)-(5)).
The Commissioner may require a witness at a hearing to take an
oath or make an affirmation (clause 87).
Subject to the Commissioner s decision, the following persons
can examine or cross-examine any witness on any matter that the
Commissioner considers relevant:
- counsel assisting the Commissioner
- a person summoned or authorised to appear before the
Commissioner
- any legal practitioner representing a person at a hearing
(clause 88).
The Integrity Commissioner may take evidence outside Australia
(clause 84).
Clause 82 contains general rules about when
hearings must be held in public and in private. Additionally,
clause 89 prescribes certain evidence that
must be given in private that is, evidence that would:
- disclose legal advice given to a Minister or Commonwealth
government agency
- disclose communications between the officer of a Commonwealth
government agency and another person or body that is protected by
legal professional privilege
- breach a secrecy provision other than a taxation secrecy
provision or a law enforcement secrecy provision.
Further, a person giving evidence at a public hearing may
request that their evidence be given in private because it relates
to the financial position of any person or because taking the
evidence in public would be unfairly prejudicial to their
interests. If considered appropriate, the Commissioner can decide
that the evidence will be given in private session
(subclauses 89(2) and (3)).
A person giving evidence at a hearing may be represented by a
lawyer. In special circumstances and with the consent of the
Commissioner, a person who is not giving evidence may be
represented by a lawyer at a hearing (clause 85).
The Integrity Commissioner must allow a person who is giving
evidence to be legally represented when evidence is being given
(subclause 86(2)).
Clause 90 empowers the Commissioner to prohibit
or restrict publication of:
- evidence given at a hearing
- the contents of documents produced at a hearing
- information that may enable a witness at a hearing to be
identified
- the fact that a particular person has given or may give
evidence at a hearing.
It is an offence punishable by 12 months
imprisonment to contravene such a direction (subclause
90(6)).
The Bill creates a number of offences in relation to
hearings:
- failure to attend a hearing as required by a summons (penalty:
12 months imprisonment) (subclause 93(1))
- failure to be sworn or make an affirmation as required at a
hearing (penalty: 2 years imprisonment) (subclause
93(2))
- failure to produce a document or thing as required at a hearing
(penalty: 2 years imprisonment) (subclause 93(4)),
and
- contempt (penalty: 6 months imprisonment) (clause
94). Contempt includes insulting the Integrity
Commissioner, creating a disturbance in or near a place where the
person knows a hearing is being held, and interrupting a
hearing.
However, a person must not comply with a requirement to produce
information or documents at a hearing if the information or
document contains section 149 certified information and to do so
would contravene a section 149 certificate (subclause
150(3)).
A person who is summoned to appear as a witness is entitled to
travelling and other allowances as are prescribed by regulation
(subclause 83(6)). ). Further, a person who is
summoned to attend a hearing may apply to the Attorney-General for
legal and financial assistance (clause 103).
The self-incrimination provisions in relation to hearings in
clause 96 mirror those in clause
80, which relates to providing information, documents or
things to the Integrity Commissioner.
The Integrity Commissioner can apply to the Federal Court for an
order that a person deliver his or her passport to the
Integrity Commissioner. Such an application can be made where a
person has been summoned to attend a hearing or has appeared at a
hearing and there are reasonable grounds to believe that the person
may be able to provide relevant evidence, documents or things and
there are reasonable grounds for suspecting that the person intends
to leave Australia and has a passport in their possession
(clause 97).
A person who is the subject of a clause 97
application must appear in Court and show cause why their passport
should not be delivered up to the Integrity Commissioner. It is an
offence to leave Australia when required to appear before the
Federal Court (penalty: 2 years imprisonment). The Federal Court
may order a person to surrender any passport in their possession
and authorise the Commissioner to keep it for not more than a
month. Extensions can be granted but the total period during which
the passport can be retained by the Commissioner cannot exceed 3
months (clause 98).
An authorised officer can also apply to the Federal Court or a
State or Territory Supreme Court for an arrest warrant if
the authorised officer has reasonable grounds to believe that:
- the person has been ordered to surrender their passport and is
likely to leave Australia in order to avoid giving evidence at a
Commission hearing
- the person has been summoned and is likely to abscond, or
- the person has committed an offence against subsection 93(1)
(failing to attend a hearing) or is likely to do so.
If the judge is satisfied that on reasonable grounds that any of
the above grounds are met, he or she may issue an arrest warrant
(clause 100). The person executing the warrant
need not have a copy of the warrant in their possession at the time
it is executed. With exceptions, he or she must tell the person
about the substance of the reason for their arrest without having
to do this in language of a precise or technical nature
(subclauses 100 (5)-(7)).
An arrested person may be bailed, detained or released by order
of a judge of the Federal Court or a State or Territory Supreme
Court (clause 101).
In exercising their power to hold hearings, the Integrity
Commissioner and Assistant Integrity Commissioners have the same
protections and immunities as High Court judges. Lawyers assisting
the Commission or representing a person at a hearing have the same
protection and immunity as barristers.
A person who gives evidence or produces documents or things at a
hearing or makes a submission to a public inquiry has the same
protection as a witness in High Court proceedings (clause
104).
For the purposes of investigating a corruption issue ,
clause 105 empowers the Commissioner or an
authorised officer to enter places occupied by law enforcement
agencies without a warrant, inspect and copy documents kept at the
premises, and remove documents (in order to copy them). Things can
be seized if they are relevant to an indictable offence or if
seizure is necessary to prevent concealment, loss or
destruction.
There are exceptions to this power of entry, search and seizure.
Without the approval of the responsible Minister, the power cannot
be exercised in relation to:
- a Commonwealth place that is declared to be a prohibited place
on the ground that information with respect thereto, or damage
thereto, would be useful to an enemy or to a foreign power
(20)
- prohibited places or restricted areas under the Defence
(Special Undertakings) Act 1952 Special defence undertakings
are works carried out for the defence of the Commonwealth
(subclause 105(3)).
The Attorney-General can also prevent entry or make entry
subject to conditions if satisfied that conducting an investigation
at a place might prejudice the security or defence of the
Commonwealth (subclause 105(4)). A declaration
made under subclause 105(4) is not a legislative
instrument. In other words, it need not be registered or tabled in
Parliament and cannot be disallowed.
New Division 4 of Part 9 enables a variety of warrants to be
sought by authorised officers and issued by issuing officers :
- warrants to search premises (investigation warrants).
An authorised officer can apply for these warrants if he or she has
reasonable grounds for suspecting that there is, or will be,
evidential material on the premises and that if a person
is summoned to produce evidential material it might be concealed,
lost or destroyed
- warrants to search premises (offence warrants). An
authorised officer can apply for these warrants if he or she
suspects on reasonable grounds that there is, or will be,
evidential material on the premises
- warrants to search persons (investigation warrants).
An authorised officer can apply for investigation warrant to search
a person if he or she suspects on reasonable grounds that a person
has, or will have, evidential material in their possession
and that if the person was summoned to produce the
material it might be concealed, lost or destroyed
- warrants to search persons (offence warrants). An
authorised officer can apply for an offence warrant to carry out an
ordinary or frisk search of a person if he or she suspects on
reasonable grounds that the person has, or will have, evidential
material in their possession.
The person applying for the warrant must give the issuing
officer information on oath or affirmation to support the
application and must also advise if any previous application has
been made for a search warrant under any Commonwealth law in
relation to the same person or premises (clause
108).
In order to issue a search warrant, the issuing officer must be
satisfied that there are reasonable grounds for the authorising
officer s suspicions. Issuing officers for investigation warrants
are Federal Court judges or judges of State or Territory courts.
Magistrates are issuing officers for offence warrants. In order to
avoid any potential separation of powers problems, the functions
conferred on issuing officers are conferred with their consent and
in a personal capacity (subclause 109(8)).
Subclause 110(1) sets out the general contents
of a section 109 warrant. If the warrant is an investigation
warrant it must state the corruption issue or public inquiry to
which it relates. Similarly, an offence warrant must state the
offence to which it relates. The warrant must also describe the
premises or person to which it relates, the kind of evidential
material being sought, the name of the executing officer, the time
at which the warrant expires and when the warrant may be
executed.
Warrants expire no later than the end of the seventh day after
the day they are issued (subclause 110(2)).
Additional requirements are specified for warrants that relate
to premises and persons. For instance, if the warrant relates to a
person it must specify the kind of personal search (ordinary or
frisk) that is authorised. Warrants cannot authorise strip searches
or searches of body cavities (clause 114).
Warrant applications may be made by telephone, fax, email or
other electronic means in urgent circumstances or if an application
in person would frustrate the effective execution of the warrant
(subclause 111(1)). In order to issue such a
warrant, the issuing officer must also be satisfied that one of
these circumstances exists. Warrants issued as a result of such an
application expire at the end of the 48th hour after
being issued (new paragraph 111(4)(b)).
Things that are authorised by search warrants relating to
premises include entering the premises, taking fingerprints and
samples, searching for and seizing evidential material of the kind
specified in the warrant, and seizing other things (clause
112).
In the case of a warrant authorising a personal search, the
executing officer can search the person, things found in their
possession and any aircraft, vehicle or vessel that the person
operated or occupied within 24 hours before the search began. Such
a warrant also enables things to be seized (clause
113).
In general, an executing officer must first announce that he or
she is authorised to enter premises and provide an opportunity for
entry to be permitted. However, it is not necessary to comply with
this requirement if the officer believes on reasonable grounds that
immediate entry is required to ensure personal safety or ensure
that the execution of the warrant is not frustrated (clause
116).
Necessary and reasonable force can be used against persons and
things in executing the warrant (clause 117).
Five warrant offences are created by the Bill:
- making false statements in warrants (clause
132)
- stating incorrect names in telephone warrants (clause
133)
- unauthorised form of warrant (clause 134)
- executing an unauthorised form of warrant (clause
135), and
- giving an unexecuted form of warrant (clause
136).
All offences carry a penalty of two years
imprisonment.
Clause 140 provides that the Integrity
Commissioner can appoint the following people as authorised
officers:
- staff of the Australian Commission for Law Enforcement
Integrity who have suitable qualifications or experience,
or who are AFP members or who are members of
State or Territory police forces, or
- AFP members.
In order to appoint people from agencies other than the ACLEI,
the Commissioner must have the consent of the agency head.
Authorised officers must carry an identity card with them at all
times when exercising their powers. The identity card must contain
a recent photograph and must be in the form prescribed by
regulation. Authorised officers cannot exercise their powers in
relation to persons or premises without producing their identity
card, if required to do so by the occupier of premises etc
(subclauses 141(4) and (5)).
It is an offence for a former authorised officer who has been
issued with an identity card to fail to return the card to the
Integrity Commissioner (subclause 141(6)). The
penalty is 1 penalty unit ($110).
If the Integrity Commissioner obtains evidence of a Commonwealth
offence or a breach of Commonwealth law while investigating a
corruption issue or conducting a public inquiry, the Commissioner
must give the evidence to the AFP or other relevant Commonwealth
authority (subclause 142(1)). New
subsection 142(2) places similar obligations on the
Commissioner in relation to breaches of State or Territory law.
Obligations are also placed on the Commissioner if he or she
obtains evidence that would be admissible in confiscation
proceedings under Commonwealth, State or Territory law
(clause 143).
Clause 144 obliges the Integrity Commissioner
to consult with the heads of relevant law enforcement agencies,
home agencies, and integrity agencies before taking action under
clauses 142 or 143. The Commissioner must also
notify the heads of relevant agencies if he or she takes action
under clauses 142 or 143.
In specified circumstances, the Commissioner must also bring
evidence of any breach of duty or misconduct by staff of a law
enforcement agency to the attention of the head of the law
enforcement agency. Similarly, evidence of breach of duty or
misconduct by a secondee to a law enforcement agency must be
brought to the attention of the head of the secondee s home agency
or the head of an integrity agency for the particular State or
Territory (clause 146).
If, while conducting an investigation or public inquiry, the
Commissioner obtains evidence suggesting that a person was wrongly
convicted of a Commonwealth, State or Territory offence, the
Commissioner must bring this evidence to the relevant Minister
(clause 147).
Obligations similar to those in clause 142 are
imposed on the Commissioner in relation to information obtained
while conducting an investigation or public inquiry (clause
148).
The Attorney-General may specify that the disclosure of
information or a document would be contrary to the public interest
on one or more of the grounds specified in subclause
149(2). These grounds are that the disclosure would:
- prejudice the Commonwealth s security, defence or international
relations
- involve the disclosure or communications between a Commonwealth
Minister and a State or Territory Minister and would prejudice
relations between the Commonwealth and a State or Territory
- involve the disclosure of Cabinet deliberations or decisions or
the deliberations or advice of the Federal Executive Council
- prejudice the conduct of a current investigation into criminal
activity or the contravention of a civil penalty provision
- reveal the existence or identity of a confidential source of
information in relation to the enforcement of Australian or foreign
criminal law or a civil penalty provision
- prejudice the effectiveness of the operational methods or
investigative practices of agencies responsible for the enforcement
of Australian or foreign criminal law or a civil penalty
provision
- prejudice the proper performance of the ACC s functions,
or
- endanger human life or safety.
Issuing a section 149 certificate has a number of important
consequences. It prevents a disclosure that would otherwise be
authorised or required by the LEIC Bill, if that disclosure would
contravene the section 149 certificate:
- disclosures by law enforcement agency heads to the Commissioner
(subclause 150(1))
- requirements to produce documents or things to the Commissioner
or at hearings (subclauses 150(2) & (3))
- disclosures by the head of a law enforcement agency to another
government agency (clauses 151)
- disclosures by the Commissioner to the head of a government
agency or a special investigator investigating alleged ACLEI
corruption (clause 152)
- disclosures by the Commissioner to the proposed Parliamentary
Joint Committee on the Australian Commission for Law Enforcement
Integrity (subclause 216(2)).
Section 149 certified information must be excluded from the
Commissioner s reports where public hearings were held during the
course of an investigation and must not be included in reports of
investigations that are sent to the heads of law enforcement
agencies, home agencies or integrity agencies, if to do so would
contravene the certificate (clause 55).
Additionally, the Commissioner s annual reports and special reports
cannot include section 149 certified information (clause
206).
The expression, ACELI corruption issue, is an issue
whether a current or former ACLEI staff member has engaged or is
engaging in corrupt conduct or may in the future engage in corrupt
conduct (clause 8).
Clause 153 requires the Integrity Commissioner
to notify the Minister if he or she becomes aware of a corruption
issue that relates to current or former ACLEI staff. Similarly, if
ACLEI staff become aware of a corruption issue that relates to the
Integrity Commissioner, they must notify the Minister. Other
persons may also refer ACLEI corruption issues to the Minister
(clause 154) and may elect to be kept informed of
the action being taken (clause 155).
If the Minister is notified of, or becomes aware of an ACLEI
corruption issue, the Minister may:
- refer the issue to the Commissioner for investigation
- authorise a person to conduct a special investigation, or
- decide to take no further action (clause
156).
If a special investigator is appointed, then the Integrity
Commissioner must pass on any relevant information or documents
that are in his or her possession.
A special investigator must be a lawyer of at least 5 years
standing (clause 157). The Minister may also
appoint legal counsel to assist the special investigator
(clause 158).
In general, clause 160 applies new
Parts 6, 9 and 10 to investigations of ACLEI corruption
issues carried out by the Integrity Commissioner. Part 6 relates to
investigations by the Commissioner, Part 9 relates to the
Commissioner s powers when conducting an investigation or public.
Part 10 deals with evidence obtained in an investigation or public
inquiry.
When the Minister appoints a special investigator to investigate
an ACLEI corruption issue, clause 167 applies
Parts 6, 9 and 10 of the legislation to those investigations. In
general, this means that the special investigator can exercise the
same powers as the Integrity Commissioner.
The special investigator must keep the Minister informed of the
investigation s progress. Similarly, if a person has referred the
allegation to the Minister and elects to be kept informed, the
special investigator must also keep that person informed of
progress (clause 168).
When the investigation is finished, the special investigator
must prepare a report setting out findings, the evidence on which
the findings are based, any recommendations and the reasons for
them (subclauses 160(1) and (2)). The report must
be given to the Minister and the Integrity Commissioner. The
special investigator must also, in general, advise the person who
referred the ACLEI corruption issue and anyone whose conduct is
investigated of the outcome of the investigation (clauses
172 and 173). There are some exceptions to the obligations
in clauses 172 and 173 for instance, if to do so
is likely to prejudice the investigation of the corruption issue.
Information may be excluded from the advice if it is sensitive
information and it is desirable not to include it. Information must
be excluded if it is section 149 certified information.
The special investigator s report cannot contain section 149
certified information if public hearings were held during the
investigation. Nor can it contain sensitive information or section
149 certified information that it is desirable to exclude. In
making this latter assessment, the special investigator must apply
the appropriate balance test.
If information is excluded from a report, it must be included a
supplementary report for the Minister and the Integrity
Commissioner.
Clause 171 enables the Minister to direct the
Integrity Commissioner to consider whether anyone named in the
report should be dismissed or have disciplinary action taken
against them (subclause 170(7)).
Finally, clause 174 creates offences that apply
if the Commissioner or ACLEI staff fail to appropriately report
ACLEI corruption issues about which they are aware. The penalty is
6 months imprisonment.
The Commissioner is appointed by the Governor-General (on the
advice of the Government). He or she must be a judge (of the
Federal Court or a State or Territory Supreme Court) or a lawyer of
at least 5 years standing. The Commissioner cannot be appointed for
more than 5 years, although there is no bar to re-appointment. The
appointment is a full-time appointment.
Remuneration and leave entitlements are determined by the
Remuneration Tribunal. The Commissioner cannot engage in other paid
employment without the Minister s consent.
The Governor-General (acting on the advice of the
Government):
- may terminate the Commissioner s appointment on the grounds of
misbehaviour or physical or mental incapacity
- must terminate the Commissioner s appointment if the
Commissioner becomes bankrupt, is absent from duty for specified
periods without leave, engages in outside paid employment without
the Minister s consent or fails to disclose any interests that
could conflict with the proper performance of his or her functions
(clauses 183 and 184).
Eligibility for appointment, period of appointment, remuneration
provisions mirror those for the Integrity Commissioner
(clauses 185 and 188).
Assistant Integrity Commissioners can be appointed on a
full-time or part-time basis. However, an Assistant Integrity
Commissioner who is a judge must be appointed on a full-time
basis.
Remuneration for Assistant Integrity Commissioners will either
be set by the Remuneration Tribunal or prescribed by
regulation.
Full-time Assistant Integrity Commissioners cannot engage in
outside paid employment without the Minister s consent. Part-time
Assistant Integrity Commissioners cannot engage in outside paid
employment that the Minister considers could conflict with the
proper performance of their duties (clause
190).
The appointment of Assistant Integrity Commissioners can be
terminated in the following ways:
- for misbehaviour or physical or mental incapacity
- bankruptcy
- failure to comply with the disclosure of interests provision in
new section 194
- absence from duty for specified periods without leave
- engaging in outside paid employment without the Minister s
consent (clause 193).
Clause 195 establishes the Australian
Commission for Law Enforcement Integrity (ACLEI), a body consisting
of the Commissioner, Assistant Commissioners and staff. Staff are
employed under the Public Service Act 1999.
The Integrity Commissioner is empowered to engage consultants,
appoint legal counsel, and employee secondees (clauses 198,
200 and 199, respectively). Secondees may be drawn from
the AFP; State, Territory or foreign police forces; Commonwealth
government agencies; or State, Territory or foreign integrity
agencies.
The Integrity Commissioner must give an annual report to the
Minister for presentation to Parliament. The contents of annual
reports are specified in subclause 201(2). They
include:
- prescribed particulars of corruption issues that have been
notified to, referred to, dealt with, investigated or referred on
by the Integrity Commissioner
- prescribed particulars of ACLEI corruption issues investigated
during the year
- a description of investigations that raise significant issues
or developments in law enforcement
- a description of patterns or trends, and the nature and scope
of corruption in law enforcement agencies and other Commonwealth
agencies that have law enforcement functions
- recommendations for changes to Commonwealth laws or
administrative practices
- prosecutions or confiscation proceedings that have resulted
from the Commissioner s investigations, and
- details of court proceedings (including judicial review
applications) involving the Integrity Commissioner.
A copy of any annual report that mentions the Australian Crime
Commission must be given to the Inter-Governmental Committee that
monitors the ACC s work and performance and oversees its strategic
directions.(21) Any written comments made by the
Inter-Governmental Committee must be tabled in Parliament by the
Minister within 15 sitting days of the Minister receiving the
comments (clause 202).
Reports on investigations and public inquiries must be presented
to the Minister and tabled by the Minister within 15 sitting days
of being received (clause 203).
However, before such reports are tabled the Minister must remove
any information that would, in his or her view:
- endanger human life or safety
- prejudice proceedings brought as a result of a corruption
investigation, public inquiry or an investigation that the
Commissioner manages or oversees, or
- compromise operational activities or methodologies of the ACLEI
or a law enforcement agency.
The Commissioner can also provide occasional reports to the
Minister on the Commissioner s operations or any matter relating
to, or arising in connection with the performance of the
Commissioner s functions or powers. The Minister must table such a
report in Parliament within 15 sitting days of receiving it
(subclauses 204(1)-(2)).
However, before including anything in such a report that is
critical of a government agency or person, the Commissioner must
advise the government agency or person and give them a reasonable
opportunity to appear and make submissions (subclauses
204(3)-(8)).
Similarly, if a special report relates to the ACC, the
Commissioner must give a copy to the Inter-Governmental Committee.
The Minister must table any written comments made by the
Inter-Governmental Committee within 15 sitting days of receiving
them (clause 205).
Annual reports and special reports:
- must not include section 149 certified information
- the Commissioner may exclude information if satisfied that is
sensitive information and it is desirable in the circumstances to
exclude the information. In making this decision the Commissioner
must seek to achieve an appropriate balance between the public
interest and prejudicial consequences.
In general, staffers and former staffers of the ACLEI must not
record, divulge or communicate information they have acquired in
the course of their duties. If a corruption issue is being jointly
investigated by the Integrity Commissioner and a government agency,
any information a staffer obtains in the course of participating in
the joint investigation is also subject to the confidentiality
requirements.
A person who breaches the confidentiality requirements is
subject to a penalty of imprisonment for 12 months or 50 penalty
units ($5500), or both.
The general confidentiality obligations do not prevent:
- a person from making a record of, or divulging or communicating
information if this is done for the purposes of a corruption
investigation or for LEIC Act purposes
- information being communicated if the Act requires or permits
the Commissioner to communicate the information
- the Commissioner disclosing information to a Commonwealth,
State or Territory Ombudsman, the head of a law enforcement agency,
the head of a State or Territory police force, the head of a State
or Territory integrity agency or the head of another government
agency
- a disclosure required by another Commonwealth law
- the Commissioner disclosing information to a particular person
if the Commissioner is satisfied that it is necessary to do so to
protect the person s life or physical safety (clause
208).
With the exception of section 149 certified
information, the Commissioner can also make disclosures in the
public interest (clause 209). In making a decision
to make a public interest disclosure the Commissioner must use the
appropriate balance test. Further, if such information includes a
finding or opinion that, expressly or impliedly, is
critical of a government agency or person, the agency or person
must first be notified and given a reasonable opportunity to appear
before the Commissioner and make submissions (clause
210).
In general, current or former ACLEI staffers are
not compellable in court, tribunal or other proceedings to disclose
information or produce documents acquired because they are or have
been an ACLEI staffer (subclause 211(1)-(2)).
This provision does not apply to a proceeding if
the Integrity Commissioner, a delegate or a person authorised under
the LEIC Act is a party to proceedings in their official capacity
or the proceeding is a prosecution, civil penalty proceeding or
confiscation proceeding brought as a result of a corruption
investigation that the Commissioner has conducted or overseen or is
a public inquiry conducted under the LEIC Act (subclause
211(3)).
Oversight of the ACLEI is to be provided by a new parliamentary
committee to be called the Parliamentary Joint Committee on the
Australian Commission for Law Enforcement Integrity (clause
213). This committee will be a separate committee to the
committee established to oversee the Australian Crime
Commission.(22) The committee will consist of 10 members
five appointed by the Senate and five by the House of
Representatives. Certain parliamentarians are ineligible for
appointment Ministers, the President of the Senate, the Speaker of
the House of Representatives, the Deputy President and Chair of
Committees of the Senate, and the Chair of Committees of the House
of Representatives.
The duties of the parliamentary joint committee are set out in
clause 215. They include:
- monitoring, reviewing and reporting on the Commissioner s
performance, and on any matter relating to the ACLEI
- examining the Commissioner s annual and special reports
- examining and reporting on trends in corruption in Commonwealth
government agencies, and changes to the Commissioner s functions,
powers or procedures, and
- inquiring into any question connected with the Commissioner s
duties that is referred by either House of Parliament.
In general, the Commissioner must comply with a
committee request for information. However, the Commissioner must
not comply if the information is section 149 certified information
and the disclosure would contravene the certificate. Further, the
Commissioner may decide not to comply if the information is
sensitive information and the public interest that would be served
by disclosing the information is outweighed by the prejudicial
consequences that might result. In such a situation, the committee
may refer the request to the Minister. The Minister must then
determine whether the information is sensitive information and
whether the public interest in disclosing it is outweighed by the
prejudicial consequences that might result from disclosure. Such a
determination is not a legislative instrument (clause
216).
Clause 217 provides that the Minister must give
information to the committee about the investigation of an ACLEI
corruption issue when the committee requests it. However:
- the Minister must not comply if the information is section 149
certified information
- the Minister may decide not to comply if satisfied that the
information is sensitive information and the public interest in
disclosing the information is outweighed by the prejudicial
consequences that might result.
Clause 218 requires the
Ombudsman to brief the committee at least once a year about the
Integrity Commissioner s involvement in controlled operations.
Clause 219 enables the Integrity
Commissioner to delegate in writing functions or powers to
Assistant Integrity Commissioners and ACLEI SES or acting SES level
staff (subclauses 219(1) and (3)).
However:
- the power to hold a hearing in order to conduct a public
inquiry cannot be delegated to an Assistant Integrity Commissioner
or SES or acting SES level ACLEI staff, and
- the Commissioner s powers to obtain information, documents and
things; conduct hearings and enter law enforcement agency premises
without a warrant cannot be delegated to SES or acting SES level
ACLEI staff (subclauses 219(2) and (4)).
It is an offence to threaten to victimise a
person because that person:
- has or may refer a corruption allegation to the
Commissioner
- has or may refer an ACLEI corruption issue to the Minister
- has or may notify the Integrity Commissioner of an ACLEI
corruption issue
- has or may give information to the Integrity Commissioner or a
special investigator
- has produced or may produce a document or thing to the
Integrity Commissioner or a special investigator (subclause
220(1)).
Victimisation offences attract a maximum penalty
of 2 years imprisonment. A threat may be express or implied,
conditional unconditional.
Concluding comments
On 30 March 2006, the Senate referred the LEIC Bill, the
Consequential Amendments Bill and the AFP Professional Standards
Bill to the Senate Legal and Constitutional Legislation Committee
for inquiry and report. The Committee reported on 11 May 2006. Some
of its recommendations are described below.
The Senate Committee heard evidence that the Commissioner s
jurisdiction should encompass more law enforcement agencies or be
extended to corruption in the Commonwealth public sector generally.
At present, the Commissioner s jurisdiction is effectively limited
to two Commonwealth law enforcement agencies the AFP and the ACC.
Other law enforcement agencies can be prescribed by regulation. As
Dr AJ Brown from Griffith University pointed out in his submission
to the Senate Committee, the Integrity Commissioner s current
restricted jurisdiction will mean that corruption investigations
relating to other government agencies will continue to be carried
out by the AFP, the Commonwealth Ombudsman and costly, ad hoc royal
commissions.
While most investigations into breaches of Commonwealth law are
carried out by the AFP, the decision to initiate investigative
action usually rests with the administering department or agency.
If the department or agency has an investigative arm, the
investigation is usually carried out in-house. (23)
Commonwealth agencies with law enforcement functions (as defined
in the Bill) may thus include the Australian Customs Service, the
Australian Taxation Office, the Commonwealth Director of Public
Prosecutions, the Department of Immigration and Multicultural
Affairs, AUSTRAC, the Australian Competition and Consumer
Commission, the Australian Securities and Investments Commission,
Centrelink, and the Department of Employment and Workplace
Relations.(24)
Proposed limitations on the Commissioner s jurisdiction mean
that it will be the Executive Government that is responsible for
deciding which of its own agencies are subject to the Commissioner
s jurisdiction.(25) It means that decisions in
unprescribed agencies with law enforcement functions about whether
or not to initiate, and in some cases carry out, investigative
action will be outside the Commissioner s jurisdiction. It will
also mean that non-criminal corruption and serious misconduct
occurring in unprescribed agencies will be outside the Commissioner
s jurisdiction.(26)
The Senate Committee:
- recommended that changes to the Commissioner s jurisdiction be
by way of primary legislation rather than by regulation
(recommendation 1).
- considered that a Commonwealth integrity agency with general
jurisdiction is needed and that consideration should also be given
to developing such a commission in the longer term.
(27)
ALP members of the Committee considered that the ACLEI should be
given a broad mandate to uncover maladministration or corruption
wherever found. (28) Australian Democrat members
proposed that the Integrity Commission should be given general
jurisdiction to investigate all Commonwealth agencies with law
enforcement functions ... (29)
The Senate Committee commented:
It is essential that the informants to ACLEI must
be adequately protected. Such informants may face considerable
personal risk in revealing information about corrupt conduct and
failure to ensure the person giving information is protected from
retribution, becomes a disincentive to such people and thereby
defeats the purpose of the LEIC Bill. (30)
The Committee recommended that the Commissioner be empowered to
make arrangements to protect an informant whose safety may be
prejudiced or who may be subject to intimidation or harassment
(recommendation 4). A provision along these lines is found in
section 51 of the Police Integrity Act 1996 (NSW).
The grounds on which the Minister can issue section 149
certificates are very wide. Their effect is to prevent certified
information being disclosed to or by the Integrity Commissioner for
instance, during the course of an investigation or hearing, in a
report to Parliament or from disclosure to the proposed
parliamentary oversight committee.
In its submission to the Senate Committee, the Police Federation
of Australia recommended that a reporting process apply when the
Minister issues a section 149 certificate to ensure openness and
accountability. However, the Attorney-General s Department took the
view that providing more detailed reasons for issuing a
certificate would be counter-productive.(31)
The Senate Committee accepted the arguments against providing
detailed reasons but concluded that:
it remains important for the transparency of the
overall system that certain information is available to the
Parliament on the operation of the proposed system. It should be
possible, without prejudicing security, to publish a report that
includes, for example, the number of times clause 149 certificates
have been issued by the Minister; the number of documents exempted
by the certificate, and from which agency the information derives.
Such generalised information would give an indication of the extent
to which the power is being used and the amounts of information
being excluded from the Commissioner s
inquiries.(32)
The Committee recommended that the Bill be amended to require
the Minister to provide a report to Parliament on the proposed
section 149 certificates he or she has provided in the previous
financial year (recommendation 9). (33)
The Senate Committee noted that the ACLEI will be a significant
development in the Commonwealth s overall integrity framework. It
also remarked that there are several significant aspects of the
Commission s jurisdiction, powers, proceedings and relationships
that need to be resolved over the first couple of years of
operation. It drew attention to section 61A of the Australian
Crime Commission Act 2002. Section 61A provides for an
independent review of that Act to be established as soon as
practicable after 1 January 2006 and to report to the Minister. The
report must be tabled in Parliament.
The Committee recommended that the LEIC Bill be amended to
provide for a review three years from the date of commencement of
the Act (recommendation 11).
Parliament may wish to compare the LEIC Bill s provisions for
dealing with complaints against the ACLEI with mechanisms for
complaints against other standing anti-corruption commissions in
Australia.
The LEIC Bill gives the Minister the power to make decisions
about how and whether ACLEI corruption issues are to be
investigated.(35) The Minister may decide to refer an
ACLEI corruption issue to the Integrity Commissioner for
investigation, to appoint an ad hoc special investigator or take no
action. An ACLEI corruption issue cannot be referred to the
Integrity Commissioner if it relates to the conduct of a current
ACLEI staffer employed under the Public Service Act
1999.
In other jurisdictions, bodies that are specialist, independent
and permanent are established to receive and investigate complaints
made against anti-corruption commissions. In Queensland, the
Parliamentary Crime and Misconduct Commissioner ( PCMC ) is an
independent statutory authority whose functions include
investigating complaints against or concerns about the Crime and
Misconduct Commission or a commission officer. The PCMC is
independent from the Crime and Misconduct Commission and is not
part of the Executive Government. The PCMC is an officer of the
Parliament.
In New South Wales, one of the principal functions of the
Inspector of the Independent Commission Against Corruption is to
deal with complaints of ICAC abuse of power, impropriety,
misconduct and maladministration. The position of Inspector is
created under the Independent Commission Against Corruption Act
1988 (NSW). The Inspector s functions can be exercised on the
Inspector s own initiative, at the request of the Minister, in
response to a complaint or in response to a reference from the
Joint Parliamentary Committee on the Independent Commission Against
Corruption, any public authority or public official.
- The Australian Crime Commission commenced operations on 1
January 2003. It replaced the National Crime Authority.
- For example, in Queensland the Commission of Inquiry into
Alleged Illegal Activities and Associated Police Misconduct (the
Fitzgerald Royal Commission); the NSW Royal Commission into the
Police (Wood Royal Commission); and the Western Australian Police
Royal Commission.
- http://www.icac.nsw.gov.au The
Commission is established under the Independent Commission
Against Corruption Act 1988 (NSW).
- http://www.pic.nsw.gov.au The
Police Integrity Commission is established under the Police
Integrity Commission Act 1996 (NSW).
- http://www.cmc.qld.gov.au The
Crime and Misconduct Commission is established under the Crime
and Misconduct Act 2001 (Qld).
- http://www.ccc.wa.gov.au The
Commission is established under the Corruption and Crime
Commission Act 2003 (WA).
- Office of Police Integrity Annual Report, 30 June 2005 at:
http://www.opi.vic.gov.au/OPI2005AnnualReport.pdf
The functions of the Director, Police Integrity are set out in the
Police Regulation Act 1958 (Vic).
- Australian Law Reform Commission, Integrity: but not by
trust alone. AFP & NCA complaints and disciplinary
systems, Report No. 82, 1996. The report can be found at:
http://www.austlii.edu.au/au/other/alrc/publications/reports/82/ALRC82.html
- Corruption fears infect crime body , Australian, 25
May 2004.
- ABC Four Corners, Corruption Inc , 14 June 2004 (Reporter:
Chris Masters). The transcript can be accessed at: http://www.abc.net.au/4corners/content/2004/s1131829.htm
- Attorney-General, Minister for Justice and Customs,
Commonwealth to set up independent national anti-corruption body ,
Joint Media Release, 16 June 2004. Further information
about the events preceding the announcement can be found in AJ
Brown, Federal anti-corruption policy takes a new turn but which
way? Issues and options for a Commonwealth integrity agency, (2005)
16 Public Law Review, pp. 93-8.
- ABC, The 7:30 Report, Ellison denies
corruption U-turn , 16 June 2004. Transcript at: http://www.abc.net.au/7.30/content/2004/s1133508.htm
- Greater role for new graft watchdog , Australian, 20
September 2005.
- See www.parliament.qld.gov.au
- See Major Crime (Special Investigations Monitor) Act
2004 (Vic).
- Note that where a Commonwealth offence is punishable only by
imprisonment, then unless the contrary intention appears a court
can impose a fine or a fine and imprisonment, instead of
imprisonment. Fines are calculated by converting the term of
imprisonment to months and multiplying by five. This number becomes
the number of penalty units that are imposed (see section 4B,
Crimes Act 1914).
- Clause 5.
- Use immunity means that a person s compelled evidence cannot be
used in any future prosecution against them. However, they do not
have derivative use immunity. This means that any evidence
derived from answers they are compelled to give or
documents they are compelled to provide can be used to prosecute
them.
- A taxation secrecy provision is a secrecy provision in a
taxation law within the meaning of the Taxation Administration
Act 1953 (clause 5). A law enforcement
secrecy provision means the following provisions and anything done
under them: Part IV of the Financial Transactions Reports Act
1988, section 45 of the Surveillance Devices Act
2004, and sections 63 and 133 of the Telecommunications
(Interception) Act 1979.
- Paragraph 80(c), Crimes Act.
- The Inter-Governmental Committee consists of the Commonwealth
Minister for Justice and Customs and Ministers from each State and
Territory.
- The Parliamentary Joint Committee on the Australian Crime
Commission oversees the Australian Crime Commission.
- See Commonwealth Director of Public Prosecutions,
Prosecution Policy of the Commonwealth at: http://www.cdpp.gov.au/Prosecutions/Policy/
- A variety of other agencies may also fall within the definition
of agencies with law enforcement functions. These agencies might
include the Australian National Parks and Wildlife Service, the
Australian Pesticides and Veterinary Medicines Authority, the
Department of Veterans Affairs, Medicare Australia, the Australian
Electoral Commission, the Australian Quarantine Inspection Service,
the Therapeutic Goods Administration and the Australian Institute
of Criminology.
- By prescribing or unprescribing an agency, subject to Senate
disallowance.
- See Senate Legal and Constitutional Legislation Committee,
Committee Hansard, Dr AJ Brown, Evidence, 27 April
2006.
- Senate Legal and Constitutional Legislation Committee,
Provisions of the Law Enforcement Integrity Commissioner Bill
2006, Law Enforcement Integrity Commissioner (Consequential
Amendments) Bill 2006, Law Enforcement (Professional Standards and
Related Measures) Bill 2006, May 2006, p. 28. The report can
be accessed at:http://www.aph.gov.au/senate/committee/legcon_ctte/aclei/report/index.htm
- ibid., Additional Comments by the Australian Labor Party,
para., 1.2.
- ibid., Minority Report by the Australian Democrats, para.,
1.6.
- ibid., p. 32.
- ibid., see pp. 40 41.
- ibid, p. 41.
- ibid.
- This issue was not the subject of recommendations by the Senate
Committee.
- Complaints can also be made to the Commonwealth Ombudsman.
Jennifer Norberry
29 May 2006
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
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members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2006
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