Chapter 1 National Integrity
Commissioner Bill 2012
The National Integrity Commissioner Bill 2012 (the Integrity Bill) is a
private Member’s bill introduced into the House of Representatives on 28 May
2012 by Mr Adam Bandt MP of the Australian Greens.
Scope of the bill
The Integrity Bill proposes the establishment of a National Integrity
Commission as an independent statutory federal agency, comprising a new
National Integrity Commissioner, a Law Enforcement Integrity Commissioner, and an
Independent Parliamentary Advisor.
These three positions would be responsible for, respectively:
n the investigation and
prevention of misconduct and corruption in all Commonwealth departments,
agencies, federal parliamentarians and their staff;
n the investigation and
prevention of corruption in the Australian Federal Police and the Australian
Crimes Commission; and
n the provision of independent
advice to ministers, parliamentarians and former parliamentarians on conduct,
ethics and matters of proprietary.
The bill proposes the establishment of a Parliamentary Joint Committee
on the National Integrity Commission to oversee, monitor and review the
Commission. This new joint committee would subsume the Parliamentary Joint
Committee on the Australian Commission for Law Enforcement Integrity.
The Integrity Bill is near-identical to the National Integrity
Commissioner Bill 2010 (the 2010 Brown Bill), which was introduced into the
Senate on 23 June 2010 and re-introduced on 30 September 2010 by then
Senator Bob Brown. The Integrity Bill has an extra amendment in Schedule 1 for
the Law Enforcement Integrity Commissioner Act 2006 (Cth) (the LEIC Act),
proposing that Item 1 from Subsection 197(1) be omitted, which states that the staff
of the Australian Commission for Law Enforcement Integrity are to be persons
appointed or employed under the Public Service Act 1999 (Cth).
On 31 May 2012 the House of Representatives Selection Committee referred
the Integrity Bill to the House of Representatives Social Policy and Legal
Affairs Committee for inquiry and report.
The Selection Committee provided the following reasons for referral:
In accordance with the Speaker’s ruling on 2 June 2011, this
bill is in fact an appropriation bill contravening standing orders 179 and 180
and therefore cannot proceed in its current form. Further, the proposed powers
are very wide-ranging and need further investigation.
Senate Scrutiny of Bills Committee
The Senate Scrutiny of Bills Committee examined the Integrity Bill. Noting
that the Integrity Bill was introduced without a statement of compatibility, as
required by the Parliamentary Scrutiny (Human Rights) Act 2011 (Cth),
the Committee expressed concerns about the following issues of possible undue trespass
on personal rights and liberties:
n rights to a fair
hearing and representation;
n revocation of legal
n protection against
n broad definition of ‘authorised
n inadequate explanation
for increased search powers.
These concerns are identical to the Senate Scrutiny of Bills Committee’s
comments on the 2010 Brown Bill.
Question of appropriation
The Selection Committee suggests that the Integrity Bill may be an
appropriation bill and therefore subject to House of Representatives Standing Orders
179 and 180. These standing orders limit the introduction of bills that
increase or extend the scope of a tax or charge to Ministers only, and require
that appropriation proposals be recommended to the House by the Governor-General
prior in accordance with section 56 of the Constitution.
As noted by the Selection Committee, the Speaker made a ruling on 2 June
2011 that the Abolition of Age Limit on Payment of the Superannuation Guarantee
Charge Bill 2011 could not proceed as it was ‘caught by the provisions of
standing order 179(a) and standing order 180(c)’.
It is the role of the Speaker of the House to make a ruling on whether a
bill is an appropriations bill and unable to be introduced by a private Member.
Standing Order 3(e) states that:
The Speaker (or other Member presiding) is responsible for
ruling whenever any question arises as to the interpretation or application of
a standing order and for deciding cases not otherwise provided for. In all
cases the Speaker shall have regard to previous rulings of Speakers of the
House and to established practices of the House.
This Committee does not have the authority to make such a ruling, or to comment
on the likelihood of the Integrity Bill being found to be an appropriations bill.
|The Committee recommends that the House Selection Committee
request a ruling from the Speaker of the House on the status of the National
Integrity Commissioner Bill 2012 prior to its debate.
The Committee decided not to conduct an inquiry into the Integrity Bill
as there are a number of threshold issues that need to be addressed before
launching an inquiry. These issues are discussed below.
Accordingly, the Committee did not call for submissions or hold public
hearings. However, the Committee accepted a submission made by the Law Council
of Australia (LCA). The submission is similar to the LCA’s February 2011
submission to the Australian Greens on the near-identical 2010 Brown Bill.
The LCA’s views on the 2010 Brown Bill as expressed in that submission are
considered by this Committee to be the same for the Integrity Bill.
The Selection Committee’s second reason for referral is that the
Integrity Bill proposes wide-ranging powers that require further investigation.
The Senate Scrutiny of Bills Committee, as mentioned above, noted that the
Integrity Bill proposes to widen search powers and authorise commissioners to
undertake measures that may breach personal rights to due justice.
The LCA expressed similar concerns in its submission on the 2010 Brown
The LCA notes that the Integrity Bill contains coercive
information-gathering powers and offences, similar to those in the LEIC Act and
the Royal Commissions Act 1902 (Cth) (the Royal Commissions Act). The
LCA considers that these powers should be used only in exceptional
circumstances, and be subject to best-practice principles as outlined in the
Administrative Law Council’s Coercive Information-Gathering Powers of
Government Agencies. The LCA added
that ‘additional safeguards may be needed to temper the considerable coercive
and discretionary powers’.
Further, the LCA argues that these coercive powers should not abrogate
client legal privilege. The LCA claims that the
provisions in the Integrity Bill regarding client legal privilege are unclear,
having been based on the LEIC Act and the Royal Commissions Act.
The Senate Scrutiny of Bills Committee advised that:
The Committee has long taken the view that legal professional
privilege is a fundamental principle of the common law, and will closely
examine legislation which removes or diminishes this right. Unfortunately, the
explanatory memorandum … is silent on the issues of the extent to which the
legislation is intended to modify the applicable common law principles, the
justification for these modifications, and whether the penalties for offences
relating to claims for legal professional privilege are justified.
The LCA states that privilege against self-incrimination is a
fundamental human right. The LCA’s submission
advises that coercive powers may affect an individual’s right to protection
against self-incrimination or immunity from evidence obtained.
The LCA states that:
The rules of procedural fairness require a decision-maker to
give a person, whose interests may be adversely affected by a decision, an
opportunity to present his or her case. This is absolutely essential in the
context of a public inquiry, as it guards against a person being unfairly
discredited without any right of reply or avenue of review.
The Integrity Bill contains a clause that removes a person’s right to a
reasonable opportunity to appear and make a submission in relation to a finding
against them if the Commissioner is satisfied that the person may have:
(i) committed a criminal offence; or
(ii) contravened a civil penalty provision; or
(iii) engaged in conduct that could be the subject of
disciplinary proceedings; or
(iv) engaged in conduct that could be grounds for terminating
the person’s appointment or employment; …
or that such action:
would compromise the effectiveness of:
(i) the investigation of the corruption issue or another
corruption investigation; or
(ii) any action taken as a result of an investigation
referred to in subparagraph (i).
The Senate Scrutiny of Bills Committee expressed concern ‘as to whether
there are sufficient protections in place to protect an individual who is not
afforded a right to be heard’.
Noting that the Integrity Bill stipulates that a person ‘may, with the
National Integrity Commissioner’s approval, be represented by another person’,
the Scrutiny of Bills Committee stated:
Given the nature of the interests and rights at stake and the
potential complexity of the issues which may be raised, there may be
circumstances where a fair hearing will be compromised if a person is refused
permission to be represented.
The LCA’s concern is that the threshold for legal and financial
assistance eligibility is too high.
Duplication of authorities and legislation
The LCA notes that there is not yet a federal statutory authority
dedicated to investigating misconduct and corruption within the Australian
Parliament and all Commonwealth agencies. However, such a body
… be considered alongside related reforms which are similarly
aimed at greater accountability and integrity in the public sector.
There is insufficient clarity regarding how the provisions of the
Integrity Bill intersect with and complement existing legislation and other
bodies of integrity oversight.
There are other statutory agencies and mechanisms that address claims of
misconduct in the public sector. For example, the Commonwealth Ombudsman, the
Australian Public Service Commission and the Australian National Audit Office all
deal with complaints of fraud, misconduct or corruption by Commonwealth public
servants. The Australian Parliament can also establish a parliamentary inquiry
or Royal Commission to investigate allegations.
The Australian Government announced in 2011 that it would develop a
National Anti-Corruption Plan. The Attorney-General’s
Department held a public forum in 2011 and invited submissions to the
Anti-Corruption Discussion Paper earlier this year.
Moreover, there exist pieces of enacted and proposed legislation that
overlap with the aims of the Integrity Bill. The LCA notes that the Integrity
Bill is similar in some respects to the Royal Commissions Act.
The Australian Law Reform Commission (ALRC) conducted an inquiry into the
provisions of the Royal Commissions Act in October 2009. The resulting report
recommended a new framework for inquiries and made recommendations relating to
information-gathering powers, procedural fairness, legal assistance and
The LCA advised that:
… if the Government were to adopt the ALRC’s recommendations,
it is likely that this would have implications for the powers and procedures
outlined in the [Integrity] Bill.
More recently, the Australian Government announced a new Public Interest
Disclosure Bill (PID Bill), due to be introduced for debate in the spring
sittings of 2012. The PID Bill provides enhanced protections for federal
whistleblowers and an integrity and oversight function for investigations of
disclosure. Although the focus of
the PID Bill differs from that of the Integrity Bill, the LCA points out that
the aims of both bills, to promote public integrity, coincide.
The LCA further notes that:
Clarification of the Bill’s
intended intersection with the Administrative Decisions (Judicial Review)
Act 1977 (Cth), and individuals’ entitlement under that Act, would be
The LCA asserted that ‘the threshold issue of the desirability of a
federal anti-corruption body should be considered by Parliament’.
Resources and capability
Another consideration is the cost of establishing a new federal body
with two Commissioners and an Advisor. The LCA stated that:
Unless an investigatory body such as the proposed Commission
has some long term security of adequate funding and tenure, there is a serious
risk that its independence will be compromised.
The LCA notes that the Australian Commission for Law Enforcement
Integrity is funded at a far lower level than its state equivalents in
Queensland and Western Australia, and that the Independent National Security
Legislation Monitor is underfunded.
Moreover, the LCA noted that ‘it is crucial that the [joint] Committee
established by the Bill can effectively perform its role’.
The joint committee would require timely access to requested information
in order to monitor and review the new Commission as required without its
capability being compromised. The LCA noted that a lack of timely access to
information has hampered oversight committees in the past such as the former
Joint Committee on the Australian Crime Commission.
The Committee agrees with the Selection Committee and the LCA that the
Integrity Bill should be subject to greater scrutiny prior to its debate in
Parliament. However, the Committee considers that a joint parliamentary inquiry
is necessary given the scope, size and considerations of the Integrity Bill. Moreover,
an inquiry later in the year would be more timely as certainty is achieved
around intersecting legislation and the explanatory memorandum is clarified.
It is important that a collaborative approach is taken between the House
and the Senate, as the Integrity Bill will have an impact on both houses. The
proposed National Integrity Commissioner would be responsible for investigating
and preventing corruption and misconduct among all federal
parliamentarians—Members and Senators—and their staff. The Committee is of the
strong view that an inquiry into the Integrity Bill should be conducted collaboratively
with the scrutiny of both houses.
In addition to setting up a framework for the investigation of
parliamentarians’ behaviour, the Integrity Bill replaces the Parliamentary
Joint Committee on the Australian Commission for Law Enforcement Integrity with
a Parliamentary Joint Committee on the National Integrity Commission. Again,
the Committee does not consider it appropriate for an inquiry to be undertaken
without the collaborative input of both houses.
A joint select committee inquiry would be a more appropriate mechanism
for scrutiny of the Integrity Bill. Further, it is the view of the Committee
that the Integrity Bill requires detailed scrutiny given the lack of prior
consultation and three major issues regarding its scope.
First, the Integrity Bill grants extensive powers to the new National
Integrity Commission. This Committee does not currently have the resources or
expertise to devote to an in-depth inquiry into the ramifications of these
powers and the potential for the right to due justice to be trespassed.
Although the Committee does not deny the benefits of a federal
anti-corruption body for the public sector, the Committee agrees with the LCA’s
view that Parliament should consider the threshold issue of the need for such a
body in more detail. In particular, Parliament should consider if the proposed
National Integrity Commission is the most suitable model for a federal
Second, the Committee is concerned that the Integrity Bill overlaps
considerably with other anti-corruption legislation and agencies. Inquiry into
this bill should take into account the results of the current discussion around
the PID Bill, the ongoing review of the Royal Commission Act, the Attorney-General’s
consultation process on the National Anti-Corruption Plan, and the recent United
Nations report on Australia’s compliance with the Convention against
Third, the Committee considers that the resourcing of the proposed
National Integrity Commission should be carefully regarded so that it is able
to achieve the functions it is set up to do. The explanatory memorandum of the
Integrity Bill does not mention the anticipated cost of running the National
The Committee recommends that the National Integrity
Commissioner Bill 2012 not proceed prior to the establishment of a Parliamentary
Joint Select Committee to investigate the feasibility and cost of
establishing a National Integrity Commission, taking into account the
threshold issue of desirability of such a commission;
extent of the powers granted to the Commissioners; and
reforms such as the review of the Royal Commissions Act 1902, the report
on Australia’s compliance with the United Nations Convention against
Corruption, the results of public consultation on the National
Anti-Corruption Plan, and the outcome of debate on the Public Interest
Disclosure Bill 2012.
Mr Shayne Neumann