This chapter considers key issues raised during the committee's examination of ACLEI's Annual Report 2018–19. In particular, this chapter considers:
the efforts of ACLEI to manage its increasing investigation workload, and reduce a backlog of investigations on hand in the reporting period;
the work of the ACLEI-led Visa Integrity Taskforce; and
the outcomes from the Australian National Audit Office (ANAO) report on ACLEI's operational efficiency, and ACLEI's progress in responding to the ANAO's recommendations.
This chapter also briefly considers a matter that does not relate wholly to the 2018–19 reporting period, but that was nonetheless raised during the committee's examination—namely, the current status of the proposed Commonwealth Integrity Commission (CIC), and how it might impact the work of ACLEI going forward.
Achieving a manageable investigation workload
The expansion of ACLEI's jurisdiction to include the then Department of Immigration and Border Protection (now Home Affairs) in 2015–16 led to a substantial increase in ACLEI's workload. This increase was reflected in the number of investigations ACLEI had on hand on a year-to-year basis. However, the Integrity Commissioner informed the committee that during the 2018–19 reporting period, ACLEI managed to significantly reduce the backlog of investigations it had on hand. In fact, during the 2018–19 reporting year, ACLEI concluded 116 investigations, the highest number of investigations concluded since it commenced operations in late 2006. The Commissioner reported that:
…while 252 corruption issues were worked on by ACLEI during the 2018-19 year, by the year end ACLEI had 136 corruption issues on hand. This was a significant reduction, and this trend has continued. As at 31 May this year we had 70 corruption issues on hand. This is a much more manageable workload for the agency, and while we still have some work to do to ensure that we are focusing just on the serious and systemic matters and to ensure that the number of corruption issues that we have on hand is manageable for us, we have taken significant strides in this regard.
ACLEI's progress in managing its workload was achieved in part through a consolidation process, which began in 2017–18 and continued in 2018–19, of reviewing and prioritising its existing caseload.
Following ACLEI's stocktake of identifying investigations for closure (the bulk of which was undertaken in 2017–18), ACLEI finalised a significant number of investigations during 2018–19. ACLEI identified 113 investigations, of a total active caseload across the reporting period of 252 investigations (of which all but 28 were carried over from previous years), which could be discontinued under section 42 of the LEIC Act. Of these 113 investigations, 107 were discontinued at the discretion of the then Integrity Commissioner, and six were reconsidered and referred back to the jurisdictional agencies for investigation. ACLEI explained that its decision to close investigations was based on its assessment that either:
…there was little likelihood of obtaining a positive result given the evidence obtained to date and further investigation was not warranted in all the circumstances, or because all reasonable avenues of investigation had been exhausted and there were no indications of corrupt conduct or other conduct that should be referred to the agency in question.
In the Annual Report, ACLEI emphasised that the process of reviewing and identifying investigations for closure itself takes time, and places further demands on ACLEI's resources. ACLEI pointed out that it needs to balance this process with competing priorities, such as ongoing investigations, and addressing the 'continuing intake of serious and systemic corruption issues that the Integrity Commissioner considers warrants investigation by ACLEI'.
The reduction in ACLEI's investigation caseload was also achieved through a process of identifying matters that could be referred back to agencies for investigation, enabling ACLEI to focus its efforts on corruption matters of a serious and systemic nature that warrant ACLEI investigation. As set out in more detail below, six investigations were referred back to the relevant jurisdictional agency for investigation in the 2018–19 year. In total, LEIC Act agencies investigated 278 corruption issues in 2018–19, which accounted for approximately 53 per cent of all corruption issues investigated in the reporting year, and is the highest number of LEIC Act agency investigations conducted in the five years for which figures are provided in the 2018–19 Annual Report (these numbers are discussed in more detail in chapter three).
According to ACLEI, the increase in LEIC Act agency investigations demonstrated 'greater confidence in the capacity of agencies to investigate allegations of corruption'. The Integrity Commissioner described the process, under section 66 of the Act, which requires an investigating agency to provide a report to the Integrity Commissioner at the conclusion of an investigation, and how this process provides ACLEI with confidence that agencies conducting investigations are doing so in a timely and effective manner. This process is discussed in greater detail in chapter 3.
The focus on only investigating matters of a serious and systemic nature also meant that ACLEI commenced fewer investigations in 2018–19 than in previous years, which further helped it manage its investigation workload through the year. According to the Annual Report, in 2018–19 ACLEI commenced 28 investigations, which was the lowest number of investigations commenced in the five years for which the Annual Report provides data.
Breakdown of investigations concluded
In response to a question on notice, ACLEI provided the committee with a breakdown of the outcomes of the 116 investigations concluded in 2018–19. It reported that of those 116 investigations:
six were reconsidered and referred by the Integrity Commissioner to a jurisdictional agency for investigation pursuant to section 42 of the LEIC Act. Of these matters:
four agency investigations are still ongoing, and
two have been concluded. One resulted in a finding of a breach of the APS Code of Conduct and one resulted in a finding that the allegation was not established.
three were the subject of reports to the Minister prepared under section 54 of the LEIC Act (that is, where a corruption issue has been fully investigated and a report is prepared for the Minister). Of these matters:
one involved a referral to the Commonwealth Director of Public Prosecutions, who decided not to prosecute. The Integrity Commissioner also made a finding of corruption against one individual and made recommendations to the agency head as part of a report under section 54 of the LEIC Act.
one involved a corruption finding but no prosecution or recommendations.
one involved no corruption finding or prosecution but the Integrity Commissioner made recommendations in the section 54 report.
The remaining 107 investigations were concluded as a result of the then Integrity Commissioner exercising his discretion under section 42 of the LEIC Act to take no further action and thus discontinue the investigation. ACLEI further advised that it:
…does not currently collect data in a readily accessible form on the reasons matters are discontinued after reconsideration under s42. ACLEI will consider how it may be able to capture this data in a suitable form to support greater transparency in future.
Factors affecting delivery
Although ACLEI is on track to a more manageable workload, the Annual Report 2018–19 highlighted two primary factors impacting its capacity to deliver outcomes during the year: first, the complexity of its investigations; and second, its ability to recruit and retain staff.
ACLEI identified a number of factors that contribute to the complexity of ACLEI's investigations. These included:
investigations showing the involvement of organised criminal entities;
the need to deploy specialist resources;
the requirements for a high degree of coordination across ACLEI's investigative, intelligence, legal and corruption prevention areas and other key stakeholders; and
the challenge of investigating individuals well versed in the use of covert capabilities.
ACLEI also noted that:
…as ACLEI's jurisdiction changes, new types of corruption issues may arise that require different methods of investigation. A key example, but not the only one, is the investigation of allegations of visa fraud.
ACLEI further reported that it can find it difficult to recruit and retain suitably qualified and experienced staff. This difficulty, as the Annual Report noted, can be explained by a highly competitive labour market in a specialised industry, the need for staff to obtain a high-level security clearance, as well as the challenge for a small organisation to offer sustained career progression, particularly at more senior levels.
ACLEI met its maximum average staffing level of 48 in the reporting period, despite the difficulties with the recruitment and retention of staff outlined above. ACLEI noted that with the opening of the Sydney office it expects a wider recruitment pool and a 'greater range of work opportunities' for staff.
The committee commends the efforts of the Integrity Commissioner and ACLEI staff members to conclude or discontinue older investigations, where it is appropriate to do so, and focus its investigation efforts on matters relating to serious or systemic corruption. The committee notes that this approach, and a willingness to refer less serious matters back to the relevant agency for investigation when appropriate to do so, has resulted in a more manageable investigation workload for ACLEI.
Of the 116 investigations concluded in 2018–19, 113 were discontinued under section 42 of the LEIC Act—this number includes six investigations that were reconsidered and referred back to jurisdictional agencies for investigation, with the remaining 107 discontinued at the discretion of the then Integrity Commissioner. In relation to the investigations discontinued at the discretion of the Integrity Commissioner, the committee considers that transparency would likely be enhanced if the reasons for such decisions, at least at a high level, could be captured and reported on an ongoing basis. Such data could, potentially, also provide new opportunities for thematic analysis of the referrals received by ACLEI, and patterns of referrals, even where investigations are discontinued.
The committee recommends that the Australian Commission for Law Enforcement Integrity (ACLEI) consider how it can collect data on investigations that are discontinued under section 42 of the Law Enforcement Integrity Commissioner Act 2006, and report at a high level the reasons why investigations have been discontinued in ACLEI annual reports going forward.
The Visa Integrity Taskforce
The Visa Integrity Taskforce (the taskforce), funded under the Proceeds of Crime Act 2002 (Cth), was led by ACLEI and was established in 2017–18, and concluded its work in 2019–20. The taskforce's activities related to alleged corruption in visa processing. In the reporting period, the taskforce:
dealt with 46 corruption issues related to visa processing;
identified and advised senior staff in the Department of Home Affairs on corruption risks and vulnerabilities within the visa processing system; and
educated overseas staff about what constitutes corruption, how to identify corrupt behaviour and how such behaviour can be reported.
The purpose of the taskforce was to 'assure the integrity of Australia's visa system by investigating allegations and intelligence about visa fraud involving law enforcement officers'. However, the former Integrity Commissioner, in his foreword to the Annual Report, stated that the taskforce went 'beyond investigating individual allegations of corruption in the visa processing system'. The taskforce incorporated corruption prevention activities into its work by drawing on findings regarding the vulnerabilities identified in investigations. As outlined above, the taskforce educated staff in overseas posts on the corruption risks and vulnerabilities in the visa processing system. It also assisted the Department of Home Affairs to strengthen its ability to investigate corrupt activity in visa processing.
The work of the taskforce has been integral in helping to strengthen the visa processing system within Australia and overseas, particularly in identifying the vulnerabilities related to the use of local staff in processing visas offshore. The taskforce also provided ACLEI with an opportunity to strengthen its relationships with other agencies, such as the Department of Foreign Affairs and Trade.
The Integrity Commissioner advised the committee on the lessons drawn from the taskforce operation. Ms Hinchcliffe stated the taskforce demonstrated how to integrate corruption prevention into investigation operations effectively. She also highlighted the need to ensure adequate resourcing of taskforces as investigations can continue for long periods.
The committee congratulates ACLEI on the successful work of the Visa Integrity Taskforce. The taskforce integrated corruption prevention into operational activities that provided timely advice on corruption risk to key stakeholders. It exemplified how working in partnership with other law enforcement and integrity agencies can build capability and capacity to combat corruption-enabled crime.
Outcomes from the Australian National Audit Office report
In August 2018, the ANAO released its report, Operational Efficiency of the Australian Commission for Law Enforcement Integrity (Auditor-General Report No. 4 2018–19). The report outlined the ANAO's findings from its examination of ACLEI's efficiency in detecting, investigating and preventing corrupt conduct.
The audit considered if ACLEI had 'established appropriate arrangements to assess its efficient use of resources', and how ACLEI's efficiency compares with comparable entities and against its own past performance. The audit did not consider ACLEI's operational effectiveness or ACLEI's adequacy of resourcing.
The ANAO found that as ACLEI had not 'measured, benchmarked or reported on its efficiency in detecting, investigating and preventing corrupt conduct', it could not conclude whether ACLEI had been operating efficiently. The ANAO further found that its own analysis, and work then underway within ACLEI, indicated that:
…improving case management and prioritisation practices is key to improving ACLEI's operational efficiency as well as aligning its resource allocation with the legislative obligation to focus on serious and systemic corruption.
The ANAO made three recommendations, which are listed in Table 1. ACLEI agreed to recommendation 1 with qualifications, and agreed to recommendations 2 and 3.
Recommendation no. 1 Paragraph 2.21
ACLEI develop performance measures focussed on the efficiency of its operations and collect additional data to report on its performance against those measures.
ACLEI's response: Agreed with qualifications.
Recommendation no. 2 Paragraph 2.41
ACLEI investigate whether it could introduce a more structured review process to support the prioritisation of available resources on a risk basis to the highest value investigations, including time or milestone based intervals to trigger decisions on the ongoing allocation of resources.
ACLEI's response: Agreed.
Recommendation no. 3 Paragraph 3.38
ACLEI periodically compare and benchmark its operational efficiency against comparable organisations including other anti-corruption bodies, and with its own performance over time, to determine whether changes to its current processes are required.
ACLEI's response: Agreed.
Source: ANAO, Operational Efficiency of the Australian Commission for Law Enforcement Integrity, Auditor–General Report No. 4, 2018–19, p. 9.
Response to recommendations 1 and 3
In response to recommendation 1, ACLEI agreed but noted that developing universally agreed measures in a law enforcement context is challenging. ACLEI stated it would gather additional performance data to the extent that this proves to be an effective and efficient use of its limited resources.
ACLEI agreed with recommendation 3 and stated it would periodically compare and benchmark its operational efficiency against comparable organisations and its performance over time, while cautioning that this was unlikely to be a straight comparison. The Integrity Commissioner reiterated this point to the committee, advising that while it is difficult to compare ACLEI's performance with other anti-corruption organisations, there is nonetheless value in undertaking this work. As the Commissioner explained:
This is always a vexed issue for agencies. I can remember when this discussion was happening with DPPs when I was with the Commonwealth DPP many years ago. It was interesting to come and see the same arguments here. We're all a little bit different. We do slightly different things. Our jurisdictions are different, and the way we're set up is different. It is true that it's not the same as comparing apples with apples; however, there are things that we can definitely learn from the other integrity agencies and anticorruption bodies. We can look at the way we're doing things and see how that compares with how they're doing things. In looking at our KPIs, we have looked at the KPIs that other integrity agencies have had, and we've drawn heavily from those. It might not be a straight comparison, but there are ways that we can compare ourselves to other agencies. More importantly, I think, and particularly for small agencies, there are ways we can look at our fellow agencies, both at the Commonwealth and state level, that do similar tasks to us to see how we can draw on some of their learnings so that we are not reinventing the wheel.
To address recommendations 1 and 3, ACLEI engaged an external consultant to review its performance reporting. The consultant examined ten comparable organisations and found that:
applying efficiency measures to assess the performance is difficult because of a lack of consistency between activities, particularly those that involve complex investigations;
one comparable organisation had an efficiency measure for the average cost of operations; and
there was no evidence of international or industry benchmarks for performance reporting.
The consultant provided ACLEI with ten suggestions on how it could improve its performance reporting. ACLEI's management agreed with eight suggestions, either wholly or in part.
Response to recommendation 2
ACLEI agreed with recommendation 2 and has taken significant steps to address it. ACLEI has developed two decision and risk tools to determine the priority, risks and potential costs of investigations: the Threat, Risk and Assessment Model (TRAM), and the Operational Risk Assessment Model (ORAM). The tools enable ACLEI's executive team to monitor operational priorities and resourcing projections.
In 2018–19, TRAM was implemented across ACLEI's operational areas. TRAM is applied during the early stages of an investigation and allocates a numerical score to indicate the level of threat and risk. A high TRAM score corresponds to a high threat and risk and allows ACLEI to prioritise investigations and allocate resources accordingly.
ORAM was trialled in 2018–19, and aims to inform ACLEI of the operational risk and potential lifetime costs of an investigation. The tool considers several factors relating to an investigation, such as the nature of the target, the location and management of information, and the complexity of the investigation. The Annual Report 2018–19 indicated that the ORAM was expected to be fully implemented in 2019–20.
The Integrity Commissioner outlined other measures ACLEI has undertaken to improve its operational efficiency. ACLEI has revised its Key Performance Indicators (KPIs) for investigations, by considering commencement and completion rates, and investigation timeliness. ACLEI is considering if it can also benchmark the number of investigations finalised in a year to ensure it does not experience a backlog of work. ACLEI has also reached out to LEIC Act agencies to gain an understanding of satisfaction levels with ACLEI's services. Summarising the steps ACLEI has taken in response to the ANAO report, and more broadly the work the agency is doing to better prioritise and manage its investigation workload, the Integrity Commissioner advised the committee:
We have reconsidered all of our KPIs to think about how we can better use the data at our disposal to manage exactly this issue—the case management and prioritisation of our matters—and to see we are getting through the work so we don't end up in a position where we have a backlog, like we had previously. We've been through a process, drawing on the work the ANAO did and some work that we had conducted by an external consultant, to look at our KPIs afresh and some quantitative measures, noting that currently we have very strong qualitative measures but not very many quantitative measures.
We've looked at things like how many investigations we commence in a year, how many investigations we complete in a year, and having the completion rate as a proportion of how many we commenced to make sure that we're not commencing too many and we're actually completing matters, getting them done. We've looked at measures including timeliness measures—measuring the amount of time that investigations are taking us. We're looking at measures including satisfaction surveys. We're also reaching out to agencies and seeing their satisfaction with the way that we are doing our work, noting that we do provide a service. While we're oversight, we do provide a service to other agencies.
The Integrity Commissioner also advised that ACLEI has also implemented a 90-day and 180-day review of investigations. At the 90-day review, ACLEI considers 'where the investigation is up to, what the next steps are and whether it should continue with the investigation.' At the 180-day review, investigations are assessed with the intention for it to be finalised. ACLEI will begin to measure against the revised KPIs in the 2020–21 reporting period.
The committee considers that the ANAO audit was valuable and instructive. The committee recognises ACLEI's efforts, in part in response to the ANAO audit, in improving its processes for case management and resource allocation, as well as its methods to measure and report on its performance.
The committee acknowledges that ACLEI has implemented two tools—the TRAM and ORAM—to prioritise matters of high impact risk and allocate resources to operations appropriately, and welcomes the introduction of the revised KPIs relating to 90-day and 180-day reviews of investigations.
The committee considers the process of improving and measuring ACLEI's efficiency remains an ongoing one. The committee looks forward to learning about the other changes ACLEI has adopted to improve its ability to collect data, monitor the efficiency of investigations and report on its activities.
Status of the Commonwealth Integrity Commission
At the end of 2018, the Australian Government announced that it would establish a Commonwealth Integrity Commission (CIC) to strengthen integrity arrangements across the federal public service. The proposed CIC, according to the government, will detect, deter and investigate alleged corruption, and work with agencies to 'build their resilience to corruption and their capability to deal with corrupt misconduct'.
The CIC would be an independent statutory authority, led by a Commonwealth Integrity Commissioner with assistance from a Deputy Commissioner for Public Sector Integrity and a Deputy Commissioner for Law Enforcement. The Law Enforcement Division would retain the powers and functions of ACLEI. However, the jurisdiction would expand to cover additional agencies with law enforcement functions and access to sensitive information. The establishing legislation for the CIC is yet to be introduced to the Parliament.
The progress of the CIC
The Integrity Commissioner advised the committee that the establishment of the CIC is the responsibility of the Attorney-General Department (AGD), and emphasised that her role is to ensure ACLEI is prepared to be absorbed into the CIC when required. Ms Hinchcliffe further advised that the $2.2 million ACLEI received as part of the Federal Budget in April 2019 will form part of ACLEI's surplus in the 2019–20 reporting year.
In response to a question on notice, ACLEI advised the committee that the Attorney-General, the Hon Christian Porter MP, discussed options for reform to Australia's integrity frameworks with the former Integrity Commissioner, Mr Michael Griffin AM on several occasions. The AGD has continued to correspond with ACLEI on technical points about the practical operation of the LEIC Act to inform the preparation of the draft legislation to establish the CIC.
Partial coverage of the Department of Agriculture, Water and Environment
At the public hearing, concerns were raised about longstanding issues regarding the fact that ACLEI's jurisdiction covers only parts of the Department of Agriculture, Water and Environment (DAWR), and how this can sometimes complicate its investigative efforts. The Integrity Commissioner noted that ACLEI raised the difficulties it experienced with DAWR's partial inclusion in its submission to the committee's inquiry into the integrity of Australia's border arrangements in 2019. The matter was also raised in the 2016 committee inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity.
Currently, ACLEI's jurisdiction includes prescribed aspects of DAWR. However, it has been proposed that the law enforcement division of the CIC will extend its jurisdiction to cover the whole of DAWR, rather than only the current prescribed aspects. This expansion will overcome the difficultly ACLEI has experienced as a result of only having jurisdiction over parts of DAWR stipulated in the Law Enforcement Integrity Commissioner Regulations 2017, which are based on the performance of border-related functions and access to coercive powers.
The committee acknowledges that the Attorney-General's Department has responsibility for establishing the proposed CIC and that ACLEI is actively assisting AGD to inform the draft legislation for the CIC.
The committee notes that the proposed structure of the CIC could see the law enforcement division extend its jurisdictional coverage to include the whole of DAWR. Therefore, it is likely that concerns regarding ACLEI's partial coverage of DAWR could be addressed and overcome. The committee considers this approach would likely be welcome, given the concerns the committee and ACLEI have raised regarding this jurisdictional matter over many years now.