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CHAPTER 5

National integrity framework

5.1        This chapter considers the multi-agency national integrity framework and the roles of key Commonwealth agencies within it. It outlines the primary instruments within the framework and its efficacy.

A coordinated, multi-agency and multi-disciplinary approach

5.2        The National Security Statement of December 2008 emphasised the importance of a clearly defined role for the Commonwealth in combating serious and organised crime and of the importance of enhancing coordination amongst Commonwealth agencies.[1] 

5.3        The ACC's report on Organised Crime in Australia 2011 also emphasised that:

Understanding the changing criminal environment is crucial to shaping not only an effective response by Australian law enforcement, but also a collaborative response by agencies outside the law enforcement umbrella which are responsible for regulation and monitoring of key sectors.[2] 

5.4        In 2009, Attorney-General, the Hon. Robert McClelland MP stated that the Commonwealth Organised Crime Strategic Framework (OCSF) established a 'comprehensive and coordinated response to target the most significant threats from organised crime in order to reduce its impact on the community'.[3] Amongst the mechanisms highlighted to enhance multi-agency approaches included task forces and the development of a Criminal Intelligence Fusion Capability to provide for the 'co-location of agency staff and systems'. The Attorney-General noted that:

This would ensure greater efficiency and productivity across agencies, as it would pool analytical skills and provide shared access to multiple Commonwealth data and intelligence holdings.[4] 

5.5        The government's approach to corruption prevention is that no single body should be responsible as the distribution of responsibility creates a strong system of checks and balances otherwise referred to as the Commonwealth integrity system. It recognises that a strong constitutional foundation (separation of powers and rule of law) is enhanced by a range of bodies and government initiatives that promote accountability and transparency.[5] All Commonwealth agencies are responsible to maintain guidelines for preventing and reporting corruption while all companies must also maintain guidelines for preventing and reporting crimes or risk facing liability for corrupt acts by employees.[6] This national integrity system approach responds to calls for a broad, holistic multilayered method to tackle corruption, misconduct and maladministration in government and reflects international trends.[7]

5.6        The need for a coordinated approach to corruption at the international and national level is highlighted in international instruments and reflected in domestic measures. Recognising that corruption is a transnational phenomenon, the UNCAC describes international cooperation as essential and notes that a multidisciplinary approach is required to prevent and combat corruption effectively.[8] The need for cooperation between national authorities is enshrined in article 38 of the convention. Similarly, the OCSF recognises that organised crime entities:

...neither respect borders (state or national) or demarcations of responsibility (between governments or agencies). Organised criminals in fact often target the gaps created by borders or demarcations as they can present opportunities for higher profit and lower risk. Respecting the fact that each government needs to be able to align its resources to deal with its jurisdictional priorities in the most effective manner possible, there remains an underlying need for all jurisdictions to work collaboratively and cohesively to address the most serious threats from organised crime.[9]

5.7        The need for cooperation between national authorities and the private sector and particularly financial institutions is recognised under Article 39 of the UNCAC and in the Commonwealth Government's approach to corruption as outlined in the Commonwealth's Approach to Anti-Corruption discussion paper, which addresses corruption in both the private and public sectors.[10]

5.8        Australia's multi-agency approach encompasses standards and oversight, detection and investigation, prosecution, and international cooperation. The agencies responsible for each of these aspects of the framework are listed in the diagram below.

Figure 1: Australia's Multi-Agency Approach

Standards and oversight	Detection and investigation	Prosecution
Attorney-General's Department Australian Public Service Commission Auditor-General Australian Electoral Commission Office of the Australian Information Commissioner Department of Finance and Deregulation Parliamentary Standards	Australian Federal Police Australian Commission for Law Enforcement Integrity Australian Crime Commission Inspector-General of Intelligence and Security Office of the Commonwealth Ombudsman Australian Transaction and Reports Analysis Centre	Office of the Commonwealth Director of Public Prosecutions
		International cooperation
		International Crime Cooperation Central Authority Attorney-General's Department Portfolio Agencies AusAID

Source: Australian Government, The Commonwealth's Approach to Anti-Corruption: Discussion Paper, Attorney-General's Department, March 2012, p. 12.

5.9        There are a number of legislative and other measures including criminal offences, ethical standards and codes of behaviour for public officials, and oversight mechanisms which contribute to a national integrity framework.

Legislative regime

5.10      In Australia's self-assessment report on implementing Chapter 3 (Criminalisation and Law Enforcement) and Chapter 4 (International Cooperation) of the UNCAC, the Australian Government refers to 25 separate pieces of Commonwealth legislation which contribute to fulfilling Australia's obligations under the convention to establish criminal offences.[11] This legislative framework includes:

• the Criminal Code Act 1995 which criminalises the laundering of proceeds of crime, domestic and foreign bribery, embezzlement, trading in influence, abuse of public office and other fraudulent conduct, and money laundering and provides for extensions of criminal responsibility;
• the Proceeds of Crime Act 2002 which establishes a regime to trace, restrain and confiscate assets which are wholly or partly derived from crime or have been used in the commission of a crime;
• the Crimes Act 1914 which criminalises the obstruction of justice;
• the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 which establishes a regulatory regime to manage the risk of businesses being used to launder money or finance terrorism. (AUSTRAC supervises compliance with this Act); and
• the Corporations Act 2001 which contains offences for breach of duties by directors of companies.

5.11      Corruption-related offences are also contained in the Financial Management and Accountability Act 1997 as well as the Commonwealth Authorities and Companies Act 1997 and Part V of the Australian Federal Police Act 1979 which establishes a standards framework for the AFP.[12]

Standards and oversight

5.12      The activities of APS agencies and employees are governed by standards of conduct, as well as processes for identifying behaviour considered inconsistent with those standards. These elements of the integrity framework include:

• the APS Values and APS Code of Conduct contained in the Public Service Act 1999 which requires APS employees to behave honestly and with integrity and agency heads to establish procedures, having due regard to procedural fairness, for determining if an employee has breached the APS Code of Conduct.[13]
• the Commonwealth Fraud Control Guidelines 2011 established under the Financial Management and Accountability Act 1997 (FMA Act) and regulations for all agencies subject to the FMA Act. The guidelines require FMA Act agencies to refer all allegations of serious or complex fraud involving Commonwealth interests to the AFP.[14]
• the Commonwealth Procurement Rules and Commonwealth Procurement Guidelines for FMA Act agencies which establish principles under which procurement is to be considered that promote the efficient, effective and ethical use of Commonwealth resources.[15]
• the Commonwealth Grant Guidelines which establish the grant policy and reporting framework for all FMA Act agencies.[16]
• Individual agency codes of conduct such as the EFIC Code of Conduct Policy and DFAT Code of Conduct for Overseas Service which serves as a statement of the department's commitment to maintaining the highest ethical standards of behaviour.[17]

Attorney-General's Department

5.13      AGD is responsible for domestic criminal laws concerned with combating corruption including foreign bribery, organised crime, money laundering and proceeds of crime provisions. The AGD leads Australia's engagement on the UN, OECD, APEC, Financial Action Task Force and G20 anti-corruption related initiatives.[18]

Australian Public Service Commission

5.14      An ethical framework requires standards of conduct as well as processes for identifying behaviour that is inconsistent with those standards. Under the Public Service Act 1999, agency heads are required to establish procedures for determining if an employee has breached the APS Code of Conduct. The APSC is conferred statutory responsibilities to evaluate the extent to which agencies incorporate and uphold the APS Values and the adequacy of systems and procedures within agencies to ensure compliance with the APS Code of Conduct. The Public Service Commissioner issues directions in relation to each of the APS Values to ensure that they are complied with. Amongst the values, the APS must have the 'highest ethical standards and be openly accountable for its actions'.[19] To encourage compliance, the APSC provides advice on the application and interpretation of the APS Values and Code of Conduct as well as misconduct and whistleblowing provisions of the Public Service Act 1999.[20]

5.15      There are three sections of the APS Code of Conduct immediately relevant to the context of international operations:

• An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.
• An APS employee must not make improper use of: (a) inside information or (b) the employee's duties, status, power and authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.
• An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.[21]

5.16      The APSC advice in relation to working overseas covers matters such as respect for the law of other countries, cultural sensitivity, accepting gifts, use of diplomatic and consular status, personal behaviour, and behaviour of household members.[22] To support adherence to the APS Code of Conduct, the APSC provides guidance information to agencies on developing appropriate policies on other matters relevant to international operations including receiving benefits, hospitality, entertainment and sponsored travel.[23]

5.17      APS agencies include AGD, DAFF, and DFAT. Statutory agencies which employ staff under the Public Service Act 1999 include ACLEI, ACC, and Customs.[24] Members of agencies and bodies that fall outside of the ambit of the Australian Public Service Act 1999 (APS Act) and are therefore not subject to the APS Code of Conduct include AFP members and employees of statutory authorities and corporations.

Australian Federal Police

5.18      Under the Commonwealth Fraud Control Guidelines 2011, a matter of sufficient seriousness to warrant referral to the AFP includes the existence of 'bribery, corruption or attempted bribery, or corruption of a Commonwealth employee or contractor to an agency'.[25] When a referral is made to the AFP, it can investigate, reject the referral or undertake a joint investigation with the involved entity.[26]

5.19      In relation to the conduct of its own personnel, the Australian Federal Police Act 1979 (AFP Act) and the Australian Federal Police Categories of Conduct Determination 2006 establish the disciplinary regime relevant to AFP employees. The AFP Act provides a framework of four categories of misconduct by AFP employees.

Detecting and investigating corruption-related offences

5.20      Responsibility for oversight and investigation of corruption-related offences is divided at the Commonwealth level between various agencies including the AFP, ACLEI, the Commonwealth Ombudsman, the APSC and ASIC.

Australian Federal Police

5.21      The AFP investigates serious and complex crimes against Commonwealth laws, its revenue, expenditure and property. Commonwealth agencies must refer allegations of corruption to the AFP for investigation in relation to the following offences:

• unauthorised disclosure of information (section 70 of the Crimes Act)
• bribery, including bribery of a foreign public official (sections 141.1 and 70.2 of the Criminal Code Act);
• perjury (section 268.102 of the Criminal Code Act);
• unauthorised access, or modification, to restricted data (section 478.1 of the Criminal Code Act); and
• abuse of public office (section 142.2 of the Criminal Code Act).[27]

Australian Commission for Law Enforcement Integrity

5.22      ACLEI serves as a central component of the national integrity framework. The Integrity Commissioner is responsible for preventing, detecting, investigating and reporting on corruption issues. ACLEI has provided an 'avenue of forensic investigation of fraudulent or otherwise corrupt conduct that was previously available only for matters referred for police investigation, and if warranted, criminal prosecution'.[28]

5.23      ACLEI has oversight of the AFP, ACC, the former National Crime Authority and Customs. In July 2013, the expansion of ACLEI's jurisdiction to include AUSTRAC, CrimTrac and the DAFF Biosecurity is expected to strengthen the current anti-corruption arrangements in relation to the law enforcement context.

Australian Crime Commission

5.24      The ACC is a statutory authority established to combat serious and organised crime. It conducts special operations and special investigations against the threat of serious and organised crime.

Commonwealth and Law Enforcement Ombudsman

5.25      The Ombudsman Act 1976 confers on the Commonwealth Ombudsman (the Ombudsman) power to investigate the administrative actions of government departments and prescribed authorities in response to complaints, or on the Ombudsman's own motion. The special title of Law Enforcement Ombudsman conferred on the Commonwealth Ombudsman reflects the role of the Ombudsman to handle complaints about the AFP.

5.26      The Ombudsman reviews complaints received by the AFP which alleged serious misconduct and the AFP's handing of such complaints[29] As part of fulfilling this review function, the Commonwealth and Law Enforcement Ombudsman oversees the way that the AFP handles complaints about it and its members under Part V of the AFP Act.[30] Similarly, section 15HS of the Crimes Act requires the Ombudsman to inspect the controlled operations records of the AFP, ACC and ACLEI at least every twelve months to determine the extent of compliance with Part IAB of the Crimes Act.[31]

5.27      The Ombudsman has oversight of AFP, ACC and ACLEI in relation to access and interception of communications under the Telecommunications (Interception and Access) Act 1979 including powers to enter premises occupied by agencies, obtain relevant material, inspect records and prepare reports in relation to the interception of, or access to, communications. The Ombudsman is also required to conduct inspections of the records of the ACC, AFP, ACLEI and state and territory police forces as well as other specified state and territory law enforcement agencies under section 55 of the Surveillance Devices Act 2004 to determine the extent of their compliance with the Act.[32]

Australian Securities and Investments Commission

5.28      As the corporate, markets and financial services regulator, ASIC has responsibility for regulation of Australian companies, financial markets, financial service organisations and professionals who deal in and provide advice on investments, superannuation, insurance, deposit taking and credit. ASIC has enforcement powers to investigate suspected breaches of the law and seek civil penalties from the courts.

Conduct in the private sector

5.29      Alongside ASIC, there are other agencies that investigate or provide intelligence about corruption in the private sector including AUSTRAC, the Australian Competition and Consumer Commission, APRA, and EFIC. The regulatory framework governing Australia's private sector is covered by legislation including the Corporations Act and the Australian Securities and Investments Commission Act 2001.[33]

Prosecuting Commonwealth offences

5.30      The Commonwealth Director of Public Prosecutions (CDPP) prosecutes offences under Commonwealth law in accordance with the Prosecution Policy of the Commonwealth and conducts related criminal assets recovery. The main offences prosecuted by the CDPP with relevance to corruption include drug importation, offences against corporate law, fraud on the Commonwealth (including tax fraud, Medicare fraud, and social security fraud), money laundering, people smuggling, people trafficking, terrorism and a range of regulatory offences.[34]

5.31      In relation to Commonwealth offences committed overseas, the Criminal Code Act recognises a standard geographical jurisdiction as well as four categories of extended geographical jurisdiction for offences that reach outside Australia. Many offences relating to the proper administration of government have extended geographical jurisdiction including:

...property offences, fraudulent conduct, false or misleading statements, false or misleading information or documents, unwarranted demands of or made by a Commonwealth public official, forgery and related offences, impersonation of Commonwealth public officials, and obstruction of Commonwealth public officials.[35]

5.32      Bribery and related offences including bribery of a Commonwealth public official, corrupting benefits given to, or received by, a Commonwealth public official, and abuse of public office have an extended geographical jurisdiction to cover 'anyone for what they do anywhere in the world regardless of whether it is lawful elsewhere'.[36]

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