Department of Agriculture and Water Resources
Over the course of the inquiry the committee heard from several
witnesses and submitters in relation to whether ACLEI's jurisdiction should be
expanded to include the entire Department of Agriculture and Water Resources (Agriculture).
As described previously, certain aspects of Agriculture's border-related
operations have been subject to ACLEI's jurisdiction since 2013. This chapter
examines the historical context that led to this arrangement and then considers
the substantive question of whether ACLEI's jurisdiction should include other
parts of Agriculture or the entire department.
As discussed in Chapter 1, the expansion of ACLEI's jurisdiction has
been an iterative process. This is largely reflective of its relative newness
and initial small size.
The inclusion of certain prescribed functions of Agriculture has its origins
in amendments to the Law Enforcement Integrity Act (2006) (LEIC
Act). These amendments permit the inclusion of certain aspects of Agriculture within
ACLEI's jurisdiction, as defined by regulation.
Under current arrangements, the Law Enforcement Integrity Commissioner
Regulations provide for the inclusion of certain Agriculture staff, all of whom
are connected to certain functions relating to the cargo control systems. Of
the approximately 4300 full time equivalent staff at Agriculture, approximately
1000 are subject to ACLEI's jurisdiction. These positions include:
the Departmental Secretary;
members of staff whose duties include undertaking assessment,
clearance or control of vessels or cargo imported into Australia; and
members of staff who have access to the Integrated Cargo System.
Prescribed aspects of Agriculture
With respect to Agriculture, ACLEI submitted that the areas of highest
risk that were initially included within jurisdiction were quite narrow in scope.
ACLEI explained that further decisions about jurisdictional scope would be
informed by a comprehensive risk assessment to be undertaken by Agriculture:
Each agency has its own distinct risk profile, specific to
its core business and level of integration with other agencies with law
enforcement functions. In the case of the Department of Agriculture, the
initial jurisdiction was set narrowly—to address areas of highest risk (to the
extent then known)—while further risk assessment work was to be undertaken to
inform subsequent decision-making about jurisdictional scope. ACLEI understands
that the Department of Agriculture has since commissioned a comprehensive
survey of its corruption risks, as part of its broad approach to risk
Further examination of Agriculture's risk assessment is discussed towards
the end of this chapter.
The Attorney General's Department explained the two broad options for
amending ACLEI's jurisdiction and the relative merits of each approach:
Prescribing an agency in the regulations allows the Integrity
Commissioner’s jurisdiction to be expanded quickly, while still enabling
Parliamentary scrutiny through the tabling and disallowance process. However,
this approach limits the Integrity Commissioner’s jurisdiction to the law
enforcement functions of a prescribed agency. From an operational perspective,
this can be problematic, as staff who work in areas that support or interact
with the law enforcement functions of an agency may, at various times, have
access to information with value to organised crime, or which otherwise makes
them susceptible to corruption. In these circumstances, questions may arise as
to the ability of the Integrity Commissioner to investigate the conduct of
these individuals where the particular functions they perform fall outside a
traditional law enforcement role.
In contrast, amending the definition of law enforcement
agency in the LEIC Act allows all of the functions of a law enforcement agency
named within the definition to fall within Integrity Commissioner’s
jurisdiction. This approach allows the Integrity Commissioner to
comprehensively address the corruption risk to the law enforcement functions
and outcomes of an agency, by removing any doubt that the Integrity
Commissioner can investigate corrupt conduct in any part of that agency, should
it become necessary.
During the course of the committee's inquiry, the Acting Integrity
Commissioner, Mr Rob Cornall, outlined the possible options for expanding
ACLEI's jurisdiction with relation to Agriculture:
In relation to the Department of Agriculture, the partial
inclusion of a department or agency within ACLEI's jurisdiction can present
some problems. For example, ACLEI recently received advice about alleged
corrupt activity involving a Department of Agriculture staff member who fell
outside ACLEI's jurisdiction, so it could not assist in that matter. As you
know, our current jurisdiction is limited to staff who have access to the
Integrated Cargo System or have authority to release or dispatch vessels and
cargoes. There is also the problem that it may be difficult to determine, in a
particular situation, if a relevant officer is included in the definition of
'staff member'. It is possible that this uncertainty could lead to a legal
challenge either to the exercise of ACLEI's statutory powers in an
investigation or to the use of the information or evidence obtained through those
One solution would be to include all of the staff in the
department within ACLEI's jurisdiction, but on the clear understanding that
ACLEI would maintain its primary focus on law enforcement integrity. In that
situation, my expectation is that the Integrity Commissioner would respect the
objects of the act and exercise his or her discretion under section 16 of the
act to give priority to serious or systemic corruption in law enforcement.
Alternatively, the committee could consider an extension of ACLEI's
jurisdiction to cover all Department of Agriculture staff in the regions—that
is, at the border—and relevant back office staff in Canberra, but not ACT-based
policy and other officers with no connection to law enforcement. This extended jurisdiction,
with the increased definition of Department of Agriculture staff members who
are subject to ACLEI's jurisdiction, would be a very significant advance on the
current partial inclusion of departmental staff.
Jurisdictional 'grey spots'
While Operation Heritage/Marca largely focused on corruption issues
within Customs, one officer from the Department of Agriculture was also
implicated. That officer eventually faced charges of 'abuse of public office,
prohibited disclosure of official information, receiving a corrupting benefit
and influencing a Commonwealth public official.'
The arrest and subsequent conviction of the officer in question exposed
a significant 'grey spot' within ACLEI's jurisdiction. This jurisdictional
uncertainty arose due to the constraints imposed by the regulations relating to
Agriculture as outlined above. The former Integrity Commissioner, Mr Phillip
Moss, noted that the jurisdictional uncertainty was problematic for ACLEI:
An employee of that agency [Agriculture] was arrested by the
AFP during Operation Heritage-Marca. That operation...was investigating criminal
and corrupt conduct at Sydney international airport. The person has since been
convicted...and sentenced to 14 months imprisonment, fully suspended, on entering
into a good behaviour bond... Since that person's primary place of employment was
at Sydney international airport, rather than in a role more clearly defined in
the Law Enforcement Integrity Commissioner Act and regulations, it is not
clear whether she would have fallen within the Integrity Commissioner's
jurisdiction. It is conceivable that she did, but it is not clear. In my
written submission I referred to this situation as a grey spot. Fortunately, in
the particular circumstances of that case, the lack of jurisdiction was able to
be dealt with in the context of a joint investigation.
Representatives of the Attorney-General's Department added weight to the
former Integrity Commissioner's concerns about jurisdictional 'grey spots':
It certainly is the case that, for example, only some staff
of the Department of Agriculture are currently within ACLEI's jurisdiction. I
think there is a potential there that if the Integrity Commissioner was looking
at some staff who were within the jurisdiction of the Department of Agriculture
and then wished to extend that investigation to consider the actions of other
staff—and it was not clear whether those staff did fall within the jurisdiction
or not—that has the ability potentially to undermine either the investigation or
the use of the specialist powers that the Integrity Commissioner has. I think
that is a risk that should certainly be noted.
The committee is concerned by the former Integrity Commissioner's evidence
that it was unclear whether or not the Agriculture officer implicated in the
Heritage/Marca investigation was within ACLEI's jurisdiction. The committee is
of the view that such jurisdictional uncertainty poses a real risk for future
ACLEI investigations involving agencies such as Agriculture where partial ACLEI
coverage is prescribed.
The committee notes the former Integrity Commissioner's comments that it
was fortunate Operation Heritage/Marca was a joint investigation. However under
a future scenario ACLEI may not be so fortunate and an important investigation
may be compromised by this grey spot. From the committee's perspective, ACLEI's
identification of the 'grey spot' is an influential consideration in
determining whether ACLEI's jurisdiction should be expanded to include all of
Similarly, the jurisdictional constraints imposed by the LEIC regulations
exposed problems of 'back office' risks, which are discussed below. Both these
risks are substantively connected to the current application of ACLEI's
jurisdiction over Agriculture by the use of partial agency inclusion by
Risks beyond the 'front line'—'black spot' risks
While ACLEI continues to monitor and investigate border-related
corruption risks, the agency's submission notes that 'so-called
"back-end" staff—such as information technology administrators—are as
much at risk of an integrity breach as are "front-line" operational
Key agencies such as ACLEI and the ACC identified back office operations
as a significant corruption risk. For instance, in a submission dated July 2009
for the purpose of a former committee inquiry, the Integrity Commissioner
observed that back office staff may be 'soft targets':
Law enforcement may be only one of a number of functions and
services delivered by an agency. However, administrative staff and other
employees or contractors support, or have access to, the agency’s law
enforcement functions, information, decision-making powers, staff and systems.
These staff may be soft targets and are as attractive and vulnerable to
subversion or coercion by criminal groups as law enforcement personnel.
ACLEI noted that recent investigations had highlighted potential
corruption risks for back office support staff that could be compromised. Mr Moss
Although [back-office staff] do not have front-line roles,
some staff members can access valuable law enforcement information held by an
agency, or have decision making authority that intersects with law enforcement
functions. Furthermore, they often have the skills and ability to cover their
own tracks or the tracks of others. A partial agency or activities based model
may preclude the Integrity Commissioner from investigating such matters. In my
written submission I used the term 'black spot' to describe the problem of artificially
limiting the Integrity Commissioner's jurisdiction within an agency. The black
spot and grey spot problems are especially pertinent because we know that
corrupt conduct will often involve conspirators working together, across boundaries,
to conceal evidence of their misconduct.
ACLEI has suggested the exposure to corruption or attempted corruption
of back office staff was a greater problem due to an absence of integrity
measures, awareness, and training in areas that might appear to be lower risk.
When asked about back office risk within Agriculture, ACLEI officers
gave the following example:
One matter that immediately comes to mind is an allegation of
corruption against an employee of the Department of Agriculture who did not
fall within the definition of staff members who come under our jurisdiction
from the regulations—in other words, the staff member was not involved in
releasing imports into the country and did not have access to the integrated
cargo system—so we said, 'That is all very interesting, but we cannot take this
matter any further.'
...in this instance because the person did not have access to
the relevant systems or come within the definition of the regulations we were
unable to investigate that conduct.
In addition to this example, the committee is in possession of a
confidential Agriculture document which provides a summary of corruption
allegations and investigations that occurred over a recent two year period. While
the committee chooses not to disclose the sensitive details of any of these
potential integrity issues, it does observe that of a total number of 15 listed
issues, 7 or nearly 50 per cent include the following note: 'the matter was not
notified to ACLEI as the officer does not fall within jurisdiction.' Each
allegation of corruption not notified to ACLEI was either investigated by the
department or the Australian Federal Police. Three of the eight matters that
were originally notified to ACLEI were referred back to the department for
ACLEI outlined the constraints it faces as a result of Agriculture's
Under Part 9 of the LEIC Act, the Integrity Commissioner may
require any person—including any Department of Agriculture staff member—to
attend and provide evidence at an information-gathering hearing or to provide
documents or things. However, the Integrity Commissioner may not be able to
investigate the conduct of—and may not make findings about—Department of
Agriculture staff members who are not prescribed under the LEIC Regulations. This
situation limits ACLEI’s ability to track a corruption issue across the
Department of Agriculture, hold corrupt collaborators to account, and address
risk to the Department’s law enforcement functions and business outcomes.
The ACC also supported additional detection and management measures to
mitigate back office risks. Mr Chris Dawson, Chief Executive Officer of the ACC
provided evidence that organised crime groups would seek to infiltrate or
influence public servants regardless of their operational role. Mr Dawson
argued that organised crime groups were more interested in sensitive
information for their benefit, and would not distinguish between back office
staff and frontline staff:
If it is a public sector official that is conducting an
activity that is not necessarily front of house but they have access, for instance,
to systems, organised crime will of course try to exploit those opportunities.
It would not be right for me to say it is free of risk; it is not. Wherever
organised crime will go, that of course presents a risk. That is not to say that
government departments do not have good antifraud, anticorruption measures within
the public sector themselves.
In addition to the concerns expressed above with regard to 'grey spot'
risks, the committee is concerned by the evidence it received about 'black
spot' risks. ACLEI's evidence that back-office staff, who are currently operating
beyond ACLEI's jurisdiction, are seen as 'soft targets' and 'are as much at
risk of an integrity breach' as its front-line staff is of serious concern to
the committee. The committee is also concerned with the somewhat artificial
constraints imposed on ACLEI's investigations by the current jurisdictional
ACLEI's support for whole-of-agency coverage
ACLEI supported the inclusion of the entire Agriculture department within
its jurisdiction. Mr Moss argued that while Agriculture is identified
primarily as a policy and program delivery agency, its biosecurity functions
make it vulnerable to law enforcement corruption risks across the entire
Mr Moss also clearly articulated his preference for the inclusion of
Agriculture in its entirety:
My submission, which is based on my knowledge of corruption
risk and how it can best be mitigated, is that the Department of Agriculture
should be included in the LEIC Act jurisdiction on a whole of agency basis.
The former Integrity Commissioner went on to clarify that under such a
scenario 'the Integrity Commissioner's role should remain focused on the law
enforcement related corruption risks of any agency...'
The acting Integrity Commissioner who succeeded Mr Moss reiterated this
point by stating 'that the Integrity Commissioner would respect the objects of
the act and exercise his or her discretion under section 16 of the act to give
priority to serious or systemic corruption in law enforcement.'
Despite ACLEI's support, the former Secretary of Agriculture, Dr Paul
Grimes, did raise the question of whether 'well removed' officers should be subject
to ACLEI's jurisdiction, providing an example of a policy officer in Canberra.
He argued that officers 'working on agricultural policy matters, [have]
absolutely nothing to do with our biosecurity administrative functions, processing
of cargo and other matters at the border.'
Although Dr Grimes would not be drawn on whether or not ACLEI's
jurisdiction should be expanded, he did concede that if there were significant
questions around boundaries there would be a case to include the entire
Department within ACLEI's jurisdiction:
If there is a case that there is a significant issue around
that boundary [of Agriculture's inclusion with ACLEI's jurisdiction] then I
think there is a case to expand jurisdiction. Whether that takes you to the
entire department, bearing in mind that we have officers who are well removed
from these operational areas—whether that takes you to having to go to that
full extent to deal with the boundary question—I really do think is open for
Dr Grimes noted however that while only prescribed aspects were subject
to ACLEI's jurisdiction, the Department was nevertheless taking a 'cautious
approach' by referring all potential corruption matters to the Integrity
[I alert] the commissioner to matters within the department
to make sure that he has full visibility of the range of matters that we are
managing within the department. In a sense that is providing some of the checks
and balances around that boundary question. I think there is benefit in having
something very simple in referring matters to the commissioner and alerting the
commissioner to matters rather than trying to have a graduated system where we
try to put it through some algorithm and then determine how it will be handled.
Department of Agriculture risk assessment
ACLEI describes Agriculture's corruption risk in the following terms:
The Department of Agriculture has a varied and overlapping
mix of policy, regulatory, facilitation, administrative and law enforcement
functions. To achieve its objectives, the Department works closely with other
Commonwealth, State and Territory-based agencies that have law enforcement
roles and, in some instances, works in shared premises or otherwise has shared
access to sensitive law enforcement information. Accordingly, corruption risk
to broad law enforcement outcomes can arise in many ways, whereby a corruptor
may attempt to subvert or divert apparently innocuous public functions to
achieve private or criminal ends.
In September 2014, Agriculture provided the committee with a copy of its
Corruption Risk Assessment (risk assessment). The report is an internal
Agriculture document. It contains a comprehensive assessment of Agriculture's
activities, including those not currently within ACLEI's jurisdiction. In
including the following commentary, the committee is mindful to not disclose
integrity risks or operational information that is specific to Agriculture.
The risk assessment was developed by engaging internal business areas as
well as external law enforcement agencies. It initially identifies those areas
within Agriculture that are potentially at risk of corrupt practices. It then
considers the effectiveness of the current control environment.
In its approach, the risk assessment defines the relationship between
likelihood and consequence applicable to the risk under review. A range of
factors is taken into consideration when determining the rating of likelihood
As might be anticipated, the corruption risks that lie outside ACLEI's
jurisdiction are not estimated to be as serious as those for employees involved
in the department's front-line regulatory function. This is to be expected
because ACLEI's prescribed coverage of Agriculture was designed to encompass
the higher risk areas of the department. Nevertheless, the corruption risk for
one particular departmental function which falls outside ACLEI's jurisdiction
was assessed to have a 10–20 per cent probability of occurring during
2014–2016 and which could result in moderate reputational damage to the
department or government and a financial loss of $1 000 000–$10 000 000. The
department has recently advised that for this corruption risk 'two additional
treatment measures' have been implemented which have mitigated the likelihood
of this risk to 'remote' (less than 10 per cent) while the consequence remains
Budgetary implications of expanding ACLEI's jurisdiction
Budgetary implications were cited by the former Secretary of Agriculture
as a key factor in considering whether ACLEI's jurisdiction should be expanded.
Representatives of the Attorney-General's Department also touched on
this subject when they referred to an unpublished report to the Minister for
The [unpublished] report also notes though that, in
principle, resourcing requirements should not influence decisions on
jurisdiction and those decisions on jurisdiction should be made on the merits
or otherwise of applying the Integrity Commissioner's powers to particular
agencies; however, ACLEI is a very small agency and any extensions of the
Integrity Commissioner's jurisdiction would increase its workload and have
resourcing implications that could not be met from within ACLEI's existing
resources, so any expansion would need to be coupled with appropriate
resourcing and secured as part of the normal budget process.
ACLEI noted that an additional $0.725 million and $0.732 million was
received in 2013-14 and 2014-15 respectively for the implementation of ACLEI's expanded
jurisdiction in 2013 to include AUSTRAC, CrimTrac and Agriculture's cargo
The former Integrity Commissioner, Mr Phillip Moss noted that expanding
ACLEI's jurisdiction was ultimately a consideration for government as to whether
the risk outweighed the cost:
...the funding of agencies is determined by government through
the government process, based on the government's policy priorities at the time
and its assessment of risk and opportunities.
The committee acknowledges that at face value, unlike Commonwealth
bodies such as the AFP and the ACC, the Department of Agriculture and Water
Resources is not a typical law enforcement agency. Agriculture does however, have
some very important law enforcement functions that contribute to the security
of Australia's borders. These include its screening for biosecurity risks and
cargo management responsibilities at Australia's international airports and
seaports. It was as a result of these important responsibilities that in mid-2013
the Agriculture portfolio was partially included within ACLEI's jurisdiction.
The committee notes that Operation Heritage/Marca uncovered a critical
'grey spot' that created a legal ambiguity for ACLEI's investigation. Were it
not for the joint AFP-ACLEI operation that ensured coverage, this
jurisdictional uncertainty may have obstructed ACLEI's investigation into
serious allegations of corrupt activity at the Sydney International Airport.
The committee also acknowledges the evidence relating to 'back office'
or 'black spot' risks. The committee agrees with the ACC's assessment that
organised crime figures will use whatever means available to them, regardless
of a staff member's proximity to the border, when attempting to compromise Commonwealth
departments and agencies. Further, the committee acknowledges the increasing
use of ICT systems results in greater access to sensitive law enforcement
The committee also notes the practice of former Secretary Grimes in
referring all potential corruption issues to ACLEI for consideration. This is
the same pragmatic approach advocated by the former head of Customs and now Secretary
of DIBP, Mr Pezzullo, which is described in Chapter 2.
Finally the committee notes the Integrity Commissioner's support for
Accordingly, the committee is persuaded that it is preferable to have
the entire Department of Agriculture and Water Resources included within
ACLEI's jurisdiction. Although the committee acknowledges that the corruption risks
apparent in the prescribed parts of the department are higher than in those not
currently prescribed, there is sufficient evidence of corruption risks in other
parts of the department to warrant the expansion of ACLEI's jurisdiction.
The committee does not favour a partial expansion of ACLEI's
jurisdiction to higher risk areas such as ICT support as this would merely
shift the grey spots and black spots rather than remove them as an impediment
to the Integrity Commissioner's future corruption investigations.
The committee notes that section 16 of the Law Enforcement Integrity
Act 2006 requires the Integrity Commissioner to give priority to corruption
issues that constitutes serious corruption or systemic corruption. Given that
Agriculture's functions that are not already prescribed by regulation are
relatively lower risk, it is likely that an expansion jurisdiction will not
result in a significant workload increase for ACLEI or Agriculture.
The committee recommends the government amend the Law Enforcement
Integrity Act 2006, to include the entire Department of Agriculture and
Water Resources within the Australian Commission for Law Enforcement
To fully support ACLEI's expanded jurisdiction, the government should
assess the additional resources required by ACLEI to ensure that the transition
is adequately funded.
Furthermore, Agriculture should provide appropriate training and
guidance for staff that will for the first time be covered by ACLEI's
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