The Bill and its referral
On 17 October 2016, the Minister for Justice, the Hon Michael Keenan MP, introduced the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 (the Bill) into the House of Representatives.
The Minister noted in his second reading speech that:
In response to the Tink review into police oversight, the New South Wales Government will abolish the state's current police oversight body, the Police Integrity Commission, and replace it with the Law Enforcement Conduct Commission. The new commission will be responsible for detecting, investigating and preventing police corruption and misconduct, and will have comparable investigative powers to anti-corruption bodies in Australia.
The Bill provides the Law Enforcement Conduct Commission with access to information obtained under the Commonwealth interception regime, similar to other state anti-corruption commissions, which would be vital to that commission's investigations.
The Attorney-General, Senator the Hon George Brandis QC, wrote to the Committee on 20 October 2016 to refer item 28 of the Bill for inquiry and report.
Item 28 amends the list of ‘criminal law-enforcement agencies’ at subsection 110A(1) of the Telecommunications (Interception and Access) Act 1979 (TIA Act) to replace the Police Integrity Commission (PIC) with the Law Enforcement Conduct Commission (LECC).
Being listed as a criminal law enforcement agency would enable the LECC officers to:
apply to an independent issuing authority for a warrant to access stored communications (such as emails or SMS messages) to support an investigation of a ‘serious contravention’, which, as a general rule, carries a maximum penalty of at least three years’ imprisonment.
issue a preservation notice to a telecommunications carrier requiring the carrier to preserve all communications it holds which relate to the person or telecommunications service specified in the notice. Preservation notices may only be issued if the agency intends to apply for a stored communications warrant to access those communications.
authorise the disclosure of historical telecommunications data where it is reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty or for the protection of the public revenue. An authorisation may only be made where the privacy impact of the authorisation has been considered to be justified and proportionate.
authorise the disclosure of telecommunications data on a prospective basis for a period of no longer than 45 days. Authorisations for prospective data may only be made to assist in the investigation of criminal offences punishable by at least three years’ imprisonment.
Subsection 110A(11) of the TIA Act provides that when any bill amending the list of criminal law-enforcement agencies at subsection 110A(1) is introduced, the Minister:
(a) must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review; and
(b) must not in that referral specify, as the period within which the Committee is to report on its review, a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill.
Subsection 110A(11) of the TIA Act was implemented in response to the recommendations of this Committee in its consideration of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.
In his letter to the Committee, the Attorney-General noted that the NSW Government intends the LECC to commence in early 2017 and requested that the Committee give priority to its review.
Conduct of the inquiry
The Committee considered the Attorney-General’s request and resolved to complete its inquiry and report to the Parliament by 18 November 2016.
The Committee invited the Attorney-General’s Department and NSW Government to provide submissions to assist its review. Details of the review were published on the Committee’s website.
Two submissions were received and are listed at Appendix A. Copies of the submissions can be accessed at www.aph.gov.au/pjcis. Links to the Bill and Explanatory Memorandum are also available on the Committee’s website.
It should be noted that the Committee’s review focuses solely on item 28 and does not consider any other matters in the Bill.
Establishment and functions of the Law Enforcement Conduct Commission
As noted in the Minister’s second reading speech, the establishment of the LECC responds to the recommendations of the 2015 Tink Review of Police Oversight.
The Tink review was commissioned on 20 May 2015, with Mr Tink’s report delivered to the NSW Government on 31 August 2015. The review recommended a new model of police oversight in NSW that combined the functions of the PIC, the Police Division of the NSW Ombudsman’s Office and the Inspector of the Crime Commission.
The Law Enforcement Conduct Commission Bill 2016, which implements the recommendations of the Tink Review, passed the NSW Parliament on 9 November 2016.
In its submission, the NSW Government stated that the LECC would bring together the oversight functions of the bodies listed above, and noted that:
The integrity arm of the LECC will take over from the PIC responsibility for detecting and investigating allegations of misconduct in the NSW Police Force and NSW Crime Commission. The integrity arm would be able to exercise similar powers to those of the ICAC in carrying out its functions.
The LECC will have a wider oversight role that the PIC, in that its oversight arm will monitor complaint handling (currently a function undertaken by the Ombudsman). It will also have a new function to oversight critical incident investigations. The oversight arm will not have access to the LECC’s investigation powers for these functions.
The Committee was informed that while the nature and type of the LECC’s investigative powers will be the same as those of the PIC, the range of conduct that may be the subject of an investigation by the LECC will be slightly different.
The LECC’s oversight of administrative officers of the NSW Police Force and officers of the NSW Crime Commission will be broadened and brought into line with its oversight of police officers. At present, the PIC is able to investigate both misconduct and corrupt conduct by a police officer, but only corrupt conduct by an administrative officer of the NSW Police Force. The LECC will be empowered to investigate both serious misconduct and serious maladministration by a police officer or administrative officer of the NSW Police Force.
However, the LECC’s investigative powers will be limited to the investigation of serious misconduct and serious maladministration, unlike the PIC, which was able to investigate all police officer misconduct.
The LECC will be able to apply for a stored communications warrant, issue preservation notices and authorise the disclosure of telecommunications data in relation to investigations for serious misconduct or serious maladministration by an administrative or police officer of the NSW Police Force or officers of the NSW Crime Commission (subject to the thresholds set out in the TIA Act). This will include allegations of criminal activity and corruption.
The LECC’s powers will be comparable to the investigative powers available to other integrity bodies in Australia, such as the Independent Commissioner Against Corruption in NSW, the Independent Broad-based Anti-corruption Commission in Victoria, and the Corruption and Crime Commission in Western Australia. These agencies are all criminal law-enforcement agencies for the purposes of the TIA Act.
The LECC will be accountable to the Inspector of the LECC. The Inspector of the LECC will be responsible for monitoring the LECC’s compliance with NSW legislation, investigating complaints against LECC officers and undertaking audit functions relating to the use of covert powers.
The Inspector of the LECC will be able to receive lawfully intercepted information from interception agencies in order to carry out this oversight function.
The LECC will also be subject to the oversight requirements relating to agency use of stored communications and telecommunications data, which require agencies to maintain records for inspection by the Commonwealth Ombudsman and to report annually to the Attorney-General.
The Committee notes that establishment of the Law Enforcement Conduct Commission is intended to ‘unify the fragmented law enforcement oversight system and streamline the current arrangements’ in NSW. While the LECC will have the same investigative powers as the former Police Integrity Commission, the range of conduct that may be subject to investigation has changed.
The powers of the LECC will be comparable to those of other integrity bodies within Australia that are listed as criminal law enforcement agencies in the TIA Act. Like these agencies, the LECC will be able to apply for stored communications warrants, issue preservation notices and authorise the disclosure of telecommunications data when investigating serious misconduct or serious maladministration.
The Committee considers that the inclusion of the Law Enforcement Conduct Commission in the list of criminal law enforcement agencies at subsection 110A(1) of the TIA Act is appropriate.
The Committee therefore supports the proposed amendment at item 28 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 and recommends that it be passed.
The Committee supports the amendment at item 28 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, and recommends that it be passed.