Chapter 2 - Overview of the Bill
Background
Law Enforcement Integrity
Commissioner Bill 2006 and Law Enforcement Integrity Commissioner
(Consequential Amendments) Bill 2006
2.2
The Law Enforcement Integrity Commissioner Bill
2006 (LEIC Bill) establishes the office of the Integrity
Commissioner who will head up the Australian Commission for Law Enforcement
Integrity (ACLEI), an independent body with powers to prevent, detect and
investigate corruption within Commonwealth government law enforcement agencies,
including the Australian Federal Police (AFP) and the Australian Crime
Commission (ACC).[1] In his second
reading speech, the Attorney-General,
the Hon. Philip Ruddock MP,
stated that other Commonwealth agencies may later be brought within ACLEI's jurisdiction
by regulation.[2]
2.3
When he announced that the Commonwealth would
establish an independent anti-corruption body, the Minister for Justice and
Customs, Senator the Hon. Chris
Ellison said:
While no evidence exists of systemic corruption within the
Australian Crime Commission (ACC), the Australian Federal Police (AFP) or other
Commonwealth law enforcement agencies, the Government has decided there should
be a independent body with the powers of a Royal Commission to address
corruption at the Federal level should it arise.[3]
2.4
The LEIC Bill and
its companion Bills have had a lengthy development which reflects the
experience of several Australian States in investigating serious corruption.
State Bodies
2.5
A number of Australian jurisdictions have
established statutory bodies with power to investigate misconduct and
corruption in the public sector generally.[4]
In other words, the powers of these State bodies are wider than only investigating
corruption or misconduct in law enforcement agencies. For the most part, these
bodies are also empowered to investigate organised crime.
2.6
New South Wales – In 1988, NSW established the Independent Commission Against
Corruption (ICAC). ICAC's functions include investigating allegations of
corruption including those made against members of the NSW Police. In addition,
the Police Integrity Commission (PIC) was established in 1996 upon the
recommendation of the Wood Royal Commission. The PIC's functions include
preventing, detecting or investigating police corruption and other serious
police misconduct and to manage or oversee other agencies doing the same.[5] The ICAC retained an advisory and
support role for the PIC.
2.7
Queensland – In 2002, the Criminal Justice Commission and the Queensland
Crime Commission merged to form the Crime and Misconduct Commission (CMC). The
CMC serves two basic functions. The first relates to the investigation of major
and organised crime. The second relates to complaints of misconduct by public
sector employees, including those from the police service. The CMC also has a research
function and prevention function.
2.8
Western Australia – The Corruption and Crime Commission of Western Australia (CCC) investigates
allegations of misconduct by Western Australian police officers and public
officers. It also conducts education programs with State government departments,
agencies, and in the community, to increase the awareness of misconduct and how
to counter it. The CCC took over the cases from the Anti-Corruption Commission
(that ceased to operate on 26 May 2004)
and the Police Royal Commission.[6]
2.9
Victoria – Victoria
has no analogous body to those noted above. However, in 2004, a Police
Ombudsman was established which subsequently became the Office of Police
Integrity in November 2004. The Director of Police Integrity is also the Victorian
Ombudsman.
The Commonwealth
2.10
Preventing and combating public sector
corruption at the Commonwealth level is not a new issue. In 1976, the
Commonwealth Ombudsman was established and, since that time, the office has
been entrusted with the functions of overall integrity 'watchdog' through its
role as office of final resort for complaints about defective administration.[7] As a separate function, the
investigation of corrupt and other behaviour involving Commonwealth officials,
for the most part, rested with the AFP and later the National Crime Authority
(NCA), now the ACC.[8]
2.11
In 1996, the Australian Law Reform Commission
(ALRC) proposed a major departure from these arrangements and recommended that:
a new single agency...should be established to investigate or
manage/supervise the investigation of complaints against the AFP and the NCA
[now ACC].[9]
2.12
The ALRC recommendation (though not accepted) argued
for the creation of a dedicated corruption prevention/handling body similar to
those established by the States.[10]
2.13
The lessons learned from the State bodies, as
well as a clearer perspective on the potential for corruption at the
Commonwealth level, has given rise to the establishment of an anti-corruption
body.
Law Enforcement (AFP Professional
Standards and Related Measures) Bill 2006
2.14
The Law Enforcement (AFP Professional Standards
and Related Measures) Bill 2006 (AFP Professional Standards Bill) provides a
new complaints and professional standards framework for the AFP.
2.15
The central characteristics of the current AFP
model of professional standards are contained in the Complaints (Australian Federal Police) Act 1981 (to be repealed by this
Bill), the
Australian Federal Police (Discipline) Regulations 1979 and the Commissioner's
Orders. These provisions provide a structured regime of control of police
action, which reflects the view that police behaviour is best controlled by
rules of conduct enforced by legalistic charges and determined in certain
circumstances by the Federal Police Discipline Tribunal.[11]
2.16
In its 1996 review of AFP and (then) NCA
complaints and disciplinary systems, the ALRC observed that AFP processes were
outdated and unsatisfactory.[12] The
ALRC saw as the solution the establishment of a National Integrity and
Investigations Commission that would have a dual role for the AFP and NCA – an
office dealing with complaints and an office dealing with corruption.[13] Additionally, in 2001, the Senate
Legal and Constitutional References Committee also recommended that the AFP
complaints procedures be 'simplified and made more transparent'.[14]
2.17
In 2002, Justice William Fisher AO QC
undertook a review of AFP professional standards (the Fisher Review) at the
request of the AFP Commissioner Mick
Keelty. Justice Fisher's
recommendations centred around the establishment of a 'managerial model' for
professional standards rather than a legalistic and formal approach.[15] The Fisher Review observed:
In complaints and discipline matters police services have
traditionally tended to focus too much on the aspect of reactive punishment.[16]
2.18
The AFP Professional Standards Bill implements
the bulk of the Fisher Review's recommendations.
Law Enforcement Integrity Commissioner Bill 2006
2.19
As stated above, the LEIC Bill
establishes ACLEI and the role of the Integrity Commissioner. ACLEI's jurisdiction
will initially cover the AFP and the ACC, though other Commonwealth agencies
with law enforcement functions may be brought within its jurisdiction by
regulation.[17]
2.20
The main purpose of the LEIC Bill is to enhance
the integrity of Commonwealth law enforcement agencies by providing independent
and effective external investigation of possible instances of corruption in the
AFP and ACC.[18] The Bill provides ACLEI
with the power to conduct a Royal Commission style investigation and many
provisions in the Bill mirror those contained in the Royal Commissions Act 1902 and the investigation and hearing powers
in the Australian Crime Commission Act
2002.[19]
2.21
A total of $9.5 million was allocated in
the 2005-06 Federal Budget – of this, $0.6 million was allocated to the Attorney-General's
Department to fund the establishment of ACLEI and $8.9 million was
allocated to ACLEI.[20]
Part 1 – Preliminary
2.22
Part 1 outlines the commencement dates
(clause 2), objects (clause 3) and application (clause 4) of the
Bill.
Part 2 – Interpretation
2.23
Definitions are contained in clause 5. At
clause 6, the Bill provides that the
meaning of 'engages in corrupt conduct' is:
...any act or omission which involves the abuse of office as a
staff member of a law enforcement agency, or conduct which perverts, or is for
the purpose of perverting the course of justice, or, having regard to the staff
member's duties and powers, conduct engaged in for the purpose of corruption of
any other kind...[21]
2.24
Clauses 7-9 discuss the meaning of the term
'corruption issue' in the context of ACLEI and law enforcement agencies.
2.25
Clauses 10 and 11 identify persons who are
considered to be staff members of law enforcement agencies and ACLEI
respectively. The Bill treats staff members of
the former NCA as if they were staff members of the ACC (clause 12).
'Secondees' are defined in clause 10(5).[22]
Part 3 – The Integrity
Commissioner
2.26
Clause 15 provides for the appointment of
an Integrity Commissioner as the statutory head of ACLEI and prescribes his or
her functions and powers in investigating corrupt conduct and corruption
issues. In carrying out his or her functions, priority must be given to matters
involving serious or systemic corruption (clause 16).
Part 4 – Dealing with
corruption issues
2.27
Division 1 outlines the ways in which a corruption
issue may be brought to ACLEI's attention – that is, by notification or
referral by the Minister or by another agency or person.[23] The Bill
creates particular obligations for heads of law enforcement agencies in
relation to corruption issues that concern their agency and for custodians of
prisoners who may wish to raise a corruption issue.
2.28
Division 2 deals with ACLEI's initial
decision about whether to directly investigate a corruption issue or whether it
should be investigated by a law enforcement agency. Clause 27 provides a
list of factors that ACLEI must consider, including the appropriate balance
between its responsibility to investigate corruption issues, and the
responsibility of law enforcement agencies to manage their agencies.[24] Division 2 also provides for ACLEI
to advise interested parties of the decision and for the possibility of
changing the decision at a later stage if there is reason to do so.[25]
2.29
ACLEI will have jurisdiction to investigate
allegations of corruption made against, or relating to, State and Territory law
enforcement officers who are seconded to a Commonwealth agency
(clause 29). ACLEI will share the oversight of State and Territory
officers with the relevant integrity agency (clause 30).
2.30
ACLEI must deal with corruption issues that were
notified (clause 19) or referred (clauses 18 or 23) in one of the
ways listed in subclauses 26(1) and 29(6), or decide to take no further
action.[26] ACLEI may conduct an
investigation, either alone or jointly with another government agency or State
and Territory integrity agency. It may refer a corruption issue to the AFP or
other law enforcement agency for investigation, and may manage or oversee an
investigation being conducted by a law enforcement agency. ACLEI has further
options where the corruption issue relates to a secondee to a law enforcement
agency.
2.31
Subdivision C requires ACLEI to advise
particular people (for example, Ministers, persons who refer issues and heads
of law enforcement agencies) of the decisions made in relation to the corruption
issue raised. ACLEI may also initiate its own investigations
(subdivision D) and may at any time reconsider how a corruption issue is
to be dealt with (subdivision E).
Part 5 – Information sharing
when decision made about how to deal with corruption issue
2.32
This Part provides mechanisms to ensure that the
law enforcement agency which is to investigate a corruption issue has access at
the outset to all the available information.[27]
The Bill provides for information sharing
between agencies to ensure effective and efficient investigations.
Part 6 – Investigations by
Integrity Commissioner
2.33
Part 6 sets out basic principles governing
the conduct of investigations of corruption issues by ACLEI. ACLEI has the
discretion to choose the most suitable approach to each individual matter
(clause 48), subject to the Minister's power to order a public inquiry
(clause 71).
2.34
ACLEI is required to inform the Minister, the
head of the agency concerned, the complainant and – where appropriate – the
subject of the investigation, of the initiation, progress and outcomes of the
investigation. It must report all findings at the conclusion of an
investigation, subject to provisions contained in the Bill
ensuring the confidentiality of protected information (clause 149). ACLEI may
also report to the Minister and Parliament if it believes that there is a
failure by the head of an agency to take adequate remedial action
(clauses 55-57).
Part 7 – Investigations by
other Commonwealth agencies
2.35
Part 7 sets out the process and
requirements where ACLEI either refers an investigation to a law enforcement
agency or is managing (clause 61) or overseeing (clause 62) an
investigation by an agency.
2.36
Reporting and notification requirements are set
out in Division 3. ACLEI may request progress reports from the agency
conducting the investigation (clauses 63 and 64) and must receive a report
at its conclusion (clause 66). Upon receipt of the final report, ACLEI may
make comments and/or recommendations in writing to the head of the agency
concerned (clause 67). ACLEI may request details of actions that the agency
plans to take in response to its recommendations and if it is not satisfied
with the response of the agency it may refer the matter to the Minister.
Part 8 – Public inquiries into
corruption issues
2.37
The Minister may request that ACLEI conduct a
public inquiry into a corruption issue, corruption generally in law enforcement
agencies and/or the integrity of staff members of law enforcement agencies
(clause 71).
2.38
ACLEI must invite submissions on issues that are
the subject of a public inquiry (clause 72) and it is required to submit a
report to the Minister at the conclusion of an investigation that includes
findings, evidence, action taken or proposed to be taken and recommendations
(clause 72).
Part 9 – Integrity
Commissioner's powers in conducting investigations and public inquiries
2.39
For the purposes of investigating a corruption
issue ACLEI has the power to compel the production of documents and things. It can
make requests to staff members of law enforcement agencies or to any other
person requiring them to provide information or produce documents or things
(clauses 75 and 76). ACLEI is allowed to retain documents or things
produced for a period necessary for the purposes of the investigation for which
they were requested (clause 77).
2.40
The staff member or other person has grounds for
non-disclosure where disclosure would, for instance, prejudice
Commonwealth/State relations or reveal a confidential source of information
relevant to the enforcement of a criminal offence or a civil penalty provision
(clause 78).
2.41
If ACLEI requests a legal practitioner to
produce documents, information or things, the legal practitioner can refuse if
doing so would disclose privileged communications made by, or to, the legal
practitioner (clause 79).
2.42
A staff member or person is not excused from
complying with a request made under clauses 75 and 76 on the grounds that
the production of information or documents requested could incriminate him or
her. The privilege against self-incrimination is abrogated in clause 80,
although a 'use immunity' is provided in (subclauses 80(2) and (4)). This
immunity operates where a staff member of a law enforcement agency, or other
person, prior to producing information or documents or things, claims that
doing so may tend to incriminate or expose them to a penalty.[28] This means that the information or
documents or things will not be admissible as evidence against the person in
criminal proceedings or any other proceedings for the imposition or recovery of
a penalty. The use immunity is not available in five specified circumstances
(subclause 80(4)).
2.43
Similarly, a person is not excused on the
grounds that answering a question or producing information, documents or things
would breach a secrecy provision (except if disclosure would breach a taxation
secrecy provision or a law enforcement secrecy provision) (clause 80).
2.44
Clause 80 also provides that a person
cannot refuse or fail to comply with a request to answer a question or produce
information, documents or things on the grounds that doing so would be contrary
to the public interest.
2.45
Division 2 confers powers on ACLEI to hold
a hearing for the purpose of investigating a corruption issue or conducting a
public inquiry. ACLEI has the power to hold the whole, or part of, a hearing in
public or private (subclause 82(3)). It may serve a summons on a person to
attend a hearing (clause 83) and may take evidence outside Australia
(clause 84).
2.46
If a summons has been served on a person, ACLEI has
a general discretion (limited by subclauses 91(3)-(5)) to include a
notation preventing or limiting disclosure of information about the summons or
any official matter connected with the summons (subclause 91(2)). This is
designed to prevent a disclosure which could lead to the destruction or
alteration of evidence, or intimidation of witnesses.[29] According to the Explanatory
Memorandum, a specified circumstance allowing disclosure in order to obtain
legal advice is likely.[30]
2.47
ACLEI's powers are supported by criminal offences
for conduct in the nature of contempt (clause 94).
2.48
ACLEI staff will provide investigative,
intelligence and administrative support. For the purpose of conducting
investigations ACLEI 'authorised officers' will have the same powers of arrest
(Division 5) as a constable of police and will be able to apply for and
execute search warrants (Division 4). A search warrant may be issued if
there are reasonable grounds to suspect that there is, or will be within
72 hours, evidential material on the premises or person which may be
concealed, lost, mutilated or destroyed (clause 109). Subdivision D
sets out general provisions about executing a search warrant and
subdivisions E and F contain specific provisions about executing a warrant
in relation to premises and persons (respectively).
Part 10 – Dealing with
evidence and information obtained in investigation or public inquiry
2.49
ACLEI must provide evidence of an offence or a
person's liability to a civil penalty or confiscation proceedings[31] to the relevant authority or person to
enable prosecution or the commencement of civil penalty proceedings in
appropriate circumstances (clauses 142 and 143; see also clause 148).
Prior to providing a person or authority with this evidence, ACLEI must take
reasonable steps to consult the head of a relevant agency, unless it is likely
that an investigation or subsequent action would be prejudiced by doing so
(clause 144).
Part 11 – Attorney-General
certificates about release of information
2.50
The Attorney-General is authorised to prevent
the disclosure of information by ACLEI and the Integrity Commissioner on the
grounds that it would be contrary to the public or national interest
(clause 149).[32] The
Attorney-General may issue a certificate prohibiting the disclosure of specific
information by specific methods. A certificate may also impact on information
sharing between agencies, and the mandatory reporting requirements.
Part 12 – Dealing with ACLEI
corruption issues
2.51
The Bill includes
a procedure for investigating complaints of corruption issues within ACLEI
(including the Integrity Commissioner) and provides that the Minister may
authorise a special external investigation (clause 156).
2.52
Clause 174 imposes an obligation on all ACLEI
staff members (including the Integrity Commissioner) to report corrupt conduct.
Part 13 – Administrative
provisions
2.53
Part 13 covers administrative issues,
including the appointment (clause 175), remuneration (clause 178) and
termination (clause 183) of the Integrity Commissioner. Division 2
provides for the appointment of an Assistant Integrity Commissioner and other
related issues.
2.54
Division 3 establishes ACLEI
(clause 195) and prescribes that its function is to assist the Integrity
Commissioner in dealing with corruption issues (clause 196). The Integrity
Commissioner may engage consultants (clause 198) and secondees
(clause 199).
2.55
ACLEI must give a report to the Minister to be
presented in Parliament on the performance of the Integrity Commissioner's functions
during each financial year (clause 201).
2.56
Division 5 outlines the confidentiality
requirements for ACLEI staff. Exceptions to these requirements are at
clauses 208 and 209.
Part 14 – Parliamentary Joint
Committee on the Australian Commission for Law Enforcement Integrity
2.57
The Bill creates
a Parliamentary Joint Committee (PJC) to oversee the operation of ACLEI and to
ensure that it is accountable to Parliament. The PJC must monitor, review and
report on any relevant matter that should be directed to the government's
attention (clause 215). ACLEI must inform the PJC when requested, of the
general conduct of ACLEI operations and provide information related to
investigations and inquiries unless the information is clause 149
certified information (clause 216).
2.58
The Bill provides
that the PJC must meet in private once each year to receive a brief from the
Commonwealth Ombudsman about ACLEI's involvement in controlled operations
(clause 218).
Part 15 – Miscellaneous
2.59
Part 15 contains miscellaneous provisions,
including the Integrity Commissioner's power of delegation (clause 219)
and the provision of immunity from civil proceedings for staff members of ACLEI
(clause 222). Clause 224 provides that the Governor-General may make regulations
prescribing matters required or permitted by the Bill,
or that are necessary or convenient to be prescribed.
Law Enforcement Integrity Commissioner (Consequential Amendments) Bill 2006
2.60
The Law Enforcement Integrity Commissioner
(Consequential Amendments) Bill 2006 (Consequential Amendments Bill) amends a
range of Acts as a consequence of the establishment of ACLEI and the
appointment of the Integrity Commissioner.[33]
2.61
As a result of the LEIC Bill,
it is necessary that ACLEI has investigatory and inquiry powers that will allow
it to gather information and evidence to perform its functions.[34] It is also necessary that information
be passed between ACLEI and other Commonwealth agencies lawfully, particularly
where that information relates to a Commonwealth criminal offence.
2.62
This Bill
provides for ACLEI investigators to have access to the full range of special
investigative powers, including the capacity to use telecommunications
interception, surveillance devices, controlled delivery and assumed identities.
It also provides ACLEI with access to a range of otherwise confidential
information that is accessible to investigators from other key Commonwealth law
enforcement agencies. Lastly, the Bill modifies
the Ombudsman Act 1976 to clarify the
relationship between the Commonwealth Ombudsman and ACLEI.
Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006
2.63
The AFP Professional Standards Bill inserts a
new part in the Australian Federal Police
Act 1979 (AFP Act) to modernise the complaints and professional standards
regime within the AFP. The new part implements a contemporary managerial
approach to complaints and professional conduct issues.[35] It provides for a graduated system of
categories of conduct to allow for minor complaints to be dealt with by
managers and for more serious categories to be investigated by the unit
established within the AFP to deal with professional standards concerns.
2.64
The Bill also
revises the role for the Commonwealth Ombudsman in relation to professional
standards. It gives the Ombudsman:
-
the ability to jointly determine, with the AFP
Commissioner, the kinds of issues that belong to various categories of conduct;
-
access to the records that are kept in relation
to AFP conduct and practices issues; and
-
the role of conducting annual and ad hoc reviews
of the operation of the new professional standards system.
2.65
There is no financial impact flowing directly
from the provisions of this Bill.[36]
Schedule 1 – Main amendments
2.66
Schedule 1 amends the AFP Act by inserting
a number of definitions. In particular, item 2 expands the current
definition of 'AFP appointee' (contained in the Complaints (Australian Federal Police) Act 1981) to ensure all
persons engaged by the AFP Commissioner, including consultants, independent
contractors and persons engaged overseas as employees are covered by the new
complaints and professional standards system.
Part V – Professional
Standards and AFP conduct and practices issues
2.67
This part establishes the procedures for AFP
conduct issues, AFP practices issues, and other issues related to the AFP are
able to be raised and dealt with under the new system.
Division 1 – Preliminary
2.68
The AFP Commissioner may determine the professional
standards to be complied with by AFP appointees (clause 40RC).
2.69
A unit must be constituted within the AFP to
undertake investigations of AFP conduct issues and corruption issues that
relate to conduct engaged in by AFP appointees (clause 40RD). The head of
the unit is responsible directly to the AFP Commissioner (clause 40RE).
2.70
'AFP conduct issue' is defined broadly and
relates to whether an AFP appointee has engaged in conduct that breaches the
AFP professional standards or is corrupt conduct (clause 40RH). Conduct
that was engaged in before the commencement of this section and conduct for
which the statute of limitations has passed are included in the definition.
2.71
'AFP practices issue' is also defined broadly
and concerns the practices and procedures of the AFP, both within and outside
of Australia
(clause 40RI).
2.72
There are three categories of conduct that
define what behaviour is able to be the subject of a complaint in relation to a
professional standards issue for the purposes of the proposed legislation.
-
Category 1
conduct (least serious) – inappropriate conduct that relates to minor
management matters or customer service matters or conduct that reveals a need
for improvement by the AFP appointee concerned (clause 40RN).
-
Category 2
conduct – minor misconduct by an AFP appointee, inappropriate conduct that
reveals unsatisfactory behaviour by an AFP appointee or repeated instances of
category 1 conduct (clause 40RO).
-
Category 3
conduct – conduct that is serious misconduct by an AFP appointee or that
raises the question whether termination action should be taken, or involves a
breach of the criminal law or serious neglect of duty by an AFP appointee, and
that is not conduct that raises a corruption issue (clause 40RP).
-
The highest category of conduct is conduct
giving rise to a corruption issue (clause 40RK).
2.73
The AFP Commissioner and the Commonwealth Ombudsman
may jointly determine by legislative instrument the kind of conduct that falls
within category 1, 2 or 3. If a conduct issue potentially falls into a
number of different categories, it will be taken to fall within the highest of
those categories.
Division 2 – Raising AFP
conduct and practices issues with the AFP for action under Division 3
2.74
Any person may give information that raises an
AFP conduct or practices issue either to the AFP Commissioner or any AFP
appointee, in writing or orally (clause 40SA). The Bill
also provides mechanisms for persons in custody to give information
(clause 40SB).
2.75
Information given under clause 40SA must be
recorded and dealt with in accordance with subclause 40TA(1). There is an
exception for category 1 conduct issues or an AFP practices issues
(subclause 40SC(2)).
Division 3 – Dealing with AFP
conduct or practices issues
2.76
The AFP Commissioner may issue orders about how
AFP conduct or practices issues and information are to be dealt with by AFP
appointees (clause 40TA).[37] The AFP
Commissioner's power to make orders is important because the provisions of the
proposed Part V set out only key elements of the new regime. Most of the
remaining administrative details to enable the system to function effectively
will be provided by the Commissioner's orders.[38]
2.77
Division 3 also outlines action that can be
taken to improve or address the AFP appointee's performance or behaviour – for
example, training and development action (clause 40TC), remedial action
(clause 40TD) and termination action (clause 40TE).
2.78
Subdivision C provides that category 1
and 2 conduct issues are to be dealt with by a manager who is allocated such an
issue. Subdivision D outlines how category 3 conduct issues and
corruption issues (in association with ACLEI) are to be dealt with.
Division 4 – Ministerially
directed inquiries
2.79
The Minister has the power to arrange for an
inquiry to be held concerning the conduct of an AFP appointee or any matter
relating to the AFP (clause 40UA). If the Minister arranges for an
inquiry, he or she must inform the Commonwealth Ombudsman, ACLEI and other
persons or bodies that the Minister deems appropriate about the details of the
inquiry (clause 40UB).
Division 5 – Investigative
powers
2.80
Where a person is investigating a
category 3 conduct issue, a corruption issue (under Division 3) or a
ministerially directed inquiry (under Division 4), Division 5
provides additional powers to the investigator (clause 40VA).
2.81
The investigator may:
-
conduct the inquiry and may obtain information
in a manner that he or she thinks fit (subject to the Division)
(clauses 40VB and 40VC); and
-
enter and search AFP premises for the purposes
of an investigation or inquiry (clause 40VF).
2.82
The investigator may direct an AFP appointee to
provide information, produce a document or thing, answer a question or do
anything else reasonably necessary for the purposes of the investigation or
inquiry (clause 40VE). The AFP appointee is not excused from complying
with the direction on any ground. The production of information or evidence
obtained from the AFP appointee is not admissible in evidence against the AFP
appointee in civil or criminal proceedings (with some exceptions). Similar
powers are given to an investigator conducting a Ministerially directed inquiry
(clause 40VG).
2.83
A number of offences regarding the conduct of
AFP appointees with a maximum penalty of six months imprisonment are listed at
clause 40VH.
Division 6 – Record keeping
2.84
The AFP Commissioner must keep adequate records.
There is an exception for category 1 conduct issues that are resolved
without being recorded (clause 40WA). Both ACLEI and the Commonwealth Ombudsman
are entitled to have access to the records for the purposes of performing their
functions (clause 40WA).
Division 7 – Ombudsman review
2.85
The Commonwealth Ombudsman's role is to review
the administration of Part V (clause 40XA). At least every
12 months the Ombudsman must inspect the records of AFP conduct and
practices issues that have been, or are being dealt with, under
Divisions 3 and 4. The Ombudsman may also conduct ad hoc inspections
(clause 40XB).
2.86
The Commonwealth Ombudsman must prepare an
annual report for the Parliament that includes information as to the adequacy
of the administration of matters under Divisions 3 and 4
(clause 40XD).
Division 8 – Offences
2.87
Division 8 provides that it is an offence:
-
to cause, or threaten to cause, detriment to
another person on the ground that the person, or another person, gave
information for the purposes of Part V (clause 40YA);
-
to provide false information about AFP conduct
or practices issues (clause 40YB);
-
for an AFP appointee to refuse to give the
necessary personal details without reasonable excuse, or to give false details,
where a person has requested those details for the purpose of making a
complaint or raising a conduct issue, and where the AFP appointee was informed
of the reason for requesting the details (clause 40YC).
Division 9 – Secrecy
2.88
Clause 40ZA applies where a person
inappropriately records or communicates information acquired via the
investigation or inquiry.
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