State, territory and international integrity commissions
Each of Australia's six states currently has a dedicated integrity
agency. These state-based agencies are as follows:
New South Wales (NSW) Independent Commission Against Corruption
Queensland Crime and Corruption Commission (Qld CCC)
Western Australian (WA) Corruption and Crime Commission
Tasmanian Integrity Commission
Victorian Independent Broad-based Anti-Corruption Commission
South Australian (SA) Independent Commission Against Corruption
The Northern Territory (NT) does not yet have an integrity commission
but is in the process of establishing one. On 26 August 2015, the Legislative
Assembly of the NT resolved to establish an independent anti-corruption body
and noted the intention of the government to appoint an independent person to
provide advice on possible models.
Mr Brian Martin AO QC was appointed to complete this task and delivered his report
on 27 May 2016.
This report recommends that the NT adopt the model of the SA Independent
Commission Against Corruption and that the current Independent Commissioner
Against Corruption in South Australia, the Hon. Bruce Lander QC, be
appointed on a part-time basis as the first head of the NT's commission.
The NT government has developed draft legislation in response to the Martin
report and is currently conducting a public consultation process on its
Following the October 2016 Australian Capital Territory (ACT) election,
the Labor and Greens parties formed a coalition government. The two parties
agreed to establish an 'Independent Integrity Commission, broadly structured on
those operating in similar sized jurisdictions, following a Parliamentary
Committee inquiry into the most effective and efficient model for the ACT'.
On 15 December 2016 the Legislative Assembly for the ACT established a Select
Committee on an Independent Integrity Commission, which is due to report by 31
As noted in the 2016 interim report of the Select Committee on the
Establishment of a National Integrity Commission (the 2016 select committee), Australia's
state-based integrity agencies share a number of similarities in institutional
They each have jurisdiction over the public but not the private
sector (although the extent of jurisdiction across the public sector varies);
All, with the exception of the Qld CCC, have investigative,
preventive and educational functions;
They all possess coercive powers similar to those of Royal
Each is overseen by a Parliamentary committee.
Nevertheless, significant differences exist between these six agencies
in terms of the details of their institutional design. The following sections
of this chapter discuss each agency in turn with respect to five central
elements of their design: the number, appointment and tenure of commissioners;
functions; definition of corruption or misconduct and jurisdiction; powers; and
oversight. This chapter also addresses evidence presented to the committee
regarding comparisons with international integrity agencies.
New South Wales—Independent Commission Against Corruption
The New South Wales Independent Commission Against Corruption (NSW ICAC)
was established by the Independent Commission Against Corruption Act 1988
(NSW) (ICAC Act (NSW)), and commenced operation in 1989.
The commission's mandate is to:
...promote the integrity and accountability of public
administration by investigating, exposing and preventing corruption involving
or affecting NSW public authorities and public officials and to educate public
authorities, public officials and members of the public about corruption and
its detrimental effects on public administration and on the community.
The establishment of the NSW ICAC came in response to a series of
corruption scandals in the state. In his second reading speech on the NSW ICAC
legislation, the then premier, Mr Greiner, made the following comments:
In recent years, in New South Wales we have seen: a Minister
of the Crown gaoled for bribery; an inquiry into a second, and indeed a third,
former Minister for alleged corruption; the former Chief Stipendiary Magistrate
gaoled for perverting the course of justice; a former Commissioner of Police in
the courts on a criminal charge; the former Deputy Commissioner of Police
charged with bribery; a series of investigations and court cases involving
judicial figures including a High Court Judge; and a disturbing number of
dismissals, retirements and convictions of senior police officers for offences
involving corrupt conduct.
Nothing is more destructive of democracy than a situation
where the people lack confidence in those administrators and institutions that
stand in a position of public trust. If a liberal and democratic society is to
flourish we need to ensure that the credibility of public institutions is
restored and safeguarded, and that community confidence in the integrity of
public administration is preserved and justified.
Significant amendments to the ICAC Act (NSW) have been made since 1988,
including the following changes:
Significant amendments made in December 1990 overcame problems
identified in the course of litigation against the ICAC. These included changes
to clarify the aims of ICAC investigations and the ICAC's powers to make
findings in its reports.
In 1994 the definition of corrupt conduct was modified to extend
its application to the conduct of members of Parliament. A new Part was also
inserted into the Act to constitute two committees of Parliament to prepare draft
codes of conduct and provide advice and education on ethical standards applying
to members of both Houses of Parliament.
A number of amendments were made in 1996 concerning the ICAC's
powers. In particular, its powers to provide protection for witnesses were
The Police Integrity Commission, established in 1997, assumed
responsibility for investigating allegations of police corruption.
In response to the High Court's decision in ICAC v Cunneen
 HCA 14, which threw into doubt earlier ICAC corrupt conduct findings,
the NSW Government introduced the Independent Commission Against Corruption
Amendment (Validation) Act 2015.
The NSW Government also adopted the recommendations of an
Independent Panel and introduced the Independent Commission Against
Corruption Amendment Act 2015, which effected a number of significant
changes to the ICAC Act, primarily affecting the Commission's jurisdiction.
Further significant amendments to the ICAC Act (NSW) were made by the Independent
Commission Against Corruption Amendment Act 2016 (NSW), which changed the
'structure, management and procedures' of the NSW ICAC, including the addition
of two more commissioners.
Commissioner—appointment and tenure
The ICAC Act (NSW) currently makes provision for the appointment, by the
governor, of a chief commissioner and two other commissioners. The chief
commissioner must be consulted on proposed appointments of the other
The chief commissioner is a full-time office, while the two remaining
commissioners are part-time offices.
A commissioner may hold office for a term not exceeding five years, but is
eligible for reappointment.
Commissioners must have either served as, or be qualified to be
appointed as, a judge of the Supreme Court of New South Wales or of another
state or territory, a judge of the Federal Court, or a justice of the High
The Joint Parliamentary Committee on the Independent Commission Against
Corruption (JPC ICAC) is afforded a right of veto over the appointment of
The office of a commissioner becomes vacant if the holder:
- dies, or
- completes a term of office and is not re-appointed,
office for longer than the relevant period mentioned in clause 5, or
the office by instrument in writing addressed to the Governor, or
the holder of a judicial office of the State or elsewhere in Australia, or
nominated for election as a member of the Legislative Council or the
Legislative Assembly or as a member of a House of Parliament of another State
or of the Commonwealth, or
bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors or makes an assignment
of his or her remuneration for their benefit, or
- becomes a mentally incapacitated person, or
convicted in New South Wales of an offence that is punishable by imprisonment
for 12 months or more or is convicted elsewhere than in New South Wales of an
offence that, if committed in New South Wales, would be an offence so
A commissioner may only be actively removed from office by the governor
on the address of both houses of parliament.
As noted above, the current configuration of commissioners dates from
2016 and was implemented by the Independent Commission Against Corruption
Amendment Act 2016 (NSW). Previously, the NSW ICAC had operated with only
one commissioner. The move to a three-commissioner structure was one of a
series of recommendations made by the Committee on the Independent Commission
Against Corruption in its October 2016 report: Review of the Independent
Commission Against Corruption: Consideration of the Inspector’s Reports.
The committee made the following comments in relation to this recommendation:
Currently, the ICAC is established in a single person – the
Commissioner – and he or she is solely responsible for making the many
significant decisions necessary to fulfil the ICAC’s functions. These decisions
can have serious consequences for the individuals affected and the Committee
has decided that more weight should be placed on the most significant ones.
For this reason, the Committee has recommended the
re-structure of the ICAC, to replace the single Commissioner with a panel of
three Commissioners, the ‘three member Commission’. Under this proposal, the
most significant decisions – those to proceed to a compulsory examination or
public inquiry – could no longer be made by a single Commissioner. Instead, a
decision to proceed to a compulsory examination or public inquiry would need
majority approval of the three member Commission.
This alteration to the structure of the commission was the subject of
considerable controversy in New South Wales. In particular, the fact that the
amending legislation had the effect of ending the tenure of the then
commissioner, the Hon. Megan Latham, was heavily criticised.
Beyond the issue of the new three-commissioner structure, Mr Chris
Merritt, Legal Affairs Editor for The Australian, suggested that the
eligibility requirements for the appointment of commissioners threatened the
separation of powers by allowing the movement of judicial officers to and from
the NSW ICAC:
In New South Wales, the boundary between the executive and
judicial branches is already breaking down in one other way as a result of
ICAC. Officially, judges cannot be ICAC commissioners, but I draw to your
attention the existence of special legislation in New South Wales that allows
former ICAC commissioners to return to the bench at the expiry of their term.
This means the separation between the judiciary and ICAC is illusory. This can
be seen by the career path of former ICAC commissioner, Megan Latham, who was a
judge before her appointment. After she resigned as ICAC commissioner, she used
this special law to return to the Supreme Court bench without any involvement
by the government.
Functions of the commission
The ICAC Act (NSW) defines the principal functions of the NSW ICAC as
investigate any allegation or complaint that, or any circumstances which in the
Commission’s opinion imply that:
- corrupt conduct, or
liable to allow, encourage or cause the occurrence of corrupt conduct, or
connected with corrupt conduct, may have occurred, may be occurring or may be
about to occur,
investigate any matter referred to the Commission by both Houses of Parliament,
communicate to appropriate authorities the results of its investigations,
examine the laws governing, and the practices and procedures of, public
authorities and public officials, in order to facilitate the discovery of
corrupt conduct and to secure the revision of methods of work or procedures
which, in the opinion of the Commission, may be conducive to corrupt conduct,
instruct, advise and assist any public authority, public official or other
person (on the request of the authority, official or person) on ways in which
corrupt conduct may be eliminated and the integrity and good repute of public
advise public authorities or public officials of changes in practices or
procedures compatible with the effective exercise of their functions that the
Commission thinks necessary to reduce the likelihood of the occurrence of
corrupt conduct and to promote the integrity and good repute of public
co-operate with public authorities and public officials in reviewing laws,
practices and procedures with a view to reducing the likelihood of the
occurrence of corrupt conduct and to promoting the integrity and good repute of
educate and advise public authorities, public officials and the community on
strategies to combat corrupt conduct and to promote the integrity and good
repute of public administration,
educate and disseminate information to the public on the detrimental effects of
corrupt conduct and on the importance of maintaining the integrity and good
repute of public administration,
enlist and foster public support in combating corrupt conduct and in promoting
the integrity and good repute of public administration,
develop, arrange, supervise, participate in or conduct such educational or
advisory programs as may be described in a reference made to the Commission by
both Houses of Parliament.
The NSW ICAC summarises these functions into three broad groups:
investigating and exposing corrupt conduct in the NSW public
preventing corruption through advice and assistance
educating the NSW community and public sector about corruption
and its effects.
In exercising these functions, the NSW ICAC is directed to 'regard the
protection of the public interest and the prevention of breaches of public
trust as its paramount concerns', and:
...as far as practicable, to direct its attention to serious corrupt
conduct and systemic corrupt conduct and is to take into account the
responsibility and role other public authorities and public officials have in
the prevention of corrupt conduct.
The NSW ICAC does not investigate complaints concerning the conduct of
New South Wales police officers or the New South Wales Crime Commission. This
function has resided with the Police Integrity Commission from its creation in
The Police Integrity Commission was replaced in 2017 by the Law Enforcement
Conduct Commission, which also took on the functions of the former Police
Compliance Branch of the New South Wales Ombudsman.
The committee heard from several witnesses that the educative function
of the NSW ICAC is a crucial element of its work, despite it receiving very
little public attention in comparison with its investigative function.
Professor John McMillan, Acting New South Wales Ombudsman expressed his support
for ICAC's educative functions:
While so much of the public focus is on the few hearings that
ICAC does each year into corruption, much of the effective work that it
undertakes is in dealing with the mandatory reporting and assessing. It also
publishes quite a lot of very useful guidance material. ICAC does a lot of
roadshows around local government and government agencies in New South Wales.
So, I think, with proper resourcing and proper skills within the agency, you
could ensure that there is an adequate focus on all of the responsibilities.
This sentiment was also echoed by Professor Anne Twomey, who stated:
I think that one of the most effective roles of ICAC has been
ensuring that particularly public service agencies have procedures and
practices in place to prevent corruption from happening to begin with. That is
probably the most important thing that any kind of integrity commission or
corruption commission can do. It is not just the flashy public hearing stuff on
the front page of that newspaper; it is all that back-end work about making
sure that your accounting processes and your accountability processes within
government are adequate. That is an incredibly important aspect of it.
Professor Twomey also argued that the combination of functions within
NSW ICAC contributed to its effectiveness overall:
The thing about ICAC is that it has two arms. A lot of its
very valuable work is not known, just like the [Australian Federal Police (AFP)]'s
work, in dealing with those structural aspects and making sure that corruption
does not flourish, simply because you have good ways of accounting for things and
good transparency within government and all the rest of it. That is critically
important work, and to some extent it does not matter what body does it, but it
needs to be work that people within the public sector will respect and possibly
fear. One of the good things about ICAC is that if it sends recommendations to
your organisation or comes to look at the way you are doing things in order to
deal with it, people are sufficiently terrified of it that they will comply
immediately. It is not going to be ignored as some extra bureaucratic order.
The two sides of ICAC help it to function, because the fact that it has a
strong public reputation and has developed levels of fear makes it more
effective on its other side as well. The two work quite well together, in a
Definition of corruption and
The ICAC Act (NSW) defines corrupt conduct as follows:
(1) Corrupt conduct is:
conduct of any person (whether or not a public official) that adversely
affects, or that could adversely affect, either directly or indirectly, the
honest or impartial exercise of official functions by any public official, any
group or body of public officials or any public authority, or
conduct of a public official that constitutes or involves the dishonest or
partial exercise of any of his or her official functions, or
conduct of a public official or former public official that constitutes or
involves a breach of public trust, or
conduct of a public official or former public official that involves the misuse
of information or material that he or she has acquired in the course of his or
her official functions, whether or not for his or her benefit or for the
benefit of any other person.
conduct is also any conduct of any person (whether or not a public official)
that adversely affects, or that could adversely affect, either directly or
indirectly, the exercise of official functions by any public official, any
group or body of public officials or any public authority and which could involve
any of the following matters:
misconduct (including breach of trust, fraud in office, nonfeasance,
misfeasance, malfeasance, oppression, extortion or imposition),
(d) obtaining or offering
(g) perverting the course
(i) election bribery,
(j) election funding
(k) election fraud,
(m) tax evasion,
(n) revenue evasion,
(o) currency violations,
(p) illegal drug dealings,
(q) illegal gambling,
(r) obtaining financial
benefit by vice engaged in by others,
(s) bankruptcy and company
(t) harbouring criminals,
(v) treason or other
offences against the Sovereign,
(w) homicide or violence,
(x) matters of the same or
a similar nature to any listed above,
(y) any conspiracy or
attempt in relation to any of the above.
conduct is also any conduct of any person (whether or not a public official)
that impairs, or that could impair, public confidence in public administration
and which could involve any of the following matters:
(a) collusive tendering,
in relation to applications for licences, permits or other authorities under
legislation designed to protect health and safety or the environment or
designed to facilitate the management and commercial exploitation of resources,
obtaining or assisting in obtaining, or dishonestly benefiting from, the
payment or application of public funds for private advantage or the disposition
of public assets for private advantage,
(d) defrauding the public
obtaining or retaining employment or appointment as a public official.
This extensive definition is limited by a subsequent section, which
states that conduct that would fall within the above definition only amounts to
corrupt conduct if it could constitute or involve:
- a criminal offence, or
- a disciplinary offence, or
grounds for dismissing, dispensing with the services of or otherwise
terminating the services of a public official, or
the case of conduct of a Minister of the Crown or a member of a House of
Parliament—a substantial breach of an applicable code of conduct.
Subsection 2A quoted above, was inserted by the Independent
Commission Against Corruption Amendment Act 2015 (NSW), in the wake of the
High Court's decision in ICAC v Cunneen.
This decision 'excluded certain conduct of private persons from the definition
of "corrupt conduct" under that Act that had previously been assumed
to be within ICAC's jurisdiction'.
The intention of the amendment was to expressly include the conduct that was
excluded by the High Court's decision.
Professor Gabrielle Appleby and Dr Grant Hoole outlined the argument in ICAC
v Cunneen as follows:
The majority of the Court accepted that Ms Cunneen’s alleged
conduct did not fall within the statutory definition of ‘corrupt conduct’
because, first, it allegedly involved Ms Cunneen in her personal capacity (not
in her capacity as a Crown prosecutor); and second, while it might have
affected or hindered the police officer from conducting the investigation, it
did not involve dishonest or improper conduct on the part of the police
Justice Gageler, in dissent in the case, noted that the
majority’s interpretation of s 8 to exclude such conduct consequently
obstructed the Commission’s power to investigate conduct that might amount to
defrauding a public official, state-wide endemic collusion among tenderers for
government contracts, and serious and systemic fraud in making applications for
licences, permits, or clearances issued under New South Wales statutes. The
type of conduct that Gageler J identified clearly has the capacity to undermine
public confidence in government decision-making, even if it involves no
improper conduct on the part of government officials. This conduct also has the
capacity to affect the integrity of government processes, threatening equality
of access to government services and contracts, and undermining accountability
for how taxpayers’ money is spent and public assets are utilised.
Professor Appleby and Dr Hoole also expressed concern that the lack of a
definition for the concepts of 'serious' or 'systemic' corrupt conduct leads to
the risk of the NSW ICAC stepping outside its jurisdiction:
Failure to define these terms defers significant interpretive
latitude to the officials responsible for implementing these commissions. It
escalates the risk that the incremental evolution of jurisdiction, as concepts
like ‘serious’ and ‘systemic’ are interpreted in new contexts, could lead to
missteps that compromise the underlying purpose of a commission. This could
include, for example, the commission reaching into spheres better reserved for
other institutions, provoking conflict or incoherence and weakening confidence
in the system as a whole.
The Australia Institute spoke in favour of the definition of corrupt
conduct in the ICAC Act (NSW), commenting in its submission that this
definition demonstrates that 'a broad definition of corrupt conduct in the
jurisdiction of a federal ICAC is critical to ensuring success in investigating
and exposing systemic corruption'.
It was also stated that:
Official misconduct is a critical term in the NSW ICAC Act
that allows the NSW ICAC to pursue many cases at a parliamentary and
ministerial level that may otherwise not be investigated. Many cases of public
interest have been investigated under this term, which covers cases of breach
of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression,
extortion or imposition.
TIA also supported the NSW definition of corrupt conduct:
The NSW ICAC model defines corrupt conduct in a comprehensive
manner. Although it has been criticised for its complexity, including by the
High Court in the Cunneen case, it has recently been scrutinised, affirmed and
extended as a result of the Gleeson/McClintock Review. The Queensland approach
is largely based on the NSW legislation, but was narrowed in 2014, and is now
the subject of a sensible proposed broadening under a 2017 Bill. In the same
way, the Victorian approach has been amended to overcome some of the limitations
of too narrow a wording, and limitations considered by the High Court in the
The NSW ICAC provided the following summary of its investigatory powers,
along with references to the legislative basis in the ICAC Act (NSW):
obtain information from a public authority or public official (s.
obtain documents (s. 22)
enter public premises to inspect and take copies of documents
conduct compulsory examinations (s. 30)
conduct a public inquiry (s. 31)
summons a witness to attend and give evidence and/or produce
documents or other things at a compulsory examination or public inquiry (s. 35)
arrest a witness who rails to attend in answer to a summons (or
is unlikely to comply with the summons) (s. 36)
issue or apply for the issue of a search warrant (s. 40)
prepare reports on its investigations (s. 74).
The NSW ICAC is also able to undertake covert activities, including the
apply for telecommunications interception warrants under the Telecommunications
(Interception and Access) Act 1979
obtain approval under Law Enforcement (Controlled Operations)
Act 1997 for the conduct of operations that would otherwise be unlawful
obtain authorisation to use false identities under the Law
Enforcement and National Security (Assumed Identities) Act 2010
apply for warrants to use listening devices, tracking devices,
optical surveillance devices and/or data surveillance devices under the Surveillance
Devices Act 2007.
The ability of the NSW ICAC to hold public inquiries as well as its
ability to make findings of corrupt conduct attracted considerable comment,
both supportive and critical. With respect to the first issue, following the
passage of the Independent Commission Against Corruption Amendment Act 2016
(NSW), it is now a requirement that both the chief commissioner and at least
one other commissioner authorise a decision to conduct a public inquiry.
For a public inquiry to go ahead, it remains a requirement that the commission be
satisfied it is in the public interest. In making this determination, the
commission may consider:
benefit of exposing to the public, and making it aware, of corrupt conduct,
- the seriousness of the allegation or complaint being
risk of undue prejudice to a person’s reputation (including prejudice that
might arise from not holding an inquiry),
the public interest in exposing the matter is outweighed by the public interest
in preserving the privacy of the persons concerned.
The Australia Institute referred to its Queensland watchdog asleep at
the gate report, which found that the 'regular conduct of public hearings'
in NSW 'greatly contributed to its success in investigating and exposing
corruption, in contrast to Qld CCC which has not held a public hearing since
The Australia Institute also quoted from former officers of the NSW
Former assistant NSW ICAC Commissioner Anthony Whealy QC has
said “there are many people out there in the public arena who will have
information that's very important to the investigation. If you conduct the
investigation behind closed doors, they never hear of it and the valuable
information they have will be lost."
Former NSW ICAC Commissioner David Ipp QC has said that “Its
main function is exposing corruption; this cannot be done without public
Mr Geoffrey Watson QC, who has assisted with ICAC investigations, argued
'[y]ou should not stop fighting corruption because there might be one or two
rogue members of the press who distort what was going on inside'.
Indeed, Mr Watson noted that 'there was a very broad discretion handed to the
commissioner in a judgement as to whether or not it was in the public interest
to conduct the inquiry in public'.
However, the Hon. Dr Peter Phelps MLC did not favour the NSW ICAC's use
of public hearings, arguing it 'is nothing more than a legalised defamation of
Dr Phelps identified other shortcomings associated with ICAC's hearing powers:
...you have no cross-examination, you have noble cause
corruption and you have the get-out-of-jail-free card of section 38 of the act.
All of these major structural problems would still exist even if you did not
have a bunch of horrible people who are headhunters and go after people
In contrast, the New South Wales Council for Civil Liberties—who
submitted that 'the use of public hearings by ICAC has overwhelmingly benefited
the public good'—noted
in its submission that:
It is significant that notwithstanding considerable
controversy, both independent and expert reviews [of the NSW ICAC] in 2005 and
2015 and the Parliamentary Committee Review in 2016 reaffirmed the importance
of retaining public hearings for the effectiveness and standing of ICAC.
Further, Ms Kate McClymont, an investigative journalist for
Fairfax Media, stated:
...with the ICAC inquiries, the hearings are held in private
first. It does not get to a public hearing unless there has been a private
hearing and the information has been gathered. That acts as a deterrent for inquiries
that might have looked fruitful at the beginning, but then, when there has been
a hearing in private, it has not proceeded. When it does proceed and you are in
the witness box, you are given the option to say that any of your evidence
cannot be used against you in any court of law except if you are caught lying
to ICAC. You already have the protection in there that your evidence cannot be
used against you for lying.
The rationale for the protections covering the subsequent use of
incriminating evidence referred to by Ms McClymont above, are explained by the
NSW ICAC as follows:
The Commission is not bound by the rules or practice of
evidence. A person attending a compulsory examination or public inquiry is not
entitled to refuse to answer questions or produce documents relevant to the
investigation on the grounds that the answer or production might incriminate
the witness...If a witness objects to giving the answer or producing the
document, they must still give the answer or produce the document but the
answer or document will not then be admissible against them in any civil,
criminal or disciplinary proceedings...The purpose of these provisions is to
enable the Commission to get to the truth of what happened. The trade-off is
that admission of wrongdoing and other evidence will not be admissible against
the witness in subsequent criminal proceedings.
At the conclusion of an investigation, the NSW ICAC is able to make
factual findings, just as other state integrity agencies are able to do.
However, it is also able to make a finding that a person has engaged in corrupt
conduct. This power was modified following the 2015 High Court decision ICAC
v Cunneen to 'limit ICAC's power to make findings of "corrupt
conduct" against an individual to cases where the corrupt conduct is
Dr Hoole and Professor Appleby stated that this amendment means that 'the
ICAC’s investigative powers embraced suspicions of corruption generally, but
could only escalate to the formal reporting of adverse findings when the
corruption was found to be "serious"’.
Professor McMillan expressed to the committee that he 'did not see any problem'
with these changes.
Mr John Nicholson SC, the Acting Inspector of the Independent Commission
Against Corruption, expressed strong concern about the effect of such findings
on the people affected and about the threat such findings pose to the
presumption of innocence:
There is no doubt the public perception of a finding of a
person engaged in corrupt conduct amounts to a label, a label as potent as any
criminal label short of murderer. Staff at the office of the inspector have
seen many cases come to us where a person has been labelled as engaging in
corrupt conduct, which, in the mind of the public, in circumstances where the
DPP has been unwilling to convert that finding into a criminal charge, is
nonetheless labelled by others as a 'corrupt person'. The problem with the
present approach as reflected in legislation is that it undermines or, to put
that colloquially, trashes the presumption of innocence, which is supposed to
apply to all people who remain unconvicted of an offence.
So it is worth asking: how does this impact upon the
presumption of innocence differ from other rights legally set aside by
legislation to enhance and facilitate investigation? Those other rights which
are put aside have been legally set aside only for the duration of the
investigation. If those court proceedings occur, those rights are reactivated
and restored. But the presumption of innocence, if trashed, is trashed for
The NSW ICAC explained that it views the ability to make such findings
as important for its deterrence and education functions as well as its
Given that the Commission must conduct its investigations
with a view to determining whether corrupt conduct has occurred, is occurring
or is about to occur, it is appropriate that, at the conclusion of an
investigation, the Commission state whether or not such conduct has actually
occurred. A finding of corrupt conduct provides a succinct statement of the
improper conduct engaged in by the affected person. There will be cases where
it is clear that a person has acted corruptly, even though there may be
insufficient admissible evidence to warrant a criminal prosecution or the
taking of other action. If a person is charged with a criminal offence and
acquitted, any finding of corrupt conduct stands. In such cases a finding of
corrupt conduct may be the only adverse consequence the person incurs.
The ability to make findings of corrupt conduct is also
relevant to the Commission's deterrence and education roles.
The ICAC Act (NSW) requires the appointment a joint committee of members
of parliament, to be known as the Committee on the Independent Commission
Against Corruption, as well as the appointment of an Inspector of the
Independent Commission Against Corruption.
The parliamentary committee comprises 11 members, with three from the Legislative
Council and eight from the Legislative Assembly. The committee is to elect a
chair and deputy chair from its members. There are no legislative restrictions
on which party should hold the positions of chair and deputy chair. However,
the current chair and deputy chair are members of the Liberal and National
The functions of the committee are:
monitor and to review the exercise by the Commission and the Inspector of the
Commission’s and Inspector’s functions,
report to both Houses of Parliament, with such comments as it thinks fit, on
any matter appertaining to the Commission or the Inspector or connected with
the exercise of its functions to which, in the opinion of the Joint Committee,
the attention of Parliament should be directed,
examine each annual and other report of the Commission and of the Inspector and
report to both Houses of Parliament on any matter appearing in, or arising out
of, any such report,
examine trends and changes in corrupt conduct, and practices and methods
relating to corrupt conduct, and report to both Houses of Parliament any change
which the Joint Committee thinks desirable to the functions, structures and procedures
of the Commission and the Inspector,
inquire into any question in connection with its functions which is referred to
it by both Houses of Parliament, and report to both Houses on that question.
In addition to these functions, the committee holds a right of veto over
the appointment of commissioners.
The committee is not, however, authorised to take the following actions:
- to investigate a matter relating to particular
reconsider a decision to investigate, not to investigate or to discontinue
investigation of a particular complaint, or
reconsider the findings, recommendations, determinations or other decisions of
the Commission in relation to a particular investigation or complaint.
The Inspector of the Independent Commission Against Corruption is
appointed by the governor, but appointments are subject to veto by the joint
committee. The inspector may be reappointed, but cannot hold office for longer
than five years in total.
The inspector's office becomes vacant in similar circumstances to those that
apply to NSW ICAC commissioners, and an inspector may only be removed from
office by the governor on the address of both houses of parliament.
The role of the inspector is to hold the ICAC accountable for the manner
in which it carries out its functions. It carries out this role by:
undertaking audits of the ICAC’s operations to ensure compliance
with the law;
dealing with complaints about the conduct of the ICAC and current
and former officers; and
assessing the effectiveness and appropriateness of the ICAC's
The inspector is granted the following powers by the ICAC Act (NSW):
investigate any aspect of the Commission’s operations or any conduct of
officers of the Commission, and
entitled to full access to the records of the Commission and to take or have
copies made of any of them, and
require officers of the Commission to supply information or produce documents
or other things about any matter, or any class or kind of matters, relating to
the Commission’s operations or any conduct of officers of the Commission, and
require officers of the Commission to attend before the Inspector to answer
questions or produce documents or other things relating to the Commission’s
operations or any conduct of officers of the Commission, and
investigate and assess complaints about the Commission or officers of the
refer matters relating to the Commission or officers of the Commission to other
public authorities or public officials for consideration or action, and
recommend disciplinary action or criminal prosecution against officers of the
In addition, the inspector is empowered to make and hold inquiries and
for these purposes 'has the powers, authorities, protections and immunities
conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions
The inspector is able to exercise these powers on his or her own initiative, at
the request of the minister, in response to a complaint, or in response to a
reference from the joint committee or any public authority or official.
The Acting Inspector, Mr John Nicholson SC, made the following comments
about the role of his office and its sometimes tense relationship with the NSW
Significantly and in my submission regrettably, the Office of
the Inspector to the ICAC was not included in the initial 1988 bill. The office
of inspector was legislated some 17 years later in 2005. Let me make clear: all
previous holders, at least as best as I can ascertain, of the statutory
position of the Inspector to the ICAC have sought by their actions to enhance
the functioning of the ICAC—that is, we are not the enemy of the ICAC; we
simply seek to enhance its functioning, although in more recent times the level
of critical observation by the inspector has been sharper than in previous
Consequently, there has been a view about in more recent
times that there is a tension between the ICAC and the office of the inspector.
Both offices of course link specific functions to the person of the
commissioner or the inspector, as the case may be. By and large, however, the
relationships between the commissioner and the inspector are fulfilled in a
highly professional spirit. However, the legislative parameters of the office
of inspector, geared as they are to dealing with complaints made in respect of
alleged ICAC's abuse of power, maladministration, delay, unreasonable invasions
of privacy, impropriety and the like are bound to have the unintended
consequence of some tension between an inspector scrutinising the work of the
ICAC in response to complaints, particularly where the inspector finds merit in
them, and in ICAC using its extraordinary powers focused in enthusiastic
pursuit upon the unscrupulous few public officers engaged in undermining public
confidence in public administration.
Queensland—Crime and Corruption Commission
Since the completion of the Commission of Inquiry into Possible Illegal
Activities and Associated Police Misconduct—the Fitzgerald Inquiry—in 1989,
Queensland has possessed a body focused on investigating public sector
corruption. The Criminal Justice Commission (CJC) was established in 1989, on
the recommendation of the Fitzgerald Inquiry, and combined the functions of
investigating police and public sector misconduct and cooperating with police
to investigate organised and major crime.
The CJC's crime function was removed and vested with the Queensland
Crime Commission in 1997. In 2001, however, these two functions were recombined
within a new body, the Crime and Misconduct Commission, by the passage of the Crime
and Misconduct Act 2001 (Qld). The Crime and Misconduct Commission was
again reformed in 2014 via the Crime and Misconduct and Other Legislation
Amendment Act 2014 (Qld) and became the current Crime and Corruption
Commission (Qld CCC).
The Queensland framework also includes the Queensland Integrity
Commissioner, established pursuant to the Integrity Act 2009 (Qld) in
2009, but who operated 'administratively and through previous legislation since
The commissioner 'has two distinct roles, providing advice to designated
persons and maintaining the Queensland Register of Lobbyists'. 
This advice extends to 'any ethics or integrity issue, including a conflict of
interest issue', but not to legal advice.
The commissioner, Mr Richard Bingham, informed the committee that where
a designated person acts in accordance with the advice he has given, the act
provides for 'a limited protection from civil liability and administrative
Mr Bingham stated that he was 'not aware of any circumstances in which
that has actually occurred', but was 'aware of circumstances in which people
use the advice to assist in the public dimensions of a debate about actions
that they are involved in'.
Commissioner—appointment and tenure
The Crime and Corruption Act 2001 (Qld) (CC Act (Qld)),
establishes a five-member commission to head the Qld CCC, including a full-time
commissioner, who is the chairperson, and four part-time commissioners, one of
whom is also the deputy chairperson. The CC Act (Qld) also establishes the
position of chief executive officer.
The chairperson and deputy chairperson of the commission are required to have
served as, or be eligible for appointment as, a judge of the Supreme Court of
Queensland or any other state, the High Court of Australia or the Federal Court
Eligibility for appointment to the remaining commissioner and chief executive
officer positions is limited only by a requirement that a person has
appropriate 'qualifications, experience or standing'.
Commissioners and the chief executive officer may only be recommended
for appointment by the minister if:
Minister has consulted with—
- the parliamentary committee; and
- except for an appointment as
chairperson—the chairperson; and
- the nomination is made with the bipartisan
support of the parliamentary committee.
Commissioners and the chief executive officer are appointed for terms
not exceeding five years. The chief commissioner and chief executive officer
may be reappointed but cannot serve for longer than 10 years in total.
The provisions governing the termination of a commissioner or chief
executive differ from those of other state integrity commissions in that the
parliament is not required to approve of the decision.
The governor in council may terminate a commissioner or chief executive in
cases of incapacity and absence without reasonable excuse, and in cases where
these officers engage in paid outside employment without the minister's
approval. The governor may also terminate an appointment in cases where a
recommendation to that effect is made by the Parliamentary Crime and Corruption
Committee, with bipartisan support, and this recommendation is subsequently
endorsed by a resolution of the Legislative Assembly.
Functions of the commission
The CC Act (Qld) divides the Qld CCC's functions into four areas:
prevention; crime; corruption; and research, intelligence and other functions.
The Qld CCC's prevention function was removed in 2014 but restored in 2016.
As the legislation is currently framed, the Qld CCC can fulfil this function in
the following ways:
the intelligence it gathers in support of its investigations into major crime
and corruption; and
the results of its investigations and the information it gathers in performing
its functions; and
systems used within units of public administration to prevent corruption; and
information it gathers from any source in support of its prevention function;
information to, consulting with, and making recommendations to, units of public
information relevant to its prevention function to the general community; and
that in performing all of its functions it has regard to its prevention
increasing the capacity of units of public administration to prevent corruption
by providing advice and training to the units and, if asked, to other entities;
- reporting on ways to prevent major crime and
The Qld CCC's crime function is restricted to matters referred to it by
the Crime Reference Committee, which is also established under the CC Act
(Qld). This committee consists of designated officers of the Qld CCC as well as
the commissioner of police, the principal commissioner under the Family and
Child Commission Act 2014, the CEO of the Australian Criminal Intelligence
Commission (ACIC), and two community representatives appointed by the governor
During its investigations of major crime, the Qld CCC may gather evidence to
support prosecutions, recovery of proceeds of major crimes and the recovery of
other property or unexplained wealth. It may also share and receive information
with other law enforcement agencies.
With respect to its corruption function, the CC Act (Qld) includes a
statement of the parliament's intention as to how the Qld CCC should operate
with respect to other areas of public administration. This statement includes
such matters as cooperation, capacity building, devolution and the public
The Qld CCC is to perform its corruption function by:
assessing complaints about, or information or matters (also complaints)
involving, corruption made or notified to it;
complaints about corruption within a unit of public administration to a
relevant public official to be dealt with by the public official;
its monitoring role for police misconduct as provided for under section 47(1);
its monitoring role for corrupt conduct as provided for under section 48(1);
with complaints about corrupt conduct, by itself or in cooperation with a unit
of public administration;
and otherwise dealing with, on its own initiative, the incidence, or particular
cases, of corruption throughout the State;
responsibility for, and completing, an investigation, by itself or in
cooperation with a unit of public administration, if the commission considers
that action to be appropriate having regard to the principles set out in
conducting or monitoring investigations, gathering evidence for or ensuring
evidence is gathered for—
- the prosecution of
persons for offences; or
proceedings against persons;
the appropriateness of systems and procedures adopted by a unit of public
administration for dealing with complaints about corruption;
advice and recommendations to a unit of public administration about dealing
with complaints about corruption in an appropriate way.
The remaining functions assigned to the Qld CCC include undertaking
research to support its functions, including research into police operations
and powers; undertaking intelligence activities where this is authorised by the
Crime Reference Committee; witness protection activities; and civil
The desirability of combining serious and organised crime functions with
corruption functions, as is currently the case with the Qld CCC, was a subject
of contention in evidence before the committee. Professor A.J. Brown suggested
that ideally these functions should be separated into distinct bodies:
...in Queensland experience of the crime commission having been
separated out and put back in, the institution itself has found ways to manage
that combination of roles. [It] is still fairly high risk. The reason for
putting it in there was that the Fitzgerald inquiry pointed to the links
between corruption and organised crime and therefore that the investigation of
them could travel together. I am sure that is still the case to some degree and
provides some advantage, but I think the potential conflict of interest of the
commission in its anticorruption function having to oversee itself in relation
to its serious and organised crime investigative functions is a very big risk.
Professor Brown also suggested that the combination of these two
functions made it possible for the government to effectively erode the
anti-corruption function by prioritising the crime function 'in terms of
political mandate, legislative authority, legislative obligations, resources'.
The Chief Executive Officer of the Qld CCC, Mr Forbes Smith, stated that
he believed the manner in which the two functions had been combined within one
agency had been legislatively 'a bit clumsy', but that the organisation was well
advanced in addressing threats posed by the development of silos and cultural
Definition of corruption and
The Qld CCC investigates reports of corrupt conduct involving Queensland
public sector agencies, with a focus on more serious or systemic corrupt
The CC Act (Qld) contains the following definition of 'corrupt conduct':
- Corrupt conduct means conduct of a
person, regardless of whether the person holds or held an appointment, that—
affects, or could adversely affect, directly or indirectly, the performance of
functions or the exercise of powers of—
unit of public administration; or
person holding an appointment; and
or could result, directly or indirectly, in the performance of functions or the
exercise of powers mentioned in paragraph (a) in a way that—
not honest or is not impartial; or
a breach of the trust placed in a person holding an appointment, either
knowingly or recklessly; or
a misuse of information or material acquired in or in connection with the
performance of functions or the exercise of powers of a person holding an
engaged in for the purpose of providing a benefit to the person or another person
or causing a detriment to another person; and
- would, if proved, be—
criminal offence; or
disciplinary breach providing reasonable grounds for terminating the person’s
services, if the person is or were the holder of an appointment.
The Queensland Police Service is subject to the above provisions
regarding corrupt conduct as well as additional provisions dealing specifically
with police misconduct. The CC Act (Qld) defines 'police misconduct' as:
...conduct, other than corrupt conduct, of a police
- is disgraceful,
improper or unbecoming a police officer; or
- shows unfitness to be
or continue as a police officer; or
not meet the standard of conduct the community reasonably expects of a police
Complaints about behaviour that falls into the category of misconduct
are generally dealt with by the commissioner of police; however, the Qld CCC
plays a monitoring role with respect to police misconduct investigations and
has the power to assume responsibility for and complete an investigation.
The CC Act (Qld) also includes a list of activities that could
constitute corrupt conduct; however, this list is not exhaustive and does not
limit the above definition.
The CC Act (Qld) explicitly states that 'corrupt conduct' is not limited to
conduct by people who currently hold or have held positions in public
The Qld CCC stated in its submission that this definition of 'corrupt
conduct' is quite complex. It summarised the definition in the following way:
It is conduct by any person that could result in a lack of
probity in, and could adversely affect, the performance of functions or
exercise of powers by the public sector. The conduct must also be of a kind
which, if established, would amount to either a criminal offence or, if the
person worked (or had worked) in the public sector, a disciplinary breach
providing reasonable grounds for dismissal.
The definition also captures the conduct of private
individuals who seek to corrupt public officers (current or future). However,
the definition does not capture criminal conduct by private entities which
seriously and adversely affect the public sector but not in ways that would
compromise the integrity of public officials.
In the opinion of the Qld CCC, this definition could be improved by:
...including in certain categories of public administration,
conduct of a person (whether or not a public official) that could impair public
confidence in that administration. Similarly, the CCC considers that the
principles for performing anti-corruption functions should include the
investigation of matters connected with perceived corruption and any matter
referred to the anti-corruption agency by parliament.
The Qld CCC suggested that these alterations would capture certain
conduct that, at present, is excluded from its remit—for example, 'collusive
tendering; fraud in or in relation to applications for licences, permits,
approvals or clearances under statutes designed to protect health and safety or
designed to facilitate the management and commercial exploitation of natural
resources; dishonestly obtaining or assisting or benefiting from the payment or
application of public funds or the disposition of public assets for private
advantage; defrauding the revenue; and fraudulently obtaining or retaining
employment as a public official.'
The Australia Institute criticised paragraph 15(1)(d) of the definition
of 'corrupt conduct' in the CC Act (Qld) on the grounds that the requirement
that the conduct, if proved, amount to a criminal offence or grounds for
termination of employment establishes too high a threshold for the commencement
of corruption investigations. In particular, the Australia Institute highlighted
that state and local elected officials only fall within the Qld CCC's
jurisdiction in cases where corrupt conduct would, if proven, amount to a
The Queensland government introduced the Crime and Corruption and
Other Legislation Amendment Bill 2017 on 23 March 2017. This bill includes
proposed changes to the definition of corrupt conduct in the CC Act (Qld). The
explanatory notes to the bill state that it will:
...(i) simplify the definition of ‘corrupt conduct’ to assist
UPAs [units of public administration] in their interpretation and
understanding; and (ii) widen the definition to include conduct of a person
that impairs or could impair public confidence in public administration,
consistent with the Commission’s overriding responsibility to promote public
confidence in the integrity of the public sector. The amendments to widen the
definition of ‘corrupt conduct’ are similar to recent changes in both New South
Wales (NSW) and Victoria.
More broadly, the Bill also expands the Commission’s investigative
jurisdiction with respect to corrupt conduct. This will provide the Commission
with greater scope to reduce the opportunities and incentives for corrupt
conduct in the Queensland public sector and allow it to more proactively
address corruption risks.
This bill appears to address, among other matters, the concerns of the
Qld CCC cited above that it is currently restricted in its ability to address
such matters as collusive tendering and fraud. The Australia Institute
criticised the provisions of the bill, arguing that the proposed alterations to
the definition of corrupt conduct 'weakens rather than strengthens, the CCC'.
The committee discussed with the Chief Executive Officer of the Qld CCC
the requirement that complaints be made by way of a statutory declaration,
which was in place from 2014 to 2016. Mr Smith provided the following
explanation of this now superseded measure:
The previous state government required that complainants put
a complaint in by way of a statutory declaration. That was designed to reduce
the number of complaints that we were receiving, effectively by making people
have to go to significantly greater effort to make their complaint. That
resulted in quite a marked fall in complaints to our office. The current
government rescinded that requirement, and I think it is probably no
coincidence that our complaints have started to increase again.
Mr Smith further explained his opposition to such measures designed to
make it more onerous to lodge complaints:
I am very strongly against that. I think it is important to
realise that we are a commission for, in our case, all Queensland, and not
everybody has the capacity or ability to make a statutory declaration. They
should be able to either write a letter or ring us. I think in all complaints
agencies the approach agency is that you should make making a complaint as easy
as possible. If that leads to frivolous complaints being made, we will just
deal with them in the course of business and through education of the public.
The Qld CCC possesses a range of special powers to enable it to fulfil
its corruption and crime functions. Due to the fact that the crime function was
separated from the Qld CCC for a period, the tests that apply to the use of
some powers differ between the crime and corruption functions.
In addition to dealing with complaints about corrupt conduct, either by
itself or in cooperation with other public sector bodies, the Qld CCC is able
to conduct corruption investigations on its own initiative.
However, before it may begin an investigation under its crime function, the Qld
CCC must first receive a reference from the Crime Reference Committee, the
establishment and composition of which is described above.
The Qld CCC summarises its investigative powers as follows:
The CCC’s investigative powers include search, surveillance
and seizure powers as well as the power to conduct coercive hearings that
compel people to attend and give evidence, and to produce documents and other material.
Where we conduct joint investigations with other agencies, we use these powers
as well as our expertise in intelligence, financial analysis, forensic
computing and covert investigative techniques.
The Qld CCC is also able to conduct controlled operations; however, it
must first obtain the approval of the Controlled Operations Committee, which is
established under section 232 of the Police Powers and Responsibilities Act
2000 (Qld). This committee consists of the commissioner of police, the
chairperson of the Qld CCC and an independent member, who must be a retired
supreme or district court judge. The chairperson of the Qld CCC is able to
grant applications made by officers to acquire and use assumed identities,
having regard to matters such as necessity and the risk of abuse.
As mentioned above, the Qld CCC is empowered to hold hearings. The CC
Act (Qld) states that '[g]enerally, a hearing is not open to the public'.
However, the legislation establishes a number of conditions under which the
commission may make a decision to open a hearing to the public. The commission
may open a crime investigation hearing to the public if it 'considers opening
the hearing will make the investigation to which the hearing relates more
effective and would not be unfair to a person or contrary to the public
In the case of a witness protection function hearing, the commission must
consider that a public hearing would not 'threaten the security of a protected
person or the integrity of the witness protection program or other witness
protection activities of the commission'. In all other cases, the commission
may open a hearing to the public if it 'considers closing the hearing to the
public would be unfair to a person or contrary to the public interest'.
The Chief Executive Officer of the Qld CCC, Mr Smith, made the following
comments in relation to the commission's approach to holding public hearings:
I think the commission's position is: we certainly, in the
appropriate circumstances, think that public hearings are very important. In
fact, we have recently had some in the area of local government, but they are
to be used carefully, not routinely, and in the right case. It is very hard to
apply a general rule about when you should have them. They are, perhaps, not
quite the exception to the rule but are certainly to be used fairly rarely, and
that is because of the act.
Mr Smith informed the committee that decisions taken by the five-member
commission to hold public hearings are generally unanimous. He stated that he
believed a majority decision would be effective but, in practice, 'the
commission is more comfortable in making important decisions like this when
they are all in agreement'.
The Parliamentary Crime and Corruption Commissioner, Ms Carmody, made
the following comments about the dangers of public hearings:
I am very strong on the view that private hearings should be
the preferred way to go, with public hearings only in certain specified
situations. We have to remember that in Australia our ultimate rule of law is
that you are innocent until you are proven guilty. To have people paraded
through the media, and accusations and allegations made against them, so their
careers, livelihood and families are completely destroyed, should not be done
lightly, by public hearings.
With regard to the limits of its powers, the Qld CCC makes the following
The CCC is not a court. Even when it investigates a matter,
it cannot determine guilt or discipline anyone. In the context of a crime
investigation, the CCC can have people arrested, charged and prosecuted. As a
result of a corruption investigation, it can refer matters to the Director of
Public Prosecutions with a view to criminal prosecution, to the Queensland
Civil and Administrative Tribunal to consider action warranted, or to a CEO to
consider disciplinary action.
The power of the Qld CCC to itself commence a prosecution, mentioned
above, is limited to bringing prosecutions for corrupt conduct in disciplinary
proceedings in the Queensland Civil and Administrative Tribunal (QCAT).
The CC Act (Qld) defines the orders QCAT may make if it finds that corrupt
conduct has been proved:
may, on a finding of corrupt conduct being proved against a prescribed person,
order that the prescribed person—
- be dismissed; or
- be reduced in rank or
salary level; or
or have deferred, a salary increment or increase to which the prescribed person
would ordinarily be entitled; or
- be fined a stated
amount that is to be deducted from—
person’s periodic salary payment in an amount not more than an amount equal to
the value of 2 penalty units per payment; or
person’s monetary entitlements, other than superannuation entitlements, on
termination of the person’s service.
deciding the amount for subsection (1)(d)(ii), QCAT may have regard to the
value of any gain to the prescribed person from the person’s corrupt conduct.
The Qld CCC is subject to the scrutiny of the Parliamentary Crime and
Corruption Committee (PCCC), which is established under Part 3 of the CC Act
(Qld). The PCCC is a seven-member committee which must include four members
nominated by the Leader of the House and three members nominated by the Leader
of the Opposition. The chair of the PCCC must be nominated by the Leader of the
House. Despite this requirement, the present chair of the committee is a member
of the opposition rather than the government.
The principal functions of the PCCC are:
to monitor and review the performance of the functions, and the
structure of the Crime and Corruption Commission (CCC or the Commission);
to report to Parliament on matters relevant to the Commission;
to participate in the appointment of Commissioners and the Chief
Executive Officer of the Commission.
The committee is granted a number of powers under the CC Act (Qld),
including the ability to: direct the Qld CCC to undertake a corruption
investigation into a matter; to receive complaints about the Qld CCC and, among
other responses, refer such complaints to other law enforcement agencies, the
parliamentary commissioner or the director of public prosecutions; and to issue
guidelines to the Qld CCC about its conduct and activities. Each of these
powers is only effective if it is exercised with bipartisan support and any
guidelines issued by the committee are disallowable by the Legislative
A further power granted to the committee is the ability to 'appoint persons
having special knowledge or skill to help the committee perform its functions'.
The CC Act (Qld) also establishes a part-time Parliamentary Crime and
Corruption Commissioner as an officer of the parliament. The commissioner must
either have served or be qualified to serve as a judge of the Supreme Court of
Queensland, the Supreme Court of another state, the High Court or the Federal
Court. The commissioner is appointed by the Speaker subject to the bipartisan
approval of the PCCC. The commissioner may be removed from office by the
governor in council, with the bipartisan support of the PCCC, on grounds of
incapacity or if found guilty of conduct that would warrant dismissal from the
public service. The governor may also remove the commissioner on the basis of
the bipartisan support of the PCCC for such action accompanied by a resolution
of the Legislative Assembly.
The functions of the Parliamentary Crime and Corruption Commissioner are
Audit records kept by the Commission and operational files and
accompanying documentary material held by the Commission, including current
Investigate, including by accessing operational files of the
Commission to which the committee is denied access, complaints made against, or
concerns expressed about, the conduct or activities of the Commission or a
Independently investigate allegations of possible unauthorised
disclosure of information or other material that, under the Crime and
Corruption Act, is confidential.
Inspect the register of confidential information kept under the
Act to verify the Commission's reasons for withholding information from the
Review reports by the Commission to the committee to verify their
accuracy and completeness, particularly in relation to an operational matter.
Report, and make recommendations, to the committee on the results
of performing the functions above.
Perform other functions the committee considers necessary or
The Office of the Parliamentary Crime and Corruption Commissioner
currently consists of only the commissioner and a principal legal officer. The
office's current principal legal officer, Mr Mitchell Kunde, informed the
committee that the office was initially created in 1997 because the
parliamentary oversight committee had 'found access to operational material was
difficult and problematic. So the role of the parliamentary commissioner was
created as the investigative arm of the committee'.
He also provided the following assessment on the accountability structure
involving the Qld CCC, the PCCC and the Parliamentary Crime and Corruption
It is a useful structure, and I think this office is a very
useful office, because we focus only on the CCC, and so we can look at every
application for warrant, every warrant that they have and every application for
a listening device, and we can make sure that they have done those properly and
processed all of the things that they need to do. The parliamentary committee
oversighting the CCC, and then this office as an investigative arm of the
parliamentary committee, is, I think, an ideal model.
Mr Kunde also identified complaints about unauthorised leaks of
confidential information from the Qld CCC and complaints about the extent of
investigations undertaken by the Qld CCC as the most common types of complaints
received by the office.
The Parliamentary Crime and Corruption Commissioner, Ms Karen Carmody,
noted that the powers of her role are similar to those of the NSW ICAC
Inspector, but that these powers 'have been very rarely used to the extent that
they could be'.
Western Australia—Corruption and Crime Commission
The Western Australian Corruption and Crime Commission (WA CCC) commenced
operation in January 2004, after the passage of the Corruption and Crime Act
2003 (WA). Upon its establishment, the WA CCC was required to take over
investigations and outstanding case files and complaints from the Kennedy Royal
Commission into corrupt or criminal conduct by the Western Australia Police and
the existing Anti-Corruption Commission.
The Corruption and Crime Act 2003 was amended multiple times in
subsequent years and became, on 1 July 2015, the Corruption, Crime and
Misconduct Act 2003 (CCM Act (WA)). This change in name reflects the fact
that the amended act gives the Western Australian Public Service Commissioner
responsibility for dealing with less serious public sector misconduct.
As noted in the 2016 select committee's interim report, the
establishment of the WA CCC and the abolition of the existing Anti-Corruption
Commission were early recommendations of the Kennedy Royal Commission, which
In the circumstances, it has been possible at this stage of
the work of the Commission to conclude that the identifiable flaws in the
structure and powers of the ACC have brought about such a lack of public
confidence in the current processes for the investigation of corrupt and
criminal conduct that the establishment of a new permanent body is necessary.
Commissioner—appointment and tenure
The CCM Act (WA) establishes the WA CCC as a body corporate and provides
for the appointment of a single commissioner. The Act requires that any
commissioner has either served as, or be qualified for appointment as, a judge
of the Supreme Court of Western Australia or another state or territory. The
commissioner may not be a current or former police officer.
The Act specifies that the commissioner is to be appointed on the
recommendation of the premier by the governor. However, the premier may only
recommend the appointment of a person whose name is on a list of three eligible
persons provided to the premier by a nominating committee, which in turn
consists of the Chief Justice, the Chief Judge of the District Court, and a
person appointed by the governor to represent the interests of the community.
The premier's nomination must also have the support of a majority of the Joint
Standing Committee on the Corruption and Crime Commission, as well as
The commissioner is appointed on a full-time basis for a term of five
years and may be reappointed once.
The commissioner may be suspended by the governor on grounds of incapacity,
incompetence or misconduct; however, the commissioner may only be removed from
office on the basis of addresses from both houses of parliament. If such addresses
are not made by each house, the commissioner is restored to office.
Functions of the commission
The CCM Act (WA) confers three main functions on the WA CCC—a serious
misconduct function; an organised crime function; and a prevention and
The WA CCC may fulfil its serious misconduct function by receiving or
initiating allegations of serious misconduct, considering whether action is
needed, investigating allegations or referring them to other appropriate
authorities, monitoring the handling of any allegations it refers to other
agencies, making recommendations and making reports; consulting, cooperating
and sharing information with the AFP, other state and territory police
commissioners, the ATO, the ACIC, ASIO, and AusTrac.
The WA CCC is able, in pursuit of its prevention and education function,
to perform the following activities:
- analysing the information it
gathers in performing functions under this Act and any other Act, including the
intelligence gathered in support of its police misconduct and organised crime
analysing systems used within the
Police Department to prevent police misconduct;
- using information it gathers from
any source in support of the prevention and education function;
providing information to, consulting
with, and making recommendations to, the Police Department;
providing information relevant to
the prevention and education function to members of the police service and to
the general community;
ensuring that in performing all of
its functions it has regard to the prevention and education function;
- generally increasing the capacity
of the Police Department to prevent and combat police misconduct by providing
advice and training to the Police Department;
reporting on ways to prevent and
combat police misconduct.
The WA CCC may also consult, co-operate and exchange information with the
public service commissioner when performing its education and prevention
Although one of the purposes of the CCM Act (WA) is to 'combat and
reduce the incidence of organised crime', the WA CCC's ability to contribute to
this outcome is quite restricted. Under its organised crime function, the WA
CCC is limited to receiving applications from the commissioner of police to be
granted extraordinary powers, including the ability to compel witnesses to
answer questions in private hearings, enhanced entry and search powers, use of
assumed identities and conduct of controlled operations.
The WA CCC must determine whether to approve the use of such powers based on whether
there are reasonable grounds to suspect an offence is being committed, that
relevant evidence or information might be obtained by using the powers and that
the use of the powers is in the public interest.
The WA CCC is not itself empowered to investigate organised crime and in
some years it has not been called on to perform any organised crime function as
the Western Australian Police have made no applications to make use of the
extraordinary powers covered by the CCM Act (WA).
The WA CCC has in the past recommended amendments to its organised crime
function, stating that 'the expressed intent of the Parliament with regard to
its organised crime function, established as the first of the Commission’s two
main purposes under section 7A of the Act, cannot be achieved under the current
In its latest annual report, the WA CCC stated that it had again 'received no
applications for the use of exceptional powers or fortification warning
Definition of corruption and jurisdiction
Section 4 of the CCM Act (WA) defines 'misconduct'. The Act then
categorises types of misconduct into 'serious misconduct' and 'minor
misconduct' and assigns the WA CCC responsibility for addressing the former and
assigns the Western Australian Public Service Commission responsibility for the
The term 'corruption' is then used to define 'serious misconduct'. Under the
CCM Act (WA) 'serious misconduct' occurs when a public officer:
acts corruptly or corruptly fails to act in the course of their
corruptly takes advantage of their position for the benefit or
detriment of any person; or
commits an offence which carries a penalty of 2 or more years
'Minor misconduct' occurs when a public officer engages in conduct that:
adversely affects the honest or impartial performance of the
functions of a public authority or public officer, whether or not the public
officer was acting in their public officer capacity at the time of engaging in
involves the performance of functions in a manner that is not
honest or impartial;
involves a breach of the trust placed in the public officer; or
involves the misuse of information or material that is in
connection with their functions as a public officer, whether the misuse is for
the benefit of the public officer or the benefit or detriment of another
constitutes, or could constitute, a disciplinary offence
providing reasonable grounds for termination of a person’s office or
In the specific case of members of the police force, the CCM Act (WA) states
that all misconduct described under section 4, as well as additional conduct
that falls within the category of 'reviewable police conduct', is considered
'serious misconduct'. This provision has the effect of making the WA CCC responsible
for examining all instances of police misconduct.
Any misconduct by members of parliament, the clerk of a house of
parliament, or a local government member is also explicitly excluded from the
'minor misconduct' category, thereby reserving such misconduct for
consideration by the WA CCC.
With respect to its investigatory capacity, the WA CCC is therefore
focused on allegations of serious misconduct by any public officer. It also
retains oversight of all misconduct by members of the police force, whether or
not such conduct would otherwise be considered minor misconduct. The CCM Act
(WA) defines a 'public officer' by reference to the definition contained in
section 1 of the Western Australian Criminal Code. The definition encompasses
a police officer;
(aa) a Minister of the Crown;
Parliamentary Secretary appointed under section 44A of the Constitution Acts
Amendment Act 1899;
(ac) a member of either House of Parliament;
(ad) a person exercising authority under a written law;
person authorised under a written law to execute or serve any process of a
court or tribunal;
public service officer or employee within the meaning of the Public Sector
Management Act 1994;
person who holds a permit to do high-level security work as defined in the Court
Security and Custodial Services Act 1999;
person who holds a permit to do high-level security work as defined in the Prisons
member, officer or employee of any authority, board, corporation, commission,
local government, council of a local government, council or committee or
similar body established under a written law; [or]
other person holding office under, or employed by, the State of Western
Australia, whether for remuneration or not...
The CCM Act (WA) obliges the WA CCC to 'ensure that an allegation about,
or information or matter involving, serious misconduct is dealt with in an
The WA CCC is able to act on allegations of serious misconduct that it
receives, as well as to conduct investigations into possible serious misconduct
on its own initiative.
With respect to investigatory powers, the WA CCC is able to issue a
summons to require a person to attend an examination and to give evidence or
produce any record or other thing.
Examinations are held in private, except in cases where the commission determines
to open an examination to the public. It may take this step if, 'having weighed
the benefits of public exposure and public awareness against the potential for
prejudice or privacy infringements, it considers that it is in the public
interest to do so'.
The WA CCC is able apply to a judge of the Supreme Court for a search
warrant and, if successful, execute such warrants.
In the case of premises of a public authority or public officer, the WA CCC is
empowered to authorise its officers to, at any time and without a warrant,
enter and inspect such premises, inspect any document or other thing on the
premises and make copies of any documents.
The WA CCC is also able to make use of assumed identities and to conduct
controlled operations and integrity testing programs.
The WA CCC is able to make recommendations as to whether consideration
should or should not be given to either the prosecution of particular persons, or
the taking of disciplinary action against particular persons.
However, the CCM Act (WA) states:
A recommendation made by the Commission under this section is
not a finding, and is not to be taken as a finding, that a person has committed
or is guilty of a criminal offence or has engaged in conduct that constitutes
or provides grounds on which that person’s tenure of office, contract of
employment, or agreement for the provision of services, is, or may be,
As noted above, the WA CCC is not itself empowered to investigate
organised crime, but does have powers to authorise the use of extraordinary
powers outlined in the CCM Act (WA) by the Western Australian Police.
The WA CCC also plays an oversight role in the use of controlled operations by
the Western Australian Police, the Department of Fisheries and the ACIC. In
this capacity, the WA CCC is responsible for inspecting the controlled
operations records of these agencies once every 12 months and preparing an
annual report for ministers and chief officers.
The CCM Act (WA) establishes both a Parliamentary Inspector of the
Corruption and Crime Commission of Western Australia, and a joint standing
committee of the Western Australian Parliament.
The parliamentary inspector must possess a minimum level of legal experience
and is appointed and subject to removal in a manner that mirrors the
appointment of the commissioner to the WA CCC. The parliamentary inspector's functions
(aa) to audit the operation of the Act;
audit the operations of the Commission for the purpose of monitoring compliance
with the laws of the State;
deal with matters of misconduct on the part of the Commission, officers of the
Commission and officers of the Parliamentary Inspector;
audit any operation carried out pursuant to the powers conferred or made
available by this Act;
assess the effectiveness and appropriateness of the Commission’s procedures;
make recommendations to the Commission, independent agencies and appropriate
report and make recommendations to either House of Parliament and the Standing
perform any other function given to the Parliamentary Inspector under this or
The parliamentary inspector is able to hold inquiries for the purpose of
carrying out these functions, and in doing so enjoys the powers, protections
and immunities of a royal commission, as set out in the Royal Commissions
Act 1968 (WA). Such inquiries must, however, be held in private.
The Joint Standing Committee on the Corruption and Crime Commission is
tasked with monitoring and reporting on how both the WA CCC and the parliamentary
inspector carry out their functions, as well as inquiring into means by which
public sector corruption prevention practices may be enhanced.
Professor Adam Graycar of Flinders University noted recent findings of
misconduct within the WA CCC by the parliamentary inspector.
The parliamentary inspector made a report in June 2015 concerning allegations
of misconduct within the WA CCC's Operations Support Unit (OSU). The inspector
made the following the comments about the OSU:
The number and nature of allegations made against OSU
officers in this matter, and the systemic nature of the conduct investigated,
revealed a disturbing culture of entitlement and unaccountability in the OSU
contrary to the standards and values expected of public officers, particularly
those employed by the State’s anti-corruption body.
In some instances, the conduct which this culture encouraged
was suspected of having violated State, and possibly Commonwealth, criminal
The parliamentary inspector made a further report in December 2015
dealing specifically with the abuse of assumed identities, traffic infringement
notices and the appointment of special constables, and remedial action taken by
the WA CCC to prevent further abuses.
In 2009 the Parliamentary Joint Select Committee on Ethical Conduct
tabled its final report, which contained a recommendation that 'legislation
providing for the creation of the Tasmanian Integrity Commission be drafted.'
The Tasmanian government responded by drafting and introducing the Integrity
Commission Bill 2009, which subsequently became law and established the Integrity
Commission on 1 October 2010.
Commissioner—appointment and tenure
The governance structure of the Tasmanian Integrity Commission differs
from that of other state integrity commissions in that the Integrity
Commission Act 2009 (Tas) (IC Act (Tas)) establishes a board, a chief
commissioner and a chief executive officer. The IC Act (Tas) states that role
of the board is to:
guidance to facilitate the functions and powers of the Integrity Commission,
under this or any other Act, being performed and exercised by the chief
executive officer and staff of the Integrity Commission in accordance with
sound public administration practice and principles of procedural fairness and
the objectives of this Act; and
an understanding of good practice and systems in public authorities in order to
develop a culture of integrity, propriety and ethical conduct in those public
authorities and their capacity to deal with allegations of misconduct; and
and report to the Minister or Joint Committee or both the Minister and Joint
Committee on the operation and effectiveness of this Act and other legislation
relating to the operations of integrity entities in Tasmania.
The chief commissioner is the chairperson of the board. Board members
are appointed by the governor on the advice of the minister, after consultation
with the Joint Standing Committee on Integrity.
The IC Act (Tas) does not appear to require that the committee approve of board
appointments, merely that it be consulted.
The IC Act (Tas) also requires board members to hold certain types of
experience, covering such areas as local government, law enforcement, public
administration, business management, legal practice, community service, human
resources and industrial relations.
The chief commissioner is also appointed by the governor on the advice
of the minister after consultation with the Joint Standing Committee on
Integrity. Again, there appears to be no requirement that the committee agree
to the appointment. The IC Act (Tas) requires that an appointee be a legal
practitioner of not less than seven years standing and must not have been in
the preceding five years a member of any Australian parliament or local
council, or a member of a political party.
The chief commissioner may be reappointed but cannot serve for a total period
exceeding 10 years.
The chief commissioner may be suspended from office if he or she is
incapable of performing the functions of the office, has become bankrupt, has
been convicted of a crime or an offence punishable by a term of 12 months or
more, or has engaged in misconduct or misbehaviour.
In such a circumstance, the minister must lay a statement setting out the
grounds for the suspension before each house of parliament and the houses may
then confirm or revoke the suspension. A similar procedure applies to the
revocation of the appointment of the chief commissioner at the request of the governor.
It does not appear that the houses of parliament can themselves initiate a
revocation of an appointment.
The IC Act (Tas) also establishes a parliamentary standards
commissioner, whose function is to provide advice to members of parliament and
the Integrity Commission:
conduct, propriety and ethics and the interpretation of any relevant codes of
conduct and guidelines relating to the conduct of Members of Parliament; and
to the operation of the Parliamentary disclosure of interests register,
declarations of conflicts of interest register and any other register relating
to the conduct of Members of Parliament; and
to guidance and training for Members of Parliament and persons employed in the
offices of Members of Parliament on matters of conduct, integrity and ethics;
to the operation of any codes of conduct and guidelines that apply to Members
The parliamentary standards commissioner is appointed by the governor,
following consultation by the minister with the Joint Standing Committee on
Integrity. The parliamentary standards commissioner is appointed for a
five-year term and may be reappointed once.
Functions of the commission
The functions of the Integrity Commission are specified by the IC Act
(Tas) as follows:
standards and codes of conduct to guide public officers in the conduct and
performance of their duties; and
public officers and the public about integrity in public administration; and
guidelines and provide training to public officers on matters of conduct,
propriety and ethics; and
advice on a confidential basis to public officers about the practical
implementation of standards of conduct that it considers appropriate in specific
and maintain codes of conduct and registration systems to regulate contact
between persons conducting lobbying activities and certain public officers; and
and assess complaints or information relating to matters involving misconduct;
complaints to a relevant public authority, integrity entity or Parliamentary
integrity entity for action; and
complaints or any potential breaches of the law to the Commissioner of Police,
the DPP or other person that the Integrity Commission considers appropriate for
any complaint by itself or in cooperation with a public authority, the
Commissioner of Police, the DPP or other person that the Integrity Commission
considers appropriate; and
its own initiative, initiate an investigation into any matter related to
- deal with any matter referred to it by the Joint
responsibility for, and complete, an investigation into misconduct commenced by
a public authority or integrity entity if the Integrity Commission considers
that action to be appropriate having regard to the principles set out in
section 9 ; and
conducting or monitoring investigations into misconduct, gather evidence for or
ensure evidence is gathered for –
- the prosecution of
persons for offences; or
- proceedings to
investigate a breach of a code of conduct; or
- proceedings under any
other Act; and
- conduct inquiries into complaints; and
reports relating to misconduct from a relevant public authority or integrity
entity and take any action that it considers appropriate; and
the Integrity Commission is satisfied that it is in the public interest and
expedient to do so, recommend to the Premier the establishment of a Commission
of Inquiry under the Commissions of Inquiry Act 1995 ; and
or audit any matter relating to the dealing with and investigation of
complaints about misconduct in any public authority including any standards,
codes of conduct, or guidelines that relate to the dealing with those
any other prescribed functions or exercise any other prescribed powers.
These functions essentially fall into two areas—a misconduct prevention and
education function, and a complaint handling and investigation function.
With respect to its misconduct prevention and education function, which is
contained in Part 4 of the IC Act (Tas), the Integrity Commission states:
Wherever possible, misconduct risk management must be
undertaken by the public authorities themselves as they have the greatest
capacity to recognise and control their risks. The Commission provides advice
and assistance through a collaborative and consultative approach that empowers public
authorities and public officers to build or maintain capacity to deal with
With respect to its complaint-handling and investigation functions, which
are contained in parts 5 and 6 of the IC Act (Tas), the Integrity Commission states:
The Operations team deals with complaints about misconduct.
It does this at two levels: through investigations, and through the auditing of
actions taken by public authorities. Investigations are conducted in private
and can be time-consuming due to their nature and the rules of procedural
fairness. Investigations are not made public unless they are the subject of a
report tabled in Parliament. Where appropriate or as otherwise required by
legislation, individuals and organisations involved in an investigation may be
given notification of the investigation.
The Integrity Commission also has a role in monitoring misconduct
allegations and investigations within Tasmania Police. The Integrity Commission
conducts an annual audit of all complaints finalised by Tasmania Police and
presents a report on its findings to parliament.
The Integrity Commission is empowered to assume responsibility for and complete
an investigation commenced by the commissioner of police, and is also able to
conduct, on its own motion, an investigation into any matter relevant to police
The IC Act (Tas) states that the 'Integrity Commission is not subject to
the direction or control of the Minister in respect of the performance or
exercise of its functions or powers'.
Definition of corruption and
The IC Act (Tas) does not employ the term 'corruption', but instead
focuses on 'misconduct' and 'serious misconduct'. Misconduct is defined as
or an attempt to engage in conduct, of or by a public officer that is or
breach of a code of conduct applicable to the public officer; or
performance of the public officer's functions or the exercise of the public
officer's powers, in a way that is dishonest or improper; or
misuse of information or material acquired in or in connection with the
performance of the public officer's functions or exercise of the public
officer's powers; or
misuse of public resources in connection with the performance of the public
officer's functions or the exercise of the public officer's powers; or
or an attempt to engage in conduct, of or by any public officer that adversely
affects, or could adversely affect, directly or indirectly, the honest and
proper performance of functions or exercise of powers of another public officer
but does not include conduct, or an attempt to engage in
conduct, by a public officer in connection with a proceeding in Parliament;
Serious misconduct is defined as misconduct by any public officer that
could, if proved, be:
- a crime or an offence of a serious nature; or
providing reasonable grounds for terminating the public officer's appointment;
The Integrity Commission notes that the definition of misconduct does
not encompass the following categories of behaviour:
decisions or actions by a Supreme Court Judge or Magistrate
actions or decisions by employees of private companies and
conduct involving lawyers in private practice
actions of Members of Parliament during proceedings in Parliament
administrative decisions or actions by public authorities where
there is no suggestions that the decisions were made dishonestly or improperly.
In accordance with its objective of promoting and enhancing integrity in
government and public authorities, the Integrity Commission is restricted to
examining matters relating to public officers and public authorities. Public
authorities, as defined in section 5 of the IC Act (Tas), include state
government departments, government business enterprises, police, custodial
officers, members of parliament, elected members and employees of councils, and
employees of the University of Tasmania.
The IC Act explicitly excludes the Governor of Tasmania, members of the
Tasmanian judiciary and the Integrity Commission itself from the category of
In October 2014, the Integrity Commission released a report highlighting
what it believed to be a significant weakness in the legislative regime under
which it operates—that is, the lack of a 'misconduct in public office' offence
in the Tasmanian criminal code. The Integrity Commission stated:
The Commission has now been established for four years. It
therefore has some experience of the type and extent of misconduct that is
commonly seen in Tasmania. During its four years of operation, the Commission
has encountered examples of serious misconduct which, apart from anything else,
have resulted in significant financial loss for the state government.
Although examples of misconduct on this scale appear to be
relatively infrequent, it is vital that, in accordance with the objectives of
the Commission, they be investigated and dealt with appropriately. The Commission
considers that some of the misconduct it has seen has been worthy of criminal
punishment, and believes that appropriately dealing with it should have
included a referral to Tasmania Police or the Director of Public Prosecutions
for potential criminal charges. However, in considering options for prosecuting
serious misconduct in Tasmania, the Commission has encountered the problem of
the dated and ‘ambiguous’ legislative regime. It has also emerged that
Tasmania’s criminal code is lacking the key misconduct offence: the offence of
‘misconduct in public office’ (MIPO). Every other jurisdiction in Australia –
including the Commonwealth and both the territories – has some form of this
The Integrity Commission recommended that 'to bring Tasmania into line
with all other Australian jurisdictions, an offence which captures 'misconduct
in public office' be introduced into the Criminal Code of Tasmania'.
The Integrity Commission possesses a range of investigatory powers that
it may use with respect to misconduct within public authorities. However, it
does not possess some powers to conduct covert operations that other state
integrity commissions enjoy. Inquiries conducted by the Integrity Commission
are directed at establishing the facts of a matter and it does not make
findings as to whether misconduct occurred.
In cases where the chief executive officer determines that a complaint
warrants investigation, he or she may appoint an investigator to conduct an
investigation. The board of the Integrity Commission has the power to initiate
own-motion investigations 'in respect of any matter that is relevant to the
achievement of the objectives of this Act in relation to misconduct'. The chief
executive officer must then appoint an investigator in such cases.
Investigators appointed via either of these processes:
conduct an investigation in any lawful manner he or she considers appropriate;
obtain information from any persons in any lawful manner he or she considers
- must observe the rules of procedural fairness; and
- may make any investigations he or she considers
The IC Act (Tas) further specifies that investigations must be conducted
in private unless otherwise authorised by the chief executive officer.
Investigators are able to enter the premises of a public authority
without consent or a search warrant, provided they first obtain authorisation
from the chief executive officer of the Integrity Commission. Investigators are
also able to apply to a magistrate for a warrant to enter premises. While on a
premises, investigators are broadly empowered to search for, make copies of or
seize items relevant to the investigation.
In cases of possible serious misconduct, investigators may, with the approval
of the chief executive officer, apply for a warrant to use surveillance
At the conclusion of an investigation the chief executive officer must
provide a report to the board of the Integrity Commission, recommending: the
complaint be dismissed, that the findings of the investigation be provided to
other agencies for action, that the board recommend to the premier that a
commission of inquiry be established, or that an integrity tribunal be
established into the matter.
If an integrity tribunal is convened by the board, it can be composed of
the Chief Commissioner sitting alone, or the Chief Commissioner with up to two other
appointees with relevant expertise. Such an integrity tribunal is empowered to
exercise powers to enter and search premises as well as use surveillance
devices in a similar manner to an investigator, as described above. In
addition, an integrity tribunal can direct any person to: appear before it,
answer questions, or produce information that may be relevant to its inquiry.
The Integrity Commission is not, however, empowered to employ covert tactics
such as telecommunications intercepts, assumed identities and integrity
The IC Act (Tas) specifies that the hearings of an integrity tribunal
are to be open to the public, except in cases where the tribunal determines
that there are reasonable grounds to close a hearing to the public, exclude any
person from the hearing or make an order prohibiting reporting or other
disclosure of a hearing.
The Integrity Commission states that 'Integrity Tribunal Hearings will
generally be conducted publicly, although it is possible for an order to be
made for a closed hearing, for example if the matter involves a minor'.
The IC Act (Tas) establishes a six-member Joint Standing
Committee on Integrity, and requires that any party with three or more members
in the House of Assembly be represented. The committee is assigned an oversight
role with respect to the Integrity Commission, the Ombudsman and the Custodial Inspector.
The committee is required to monitor and review the performance of these
integrity bodies and, where appropriate, report to parliament. It is also
required to examine the annual reports of these bodies.
The committee is assigned several functions specific to its oversight of
the Integrity Commission—to refer matters to the Integrity Commission for
investigation or advice and to conduct a review of the functions, powers and
operations of the Integrity Commission three years after the commencement of
the IC Act (Tas) and provide a report to parliament. This review was completed
in 2015 and made a large number of recommendations regarding the functions of
the Integrity Commission. Perhaps most significantly, the committee did not
unanimously support the continuance of the Integrity Commission's investigative
The IC Act (Tas) also requires that an independent review be conducted
of the Act as soon as possible after 31 December 2015 and that this review
consider the operation of the Act, the Integrity Commission, the parliamentary
standards commissioner and the Joint Standing Committee on Integrity.
This review was completed in May 2016 and responded to by the Tasmanian government
in November 2016.
In May 2017, the Tasmanian Government introduced legislation to amend the IC
Act (Tas) in order to address some of the recommendations made by the
independent review. The legislation altered, among other matters, the membership, operation and purpose
of the board as well as the appointment, suspension and removal provisions
governing the board and the chief commissioner.
Victoria—Independent Broad-based Anti-corruption Commission
The Victorian Independent Broad-based Anti-corruption Commission (IBAC)
was established by the Independent Broad-based Anti-corruption Commission
Act 2011 (Vic) (IBAC Act (Vic)). It replaced the Office of Police
Integrity, which was an anti-corruption agency narrowly focused on Victoria
Police, that had been operating since 2004. The IBAC was formally established
on 1 July 2012 but only became fully operational in February 2013 with the
enactment of its investigative powers.
Although it has been in operation for a short period of time, some
significant changes have been made to the remit of IBAC. In 2012, the IBAC Act
(Vic) was amended to 'grant IBAC certain investigative powers as well as define
its main areas of jurisdiction'.
As it was initially established, IBAC was restricted in its activities by a
relatively narrow definition of relevant offences and corrupt conduct under the
IBAC Act (Vic); however, the passage of the Integrity and Accountability
Legislation Amendment (A Stronger System) Act 2016 (Vic) has expanded the
scope of matters that IBAC can address. These changes came into effect on 1
Commissioner—appointment and tenure
The IBAC Act (Vic) provides for the appointment of one commissioner. The
Act specifies that neither IBAC nor the commissioner are subject to the
direction or control of the minister in respect of the performance of duties
and functions and the exercise of powers.
The IBAC commissioner is also designated an 'independent officer of the
Parliament', although the IBAC Act (Vic) states that this status does not imply
any functions, powers, rights, immunities or obligations beyond what is
specified in the Act.
The IBAC commissioner is appointed by the governor in council on the recommendation
of the minister. A person appointed to be commissioner must be qualified for
appointment as, or have served as, a judge of the High Court, the Federal
Court, the Supreme Court of Victoria or another state or territory.
The minister must not make a recommendation for appointment to the governor
unless he or she has first submitted the proposed recommendation to the IBAC
Committee of the Victorian Parliament. The committee has the power to veto the
recommendation, but must do so within 30 days.
The commissioner's term must not exceed five years and the commissioner is not
eligible for re-appointment.
The governor in council, on the recommendation of the minister, may also
appoint one or more deputy commissioners. At least one deputy commissioner must
be a lawyer and the minister must first obtain the agreement of the
commissioner before making a recommendation to appoint a deputy commissioner.
The governor in council may suspend the commissioner on the following
- neglect of duty;
- inability to perform the duties of the office;
other ground on which the Governor in Council is satisfied that the
Commissioner is unfit to hold office.
Following such a suspension, the minister must present a statement of
the grounds of suspension to each house of the parliament. If each house
declares by resolution that the commissioner ought to be removed from office,
the governor in council must then remove the commissioner. If either house of
parliament does not pass such a resolution, the commissioner must be restored
Functions of the commission
As noted above, the IBAC Act (Vic) has been amended several times. As it
was originally established, the specified functions of IBAC were limited to
education and prevention activities. The Independent Broad-Based
Anti-corruption Commission Amendment (Investigative Functions) Act 2012 (Vic)
and the Independent Broad-Based Anti-corruption Commission Amendment
(Examinations) Act 2012 (Vic) provided IBAC with investigative powers and
examination powers respectively. The Integrity and Accountability
Legislation Amendment (A Stronger System) Act 2016 (Vic) also made a number
of changes to the functions of IBAC.
As it currently stands, IBAC is responsible for 'exposing and preventing
police misconduct and corrupt conduct across the public sector, including
members of Parliament, the judiciary, and state and local government'.
IBAC summarises its current functions as follows:
identify, investigate and expose serious corrupt conduct and
assist in the prevention of corrupt conduct and police misconduct
educate the public sector, police and community of the risks and
impacts of corruption and police misconduct
assist in improving the capacity of the public sector to prevent
corrupt conduct and police misconduct.
IBAC also summarises its role in relation to police misconduct as
IBAC has a broad role in relation to assessing police
conduct, and investigating and preventing misconduct by police. IBAC can
receive complaints about the conduct of sworn members of Victoria Police,
unsworn members who assist in the administration of police, police recruits and
Protective Services Officers.
IBAC's 2015–16 annual report lists oversight of Victoria Police as a
current challenge for the organisation and states:
There is continuing public debate about how to ensure the
most efficient and effective model of independent police oversight and, in
particular, the balance of responsibility between IBAC and Victoria Police
itself in investigating police complaints.
IBAC attempts to reserve the most serious and systemic matters for its own
investigation, while allowing Victoria Police 'to appropriately retain primary
responsibility for the integrity and professional conduct of their own
With respect to its prevention role, IBAC noted that the Victorian
public sector includes approximately 3,500 entities and over 300,000 employees.
It has therefore developed a strategy targeting the following areas:
engaging with the community and the public sector to improve
understanding of corruption and its detrimental effects
improving reporting of corruption and helping to build the public
sector's capacity to address reports
alerting organisations to the latest information and intelligence
regarding corruption risks to assist them strengthen their resistance to
IBAC also stated that its approach to corruption prevention depends on
public sector bodies retaining primary responsibility for their own integrity
and corruption resistance.
Definition of corruption and
As noted above, the definition of 'corrupt conduct' under which IBAC
operates was recently amended by the Integrity and Accountability
Legislation Amendment (A Stronger System) Act 2016 (Vic). In a 2013 special
report, IBAC made the following comments regarding the threshold it was then required
to overcome before conducting a corrupt conduct investigation:
Concerns have been raised publicly that the legislative
threshold for IBAC to commence an investigation in its public sector
jurisdiction is vague, too high and therefore liable to challenge in the Supreme
Under the IBAC Act, IBAC is required to identify conduct that
would, if the facts were found proved beyond reasonable doubt at a trial,
constitute a prescribed indictable offence. Additionally, IBAC must be
reasonably satisfied that alleged corrupt conduct constitutes serious corrupt
Parliament has clearly sought to balance the need for an
effective integrity system against the need to protect individuals and public
sector entities from arbitrary invasions of their privacy and property. When a
statute prescribes reasonable grounds for a state of mind, it requires facts
which are sufficient to induce that state of mind in a reasonable person.
IBAC also stated in the same report:
There have been corrupt conduct allegations where IBAC has
not felt able to commence investigations because of threshold restrictions in
the IBAC Act. Not all of these were suitable for referral elsewhere. This
constraint has possibly undermined IBAC’s ability to perform and achieve its
principal objects and functions.
Whilst the balance between an effective integrity system and
civil liberties is quite properly a matter for the Parliament to determine,
this constraint should be a matter of concern and further consideration.
The passage of the Integrity and Accountability Legislation Amendment
(A Stronger System) Act 2016 (Vic) saw an expansion of IBAC's remit. It is
now empowered to assess and investigate all corrupt conduct, rather than just
serious corrupt conduct, although it is required to give priority to investigating
allegations of serious or systemic corruption and misconduct. It is also now
able to investigate allegations of misconduct in public office, which can be
'any conduct by a public sector employee which is unlawful or fails to meet the
ethical or professional standards required in the performance of duties or the
exercise of powers entrusted to them'.
IBAC is also now able to conduct preliminary inquiries into a matter
prior to making a decision as to whether to investigate. As part of a preliminary
inquiry IBAC may request further information from a public body, issue a
summons requiring a person to produce documents or other things and issue confidentiality
notices. It cannot, however, use its full investigative powers during such a
IBAC is also now able to commence an investigation when it has
'reasonable grounds' to suspect corrupt conduct. It was previously limited to
investigating only when it was 'reasonably satisfied the alleged conduct would
constitute serious corrupt conduct'.
As it now stands, IBAC is able to take complaints about: taking or
offering bribes; dishonestly using influence; committing fraud, theft or
embezzlement; misusing information or material acquired at work; and conspiring
or attempting to engage in the above corrupt activity. IBAC may investigate
corruption that has occurred through: improper or unlawful actions by public
sector staff or agencies; the inaction of public sector staff or agencies; and
the actions of private individuals who attempt to improperly influence public
sector functions and decisions.
As mentioned above, IBAC is now also empowered to investigate allegations of
misconduct in public office.
IBAC may commence investigations after receiving complaints from
individuals and notifications from public sector bodies about corrupt conduct
and police misconduct. However, IBAC is also able to begin investigations on
its own motion at any time and in relation to any matter within its
IBAC possesses the following powers to investigate allegations of public
sector corruption and police misconduct:
compel the production of documents and objects
enter and search premises
seize documents and objects
use surveillance devices
hold private and public hearings
require people to give evidence at a hearing.
The IBAC Act (Vic) states that IBAC examinations are to be held in
private unless the IBAC considers on reasonable grounds:
- there are exceptional circumstances; and
- it is in the public interest to hold a public
public examination can be held without causing unreasonable damage to a
person's reputation, safety or wellbeing.
With respect to determining whether it is in the public interest to hold
a public examination under paragraph (b) above, IBAC may take into account:
the corrupt conduct or the police personnel conduct being investigated is
related to an individual and was an isolated incident or systemic in nature;
benefit of exposing to the public, and making it aware of, corrupt conduct or
police personnel misconduct;
the case of police personnel conduct investigations, the seriousness of the
matter being investigated.
In the event that IBAC decides to hold a public examination, it must
inform the Victorian Inspectorate of its intention.
IBAC's power to obtain search warrants is defined in Division 4 of the IBAC
Act (Vic). Authorised officers may seek a search warrant via an application to
a Supreme Court judge. Such applications must be authorised by the IBAC
IBAC officers may be authorised under these provisions to:
enter and search the premises or vehicle, vessel or aircraft named or described
in the search warrant and inspect any document or thing at those premises or on
or in that vehicle, vessel or aircraft; and
make a copy of any document relevant, or that the person reasonably considers
may be relevant, to the investigation; and
take possession of any document or other thing that the person considers
relevant to the investigation.
IBAC has specific powers with respect to 'police personnel premises'.
Provided they 'reasonably believe there are documents or other things that are
relevant to an investigation which are on police personnel premises', authorised
officers are able to enter and search such premises, as well as inspect or copy
any documents found there.
Authorised officers are not required to obtain a warrant in these circumstances
and members of Victoria Police are required to give any assistance reasonably
required during such a search.
Powers to undertake covert operations involving surveillance,
telecommunications interceptions and the use of assumed identities are granted
to IBAC under the Surveillance Devices Act 1999 (Vic), Telecommunications
(Interception) (State Provisions) Act 1988 (Vic) and the Crimes (Assumed
Identities) Act 2004 (Vic) respectively.
Having completed an investigation, IBAC is empowered to: refer a matter
to another body for investigation; make a recommendation to the relevant
principal officer, responsible minister or the premier, including the power
require a report on whether such a recommendation has been followed; make a
report to the parliament, which will then become public; advise a complainant
or other person of any action taken; do a combination, all or none of the
above; or determine to make no finding or take no action.
Section 190 of the IBAC Act (Vic) allows either IBAC or a sworn IBAC
officer authorised by the commissioner to bring '[p]roceedings for an offence
in relation to any matter arising out of an IBAC investigation'.
The Gilbert + Tobin Centre of Public Law (Gilbert + Tobin) made the
following comments on the undesirability of combining investigation and
prosecution roles in a single body, as has occurred with IBAC and the Qld CCC:
It is our view that the more desirable position is to retain
the traditional division between investigative and prosecutorial functions, and
that a Commission should not be involved in prosecutions beyond referring the
matter for consideration for prosecution by another agency.
IBAC is subject to the scrutiny of the IBAC Committee, which is
constituted under section 12A of the Parliamentary Committee Act 2003
(Vic). The committee is established as one of a number of 'Joint Investigatory
Committees', which must have between five and 10 members, with at least one
member from each house of parliament. The Act states that the committee must
elect a chairperson and deputy chairperson and does not specify whether the
chairperson must be a government or opposition member.
The current chair of the IBAC Committee is a member of the opposition.
The committee's functions are:
monitor and review the performance of the duties and functions of the IBAC;
report to both Houses of the Parliament on any matter connected with the
performance of the duties and functions of the IBAC that require the attention
of the Parliament;
- to examine any reports made by the IBAC;
consider any proposed appointment of a Commissioner and to exercise a power of
veto in accordance with the Independent Broad-based Anti-corruption
Commission Act 2011;
carry out any other function conferred on the IBAC Committee by or under this
Act or the Independent Broad-based Anti-corruption Commission Act 2011;
monitor and review the performance of the duties and functions of the Victorian
Inspectorate, other than those in respect of VAGO officers or Ombudsman
report to both Houses of the Parliament on any matter connected with the
performance of the duties and functions of the Victorian Inspectorate that
require the attention of the Parliament, other than those in respect of VAGO
officers or Ombudsman officers;
examine any reports made by the Victorian Inspectorate, other than reports in
respect of VAGO officers or Ombudsman officers;
consider any proposed appointment of an Inspector and to exercise a power of
veto in accordance with the Victorian Inspectorate Act 2011.
The committee may not undertake the following actions:
a matter relating to the particular conduct the subject of—
particular complaint or notification made to the IBAC under the Independent
Broad-based Anti-corruption Commission Act 2011; or
particular disclosure determined by the IBAC under section 26 of the Protected
Disclosure Act 2012, to be a protected disclosure complaint;
any decision by the IBAC under the Independent Broad-based Anti-corruption
Commission Act 2011 to investigate, not to investigate or to discontinue
the investigation of a particular complaint or notification or a protected
disclosure complaint within the meaning of that Act;
any findings, recommendations, determinations or other decisions of the IBAC in
particular complaint or notification made to the IBAC under the Independent
Broad-based Anti-corruption Commission Act 2011; or
particular disclosure determined by the IBAC under section 26 of the Protected
Disclosure Act 2012, to be a protected disclosure complaint; or
particular investigation conducted by the IBAC under the Independent
Broad-based Anti-corruption Commission Act 2011;
any determination by the IBAC under section 26(3) of the Protected
Disclosure Act 2012;
any information relating to the performance of a function or the exercise of a
power by the IBAC which may—
any criminal investigation or criminal proceedings; or
(ii) prejudice any
investigation being conducted by the IBAC; or
any secrecy or confidentiality provision in any relevant Act.
Similar restrictions are applied to the committee's activities with
regard to its oversight of the Victorian Inspectorate.
IBAC is also subject to the oversight of the Victorian Inspectorate,
which was established by the Victorian Inspectorate Act 2011 (Vic) and commenced
operation in February 2013.
The Inspectorate performs a number of functions with respect to overseeing other
agencies within the Victorian integrity system, including the Public Interest
Monitor, the Auditor-General and the Chief Examiner. Its functions in relation
to IBAC include:
monitor the compliance of the IBAC and IBAC personnel with the Independent
Broad-based Anti-corruption Commission Act 2011 and other laws;
oversee the performance by the IBAC of its functions under the Protected
Disclosure Act 2012;
assess the effectiveness and appropriateness of the policies and procedures of
the IBAC which relate to the legality and propriety of IBAC's activities;
receive complaints in accordance with this Act about the conduct of the IBAC
and IBAC personnel;
investigate and assess the conduct of the IBAC and IBAC personnel in the
performance or exercise or purported performance or purported exercise of their
duties, functions and powers;
monitor the interaction between the IBAC and other integrity bodies to ensure
compliance with relevant laws;
IBAC is required to do the following to facilitate the Inspectorate's
To report to the VI within 3 days of the issue of any summons,
stating the reasons for its issue
To make audio and video recordings of all coercive examinations
To provide a copy of each recording to the VI as soon as
practicable after the examination is concluded.
The current Inspector, Mr Robin Brett SC, explained that the
Inspectorate reviews every coercive examination undertaken by IBAC and that, in
doing so, it seeks to ensure that a number of requirements are met:
What we look for in those is two classes of things. There are
a number of requirements that are mandatory when IBAC exercises coercive powers
when they summon somebody. There are service requirements: it has to be a
minimum of seven days beforehand, save in exceptional circumstances; it is not
permitted to examine underage people; there are provisions about legal
representation; and there are provisions about independent persons being
present. We check that all of those requirements have been complied with. Also
there are requirements about what is required to be stated in the summons and
what information is to be given to people about their rights and obligations.
So we check for all of that.
In addition, we review the actual questioning. Essentially we
are looking to see that the questioning remains relevant to the purpose of the
investigation. It never, actually, does not; there is no reason why it should.
We also look for things which we just class the propriety of the
questioning—whether, for example, the witness might have been misled or given
false or misleading information in order to try to induce a particular type of
answer, whether the witness has been badgered and that sort of thing. So that
is what we are looking for.
In addition, Mr Brett explained the Inspectorate's role in receiving
complaints and monitoring compliance with legislation:
As well as reviewing coercive examinations we can receive
complaints about IBAC. We receive about 50 or 60 of those a year. Most of those
are from persons who have made complaints to IBAC. They have complained perhaps
about police misconduct or some corrupt conduct they think they have seen
somewhere and IBAC has refused to investigate it. They complain to us because
they think it should have been investigated. Ninety-nine times out of 100 IBAC
had every reason not to investigate.
It is also possible for people who are summoned and are
coercively examined to complain to us. We have had some complaints about those.
We are in fact currently conducting an investigation into a number of
complaints arising out of a particular series of examinations.
What else can we do? We have a general monitoring function as
well. The act requires us to monitor IBAC's compliance with its governing
legislation. We have, in particular, to focus on their functions under the
Protected Disclosure Act, which is our whistleblowers act. That is basically
what we do. What my submission proposes is that that should be something the
committee ought, with respect, to consider and that I would suggest is an
appropriate thing for there to be. Also, there is an IBAC parliamentary
committee, which is active but they do not have power to inquire into
particular matters whereas we do.
Mr Brett noted that the Inspectorate has a wide range of functions when
compared to similar oversight bodies in New South Wales, Queensland and Western
Australia, and that, with 13 staff members, it was also much larger.
He also noted the steep increase in the use of coercive examinations by IBAC,
which rose from 52 in 2013–14 to 179 in 2015–16.
With respect to the fundamental rationale for establishing oversight
bodies such as the Victorian Inspectorate, Mr Brett argued that they are an
important check on the extensive powers granted to anti-corruption bodies:
Coercive powers abrogate fundamental rights possessed by all
citizens. They represent a major infringement of civil liberties. Their use is
justified for the IBAC on the grounds that they are available only in the
course of investigating public sector corruption, and that their use is subject
to scrutiny by an external, independent body with extensive investigatory
powers of its own, i.e., the VI. The IBAC is responsible to the Parliament and
also reports to a special Parliamentary Committee. The VI reports to the same
Committee. The VI is effectively the "eyes and ears" of the
Regarding the effectiveness of IBAC's operations, the IBAC Committee's
2015–16 review of IBAC's performance contained the following discussion:
While the IBAC Commissioner considers that IBAC is operating
effectively, he stressed the need for it to continue to take ‘a more strategic,
approach, rather than being a reactive, complaints‑driven body’. This would, he said,
allow it to most efficiently use its resources to detect, investigate and
expose serious cases of corruption and police misconduct.
The IBAC Commissioner has emphasised that as IBAC matures as
an organisation it is important that it is proactive in relation to identifying
and exposing corruption. This is especially the case given the ‘inherently
clandestine nature of corruption’. IBAC does this in part by undertaking
strategic assessments every 12–18 months. These involve literature reviews,
assessment of other integrity agencies’ reports, analyses of complaints and
notifications and consultations with stakeholders.
The IBAC Committee's review also discussed the need to harmonise
legislative provisions governing the IBAC, the Victorian Auditor-General and
the Victorian Ombudsman with respect to: definitions of the public sector;
information gathering and sharing; oversight and accountability arrangements;
and appointment, tenure, immunity, removal and remuneration for independent
officers of parliament.
The IBAC Committee also noted, and undertook to examine further, the
IBAC Commissioner's suggestion that giving the IBAC the power to 'follow the
dollars'—that is, access documentation of private individuals and organisations
in receipt of government funding to provide services or perform other
functions—would enhance its ability to fully investigate matters of serious
South Australia—Independent Commissioner Against Corruption and Office of
The South Australian Independent Commissioner Against Corruption (SA
ICAC) was established by the Independent Commissioner Against Corruption Act
2012 (SA) (ICAC Act (SA)), which came into effect on 1 September 2013. This
Act established two offices—the Independent Commissioner Against Corruption and
the Office of Public Integrity—both of which are responsible to a single commissioner.
Commissioner—appointment and tenure
The ICAC Act (SA) provides for the appointment by the governor of a
single commissioner for a term not exceeding seven years. The commissioner is
eligible for reappointment, but may not serve for longer than 10 years in
total. To be eligible for appointment, a commissioner must possess a minimum
level of legal experience—seven years of legal practice, or be a former judge
of the High Court or Federal Court, or of the Supreme Court or other courts or
any state or territory.
The appointment of a commissioner may only proceed if it is referred by
the attorney-general to the Statutory Officers Committee and the committee
either approves the proposal or does not respond within a specified period.
The Statutory Officers Committee is a joint committee of the South Australian
Parliament established under the Parliamentary Committees Act 1991 (SA),
which must include government, opposition and crossbench representation.
The commissioner may be removed from office by the governor on receipt
of an address from both houses of parliament. The governor may also suspend the
commissioner for the following reasons: contravening a condition of employment,
misconduct, failure or incapacity to perform official duties, or failure to
provide information to the attorney-general as required by the Act.
In the event of a suspension, the governor must lay a statement of reasons
before the parliament. Either house of parliament may restore the commissioner
to office by way of an address to the governor.
The ICAC Act (SA) explicitly states that the commissioner is not subject
to the direction of any person in relation to any matter, including the manner
in which functions are carried out, powers are exercised and the priority which
is given to particular matters.
Functions of the ICAC and the
Office of Public Integrity
The ICAC Act (SA) establishes both the SA ICAC and the Office of Public
Integrity (OPI). The SA ICAC is a law enforcement body and its functions
include identifying, investigating and referring for prosecution corruption in
public administration. It is also responsible for assisting other agencies to
identify and deal with misconduct and maladministration, conducting evaluations
of public authorities and delivering an education program aimed at preventing
or minimising corruption, misconduct and maladministration. The ICAC Act (SA)
describes these functions in the following terms:
(a) to identify corruption in public administration and
(i) investigate and refer
it for prosecution; or
it to a law enforcement agency for investigation and prosecution;
assist inquiry agencies and public authorities to identify and deal with
misconduct and maladministration in public administration;
refer complaints and reports to inquiry agencies, public authorities and public
officers and to give directions or guidance to public authorities in dealing
with misconduct and maladministration in public administration, as the
Commissioner considers appropriate;
identify serious or systemic misconduct or maladministration in public
exercise the powers of an inquiry agency in dealing with serious or systemic
maladministration in public administration if satisfied that it is in the
public interest to do so;
exercise the powers of an inquiry agency in dealing with serious or systemic
misconduct in public administration if the Commissioner is satisfied that the
matter must be dealt with in connection with a matter the subject of an
investigation of a kind referred to in paragraph (a)(i) or a matter being dealt
with in accordance with paragraph (cb);
evaluate the practices, policies and procedures of inquiry agencies and public
authorities with a view to advancing comprehensive and effective systems for
preventing or minimising corruption, misconduct and maladministration in public
conduct or facilitate the conduct of educational programs designed to prevent
or minimise corruption, misconduct and maladministration in public
perform other functions conferred on the Commissioner by this or any other Act.
The OPI's functions include receiving and assessing complaints and
reports about public administration, as well as referring matters for
investigation by other bodies. As described by the ICAC Act (SA), these
receive and assess complaints about public administration from members of the
receive and assess reports about corruption, misconduct and maladministration
in public administration from inquiry agencies, public authorities and public
refer complaints and reports to inquiry agencies, public authorities and public
officers in circumstances approved by the Commissioner or make recommendations
to the Commissioner in relation to complaints and reports;
give directions or guidance to public authorities in circumstances approved by
perform other functions assigned to the Office by the Commissioner.
The current commissioner, the Hon. Bruce Lander QC, made the following
comments on the effectiveness of the separation of complaint receiving and
assessing functions from investigatory functions under this model:
I think the people with whom we deal and, certainly, public
authorities now do understand that the Office of Public Integrity is there to
receive complaints and reports and to assess them and that it will then be a
separate body, albeit under the same leadership, who either will investigate
the matters as corruption or will cause them to be investigated as corruption
or cause them to be investigated as misconduct or maladministration. I think
there is some utility in dividing the functions between what are the two offices.
The commissioner also noted that there is a significant disparity
between complaints received from members of the public and reports from public
officers in terms of how many are assessed as requiring action. Approximately
80 per cent of complaints from members of the public are assessed by the OPI as
requiring no action, whereas 60 per cent of reports from public officers are
The commissioner explained why this might be the case:
I think the reason why there is such a difference is because
members of the public made their complaints as victims or see themselves as
victims. The public officers are making their reports because they suspect
someone has committed conduct of a kind that needs to be reported.
Definition of corruption and
The ICAC Act (SA) defines 'corruption in public administration' as
conduct that constitutes:
offence against Part 7 Division 4 (Offences relating to public officers) of the
Criminal Law Consolidation Act 1935, which includes the following
(i) bribery or corruption
of public officers;
(ii) threats or reprisals
against public officers;
(iii) abuse of public
(iv) demanding or requiring
benefit on basis of public office;
(v) offences relating to
appointment to public office; or
offence against the Public Sector (Honesty and Accountability) Act 1995
or the Public Corporations Act 1993, or an attempt to commit such an
offence against the Lobbyists Act 2015, or an attempt to commit such an
other offence (including an offence against Part 5 (Offences of dishonesty) of
the Criminal Law Consolidation Act 1935) committed by a public officer
while acting in his or her capacity as a public officer or by a former public
officer and related to his or her former capacity as a public officer, or by a
person before becoming a public officer and related to his or her capacity as a
public officer, or an attempt to commit such an offence; or
of the following in relation to an offence referred to in a preceding
abetting, counselling or procuring the commission of the offence;
whether by threats or promises or otherwise, the commission of the offence;
in any way, directly or indirectly, knowingly concerned in, or party to, the
commission of the offence;
(iv) conspiring with others to effect the commission of
The ICAC Act (SA) therefore defines 'corruption in public
administration' by referring to a range of criminal offences defined under
other acts. Commissioner Lander emphasised this point, stating that:
'Corruption in South Australia must be a criminal offence. So what I am
investigating at any given time is a criminal offence.'
Although it restricts the definition of corrupt conduct in public
administration to the commission of or involvement in various criminal
offences, the ICAC Act (SA) also defines two further categories of
behaviour—'misconduct in public administration' and 'maladministration in
public administration'. These two categories deal with contraventions of a code
of conduct or other misconduct by public officers, and conduct of public
officers or authorities resulting in irregular and unauthorised use of public
money or substantial mismanagement by public officers.
The commissioner may assist other agencies and public authorities to identify
and deal with these two categories of conduct or investigate such conduct
The ICAC Act (SA) provides a list of those who are to be considered a
'public officer' and therefore fall under the definition of corruption outlined
above. The list includes, among others: the governor, members of both houses of
parliament; members of local governments; judicial officers; police officers;
and public service employees.
There is currently no provision for the SA ICAC to investigate people or
organisations that are not public officers or authorities but who may be in
receipt of public funds. Commissioner Lander stated that he believed this
situation to be a mistake:
In South Australia the jurisdiction is confined to public
authorities and public officers. That sometimes means that persons or
organisations that are funded by the state are not subject to the scrutiny of
the commissioner. I think that is a mistake. I think organisations that are
provided with public funds ought to be the subject of an investigation if in
fact they or their officers engage in corruption.
The SA ICAC is provided with a range of powers that it may use to
investigate matters raised in complaints from members of the public or reports
from public officers. It is also open to the commissioner to assess and
investigate any other matter identified while acting on his or her own
initiative, or in the course of the commissioner and the office performing
functions under the Act.
The commissioner is empowered to issue a warrant, either at his or her
own initiative or on application by an investigator, to enter and search a
place or vehicle used by 'an inquiry agency, public authority or public officer'.
A warrant to enter and search other places and vehicles may be granted by a
Supreme Court judge.
With respect to covert operations, the commissioner is empowered under
the Criminal Investigation (Covert Operations) Act 2009 (SA) to grant
approval for investigators to conduct undercover operations, to acquire and use
assumed identities, and protect the identity of witnesses. In each case, the
commissioner must consider a number of criteria before granting an approval.
In the case of listening devices, the commissioner is required by the Listening
and Surveillance Devices Act 1972 (SA) to issue a written approval stating
that a 'warrant is reasonably required for an investigation' before an
application for a warrant can be put before a judge of the Supreme Court.
The commissioner is able to conduct examinations and is able to summon
witnesses to attend and to give evidence. The commissioner may also require the
production of documents or other things.
Unlike other state integrity commissions, the SA ICAC is required to
hold all of its examinations relating to corruption in public administration in
private. While stating that the commissioner is to perform his or her functions
in a manner that is as 'open and accountable as is practicable', the ICAC Act
(SA) requires that all 'examinations relating to corruption in public
administration must be conducted in private'.
Commissioner Lander explained that he viewed this restriction as
justifiable, given that the definition of corruption with which he operates is
restricted to criminal offences:
It seems to me that if I am investigating criminal conduct it
ought to be done in private. Police organisations and law enforcement agencies
investigate criminal conduct in private. And, for that reason, I support private
hearings. The examinations that are conducted pursuant to an investigation are
a means of obtaining further evidence. If at the end of the investigation there
is no evidence or insufficient evidence to support a prosecution, it would seem
to me that a person who has been examined in public, if that be the case, would
suffer reputational harm from which that person might not recover.
The commissioner further emphasised that his role is not to make findings
as to whether certain conduct amounts to corruption, but rather to investigate
the facts of a case and, where appropriate, refer the resulting evidence to the
Director of Public Prosecutions:
My function in relation to complaints of corruption is purely
investigative. I do not make any decision as to whether any particular conduct
amounts to corruption. My principle function is to obtain evidence for the
purpose of providing that evidence to the Director of Public Prosecutions in
South Australia, for him to determine whether a prosecution should follow. My
agency, therefore, is dissimilar to the Independent Commission Against
Commission in New South Wales, which is empowered to make decisions as to
whether a person has engaged in corrupt conduct.
The commissioner agreed that it is possible that the use of public
hearings by integrity commissions can act as a means of eliciting further
information relevant to an investigation. However, he stated that, in cases
where it might be necessary to appeal to the public for information, the ICAC
Act (SA) allows him to make public statements and he would do so if he thought
Transparency International Australia (TIA) criticised the requirement
that examinations must be conducted in private, stating:
The danger of driving investigations underground and
conducting the investigations entirely in secrecy is obvious. The South
Australian legislation does this, and has been quite roundly criticised even by
the South Australian Commission itself.
Commissioner Lander has previously argued that the requirement that all
examinations take place in private should be overturned in the case of
misconduct and maladministration matters, while remaining in place for
A further power possessed by the SA ICAC is the ability to 'exercise the
powers of an inquiry agency' when investigating potential serious or systemic
misconduct or maladministration matters. The ICAC Act (SA) defines an 'inquiry
agency' as the Ombudsman, the Police Ombudsman or a person declared by
regulation to be an inquiry agency.
The commissioner must be satisfied that it is in the public interest to
exercise the powers of an inquiry agency.
The commissioner's powers to report to parliament on the findings of
examinations and investigations are uniquely restricted in comparison to
integrity commissions in other states. The situation was summarised by Gilbert
Across Australia, South Australia is unique in not allowing
the ICAC to make reports to Parliament on specific investigations. Under ss 40,
41 and 42 of the Independent Commissioner Against Corruption Act 2012
(SA), the Commissioner may report to Parliament on its more general review and
recommendation powers, for example, its evaluation of practices, policies and
procedures of government agencies, and recommendations it has made that
government agencies change or review practices, policies or procedures. But
under s 42(b), a report must not identify or be about a particular matter that
was the subject of an assessment, investigation or referral under the Act.
Commissioner Lander described this restriction in his 2014–15 annual
report and noted that it conflicted with his obligations to report to
parliament on recommendations made to an inquiry agency or public authority as
a result of an investigation and his ability to publish such reports when
exercising the powers of the ombudsman. Commissioner Lander recommended that
the restriction on making reports to parliament about particular matters be
The commissioner reiterated his dissatisfaction with the reporting restrictions
contained in the ICAC Act (SA) in his 2015–16 annual report.
The SA ICAC is required to produce and provide to both houses of
parliament an annual report. The ICAC Act (SA) specifies a range of matters
that must be detailed in such an annual report, including statistics on
complaints, reports, investigations, referrals, evaluations and education
The SA ICAC is subject to the oversight of the Crime and Public
Integrity Policy Committee, which is established under the Parliamentary
Committees Act 1991 (SA) as a six-member joint committee that must include
two representatives each from the government and opposition, with the remaining
two positions not allocated to a specific party.
The committee is required, among other things, to examine the SA ICAC's annual
reports, to examine each report on a review of the SA ICAC conducted under
section 46 of the ICAC Act (SA), and to inquire into and consider the operation
of the SA ICAC and the operation of the ICAC Act (SA) as to its effectiveness
and whether or not it has, to an unreasonable extent, adversely affected
persons not involved in corruption, misconduct or maladministration.
The ICAC Act (SA) requires the attorney-general to appoint a reviewer:
conduct annual reviews examining the operations of the Commissioner and the
Office during each financial year; and
conduct reviews relating to relevant complaints received by the reviewer; and
conduct other reviews at the request of the Attorney-General or the Committee;
perform other functions conferred on the reviewer by the Attorney-General or by
The reviewer must be a person who would also be eligible for appointment
as the commissioner. Their task is to undertake an annual review of the
commissioner's use of powers, the efficiency and effectiveness of the practices
and procedures of the ICAC and the OPI, and whether any operations of the ICAC
and OPI have made any appreciable difference to the prevention or minimisation
of corruption, misconduct and maladministration.
The reviewer's reports are provided to the attorney-general, who must then
provide any such report to the presiding officers of both houses of parliament.
In his 2015–16 review of the operations of the SA ICAC and the OPI, the
reviewer made the following comments with respect to the effectiveness of the
The statistics relating to the Commissioner's role in
investigating alleged corruption appear in his Report. Any assessment of this
role is not to be determined by reference to the number of investigations or
the numbers of charges laid as a result of ICAC investigations. On the other
hand, it is pertinent to have regard to the manner in which those
investigations are conducted and the effect which this has had on revealing
corruption and misconduct which has occurred. The confidentiality provisions in
the Act prevent me from giving details of matters investigated, but I repeat my
confidence in the ability of ICAC to expose corrupt conduct where it exists and
in this respect the organisation is having the effect for which it was created.
There is also ample evidence in the files which I have read
which establishes the extensive attention which is given to instructing other
agencies as to the manner in which to investigate and deal with misconduct and
maladministration and also to rigorously supervise the investigation of the
matters which have been referred to them for investigation.
The commissioner is also required to keep the attorney-general informed
of the 'general conduct of the functions of the Commissioner and the Office',
and to provide information on request to the attorney-general, unless the
commissioner is of the opinion that this would compromise the proper
performance of his functions.
International integrity commission models
Corruption Perception Index
Australia ranks 13th of 176 countries on Transparency
International's 2016 Corruption Perception Index.
At the time of the interim report of the 2016 select committee, Australia also
ranked 13th, but out of 168 countries.
It was noted that:
Of the 12 countries ahead of Australia on the [Transparency
International] table only Singapore has a national anti-corruption body—and of
the top 20 countries only two have [a National Anti-corruption Commission (NAC)]—
highlighting that a NAC is not a panacea to preventing corruption.
The Attorney-General's Department (AGD) in its submission noted that
this ranking 'places Australia on par' with Canada, the United Kingdom,
Germany, Belgium and the United States.
It was also noted that '[o]f the countries ranked higher than Australia in the
2016 CPI, there is only one country (Singapore) with a national anti‑corruption
However, the Accountability Round Table in its 2016 submission to the
committee did not look at Australia's ranking favourably:
In 2012, Australia was rated seventh on the International
Corruption Index maintained by Transparency International. In the ensuing
years, Australia has dropped six places to 13th, and it can safely be predicted
that recent developments will be followed by a further fall.
The New South Wales Council for Civil Liberties (NSWCCL) also commented
on this slip in ranking in its submission to the committee, stating that 'while
not a dramatic decline [the slip] is a useful warning indicator that all may
not be well'.
The Organisation for Economic Co-operation and Development (OECD) stated
in 2013 that:
While most transition and developing countries have one or
many specialised anti-corruption bodies, only few have proven to be successful,
but so far, the success of Hong Kong or Singapore has not been repeated
In discussing various patterns and models of anti-corruption
institutions worldwide, which were 'difficult to identify', the OECD noted
...views in the international anti-corruption literature vary
as to whether it is better to establish a single anti-corruption agency or
rather direct efforts at strengthening those institutions existing in a country
that form already part of the integrity infrastructure, such as the supreme
audit institutions, the tax administrations, traditional law enforcement
authorities, the internal control departments in various state agencies, etc.
It is often argued that wider sector reforms, such as public administration or
judiciary reforms, if done well, will strengthen a country’s anti-corruption
capacity more than the establishment of a single institution that may fail to
meet the necessary prerequisites to live up to its mandate.
The OECD discussed the following models:
multi-purpose corruption agencies—a single-agency approach based
on three key pillars: investigation, prevention and public outreach and
education—as in Hong Kong and Singapore;
law enforcement, which 'takes different forms of specialisation,
and can be implemented in detection, investigation and prosecution bodies'.
Examples include Norway, Belgium and Spain; and
preventative institutions, which are the broadest model, but can
be broken down into anti-corruption coordinating councils, as in Ukraine and
Russia; dedicated corruption prevention bodies, as in Slovenia and France; and
public institutions not explicitly referred to as 'anti‑corruption
Evidence to the committee
The committee received little evidence that examined other countries'
models of a national integrity commission (NIC) in great detail. Those that did
discuss agencies in other countries focused mainly on the International
Commission Against Corruption (ICAC) in Hong Kong.
For example, in his submission, Mr Chesney O’Donnell stated that the 'HK
ICAC may not be an appropriate comparison when establishing whether or not the
NIC should possess prosecutorial powers', due to the 'socio-economic histrionics
which influenced the HK ICAC’s formation in the first place'.
Mr O'Donnell elaborated:
The HK ICAC was established in 1974 amidst an atmosphere of
systemic corruption within the police force whereby money was extorted by
constables on the streets which would then be syphoned up through the ranks and
to the highest levels of the agency. Historically going back to the colony’s
creation in 1842 a culture of extortion and the payment of illicit fees to
government officials had existed and thrived. The British colonial policy was
to not disturb such ‘Chinese customary practices’ unless it directly affected
the colonial law enforcement agencies and became an epidemic. Prior to HK
ICAC’s establishment the Anti-Corruption Branch of the Police was given the authority
to investigate. This was problematic since the catalyst for the creation of the
HK ICAC was in fact police corruption and not necessarily politicians.
The eventual creation of the HK ICAC came to fruition when
the Chief Superintendent in the Hong Kong Police Force Peter Godber was issued
with a notice under s10 of the [Prevention of Bribery Ordinance] concerning the
possession of unexplained property and the existence of disproportionate assets
when compared with his official income. Godber first fled to Britain only to be
extradited back to Hong Kong in January 1975 to face trial in Hong Kong and
eventually served four years in jail. In the four months from October 1973 to
February 1974 Hong Kong citizens saw the creation of the HK ICAC without a single
dissenting voice in their Legislative Council. It was an independent body whose
Commissioner reported directly to the Hong Kong Governor.
Mr O'Donnell concluded that:
...the HK [ICAC] is not a suitable comparison to use for the
creation of a Commonwealth NIC. Australia has had a history of inquiries
concerning police misconduct in the past and has established agencies like the
NSW Special Crime and Internal Affairs to deal with it.
Indeed, Professor Charles Sampford, commenting on the development of the
Qld CCC stated:
By the late 1980s, the most favoured institutional model for
responding to corruption was that attempted in Hong Kong. This involved a
single, very powerful, anti-corruption agency along the lines of the Hong Kong
[ICAC] enforcing very strong anti-corruption law. This was the model followed
by the Premier of New South Wales in 1988. However, following a ground breaking
Inquiry into corruption in Queensland, the Inquiry’s head, Hon Tony
Fitzgerald AC QC, recommended a much more extensive, intensive and systematic
approach to reform.
In recommending a national integrity commission, the NSWCCL noted that:
The current Australian context is not open to consideration
of a comprehensive anti-corruption body encompassing all sectors along the lines
of the Hong Kong agency - although there are merits in such a comprehensive
In providing his opinion about international models, Mr Michael Callan
While the Hong Kong ICAC and the Singaporean Corrupt
Practices Investigation Bureau (CPIB) are powerful organizations with the
ability to arrest and charge corrupt individuals, in the main their
establishment was due to corruption in the police force (OECD 2013). In the
Australian context there is the Australian Commission for Law Enforcement
Integrity which fulfills [sic] the function of police oversight.
Mr O'Donnell also examined the situation in the United Kingdom, where
the Parliamentary Standards Commissioner at the House of Commons—who 'investigates
alleged breaches of the Rules of Conduct as set out in Part V53 of the House
of Commons Code of Conduct'—'remains a useful guide as to how the NIC can
be assisted and what troubles it may face in the future if created'.
In relation to electoral integrity, Australia's Electoral Commissioner,
Mr Tom Rogers, informed the committee about the rating Australia
received from the Electoral Integrity Project, which in partnership with
Harvard University and Sydney University, produces an annual global survey on
In May 2017, the perceptions of electoral integrity
experts—they have about 3,000 of these worldwide experts that look at
it—evaluated Australia's 2016 federal election as having, in their words, 'very
high integrity'. There is a great report there that indicates where countries
sit on that scale, with a whole range of dimensions. We always do very well
compared to our peer agencies.
Despite this, Mr Rogers noted that '[t]here are always issues', stating
There has been a general decline in those democracies for
people's trust in democracy over many years. The AEC's rating has still gone
down with everybody else's, but has remained relatively buoyant. More
Australians than not believe in and trust in the outcome of elections. Without
going too far down that path, there are, however, a minority of Australians
that believe that fraud does occur during Australian elections. We were aware
of that in any case.
The preceding survey of state integrity commissions demonstrates that,
beneath their common aims of exposing and preventing corruption in their
respective public sectors, there is considerable diversity in the institutional
designs adopted by each state. As Professor A.J. Brown, Professor of Public
Policy and Law at Griffith University, has stated:
...there is no ‘one size fits all’ among Australia’s multiple
anti-corruption bodies. While there are similarities in objectives, there are
also fundamental differences in the powers, structures and accountabilities of
each and every agency, right down to variations in statutory definitions of
Such diversity is attributable to the varying contexts in which each
agency was established. The oldest of the state integrity commissions, the NSW
ICAC, was established in response to a series of corruption scandals involving
senior members of the executive, the judiciary and the police force in New
while the Qld CCC and the WA CCC were both established as recommendations
of royal commissions dealing with serious police corruption in each state. The
remaining commissions are of more recent vintage and have been established in
response to a parliamentary committee inquiry in the case of Tasmania, an
independent review of existing integrity arrangements in Victoria and as a 'pre-emptive'
measure and 'safeguard' against future corruption in South Australia.
It is also notable that state agencies have, in general, not been left
to continue as they were originally established. The three older commissions,
the NSW ICAC, Qld CCC and WA CCC, have each had their enabling legislation significantly
amended at various times, including changes to such fundamental matters as the
number of commissioners appointed, the definition of corruption or misconduct
they are to focus on, the removal or addition of serious and organised crime
functions, the establishment of stronger oversight mechanisms, and alterations
to the types of conduct on which public findings may be made. Of the three newer
commissions, the Tasmanian Integrity Commission and the IBAC have both also been
the subject of significant reforms, and the South Australian Independent
Commissioner Against Corruption has expressed dissatisfaction with some
elements of the South Australian legislation.
The structure and history of these six state agencies provides a wealth
of information as to how different institutional designs have fared in
practice, including areas that have proved either controversial or have limited
the effectiveness of anti-corruption efforts. However, given this diversity and
continuing evolution, the committee considers that there is no clear best‑practice
model that emerges from an examination of these agencies that could simply be
adopted wholesale at a federal level, in the event that a national integrity
commission were to be established. Rather, the committee believes careful consideration
would need to be given to the distinct nature of the federal public sector and the
precise role any national integrity commission is intended to play, before adopting
elements of institutional design from the various state integrity commissions.
Of particular interest to the committee is the enhanced oversight of
anti-corruption agencies afforded by such bodies as the: Inspector of the
Independent Commission Against Corruption in New South Wales; the Victorian
Inspectorate; the Parliamentary Crime and Corruption Commissioner in Queensland;
the Reviewer of the Independent Commissioner Against Corruption in South
Australia; and the Parliamentary Inspector of the Corruption and Crime Commission
in Western Australia. These bodies, which possess strong investigative powers
in their own right, appear to substantially strengthen the oversight of the
respective integrity agencies and greatly assist the work of parliamentary oversight
committees. Further discussion of the relevance of this model for the federal
integrity system is contained in the following chapter.
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