Tuesday, 18 December 2018

Scott Morrison's secretive new public sector corruption division with no teeth - not even a set of badly fitting dentures


Alan Moir Cartoon

A federal statutory body, the Australian Commission for Law Enforcement Integrity (ACLEI) has been in existence since December 2006 and is headed by the Integrity Commissioner. The current Integrity Commissioner is Michael Griffin AM.

There is also a Parliamentary Joint Committee on the ACLEI.

The Morrison plan for a new Commonwealth Integrity Commission (CIC) intends to retain the ACLEI as one of two divisions within the CIC and expand the number of government agencies within this first division’s jurisdiction from twelve (12) to sixteen (16) – otherwise it is business as usual for the multi-agency ACLEI.

At the same time the Morrison Government intends the over-arching CIC to have a second division – the Public Sector Division - without the full powers of statutory anti-corruption commissions.

It is this division which will be charged with investigating corruption allegations based on interactions of sitting members of federal parliament and departmental staff with corporations, lobby groups and private individuals.

Members of the public will have no right to lay complaints or concerns before the Deputy-Commissioner who will head this second division. Only departmental heads and the Australian Federal Police appear to have the right to refer a matter to the Public Sector Division.

The division will not hold public hearings or publish the results of any secret hearings. There will be no transparency in its processes.

This second division represents business as usual for federal parliamentarians, as the government of the day will be able to keep even the most egregious matters under its adjudication by asserting the matter should be classified as a straightforward Code of Conduct breach or a simple matter of non-compliance.

The new Commonwealth Integrity Commission is expected to have an annual budget of around $30 million. A sum which reflects its toothless status.

BACKGROUND


The Australian Government proposes to establish a Commonwealth Integrity Commission (CIC) to detect, deter and investigate suspected corruption and to work with agencies to build their resilience to corruption and their capability to deal with corrupt misconduct. The CIC will consist of a ‘law enforcement integrity division’ incorporating the existing structure, jurisdiction and powers of ACLEI and a new ‘public sector integrity division’. Both the law enforcement and public sector divisions of the CIC will be headed by separate deputy commissioners, who will each report to a new Commonwealth Integrity Commissioner. The two divisions will have different jurisdictional coverage, powers and functions, tailored to the nature of the entities within their jurisdiction. The law enforcement division will retain the powers and functions of ACLEI, but with an expanded jurisdiction to cover several further agencies that exercise the most significant coercive powers and therefore present a more significant corruption risk. The public sector division will cover the remaining public sector. As such, its powers and functions will be different to those of the law enforcement division and will be appropriately tailored.

Jurisdiction 

Law enforcement division
The law enforcement division will have jurisdiction over those agencies already within ACLEI’s remit, being:

• the Australian Criminal Intelligence Commission
• the AFP • the Australian Transaction Reports and Analysis Centre (AUSTRAC)
• the Department of Home Affairs, and
• prescribed aspects of the Department of Agriculture and Water Resources (DAWR).
 Its jurisdiction will also be expanded to cover additional public sector agencies with law enforcement functions and access to sensitive information, such as the:
• Australian Competition and Consumer Commission (ACCC)
• Australian Prudential Regulation Authority (APRA)
• Australian Securities and Investments Commission (ASIC), and
• Australian Taxation Office (ATO)……

Public sector division

The public sector division of the CIC will have jurisdiction over:

• public service departments and agencies, parliamentary departments, statutory agencies, Commonwealth companies and Commonwealth corporations
• Commonwealth service providers and any subcontractors they engage, and
• parliamentarians and their staff.

By extending the jurisdiction of the public sector division of the CIC to service providers and contractors, the CIC will have the capacity to oversee the integrity of entities which expend or receive significant amounts of Commonwealth funding where there is evidence of corrupt conduct that meets the relevant criminal threshold proposed. The CIC will also be able to investigate members of the public or other private entities that receive or deal with Commonwealth funds (and might not otherwise be within jurisdiction), to the extent that their suspected corrupt conduct intersects with a public official’s suspected corrupt conduct….

The public sector division of the CIC will be responsible for investigating ‘corrupt conduct’ where the commissioner has a reasonable suspicion that the conduct in question constitutes a criminal offence. Notably, the public sector division will investigate conduct capable of constituting a nominated range of specific new and existing criminal offences that will constitute corrupt conduct in the public sector.
 ‘Corrupt conduct’ will include abuse of public office, misuse of official information and non-impartial exercise of official functions. A range of consolidated and new public sector corruption offences will be included in the Criminal Code Act 1995 (the Criminal Code). The information below under the heading ‘Amendments to the Criminal Code’ outlines a preliminary summary of ways in which amendments might be made to relevant legislative offences that will collectively form the jurisdictional basis for the CIC. 

It is intended that the public sector division will focus on the investigation of serious or systemic corrupt conduct, rather than looking into issues of misconduct or non-compliance under various codes of conduct. Misconduct that is not defined as a criminal offence at Commonwealth law is considered more appropriately dealt with by the entities where the misconduct occurs: public sector agencies for public servants; Houses of Parliament for parliamentarians; the Prime Minister for Ministers; the Special Minister of State for ministerial staff….

Powers

Law enforcement division

The law enforcement division of the CIC will have access to the coercive and investigative powers that ACLEI currently does—these are necessary because the agencies within jurisdiction themselves have access to significant coercive powers and in many cases, sensitive intelligence, personal or other information. The consequences of corruption in circumstances where public officials have access to law enforcement or other coercive powers is generally more significant than for public officials without access to such powers. Those with access to coercive powers and knowledge of law enforcement methods are better able to disguise corruption and corrupt conduct can have a greater impact (for example, where millions of dollars of illicit drugs are permitted to enter the Australian economy). 8 The law enforcement division will have the power to:

• compel the production of documents
• question people
• hold public and private hearings
• arrest
• enter/search premises
• seize evidence
• undertake controlled operations and assumed identities, and
• undertake integrity testing.

Public sector division

The powers available to the public sector division reflect the different nature of the corruption risk in the areas it will oversight. The public sector division of the CIC will have the power to:

• compel the production of documents
• question people
• hold private hearings, and
• enter/search premises.

It will not be able to:

• exercise arrest warrants
• hold public hearings, or
• make findings of corruption, criminal conduct or misconduct at large.

The extent to which the CIC public sector integrity division will have the ability to access telecommunications and surveillance device powers will be part of the consultation process on the proposed model. The law enforcement integrity division will retain all powers that ACLEI currently holds......

Referrals about parliamentarians and their staff 

The public sector division could receive a referral regarding a parliamentarian or their staff that met the CIC’s threshold for investigation from the IPEA, the AEC, the AFP or other integrity agencies. For example, if the IPEA observed potentially corrupt conduct that it reasonably suspected was capable of constituting a criminal offence, it could refer that activity to the CIC for investigation. 

The public sector division of the CIC will also be able to investigate parliamentarians or their staff where an existing CIC investigation into suspected corruption within a different part of the public sector revealed evidence that will meet the investigation threshold. For example, if the CIC was investigating suspected criminal corrupt conduct within a procurement process involving a department, and through that investigation it found evidence suggesting corrupt activity by any Member of Parliament or member of the executive government which it reasonably expected met the relevant criminal threshold, the CIC could initiate an investigation into that matter. 

The CIC will not investigate direct complaints about Ministers, Members of Parliament or their staff received from the public at large.......

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