Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Wednesday 1 May 2019
Facebook spends more than a decade expressing contrition for its actions and avowing its commitment to people’s privacy – but refuses constructive action
“It is
untenable that organizations are allowed to reject my office’s legal findings
as mere opinions. Facebook should not get to decide what Canadian privacy law
does or does not require.” [Canandian Privacy Commissioner Daniel
Therrien, 25 April 2019]
Facbook Inc. professes that it has taken steps to ensure the intregrity of political discourse on its platform, but rather tellingly will not roll out transparency features in Australia that it has already rolled out in the US, UK, Eu, India, Israel and Ukraine.
The only measure it commits to taking during this federal election campaign is to temporarily ban people outside Australiabuying ads that Facebook determines are “political”.
So it should come as no surprise that Canada issued this three page news release…….
Office of the Privacy Commission of
Canada, news
release, 25 April 2019:
Facebook refuses to
address serious privacy deficiencies despite public apologies for “breach of
trust”
Joint investigation
finds major shortcomings in the social media giant’s privacy practices,
highlighting pressing need for legislative reform to adequately protect the
rights of Canadians
OTTAWA, April 25,
2019 – Facebook committed serious contraventions of Canadian privacy laws
and failed to take responsibility for protecting the personal information of
Canadians, an investigation has found.
Despite its public
acknowledgement of a “major breach of trust” in the Cambridge Analytica
scandal, Facebook disputes the investigation findings of the Privacy
Commissioner of Canada and the Information and Privacy Commissioner for British
Columbia. The company also refuses to implement recommendations to address
deficiencies.
“Facebook’s refusal to
act responsibly is deeply troubling given the vast amount of sensitive personal
information users have entrusted to this company,” says Privacy Commissioner of
Canada Daniel Therrien. “Their privacy framework was empty, and their vague
terms were so elastic that they were not meaningful for privacy protection.
“The stark contradiction
between Facebook’s public promises to mend its ways on privacy and its refusal
to address the serious problems we’ve identified – or even acknowledge that it
broke the law – is extremely concerning.”
“Facebook has spent more
than a decade expressing contrition for its actions and avowing its commitment
to people’s privacy,” B.C. Information and Privacy Commissioner Michael McEvoy
says, “but when it comes to taking concrete actions needed to fix transgressions
they demonstrate disregard.”
Commissioner McEvoy says
Facebook’s actions point to the need for giving provincial and federal privacy
regulators stronger sanctioning power in order to protect the public’s
interests. “The ability to levy meaningful fines would be an important starting
point,” he says.
The findings and
Facebook’s rejection of the report’s recommendations highlight critical
weaknesses within the current Canadian privacy protection framework and
underscore an urgent need for stronger privacy laws, according to both
Commissioners.
“It is untenable that
organizations are allowed to reject my office’s legal findings as mere
opinions,” says Commissioner Therrien.
In addition to the power
to levy financial penalties on companies, both Commissioners say they should
also be given broader authority to inspect the practices of organizations to
independently confirm privacy laws are being respected. This measure would be
in alignment with the powers that exist in the U.K. and several other countries.
Giving the federal
Commissioner order-making powers would also ensure that his findings and
remedial measures are binding on organizations that refuse to comply with the
law.
The complaint that
initiated the investigation followed media reports that Facebook had allowed an
organization to use an app to access users’ personal information and that some
of the data was then shared with other organizations, including Cambridge
Analytica, which was involved in U.S. political campaigns.
The app, at one point
called “This is Your Digital Life,” encouraged users to complete a personality
quiz. It collected information about users who installed the app as well as
their Facebook “friends.” Some 300,000 Facebook users worldwide added the app,
leading to the potential disclosure of the personal information of
approximately 87 million others, including more than 600,000 Canadians.
The investigation
revealed Facebook violated federal and B.C. privacy laws in a number of
respects. The specific deficiencies include:
Unauthorized access
Facebook’s superficial
and ineffective safeguards and consent mechanisms resulted in a third-party
app’s unauthorized access to the information of millions of Facebook users.
Some of that information was subsequently used for political purposes.
Lack of meaningful
consent from “friends of friends”
Facebook failed to
obtain meaningful consent from both the users who installed the app as well as
those users’ “friends,” whose personal information Facebook also disclosed.
No proper oversight over
privacy practices of apps
Facebook did not
exercise proper oversight with respect to the privacy practices of apps on its
platform. It relied on contractual terms with apps to protect against
unauthorized access to user information; however, its approach to monitoring
compliance with those terms was wholly inadequate.
Overall lack of
responsibility for personal information
A basic principle of
privacy laws is that organizations are responsible for the personal information
under their control. Instead, Facebook attempted to shift responsibility for
protecting personal information to the apps on its platform, as well as to
users themselves.
The failures identified
in the investigation are particularly concerning given that a 2009
investigation of Facebook by the federal Commissioner’s office also found
contraventions with respect to seeking overly broad, uninformed consent for
disclosures of personal information to third-party apps, as well as inadequate
monitoring to protect against unauthorized access by those apps.
If Facebook had
implemented the 2009 investigation’s recommendations meaningfully, the risk of
unauthorized access and use of Canadians’ personal information by third party
apps could have been avoided or significantly mitigated.
Facebook’s refusal to
accept the Commissioners’ recommendations means there is a high risk that the
personal information of Canadians could be used in ways that they do not know
or suspect, exposing them to potential harms.
Given the extent and
severity of the issues identified, the Commissioners sought to implement
measures to ensure the company respects its accountability and other privacy
obligations in the future. However, Facebook refused to voluntarily submit to
audits of its privacy policies and practices over the next five years.
The Office of the
Privacy Commissioner of Canada plans to take the matter to Federal Court to
seek an order to force the company to correct its privacy practices.
The Office of the
Information and Privacy Commissioner for B.C. reserves its right under
the Personal Information Protection Act to consider future actions
against Facebook.
Related documents:
* Note: my yellow highlighting
Nor should this alleged 'mistake' made by Facebook cause surprise.......
The
New York Times,
25 April 2019:
SAN FRANCISCO — The New
York State attorney general’s office plans to open an investigation into
Facebook’s unauthorized collection of more than 1.5 million users’ email
address books, according to two people briefed on the matter.
The inquiry concerns a practice
unearthed in April in which Facebook harvested the email contact lists of a
portion of new users who signed up for the network after 2016, according to the
two people, who spoke on condition of anonymity because the inquiry had not
been officially announced.
Those lists were then
used to improve Facebook’s ad-targeting algorithms and other friend connections
across the network.
The investigation was
confirmed late Thursday afternoon by the attorney general’s office.
“Facebook has repeatedly
demonstrated a lack of respect for consumers’ information while at the same
time profiting from mining that data,” said Letitia James, the attorney general
of New York, in a statement. “It is time Facebook is held accountable for how
it handles consumers’ personal information.”…
Users were not notified
that their contact lists were being harvested at the time. Facebook shuttered
the contact list collection mechanism shortly after the issue was discovered by
the press…..
Facebook Inc's rapacious business practices has been the death of online privacy and now threatens the democratic process.
Labels:
data breach,
data mining,
Facebook,
information technology,
Internet,
law,
privacy,
safety
Sunday 10 February 2019
And now for some good news......
David Morris, CEO of EDO NSW: Our argument was based on science, economics and – we argued - the
proper application of the law. The climate contention as a ground for refusing
this mine was innovative; the first time climate change has been addressed this
way in an Australian court using the concept of a carbon budget as its basis.
Like so many great ideas – its strength was its
simplicity. While there was lots of necessary evidence and discussion about the
carbon budget, geopolitical climate policy and Australia’s legal framework for
climate change, ultimately our argument was simple: if you accept
the science, then the local legal framework compels you to refuse the mine
because it’s clearly not in the public interest to increase emissions.
As Professor Steffen said “it’s one atmosphere,
it’s one climate system, it’s one planet - and so we need to start thinking
more carefully about the net effect of wherever coal is burnt, or oil or gas…
The project’s contribution to cumulative climate change impacts means that its
approval would be inequitable for current and future generations”. [EDO NSW, media release, 8 February 2019]
The
Sydney Morning Herald,
8 February 2019:
When Planning
Minister Anthony Roberts intervened a year ago to give a coal miner
the unusual right to challenge its project's refusal in court, neither would
have countenanced Friday's outcome.
Instead of settling the
future of Gloucester Resources' controversial Rocky Hill coal mine near
Gloucester, the NSW Land and Environment Court just cast a cloud over coal mining
in general.
The miner had thought it
was merely challenging the Department of Planning's rejection of the mine's
impact on visual amenity in the bucolic valley around Gloucester.
Instead, the
Environmental Defenders Office, acting for residents opposed to the mine,
grabbed the opportunity to join the appeal.
In what EDO chief David
Morris describes as a "delicious irony", the court got to hear about
the project's detrimental impact on climate change and the town's social fabric
- despite Gloucester Resources arguing such intervention would be a
"sideshow and a distraction".
Future generations will
wonder why it took so long for any court in the land to hear such evidence when
considering a coal mine project.
But Justice Brian
Preston didn't just allow the EDO to provide expert evidence of the role
greenhouse gas emissions play in driving climate change. He also accepted it as
part of the critical reasons to reject the mine. "The decision forms part
of what
is a growing trend around the world on using litigation to fight
climate change," Martijn Wilder, a prominent climate lawyer from
Baker & McKenzie, says. "While early on some of this litigation was
not successful, increasingly it is."
Gloucester
Resources Limited v Minister for Planning [2019] NSWLEC 7, 8 February 2019 judgment here.
Labels:
Berejiklian Government,
climate change,
coal,
court,
law,
mining,
New South Wales
Thursday 31 January 2019
Australian High Court rejects NSW Berejiklian Government's 2018 electoral funding reforms
In May 2018
the NSW Berejiklian Government announced plans to cap election-related spending by unions, environmental
groups, and churches at a maximum of $500,000.
The Electoral Funding
Act 2018 No 20 came into force on 1 July 2018.
In December
2018 five unions joined
Unions NSW in challenging these laws in the High Court of Australia.
Australian
Financial Review,
29 January 2019:
In July 2018, the
Berejiklian Government reduced the amount that unions and other third parties
could spend in the six months before an election from $1.05 million to
$500,000. A political party and it candidates, however, can spend up to $22.6
million if it stands candidates in all 93 seats.
The High Court said NSW
proved that aiming to "prevent the drowning out of voices in the political
process by the distorting influence of money" was a legitimate purpose.
However, it said
"the reduction in the cap applicable to third-party campaigners was not
demonstrated to be reasonably necessary to achieve that purpose".
The court did not accept
NSW's argument that $500,000 was still a substantial sum that would allow third
parties to "reasonably present their case".
The lead judgement of
Chief Justice Susan Kiefel and Justices Virginia Bell and Patrick Keane said
"no enquiry as to what in fact is necessary to enable third-party
campaigners reasonably to communicate their messages appears to have been
undertaken".
The reforms also sought
to ban third parties from acting "in concert" by pooling money into
multi-million-dollar campaigns, such as the "Stop the Sell-off"
campaign against energy privatisation for the 2015 poll. Those who breach the
act would have faced up to 10 years' jail.
Former Commonwealth
solicitor-general Justin Gleeson SC was lead counsel for Unions NSW and the
five unions which also signed up for the challenge.
BACKGROUND
HIGH COURT OF
AUSTRALIA, Judgment
Summary, 18 December 2018:
UNIONS NSW & ORS v
STATE OF NEW SOUTH WALES [2013] HCA 58
Today the High Court
unanimously held that ss 96D and 95G(6) of the Election Funding, Expenditure
and Disclosures Act 1981 (NSW) ("the EFED Act") are invalid because
they impermissibly burden the implied freedom of communication on governmental
and political matters, contrary to the Commonwealth Constitution.
Section 96D of the EFED
Act prohibits the making of a political donation to a political party, elected
member, group, candidate or third-party campaigner, unless the donor is an
individual enrolled on the electoral roll for State, federal or local
government elections. The EFED Act also caps the total expenditure that
political parties, candidates and third-party campaigners can incur for
political advertising and related election material. For the purposes of this
cap, s 95G(6) of the EFED Act aggregates the amount spent on electoral
communication by a political party and by any affiliated organisation of that
party. An "affiliated organisation" of a party is defined as a body
or organisation "that is authorised under the rules of that party to
appoint delegates to the governing body of that party or to participate in
pre-selection of candidates for that party (or both)".
Each of the plaintiffs
intends to make political donations to the Australian Labor Party, the
Australian Labor Party (NSW Branch) or other entities, and to incur electoral
communication expenditure within the meaning of the EFED Act. The second, third
and sixth plaintiffs are authorised to appoint delegates to the annual
conference of the Australian Labor Party (NSW Branch) and to participate in the
pre-selection of that party's candidates for State elections. A special case
stated questions of law for determination by the High Court.
The High Court
unanimously held that ss 96D and 95G(6) burdened the implied freedom of
communication on governmental and political matters. The Court held that
political communication at a State level may have a federal dimension. The
Court accepted that the EFED Act had general anti-corruption purposes. However,
the Court held that the impugned provisions were not connected to those
purposes or any other legitimate end.
·
This statement is not intended to be a substitute for the reasons of the High
Court or to be used in any later consideration of the Court’s reasons
Tuesday 29 January 2019
Wangan and Jagalingou people's fight against foreign mining giant Adani continues into 2019
ABC
News, 25
January 2019:
The United Nations has
asked the Australian Government to consider suspending the Adani project in
central Queensland until it gains the support of a group of traditional owners
who are fighting the miner in court.
A UN committee raised
concerns that the Queensland coal project may violate Indigenous rights under
an international convention against racial discrimination if it goes ahead,
giving Australia until April to formally respond.
Meanwhile, a public
interest legal fund backed by former corruption fighter Tony Fitzgerald has
stepped in with financial backing for a federal court challenge to Adani by its
opponents within the Wangan and Jagalingou (W&J) people.
The Grata Fund, which
boasts the former federal court judge as a patron, agreed to pay a
court-ordered $50,000 bond so W&J representatives can appeal a court ruling
upholding a contentious land access deal secured by the miner.
The UN Committee on the
Elimination of Racial Discrimination last month wrote to Australia's UN
ambassador to raise concerns that consultation on Adani's Indigenous Land Use
Agreement (ILUA) "might not have been conducted in good faith".
These allegations
"notably" included that members of the W&J native title claim
group were excluded, and the committee was concerned the project "does not
enjoy free, prior and informed consent of all (W&J) representatives"….
UN committee chair
Noureddine Amir in a letter told Australia's UN ambassador Sally Mansfield the
committee was concerned ILUAs could lead to the "extinction of Indigenous
peoples' land titles" in Australia.
Mr Amir said it was
"particularly concerned" by 2017 changes to native title laws to
recognise ILUAs not signed by all native title claimants, "which appears
to be in contradiction" with an earlier landmark Federal Court ruling.
"Accordingly, the
committee is concerned that, if the above allegations are corroborated, the
realisation of the Carmichael Coal Mine and Rail Project would infringe the
rights of the Wangan and Jagalingou people, rights that are protected under the
International Convention on the Elimination of All Forms of Racial
Discrimination," Mr Amir said.
The committee gave
Australia until April 8 to outline steps taken to ensure proper consent
"in accordance with Indigenous peoples' own decision-making
mechanisms".
It asked Australia to
"consider suspending" the Adani project until consent was given by
"all Indigenous peoples, including the Wangan and Jagalingou family
council".
It invited Australia to
seek expert advice from the UN experts on Indigenous rights and to
"facilitate dialogue" between the W&J and Adani.
Labels:
Adani Group,
court,
human rights,
law,
mining,
Native Title,
United Nations
Friday 4 January 2019
Australian Home Affairs Minister Peter Dutton demonstrates his incompetence yet again
During the
less than one term he served as Australian prime minister Liberal MP for Warringah
Tony Abbott rushed through amendments
to the Australian Citizenship Act 2007
in 2015.
Given that
the Minister for Home Affairs and Liberal MP for Dickson Peter Dutton has used these amendments to strip
Australian citizenship from twelve individuals, the most recent being the revocation of citizenship of a Melbourne-born man currently gaoled in Turkey which
now leaves him stateless1 and, as
the minister has referenced the Citizenship Loss Board in his decision making
perhaps it is time to recall the sketchy details known about this board.
The
Guardian, 22
July 2018:
The identity of
officials on one of the most powerful government boards in Australia – which
has the effective power to strip Australians of citizenship – has been revealed
for the first time.
A
freedom of information request by Guardian Australia for minutes of
the Citizenship Loss Board’s first meeting in February shows the panel is made
up of senior departmental secretaries from across government. The secretariat
of the committee is Hamish Hansford, an assistant secretary of the immigration
department.
He previously served as the national manager of the intelligence
branch of the Australian Crime Commission.
The department of the
prime minister’s counter-terrorism co-ordinator, Greg Moriarty, is also on the
board, as are Gary Quinlan, from the Department of Foreign Affairs and Trade,
Katherine Jones, from the Attorney-General’s Department, and Christopher Dawson
from the Australian Crime Commission.
The immigration
department has by far has the largest number of representatives with five
officers: Rachel Noble, Michael Manthorpe, Maria Fernandez, Michael Outram and
Pip De Veau.
The Australian federal
police and defence department’s members are unknown. Both declined to
participate in the February meeting for undisclosed reasons.
The Australian Security
Intelligence Service (Asis) and Australian Security Intelligence Organisation
(Asio) each have a member. Neither officer is named, listed only as a
“representative”.
The Citizenship Loss
Board has the de facto power
to strip dual nationals of their citizenship under the federal
government’s legislation introduced last year.
Although the law was
touted as an anti-terrorism tool, it left open the possibility that people
who damaged
commonwealth property or even national
security whistleblowers could have their citizenship revoked. Legal
experts have argued it could create a tier of second-class citizenship.
Although the Citizenship
Loss Board appears to be the effective arbiter of this exceptional power, there
is no reference to it in the legislation. None of its members are
parliamentarians or members of the judiciary. It operates in a legal vacuum.
Its recommendations go to the immigration minister with no clear legal mandate.
In theory the board does
not have the express power to revoke citizenship. The laws were built to
withstand judicial scrutiny, describing the key mechanism to remove citizenship
as one of “revocation by conduct” – the argument is that if the law is
“self-executing” this could head off judicial review.
The board’s official
role is to consider cases where an individual’s behaviour meets the criteria to
have citizenship revoked under the law.
This mechanism has been
described by University of New South Wales dean of law George Williams as a
“legal fiction”. He has previously
outlined concerns about the board and the basis for its power. [my yellow highlighting]
Footnote
1. Eligibility requirements for Fijian citizenship which this individual does not currently meet.
http://www.immigration.gov.fj/travel-requirements/fiji-citizenship, retrieved 3 January 2018:
Citizenship by
registration covers six categories of individuals:
The first category
covers children born outside the Fiji islands on or after 10th April 2009 if at
the date of the child’s birth either of the child's parents was a citizen –
section 8(1) of the Citizenship of Fiji Decree 2009.
The second category
covers children under 18 years of age of a foreign nationality that are adopted
by Fiji Citizens – section 8 (2) of the Citizenship of Fiji Decree 2009.
The third category
covers children who were under the age of 18 when either parent became a Fiji
citizen – Section 8(3) of the Citizenship Decree 2009.
The fourth category
covers persons who would have qualified under the previous three categories but
they have reached the age of 18 years. These applicants cannot be granted
citizenship unless they have been lawfully present in Fiji for a total of three
(3) of the five (5) years immediately before the application – Section 8(5) of
the Citizenship of Fiji Decree 2009.
The fifth category
provides for former adult Fiji citizens who wish to regain their Fiji
citizenship. With the introduction of the multiple citizenship policy former
citizens wishing to regain their Fiji citizenship need NOT renounce their other
citizenship – Section 8(6) of the Citizenship of Fiji Decree 2009.
The sixth category
provides for spouses of Fiji citizens. Applicants must have been lawfully
present in Fiji for a total period of three of the five years immediately
before the application – Section 8(7) of the Citizenship of Fiji Decree 2009.
(refer to below checklist for fees and other requirement).
Fijian Government position:
Fijian Government position:
"Neil Prakash has
not been or is a Fijian citizen. For a child of a Fiji
citizen born overseas, the parent has to apply for citizenship for the child to
become a Fiji citizen. The department has searched the immigration system and
confirms that he has not entered the country nor applied for citizenship since
birth." [Head
of Fiji's Immigration Department, Nemani
Vuniwaqa, quoted in ABC
News, 2 January 2018]
Labels:
#MorrisonGovernmentFAIL,
anti-terrorism,
law
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.
The new Commonwealth Integrity Commission is expected to have an annual budget of around $30 million. A sum which reflects its toothless status.
BACKGROUND
Commonwealth
Integrity Commission — proposed reforms, December 2018, excerpts:
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….
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.......
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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