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.......
