Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
LAW ENFORCEMENT INTEGRITY COMMISSIONER BILL 2006
REVISED EXPLANATORY MEMORANDUM
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
OUTLINE
The Law Enforcement Integrity Commissioner Bill 2006 (the Bill) establishes an
Integrity Commissioner who will head up the Australian Commission for Law
Enforcement Integrity (ACLEI), an independent body with powers to prevent, detect and
investigate corruption within Australian Government law enforcement agencies,
including the Australian Federal Police (AFP), the Australian Crime Commission (ACC)
and any other Commonwealth agency that has a law enforcement function and is
prescribed by the Regulations.
The main purpose of the Bill is to enhance the integrity of Commonwealth law
enforcement agencies. The Bill will provide a framework for investigating and dealing
with allegations of corruption within Commonwealth law enforcement agencies. The
Integrity Commissioner may refer or recommend that criminal, civil and/or confiscation
proceedings be brought for contraventions of Commonwealth laws by members and staff
members of law enforcement agencies.
The Integrity Commissioner will investigate corruption issues using a combination of
inquiry and investigative powers, assembling evidence to support prosecutions. The
Integrity Commissioner will also have powers to make recommendations for disciplinary
and/or employment action.
The Bill provides a means for detecting and investigating corruption in the
Commonwealth law enforcement agencies, solely because of the role these agencies have
in law enforcement, not in any way because of a view that these agencies are of any
greater risk of corrupt behaviour.
The Bill provides for the appointment of an Integrity Commissioner and prescribes his or
her functions and powers in investigating corrupt conduct and corruption issues within
the Australian Government law enforcement agencies. The Integrity Commissioner may
initiate his or her own investigations, or the Minister, the head of an agency or any person
may refer any information about a corruption issue directly to the Integrity
Commissioner.
The Integrity Commissioner will have jurisdiction to investigate allegations of corruption
made against, or relating to, State and Territory law enforcement officers who are
seconded to a Commonwealth Government agency. The ACLEI and the States will share
the oversight of State and Territory officers. The Bill will not impact on the role of the
State and Territory integrity agencies but will preserve their existing powers and
functions. The Bill also creates a Parliamentary Joint Committee to oversee the operation
of the ACLEI, to ensure that the Integrity Commissioner is accountable to Parliament.
The Integrity Commissioner will be a statutory office holder appointed by the Governor-
General. He or she will be responsible for the investigation and reporting of corruption
matters or alternatively, referring certain matters to another agency for investigation. The
Integrity Commissioner will then manage, oversee or review the investigation where
appropriate. Further, the Bill will provide for information sharing between agencies to
ensure effective and efficient investigations.
The Attorney-General is authorised under the Bill to prevent the disclosure of
information which would be contrary to public or national interest. The Attorney-
General may issue a certificate prohibiting the disclosure of specific information by
specific methods. A certificate may also impact on information sharing between agencies,
and the mandatory reporting provisions.
The Integrity Commissioner is given discretion to choose a particular method of dealing
with each corruption issue based on the most suitable approach to each individual matter,
subject to the Minister's power to order a public inquiry. The Bill provides the Integrity
Commissioner with powers to conduct a Royal Commission style investigation. Many
provisions of the Bill mirror the provisions contained in the Royal Commissions Act 1902
and the Australian Crime Commission Act 2002. The Integrity Commissioner may
conduct public or private hearings to determine the nature and extent of a corruption
issue.
The Bill requires the Integrity Commissioner to inform the Minister, the head of the
agency concerned, the complainant and, where appropriate, the subject of the
investigation of the initiation, progress and outcomes of the investigation. The Integrity
Commissioner is required to report all findings at the conclusion of an investigation,
subject to provisions contained in the Bill ensuring the confidentiality of protected
information. The Integrity Commissioner may also report to the Prime Minister and
Parliament if he or she believes that there is a failure by the head of an agency to take
adequate remedial action.
The Integrity Commissioner will manage ACLEI, which will have the function of
assisting the Integrity Commissioner in performing his or her functions. ACLEI staff will
provide investigative, intelligence and administrative support to the Integrity
Commissioner. For the purpose of corruption investigations ACLEI Authorised Officers
will have the same powers of arrest as a constable of police and will be able to apply for
and execute search warrants. The ACLEI will also draw on staff and technical resources
of existing law enforcement agencies for assistance where necessary.
The Bill provides the Integrity Commissioner with the power to compel the giving of
sworn testimony, overriding the privilege against self-incrimination. These are supported
by criminal offences for conduct in the nature of contempt. Further, the Integrity
Commissioner has the power to compel the production of documents and things. In
addition, if the Integrity Commissioner holds private hearings, there are penalties for
disclosure of information relating to an investigation by persons summonsed to provide
evidence to the Integrity Commissioner and others legitimately consulted by such
witnesses.
Finally, the Bill includes a procedure for investigating complaints of corruption issues
within ACLEI (including the Integrity Commissioner). The Bill provides that the
Minister may authorise a special external investigation into an ACLEI corruption issue.
This Bill was originally introduced into the House of Representatives on 27 March 2006
and was subsequently referred to the Senate Legal and Constitutional Legislation
Committee (the Senate Committee). On 11 May 2006 the Senate Committee handed
down its report. After consideration of the Senate Committee's report and
recommendations, the Government proposed a number of amendments to the Bill as it
was introduced. These were accepted by the House of representatives on 21 June 2006.
FINANCIAL IMPACT STATEMENT
$9.5m was allocated in the 2005-06 Budget. Of this, $0.6m was allocated to the
Attorney-General's Department to fund the establishment of ACLEI and $8.9m was
allocated to ACLEI. Funding for ACLEI is currently being held by the Attorney-
General's Department, pending establishment of ACLEI.
The following abbreviations are used in this revised explanatory memorandum:
ACC The Australian Crime Authority
ACLEI The Australian Commission for Law Enforcement Integrity
ACT The Australian Capital Territory
AFP The Australian Federal Police
AFP Act The Australian Federal Police Act 1979
NCA National Crime Authority
Senate Committee The Senate Legal and Constitutional Legislation
Committee
A reference in this Explanatory Memorandum to a numbered recommendation of the
Senate Committee is a reference to a recommendation made in the report of the Senate
Committee's review of the provisions of the Law Enforcement Integrity Commissioner
Bill 2006, the Law Enforcement Integrity Commissioner (Consequential Amendments)
Bill 2006 and the Law Enforcement (AFP Professional Standards and Related Measures)
Bill 2006, tabled on 11 May 2006.
NOTES ON CLAUSES
PART 1 - PRELIMINARY
Clause 1: Short Title
Clause 1 provides that the Act may be cited as the Law Enforcement Integrity
Commissioner Act 2006.
Clause 2: Commencement
Item 1: Clause 1, clause 2 and any other provision of the Bill that is not specifically
mentioned in this provision, will commence on the day on which the Bill receives Royal
Assent.
Item 2: Clauses 3 to 224 are to commence on a single day to be fixed by Proclamation.
However, if any of these provisions do not commence within the period of 6 months
beginning on the day on which this Act receives Royal Assent, they commence on the
first day after the end of that period.
Clause 3: Objects of this Act
The overall aim of the Bill is to continuously improve the integrity of the Commonwealth
law enforcement agencies by establishing an independent body responsible for detecting
and investigating corrupt behaviour within these agencies. The Bill aims to deter
corruption by increasing the risk of detection. The Bill enables criminal offences to be
prosecuted and civil penalty proceedings to be brought, where necessary following an
investigation.
Clause 4: Application of Act
The Integrity Commissioner will have jurisdiction within and outside Australia and every
external Territory, to enable the Integrity Commissioner to conduct hearings or
investigations into officers working overseas. The Bill contains mechanisms to enhance
cooperation between ACLEI and similar organisations from State and Territory
jurisdictions. For example, clause 26 allows the Integrity Commissioner to investigate a
corruption issue jointly with a government agency or integrity agency of a State or
Territory. Clause 195 also allows members of State or Territory police services or State
or Territory integrity commissions to assist with investigations.
PART 2- INTERPRETATION
Clause 5: Definitions
This Clause defines terms and expressions used frequently throughout the Bill in order to
avoid doubt and clarify the intended meaning of each word for the specific purposes of
the Bill.
"ACC" means the Australian Crime Commission as established by the Australian Crime
Commission Act 2002.
"ACLEI" means the Australian Commission for Law Enforcement Integrity which is
established by clause 195 of the Bill.
"AFP" means the Australian Federal Police. Given the role the AFP has in
Commonwealth law enforcement, it is appropriate to have an independent body to
regulate professional standards of AFP members. The Integrity Commissioner may make
arrangements for members or staff of the AFP to be seconded to ACLEI to assist the
Integrity Commissioner in the performance of his or her functions (see clause 199).
"Assistant Integrity Commissioner" is the title given to an officer appointed under clause
185 of the Bill to assist the Integrity Commissioner in the performance of his or her
functions under the Bill.
"Assisting officer" is a person who assists in the execution of a warrant for a person's
arrest or a search warrant. This term is used in clause 117 of the Bill. An assisting officer
may be an authorised officer, a member or special member of the Australian Federal
Police, or a person appointed by an authorised officer who is executing a warrant. This
last category could, for example, include specialists such as locksmiths or IT experts.
"Australian Commission for Law Enforcement Integrity" (ACLEI) as established under
clause 195. ACLEI is an independent body established to assist the Integrity
Commissioner and/or any Assistant Integrity Commissioner in performing their
functions.
"Authorised officer" is either the Integrity Commissioner or a person authorised under
clause 140. The powers and duties of authorised officers are set out in Divisions 3 to 6 of
Part 9 of the Bill.
"Civil penalty proceeding" is a proceeding commenced in respect of a contravention of a
civil penalty provision. The definition covers proceedings for any civil penalty provision
in Commonwealth, State or Territory law. The phrase is used in clause 142, which deal
with the types of evidence and information the Integrity Commissioner is permitted to
use and/or communicate. The phrase is also used in clause 211, which deals with an
exception to the general rule that ACLEI staff members are not compellable in court
proceedings.
"Commonwealth Government agency" means either a Department of the
Commonwealth, or a body (whether incorporated or not) established for a public purpose
under a law of the Commonwealth. This definition is relevant to the definition of the term
"law enforcement agency" in the Bill. One of its key usages is in clause 10, which sets
out the classes of people over whom ACLEI may have jurisdiction. Subclause 10(4)
includes staff members of prescribed Commonwealth government agencies.
"Confiscation proceeding" means a proceeding, other than a criminal prosecution,
brought under either the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002,
or any other corresponding law within the meaning of either of those Acts. For example,
the clause is used in clauses 96, 142 and 211.
"Corruption investigation" is defined to mean an investigation of a corruption issue, or an
investigation of an ACLEI corruption issue. "ACLEI corruption issue" is defined in
clause 8.
"Criminal proceeding" is either a prosecution for an offence under a Commonwealth,
State or Territory law, or a confiscation proceeding. For example, the term is used in
clauses 80 and 96.
"Data" is defined by reference to section 3C of Part 1AA of the Crimes Act 1914, which
defines the term to include:
(a) information in any form; or
(b) any program (or part of a program).
"Data held in a computer" is defined by reference to section 3C of Part 1AA of the
Crimes Act 1914, which defines the term to include:
(a) data held in any removable data storage device for the time being held in a
computer; or
(b) data held in a data storage device on a computer network of which the
computer forms a part.
"Data storage device" is defined by reference to section 3C of Part 1AA of the Crimes
Act 1914 to mean a thing containing, or designed to contain, data for use by a computer.
"Disciplinary proceedings" is defined to include actions taken under Subdivision D of
Division 5 of Part V of the Australian Federal Police Act 1979(AFP Act). This
subdivision would be inserted into the AFP Act by the Law Enforcement (AFP
Professional Standards and Related Measures) Bill 2006 to deal with actions relevant to
performance management in the AFP, and the assessment of employment suitability in
cases where there is an issue about an AFP appointee's conduct.
"Eligible seizable item" means a dangerous item or an item that could be used to escape.
The term is used in clauses 110, 112, and 113 which deal with the procedures for
obtaining a search warrant.
"Engage in conduct" includes an act or an omission. Among other things, this definition
gives the Integrity Commissioner power to deal with corruption that results in failure to
exercise law enforcement powers as well as corruption that leads to active misconduct.
"Evidential material" includes material that is relevant to an investigation or inquiry. The
term is used in Division 4 of Part 9 of the Bill, which deals with search warrants. The
term is defined differently depending on whether the warrant being executed is an
investigation warrant or an offence warrant.
"Frisk search" has the same meaning as is given to the term in Part 1AA of the Crimes
Act 1914, which is:
(a) a search of a person conducted by quickly running the hands over the person's
outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently
and voluntarily removed by the person.
A frisk search of a person can be authorised by either an offence warrant or an
investigation warrant (see clauses 108 and 109)
"Government agency" means either, a Department of the Commonwealth or of a State or
Territory, or a body established for a public purpose under law. The term is used
throughout the Bill.
"Head" of government agency is either the Commissioner of the AFP, the CEO of the
ACC or, in the case of a prescribed Commonwealth government agency, the person
holding the office that is prescribed by the Regulations. Where the Commonwealth
government agency is not a prescribed Commonwealth government agency, the head will
either be the Secretary or the person holding or performing the duties of the principal
officer for that body.
"Integrity agency" means an agency that is established under law for the purpose of
investigating corruption in the police force of a State or Territory. This would include,
but is not limited to, the Police Integrity Commission of New South Wales, the Crime
and Misconduct Commission (Qld) and the Corruption and Crime Commission (WA)
"Integrity Commissioner" means the Integrity Commissioner as appointed under Clause
171 of this Bill. The Integrity Commissioner is responsible for addressing complaints of
corruption, implementing investigations into corruption issues, reporting on corruption
issues and providing recommendations and advice to the Minister and agencies. The
Integrity Commissioner is to manage the ACLEI and, as the head of the body, he or she
will report to the Minister.
"Inter-Governmental Committee" is defined by reference to the definition of that term in
section 8 of the Australian Crime Commission Act 2002 which establishes a committee
consisting of:
(a) a member to represent the Commonwealth, being the Commonwealth
Minister; and
(b) in the case of each participating State--a member to represent that State,
being a Minister of the Crown of that State nominated by the Premier of that
State.
"Investigation warrant" is to be distinguished from an offence warrant. An investigation
warrant is broader and may be sought, pursuant to clause 108, where there is suspicion of
evidential material relevant to an investigation of a corruption issue or public inquiry.
"Issuing officer" for an investigation warrant is a Judge of the Federal Court of Australia,
a Federal Magistrate or a Judge of a State or Territory. An issuing officer for an offence
warrant will be a magistrate.
"Law enforcement agency" includes the AFP, the ACC, the former National Crime
Authority (as principal predecessor of the ACC) and may be extended by the Regulations
to include another Commonwealth government agency that has a law enforcement
function. Law enforcement agencies, as defined here, are the bodies over which the
Integrity Commissioner has jurisdiction.
"Law enforcement function" includes the investigation, preparation for prosecution, as
well as dealing with information for the purposes of assisting the enforcement of
Commonwealth laws. The term also includes activities which assist in these functions.
"Law enforcement secrecy provision" includes those provisions of the Financial
Transaction Reports Act 1988, the Surveillance Devices Act 2004, and the
Telecommunications (Interception and Access) Act 1979 that deal with secrecy
obligations of, and provisions regarding access to, information gathered under each Act.
The distinguishing feature of these provisions is that they provide a complete regime for
the use and protection of information obtained by particular means. Law enforcement
secrecy provisions have a similar status to taxation secrecy provisions. The Bill preserves
the effect of these specific kinds of secrecy provisions (as opposed to general "secrecy
provisions") by providing exceptions to general rules of compellability in relation to
information obtained pursuant to these provisions.
"Legal aid officer" is defined to include those working in State or Territory based
organisations which provide legal aid as well as persons who might need to consider
otherwise confidential information in the course of determining applications under clause
103 to the Attorney-General for legal assistance.
"Manage an investigation of a corruption issue" is defined as the Integrity Commissioner
providing detailed guidance on the planning and carrying out of an investigation. This is
the more stringent form of supervision the Integrity Commissioner may exercise over the
investigation of a corruption issue by a law enforcement agency. The head of the agency
involved must ensure that staff members co-operate with the Integrity Commissioner and
adhere to any instructions provided.
"Nominated contact of a law enforcement agency" means either the head of an agency, or
a nominated staff member, with whom the Integrity Commissioner will have direct
contact, to whom the Integrity Commissioner will provide information, and from whom
the Integrity Commissioner will receive information, for the purpose of managing or
overseeing the investigation of a corruption issue by a law enforcement agency.
"Offence warrant" is to be distinguished from investigation warrant. An offence warrant
will be sought (pursuant to clause 108) where there is suspicion of evidential material
relevant to a particular offence against the law of a Commonwealth.
"Official matter" means a corruption investigation, a hearing or a court proceeding. An
official matter connected with a summons may be protected by a non-disclosure notation
(see clauses 91 and 92).
"Ordinary search" of a person does not include a frisk search or a strip search and
extends only to the removal and examination of outer garments such as coats and shoes.
An ordinary search can be authorised by either an offence warrant or an investigation
warrant (see clauses 108 and 109).
"Oversee" means the Integrity Commissioner provides general guidance on the planning
and carrying out of an investigation. This is the less stringent form of supervision the
Integrity Commissioner may exercise over the investigation of a corruption matter by a
law enforcement agency. The head of the agency involved must ensure that staff
members co-operate with the Integrity Commissioner and adhere to any instructions
provided.
"Public inquiry" means a public inquiry into a corruption issue by the Integrity
Commissioner. Part 8 of the Bill provides for the Minister to initiate public inquiries.
"Responsible Minister for a Commonwealth government agency" established by an Act
will be the Minister administering for that Act and in any other case the Minister who has
general responsibilities of the agency. The term is used in clauses 57 and 67 which deal
with follow up and final reports on investigations.
"Secondee" means a staff member of the AFP, the ACC, the former NCA or a prescribed
law enforcement agency who is identified as a secondee in subclause 10(5) or 11(2) of
the Bill. Secondees are officers of other agencies (whether or not that agency is a law
enforcement agency) whose services are made available to a law enforcement agency.
Secondees will usually be members of State or Territory police forces or employees of
government agencies. A secondee to ACLEI is a person whose services are made
available to the Integrity Commissioner.
"Secrecy provision" means a provision of Commonwealth law that prohibits or purports
to prohibit disclosure of the contents of a document or the production of a thing. The
term is to be distinguished from the term "law enforcement secrecy provision" and a
"taxation secrecy provision". A person will not generally be able to rely on a secrecy
provision in resisting disclosure or production of a document or thing however a person
will be able to rely on a "law enforcement secrecy provision" and a "taxation secrecy
provision" in these circumstances (for example, see clauses 21 and 22).
"Section 149 certified information" is information that the Attorney-General has certified
cannot be disclosed to, by or at the direction of the Integrity Commissioner for the reason
that such disclosure would be contrary to the public interest for one or more of the
reasons set out in subclause 149(2). These reasons include where disclosure would
prejudice the conduct of investigations, the fair trial of a person, or the effectiveness of
operational methods.
"Sensitive information" is information the disclosure of which might have a prejudicial
effect on specified public and private interests. While the Integrity Commissioner is
required to comply with a certificate issued by the Attorney-General under clause 149, he
or she must make an independent judgment as to whether sensitive information should be
disclosed in any particular case. For example, in providing copies of referred material to
the Senate and House of Representatives under subclause 57(4), the Integrity
Commissioner may exclude sensitive information from the copied material but must
exclude clause 149 certified information. The definition of "sensitive information" is
similar to, but broader than, the class of information that may be certified under clause
149 of the Bill. For example, sensitive information includes information that could
prejudice the protection of public safety or would involve unreasonably disclosing a
person's personal affairs or confidential commercial information. The criteria for non-
disclosure also differ between sensitive information and clause 149 certified information.
In the case of clause 149 certified information, the Attorney-General needs to be satisfied
that disclosure of the information would cause the prejudice in the listed circumstances.
For sensitive information, there is always a double test, namely whether the disclosure
could cause the prejudice, and the need to consider the balance between that possibility
of prejudice and the interest served by its disclosure.
"Serious corruption" is one of two defined gradations of corrupt conduct the other being
"systemic corruption". These categories are defined to assist in administrative decisions
including priorities and which entity should deal with which complaints. Clause 16
provides that the Integrity Commissioner is to give priority to complaints of serious
corruption and systemic corruption. A corruption issue that relates to corrupt conduct
constituting serious corruption or systemic corruption must be referred to the Integrity
Commissioner for investigation (clause 20).
"Significant corruption issue" is either an issue relating to conduct that constitutes serious
corruption or systemic corruption, an issue which is so prescribed by regulations or an
issue that the Integrity Commissioner and a head of a law enforcement agency agrees is
so under clause 17. A significant corruption issue identified by the head of a law
enforcement agency must be referred to the Integrity Commissioner. The Integrity
Commissioner is entitled to investigate any corruption issues but the identification of
significant corruption issues is a mechanism intended to assist the Integrity
Commissioner to focus on the most important cases
"Special investigation" means an external investigation authorised by the Minister under
Division 4 of Part 12 of the Bill. Special investigations are only authorised if an ACLEI
corruption issue arises. This is an issue concerning possible corrupt conduct within
ACLEI (see clause 8).
"Special investigator" means the person authorised by the Minister to conduct a special
investigation into an ACLEI corruption issue.
"State or Territory government agency" means a Department of State or Territory, or a
body (whether incorporated or not) established for a public purpose under a law of a
State or Territory.
"Strip search" is defined by reference to the definition given to that term in Part 1AA of
the Crimes Act 1914, which is, a search of a person or of articles in the possession of a
person that may include:
(a) requiring the person to remove all of his or her garments; and
(b) an examination of the person's body (but not of the person's body cavities)
and of those garments.
The term is used in clause 114, which provides that search warrants may not authorise a
strip search.
"Systematic corruption" is one of two defined gradations of corrupt conduct the other
being "serious corruption". These categories are defined to assist in administrative
decisions including priorities and which entity should deal with which complaints. Clause
16 provides that the Integrity Commissioner must give priority to complaints of serious
corruption and systemic corruption. A corruption issue that relates to corrupt conduct
constituting serious corruption or systemic corruption must be referred to the Integrity
Commissioner for investigation (clause 20).
"Taxation secrecy provision" is a secrecy provision in a "taxation law", which is defined
in section 2 of the Taxation Administration Act 1953 to include that Act as well as any
other Act generally administered by the Australian Tax Commissioner, the A New Tax
System (Australian Business Number) Act and any regulations to these Acts. Taxation
secrecy provisions have a similar status to law enforcement secrecy provisions. The Bill
preserves the effect of these specific kinds of secrecy provisions (as opposed to "general"
secrecy provisions) by providing exceptions to general rules of compellability in relation
to information obtained pursuant to these provisions (for example, see clauses 20, 21 and
80 of the Bill)
"Thing relevant to an indictable offence" is defined by reference to the definition given to
that term in Part 1AA of the Crimes Act 1914. Section 3C of the Crimes Act defines the
term to mean:
(a) anything with respect to which an indictable offence against any law of the
Commonwealth or Territory has been committed or is suspected, on reasonable
grounds, to have been committed or anything with respect to which a State
offence that has a federal aspect, and that is an indictable offence against the law
of that State, has been committed or is suspected, on reasonable grounds, to have
been committed; or
(b) anything as to which there are reasonable grounds for suspecting that it will
afford evidence as to the commission of any such offence; or
(c) anything as to which there are reasonable grounds for suspecting that it is
intended to be used for the purpose of committing any such offence.
Clause 6: Meaning of engages in corrupt conduct
This Clause provides that any act or omission which involves the abuse of office as a
staff member of a law enforcement agency, or conduct which perverts, or is for the
purpose of perverting the course of justice, or, having regard to the staff member's duties
and powers, conduct engaged in for the purpose of corruption of any other kind, will be
deemed to be engaging in corrupt conduct for the purposes of the Bill. In circumstances
where a law enforcement agency is prescribed by the Regulations, a staff member will
only be engaging in corrupt conduct for the purposes of the Bill if the conduct relates to
the performance of a law enforcement function of the agency. The definition covers the
main elements of significance in corruption issues and is consistent with the definitions
of corruption used as a basis for forfeiture of superannuation entitlements in the Crimes
(Superannuation) Act and Part VA of the Australian Federal Police Act 1979. The term
"engage in conduct" is defined in clause 5 of the Bill as meaning doing an act and
omitting to do an act. By including omitted acts, the Bill provides that a failure to report
corrupt conduct or similar, will also be regarded as engaging in corrupt conduct. The
subject conduct may also be conduct that was engaged in prior to the commencement of
the Bill. The term "staff member" is defined in clause 5 of the Bill by reference to clause
10. The term "law enforcement agency" is defined in clause 5 of the Bill.
Clause 7: Meaning of corruption issue
The Clause provides that a corruption issue exists where a staff member of a law
enforcement agency has engaged, is engaging, or may at any time in the future, engage in
corrupt conduct. The capacity to investigate cases where corrupt conduct is foreseeable in
the future makes the Integrity Commissioner's role proactive in addressing corruption.
The Clause also provides for investigations to be commenced in circumstances where the
identity of the staff member of the agency alleged to be engaging in corrupt conduct is
unknown. This provision is to ensure that corruption issues cannot be ignored because the
person concerned has not been identified at the outset.
Clause 8: Meaning of ACLEI corruption issue
An ACLEI corruption issue exists where a person who is, or has been a staff member of
ACLEI has engaged, or is engaging, in corrupt conduct, or may do so in the future. Part
12 of the Bill prescribes the practices and procedures required for investigating ACLEI
corruption issues. The Clause also provides for investigations to be commenced in
circumstances where the identity of the staff member alleged to be engaging in corrupt
conduct is unknown. This provision is to ensure that corruption issues within ACLEI
cannot be ignored because the person concerned has not been identified at the outset. The
term "staff member" of ACLEI is defined in clause 5 of the Bill by reference to clause 11
and includes secondees.
Clause 9: Corruption issue that relates to law enforcement agency
This Clause provides that a corruption issue relates to a law enforcement agency where
the issue arises due to the corrupt conduct of a person in their capacity as a staff member
of that agency. The term "staff member" is defined in clause 5 of the Bill by reference to
clauses 10 and 11. The clause intends to avoid doubt in circumstances where a corruption
issue relates to a secondee or contractor. The term "law enforcement agency" is defined
in clause 5 of the Bill.
Clause 10: Staff members of law enforcement agencies
The purpose of the Clause is to avoid doubt and identify the persons who are subject to
the jurisdiction of the Integrity Commissioner.
The Clause identifies persons who are considered to be staff members of law
enforcement agencies for the purposes of the Bill. Staff members of the AFP, the ACC
and the former NCA are defined by reference to persons and classes of persons referred
to in the Acts establishing those agencies. Staff members of prescribed law enforcement
agencies are to be members of classes of persons prescribed by the Regulations.
The clause also specifies the classes of staff members of a law enforcement agency that
are secondees for the purposes of the Bill. These include not only people who are
seconded in the conventional sense, but also other people who are appointed to perform
duties that assist a law enforcement agency in the performance of its functions while they
remain employee of other agencies. This will ensure that the secondee provisions in the
Bill apply to all staff members of a law enforcement agency who have a home agency
(and, in some cases, an integrity agency) that has a legitimate interest in their conduct
while assisting the law enforcement agency in the performance of its functions.
Clause 11: Staff members of ACLEI
This Clause identifies persons who are considered to be staff members of ACLEI for the
purposes of the Bill and includes the Integrity Commissioner, any Assistant Integrity
Commissioners, Public Service Act staff, secondees, consultants, contractors and any
legal practitioners appointed to assist the Integrity Commissioner. The purpose of the
Clause is to avoid doubt and identify the persons who are subject to particular provisions
of the Bill, such as under Part 12 regarding the investigation of an ACLEI corruption
issue.
Clause 12: Applying Act to staff member of former NCA
For the purposes of the Bill, a staff member of the former NCA will be treated as if he or
she were a staff member of the ACC. The ACC was established in 2002 and effectively
combined the NCA with two non-investigative entities, the Australian Bureau of
Criminal intelligence and the Office of Strategic Crime Assessments. As the Bill operates
retrospectively, this Clause intends to allow the previous conduct of NCA staff members
to be subjected to an investigation by the ACLEI where necessary, despite the fact that
the body is no longer in existence.
Clause 13: State offences that have a federal aspect
This Clause identifies the circumstances in which a State offence will have a Federal
aspect as being where an offence may fall within Commonwealth legislative power
because of its elements, the circumstances in which the offence was committed, or
because the Integrity Commissioner's investigation of the offence is incidental to the
investigation of a corruption issue. The Clause is based on a similar provision (section
4A) in the Australian Crime Commission Act 2002. The clause is necessary to give the
Integrity Commissioner and ACLEI investigators the widest constitutionally permissible
power to deal with corrupt activity by persons subject to the Integrity Commissioner's
jurisdiction. An example of the role of this definition can be found in the definition of
"things relevant to an indictable offence", which is relevant to applications for search
warrants under clauses 110, 112 and 113. In applying for authority to seize things in
relation to persons or premises an authorised person is required to state that he or she
believes on reasonable grounds that the thing to be seized is relevant to an indictable
offence. This term is defined in Clause 5 to include "anything with respect to which a
State offence that has a federal aspect, and that is an indictable offence against the law of
that State, has been committed or is suspected, on reasonable grounds, to have been
committed"
PART 3 THE INTEGRITY COMMISSIONER
Clause 14: Integrity Commissioner
The clause creates the office of the Integrity Commissioner. Provisions relating to the
appointment of the Integrity Commissioner are contained in Part 13 of the Bill.
Clause 15: Functions of the Integrity Commissioner
This clause outlines the functions of the Integrity Commissioner, which include
investigating and reporting on corruption issues, managing or overseeing the
investigation of corruption issues by law enforcement agencies, conducting public
inquiries at the request of the Minister and collecting and analysing information on
corruption issues to make recommendations to the Minister. This clause also provides for
the Integrity Commissioner, on his or her own initiative or on request by the Minister, to
report to the Minister on necessary or desirable, legislative or administrative, action in
relation to corruption in law enforcement agencies or the integrity of staff members of
law enforcement agencies. Other functions may be conferred on the Integrity
Commissioner by other provisions of the Bill or by another Act.
Clause 16: Integrity Commissioner to give priority to serious corruption and
systemic corruption
In carrying out his or her functions, the Integrity Commissioner must give priority to
matters involving serious or systemic corruption.
Clause 17: Integrity Commissioner may enter into agreement with head of law
enforcement agency
This clause provides for the Integrity Commissioner to enter into an agreement with the
head of a law enforcement agency regarding issues such as what will constitute a
significant corruption issue in relation to staff members of the particular agency, what
will constitute satisfactory notification to the Integrity Commissioner of a corruption
issue, the procedure for information and documents to be provided to the Integrity
Commissioner and the level of detail required in the final reports at the conclusion of an
investigation. Any variation or revocation of such agreements must be in writing.
PART 4 DEALING WITH CORRUPTION ISSUES
Division 1Referring Corruption Issues to Integrity Commissioner
This Division deals with the ways in which a corruption issue may be brought to the
attention of the Integrity Commissioner by another agency or person. It creates particular
obligations for heads of law enforcement agencies in relation to corruption issues that
relate their agency and for custodians of prisoners who may wish to raise a corruption
issue.
Clause 18: Referral of corruption issues by Minister
The Minister may refer any allegation or information raising a corruption issue to the
Integrity Commissioner.
Clause 19: Notification of corruption issues by law enforcement agency heads
The head of a law enforcement agency must notify the Integrity Commissioner in writing
of any allegation or information raising a corruption issue. The notification must include
a description of the corruption issue and the allegation or information and must indicate
whether the issue is a significant corruption issue for that agency. The notification must
be in accordance with any agreement entered into under clause 17. A database may be
created, and where the Integrity Commissioner agrees, the head of a law enforcement
agency can notify the Integrity Commissioner of a corruption issue as required under this
Clause by entering the necessary information into the database.
Clause 20: Notification of corruption issue identified as significant corruption issue
The head of a law enforcement agency must immediately cease investigation of a
significant corruption issue upon notification of the issue to the Integrity Commissioner.
The Integrity Commissioner must be provided with all relevant information and
documents within the agency's possession and control and the head of agency must take
all reasonable steps to prevent the loss, destruction or fabrication of evidence in relation
to the corruption issue. These steps reflect the presumption that the Integrity
Commissioner will investigate significant corruption issues. The head of the agency may
only resume an investigation where the Integrity Commissioner refers the matter to the
head of the agency, decides to investigate the corruption issue jointly with the agency or
decides to take no further action pursuant to clause 31.
Clause 21: Head of law enforcement agency to pass on new information in relation
to corruption issue already referred
If the head of a law enforcement agency notifies the Integrity Commissioner of a
significant corruption issue, the head of the agency must give the Integrity Commissioner
any relevant information or details of any relevant allegation that the agency head
subsequently becomes aware of. The head of the agency is exempted from this
requirement in cases where it is reasonable to assume that the Integrity Commissioner is
aware of the additional information. The requirement is subject to clause 150 in relation
to clause 149 certified information, but operates despite any secrecy provisions.
Clause 22: Notification of non-significant corruption issue
If the head of a law enforcement agency notifies the Integrity Commissioner of a
corruption issue but does not indicate that it is a significant corruption issue, he or she
must ensure that the agency investigates the issue to completion. This requirement is
subject to any action taken by the Integrity Commissioner to deal with the corruption
issue. The agency head does not need to investigate the corruption issue where the matter
involves a secondee who is already being investigated by his or her home agency or by a
State or Territory integrity agency. Other circumstances where the agency head does not
need to investigate are where the allegation or information which raises the corruption
issue is frivolous or vexatious or where the corrupt conduct has been, is or will be the
subject of proceedings before a court. Further, if a law enforcement agency is subject to
another Commonwealth law that makes provision for investigation by the agency of
complaints against, or misconduct by, agency staff, and that law provides grounds for not
investigating a matter that go beyond the grounds provided by the Bill, the head of the
agency may decide, on the basis of such a ground, not to investigate a corruption issue,
but only if the Integrity Commissioner does not consider that the issue should be
investigated. This provision allows for the fact that the grounds for not investigating a
corruption issue set out in subclause 22(2) do not cover all the grounds that would
otherwise be available, for example, to the Commissioner of the AFP under proposed
new section 40TF of the AFP Act (see Law Enforcement (AFP Professional Standards
and Related Measures) Bill 2006), to decide not to investigate an AFP conduct issue.
In any of these circumstances, the head of the agency must advise the Integrity
Commissioner that the agency will not be investigating the corruption issue.
Clause 23: Referral of corruption issues by other people
Any person (other than the Minister) may refer an allegation or information that raises a
corruption issue to the Integrity Commissioner under this clause. A person may refer
allegations or information on behalf of another person, a government agency or an
association. A person can opt to refer allegations or information anonymously. This is an
important feature of the Clause, because it is anticipated that people who raise corruption
issues with the Integrity Commissioner may work with, or be acquainted with the persons
about whom the information or allegation relates.
Clause 24: Referral under section 23 by person in custody
A person detained in custody may refer an allegation or information that raises a
corruption issue to the Integrity Commissioner under Clause 23. The person must be
provided with facilities to prepare a written report of the allegation or information and
enclose the report in a sealed envelope. The envelope must be sent to the Integrity
Commissioner without undue delay. Custodians are prohibited from opening or
inspecting any documents sent between the Integrity Commissioner and the person in
custody. Persons detained in custody have a similar right to make complaints or raise
issues under section 7 of the Ombudsman Act 1976 (Cth) and section 13 of the Inspector-
General of Intelligence and Security Act 1986 (Cth).
Clause 25: Person making referral under section 23 may elect to be kept informed
The Integrity Commissioner must ask a person who refers an allegation or information
that raises a corruption issue to elect whether he or she wishes to be kept informed of the
action taken in relation to the matter. The function of the Integrity Commissioner is not
primarily to vindicate the rights of private complainants but to pursue indications of
corruption, however they arise. It is likely that many referrals of allegations or
information will be in the nature of tip-offs or reports of criminal conduct. Nonetheless,
this clause provides a mechanism for identifying those who may have a personal interest
in a matter and wish to be treated as complainants.
Division 2How Integrity Commissioner Deals With Corruption Issues
This Division deals the initial decision by the Integrity Commissioner as to whether he or
she should directly investigate a corruption issue or the issue should be investigated by a
law enforcement agency, or whether it need not be investigated at all. The Division
covers both issues raised under Division 1 and issues the Integrity Commissioners
initiates. It provides for the Integrity Commissioner to advise interested parties of the
decision and for the possibility of changing the decision at a later stage if there is reason
to do so.
Subdivision AGeneral
Clause 26: How Integrity Commissioner may deal with corruption issues
This Clause sets out the ways in which the Integrity Commissioner may address
corruption issues. The Integrity Commissioner may conduct an investigation, either alone
or jointly with another government agency or an integrity agency for a State or Territory.
The Integrity Commissioner may refer a corruption issue to the AFP or other law
enforcement agency for investigation, and may manage or oversee an investigation being
conducted by a law enforcement agency. Subclause 29(6) provides the Integrity
Commissioner with further options where the corruption issue relates to a secondee to a
law enforcement agency.
Clause 27: Criteria for Deciding How to Deal with a Corruption Issue
This clause provides a list of factors that the Integrity Commissioner must consider
before he or she decides how to deal with a corruption issue, or whether to take no further
action in relation to a corruption issue. The Integrity Commissioner must consider the
importance of fully investigating a corruption issue, the rights and obligations of the law
enforcement agency to investigate the issue, the extent to which the law enforcement
agency is able to co-operate in a joint investigation, and the potential significance of the
issue for the law enforcement agency. The Integrity Commissioner must also ensure a
balance between his or her own responsibility to investigate corruption issues, and the
responsibility of law enforcement agencies to manage their agencies.
Clause 28: Dealing with multiple corruption issues
If a referral contains a number of corruption issues, the Integrity Commissioner may deal
with some or all of them separately, or together. The Integrity Commissioner may deal
with multiple corruption issues together, even if they are not raised in the same referral.
If the Integrity Commissioner addresses multiple issues together, he or she may produce
a single report of those issues. This clause provides the flexibility for the Integrity
Commissioner to deal with issues in the way that will be most effective in the
circumstances.
Clause 29: How Integrity Commissioner may deal with corruption issues that relate
to conduct of secondee from Government Agency
Clauses 29 and 30 look at corruption issues involving secondees to a law enforcement
agency. If a corruption issue relates to the conduct of a secondee from a government
agency, the Integrity Commissioner must notify the head of that agency and any relevant
integrity agency, and provide any information requested about the corruption issue. The
Integrity Commissioner is not required to inform the government agency and integrity
agency, or provide information, if it is likely that doing so could prejudice an
investigation of the corruption issue, nor is the Integrity Commissioner required to
disclose information that is subject to an Attorney-General's certificate (see clauses 149
and 152). If the Integrity Commissioner does not inform the government agency or
integrity agency, he or she must provide the Minister with reasons. However, if the
circumstances change so that advising the head of the relevant agency of the decision on
how to deal with the information would no longer prejudice the investigation, then the
agency head's right to be advised would revive. The Integrity Commissioner may deal
with the corruption issue by arranging for the government agency or relevant integrity
agency to conduct an investigation. Alternatively, the Integrity Commissioner may deal
with the issue in any manner authorised under clause 26. Before the Integrity
Commissioner reaches a decision, he or she must give due consideration to the rights and
obligations of the government agency and/or integrity agency to investigate the
corruption issue, the extent to which the agencies are able to co-operate in a joint
investigation and the likely significance of the corruption issue for any agencies
involved. This list of considerations is not meant to limit the operation of the
considerations listed in clause 27.
Clause 30: Arrangements for Government Agencies and Integrity Agencies to
investigate corruption issues relating to conduct of secondees
The Integrity Commissioner may arrange for corruption issues involving the conduct of
secondees to be investigated by the government agency from which the seconde comes,
or a relevant State or Territory integrity agency. In this case, the government agency or
integrity agency may investigate the issue to the full extent of its powers under
Commonwealth, State or Territory laws. Alternatively, the Integrity Commissioner may
conduct a joint investigation with a government agency or integrity agency.
Subdivision BIntegrity Commissioner Dealing with Corruption Issues Referred or
Notified
Clause 31: Significant corruption issues notified under section 19 and corruption
issues referred under section 18 or 23
This Clause applies to significant corruption issues raised by the head of a law
enforcement agency under clause 19, and to corruption issues referred to the Integrity
Commissioner by the Minister under clause 18 or by another person under clause 23. The
Integrity Commissioner must deal with these issues in one of the ways referred to in
subclauses 26(1) and 29(6), or decide to take no further action. The Integrity
Commissioner must deal with the issues unless they are already being investigated
(although the Integrity Commissioner might choose to initiate his or her own
investigation in this case), the referral was frivolous or vexatious, where the corruption
issue is the subject of court proceedings, or where the Integrity Commissioner determines
that an investigation is not warranted, having regard to all of the circumstances.
Providing the Integrity Commissioner with the residual discretion to take no further
action where none of the stipulated grounds are applicable, implements part of the Senate
Committee's recommendation 2.
Clause 32: Corruption issues notified as not being significant corruption issues
under section 19
If the head of a law enforcement agency notifies the Integrity Commissioner of a
corruption issue which is not significant under clause 19, the Integrity Commissioner
may address the issue in one of the ways specified in subclauses 26(1) and 29(6). The
Integrity Commissioner may request further information from the law enforcement
agency, to help decide how best to deal with the issue.
Subdivision CAdvising Particular People of Decision About How to Deal With
Corruption Issue
Clause 33: Minister
Clauses 33 and 34 ensure that the Integrity Commissioner notifies people who refer an
allegation or information that raises a corruption issue of decisions made with respect to
that issue. Under this Clause, if the Minister refers a corruption issue to the Integrity
Commissioner under clause 18, the Integrity Commissioner must advise the Minister in
writing of his or her decision about how to deal with the issue under clause 31, and the
result of any reconsideration of how to deal with the corruption issue under clause 42.
Clause 34: Person who refers corruption issue
If a person refers a corruption issue to the Integrity Commissioner under clause 23 and
elects to be kept informed of action taken in relation to the issue under clause 25, the
Integrity Commissioner must advise the person in writing of his or her decision about
how to deal with the issue under clause 31, and the result of any reconsideration of how
to deal with the corruption issue under clause 42. The Integrity Commissioner does not
have to notify the person if he or she is satisfied that doing so is likely to prejudice an
investigation of a corruption issue. However, if circumstances change so that notifying
the person would no longer prejudice the investigation, then the person's right to be
advised is revived.
Clause 35: Head of law enforcement agency
If the Minister or another person refers a corruption issue which relates to a law
enforcement agency, the Integrity Commissioner must advise the head of that agency in
writing of his or her decision about how to deal with the issue under clause 31, and the
result of any reconsideration of how to deal with the corruption issue under clause 42.
The Integrity Commissioner does not have to notify the head of the law enforcement
agency if he or she is satisfied that doing so is likely to prejudice an investigation of a
corruption issue. If the Integrity Commissioner decides to withhold notification, he or she
must provide the Minister with reasons. However, if circumstances change so that
notifying the head of the law enforcement agency would no longer prejudice the
investigation, then the person's right to be advised is revived.
Clause 36: Head of home agency and integrity agency
This Clause applies if the Minister or another person refers to the Integrity Commissioner
a corruption issue that relates to a person who is or has been a secondee to a law
enforcement agency, and who is an employee of a government agency. In this case, the
Integrity Commissioner must advise the head of the government agency and any relevant
integrity agency in writing of his or her decision about how to deal with the issue under
clause 31, and the result of any reconsideration of how to deal with the corruption issue
under clause 42. The Integrity Commissioner does not have to notify the head of the
government agency or integrity agency if he or she is satisfied that doing so is likely to
prejudice an investigation of a corruption issue. If the Integrity Commissioner decides to
withhold notification, he or she must provide the Minister with reasons. However, if
circumstances change so that notifying the government agency or integrity agency would
no longer prejudice the investigation, then the person's right to be advised is revived.
Clause 37: Staff member to whom corruption issue relates
Where the Minister, the head of a law enforcement agency or another person notifies the
Integrity Commissioner of a corruption issue which relates to a person who is, or has
been a staff member of a law enforcement agency, the Integrity Commissioner may
advise him or her in writing of his or her decision about how to deal with the issue under
Clause 31 or 32, and the result of any reconsideration of how to deal with the corruption
issue under Clause 42. There is no mandatory obligation for the Integrity Commissioner
to advise the staff member under this Clause, because such an obligation might preclude
an effective investigation of the issue in some cases.
Subdivision D- Integrity Commissioner Dealing With Corruption Issues on Own
Initiative
Clause 38: Integrity Commissioner may Deal with Corruption Issues on Own
Initiative
If the Integrity Commissioner becomes aware of an allegation or information that raises a
corruption issue, other than an allegation or information that is referred under Division 1
of Part 4, the Integrity Commissioner may deal with the issue in one of the ways referred
to in subclause 26(1) or subclause 29(6), on his or her own initiative. This includes an
allegation or information that the Integrity Commissioner becomes aware of in the course
of investigating or inquiring into another corruption issue. If the Integrity Commissioner
decides to deal with the corruption issue in one of the ways referred to in clause 26 or 29,
the Integrity Commissioner may direct the head of the relevant law enforcement agency
that the agency is not to investigate the corruption issue.
Clause 39: Advising law enforcement agency head of decision to deal with
corruption issue on own initiative
If the Integrity Commissioner decides to deal with a corruption issue under Clause 38 on
his or her own initiative, he or she must advise the head of the relevant law enforcement
agency of his or her decision to deal with the matter in that way, or any decision made
following reconsideration under Clause 42. The agency head must be advised in writing
and as soon as reasonably practicable after the decision is made. However, the Integrity
Commissioner need not advise the head of the agency if doing so is likely to prejudice an
investigation or any action taken as a result. In these circumstances, the Integrity
Commissioner must inform the Minister and give reasons for not advising the agency
head of the decision. If the circumstances change so that advising the head of the relevant
agency of the decision on how to deal with the information would no longer prejudice the
investigation, then the agency head's right to be advised is revived.
Clause 40: Advising head of government agency and integrity agency of decision to
deal with corruption issue on own initiative
Clause 40 applies when the Integrity Commissioner decides to deal with a corruption
issue under clause 38 on his or her own initiative and the corruption issue relates to the
conduct of a person who is or has been a secondee to a law enforcement agency. The
Integrity Commissioner must advise the head of the home agency of his or her decision
to deal with the matter in that way, or any decision made following reconsideration under
clause 42. The Integrity Commissioner must advise the head of any integrity agency for
the State or Territory in the same way. The advice must be given in writing and as soon
as reasonably practicable after the decision is made. However, the Integrity
Commissioner need not advise the head of the home agency or the State or Territory
integrity agency if doing so is likely to prejudice an investigation or any action taken as a
result. In these circumstances, the Integrity Commissioner must inform the Minister and
give reasons for not advising the agency head of the decision. If the circumstances
change so that advising the head of the relevant agency of the decision on how to deal
with the information would no longer prejudice the investigation, then the agency head's
right to be advised is revived.
Clause 41: Advising staff member of decision to deal with corruption issue on own
initiative
Clause 41 applies if the Integrity Commissioner decides to deal with a corruption issue
on his or her own initiative and the corruption issue relates to a person who is, or has
been a staff member of a law enforcement agency. The Integrity Commissioner may
advise the staff member of the decision to deal with the corruption issue in that way, or
any decision made following reconsideration under clause 42. There is no mandatory
obligation for the Integrity Commissioner to advise the staff member under this clause,
because such an obligation might preclude an effective investigation of the issue in some
cases.
Subdivision EReconsidering How to Deal with Corruption Issue
Clause 42: Reconsidering how to Deal with Corruption Issue
The Integrity Commissioner may, at any time, reconsider how a corruption issue is to be
dealt with. On that reconsideration, the Integrity Commissioner may decide to adopt a
new or an alternative method of investigation under subclause 26(1) or subclause 29(6).
If a new or alternative method of investigation is adopted, the Integrity Commissioner
may direct the head of the relevant law enforcement agency that the agency is not to
investigate the corruption issue. If the corruption issue is already being, or will be,
investigated by a law enforcement agency, a government agency or a State or Territory
integrity agency, the Integrity Commissioner may decide to take no further action in
relation to that issue, although an investigation by the Integrity Commissioner is not
precluded in these circumstances. The Integrity Commissioner may also take no further
action if the allegation or information which raises the corruption issue is frivolous or
vexatious, where the corrupt conduct has been, is or will be the subject of court
proceedings, or where the Integrity Commissioner determines that an investigation is not
warranted, having regard to all of the circumstances. Providing the Integrity
Commissioner with the residual discretion to take no further action where none of the
stipulated grounds are applicable, implements part of the Senate Committee's
recommendation 2.
PART 5 - INFORMATION SHARING WHEN DECISION MADE ABOUT HOW
TO DEAL WITH CORRUPTION ISSUE
This Part provides mechanisms to ensure that the agency which is to investigate a
corruption issue has access at the outset to all the available information.
Division 1- Giving Information to Head of Agency Conducting Investigation
Clause 43: Division Applies if Agency to Conduct, or Continue Conducting,
Investigation of Corruption Issue
Clause 43 sets out when Division 1 applies. First, the Division applies where the Integrity
Commissioner refers a corruption issue to a law enforcement agency or the AFP for
investigation or a law enforcement agency has already commenced investigating a
corruption issue before it is referred to the Integrity Commissioner. Secondly, the
Division applies where the corruption issue relates to the conduct of a secondee of a law
enforcement agency who is an employee of a Commonwealth government agency and
the Integrity Commissioner arranges for the Commonwealth government agency to
investigate the corruption issue. Finally, the Division applies where the corruption issue
relates to the conduct of a secondee of a law enforcement agency and the secondee is an
employee of a State or Territory government agency and the Integrity Commissioner
arranges for the State or Territory government agency or integrity agency to investigate.
Clause 44: Integrity Commissioner to give Information or Documents to Agency
Head
Clause 44 obliges the Integrity Commissioner to provide all information relevant to the
corruption issue being investigated by an agency to the head of the agency investigating
the corruption issue if the head of the agency does not already have the information. The
Integrity Commissioner does not have to provide the information where it is certified
under section 149.
Division 2Information to be given by Law Enforcement Agency that has already
Commenced Investigation
Clause 45: Division Applies if Law Enforcement Agency has Already Commenced
Investigating Corruption Issue
This Division applies where the Integrity Commissioner decides to deal with a corruption
issue that a law enforcement agency started, or continued to investigate, prior to the
Integrity Commissioner's decision as to how to deal with the matter.
Clause 46: Integrity Commissioner may Direct Agency Head to Give Information or
Documents that Relate to Corruption Issue
The Integrity Commissioner may, in writing, direct the head of an agency investigating a
corruption issue to provide all information and/or documents in relation to the corruption
issue that are in the possession or control of the head of the agency. The head of agency
must comply unless the information is certified information under clause 149 and the
disclosure is not permitted (subclause 150(1)) or would breach a condition of the
certificate (clause 151).
PART 6 INVESTIGATIONS BY INTEGRITY COMMISSIONER
This Part sets out some basic principles governing the conduct of investigations of
corruption issues by the Integrity Commissioner and sets out the powers and duties of the
Integrity Commissioner in relation to reporting the progress and outcomes of such
investigations and taking any necessary follow-up action.
Division 1- Investigation
Clause 47: Application of Division
The Division describes the manner in which investigations by the Integrity
Commissioner should be undertaken, whether solely, or jointly with other agencies.
Clause 48: Integrity Commissioner to Determine Manner of Conducting
Investigation
Clause 48 gives the Integrity Commissioner discretion to conduct the investigation in
such manner as he or she thinks fit. Part 9 of the Bill prescribes the powers available to
the Integrity Commissioner for the purposes of investigating or conducting an inquiry
into corrupt conduct and corruption issues.
Clause 49: Coordinating Integrity Commissioner's Investigation and Law
Enforcement Agency's Operations
This clause operates where the Integrity Commissioner has informed the head of a law
enforcement agency (under clause 35) or the head of a government agency (under clause
36) that the Integrity Commissioner has decided to investigate a corruption issue.
The Integrity Commissioner is required to regularly consult with the head of the relevant
law enforcement agency, with a view to minimising the risk of prejudice to the agency's
operations. The Integrity Commissioner may also consult with another relevant
government agency (a secondee's home agency or the relevant integrity agency) where
there is a risk of prejudice to its operations.
Clause 50: Information Sharing for Joint Investigation
The Integrity Commissioner may provide information and documents within the Integrity
Commissioner's possession and control to the head of an agency with which the Integrity
Commissioner is jointly conducting an investigation. However, the Commissioner must
not disclose Clause 149 certified information contrary to the terms of the certificate
(Clause 152).
Clause 51: Opportunity to be Heard
The Integrity Commissioner must not disclose any opinions or findings that are critical of
a government agency or person in a report, unless the head of the agency or the person
has been given an opportunity to appear, or have a representative appear before the
Integrity Commissioner to make submissions in relation to the subject matter.
Where the opinion or finding is critical of a person, the Commissioner must provide the
person with a statement setting out the opinion or finding and give the person a
reasonable opportunity to be heard or make submissions. Where the opinion or finding is
critical of an agency, the Integrity Commissioner must provide the head of the agency
with the same opportunities. The clause also provides for submissions to be made by a
representative of the head of agency or person. However, the Commissioner does not
have to give a person the opportunity to be heard where the Commissioner is satisfied
that a person may have committed a criminal offence, contravened a civil penalty
provision or engaged in conduct which could be the subject of disciplinary proceedings
or termination of employment/ appointment, and that an investigation or any related
action would be compromised by giving the person the opportunity to make submissions.
Division 2- Reporting
Subdivision A- Reporting During Investigation
Clause 52: Integrity Commissioner to Keep Person who referred Corruption Issue
Informed of Progress of Investigation
The Integrity Commissioner must take reasonable steps to inform a referring Minister or
head of agency as to the progress of an investigation. The Integrity Commissioner must
also take reasonable steps to inform any other person who refers a matter to the Integrity
Commission about the progress of the investigation if the person has elected to be kept
informed under clause 25.
Clause 53: Integrity Commissioner to Keep Home Agency and Integrity Agency
Informed of Progress of Investigation
Clause 53 obliges the Integrity Commissioner to take reasonable steps to keep the head of
the home agency of a secondee to a law enforcement agency informed about the progress
of an investigation if the Integrity Commissioner has informed the head of the home
agency under subclause 29(2). The Integrity Commissioner must keep the head of a State
or Territory integrity agency similarly informed if the secondee is from the police force
of a State or Territory and the Integrity Commissioner has informed the State or Territory
integrity agency under subclause 29(2).
Subdivision B- Reporting at the End of Investigation
Clause 54: Report on Investigation
The Integrity Commissioner must complete a report after an investigation of a corruption
issue that relates to a law enforcement agency. The report must set out the Integrity
Commissioner's findings, evidence, action taken or to be taken, recommendations and
reasons. The Integrity Commissioner may recommend disciplinary action, action to
rectify or mitigate the effects of the conduct or adopting measures to remedy deficiencies
in policy or practice. If the Integrity Commissioner has conducted public hearing into a
corruption issue, the Integrity Commissioner must not include clause 149 certified
information in the report and may also exclude sensitive information (because the report
must be tabled under section 203). However, that information must be included in a
supplementary report.
Clause 55: Integrity Commissioner to Give Copy of Report to Certain Persons
The Integrity Commissioner must give a copy of the report and any supplementary report
to the Minister. In addition, the Integrity Commissioner must provide a copy of the report
to the head of the agency to which the investigation relates and may also provide any
supplementary report or parts thereof in accordance with a certificate issued under Clause
149.
Clause 56: Comments by Head of Agency
The head of the agency may give the Integrity Commissioner comments on a report or
supplementary report.
Clause 57: Follow-up Action on Report
The Integrity Commissioner may request details of any action that the head of the agency
proposes to take in relation to the Integrity Commissioner's recommendations. The head
of the agency must comply with the request. If the Integrity Commissioner is not satisfied
with the response, he or she may refer the matter to the Minister and to Parliament.
Clause 58: Advising Person who Referred Corruption Issue of Outcome of the
Investigation
The Integrity Commissioner must also take reasonable steps to inform a person who
refers a matter to the Integrity Commission, or a nominated person, about the outcomes
of the investigation if the person has elected to be kept informed under clause 25.
However, if the Integrity Commissioner is satisfied that advising the person is likely to
prejudice an investigation or any related action, the Integrity Commissioner can withhold
advising the person until such time as the circumstances change to remove such
prejudice.
Clause 59: Advising Person Whose Conduct is Investigated of Outcome of the
Investigation
The Integrity Commissioner may advise a person who is, or has been, a staff member of a
law enforcement agency about the outcome of the investigation where the corruption
issue relates to that person. The Integrity Commissioner may provide the person with a
copy of the whole or part of the report. However, the Integrity must not disclose to the
person information that is the subject of a certificate issued under section 149, if to do so
would contravene the terms of the certificate, and may withhold sensitive information if
it is desirable to do so in the circumstances.
PART 7 Investigations by Other Commonwealth Agencies
Paragraph 15(b) of Part 3 provides that the Integrity Commissioner may refer a
corruption issue to a law enforcement agency for investigation. Paragraph 15(c) of Part 3
provides that the Integrity Commissioner may manage, oversee or review an
investigation being conducted by a law enforcement agency. This Part sets out the
process and requirements in cases where the Integrity Commissioner either refers an
investigation to another agency or is managing or overseeing an investigation by another
agency. It also sets out the reporting and notification requirements.
Division 1- Nominated Contact for Investigations by Law Enforcement Agencies
Clause 60: Nominating Contact for Investigation
If the Integrity Commissioner refers a corruption issue to a law enforcement agency or
manages or oversees an investigation by a law enforcement agency, the head of the
agency will be the contact person for the Integrity Commissioner, unless he or she
nominates another person in writing. Law enforcement agency is defined in Clause 5 of
Part 2.
Division 2- Managing or Overseeing Investigations by Law Enforcement Agencies
Clause 61: Managing an Investigation
This clause sets out how the Integrity Commissioner manages a law enforcement
agency's investigation of a corruption issue. The Integrity Commissioner manages an
investigation of a corruption issue by providing the agency's nominated contact pursuant
to Clause 60, detailed guidance on the planning and carrying out of the investigation. The
head of the agency must ensure that staff members co-operate with the Integrity
Commissioner and adhere to any instructions provided.
Clause 62: Overseeing an Investigation
This clause sets out how the Integrity Commissioner oversees a law enforcement
agency's investigation of a corruption issue. The Integrity Commissioner oversees an
investigation of a corruption issue by providing the agency's nominated contact general
guidance on the planning and carrying out of the investigation. The head of the agency
must ensure that the agency follows the Integrity Commissioner's general guidance in
regards to the planning and carrying out of the investigation.
Division 3- Reporting
Subdivision A- Reporting by Law Enforcement Agencies During Investigations
Clause 63: Integrity Commissioner may Request Individual Progress Report
The Integrity Commissioner may request a progress report from the law enforcement
agency conducting an investigation. This request must be in writing, specifying a date at
least seven days later in which the report is due to the Integrity Commissioner and may
specify matters which the report is to address. The agency must comply with the request.
Clause 64: Integrity Commissioner may Request Periodic Progress Reports
The Integrity Commissioner may request periodic progress reports from the law
enforcement agency conducting an investigation. This request must be in writing,
specifying the frequency with which the reports are to be given to the Integrity
Commissioner and may specify matters which the reports are to address. The agency
must comply with the request.
Clause 65: Head of Law Enforcement Agency to Keep Person Who Referred
Corruption Issue Informed of Progress of Investigation
If the Minister refers a corruption issue to the Integrity Commissioner and the Integrity
Commissioner refers the matter to a law enforcement agency for investigation, the head
of that law enforcement agency must keep the Minister informed as to the progress of the
investigation. Where a person refers information or allegations of corruption issues to the
Integrity Commissioner under Clause 23 and elects to be kept informed under clause 25,
and the Integrity Commissioner refers that corruption issue to a law enforcement agency
for investigation, the head of the agency must keep the person informed as to the progress
of the investigation.
Subdivision B- Reporting by Commonwealth Government Agencies at End of
Investigation
Clause 66: Final Report on Investigation
At the conclusion of an investigation, the head of the agency must prepare a report for the
Integrity Commissioner including findings, evidence and any action taken, or proposed to
be taken in relation to the investigation. This obligation applies to all Commonwealth
agencies (including, for example, the home agency of a secondee), not just law
enforcement agencies. Where the report is prepared by the AFP in relation to another law
enforcement agency the report may make recommendations to the head of the other
agency. The report must be given to the head of the other agency at the same time as it is
given to the Integrity Commissioner.
Clause 67: Integrity Commissioner may Comment on Final Report
Upon receipt of the final report provided pursuant to clause 66, the Integrity
Commissioner may make comments and/or recommendations in writing to the head of
agency concerned, in relation to any matter arising from the report or the investigation.
Depending on his or her satisfaction with the report, the Integrity Commissioner may,
under clause 42, reconsider how the corruption issue should be dealt with. The Integrity
Commissioner may request details of actions that the agency plans to take in response to
the Integrity Commissioner's recommendations. If the Integrity Commissioner is not
satisfied with the response of the agency the Integrity Commissioner may refer the matter
to the Minister responsible for the agency. The Integrity Commissioner may also provide
a copy of the relevant information to Parliament and may discuss the matter with the
agency head for the purpose of resolving the matter. Certain information must be
excluded from the material given to Parliament. This is certified information under clause
149. The Integrity Commissioner may also exclude other information from presentation
to Parliament if he or she is satisfied that it is sensitive information that it is desirable to
exclude in the circumstances.
Clause 68: Advising Person who Referred Corruption Issue of Outcome of the
Investigation
If the person who refers a corruption issue elects under clause 25 to be kept informed, or
nominates a person to be kept informed, of any action taken in relation to a referred
corruption issue, and the Integrity Commissioner refers the corruption issue to another
agency for investigation, the agency must advise the person, or the relevant nominated
person, of the outcome of the investigation and may provide a copy of whole or part of
the report prepared by the Integrity Commissioner under clause 54. However, if the head
of the agency is satisfied that advising the person or relevant nominated person is likely
to prejudice an investigation or any related action, the head of the agency can withhold
advising until such time as the circumstances change to remove such prejudice. This
clause ensures that those who are entitled to be informed, are notified of the outcome of
the investigation, unless the prejudicial nature of advising him or her outweighs that
entitlement.
Clause 69: Advising Person Whose Conduct is Investigated of Outcome of the
Investigation
If a Commonwealth government agency investigates a corruption issue that relates to a
person who is or has been a staff member of a law enforcement agency, the head of that
agency may advise the staff member of the outcome and may provide them with a copy
of whole or part of the final report prepared by the investigating agency under clause 66.
Division 4- Integrity Commissioner to Pass on Information Relevant to Agency
Clause 70: Integrity Commissioner to Pass on Information Relevant to Agency
Investigation
In circumstances where a government agency is investigating a corruption issue, the
Integrity Commissioner must provide the head of agency with any relevant information
he or she becomes aware of, subject to clause 152 in respect of section 149 certificated
information.
PART 8- PUBLIC INQUIRIES INTO CORRUPTION ISSUES
Division 1- Conducting a Public Inquiry
Clause 71: Minister may Request Integrity Commissioner to Conduct Public
Inquiry
The Minister may request the Integrity Commissioner to conduct a public inquiry into a
corruption issue, corruption generally in law enforcement agencies and/or the integrity of
staff members of law enforcement agencies. For the definition of "corruption issue", see
clause 7 of the Bill. For the definition of "law enforcement agency", see clause 5 of the
Bill; For the definition of "corruption issue that relates to a law enforcement agency", see
clause 9 of the Bill. The conduct of public inquiries is a function of the Integrity
Commissioner under clause 15(d), and the powers available to the Integrity
Commissioner for the purposes of a public inquiry are set out in Part 9 of the Bill.
Clause 72: Publicising Inquiry
This clause imposes a duty on the Integrity Commissioner to invite submissions on issues
that are the subject of the public inquiry.
Division 2- Reporting
Clause 73: Report on Public Inquiry
At the end of an inquiry the Integrity Commissioner is required to submit a report to the
Minister. The report must include the findings, evidence, action taken or proposed to be
taken and recommendations. The report must exclude "sensitive information" that it is
desirable in the circumstances to exclude, "section 149 certified information" (see Clause
5 of the Bill for their definitions), and other information. When deciding whether to
exclude sensitive information, the Integrity Commissioner must take into account the
public interest that would be served by including the information in the report, and the
potential prejudicial consequences that might result from including the information in the
report. If information has been excluded from the report, a supplementary report must be
prepared by the Integrity Commissioner with the excluded information and reasons for
the exclusion.
Clause 74: Giving Report to Minister
At the conclusion of the inquiry, the Integrity Commissioner must provide the Minister
with a copy of the report on the public inquiry prepared under clause 73 and any
supplementary report. Under clause 203 the Minister is required to table the report in
Parliament, however there is no requirement for the Minister to table a supplementary
report.
PART 9- INTEGRITY COMMISSIONER'S POWERS IN CONDUCTING
INVESTIGATIONS AND PUBLIC INQUIRIES
Division 1- Requiring people to give information and produce documents
Subdivision ARequests by Integrity Commissioner
Clause 75: Request to staff member of law enforcement agency
Under clause 75, the Integrity Commissioner will be able to make requests to staff
members of law enforcement agencies requiring them to provide information or produce
documents or things for the purposes of investigating a corruption issue. Where the
Integrity Commissioner requests information, he or she may require that the information
be provided in writing. Clause 10 of the Bill sets out the classes of persons who are
considered to be staff members of law enforcement agencies for the purposes of the Bill.
All requests made under clause 75 must be made in writing, signed by the Integrity
Commissioner and served on the staff member of the law enforcement agency (subclause
75(2)). A staff member of a law enforcement agency that has a request made to him or
her under clause 75 must comply with that request as soon as reasonably practicable
(subclause 75(4)). A staff member of a law enforcement agency will commit an offence if
he or she fails to comply with a request made to him or her under clause 75 as soon as
reasonably practicable. The offence is set out in clause 78 of the Bill. However, a staff
member must not comply with the request if to do so would involve the disclosure of
documents or information that are the subject of a certificate issued by the Attorney-
General under clause 149 in contravention of the terms of the certificate. To ensure that
investigations into corruption issues are conducted efficiently, effectively and fairly, it is
necessary to provide the Integrity Commissioner with the power to compel the
production of documents and information relevant to an investigation. The type of
documents or information that the Integrity Commissioner will be able to request under
clause 75 is limited to those that are necessary for the purposes of investigating a
corruption issue. Corruption issue is a term defined in clause 7 of the Bill.
Clause 76: Request to person other than staff member of law enforcement agency
Under clause 76, the Integrity Commissioner will be able to make requests to any person,
other than a staff member of a law enforcement agency, requiring them to provide
information or produce documents or things for the purposes of investigating a corruption
issue. The Integrity Commissioner can request that a staff member of a law enforcement
agency provide documents or information or things under clause 75. Clause 76 applies
only to persons who are not staff members of law enforcement agencies. Clause 10 of the
Bill sets out the classes of persons who are considered to be staff members of law
enforcement agencies for the purposes of the Bill. All requests made under clause 76
must be made in writing, signed by the Integrity Commissioner and served on the person.
They must also specify the time that the person has to comply with the request. The
period for compliance must be at least 14 days from the day that the request is served on
the person (subclause 76(2)). A person served with a request under clause 76 must
comply with the request within the time for compliance specified in the request
(subclause76(4)). A staff member of a law enforcement agency will commit an offence if
he or she fails to comply with a request made to him or her under clause 76 within the
time specified in the request. The offence is set out in clause 78 of the Bill. However, a
staff member must not comply with the request if to do so would involve the disclosure
of documents or information that are the subject of a certificate issued by the Attorney-
General under clause 149 in contravention of the terms of the certificate. To ensure that
investigations into corruption issues are conducted efficiently, effectively and fairly, it is
necessary to provide the Integrity Commissioner with the power to compel the
production of documents and information relevant to an investigation. The type of
documents or information that the Integrity Commissioner will be able to request under
clause 76 is limited to those that are necessary for the purposes of investigating a
corruption issue. Corruption issue is a term defined in clause 7 of the Bill.
Clause 77: Integrity Commissioner may retain documents and things
Clause 77 allows the Integrity Commissioner to retain documents or things produced to
him or her pursuant to a request made under clause 75 or 76. Under clause 77, the
Integrity Commissioner will be able to:
· Take possession of a document or thing,
· Make copies of a document or thing,
· Take extracts from a document, and
· Retain possession of a document or thing for as long as necessary for the purposes of
the investigation for which the document or thing was requested.
Documents or things obtained pursuant to a request made under clause 75 or 76 will not
be able to be retained indefinitely. Rather, the period of time that the Integrity
Commissioner can retain documents or things under clause 77 is limited to the period for
which those documents or things are necessary for the purposes of the investigation for
which they were requested. At all times while the Integrity Commissioner retains a
document or thing obtained pursuant to a request made under clause 75 or 76, the
Integrity Commissioner must allow persons who would otherwise be entitled to inspect
or view the document or thing to inspect or view the document or thing at the times that
the person would ordinarily be able to do so (subclause 76(2)). Providing a power of
inspection means that the person is not completely deprived of the document or thing.
Clause 77 is necessary to enable the Integrity Commissioner to access documents and
information relevant to an investigation into a corruption issue. It also preserves the chain
of evidence, for example, should an investigation eventually lead to action being taken by
prosecutorial authorities or regulators. This clause is similar to sections 2 and 6F of the
Royal Commissions Act, section 18 of the Inspector-General of Intelligence and Security
Act, sections 28 and 29 of the ACC Act, sections 9 and 13 of the Ombudsman Act and
sections 18 and 19 of the Inspector-General of Taxation Act.
Subdivision BOffence and related provisions
Clause 78: Failure to comply with Integrity Commissioner's request
Offence by a staff member of a law enforcement agency
A staff member of a law enforcement agency commits an offence if he or she fails to
comply with a request made to him or her under clause 75 as soon as reasonably
practicable. The request must have been made in writing and served on the staff member.
Clause 10 of the Bill sets out the classes of persons who are considered to be staff
members of law enforcement agencies for the purposes of the Bill. To be held criminally
responsible for this offence, the staff member must also have been capable of complying
with the request. A staff member will not commit the offence if subclause 150(2) applies.
Subclause 150(2) of the Bill prohibits the disclosure of documents or information that is
the subject of a certificate issued by the Attorney-General under clause 149 of the Bill.
The Attorney-General can only issue a certificate under clause 149 if disclosure of the
document or information would be contrary to the public interest and one of the grounds
in subclause 149(2) is satisfied. In summary, the grounds for non-disclosure set out in
subclause 149(2) are where disclosure would:
· Prejudice national security, defence of international relations of the Commonwealth,
· Prejudice Commonwealth/State relations,
· Involve the disclosure of a Cabinet decision or Cabinet deliberations,
· Prejudice an investigation into whether a criminal offence has been committed or a civil
penalty provision has been contravened,
· Prejudice a fair trial,
· Reveal a confidential source of information relevant to the enforcement of a criminal
offence or a civil penalty provision,
· Prejudice the effectiveness of operational methods, or investigative practices or
techniques,
· Prejudice the proper performance of ACC functions, or
· Endanger a person's life or physical safety.
A staff member of a law enforcement agency is not excused from complying with a
request made under clause 75 on grounds that production of the information or
documents requested could incriminate them. The privilege against self-incrimination is
abrogated in clause 80 of the Bill. The maximum penalty for the offence is 2 years
imprisonment.
Offence by a person other than a staff member of a law enforcement agency
A person, other than a staff member of a law enforcement agency, commits an offence if
he or she fails to comply with a request made to him or her under clause 76 within the
time period specified in the request. Clause 10 of the Bill sets out the classes of persons
who are considered to be staff members of law enforcement agencies for the purposes of
the Bill. The request must have been made in writing and served on the person. The
request must have also specified the time for compliance, and this period must have been
at least 14 days from the day that the request was served on the person. To be held
criminally responsible for this offence, the person must also have been capable of
complying with the request. A staff member will not commit the offence if subclause
150(2) applies. Subclause 150(2) of the Bill prohibits the disclosure of documents or
information that is the subject of a certificate issued by the Attorney-General under
clause 149 of the Bill. The Attorney-General can only issue a certificate under clause 149
if disclosure of the document or information would be contrary to the public interest and
one of the grounds in subclause 149(2) is satisfied. In summary, the grounds for non-
disclosure set out in subclause 149(2) are where disclosure would:
· Prejudice national security, defence of international relations of the Commonwealth,
· Prejudice Commonwealth/State relations,
· Involve the disclosure of a Cabinet decision or Cabinet deliberations,
· Prejudice an investigation into whether a criminal offence has been committed or a civil
penalty provision has been contravened,
· Prejudice a fair trial,
· Reveal a confidential source of information relevant to the enforcement of a criminal
offence or a civil penalty provision,
· Prejudice the effectiveness of operational methods, or investigative practices or
techniques,
· Prejudice the proper performance of ACC functions, or
· Endanger a person's life or physical safety.
A person is not excused from complying with a request made under clause 75 on grounds
that production of the information or documents requested could incriminate them. The
privilege against self-incrimination is abrogated in clause 80 of the Bill. The maximum
penalty for the offence is 2 years imprisonment.
Clause 79: Legal Practitioner not required to disclose privileged communications
If the Integrity Commissioner makes a request to a legal practitioner under clause 76,
clause 79 provides that the legal practitioner can refuse to provide the documents or
information or things requested if doing so would disclose privileged communications
made by, or to, the legal practitioner in his or her capacity as a legal practitioner. This
means that where disclosure by a legal practitioner would disclose privileged
communications, the legal practitioner cannot be held criminally responsible for the
offence in clause 78 for failing to comply with a request made under clause 76. That is, if
clause 79 applies it will operate as an exception to the offence in clause 78. The excuse in
clause 79 (that is, where production of information, documents or things would disclose
privileged communications) will not be available to the legal practitioner if the person to
whom or by whom the privileged communication was made agrees to the legal
practitioner providing the information or document or thing. Where the excuse in clause
79 is available (that is, where the privilege has not been waived by the person to whom or
by whom the communication was made) and the legal practitioner refuses to give
information or produce documents or things on that basis, that is, on grounds that doing
so would disclose privileged communications, the Integrity Commissioner may request
the legal practitioner to provide the name and address of the person by, or to, whom the
communication was made (subclause 79(4)). A legal practitioner must comply with such
a request from the Integrity Commissioner. Clause 79 does not affect the law relating to
legal professional privilege.
Clause 80: Self-incrimination etc.
The privilege against self-incrimination is abrogated in clause 80 of the Bill. This means
that a staff member of a law enforcement agency, or a person, requested to provide
information, documents or things under clause 75 or 76 cannot refuse to produce the
document, information or things on grounds that doing so could incriminate him or her.
The privilege is not completely abrogated; rather, a use immunity is provided (see
subclauses 80(2) and (4)). However the use immunity is not available in five specified
circumstances (see subclause 80(4). The use immunity operates where a staff member of
a law enforcement agency, or a person other than a staff member of a law enforcement
agency, prior to producing information or documents or things pursuant to a request
under clause 75 or 76 (respectively) claims that doing so may tend to incriminate or
expose them to a penalty, the information or documents or things will not be admissible
as evidence against the person in criminal proceedings or any other proceedings for the
imposition or recovery of a penalty. There are five circumstances where this use
immunity will not be available. The use immunity will not be available, meaning that the
information or documents or things will be able to be used in evidence, in:
(a) Proceedings for an offence against clause 78 of the Bill failure to provide
information, documents or things requested by the Integrity Commissioner under
clause 75 or 76 of the Bill,
(b) Confiscation proceedings this term is defined in clause 5 of the Bill to mean
proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act
2002, or a corresponding law within the meaning of either of those Acts, but does
not include a criminal prosecution for an offence under either of those Acts or a
corresponding law,
(c) Proceedings for an offence against section 137.1 or 137.2 of the Criminal
Code being offences for providing false or misleading statements or documents,
(d) Proceedings for an offence against section 149.1 of the Criminal Code being
an offence for obstructing a Commonwealth public official, or
(e) Disciplinary proceedings against the person if the person is a staff member of
a law enforcement agency `disciplinary proceedings' is a term defined in clause
5 of the Bill and extends to proceedings taken under a law of the Commonwealth,
a State or a Territory. This exclusion will only apply if the disciplinary
proceedings are against a staff member of a law enforcement agency. That is, the
use immunity will not be abrogated in respect of disciplinary proceedings that
could be taken in respect of another profession (for example, the use immunity
will exist for information, documents or things produced by a doctor so that they
could not be used in disciplinary proceedings that might be taken by an medical
professional association against that doctor, for example, for medical negligence).
Immunity on public interest grounds
A person is not excused from answering a question or providing information or
documents or things when requested under clause 75 or 76, on the grounds that
answering the question, or producing the information or documents or things would
disclose:
· Legal advice given to a Minister or Commonwealth Government Agency, or
· A communication between another officer of a Commonwealth government
agency and another person, if that disclosure is protected by legal professional
privilege.
Commonwealth government agency is a term defined in clause 5 of the Bill. Similarly, a
person is not excused from answering a question or providing information or documents
or things when requested under clause 75 or 76, on the grounds that answering the
question, or producing the information or documents or things would breach a secrecy
provision. There is an exception however if disclosure would breach a taxation secrecy
provision or a law enforcement secrecy provision. This means that if answering the
question or disclosing the information or document or thing would breach a taxation
secrecy provision or a law enforcement secrecy provision, the person will not be required
to answer the question or disclose the information or document or thing and hence could
not be held criminally responsible under clause 78 for failing to comply with a request
made under clause 75 or 76. `Taxation secrecy provision' and `law enforcement secrecy
provision' are terms defined in clause 5 of the Bill.
If a person answers a question or provides documents or information or things in
response to a request made of him or her under clause 75 or 76, and that answer or
disclosure constitutes a breach of a secrecy provision (other than a taxation secrecy
provision or a law enforcement secrecy provision), subclause 80(7) provides that the
person cannot be liable to a penalty for an offence of breaching the secrecy provision.
Clause 80 also provides that it no excuse for a person to refuse or fail to comply with a
request made under clause 75 or 76 to answer a question or produce information or
documents or things on grounds that doing so would be contrary to the public interest.
Even though clause 80 provides that legal professional privilege is no excuse for refusing
or failing to comply with a request made under clause 75 or 76, this does not impact on
any other claim of legal professional privilege that another person may wish to make in
relation to the information or document or thing. It is necessary to abrogate the privilege
against self-incrimination to ensure that the Integrity Commissioner can be given access
to information, documents and things relevant to an investigation into a corruption issue.
The inclusion of a use immunity in all but five limited cases provides a safeguard to
persons that are required to answer questions or produce documents or information or
things under a request made under clause 75 or 76 that compliance with that request
cannot be used against them in criminal proceedings or proceedings for the imposition or
recovery of a penalty (this includes civil penalty proceedings). "Corruption issue" is a
term defined in clause 7 of the Bill. It is necessary to not provide a use immunity for
proceedings for an offence against clause 78 of the Bill (failure to comply with a request
under clause 75 or 76 of the Bill), confiscation proceedings (defined in clause 5 of the
Bill), proceedings for an offence of providing false or misleading information (sections
137.1 and 137.2 of the Criminal Code), proceedings for an offence of obstructing a
Commonwealth public official (section 149.1 of the Criminal Code) or disciplinary
proceedings because the nature of these proceedings is that they rely on evidence of the
contravention.
Clause 81: Protection of person required to give information and produce
documents
Clause 81 confers on people who give information, a document or a thing to the Integrity
Commissioner under clause 75 or 76 the same protection as a witness in proceedings in
the High Court.
Further, the Integrity Commissioner may make the necessary arrangements for the
protection of a person if the person's safety may be prejudiced, or the person may be
subjected to intimidation or harassment, because the person, or another person, has given
or is to give information, a document or a thing to the Integrity Commissioner under
clause 75 or 76. These arrangements may include arrangements with the Minister
administering the legislation, a member of the AFP or a member of a State or Territory
police force.
This clause expressly does not affect the Witness Protection Act 1994, but provides a
means by which threats to witnesses and their associates that are less serious than those
addressed by that Act may be dealt with, in accordance with the Senate Committee's
recommendation 4. In an appropriately serious case, the Integrity Commissioner will
also have the authority to seek protection for a person under the Witness Protection Act
(see item 97 of Schedule 1 to the Law Enforcement Integrity Commissioner
(Consequential Amendments) Bill 2006).
Division 2Conducting Hearings
Subdivision AGeneral Provisions
Clause 82: Integrity Commissioner may hold hearings
Clause 82 confers powers on the Integrity Commissioner to hold a hearing for the
purpose of investigating a corruption issue or conducting a public inquiry. "Corruption
issue" is a term defined in clause 7 of the Bill. "Public inquiry" is defined to mean an
inquiry conducted by the Integrity Commissioner pursuant to Part 8 of the Bill. The
Integrity Commissioner has a general power to regulate the conduct of proceedings at a
hearing as he or she sees fit. This is similar to subsection 25A(1) of the ACC Act.
Hearing in relation to an investigation into a corruption issue
Subclause 82(3) confers power on the Integrity Commissioner to hold the whole, or part
of, a hearing into a corruption issue in public or in private. In determining whether to
hold a hearing into a corruption issue in public or in private, subclause 82(4) requires the
Integrity Commissioner to have regard to whether:
· Evidence that may be given, or a matter that could arise, in the hearing is of a
confidential nature, or relates to the commission (whether real, alleged or
suspected) of an offence,
· A person's reputation could be unfairly prejudiced if the hearing is held in
public, and
· It is in the public interest for the hearing to be held in public.
In making the decision whether a hearing into a corruption issue should be held in public
or private, the Integrity Commissioner is also required to consider any other relevant
matters. Even where the Integrity Commissioner determines that a hearing into a
corruption issue is to be held in public, under clause 89 a witness can still request that his
or her evidence be taken in private. Under subclause 89(3) the Integrity Commissioner
can allow evidence in a public hearing to be given in private if he or she considers it
appropriate.
Hearing in relation to a public inquiry
Subclause 82(5) requires that a hearing into a public inquiry be held in public, however it
also confers a discretion on the Integrity Commissioner to direct that part of a hearing
into a public inquiry be held in private. It is necessary for the Integrity Commissioner to
have the discretion to hold part of a hearing into a public inquiry in private because
subclause 89(1) of the Bill provides that certain evidence can only be given in private.
Subclause 89(1) requires evidence to be given in private if the evidence would disclose:
· Legal advice given to a Minister or Commonwealth Government Agency, or
· A communication between another officer of a Commonwealth government
agency and another person, if that disclose is protected by legal professional
privilege.
Subclause 89(1) also requires that evidence be given in private if giving the evidence
would breach a secrecy provision. There is an exception to the requirement to give
evidence at all if disclosure would breach a taxation secrecy provision or a law
enforcement secrecy provision. If answering the question or disclosing information or a
document or thing would breach a taxation secrecy provision or a law enforcement
secrecy provision, the person will not be required to answer the question or disclose the
information or document or thing. This also means that the person could not be held
criminally responsible under clause 78 for failing to comply with a request made under
clause 75 or 76. `Taxation secrecy provision' and `law enforcement secrecy provision'
are terms defined in clause 5 of the Bill.
If a person answers a question or provides documents or information or things in
response to a request made of him or her under clause 75 or 76, and that answer or
disclosure constitutes a breach of a secrecy provision (other than a taxation secrecy
provision or a law enforcement secrecy provision), subclause 80(7) provides that the
person cannot be liable to a penalty for an offence of breaching the secrecy provision.
Lastly, if the evidence involves the disclosure of information that is the subject of a
certificate issued by the Attorney-General under clause 149, the evidence will also need
to be given in private in order to comply with the terms of the certificate.
Record of a hearing
Subclause 82(6) requires the Integrity Commissioner to make a record of each hearing he
or she conducts. Subclause 82(7) sets out certain matters that the Integrity Commissioner
must cause to be included in a record of a hearing. These are:
· Any document produced to the Integrity Commissioner at the hearing, and
· Description of any thing (other than a document) produced to the Integrity
Commissioner at the hearing.
However, the Integrity Commissioner will not be required to include these matters in the
record of a hearing if he or she directs otherwise under subclause 82(7). A direction given
by the Integrity Commissioner under subclause 82(7) is not a legislative instrument. The
Integrity Commissioner holds the discretion as to whether a hearing into a corruption
issue will be heard in public or in private.
Clause 83: Integrity Commissioner may summon person
Clause 83 confers power on the Integrity Commissioner to summon a person. Under
subclause 83(1) the Integrity Commissioner can serve a summons on a person to attend a
hearing at a time and place specified in the summons for the purpose of giving evidence
or producing documents or things specified in the summons. The summons must be in
writing, signed by the Integrity Commissioner and served on the person required to
attend the hearing (subclause 83(2)). If the hearing is held for the purpose of
investigating a corruption issue and the summons requires the person to give evidence at
the hearing, the summons must set out, to the extent that is reasonably practicable, the
general nature of the matters that Integrity Commissioner intends to question the person
on (subclause 83(3)). The Integrity Commissioner will not be required to set out the
matters if he or she is satisfied that doing so would be likely to prejudice the investigation
into the corruption issue, or any action that could be taken as a result of the investigation
into the corruption issue (as examples, disciplinary action, criminal prosecution, or
proceedings for a contravention of a civil penalty provision). Although a summons
requiring a person to attend a hearing to answer questions should set out the matters that
the Integrity Commissioner intends to question a person on, subclause 83(4) provides that
if the matters are listed in the summons, the matters listed will not limit the ability of the
Integrity Commissioner to question the person on aspects of any corruption issue
(whether or not it is the corruption issue that the hearing relates to). Clause 103 provides
that a person can apply for legal and financial assistance in respect of his or her
attendance at a hearing. Subclause 83(6) provides that a person that is summoned under
clause 83 to appear as a witness at a hearing is entitled to be paid allowances for travel
and other expenses. The regulations will prescribe the allowances. It is necessary for the
allowances to be prescribed in the regulations so that the allowances can be adjusted in a
timely manner to respond to changes in market conditions. This is similar to section 8 of
the Royal Commissions Act and sections 26 and 27 of the ACC Act. Failure to comply
with a summons issued under clause 83 is an offence under clause 93 of the Bill. It is also
an offence for a person to disclose the existence of a summons, or information about a
summons (see clause 92 of the Bill). A person may not be able to comply with a
summons issued under clause 83 because of the operation of subclause 150(2) which
prohibits the disclosure of documents or information that are the subject of a certificate
issued by the Attorney-General under clause 149 of the Bill. In such cases, the person
cannot be held to be criminally responsible for the offence in clause 93 for failing to
comply with the summons.
Clause 84: Integrity Commissioner may take evidence outside Australia
If there are arrangements in place between Australia and another country that allow
evidence to be taken in that other country for the purposes of a hearing held under
Division 2 of Part 9 of the Bill, the Integrity Commissioner may take evidence on oath or
by affirmation in that country. Provided that use of the evidence is in accordance with
Australia's arrangement with the other country, the Integrity Commissioner can use the
evidence for the purposes of performing his or her functions, or exercising his or her
powers, under the Bill. This clause is necessary because many staff members of
Commonwealth law enforcement agencies perform operations and duties outside
Australia. This clause enables the Integrity Commissioner to obtain evidence from these
persons even though they are not located in Australia at the relevant time. This clause is
similar to section 7B of the Royal Commissions Act.
Subdivision BProcedure at Hearing
Clause 85: Who may be represented at a hearing
Those providing evidence at a hearing are entitled to be represented by a legal
practitioner. Those not providing evidence at a hearing are also entitled to be represented
by a legal practitioner if special circumstances exist and they have consent from the
Integrity Commissioner.
Clause 86: Who may be present at a hearing
Subclause 86(1) provides that, for a private hearing, the Integrity Commissioner may
determine the people who can be present during all, or part of the hearing. A
determination made by the Integrity Commissioner under subclause 86(1) is not a
legislative instrument. In any case however, apart from the discretion conferred on the
Integrity Commissioner under subclause 86(10), the Integrity Commissioner must allow
all legal practitioners representing a person giving evidence to be present when the
evidence is being given. The Integrity Commissioner can also consent to a legal
practitioner representing a person not giving evidence to be present. If a witness is giving
evidence at a hearing and there is another person present who is neither a staff member of
ACLEI nor a legal practitioner representing a person at the hearing, the Integrity
Commissioner must inform the witness that the person is present and give the witness an
opportunity to comment on the person's presence. This is similar to subsections 25A(4),
(5), (7), (8) and (14) of the ACC Act. Staff member of ACLEI is a term defined in clause
11 of the Bill. For the avoidance of doubt, subclause 86(4) provides that even if a witness
makes an adverse comment about the presence of a person at a hearing, the person is still
entitled to be there if the Integrity Commissioner has made a determination under
subclause 86(1) that he or she can be present at the hearing. Subclause 86(4) also
provides, for the avoidance of doubt, that even if the Integrity Commissioner fails to
inform the witness that a person, who is neither a staff member of ACLEI nor a legal
practitioner representing a person at the hearing, is present at the hearing, or the Integrity
Commissioner does not give the witness the opportunity to comment on the person's
presence at the hearing, the person is still entitled to be present at the hearing if the
Integrity Commissioner has determined this to be the case under subclause 86(1).
Subclause 86(5) creates a criminal offence. The offence applies if a person is present
while evidence is being given in private at a hearing and the person is not authorised to
be there. The only time a person can be taken to be authorised to be there is where:
· The person is giving evidence, or
· The person is a legal practitioner representing a person giving evidence,
· The person is a legal practitioner and even though he or she is not representing a
person giving evidence, the Integrity Commissioner has consented to him or her
being present,
· The Integrity Commissioner has determined under subclause 86(1) that the
person can be present.
The offence is punishable by a maximum penalty of 12 months imprisonment.
Subdivision CTaking Evidence at Hearing
Clause 87: Evidence on oath or by affirmation
The Integrity Commissioner may require a witness at a hearing to take an oath or
affirmation. Clause 87 confers power on the Integrity Commissioner to administer an
oath or affirmation to a witness. The consequence of the power of the Integrity
Commissioner under subclause 87(1) to compel a witness to take an oath or affirmation is
that hearings held by the Integrity Commissioner under the Bill are characterised as
`judicial proceedings' under Part III of the Crimes Act. This means that the offences
attaching to judicial proceedings as set out in Part III of the Crimes Act are applicable to
hearings conducted under the Bill. For example, offences for giving false testimony,
fabricating evidence, intimidation of witnesses, corruption of witnesses, deceiving
witnesses, destroying evidence etc are available. If the Integrity Commissioner is taking
evidence from a witness overseas, as he or she is authorised to do under clause 84 of the
Bill, the Integrity Commissioner is empowered by subclause 87(2) to administer an oath
or affirmation on the witness. If the Integrity Commissioner does administer an oath or
affirmation on a witness overseas, subclause 87(2) requires the Integrity Commissioner to
ensure that the oath or affirmation is administered in accordance with the arrangement
made between Australia and the other country for the taking of that evidence (this is the
same `arrangement' referred to in clause 84 of the Bill) and in accordance with the laws
of that other country. Provided that use of the evidence is in accordance with Australia's
arrangement with the other country, clause 84 provides that the Integrity Commissioner
can use the evidence for the purposes of performing his or her functions, or exercising his
or her powers, under the Bill. An oath or affirmation administered by the Integrity
Commissioner under clause 87 is an oath or affirmation that the evidence the witness will
give will be true. Under subclause 87(4) the Integrity Commissioner has a discretion to
allow a person who is attending a hearing who has been sworn or has made an
affirmation to give evidence at the hearing by tendering a written statement and verifying
it by oath or affirmation. Failure to take an oath or make an affirmation if requested by
the Integrity Commissioner is an offence under clause 93 of the Bill. The offence is
punishable by a maximum penalty of two years imprisonment. Clause 96 of the Bill
abrogates the privilege against self-incrimination for this offence. Conferring power on
the Integrity Commissioner to compel a witness to take an oath or affirmation ensures the
efficacy of evidence given in a hearing.
Clause 88: Examination and cross-examination of witnesses
The Integrity Commissioner can allow for a witness to be examined and cross-examined
during a hearing. However the only persons who the Integrity Commissioner can
authorise to conduct examination and cross-examination are:
· Counsel assisting the Integrity Commissioner generally,
· Counsel assisting the Integrity Commissioner in the investigation or public
inquiry to which the hearing relates,
· Persons summoned, or otherwise authorised under the Bill, to appear before the
Integrity Commissioner, and
· Legal practitioners representing a person at the hearing.
This clause provides for a way for evidence of a witness to be adduced and tested during
a hearing. It is similar to section 6FA of the Royal Commissions Act and subsections
25A(2) and (6) of the ACC Act.
Clause 89: Giving evidence in private
Certain evidence must be given in private
Subclause 89(1) of the Bill provides that certain evidence can only be given in private.
Subclause 89(1) requires evidence to be given in private if the evidence would disclose:
· Legal advice given to a Minister or Commonwealth Government Agency, or
· A communication between another officer of a Commonwealth government
agency and another person, if that disclosure is protected by legal professional
privilege.
Subclause 89(1) also requires that evidence be given in private if giving the evidence
would breach a secrecy provision. There is an exception to the requirement to give
evidence at all if disclosure would breach a taxation secrecy provision or a law
enforcement secrecy provision. If answering the question or disclosing information or a
document or thing would breach a taxation secrecy provision or a law enforcement
secrecy provision, the person will not be required to answer the question or disclose the
information or document or thing. This also means that the person could not be held
criminally responsible under clause 78 for failing to comply with a request made under
clause 75 or 76. `Taxation secrecy provision' and `law enforcement secrecy provision'
are terms defined in clause 5 of the Bill. If a person answers a question or provides
documents or information or things in response to a request made of him or her under
clause 75 or 76, and that answer or disclosure constitutes a breach of a secrecy provision
(other than a taxation secrecy provision or a law enforcement secrecy provision),
subclause 80(7) provides that the person cannot be liable to a penalty for an offence of
breaching the secrecy provision. Lastly, if the evidence involves the disclosure of
information that is the subject of a certificate issued by the Attorney-General under
clause 149, the evidence may also need to be given in private in order to comply with the
terms of the certificate.
Person may request that certain evidence be given in private
Under subclause 89(2), a witness who is giving evidence at a public hearing can request
that the evidence be given in private if the evidence relates to the profits or financial
position of a person and the taking of the evidence in pubic would be unfairly prejudicial
to the interests of that person. Under subclause 89(3) the Integrity Commissioner has the
discretion to allow the evidence to be given in appropriate if he or she considers it
appropriate.
Clause 90: Directions in relation to confidentiality
Prohibition of limitation on publication
Subclause 90(1) confers power on the Integrity Commissioner to issue a direction
limiting or preventing the publication of evidence, documents and descriptions of things
produced to the Integrity Commissioner during a hearing. Under subclause 90(1) the
Integrity Commissioner can also prevent or limit the publication of information that
could enable the identification of a person who has given evidence at a hearing, or the
fact that the person has given, or may be about to give, evidence at the hearing. The
Integrity Commissioner has a discretion whether to issue a direction under subclause
90(1) unless the hearing is being held in private and the Integrity Commissioner is
satisfied that failure to give a direction might prejudice a person's safety or reputation, or
the fair trial of a person who has been or may be charged with an offence. In such cases,
subclause 90(2) removes the Integrity Commissioner's discretion and requires him or her
to issue a direction under subclause 90(1). The Integrity Commissioner's discretion as to
whether to issue a direction under subclause 90(1) is also removed so that the Integrity
Commissioner must issue a direction where the evidence, document, information or thing
might lead to the publication of information that is the subject of a certificate issued by
the Attorney-General under clause 149 of the Bill. Failure to comply with a direction
issued by the Integrity Commissioner under subclause 90(1) is an offence under
subclause 90(6), punishable by a maximum penalty of 12 months imprisonment. Under
subclause 90(3) the Integrity Commissioner has a limited ability to vary or revoke a
direction given under subclause 90(1). The Integrity Commissioner cannot vary or revoke
a direction if the Integrity Commissioner is satisfied that doing so might prejudice a
person's safety or reputation or the fair trial of a person who has been or may be charged
with an offence, or could lead to the publication of information that is the subject of a
certificate issued by the Attorney-General under clause 149 of the Bill. Any variation to,
or revocation of, a subclause 90(1) direction must be given in writing.
Court certificate in relation to evidence in respect of which a direction has been given
Where a person has been charged with an offence, before a federal court or a court of a
State or Territory, and the Court considers it to be desirable in the interests of justice that
particular evidence that is the subject of a direction given by the Integrity Commissioner
under subclause 90(1) be made available to the person or a legal practitioner representing
the person, the Court is empowered to give the Integrity Commissioner a certificate to
that effect. If the Integrity Commissioner is given a certificate by a court under subclause
90(4), he or she must make the evidence available to the Court. If the Integrity
Commissioner provides evidence to a Court pursuant to a certificate issued by the Court
under subclause 90(4), the Court may, after examining the evidence, make the evidence
available to the person charged with the offence concerned, or to a legal practitioner
representing the person, provided that the court is satisfied that the interests of justice so
require (subclause 90(5)). The Court makes the final determination whether the evidence
should be passed to the defendant, or the defendant's legal practitioner.
Offence
Subclause 90(6) makes it an offence for a person to contravene a direction given to him
or her by the Integrity Commissioner under subclause 90(1).The offence is punishable by
a maximum penalty of 12 months imprisonment.
Subdivision DProhibitions against disclosing information about a summons and
offences
Clause 91: Disclosure of summons may be prohibited
If a summons has been served on a person under clause 83 requiring the person to attend
a private hearing, under subclause 91(2) the Integrity Commissioner has a general
discretion (limited by subclauses 91(3)-(5)) to include a notation in the summons
preventing or limiting disclosure of information about the summons or any official matter
connected with the summons. `Official matter' is defined in clause 5 of the Bill. Under
subclause 91(3) the Integrity Commissioner will be required to include a notation (no
discretion) if the Integrity Commissioner is satisfied that failure to include a notation
would reasonably be expected to prejudice the safety, reputation or fair trial of a person,
or an investigation or action taken as a result of an investigation, whether that
investigation relates to the hearing or another corruption issue. If the Integrity
Commissioner has a discretion whether to include a notation in a summons (that is,
subclause 91(3) does not apply), subclause 91(4) provides that the Integrity
Commissioner can only include the notation if satisfied that failure to do so might
prejudice the safety, reputation or fair trial of a person, or an investigation or action taken
as a result of an investigation, whether that investigation relates to the hearing or another
corruption issue, or would otherwise be contrary to the public interest. If none of these
factors are present, subclause 91(5) provides that the Integrity Commissioner cannot
include a notation in a summons.
Written statement to accompany notation
If a notation is included in a summons, subclause 91(6) requires that the summons must
be accompanied by a written statement that sets out the rights and obligations conferred
and imposed by clause 92 of the Bill.
Cancellation of a notation
Subclause 91(7) provides that a notation to a summons is cancelled if the Integrity
Commissioner concludes the subject investigation and any criminal proceedings resulting
from the investigation have commenced. If a notation is cancelled, subclause 91(8)
requires the Integrity Commissioner to advise the person that was served the summons of
the cancellation in writing. This Clause is designed to prevent a disclosure which could
lead to the destruction, or alteration of evidence, intimidation of witnesses etc. Disclosing
the mere existence of an investigation may prompt actions of those under investigation,
detrimentally affecting the Integrity Commissioner's outcome. However, a specified
circumstance allowing disclosure is likely to be in order to obtain legal advice.
Relationship of notation with Privacy Act
Subclause 91(9) provides that where a notation has been made on a summons, credit
reporting agencies are prohibited from making a note about any disclosure of personal
information they make about an individual unless the notation is cancelled. This is
relevant because credit reporting agencies would otherwise be required to make a note
about that disclosure in the individual's credit information file (subsection 18(5) of the
Privacy Act).
Clause 92: Offences of disclosure
Offence
Subclause 92(1) creates a criminal offence where a person who has been served with a
summons (under clause 83 of the Bill) that includes a notation (included on the summons
under clause 91 of the Bill) and the person discloses the existence of, or any information
about, the summons or any official matter connected with the summons. The elements of
the offence will only be satisfied if the prosecution can prove that the notation was not
cancelled by subclause 91(7) and five years has not passed since the summons was
served on the person. Official matter is defined in clause 5 of the Bill. The offence is
punishable by a maximum penalty of 12 months imprisonment.
Defence
Subclause 92(2) provides a defence to the offence in subclause 92(1) where the
disclosure was made:
· In circumstances permitted by the terms of the notation,
· To a legal practitioner for the purpose of obtaining legal advice or representation in
relation to the summons,
· To a legal aid officer for the purpose of obtaining assistance in relation to the summons,
· Where the person is a body corporate--to an officer or agent of the body corporate for
the purpose of ensuring compliance with the summons, or
· Where the person is a legal practitioner--for the purpose of obtaining the agreement of
another person to allow the legal practitioner to answer questions or produce documents
or things at a hearing.
If a defendant wishes to rely on the defence in subclause 92(2), he or she will bear an
evidentiary burden in relation to the matters set out in subclause 92(2). This is because of
the operation of section 13.3 of the Criminal Code. It is appropriate for the defendant to
bear the burden of proving these matters because they are matters that, by their nature,
are within the knowledge of the defendant.
Offence
Subclause 92(3) creates a criminal offence where a person who has been served with a
summons (under clause 83 of the Bill) that includes a notation (included on the summons
under clause 91 of the Bill) and the person discloses the existence of, or any information
about, the summons or any official matter connected with the summons. The elements of
the offence will only be satisfied if the prosecution can prove that the notation was not
cancelled by subclause 91(7) and five years has not passed since the summons was
served on the person. Official matter is defined in clause 5 of the Bill. The offence is
punishable by a maximum penalty of 12 months imprisonment.
Defence
Subclause 92(4) provides a defence to the offence in subclause 92(3) where the
disclosure was made:
· if the person is an officer or agent of a body corporate referred to in paragraph (2)(d):
- to another officer or agent of the body corporate for the purpose of ensuring
compliance with the summons,
- to a legal practitioner for the purpose of obtaining legal advice or representation
in relation to the summons, or
- to a legal aid officer for the purpose of obtaining assistance under section ^103
in relation to the summons, or
· if the person is a legal practitioner--for the purpose of giving legal advice, making
representations, or obtaining assistance in relation to the summons, or
· if the person is a legal aid officer--for the purpose of obtaining legal advice or
representation in relation to the summons.
If a defendant wishes to rely on the defence in subclause 92(4), he or she will bear an
evidentiary burden in relation to the matters set out in subclause 92(4). This is because of
the operation of section 13.3 of the Criminal Code. It is appropriate for the defendant to
bear the burden of proving these matters because they are matters that, by their nature,
are within the knowledge of the defendant.
Offence
Subclause 92(5) creates a criminal offence where a person who has been served with a
summons (under clause 83 of the Bill) that includes a notation (included on the summons
under clause 91 of the Bill) and the person makes a record of, or discloses the existence
of, or any information about, the summons or any official matter connected with the
summons. The elements of the offence will only be satisfied if the prosecution can prove
that the notation was not cancelled by subclause 91(7) and five years has not passed since
the summons was served on the person. The restrictions of disclosure are imposed to
ensure the quality of investigations and to protect the nature of any proceedings. The
offences are aimed at preventing investigative work from being compromised by the
disclosure of information that could infer the identity of a witness or the existence of an
investigation. Subclause 92(6) provides that a reference in clause 92 to disclosing the
existence of something extends to the disclosure of information from which a person
could reasonably be expected to infer its existence.
Subdivision EOffences in relation to hearings
Clause 93: Offences
This Clause outlines various offences for failing to comply with a summons served by the
Integrity Commissioner.
Offence for failure to attend hearing
Subclause 93(1) makes it is an offence for a person to fail to attend or report from day to
day at a hearing if required to do so under a summons. There is an exception to this
offence where the defendant can prove that the Integrity Commissioner excused him or
her from attending the hearing. The defendant will bear an evidentiary burden to prove
that he or she was excused if he or she wishes to rely on this exception. The defendant
bears the evidentiary burden because of the operation of section 13.3 of the Criminal
Code. The offence is punishable by a maximum penalty of 12 months imprisonment.
Failure to swear an oath or make an affirmation
Subclause 93(2) makes it an offence for a person who is served with a summons to attend
a hearing to fail to be sworn or make an affirmation at the hearing. The offence is
punishable by a maximum penalty of 2 years imprisonment. Under clause 80, the
privilege against self-incrimination is abrogated, but certain use immunities apply.
Failure to answer questions
Subclause 93(2) also makes it an offence for a person who is served with a summons to
attend a hearing to fail to answer questions that the Integrity Commissioner requires the
person to answer at the hearing. This offence is subject to the operation of clause 95 and
150 of the Bill. This offence is punishable by a maximum penalty of 2 years
imprisonment. Under clause 80, the privilege against self-incrimination is abrogated, but
certain use immunities apply.
Failure to produce a document or thing
Subclause 93(4) makes it an offence for a person to fail to produce a document or thing
the person was required to produce under a summons served on them by the Integrity
Commissioner. This offence is subject to the operation of clause 95 and 150 of the Bill.
This offence is punishable by a maximum penalty of 2 years imprisonment. Under clause
80, the privilege against self-incrimination is abrogated, but certain use immunities apply.
Clause 94: Contempt
Clause 94 creates three types of offences that support the Integrity Commissioner's
power to control the proceedings of hearings and address improper behaviour. The
offences will preserve the integrity and due conduct of proceedings. Subclause 94(1)
makes it an offence for a person to insult, disturb or use insulting language toward
another person where that other person is the Integrity Commissioner. The offence will
only be made out if the on can prove that the person knew that the other person was the
Integrity Commissioner, and was holding a hearing in the performance of his or her
functions, or the exercise of his or her powers, as the Integrity Commissioner. This
offence is punishable by a maximum penalty of 6 months imprisonment. Subclause 94(2)
makes it an offence for a person to create a disturbance or take part in creating or
continuing a disturbance in or near a place where a hearing is being held for the purpose
of investigating a corruption issue or conducting a public inquiry. The offence will only
be made out if the prosecution can prove that the person knew that the place is a place
where a hearing is being held for the purpose of investigating a corruption issue or
conducting a public inquiry. This offence is punishable by a maximum penalty of 6
months imprisonment. Subclause 94(3) makes it an offence for a person to interrupt a
hearing that is being held for the purpose of investigating a corruption issue or
conducting a public inquiry. It is also an offence under subclause 94(3) for a person to do
an act or thing that, if the hearing were being held in a court of record, would constitute
contempt of that Court. This offence is punishable by a maximum penalty of 6 months
imprisonment.
Clause 95: Legal Practitioner not required to disclose privileged communications
If the Integrity Commissioner summons a legal practitioner under clause 83 to attend a
hearing and asks a legal practitioner to answer questions, provide information or produce
a document or thing to the Integrity Commissioner at a hearing, the legal practitioner can
refuse to answer the question or provide the documents or information or thing requested
if doing so would disclose privileged communications made by, or to, the legal
practitioner in his or her capacity as a legal practitioner. This means that where disclosure
by a legal practitioner would disclose privileged communications, the legal practitioner
cannot be held criminally responsible for failing to answer the question or provide the
documents or information or thing under a summons. The exception to the requirement to
answer a question or provide documents or information or things provided in clause 95
(that is, where production of information, documents or things would disclose privileged
communications) will not be available to the legal practitioner if the person to whom or
by whom the privileged communication was made agrees to the legal practitioner
providing the information or document or thing (subclause 95(3)). Where the exception
in clause 95 is available (that is, where the privilege has not been waived by the person to
whom or by whom the communication was made) and the legal practitioner refuses to
give information or produce documents or things on that basis, that is, on grounds that
doing so would disclose privileged communications, the Integrity Commissioner may
request the legal practitioner to provide the name and address of the person by, or to,
whom the communication was made (subclause 95(4)). A legal practitioner must comply
with such a request from the Integrity Commissioner. Clause 95 does not affect the law
relating to legal professional privilege.
Clause 96: Self-incrimination etc.
The privilege against self-incrimination is abrogated in clause 96 of the Bill. This means
that a person, summoned under clause 83 to answer questions, provide information,
documents or things at a hearing cannot refuse to produce the document, information or
things on grounds that doing so could incriminate him or her. The privilege is not
completely abrogated; rather, a use immunity is provided (see subclauses 96(2) and (4)).
However the use immunity is not available in five specified circumstances (see subclause
96(4). The use immunity operates where a person, prior to producing information or
documents or things pursuant to a summons, claims that doing so may tend to incriminate
or expose them to a penalty, the information or documents or things will not be
admissible as evidence against the person in criminal proceedings or any other
proceedings for the imposition or recovery of a penalty. There are five circumstances
where this use immunity will not be available. The use immunity will not be available,
meaning that the information or documents or things will be able to be used in evidence,
in:
(i) Proceedings for an offence against clause 93 of the Bill failure to comply
with a summons issued by the Integrity Commissioner under clause 83 of the Bill,
(ii) Confiscation proceedings this term is defined in clause 5 of the Bill to mean
proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act
2002, or a corresponding law within the meaning of either of those Acts, but does
not include a criminal prosecution for an offence under either of those Acts or a
corresponding law,
(iii) Proceedings for an offence against section 137.1 or 137.2 of the Criminal
Code being offences for providing false or misleading statements or documents,
(iv) Proceedings for an offence against section 149.1 of the Criminal Code
being an offence for obstructing a Commonwealth public official, or
(v) Disciplinary proceedings against the person if the person is a staff member of
a law enforcement agency `disciplinary proceedings' is a term defined in clause
5 of the Bill and extends to proceedings taken under a law of the Commonwealth,
a State or a Territory. This exclusion will only apply if the disciplinary
proceedings are against a staff member of a law enforcement agency. That is, the
use immunity will not be abrogated in respect of disciplinary proceedings that
could be taken in respect of another profession (for example, the use immunity
will exist for information, documents or things produced by a doctor so that they
could not be used in disciplinary proceedings that might be taken by an medical
professional association against that doctor, for example, for medical negligence).
Immunity on public interest grounds
A person is not excused from answering a question or providing information or
documents or things when summoned under clause 83, on the grounds that answering the
question, or producing the information or documents or things would disclose:
· Legal advice given to a Minister or Commonwealth Government Agency, or
· A communication between another officer of a Commonwealth government
agency and another person, if that disclose is protected by legal professional
privilege.
Commonwealth government agency is a term defined in clause 5 of the Bill. Similarly, a
person is not excused from answering a question or providing information or documents
or things when summoned under clause 83, on the grounds that answering the question,
or producing the information or documents or things would breach a secrecy provision.
There is an exception however if disclosure would breach a taxation secrecy provision or
a law enforcement secrecy provision. This means that if answering the question or
disclosing the information or document or thing would breach a taxation secrecy
provision or a law enforcement secrecy provision, the person will not be required to
answer the question or disclose the information or document or thing and hence could not
be held criminally responsible under clause 93 for failing to comply with a summons
issued under clause 83. `Taxation secrecy provision' and `law enforcement secrecy
provision' are terms defined in clause 5 of the Bill. If a person answers a question or
provides documents or information or things in response to a summons served on him or
her under clause 83 of the Bill, and that answer or disclosure constitutes a breach of a
secrecy provision (other than a taxation secrecy provision or a law enforcement secrecy
provision), subclause 96(7) provides that the person cannot be liable to a penalty for an
offence of breaching the secrecy provision. Clause 96 also provides that it is no excuse
for a person to refuse or fail to comply with a summons issued under clause 83 to answer
a question or produce information or documents or things on grounds that doing so would
be contrary to the public interest. Even though clause 96 provides that legal professional
privilege is no excuse for refusing or failing to comply with a summons issued under
clause 83, this does not impact on any other claim of legal professional privilege that
another person may wish to make in relation to the information or document or thing. It
is necessary to abrogate the privilege against self-incrimination to ensure that the
Integrity Commissioner can be access to information, documents and things relevant to
an investigation into a corruption issue. The inclusion of a use immunity in all but five
limited cases provides a safeguard to persons that are required to answer questions or
produce documents or information or things under a summons cannot be used against
him or her in criminal proceedings or proceedings for the imposition or recovery of a
penalty (this includes civil penalty proceedings). Corruption issue is a term defined in
clause 7 of the Bill. It is necessary to not provide a use immunity for proceedings for an
offence against clause 93 of the Bill (failure to comply with a summons), confiscation
proceedings (defined in clause 5 of the Bill), proceedings for an offence of providing
false or misleading information (sections 137.1 and 137.2 of the Criminal Code),
proceedings for an offence of obstructing a Commonwealth public official (section 149.1
of the Criminal Code) or disciplinary proceedings because the nature of these
proceedings is that they rely on evidence of the contravention.
Subdivision FCourt Orders for Delivery of Witness' Passport and Witness' Arrest
Clause 97: Integrity Commissioner may apply for order that witness deliver his or
her passport
Clause 97 gives the Integrity Commissioner standing to apply to a Judge of the Federal
Court for an order that a person deliver his or her passport to the Integrity Commissioner.
The Integrity Commissioner can only apply to the Judge if:
(i) the person has been served with a summons under clause 83 of the Bill to
attend a hearing into a corruption investigation or public inquiry, or the person
has already attended a hearing in relation to a corruption investigation or public
inquiry to give evidence or produce documents or things, and
(ii) there are reasonable ground for believing that the person may be able to give
evidence that is relevant to the investigation or public inquiry, and
(iii) there are reasonable grounds for suspecting that the person has, in his or her
possession, custody or control, a passport issued to him or her, and
(iv) there are reasonable grounds for suspecting that the person intends to leave
Australia.
In applying for an order under subclause 97(1), subclause 97(2) requires that the Integrity
Commissioner give the Judge the information on oath or by affirmation. This Clause is
aimed at preserving the evidence of witnesses by assuring their attendance at a hearing to
provide information, documents, things or testimony where there is a reasonable
suspicion that the witness may leave Australia before providing that evidence.
Clause 98: Court Orders
This Clause allows the Federal Court make an independent decision about whether a
person's passport should be submitted to the Integrity Commissioner.
Court order for a witness to appear before the court
If a Judge of the Federal Court, while sitting in Chambers, is satisfied on the evidence
that the requirements set out in subclause 97(1) are met, that is, the Judge is satisfied that:
(i) a person has been served with a summons under clause 83 of the Bill to attend
a hearing into a corruption investigation or public inquiry, or the person has
already attended a hearing in relation to a corruption investigation or public
inquiry to give evidence or produce documents or things, and
(ii) there are reasonable ground for believing that the person may be able to give
evidence that is relevant to the investigation or public inquiry, and
(iii) there are reasonable grounds for suspecting that the person has, in his or her
possession, custody or control, a passport issued to him or her, and
(iv) there are reasonable grounds for suspecting that the person intends to leave
Australia, subclause 98(1) confers power on the Judge to make an order that
requires the person to appear before the Federal Court on a specified date, and at a
specified time and place, to show cause for why he or she should not be ordered
to deliver his or her passport to the Integrity Commissioner.
Offence
Subclause 98(2) makes it an offence for a person to leave Australia if he or she has been
served with a copy of an order made by a Judge of the Federal Court under subclause
98(1) requiring him or her to appear before the Federal Court on a specified date, and at a
specified time and place, to show cause for why he or she should not be ordered to
deliver his or her passport to the Integrity Commissioner. Subclause 98(3) provides an
exception to the offence in subclause 98(2) where the defendant can prove that he or she
appeared before the Federal Court as required by the order. A defendant bears an
evidential burden if he or she wishes to rely on this exception in subclause 98(3). The
burden shifts to the defendant because of the operation of section 13.3 of the Criminal
Code. It is appropriate that the defendant bear the evidential burden for this matter as it is
a matter that is, by its nature, peculiarly within the knowledge of the defendant.
Subclause 98(3) creates a second exception to the offence in subclause 98(2) where the
court makes an order under subclause 98(4)(a) that the defendant complied with the terms
of the order made under subclause 98(1) and any passport delivered to the Integrity
Commissioner was returned to the person. A defendant bears an evidential burden if he or
she wishes to rely on this exception in subclause 98(3). The burden shifts to the
defendant because of the operation of section 13.3 of the Criminal Code. It is appropriate
that the defendant bear the evidential burden for this matter as it is a matter that is, by its
nature, peculiarly within the knowledge of the defendant. The offence in subclause 98(2)
is punishable by a maximum penalty of 2 years imprisonment.
Court order that a witness deliver passport to the Integrity Commissioner
Subclause 98(4) grants the Federal Court the authority to make an order, if it thinks fit,
requiring a person to deliver a passport issued to him or her, or in his or her possession,
custody or control, to the Integrity Commissioner. The Court may also order that the
Integrity Commissioner can retain the passport for a period not exceeding one month
from the date the order is made. This period can however be extended under subclause
98(5). The Federal Court can only make an order under subclause 98(4) if the person has
appeared before the court pursuant to an order made by a Judge of the Federal Court
under subclause 98(1).
Extension of period that the Integrity Commissioner may retain passport
Under subclause 98(5) the Integrity Commissioner can apply to the Federal Court to
extend the period for which the Integrity Commissioner can retain a passport delivered to
the Integrity Commissioner pursuant to an order made under subclause 98(4). Under
subclause 98(5) the Federal Court may, on application by the Integrity Commissioner,
extend the period for which the Integrity Commissioner can retain a passport delivered to
the Integrity Commissioner pursuant to an order made under subclause 98(4), for a
further period or periods not exceeding one month in each case. However, the total period
for which the Integrity Commissioner can retain a passport delivered to him or her
pursuant to an order made under subclause 98(4) is 3 months. That is, the Federal Court
cannot extend the period for which the Integrity Commissioner can retain the passport
beyond a cumulative total period of 3 months.
Revocation of court order
Subclause 98(6) provides that if the Federal Court makes an order authorising the
Integrity Commissioner to retain a passport issued to a person, the person may apply to
the Federal Court for the order to be revoked. Subclause 98(7) provides that if the Federal
Court revokes the order, the Integrity Commissioner must return the passport to the
person immediately.
Jurisdiction of the Federal Court
Subclause 98(8) provides the Federal Court with jurisdiction in respect of matters that
arise out of the operation of clause 98 of the Bill.
Definition
Subclause 98(9) defines `Australia', for the purposes of the operation of clause 98 of the
Bill, to include its external territories.
Clause 99: Applying for a warrant to arrest witness
Subclause 99(1) confers power on an authorised officer to apply to a Judge of the Federal
Court of Australia, or of the Supreme Court of a State or Territory, for a warrant to arrest
a person. An authorised officer can only make an application to a Court under subclause
99(1) if he or she has reasonable grounds to believe that the person falls within one of the
three categories that follow:
(i) The person has been ordered to deliver his or her passport to the Integrity
Commissioner (whether or not the person has complied with the order) and is
likely to leave Australia for the purpose of avoiding giving evidence at a hearing
before the Integrity Commissioner, or
(ii) The person has been served with a summons issued under clause 83 and has
either absconded or is likely to abscond, or is otherwise attempting, or likely to
attempt, to evade service of the summons, or
(iii) The person has committed an offence under subclause 93(1) or is likely to do
so.
`Authorised officer' is a term defined in clause 5 of the Bill. In making an application
under subclause 99(1), subclause 99(2) requires that the authorised officer give the Judge
the information required in subclause 99(1) either on oath, or by affirmation.
Clause 100: Warrant for arrest
Issue of warrant
If a Judge, while sitting in Chambers, is satisfied on the evidence that there are
reasonable grounds for believing that the matters set out in subclause 99(1)(a) or 99(1)(b)
or 99(1)(c) are met, that is, either:
(i) The person has been ordered to deliver his or her passport to the Integrity
Commissioner (whether or not the person has complied with the order) and is
likely to leave Australia for the purpose of avoiding giving evidence at a hearing
before the Integrity Commissioner (subclause 99(1)(a)), or
(ii) The person has been served with a summons issued under clause 83 and has
either absconded or is likely to abscond, or is otherwise attempting, or likely to
attempt, to evade service of the summons (subclause 99(1)(b)), or
(iii) The person has committed an offence under subclause 93(1) or is likely to do
so (subclause 99(1)(c)), subclause 100(1) confers power on the Judge to issue a
warrant authorising the authorised officer to arrest the person.
`Authorised officer' is a term defined in clause 5 of the Bill. The test as to whether there
are reasonable grounds for believing that the matters set out in subclause 99(1)(a) or
99(1)(b) or 99(1)(c) are met is an objective test.
Execution of warrant
Subclause 100(2) provides that, for the purpose of executing a warrant issued under
subclause 100(1), if the authorised officer executing the warrant, or an assisting officer,
believes on reasonable grounds that the person to whom the warrant relates is on certain
premises, the authorised officer or assisting officer is authorised to break into, and enter,
those premises. The test in subclause 100(2) as to whether there are reasonable grounds
for believing that the person to whom the warrant relates is on the premises is an
objective test. However, if the premises are a dwelling house, subclause 100(3) limits the
ability of the authorised officer or assisting officer to enter the premises. Subclause
100(3) prohibits the authorised officer executing the warrant, or assisting officer, from
entering a dwelling house at any time during the period commencing at 9 pm on a day
and ending at 6 am on the following day unless the authorised officer or assisting officer
believes on reasonable grounds that it would not be practicable to arrest the person, either
at the dwelling house or elsewhere, at another time. `Authorised officer' and `assisting
officer' are terms defined in clause 5 of the Bill. The test in subclause 100(3) as to
whether there are reasonable grounds for believing that it would not be practicable to
arrest the person, either at the dwelling house or elsewhere, at another time is an
objective test. In arresting a person under a warrant issued under subclause 100(1),
subclause 100(4) prohibits the authorised officer executing the warrant, or assisting
officer, from using more force, or subjecting the person to greater indignity, than is
necessary and reasonable to make the arrest or to prevent the escape of the person after
the arrest. Under subclause 100(5) a warrant issued under subclause 100(1) can be
executed even if the authorised officer dopes not have a copy of the warrant in his or her
possession at the time that the warrant is executed. Subclause 100(6) requires the
authorised officer executing a warrant issued under subclause 100(1), or an assisting
officer who arrests the person to whom the warrant relates, to inform the person, at the
time of the arrest, of the reason for which he or she is being arrested. For the purposes of
informing the person under subclause 100(6), subclause 100(7) provides that it is
sufficient if the person is informed of the substance of the reason. That is, it is not
necessary that this be done in language of a precise or technical nature. There is an
exception to the requirement on an authorised officer or assisting officer under subclause
100(6) to inform the person, at the time of the arrest, of the reason for which he or she is
being arrested. Subclause 100(8) provides that the requirement on an authorised officer
or assisting officer under subclause 100(6) to inform the person, at the time of the arrest,
of the reason for which he or she is being arrested does not apply if:
· the person should, in the circumstances, know the substance of the reason for
which he or she is being arrested, or
· the person's actions make it impracticable for the authorised officer executing
the warrant (or an assisting officer making the arrest) to inform the person of the
reason for which he or she is being arrested.
Subclause 100(9) provides that nothing in clause 100 prevents the arrest of a person in
accordance with any other law (such as the Crimes Act).
Definitions
Subclause 100(10) sets out particular definitions for the terms `dwelling house' and
`Judge' for the purposes of the operation of clause 100. Subclause 100(10) provides that,
for the purposes of clause 100, `dwelling house' includes a conveyance, and a room in a
hotel, motel, boarding house or club, in which people ordinarily retire for the night.
Subclause 100(10) provides also that, for the purposes of clause 100, `Judge' means a
Judge of the Federal Court of Australia, or a Judge of the Supreme Court of a State or
Territory.
Clause 101: Powers of Judge in relation to person arrested
Subclause 101(1) provides that a person who is arrested under a warrant issued under
clause 100 must be brought before a Judge as soon as practicable after the arrest.
Following the person being brought before the Judge in accordance with subclause
101(1), subclause 101(2) confers power on the Judge to:
(a) Grant the person bail on such security as the Judge thinks fit and on such
conditions as the Judge thinks are necessary to ensure that the person appears as a
witness at a hearing before the Integrity Commissioner, or
(b) Order that the person continue to be detained for the purpose of ensuring that
the person appears as a witness at a hearing before the Integrity Commissioner, or
(c) Order that the person be released.
Where a person is detained under subclause 101(2)(b), subclause 101(3) requires that the
person must be brought before a Judge within the time fixed by the Judge on the person's
last appearance before a Judge, or if a Judge has not fixed a time, within 14 days after the
person was last brought before a Judge. Subclause 101(4) provides a particular definition
of `Judge' for the purposes of the operation of clause 101. Subclause 101(4) provides
that, for the purposes of clause 101, `Judge' means a Judge of the Federal Court of
Australia, or a Judge of the Supreme Court of a State or Territory.
Subdivision GMiscellaneous
Clause 102: Integrity Commissioner may retain documents or things
Clause 102 allows the Integrity Commissioner to retain documents or things produced to
him or her pursuant to a summons issued under clause 83. Under clause 102, the Integrity
Commissioner will be able to:
· Take possession of a document or thing,
· Make copies of a document or thing,
· Take extracts from a document, and
· Retain possession of a document or thing for as long as necessary for the
purposes of the investigation or public inquiry for which the document or thing
was requested.
Documents or things obtained pursuant to a summons issued under clause 83 will not be
able to be retained indefinitely. Rather, the period of time that the Integrity
Commissioner can retain documents or things under clause 102 is limited to the period
for which those documents or things are necessary for the purposes of the investigation or
public inquiry for which they were requested. At all times while the Integrity
Commissioner retains a document of thing obtained pursuant to a summons issued under
clause 83, the Integrity Commissioner must allow persons who would otherwise be
entitled to inspect or view the document or thing to inspect or view the document or thing
at the times that the person would ordinarily be able to do so (subclause 102(2)).
Providing a power of inspection means that the person is not completely deprived of the
document or thing. Clause 102 is necessary to enable the Integrity Commissioner to
access documents and information relevant to an investigation into a corruption issue. It
also preserves the chain of evidence, for example, should an investigation eventually lead
to action being taken by prosecutorial authorities or regulators. This clause is similar to
sections 2 and 6F of the Royal Commissions Act, section 18 of the Inspector-General of
Intelligence and Security Act, sections 28 and 29 of the ACC Act, sections 9 and 13 of
the Ombudsman Act and sections 18 and 19 of the Inspector-General of Taxation Act.
Clause 103: Person may apply for legal and financial assistance
Under subclause 103(1), a person who is summoned under clause 83 to attend a hearing
may apply to the Attorney-General for assistance in respect of his or her attendance at the
hearing, or his or her representation at the hearing by a legal practitioner. A person
summoned to appear as a witness at a hearing is also entitled to be paid allowances for
travelling and other expenses. These allowances are to be prescribed by regulations so
that they reflect current market conditions (see subclause 83(5)). A person may also
apply for assistance in respect of an application to the Federal Court or the Federal
Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for an
order of review in respect of a matter arising under this Act (see clause 221). Under
subclause 103(2), a person who is not giving evidence at a hearing before the Integrity
Commissioner; and is being represented at the hearing by a legal practitioner with the
consent of the Integrity Commissioner, may apply to the Attorney-General for assistance
in respect of that representation. A person can also apply for assistance in respect of an
application to the Federal Court or the Federal Magistrates Court under the
Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of
a matter arising under this Act (see clause 221). Under subclause 103(3), the Attorney-
General can authorise the Commonwealth to provide a person who has applied for
assistance under subclause 103(1) or (2) with financial or legal assistance in respect of
the person's attendance at the hearing or the person's representation at the hearing by a
legal practitioner, if the Attorney-General is satisfied that it would involve substantial
hardship to the person to refuse the application or the circumstances of the case are of
such a special nature that the application should be granted. Subclause 103(4) provides
that Legal or financial assistance may be given unconditionally or subject to such
conditions as the Attorney-General determines. Subclause 103(5) provides that an
instrument that determines the conditions on which legal or financial assistance may be
given is not a legislative instrument.
Clause 104: Protection of Integrity Commissioner etc.
Under clause 104, the Integrity Commissioner and any Assistant Integrity Commissioner
have the same protection and immunity as a Justice of the High Court whilst performing
their duties, obligations and exercising their powers. A legal practitioner assisting the
Integrity Commissioner or representing a person before the Integrity Commissioner has
the same protection as a barrister appearing for a person in the High Court.
Clause 104A: Protection of Witnesses etc.
Clause 104A provides that the Integrity Commissioner may make the necessary
arrangements for the protection of a person if the person's safety may be prejudiced, or
the person may be subjected to intimidation or harassment, because the person, or
another person, has given or is to give, information, a document or a thing to the Integrity
Commissioner, or has appeared, or will appear before the Integrity Commissioner in
relation to a hearing or a public inquiry under the Bill to give evidence or information.
These arrangements may include arrangements with the Minister administering the
legislation, a member of the AFP or a member of a State or Territory police force.
This clause expressly does not affect the Witness Protection Act 1994, but provides a
means by which threats to witnesses and their associates that are less serious than those
addressed by that Act may be dealt with, in accordance with the Senate Committee's
recommendation 4. In an appropriately serious case, the Integrity Commissioner will
also have the authority to seek protection for a person under the Witness Protection Act
(see item 97 of Schedule 1 to the Law Enforcement Integrity Commissioner
(Consequential Amendments) Bill 2006).
Division 3Entering certain places during an investigation without a search warrant
Clause 105: Power to enter places occupied by law enforcement agencies
Under clause 105 the Integrity Commissioner and authorised officers are granted certain
powers to enter places occupied by law enforcement agencies. Under subclause 105(1),
the Integrity Commissioner or an authorised officer may:
(a) enter any place occupied by a law enforcement agency at any reasonable time
of the day; and
(b) carry on the investigation of the corruption issue at that place; and
(c) inspect any documents relevant to the investigation that are kept at that place;
and
(d) make copies of, or take extracts from, any documents so inspected; and
(e) for the purpose of making a copy of, or taking an extract from, a document,
remove the document from that place; and
(f) seize things found at that place if the Integrity Commissioner (or the
authorised officer) believes on reasonable grounds that:
(i) the thing is relevant to an indictable offence; and
(ii) seizure of the thing is necessary to prevent its concealment, loss or
destruction or its use in committing an indictable offence.
`Authorised officer' is a term defined in clause 5 of the Bill. Under subclause 105(2),
while the Integrity Commissioner (or authorised officer) retains a document or thing, he
or she must allow a person who would otherwise be entitled to inspect the document or
view the thing to do so at the times that the person would ordinarily be able to do so.
Subclause 105(3) provides that subclause 105(1) does not authorise a person to enter, or
carry on an investigation at:
(a) a place referred to in paragraph 80(c) of the Crimes Act 1914; or
(b) a place that is a prohibited place for the purposes of the Defence (Special
Undertakings) Act 1952 under section 7 of that Act; or
(c) an area of land or water, or an area of land and water, that is declared under
section 14 of the Defence (Special Undertakings) Act 1952 to be a restricted area
for the purposes of that Act;
(d) unless:
(e) the Minister administering that Act (or another Minister acting for and on
behalf of that Minister) has approved the person entering the place or area;
and
(f) the person complies with any conditions imposed by the Minister giving the
approval in relation to:
(i) his or her entering that place or area; and
(ii) the manner in which his or her investigation is to be conducted at that
place or area.
Subclause 105(4) confers power on the Attorney-General if he or she is satisfied that
conducting an investigation at a place might prejudice the security or defence of the
Commonwealth, to, by written notice to the Integrity Commissioner, declare the place to
be a place to which this subsection applies. Subclause 105(5) provides that while a
declaration made under subclause 105(4) is in force, subclause 105(1) does not authorise
a person to do anything at the place unless:
(a) a Minister specified in the declaration (or another Minister acting for and on
behalf of that Minister) has approved the person entering the place; and
(b) the person complies with any conditions imposed by the Minister giving the
approval in relation to:
(i) his or her entering that place; and
(ii) the manner in which his or her investigation is to be conducted at that
place.
Subclause 105(6) provides that a declaration made by the Attorney-General under clause
105 is not a legislative instrument.
Clause 106: Receipts of things seized under warrant
Subclause 106 requires that if a thing is seized, or removed from a place, under clause
105, the Integrity Commissioner (or an authorised officer) must provide a receipt for the
thing. Subclause 106(2) further provides that if 2 or more things are seized or moved,
they may be covered by the one receipt.
Division 4Search Warrants
Subdivision APreliminary
Clause 107: Application to things under the control of a person
This Clause prescribes that the persons subject to search warrants under the Division will
be the "possessor"- a person who has the control of a thing in any place, even if someone
else has actual possession or custody of the thing.
Subdivision BApplying for a Search Warrant
Clause 108: Authorised officer may apply for a search warrant
Clause 108 sets out the process for applications for warrants to search premises and
persons. The clause makes a distinction between applications for an investigation warrant
and applications for an offence warrants. The terms "investigation warrant" and "offence
warrant" are defined in clause 5. An investigation warrant is broader reaching than an
offence warrant. An investigation warrant will be sought where there is suspicion of
evidential material relevant to an investigation of a corruption issue or public inquiry.
Along similar lines to section 4 of the Royal Commissions Act 1902, subparagraph
108(1)(b) provides that an investigation warrant to search premises will only be available
where the authorised officer has reasonable grounds for believing that if a person was
served with a summons to produce the evidential material it would be concealed,
mutilated, lost or destroyed. An offence warrant will be sought in more definitive
circumstances where there is suspicion of evidential material relevant to a particular
offence against the law of a Commonwealth. The term "authorised officer" is defined in
clause 5 and will be either the Integrity Commissioner or a person authorised pursuant to
clause 140. The clause anticipates that an authorised officer might require assistance
from an "assisting officer" which term is also defined in clause 5. An assisting officer
does not have to be an authorised officer but might be required because of special skills,
for example a locksmith or a person qualified in the operation of electronic equipment
(see, for example, clause 123). Subclause 117(3) provides that a person who is not an
Authorised Officer must not take part in searching or arresting any person. An
Authorised Officer may apply for a warrant to search premises, carry out an ordinary
search or a frisk search of a person. The terms "ordinary search" and "frisk search" are
defined in clause 5. Note that strip searches of a person are prohibited by clause 114. An
Authorised Officer must give information on oath or affirmation of particulars of
applications and outcomes of previous warrants sought or executed on the subject
persons or premises in addition to, the grounds of their suspicions and beliefs. The
Authorised Officer must also give information on oath or by affirmation, if and why he or
she believes that it may be necessary to use firearms in the execution of the warrant. The
definition of "authorised officer" is a delegation by the Integrity Commissioner of the
power to apply for a search warrant to other persons. For this reason, the strict criteria of
requiring detailed information on oath or affirmation in relation to the application is
necessary. Information required regarding previous warrants applied for and/or executed
in relation to the same people alerts the Issuing Officer to a situation of possible
harassment and/or lack of reasonable grounds.
Subdivision CIssue of a Search Warrant
Clause 109: When search warrants may be issued
The issuing officer may issue a warrant if he or she is satisfied that the Authorised
Officer has reasonable grounds to suspect that there is or will be within 72 hours,
evidential material on the premises or person which may be concealed, lost, mutilated or
destroyed. The term "issuing officer" is defined in clause 5 and will differ according to
the nature of the warrant being applied for. An issuing officer for an investigation
warrant will be a Judge of the Federal Court of Australia, a Federal Magistrate or of a
court of State or Territory. An issuing officer for an offence warrant will be a magistrate.
The term magistrate is defined in section 16C of the Acts Interpretation Act 1901.
Clause 110: Content of warrants
This clause sets out the information that is required to be included in a warrant which
must include a statement as to whether the warrant is an investigation warrant or an
offence warrant. If it is an investigation warrant the warrant must state the corruption
issue or public inquiry to which it relates. If it is an offence warrant, the warrant must
state the offence to which the warrant relates. In both cases the warrant must contain a
description of the premises or the name and description of the person to be searched, the
kinds of evidentiary material that are to be searched for, the name of the Authorised
Officer responsible for execution of the warrant, the period in which the warrant remains
in force (which can be no longer than seven (7) days, yet successive warrants may be
issued) and the particular hours in which the warrant may be executed. If the warrant is in
relation to premises, it must also include authorisation for the necessary seizure of things
found to prevent concealment, loss, destruction or use, and whether an ordinary or frisk
search of a person at, or near the premises is authorised. Where the warrant is in relation
to a person, it must also include whether an ordinary or frisk search is authorised and the
authority for the necessary seizure of things found in the person's possession, or in an
aircraft, vehicle or vessel the subject person had operated or occupied within 24 hours
before the search to prevent the concealment, loss, destruction or use.
Clause 111: Application by telephone etc. and issue of warrant
An Authorised Officer may apply for a warrant by telephone, fax, e-mail or other
electronic means where there is urgency or where a delay would in some way frustrate
the effective execution of the warrant. These applications must contain all necessary
information required from an ordinary warrant application and an application made by
these means must be where there is a belief that evidentiary material is, or will be on the
subject premises or person within 48 hours (any time longer, up to 72 hours will require
an ordinary application). The Authorised Officer must, no later than the day after either
the warrant expires or is executed, whichever is earlier, provide the completed form of a
warrant and the information duly sworn or affirmed containing the reasonable grounds
for belief to the Issuing Officer. If the form of a warrant signed by the Issuing Officer is
not produced, it will be assumed that the exercise of power was not duly authorised
unless proved otherwise. This Clause acknowledges that in practice there may be
circumstances where there is a need for urgency and therefore provides for faster process.
Clauses 134, 135 and 136 create offences relating to the process for applying for
telephone warrants under this clause.
Clause 112: The things authorised by a search warrant in relation to premises
Clauses 112 and 113 set out the powers of an authorised officer in executing a warrant in
relation to premises and persons respectively. In the case of a warrant executed on
premises an Authorised Officer or Assisting Officer is allowed to enter and search the
subject premises and record fingerprints and take samples for forensic purposes. The
authorised officer can also seize what is believed to be eligible seizable items (which is
defined in clause 5), the types of evidential material specified in the warrant and any
other things found if there is a belief that seizure is necessary to prevent concealment,
loss, destruction or use of what may be evidentiary material. If the warrant allows, the
Authorised Officer may also conduct an ordinary or frisk search of a person who is at, or
near the premises. Note that strip searches of a person are prohibited by clause 114. A
person who is not an Authorised Officer must not take part in searching any person.
Clause 113: The things authorised by a search warrant in relation to a person
A search warrant executed in relation to a person allows an Authorised or Assisting
Officer to search the person in the manner specified in the warrant, being either a frisk or
ordinary search as defined in clause 5 of the Bill. The Authorised or Assisting Officer
may search all things found in the person's possession, any aircraft, vessel or vehicle
operated or occupied by the person within the 24 hours before the search, seize things
specified in the warrant, take and record fingerprints and forensic samples, seize other
things found if there is a belief that it is evidentiary material and the seizure is necessary
to prevent concealment, loss, destruction or use. The search of the person must not be
different from that authorised in the warrant. Note that strip searches of a person are
prohibited by clause 114 and that clause 117 provides that a person who is not an
Authorised Officer must not take part in searching any person.
Clause 114: Restrictions on personal searches
A warrant may not authorise a strip or body cavity search as the procedure is too invasive
and not necessary for the investigations predicted to be undertaken by the Integrity
Commissioner. This Clause protects a person who may be subject to an investigation and
subsequently a search under a warrant. Subdivision F (clauses 130to 136) sets out
specific provisions in relation to executing a warrant in relation to a person.
Clause 115: When warrant may be executed etc.
The Clause further imposes the obligation to adhere to the conditions of the warrant. A
warrant must not be executed outside hours specified in the warrant. Items seized may be
made available to officers of other government agencies, if necessary for the purpose of
investigating or prosecuting an offence. This Clause extends the information sharing
Clauses of the Bill and promotes cooperation amongst the law enforcement agencies. It
will also reduce the duplication in work and minimise delays in investigations should
evidence not be accessible from other agencies.
Subdivision DGeneral Provisions About Executing a Search Warrant
Clause 116: Announcement before entry
Prior to entering premises under a warrant, an Authorised Officer must announce that he
or she is authorised to enter, and provide any person at the premises with the opportunity
to allow the entry. Announcement of entry will not, however, be required if the
authorised Officer believes that immediate entry is required to ensure either the safety of
a person, or the effective execution of the warrant. This Clause ensures the person is
given notice and provided with an opportunity to co-operate with the Authorised Officer
in the search. A search with co-operation is often more successful and professional. The
occupier of the premises is also entitled to be made aware of the situation.
Clause 117: Availability of assistance and use of force in executing a warrant
An Authorised or Assisting Officer may obtain the assistance necessary and use a
reasonable amount of force whilst executing a warrant. A person who is not an
Authorised Officer must not take part in searching or arresting any person. The
Authorised Officer is given the discretion to use the necessary force needed which allows
for the Authorised Officer to protect him or herself and others assisting in the execution
of a warrant. The requirement of having only Authorised Officers taking part in searches
and arrests is to ensure that these procedures are carried out by only those who have been
provided with training and fulfilled the requirements to ensure that care, professionalism
and due diligence are present.
Subdivision ESpecific provisions about executing a warrant relating to premises
Clause 118: Application
This is a formal provision providing that the subdivision applies whare a warrant is
executed at premises.
Clause 119: Copy of warrant to be shown to occupier etc.
If an occupier or someone representing the occupier is present at the premises, the
Authorised Officer must identify him or herself to the person and make a copy of the
warrant available to that person, and/or a person being searched under the warrant. The
person has the right to be informed and it clarifies that the search is legal and all
requirements have been fulfilled to allow the procedure to take place.
Clause 120: Occupier entitled to watch search
The occupier or someone representing the occupier, is entitled to watch the search, or
part thereof (more than one area may be searched at a time), but such right ceases when
he or she impedes the search in any way. This Clause provides the occupier with rights
but those rights shall not conflict with a search. In circumstances where an occupier can
assist in the search by providing instructions as to how to operate a device etc. it will be
useful for the Authorised Officer to have him or her present.
Clause 121: Specific powers available to person executing a warrant
An Authorised or Assisting Officer may take photographs or video recordings at the
premises for a purpose incidental to the execution of the warrant, or with the written
consent of the occupier. The Authorised and Assisting Officers may temporarily stop the
search and leave the premises for up to one (1) hour (or longer with the written consent
of the occupier) and then return to the premises and complete the search, only if the
warrant is still in force. If the execution of a warrant is stopped by a Court Order which is
later revoked or reversed on appeal, the execution may be completed only if the Warrant
is still in force. This Clause ensures that under no circumstances should a warrant be
executed unless it is valid and in force, regardless of partial execution or Court
proceedings delaying etc. It prescribes the Authorised Officer with the onus to re-apply
for a new warrant where an existing warrant expires for any reason. The strict provision
of this Clause is to ensure the admissibility of evidence obtained and further, to protect
the Commonwealth from being exposed to an action for damages in relation to premises
and persons searched and items seized.
Clause 122: Use of equipment to examine or process things
An Authorised or Assisting Officer may bring any equipment necessary to examine and
process things to determine if they may be seized under the warrant. If it is not
practicable to examine or process things on the premises, or if the occupier consents,
things may be moved to another place. If things are moved, the Authorised Officer must
advise the occupier of the time and place of any examination or processing, and allow
him, her or a representative to attend. An Authorised Officer may operate equipment
(other than electronic equipment) to examine or process things to determine if they may
be seized, only where the Authorised or Assisting Officer believe the examination or
processing can be carried out without damaging the equipment or thing. In circumstances
where there may be a large amount of data, searching through it all for evidentiary
material whilst at the premises will be time consuming. The Cybercrime Act 1995
provides that it is practical to move items where it will be faster or less costly to search
for evidentiary material. It is often the case that computers and other electronic
equipment hold a large amount of data which is protected by complex security measures
such as encryption and passwords. Many experts may be required to decipher multi levels
of password protection which are often designed to delete or alter data if the correct
password is not used. It is practical to operate the equipment to see if evidentiary material
is present, if so, move the equipment and examine or process off the premises. The initial
check for the existence of evidentiary material is to ensure that equipment is not
unnecessarily seized. It is also important to engage experts to ensure that valuable
evidence is not lost or deleted, again, exposing the Commonwealth to an action for
damages.
Clause 123: Use of electronic equipment at premises without expert assistance
An Authorised or Assisting Officer may operate electronic equipment to see if
evidentiary material is accessible, if he or she believes that it can be operated without
damage. If evidentiary material is found, the equipment may be seized with any disk,
tape or associated device, only if it is not practicable to document, or copy the
evidentiary material, or if the possession of such equipment constitutes an offence. This
Clause permits an Authorised Officer to copy all data held on a storage device if some of
the data contains evidentiary material. In circumstances where it is not practical to make
copies such as a computer where the hard drive contains a large amount of data, an
Authorised Officer is not required to search through all the data during the execution of
the warrant at the premises, and copy only the evidentiary material found at this time.
Rather this Clause allows the Authorised Officer to copy all of the data where an initial
search uncovers some evidentiary material or where the Authorised Officer believes it
may contain evidentiary material. For example, the most effective way to search a large
amount of data may be to load it all to a single device and develop a program to search
the data.
Clause 124: Use of electronic equipment at premises with expert assistance
If an Authorised or Assisting Officer believes that an expert may access evidential
material from electronic equipment found at the premises, and the material may be
destroyed, altered or interfered with if action is not taken to secure the equipment, the
Authorised or Assisting Officer may, after notifying the occupant in writing, take steps
necessary to secure the equipment, for up to 24 hours to allow it to be operated by an
expert. An Authorised or Assisting Officer may apply to an Issuing Officer for an
extension of time if it is believed that an expert will not be available within 24 hours. The
occupant must be notified of the application for an extension and is entitled to be heard.
This Clause allows the Authorised Officer to follow a procedure which adequately
considers the occupier's rights, and allows for evidentiary material to be preserved until
processed or examined.
Clause 125: Person with knowledge of a computer or a computer system to assist
access etc.
An Authorised Officer may apply to an Issuing Officer for an Order requiring a specified
person to provide information or assistance necessary to access data from a computer on
warrant premises. The Issuing Officer may grant the Order where there are reasonable
grounds to suspect that the specified person can access evidentiary material from the
computer, if he or she is suspected of committing the offence stated in the warrant, if he
or she is the owner or the lessee, or the employee of the owner or lessee of the computer,
and has the relevant knowledge of the computer or the network and the measures applied
to protect the data held, or accessible from the computer. A person that fails to comply
with such Order is liable to six (6) months imprisonment. This Clause intends to secure
the access and value of evidentiary material stored in computers on warrant premises.
Developments in technology allow computers to store large amounts of data and have
complex security measures such as encryption and passwords to protect information.
Multi-level password protection is often programmed to delete or alter data when an
incorrect password is provided and this Clause provides for assistance to ensure that
relevant data is not erased or altered by misuse.
Clause 126: Accessing data held on other premisesNotification to occupier of those
premises
When data accessed under Clause 123(1) is held on premises other than the warrant
premises, the Authorised Officer must, if it is practicable to do so, notify the occupier of
the premises in relation to which the warrant is in force. If the authorised officer intends
to continue to access data on premises other than the warrant premises then this
information must also be conveyed to the occupier. As most business computers are
networked to other computers, files on one computer are often accessible by another
computer. Accordingly, it is critical that the Authorised Officers executing a search
warrant are able to search material accessible from the warrant premises, irrespective of
where the material is physically located. This Clause mirrors that of Section 3LB of the
Crimes Act 1914 and includes the term practicable as a discretionary tool for the
Authorised Officer to evaluate the circumstances and consequences of advising the third
party.
Clause 127: Compensation for damage to electronic equipment
If insufficient care is exercised when either operating, or choosing a person to operate
equipment, the Commonwealth must pay reasonable compensation to the owner if the
equipment, data or programs are damaged. In determining reasonable compensation,
consideration will be given to whether or not the owner, user, their agents or employees
provided any appropriate warnings or guidance for the operation of the equipment. If an
agreement on reasonable compensation cannot be reached, the owner or user may
institute proceedings in the Federal Court. This Clause provides, that in circumstances
where the Authorised or Assisting Officers are negligent, compensation for damage is
due to the owner. The Cybercrime Act 2001 requires assistance to be provided by an
occupier when executing a warrant, to access data etc. Non-compliance is an offence
punishable by six (6) months imprisonment.
Clause 128: Copies of seized things to be provided
If a document, film, computer file or other thing that can be readily copied is seized, the
Authorised Officer must provide a copy to the occupier if requested. This won't apply
where the authorised officer believes that the data might constitute evidential material
(which is defined in clause 5) or if the data is, at the premises, rendered into documentary
form. This Clause allows the person to obtain legal advice in relation to copies of
material seized while ensuring there can be no dispute as to the state of evidence.
Clause 129: Receipts of things seized under warrant
A receipt for items seized or moved under a warrant must be provided by the Authorised
or Assisting Officer to ensure the proper handling and returning of evidence when it is no
longer required. This clause ensures there will be no dispute as to an item not being
returned as well as keeping records of evidentiary material.
Subdivision FSpecific provisions about executing a warrant relating to a person
Clause 130: Copy of warrant to be shown to person
An Authorised Officer must identify themselves to a person being searched and a copy of
the warrant must be made available to him or her. The person has a right to be informed
of the situation, prior to a search commencing. This identification offers an opportunity
for the person to co-operate as they are less likely to resist with the officers which will
make the search easier on all involved.
Clause 131: Conduct of an ordinary search or a frisk search
The terms "ordinary search" and "frisk search" are defined in clause 5. If practicable, an
ordinary or frisk search of a person is to be conducted by a person of the same sex. This
is preferable, but not required. This Clause will make the person being searched, and the
Authorised or Assisting Officer less uncomfortable or embarrassed.
Subdivision GOffences
Clause 132: Making false statements in warrants
A person (ie an authorised officer) commits an offence if he or she knowingly makes a
false or misleading statement in applying for a search warrant and will be liable to two
(2) years imprisonment. This Clause intends to ensure that all warrants executed are
granted by a Judge or Magistrate on correct information. The reasonable grounds to
believe that evidentiary material may be obtained stated in the application must be honest
and accurate.
Clause 133: Offence for stating incorrect names in telephone warrants
A person commits an offence if he or she states a name of a Judge or Magistrate on the
form of search warrant that differs to that of the Judge or Magistrate who approved the
telephone application and will be liable to two (2) years imprisonment. This Clause is to
ensure that the approval of a search warrant is in all ways true and correct.
Clause 134: Offence for unauthorised form of warrant
In circumstances where a person makes an application for a search warrant by telephone,
he or she commits an offence if a matter is stated on the form of search warrant which he
or she knows to be a departure from the authority given by the Judge or Magistrate and
will be liable to two (2) years imprisonment. This Clause intends to serve as a control on
the operation of telephone warrants. Potentially, telephone warrants may cause problems
with confusion, misinterpretation and honest mistakes arising out of the haste at the time
and this Clause will ensure that persons applying for telephone warrants do not take
advantage of the process.
Clause 135: Offence for executing etc. an unauthorised form of warrant
A person commits an offence if he or she executes or presents a document purporting to
be a search warrant which he or she knows has not been approved, or departs from the
approval obtained from a Judge or Magistrate and will be liable to two (2) years
imprisonment. This Clause intends to prevent Authorised Officers from failing to fulfil
all requirements of a valid search warrant.
Clause 136: Offence for giving unexecuted form of warrant
A person commits an offence if he or she gives a Judge or Magistrate a form of search
warrant which is not the form of search warrant that he or she executed under a telephone
application and will be liable to two (2) years imprisonment. This Clause ensures that the
telephone application granted is the same as the search carried out. All of these offences
carry a criminal penalty making the Authorised Officer individually liable for their own
actions.
Subdivision HMiscellaneous
Clause 137: Other laws about search, arrest etc. not affected
This Division is not intended to limit or exclude the operation of another law of the
Commonwealth in relation to the search of persons or premises, arrests or seizures. These
include, but are not limited to, the Cybercrime Act 2001, the Criminal Code Act 1995 and
the Crimes Act 1914 (Part IAA- Search Warrants and Powers of Arrest). This Division
may be used despite the existence of the power under another law.
Clause 138: Law relating to legal professional privilege not affected
This Division does not affect the laws relating to legal professional privilege.
Division 5Powers of Arrest
Clause 139: Authorised officers may exercise powers of arrest
This clause provides that authorised Officers who are not "constables", will still have the
same powers and duties as a constable under Divisions 4 and 5 of Part IIA of the Crimes
Act 1914 for the purpose of investigating corruption issues. These powers and duties
include those related to arrest as well as search. The term "constable" is defined in the
Crimes Act as meaning a special member of the Australian Federal Police or a member of
the police force or police service of a State or Territory. This Clause enables Authorised
Officers to invoke the powers of arrest and search that are given to constables to perform
their duties in relation to assisting the Integrity Commissioner in the investigation of
corruption issues. It is not always going to be practicable to get a constable for these
duties considering that investigations will be involving AFP etc. and an independent
officer is desirable to carry out an arrest and/or search on a person being investigated.
Division 6Authorised Officers
Clause 140: Appointment of authorised officers
The Integrity Commissioner may appoint a person in writing to be an Authorised Officer
where, the person is either a member of the AFP or, a staff member of the ACLEI and a
member of the AFP or a State or Territory Police force (the head of that agency must
agree) and the Integrity Commissioner considers him or her to be suitable and qualified
for the appointment. This Clause seeks to ensure that Authorised Officers exercising
powers and duties under the Bill possess the upmost of integrity, skills and experiences in
investigations and obtaining evidence. Authorised Officers are given the powers of arrest
and to apply and execute search warrants under the Bill and it is essential that they are
experienced, diligent and trustworthy.
Clause 141: Identity cards
The Integrity Commissioner must issue all Authorised Officers an identity card in the
form provided in the Regulations, which includes a recent photograph of the Authorised
Officer, which must be returned to the Integrity Commissioner immediately upon ceasing
to be an Authorised Officer, a failure to do so is punishable by one (1) penalty unit. This
Clause intends to ensure that Authorised Officers are easily identifiable. In circumstances
where Authorised Officers are executing a search warrant on premises, the identity card
can be displayed to occupiers to confirm their authority.
PART 10- DEALING WITH EVIDENCE AND INFORMATION OBTAINED IN
INVESTIGATION OR PUBLIC INQUIRY
Clause 142: Evidence of Offence or Liability to Civil Penalty
If the Integrity Commissioner obtains admissible evidence rendering a person liable to a
criminal or civil penalty under a Commonwealth, State or Territory law, the Integrity
Commissioner must provide the evidence to the Commissioner of the Australian Federal
Police in the case of a Commonwealth law, the head of the police force of the State or
Territory in the case of a State or Territory law, or an authority or person who is
authorised to prosecute the offence or commence civil penalty proceedings under a
Commonwealth, State or Territory law.
Clause 143: Evidence that Could be Used in Confiscation Proceedings
If the Integrity Commissioner obtains admissible evidence rendering a person liable to
proceedings under the Proceeds of Crime Act 1987, the Proceeds of Crime Act 2002 or a
corresponding law of a State or Territory, the Integrity Commissioner must provide the
evidence to the Commissioner of the Australian Federal Police in the case of a
Commonwealth law, the head of the police force of the State or Territory in the case of a
State or Territory law, or an authority or a person who is authorised to commence
proceedings under a Commonwealth, State or Territory law.
Clause 144: Consultation with Law Enforcement Agency Head Before Taking
Action Under Section 142 or Section 143
The Integrity Commissioner must take reasonable steps to consult the head of a relevant
agency prior to providing a person or authority with evidence to prosecute an evidence or
commence civil or confiscation proceedings, unless it is likely that an investigation or
subsequent action would be prejudiced by doing so. In these circumstances, the Integrity
Commissioner must advise the Minister that the relevant person has not been consulted
and the reasons for not consulting the person. If the circumstances change so that
advising the head of the relevant agency of the decision on how to deal with the
information would no longer prejudice the investigation, then the agency head's right to
be advised is revived.
Clause 145: Notification of Action Taken Under Section 142 or Section 143
The Integrity Commissioner must inform the head of a relevant law enforcement agency,
government agency or integrity agency if he or she takes under Clauses 142 or 143 in
relation to a corruption issue involving a law enforcement agency. The Integrity
Commissioner does not have to provide notification if it is likely that doing so would
prejudice an investigation. If the Integrity Commissioner decides to withhold notification,
he or she must provide the Minister with reasons. If the circumstances change so that
advising the head of the relevant agency of the decision on how to deal with the
information would no longer prejudice the investigation, then the agency head's right to
be advised is revived.
Clause 146: Evidence of Breach of Duty or Misconduct by Staff Member
During an investigation or public inquiry, if the Integrity Commissioner obtains evidence
of a breach of duty or misconduct that would justify the termination of or disciplinary
action against a staff member or a secondee to a law enforcement agency, the Integrity
Commissioner must notify the head of the law enforcement agency, the head of the home
agency in the case of a secondee and any relevant State or Territory integrity agency.
Clause 147: Evidence of, or Information Suggesting, Wrongful Conviction
During an investigation or public inquiry, if the Integrity Commissioner obtains evidence
that a person was wrongly convicted of an offence against a law of the Commonwealth, a
State or Territory, he or she must notify the Minister of the evidence. The Integrity
Commissioner must also notify the convicted person that the evidence has been brought
to the notice of the Minister.
PART 11- ATTORNEY-GENERAL CERTIFICATES ABOUT RELEASE OF
INFORMATION
Clause 149: Attorney-General's Certificate in Relation to Particular Information
The Attorney-General may determine whether particular information will be released by
the Integrity Commissioner. The Attorney-General may certify that the disclosure of
particular information would be contrary to the public interest because it will prejudice
the security, defence or international relations of the Commonwealth, prejudice the
proper performance of the ACC, an investigation, inquiry, fair trial, a person's life or
physical safety or disclose the identity of a confidential source. In these circumstances,
the Attorney-General is required to copy the certificate to the Integrity Commissioner and
to the head of the agency that, or to the person who, holds the information or documents
concerned. This is to ensure that the parties who need to know about a certificate are
aware of the issue of the certificate and can give effect to it in accordance with the
requirements of the Bill.
Clause 150: Integrity Commissioner's Access to Section 149 Certified Information
If the head of a law enforcement agency, or another person, is required to provide
information to the Integrity Commissioner (Part 9, Division 1 and clauses 20, 21, 32 or
46), but the information is certified under clause 149, the person or head of the agency
must not give the Integrity Commissioner the information if to do so would contravene
the terms of the certificate.
Clause 151: Giving Another Agency Section 149 Certified Information
The head of a law enforcement agency must not give another agency information
required by clause 46 if the information is certified under clause 149 and to do so would
contravene the terms of the certificate.
Clause 152: Integrity Commissioner Giving Section 149 Certified Information to
Agency Head or Special Investigator
The Integrity Commissioner must not give the head of a government agency or a special
investigator information required by clauses 29(2), 44, 50, 70, 156(6) or (9) if the
information is certified under clause 149 and to do so would contravene the terms of the
certificate.
PART 12- DEALING WITH ACLEI CORRUPTION ISSUES
Division 1- Referring ACLEI Corruption Issues to Minister
Clause 153: Integrity Commissioner and ACLEI Staff Notifying Minister of ACLEI
Corruption Issues
The Integrity Commissioner must notify the Minister in writing of any ACLEI corruption
issue as soon as practicable after becoming aware of the issue. A staff member of ACLEI
must notify the Minister of any ACLEI corruption issue that relates to the conduct of a
person who is, or was the Integrity Commissioner. ACLEI corruption issue is defined in
Section 8.
Clause 154: Referral of ACLEI Corruption Issues by Other Persons
In addition to a person's right to make a complaint to the Commonwealth Ombudsman, a
person can give an allegation or information raising an ACLEI corruption issue to the
Minister, anonymously if he or she wishes. This may be done orally or in writing,
however the clause gives the Minister the discretion to request that the allegation or
information be put in writing before he or she deals with the issue.
Clause 155: Person May Elect to be Kept Informed
The Minister must ask the person making, or referring the information or allegation
raising an ACLEI corruption issue, to elect whether or not he or she wishes to be kept
informed as to the action taken in relation to the matter, unless the person refers the issue
anonymously. The election can be revoked by the person at any time.
Division 2- How Minister Deals with ACLEI Corruption Issues
Clause 156: How Minister may Deal with ACLEI Corruption Issues
When the Minister is notified or becomes aware of an ACLEI corruption issue, he or she
may refer the ACLEI corruption issue to the Integrity Commissioner for investigation,
authorise a person to conduct a special investigation, or decide to take no further action.
The Minister must advise the Integrity Commissioner if he or she chooses to authorise a
special investigation or take no further action. The Minister must not refer an ACLEI
corruption issue to the Integrity Commissioner if the issue relates to the conduct of a
current ACLEI staff member who is employed under the Public Service Act 1999. The
role of the Integrity Commissioner is restricted in this way so as to a void a conflict
between the Integrity Commissioner's functions under the Bill and his or her role as head
of a Statutory Agency for purposes of the Public Service Act. In circumstances where a
special investigator is authorised, the Integrity Commissioner must provide any
document or information in relation to the ACLEI corruption issue in his or her
possession or control to a special investigator as soon as practicable after he or she is
authorised by the Minister. The Integrity Commissioner does not have to provide the
information if it contains information certified under Clause 149 and doing so would be
contrary to the public interest according to the terms of the certificate issued by the
Attorney-General under Clause 149. This ensures the protection of information which is
not in the public interest to be disclosed. The Attorney-General will have discretion as to
whether or not information should be shared.
Clause 157: Qualification to Conduct Special Investigation
The Minister may authorise a person to conduct a special investigation under Part 12,
Division 4 of the Bill, if he or she is enrolled as a legal practitioner and has been so for at
least five (5) years. This Clause prescribes that a Special Investigator must have the same
qualifications as the Integrity Commissioner, as his or her functions and duties in the
special investigation of an ACLEI corruption issue are the same as that of the Integrity
Commissioner in the investigation of other corruption issues.
Clause 158: Counsel assisting special investigator
The Minister may appoint a legal practitioner to assist a special investigator as counsel in
relation to a special investigation.
Division 3- Investigation by Integrity Commissioner
Clause 159: Application of Division
This Division applies to investigations by the Integrity Commissioner into complaints
relating to a staff member, or former staff member of the ACLEI under clause 156(2) and
prescribes the practice and procedures to be followed to deal with these complaints.
Clause 160: Investigation and Investigative Powers
The clause employs a similar investigative procedure as that set out in Division 1 of Part
6 and Parts 9 and 10 for the investigation of ACLEI corruption issues. Division 1 of Part
6 of the Bill relates to investigations by the Integrity Commissioner, Part 9 relates to the
Integrity Commissioner's powers in conducting an investigation or public inquiry and
Part 10 relates to dealing with evidence obtained in an investigation or public inquiry.
Clause 161: Keeping Minister and Person Informed of Progress of the Investigation
The Integrity Commissioner has an obligation to take such steps as he or she considers
reasonable to keep the Minister and the Complainant informed of the progress of the
investigation of an ACLEI corruption issue.
Clause 162: Report on Investigation
At the conclusion of an investigation, the Integrity Commissioner must prepare a report.
This report must include findings, evidence and any action taken or to be taken in relation
to the complaint. This clause sets out the action the Integrity Commissioner may take in
relation to the complaint. Possible action includes disciplinary or employment action,
action to rectify or mitigate the effects of the conduct subject to the investigation or to
remedy deficiencies in policy or practice which allowed for the person to become a
member of staff with the ACLEI and engage in corrupt conduct without being
discovered. The Integrity Commissioner must exclude information from the report if the
Attorney-General has certified the disclosure would be contrary to the public interest
under section 149. The Integrity Commissioner has the discretion to exclude information
if he or she is satisfied that the information is sensitive information. It is intended that the
decision of whether to exclude information balance the need for the report to serve the
public interest in relation to the corruption issue and the prejudicial consequences that
might result from its inclusion. If information is excluded the Integrity Commissioner
must include it in a supplementary report which sets out the information and the reasons
for excluding the information. This report must be given to the Minister under clause
163.
Clause 163: Integrity Commissioner to Give Report to Minister
The Integrity Commissioner must provide the Minister with a copy of the report and any
supplementary report. If a public hearing has been held the Minister is required under
section 203 to table the report (but not the supplementary report) before both Houses of
Parliament.
Clause 164: Advising Complainant about the Outcome of the Investigation
A person who has elected to be kept informed must be advised by the Integrity
Commissioner of the outcome of the investigation unless the Integrity Commissioner is
satisfied that informing the person is likely to prejudice an investigation or any related
action. The Integrity Commissioner may advise the person by giving them a copy of the
whole or part of the report. When advising the person, the Integrity Commissioner must
not contravene a section 149 certificate from the Attorney-General that the disclosure of
the information would be contrary to the public interest. The Integrity Commissioner has
the discretion to exclude information if he or she is satisfied that the information is
sensitive information and it is desirable in the circumstances to exclude that information.
It is intended that the decision of whether to exclude information balance the person's
need for full information in relation to the corruption issue and the prejudicial
consequences that might result from its inclusion.
Clause 165: Advising Person Whose Conduct is Investigated of Outcome of the
Investigation
The Integrity Commissioner may advise the person to which the complaint relates of the
outcome of the investigation and may provide them with a copy of either the whole or
part of the report. When advising the person, the Integrity Commissioner must not
contravene a section 149 certificate from the Attorney-General that the disclosure of the
information would be contrary to the public interest. The Integrity Commissioner has the
discretion to exclude information if he or she is satisfied that the information is sensitive
information. It is intended that the decision of whether to exclude information balance the
person's need for full information in relation to the corruption issue and the prejudicial
consequences that might result from its inclusion.
Division 4- Special Investigation
Clause 166: Application of Part
This Division sets out the powers and procedures that the ACLEI can use when the
Minister authorises a person, known as the "special investigator" to conduct a special
investigation.
Clause 167: Investigation and Investigative Powers
The clause operates in substantially the same way as section 160 which deals with
investigation of an ACLEI corruption issue by the Integrity Commissioner. It employs a
similar investigative procedure for the special investigation as that set out in Division 1
of Part 6 and Parts 9 and 10. Division 1 of Part 6 of the Bill relates to investigations by
the Integrity Commissioner, Part 9 relates to the Integrity Commissioner's powers in
conducting an investigation or public inquiry and Part 10 relates to dealing with evidence
obtained in an investigation or public inquiry. Generally, the special investigator has the
same powers to investigate the ACLEI corruption issues as the Integrity Commissioner
has when investigating corruption issues in other law enforcement agencies.
Clause 168: Keeping Minister and Complainant Informed of Progress of
Investigation
The special investigator has an obligation to keep the Minister and the Complainant
informed of the progress of the investigation. This Clause ensures the Minister is fully
apprised of all investigations and has the opportunity to monitor and evaluate the special
investigator's investigations. It is also important to keep the complainant informed as it
may be necessary to engage the complainant's co-operation to further the investigation.
Clause 169: Report on Investigation
At the conclusion of an investigation, the special investigator must prepare a report. This
report must include findings, evidence and any recommendations to the Minister in
relation to the complaint and reasons for those recommendations. This clause sets out the
action the special investigator may recommend the Integrity Commissioner consider.
Possible recommendations include disciplinary or employment action, action to rectify or
mitigate the effects of the conduct the subject of the investigation or to remedy
deficiencies in policy or practice which allowed for the person to become a member of
staff with the ACLEI and engage in corrupt conduct without being detected. This list of
options is intended to be exhaustive. The special investigator is bound to exclude
information from the report that the Attorney-General has certified the disclosure of
would be contrary to the public interest under section 149 if one or more public hearings
were held. The special investigator has the discretion to exclude information if he or she
is satisfied that the information is sensitive. It is intended that the decision of whether to
exclude information balance the need for the report to serve the public interest in relation
to the corruption issue and the prejudicial consequences that might result from its
inclusion. If information is excluded the special investigator must include it in a special
report which sets out the information and the reasons for excluding the information. This
report must be given to the Minister under Clause 170. This Clause intends to make the
special investigator accountable for the investigation process and any recommendations
made. It also allows a record to be made and is intended to offer some valuable
recommendations regarding the corruption issue from an independent person.
Clause 170: Special Investigator to Give Report to Minister
The Special Investigator must provide the Minister with a copy of the report and any
supplementary report. If a public hearing has been held the Minister is required under
section 203 to table the report (but not the supplementary report) before both Houses of
Parliament. The Minister must then provide a copy to the Integrity Commissioner.
Clause 171: Minister May Direct Integrity Commissioner to Consider Taking
Action
The Minister may direct the Integrity Commissioner to consider whether action should be
taken in relation to a person referred to in the report of the special investigator. This
clause acknowledges that some of the staff of ACLEI will be appointed or employed
under the Public Service Act 1999 and that the Integrity Commissioner must comply with
section 15 of this Act when considering whether to take action.
Clause 172: Advising Complainant about the Outcome of the Investigation
A person who has elected to be kept informed must be advised by the special investigator
of the outcome of the investigation unless the special investigator is satisfied that
informing the person is likely to prejudice an investigation or any related action. The
Integrity Commissioner may advise the person by giving them a copy of the whole or
part of the report. If the circumstances change so that advising the person of the decision
on how to deal with the information would no longer prejudice the investigation, then the
person's right to be advised is revived. When advising the person, the special investigator
must not contravene a section 149 certificate from the Attorney-General that the
disclosure of the information would be contrary to the public interest. The special
investigator has the discretion to exclude information if he or she is satisfied that the
information is sensitive information and it is desirable in the circumstances to exclude
that information. It is intended that the decision of whether to exclude information
balance the person's need for full information in relation to the corruption issue and the
prejudicial consequences that might result from its inclusion. This is reflected by
subsection 5.
Clause 173: Advising Person Whose Conduct is Investigated of Outcome of the
Investigation
The special investigator may advise the person to which the complaint relates, of the
outcome of the investigation and may provide a copy of either whole or part of the report.
When advising the person, the special investigator must not contravene a section 149
certificate from the Attorney-General that the disclosure of the information would be
contrary to the public interest. The special investigator has the discretion to exclude
information if he or she is satisfied that the information is sensitive information and it is
desirable in the circumstances to exclude that information. It is intended that the decision
of whether to exclude information balance the person's need for full information in
relation to the corruption issue and the prejudicial consequences that might result from its
inclusion. This is reflected by subsection 4.
Division 5- Staff Members of ACLEI to Report Corrupt Conduct
Clause 174: Staff Members of ACLEI to Report Corrupt Conduct
This Clause imposes an obligation on all staff members of ACLEI to report corrupt
conduct. This obligation applies to the Integrity Commissioner in relation to the conduct
of staff members or former staff members and to staff members in relation to the conduct
of the Integrity Commissioner or other staff members. It is intended that the Integrity
Commissioner notify the Minister in writing and that ACLEI staff members notify the
Integrity Commissioner in writing. It is an offence to fail to notify unless there are
reasonable ground to believe that the relevant person (the Minister or the Integrity
Commissioner) has already been notified. The defendant bears an evidential onus to
prove that reasonable grounds existed. The maximum penalty is 6 months imprisonment.
PART 13- ADMINISTRATIVE PROVISIONS
Division 1 - Appointment etc. of Integrity Commissioner
Clause 175: Appointment of Integrity Commissioner
This Clause provides that the Integrity Commissioner is to be appointed (or reappointed
pursuant to section 33(4A) of the Acts Interpretation Act 1901) by written instrument
from the Governor-General on a full-time basis, for a fixed term not exceeding five (5)
years. The Integrity Commissioner will be required to be a Judge or enrolled as a legal
practitioner of at least five (5) years. In circumstances where the Integrity Commissioner
appointed is a Judge of a State or Territory, the Governor- General may enter into an
arrangement with the Governor of that State or the Administrator of that Territory,
securing the Judge's services, including an arrangement for the State or Territory to be
reimbursed by the Commonwealth. The Clause also provides a definition of `Judge' for
the purpose of the Clause. The Integrity Commissioner is independently appointed by the
Governor-General in order to have an equality of status with the heads of the bodies he or
she oversees (the Commissioner of the APF and the CEO of the ACC are also appointed
by the Governor-General).
Clause 176: Judge May be Appointed as Integrity Commissioner
This Clause provides that a Judge may be appointed as the Integrity Commissioner and
his or her privileges as the holder of judicial office will remain unaffected. However, the
Clause provides that a Judge appointed as the Integrity Commissioner will cease to hold
office as the Integrity Commissioner if he or she is no longer a Judge. The Clause intends
to reserve privileges such as tenure of judicial office, rank, title, precedence, salary etc.
for Judges appointed as the Integrity Commissioner.
Clause 177: Acting Appointment
Clause 177 provides that in circumstances where there is a vacancy in the office of the
Integrity Commissioner or during any periods the Integrity Commissioner is absent from
duty or Australia, the Minister may appoint a person as Acting Integrity Commissioner.
An Acting Integrity Commissioner must be enrolled as a legal practitioner, and have been
so for a minimum period of five (5) years. Anything done by, or in relation to a person
purporting to act as Acting Integrity Commissioner is not invalid merely because the
occasion for appointment had not arisen, a defect or irregularity existed in connection
with the appointment, the appointment ceased to have affect or the occasion to act had
not arisen or ceased.
Clause 178: Remuneration
This clause provides that subject to the Remuneration Tribunal Act 1973, the Integrity
Commissioner is to be paid a remuneration determined by the Remuneration Tribunal. In
the absence of a determination, the Integrity Commissioner will be paid in accordance
with the Regulations, which also prescribe allowances. To avoid doubt, the clause
provides that where a Judge receiving salary or annual allowance is appointed as the
Integrity Commissioner, he or she will not be entitled to receive remuneration under the
Bill. Clause 175 also provides that if the Judge is a Judge of a State or Territory, the
Governor-General may arrange for the Commonwealth to compensate that State or
Territory accordingly.
Clause 179: Leave
This clause provides that the Remuneration Tribunal will determine the Integrity
Commissioner's recreation leave entitlements. Further, the Minister may grant the
Integrity Commissioner a leave of absence on specified terms and conditions.
Clause 180: Outside Employment
This Clause ensures that the Integrity Commissioner does not engage in any paid
employment outside the Office of the Integrity Commissioner, without consent from the
Minister. The intention of the Clause is to minimise the occurrence of a conflict of
interests arising.
Clause 181: Other Terms and Conditions
This Clause provides that the Integrity Commissioner (other than a Judge) may only hold
office as the Integrity Commissioner on the terms and conditions which are determined
by the Governor-General in relation to matters not covered by the Bill.
Clause 182: Resignation
This Clause provides that the Integrity Commissioner may resign from their appointment
as the Integrity Commissioner by providing the Governor-General with a written
resignation.
Clause 183: Termination of Employment
This Clause provides that except in circumstances where the Integrity Commissioner is a
Judge, the Governor-General may terminate the Integrity Commissioner's appointment
by reason of misbehaviour or physical or mental incapacity. The Clause further provides
that the Governor-General must terminate the Integrity Commissioner's appointment
(unless he or she is a Judge) where the Integrity Commissioner becomes bankrupt, is
absent from duty (except if he or she is on leave) for 14 consecutive days or 28 days in a
period of 12 months, if the Integrity Commissioner engages in outside employment in
contravention of Clause 180 of the Bill or if he or she fails to comply with the disclosure
of interest provisions under Clause 184 of the Bill.
Clause 184: Disclosure of Interests
This Clause requires the Integrity Commissioner to provide written notice to the Minister
where he or she has, or acquires, an interest that may conflict with the performance of his
or her functions as the Integrity Commissioner.
Division 2- Appointment etc. of Assistant Integrity Commissioners
Clause 185: Appointment of Assistant Integrity Commissioners
This Clause provides that an Assistant Integrity Commissioner is to be appointed by
written instrument from the Governor-General on a full-time or part-time basis, for a
fixed term not exceeding five (5) years. An Assistant Integrity Commissioner is required
to be a Judge or enrolled as a legal practitioner of at least five (5) years. In circumstances
where an Assistant Integrity Commissioner appointed is a Judge, he or she must be
appointed on a full-time basis and if he or she is a Judge of a State or Territory, the
Governor-General may enter into an arrangement with the Governor of that State or the
Administrator of that Territory, securing the Judge's services, including an arrangement
for the State or Territory to be reimbursed by the Commonwealth. The Clause also
provides a definition of `Judge' for the purpose of the Clause. An Assistant Integrity
Commissioner is required to assist the Integrity Commissioner with the functions and
duties prescribed in the Bill and he or she will be required to be familiar with the rights
and obligations of those involved in investigations and hearings. Clause 219 of the Bill
also authorises the Integrity Commissioner to delegate any of his or her powers (except to
hold a hearing for the purpose of a public inquiry) to an Assistant Integrity
Commissioner.
Clause 186: Judge may be Appointed as an Assistant Integrity Commissioner
This Clause provides that a Judge may be appointed as an Assistant Integrity
Commissioner (on a full-time basis only, pursuant to Clause 185) and his or her
privileges as the holder of judicial office will remain unaffected. However, the Clause
provides that a Judge appointed as an Assistant Integrity Commissioner will cease to hold
office as an Assistant Integrity Commissioner if he or she is no longer a Judge. The
Clause intends to reserve privileges such as tenure of judicial office, rank, title,
precedence, salary etc. for Judges appointed as an Assistant Integrity Commissioner.
Clause 187: Acting Appointments
Clause 187 provides that in circumstances where there is a vacancy in the office of an
Assistant Integrity Commissioner or during any periods an Assistant Integrity
Commissioner is absent from duty or Australia, the Minister may appoint a person as an
Acting Assistant Integrity Commissioner. An Acting Assistant Integrity Commissioner
must be enrolled as a legal practitioner, and have been so for a minimum period of five
(5) years. Anything done by, or in relation to an Acting Assistant Integrity Commissioner
is not invalid merely because the occasion for appointment had not arisen, a defect or
irregularity existed in connection with the appointment, the appointment ceased to have
affect or the occasion to act had not arisen or ceased.
Clause 188: Remuneration
This Clause provides that subject to the Remuneration Tribunal Act 1973, an Assistant
Integrity Commissioner is to be paid a remuneration determined by the Remuneration
Tribunal. In the absence of a determination, an Assistant Integrity Commissioner will be
paid in accordance with the Regulations, which also prescribe allowances. To avoid
doubt, the Clause provides that where a Judge receiving salary or annual allowance is
appointed as an Assistant Integrity Commissioner, he or she will not be entitled to
receive remuneration under the Bill. Clause 185 also provides that if the Judge is a Judge
of a State or Territory, the Governor-General may arrange for the Commonwealth to
compensate that State or Territory accordingly.
Clause 189: Leave
This Clause provides that the Remuneration Tribunal will determine the recreation leave
entitlements of an Assistant Integrity Commissioner appointed on a full-time basis.
Further, the Minister may grant a leave of absence to an Assistant Integrity
Commissioner appointed on a full-time basis, on the Minister's specified terms and
conditions. The Integrity Commissioner may grant any Assistant Integrity Commissioner
appointed on a part-time basis a leave of absence on the terms and conditions determined
by the Integrity Commissioner.
Clause 190: Outside Employment
This Clause provides that an Assistant Integrity Commissioner appointed on a fulltime
basis must not engage in any paid employment outside the duties of his or her office
without prior consent from the Minister. This Clause further provides that an Assistant
Integrity Commissioner appointed on a part-time basis must not to engage in any paid
employment outside the duties of his or her office, which may conflict with the duties of
an Assistant Integrity Commissioner.
Clause 191: Other Terms and Conditions
This Clause provides that an Assistant Integrity Commissioner (other than a Judge) may
only hold office as an Assistant Integrity Commissioner on the terms and conditions
which are determined by the Governor-General in relation to matters not covered by the
Bill.
Clause 192: Resignation
This Clause provides that an Assistant Integrity Commissioner may resign from their
appointment as an Assistant Integrity Commissioner by providing the Governor- General
with a written resignation.
Clause 193: Termination of Employment
This Clause provides that except in circumstances where an Assistant Integrity
Commissioner is a Judge, the Governor-General may terminate the Assistant Integrity
Commissioner's appointment by reason of misbehaviour, physical or mental incapacity,
if the Assistant Integrity Commissioner becomes bankrupt or fails to comply with the
disclosure of interest under Clause 194. The Governor-General may terminate the
appointment of an Assistant Integrity Commissioner appointed on a full-time basis where
he or she is absent from duty for 14 consecutive days or 28 days in a period of 12 months
(except if he or she is on leave) or engages in outside employment in contravention of
Clause 190. The Governor-General may terminate the appointment of an Assistant
Integrity Commissioner appointed on a part-time basis in circumstances where he or she
engages in paid employment in contravention of Clause 190.
Clause 194: Disclosure of Interests
This Clause requires an Assistant Integrity Commissioner to provide written notice to the
Minister where he or she has, or acquires, an interest that may conflict with the
performance of his or her functions as an Assistant Integrity Commissioner.
Division 3- The Australian Commission For Law Enforcement Integrity
Clause 195: Establishment
This Clause establishes ACLEI, being the Australian Commission for Law Enforcement
Integrity and consisting of the Integrity Commissioner, any Assistant Integrity
Commissioner and staff. The intention of this Clause is to form the independent body
with the powers to prevent, detect and investigate corruption within the Australian
Government law enforcement agencies.
Clause 196: Function
This Clause prescribes that the function of ACLEI is to assist the Integrity Commissioner
in performing his or her duties in relation to dealing with corruption issues as outlined in
Clause 15 of the Bill.
Clause 197: Staff
This Clause provides that staff members of ACLEI will be appointed or employed under
the Public Service Act 1999 and together, the Integrity Commissioner and the APS
employees assisting the Integrity Commissioner constitute a Statutory Agency. To avoid
doubt, the Clause also provides that the Integrity Commissioner is the head of the
Statutory Agency.
Clause 198: Engagement of Consultants
This Clause provides that the Integrity Commissioner may engage suitable persons as
consultants to ACLEI for a period of up to two (2) years, and under any other such terms
and conditions as determined by the Integrity Commissioner. The consultant's contract
may only be extended beyond two (2) years where it is necessary for the completion of a
particular task that was commenced during the initial two (2) year period.
Clause 199: Secondment of Persons to Assist Integrity Commissioner
This Clause provides that the Integrity Commissioner may make arrangements with the
Commissioner of the AFP, the head of a police force of a State, Territory or foreign
country, the agency head of a Commonwealth government agency, the head of a police
integrity agency or the head of an overseas government agency with similar functions to
an integrity agency, to make its members available to perform services in connection
with the Integrity Commissioner's functions. The person may only be engaged under
arrangement for a period of two (2) years, which may only be extended for the
completion of a particular task commenced during the initial two (2) year period. This
Clause also provides that in circumstances where the Integrity Commissioner engages the
services of existing government agency's staff, the Integrity Commissioner may also
make an arrangement for the Commonwealth to reimburse that State or Territory
accordingly.
Clause 200: Counsel Assisting Integrity Commissioner
This Clause provides that the Integrity Commissioner may appoint a legal practitioner as
Counsel to assist him or her generally, or in relation to a particular investigation or public
inquiry. Counsel assisting the Integrity Commissioner will be entitled to examine and
cross-examine witnesses as the Integrity Commissioner sees fit under Clause 88, and
have same powers and immunity as provided to Counsel appearing in the High Court.
Division 4- Public Reporting
Clause 201: Annual Report
This Clause provides that the Integrity Commissioner must give a report which is in
accordance with section 34C of the Acts Interpretation Act 1901, to the Minister to be
presented in Parliament on the performance of the Integrity Commissioner's functions
during each financial year. The Clause prescribes all matters to be addressed in the report
and includes particulars of corruption issues notified under Clause 19, corruption issues
raised by information or allegations under Clauses 18 and 23, corruption issues dealt with
on the Integrity Commissioner's own initiative, corruption issues investigated and/or
referred to other government agencies for investigation. The Clause also provides that the
report must also include a description of all investigations considered to raise significant
issues or developments in law enforcement and may include statistics, patterns, trends,
the nature and scope of corruption in law enforcement agencies and other
Commonwealth government agencies with a law enforcement function. The Integrity
Commissioner must also provide any recommendations for changes to laws or
administrative practices in Commonwealth government agencies. The report must also
include the number of investigations which resulted in criminal confiscation proceedings,
details of, and the result of, applications made to the Federal Court or the Federal
Magistrate's Court for orders of review of matters arising under the Bill, particulars of
any other Court proceedings involving the Integrity Commissioner and particulars of
certificates issued under clause 149. (This last requirement implements, in modified
form, the Senate Committee's recommendation 9.)
Clause 202: Inter-Governmental Committee Comments on Annual Report
This Clause provides that where an annual report under Clause 201 mentions the ACC,
the Minister must give a copy of the annual report to the Inter-Governmental Committee.
Any comments made by the Inter-Governmental Committee in relation to the report, are
to be laid before each House of the Parliament within fifteen (15) sitting days of the
Minister's receipt of the comments.
Clause 203: Reports on Investigations and Public Inquiries
This Clause provides that the Minister must cause reports given to him or her by the
Integrity Commissioner or a Special Investigator under Clauses 54, 73 162 or 169
relating to a public hearing, to be laid before each House of Parliament within fifteen (15)
sitting days of receipt of the report. The Clause further provides that prior to the report
being tabled, the Minister must remove all information from the report that could
endanger a person's safety, prejudice an investigation or proceedings brought as a result
of an investigation, or compromise operational activities or methodologies of ACLEI or a
law enforcement agency. To avoid doubt, the Clause also particularises that a
supplementary report is not required to be tabled in Parliament.
Clause 204: Special Reports
This Clause provides that the Integrity Commissioner may give the Minister a special
report on the operation, function and exercise of his or her powers for part of a year to be
presented in Parliament. The Minister must cause the report to be laid before each House
of the Parliament within fifteen (15) sitting days after receipt. The Integrity
Commissioner must not disclose any opinions or findings in a special report which are
critical of a government agency or person in a report, unless the head of the agency or the
person has been given an opportunity to appear, or have a representative appear before
the Integrity Commissioner to make submissions in relation to the subject matter.
Clause 205: Inter-Governmental Committee Comments on Special Report in
Relation to ACC
This Clause provides that where a special report prepared under Clause 204 relates to the
ACC, the Minister must provide a copy to the Inter-Governmental Committee. Any
comments the Inter-Governmental Committee choose to make are to be laid before each
House of the Parliament within fifteen (15) sitting days of the Minister's receipt of those
comments.
Clause 206: Contents of Annual or Special Report
This Clause provides that an annual report prepared under Clause 201 or a special report
prepared under Clause 204 must not include Clause 149 certified information. Further,
the Clause provides that the Integrity Commissioner may exclude information from a
report where the information is sensitive and it is desirable to exclude the information,
however, in doing so, the Integrity Commissioner must seek to balance the public interest
served and the prejudicial consequences occurring by the disclosure of the information in
the report.
Division 5- Confidentiality Requirements
Clause 207: Confidentiality Requirements for ACLEI Staff
This Clause provides that a person who either directly or indirectly, whilst they are, or
were a staff member of ACLEI makes record, divulges or communicates any information
disclosed or obtained under the Bill, acquired by being a staff member of ACLEI, or in
the course of his or her duties as a staff member of ACLEI, is liable to 60 penalty units
and/or one (1) year imprisonment, subject to Clauses 208 and 209.
Clause 208: Exceptions to Confidentiality Requirements
This Clause provides that Clause 207 does not prevent a staff member from making
records of, divulging or communicating information acquired in the performance of his
or her duties for the performance of the functions of the Integrity Commissioner under
the Bill. Clauses such as 44, 50 and 70 allow for information sharing with other agencies
and, for this purpose, staff members of ACLEI are permitted to disclose information
obtained.
Subclause 208(3) permits the Integrity Commissioner to disclose information to the
heads of other Commonwealth and State/Territory government agencies if, having regard
to the functions of the agency, the Integrity Commissioner is satisfied that it is
appropriate to do so. This subclause will be the general source of authority for
disclosures of information (as opposed to admissible evidence) to other government
agencies outside of the Integrity Commissioner's conduct own investigations and public
inquiries, in a way that ensures that all agencies with a legitimate interest may receive
information that is relevant to them. The Integrity Commissioner is only permitted to
disclose information under subclause 208(3) where a law corresponding to clause 207 is
in force with respect to confidentiality of information acquired by persons within that
agency.
This Clause provides that Clause 207 does not prevent the disclosure of information
when required under another Commonwealth law. This Clause also provides that the
Integrity Commissioner is authorised to disclose information to a particular person where
necessary to protect the person's life or safety. However, the authority to disclose
information given to the Integrity Commissioner is subject, unless another
Commonwealth law requires disclosure to any specific contrary provisions in the Bill that
are applicable to particular cases. For example, a certificate issued by the Attorney-
General under clause 149 may prohibit the Integrity Commissioner from disclosing
particular information to another government agency.
Clause 209: Disclosure by the Integrity Commissioner in Public Interest etc.
This Clause provides that the Integrity Commissioner may disclose information, except
for Clause 149 certified information to a person, to the public or a section of the public
about the performance of his or her functions or an investigation where the disclosure is
in the public interest. The Clause provides that prior to disclosing any sensitive
information, the Integrity Commissioner must consider a balance between the public
interest and the prejudicial consequences that may result in disclosing the information.
Clause 210: Opportunity to be Heard
This Clause provides that the Integrity Commissioner must not disclose any opinions or
findings which are critical of a government agency or person, unless the head of the
agency or the person has been given an opportunity to appear, or have a representative
appear before the Integrity Commissioner to make submissions in relation to the subject
matter.
Clause 211: ACLEI Staff Generally not Compellable in Court Proceedings
This Clause provides that a person who is, or has been a staff member of ACLEI can not
be compelled to disclose information that was obtained under the provisions of the Bill,
which were acquired because of being, or having been a staff member of ACLEI, before
any Court proceedings or a person authorised to hear, receive and examine evidence.
However, the Clause provides that a staff member or former staff member of ACLEI will
be compelled to provide evidence in proceedings where either the Integrity
Commissioner, a delegate of the Integrity Commissioner or a person authorised by the
Integrity Commissioner are party to proceedings in official capacity. Staff members of
ACLEI may also be compelled to provide evidence in proceedings brought in carrying
out a provision of the Bill or proceedings resulting from an investigation. To avoid doubt,
this Clause confirms that `produce' includes permit access to and `production' has a
corresponding meaning.
PART 14 - PARLIAMENTARY JOINT COMMITTEE ON THE AUSTRALIAN
COMMISSION FOR LAW ENFORCEMENT INTEGRITY
Clause 212: Definitions
This Clause defines key terms used in this Part. The Parliamentary Joint Committee on
the Australian Commission for Law Enforcement Integrity will be referred to as the
`Committee' and members of the Committee will be referred to as a `member'.
Clause 213: Joint Committee on the Australian Commission for Law Enforcement
Integrity
This Clause provides that as soon as is practicable after the first session of each
Parliament, a Joint Committee of members is to be appointed by the existing practices of
appointing members to serve on joint select committees for both Houses of the
Parliament. The Committee will be made up of five (5) members of each House.
Members of the Committee cannot hold the office of Minister, President, Speaker,
Deputy-President or Chair of Committees and will cease to be a member of the
Committee if he or she obtains one of these offices after their appointment. Either House
may appoint one of its members to fill a vacancy amongst the members of the Committee
appointed by that House.
Clause 214: Powers and Proceedings of the Committee
This Clause requires all matters relating to the powers and proceedings of the Committee
to be determined by resolution of both Houses of Parliament.
Clause 215: Duties of the Committee
This Clause provides that the Committee must monitor, review and report to the
government on any relevant matter that should be directed to the government's attention.
The Committee must report to the government on matters deemed desirable, and must
question and inquire into any matter posed by either House in relation to the Integrity
Commissioner's performance, ACLEI, annual and special reports of ACLEI, trends in
corruption generally and in Commonwealth law enforcement agencies, the integrity of
the staff within Commonwealth law enforcement agencies, the changes to the Integrity
Commissioner's functions, powers, procedures or ACLEI structure. To avoid doubt, this
Clause provides that the Committee is not authorised to investigate a corruption issue or
ACLEI corruption issue, or reconsider decisions or recommendations made by the
Integrity Commissioner or a special investigator.
Clause 216: Disclosure to Committee by Integrity Commissioner
This Clause provides that the Integrity Commissioner must inform the Committee when
requested, of the general conduct of ACLEI operations and provide information related to
investigations and inquiries unless, the information is Clause 149 certified information. If
the Integrity Commissioner is satisfied that the information is, or includes sensitive
information and the prejudicial consequences outweigh the public interest served by
providing the information to the Committee, the Integrity Commissioner may also decide
not to comply with the Committee's request. In circumstances where the Integrity
Commissioner does not provide requested information to the Committee, the Committee
may refer their request to the Minister, who will then determine whether or not the
information is sensitive information, and, if so, whether the prejudicial consequences
outweigh the public interest served by providing the information to the Committee. The
Minister must not provide reasons for this determination.
Clause 217: Disclosure to Committee by Minister
This Clause provides that the Minister must comply with a request from the Committee
for information in relation to a special investigation or the disclosure to the Committee
would contravene a certificate issued under Clause 149. The Clause further provides that
the Minister may decide not to comply with the Committee's request where he or she is
satisfied that the information is, or includes sensitive information and the prejudicial
consequences outweigh the public interest served by providing the information to the
Committee.
Clause 218: Ombudsman to Brief Committee About Controlled Operations
This Clause provides that the Committee must meet in private once each year to receive a
brief from the Commonwealth Ombudsman about the Integrity Commissioner's
involvement in controlled operations. Due to the nature of the briefing, it is necessary for
the Committee to meet in private in order to maintain the confidentiality of persons
involved and to ensure the non- disclosure of operational information. The arrangement
will be similar to that currently in place in respect of the Parliamentary Joint Committee
that oversees the operations of the ACC.
PART 15 - MISCELLANEOUS
Clause 219: Delegation
This Clause authorises the Integrity Commissioner to delegate all or any of their powers,
except the power to hold a hearing for a public inquiry, to an Assistant Integrity
Commissioner. Further, this Clause authorises the Integrity Commissioner to delegate all
or any of their powers, except for the powers to hold a hearing to conduct a public
inquiry, summon a person or enter premises without a warrant, to a staff member of
ACLEI who is a SES, or acting SES employee. The delegation authorising the Assistant
Integrity Commissioner or ACLEI staff member with the Integrity Commissioner's
powers must be in writing and signed by the Integrity Commissioner.
Clause 220: Offence of Victimisation
The Clause provides that any person who causes, or threatens to cause detriment to
another person (the `victim') on the basis that the victim refers, notifies or produces
documents to the Integrity Commissioner, the Minister or a special investigator in
relation to a corruption issue or an ACLEI corruption issue, is liable to two (2) years
imprisonment. Where a victim is threatened, whether the threat is express, implied,
conditional or unconditional, the prosecution of the offence does not require proof that
the victim actually feared the threat would be carried out. The burden is lowered with the
intention of pursuing all threats made, regardless of the intensity and to demonstrate that
threatening witnesses or those providing assistance to the Integrity Commissioner is not
tolerated. The Clause intends to ensure that persons involved in an investigation by the
Integrity Commissioner can assist in the investigation and be protected from harassment
or violence by reason of their involvement.
Clause 221: Legal and Financial Assistance in Relation to Applications for
Administrative Review
This Clause provides that in relation to an application or proposed application to the
Federal Court or the Federal Magistrates Court for an order of review of a matter arising
under the Bill (pursuant to the Administrative Decisions (Judicial Review) Act 1977) a
person may apply to the Attorney-General for legal and financial assistance. Where an
application for legal and/or financial assistance is made, the Attorney- General may
authorise the Commonwealth to provide such assistance, either unconditionally or subject
to specified terms, if satisfied that a substantial hardship would be suffered if assistance
was refused, or where the circumstances of the case are of a special nature. The intention
of this provision is to attempt to provide an equal access to justice. The assistance can
provide resources for representation and minimise a potential disadvantage. Further, the
assistance will allow access to legal advice to assess claims and prevent applications
being pursued where there is no merit, saving the Court's time.
Clause 222: Immunity from Civil Proceedings
A staff member of ACLEI is not liable to civil proceedings in relation to an act or
omission done in good faith during the performance, or purported performance of their
functions under the Bill. A person requested by the Integrity Commissioner to assist
ACLEI is not liable to civil proceedings in relation to an act or omission done in good
faith during the performance, or purported performance, of assisting ACLEI. A special
investigator is not liable to civil proceedings in relation to an act or omission done in
good faith during the performance, or purported performance of their functions under
Part 12, Division 4 of the Bill. A person requested by a special investigator to assist him
or her, is not liable to civil proceedings in relation to an act or omission done in good
faith during the performance, or purported performance of assisting the special
investigator. In circumstances where information, documents or evidence is produced to
the Integrity Commissioner or a special investigator, a person is not liable to any action,
suit, claim or proceeding in relation to the loss, damage or injury suffered by another
person as a result of the evidence being provided to the Integrity Commissioner or special
investigator. The intention of the Clause is to allow staff members of ACLEI to perform
their duties, functions and exercise the powers authorised under the Bill, without the fear
of personal liability for any actions they perform. For example, the Bill authorises staff
members of ACLEI to use a reasonable amount of force where necessary in executing an
arrest or search warrant under Clause 117. Accordingly, immunity from civil proceedings
is necessary as staff members of ACLEI will potentially be exposed to actions for
damages etc. in the performance of their duties.
Clause 223: Immunities from Certain State and Territory Laws
The Integrity Commissioner, an Assistant Integrity Commissioner and staff members of
ACLEI are not required to obtain a licence or permission under any State or Territory
law, for the purpose of doing an act or thing in the course of their respective duties under
the Bill. Further, ACLEI are not required to register any vehicle, vessel, animal or article
belonging to the Commonwealth. The Clause intends to prevent ACLEI being restricted
in the performance of their duties by imposing different State and Territory regulations.
Due to ACLEI's function of investigating corruption issues nationally, staff members
will be qualified under the Commonwealth.
Clause 223A: Review of operation of Act
This clause provides for the Minister to arrange an independent expert review of the
operation of the Bill after three years of operation. The reviewer/s will be required to
report to the Minister within six months after the end of the review period. The Integrity
Commissioner and ACLEI staff members will be required to assist the reviewer/s. There
will be an opportunity for written submissions from the public and the Minister is
required to table the report. However, these requirements will not apply if a
parliamentary committee has started or completed a review of the operation of the Bill by
the end of the review period. This clause implements the Senate Committee's
recommendation 11.
Clause 224: Regulations
This Clause provides that the Governor-General may make Regulations prescribing
matters required or permitted by the Bill, or which are necessary or convenient to be
prescribed. For example, in the future, it may be necessary for the Regulations to
prescribe other agencies to be included as a `law enforcement agency' for the purposes of
the Bill and Clause 5 currently reflects that any additional Commonwealth government
agencies with a law enforcement function may be prescribed by the Regulations.
The regulations may also require information or reports given under prescribed
provisions of the Bill to be given to prescribed persons in specified circumstances. This
subclause is intended to deal with issues arising from the role of the AFP, under section 8
of the AFP Act, as the provider of policing services to the Australian Capital Territory
and certain other Territories. For example, regulations made under subclause (2) could
impose an obligation on the Integrity Commissioner to provide information about an
investigation of a corruption issue affecting ACT policing to the ACT Police Minister in
the same circumstances in which the Integrity Commissioner must provide such
information to the Commonwealth Minister.
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