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Law Enforcement Integrity Commissioner Bill 2006
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Law Enforcement Integrity Commissioner Bill 2006
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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
LAW ENFORCEMENT INTEGRITY COMMISSIONER BILL 2006
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
The Law Enforcement Integrity Commissioner Bill 2006 (the Bill) establishes the 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 proposed amendments clarify the operation of the Bill in a number of key areas, taking into account the report of the Senate Legal and Constitutional Legislation Committee in relation to the Bill.
The proposed government amendments will ensure that provisions for the Integrity Commissioner to deal with an AFP secondee’s home agency apply to certain arrangements similar in effect to secondment, vary the provision in the Bill for decisions not to investigate a corruption issue, make additional provision for protection of ACLEI witnesses, make more adequate provision for disclosure of ACLEI information to other government agencies where appropriate, provide a degree of accountability in relation to the issue of certificates by the Attorney-General under clause 149, and provide for a review of the operation of the Bill after three years.
Financial Impact Statement
The Government amendments will have no financial impact.
The following abbreviations are used in this supplementary explanatory memorandum:
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
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
Amendments 1 and 2: Clause 10 (Staff members of law enforcement agencies)
Clause 10 specifies the classes of persons that are staff members of a law enforcement agency for the purposes of the Bill.
Amendment 1 will omit paragraph (1)(d), which lists protective service officers as staff members of the AFP for the purposes of the Bill. This amendment corrects a technical error. Paragraph (1)(c) identifies ‘an AFP employee’ as a staff member of the AFP. Terms used in paragraphs (1)(a) to (f) have the same meaning as in the AFP Act. The term ‘AFP employee’, as defined in the AFP Act, includes protective service officers.
Amendment 2 will insert a new paragraph (1)(fa) to provide that a person engaged overseas under section 69A of the AFP Act to perform duties overseas as an employee of the AFP is a staff member of the AFP for the purposes of the Bill. This will ensure that all persons employed by the AFP are subject to the regime established by the Bill.
Amendment 3: Clause 10 (Staff members of law enforcement agencies—secondees)
Subclause (5) specifies the classes of staff members of a law enforcement agency that are secondees for the purposes of the Bill. Amendment 3 inserts an additional paragraph (5)(aa) to provide that, for the purposes of the Bill, the term ‘secondee’, as it applies to the AFP, includes persons who are referred to in paragraphs (1)(e) and (f) (special members and special protective service officers) who are also employees of another government agency. The purpose of this amendment is to ensure that the provisions of the Bill that require the Integrity Commissioner to deal with the special situation of secondees apply not only to people who are seconded in the conventional sense, but also to other people who are appointed to perform duties as special members or special protective service officers so that they can assist the AFP in the performance of its functions while they remain employees of other agencies. This will ensure that the secondee provisions in the Bill apply to all staff members of the AFP who have a home agency (and, in some cases, an integrity agency) that has a legitimate interest in their conduct while assisting the AFP in the performance of its functions.
Amendments 4, 7 and 9: Clauses 22, 31 and 42 (Grounds for taking no further action—bad faith)
These amendments omit paragraphs 22(2)(c), 31(4)(c) and 42(3)(c).
Clause 22 provides that, if the head of a law enforcement agency notifies the Integrity Commissioner of a corruption issue that is not identified as a significant corruption issue, the agency must investigate, or continue investigating, the corruption issue itself. Subclause (2) provides for exceptions to this obligation.
Clause 31 requires the Integrity Commissioner to decide how, or whether, to deal with a corruption issue that is notified under section 19 or referred under section 18 or 23. Subclause (4) provides grounds for the Integrity Commissioner to take no further action.
Clause 42 permits the Integrity Commissioner to reconsider how, or whether, to deal with a corruption issue. Subclause (3) provides grounds for the Integrity Commissioner to take no further action.
Paragraph (c) of each of these subclauses provides that one such ground is that the decision maker is satisfied that the issue was not raised in good faith.
This change will implement the Senate Committee’s recommendation 3. It will ensure that there is no risk that decisions will be made not to investigate corruption issues on grounds of bad faith in cases where a person who provides information is motivated by malice but the information itself provides credible indications of corrupt conduct.
Amendments 5 and 6: Clause 22 (Grounds for taking no further action—law enforcement agency)
Clause 22 provides that, if the head of a law enforcement agency notifies the Integrity Commissioner of a corruption issue that is not identified as a significant corruption issue, the agency must investigate, or continue investigating, the corruption issue itself. Subclause (2) provides for exceptions to this obligation. Amendment 5 adds an additional paragraph (e) to subclause (2) and amendment 6 inserts a new subclause (2A).
The effect of these amendments is that, 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 paragraphs (2)(a) to (d), the head of the agency may decide, on the basis of such a ground, not to investigate a corruption issue covered by clause 22, 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 section 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.
Amendments 8 and 10: Clause 31 and clause 42 (Grounds for taking no further action—Integrity Commissioner)
Clause 31 provides that, if the head of a law enforcement agency notifies the Integrity Commissioner of a corruption issue and indicates that it is a significant corruption issue, the Integrity Commissioner must decide either to deal with the corruption issue in a way set out in subclause 26(1) or 29(6) or to take no further action. Clause 42 gives the Integrity Commissioner the same options in reconsidering how any corruption issue should be dealt with. Subclauses 31(4) and 42(3) list the grounds on which the Integrity Commissioner may decide to take no further action.
Amendments 8 and 10 extend the list in subclauses 31(4) and 42(3) to provide the Integrity Commissioner with a residual discretion, if none of the other grounds is applicable, to take no further action in relation to a corruption issue if the Integrity Commissioner is satisfied that an investigation is not warranted in the particular circumstances. This amendment will implement part of the Senate Committee’s recommendation 2.
Amendments 11, 12, 13, 15 and 16: Clauses 72, 81, 104 and new clause 104A (Protection of witnesses)
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. Subclause 104(3) confers the same protection on a person who gives evidence or produces a document or thing at a hearing, or makes a submission to a public inquiry, under the Bill.
Amendments 12 and 13 amend clause 81 by inserting an additional subsection to authorise the Integrity Commissioner to make 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.
Amendments 15 and 16 omit the existing subclause 104(3) and insert a new clause 104A, which makes provision, parallel to that provided in clause 81, for the protection of people who give evidence or produce a document or thing at a hearing, or make a submission to a public inquiry, under the Bill.
These amendments will implement the Senate Committee’s recommendation 4.
These amendments expressly do not affect the Witness Protection Act 1994 , but provide 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 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).
Amendment 11 is an amendment consequential to the changes made by amendments 12 and 13. The current note to clause 72 refers to the protection given by subclause 104(3) to people making submissions to public inquiries. Amendment 11 substitutes a new note referring to the protection provided by subclause 104A(1).
Amendment 14: Clause 96 (Correction)
This will correct a typographical error in the Bill.
Amendments 17, 18, 20, 23 and 24: Clause 123, Part 10 and clause 208 (Dealing with information)
Part 10 Division 2 (clause 148) and subclause 208(3) of the Bill make separate provision for the disclosure of information. Clause 148 makes provision for the Integrity Commissioner to refer to the head of a police force or a prosecuting authority, any information, a document or a thing that is obtained in the course of an investigation or public inquiry under the Bill and that relates, or may relate, to a criminal offence or a contravention of the law that is subject to a civil penalty. Subclause 208(3) permits the Integrity Commissioner to disclose information to the heads of other Commonwealth and State/Territory government agencies if the information does not relate to a corruption issue and should more appropriately be dealt with by the person to whom it is disclosed.
There is a gap between these two provisions in that clause 148 limits the possible recipients of information in a way that, for example, excludes integrity agencies and ombudsman’s offices, while subclause 208(3) does not permit disclosure of information that relates to a corruption issue to another agency, even if the information is also relevant to a matter that the other agency should deal with. The purpose of these amendments is to unify the Bill’s provisions for disclosure of information by the Integrity Commissioner, outside of the conduct of the Integrity Commissioner’s own investigations and public inquiries, in a way that ensures all agencies with a legitimate interest may receive information that is relevant to them.
The key amendments are amendments 20 and 24. Amendment 20 omits Division 2 of Part 10, comprising clause 148 and the heading of the Division. Amendment 24 amends subclause 208(3) to provide that the Integrity Commissioner may disclose information to another Commonwealth or State/Territory government agency if, having regard to the functions of the agency, the Integrity Commissioner is satisfied that it is appropriate to do so. Subclause 208(3) will now be the general source of authority for disclosures of information (as opposed to admissible evidence) to other government agencies and will not prevent disclosures of information that relates to a corruption issue.
The authority provided by the amended subclause 208(3) will be subject 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.
Amendments 17 and 18 are consequential to amendment 20. Without Division 2, the remainder of Part 10 does not need to constitute Division 1. Clause 123 refers to Division 1 and Division 2 of Part 10 of the Bill. Amendment 17 will replace this with a reference simply to Part 10. Amendment 18 will omit the heading of Division 1 of Part 10.
Amendment 23 is consequential to amendment 24. It will substitute a heading for subclause 208(3) that reflects the operation of the subclause as amended.
Amendment 19: Clause 147 (correction)
Amendment 19 will correct a typographical error in the Bill.
Amendment 21 and 22: Clauses 149 and 201 (Attorney-General’s certificates)
Clause 149 authorises the Attorney-General, on specified public interest grounds, to issue a certificate limiting or prohibiting disclosure of particular information or documents. Subclause 201(2) requires the Integrity Commissioner to include prescribed information about specified matters in his or her annual report for each financial year.
Amendment 21 will insert a new subclause (6) in clause 149 requiring the Attorney-General 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 amendment will 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 Part 11 of the Bill.
Amendment 22 will amend subclause 201(2) by adding certificates issued under clause 149 to the list of matters on which the Integrity Commissioner must include prescribed information in the annual report.
The combined effect of these provisions will be to implement the Senate Committee’s recommendation 9 in slightly modified form, by giving the Integrity Commissioner the information and the obligation to report annually on the issue of certificates under section 149.
Amendment 25: Page 214, after clause 223 (Review of operation of Act)
This amendment will insert provision 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 amendment implements the Senate Committee’s recommendation 11.
Amendments 26 and 27: Clause 224 (Regulations)
These amendments will insert a new subclause (2) in clause 224 to provide that the regulations may require information or reports given under prescribed provisions to be given to prescribed persons in specified circumstances. This amendment is intended to deal with issues arising from the role of the AFP, under section 8 of the AFP Act, as 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.