Exposure draft of the legislation for a Commonwealth Integrity Commission released – what's it all about?

What led to the creation of the CIC Bill?

Unlike the states and territories of Australia, at the Federal level of government, no independent body currently exists which has a specific mandate to oversee the investigation of allegations of corruption in the public sector and in law enforcement agencies. In 2018, the Government announced an intention to create the new Commonwealth Integrity Commission (CIC), and released a draft Commonwealth Integrity Commission Bill (CIC Bill). The Government explained that the purpose of the CIC was to improve the Government's capacity to investigate corruption in the public sector and in law enforcement. The Government also intended that the CIC would work with agencies to bolster their capability to detect and deter corruption.

The original process involved consultation with the public, academia and other stakeholders. The Government has now, after consideration of the feedback received on the original draft, published an updated draft CIC Bill.  If you would like to comment on the bill you may make a submission by 12 February 2021. 

What are the key features of the CIC Bill?

The Bill provides for a Commonwealth Integrity Commission which has two streams – one which deals with public sector corruption issues, and the other which deals with law enforcement corruption issues. Integrity is an important element of the way both public servants and law enforcement officers carry out their responsibilities, however it is of particular importance in the context of law enforcement agencies given their role in promoting law and order in society. Accordingly, the CIC's jurisdiction in relation to law enforcement corruption issues has been drawn more broadly than it has in relation to public sector corruption issues. For example:

• the scope of conduct that may be considered, and be the subject of an adverse finding, by the CIC will be broader in the law enforcement stream than the public sector stream, as may be seen from the fact that:
• the CIC's jurisdiction with respect to public sector corruption will be confined to conduct which perverts the course of justice, is an abuse of office, or constitutes one of several specific listed criminal offences, whereas the CIC may consider conduct of law enforcement officers which perverts the course of justice, is an abuse of office, or that involves "corruption of any other kind"; and
• the thresholds that apply in order for conduct to rise to the level of a "corruption issue" will differ, requiring that a person "has" engaged or "is" engaging in corrupt conduct in the public sector context but, in the case of law enforcement officers, also capturing circumstances where a person "may have" or "may be" engaging in corrupt conduct, or "will, or may" engage in corrupt conduct in the future.
• dealing with public sector corruption issues must be held in private, while those dealing with law enforcement corruption issues may be held in public or in private;
• only certain public servants who hold office with functions that include investigating or inquiring into action taken by staff members of public sector agencies (and staff members of some other groups) may refer a public sector corruption issue to the CIC, and then only in certain circumstances, however any person may refer an allegation or information that raises a law enforcement corruption issue to the CIC; and
• CIC may only take action in relation to a public sector corruption issue if the Integrity Commissioner reasonably suspects that the offence to which the issue relates has been, or is being, committed.  The Integrity Commissioner does not need to be satisfied of this in order to take further action, including investigation or the holding of a hearing, in relation to a law enforcement corruption issue.

The proposed CIC would have the power to request that a judge issue search warrants in similar circumstances to those under which warrants may be requested under the Regulatory Powers (Standard Provisions) Act 2014, albeit with an additional criterion that there must be "reasonable grounds for believing" that the material which was sought under the warrant might be concealed, lost, mutilated or destroyed if it were sought under summons. 

In addition to the power to investigate corruption issues, hold hearings, and issue warrants, the CIC would have the power to issue summonses, issue reports, and may exercise powers of arrest in certain circumstances.

Upon receiving a referral or notification in relation to a corruption issue, the CIC must decide whether to deal with the issue or take no further action.  As noted above, if the issue referred or notified is a public sector corruption issue, the Integrity Commission must take no further action unless he or she reasonably suspects that the offence to which the issue relates has been, or is being, committed.  The Integrity Commissioner must otherwise deal with the issue unless satisfied that it is already being investigated, has or will be the subject of court proceedings, is frivolous, vexatious or an investigation is otherwise "not warranted having regard to all the circumstances". 

For all other matters the Integrity Commissioner may decide to deal with the corruption issue by investigating it or referring it to the AFP.  If the issue is a public sector corruption issue the Integrity Commissioner may instead refer the issue for investigation by the entity from which it arose (such as the government department which referred it) and may choose to manage or oversee the investigation by that entity, or allow the entity to investigate without management or oversight by the CIC. 

Interaction with the PID Act

The proposed CIC framework complements the existing regime that requires government departments and agencies to investigate allegations of corruption (amongst other disclosable conduct) under the Public Interest Disclosure Act 2013 (PID Act). The PID Act provides a mechanism under which allegations of corruption (including conduct that does not meet the threshold for investigation by the CIC) are to be investigated and, indeed, if a PID Act investigation into a corruption issue that is notified to the CIC was being undertaken by the entity, the Integrity Commissioner may determine to take no further action in relation to the corruption issue.

Further, there is scope for the CIC to be prescribed as an investigative agency for the purposes of the PID Act (something which can be done through rules made under the PID Act), which would allow authorised officers of Commonwealth entities to allocate disclosures of a corruption issue made under the PID Act for investigation by the CIC. Currently, there are no prescribed investigative agencies under the PID Rules (the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security are defined as investigative agencies under the Act itself). While the Bill creates an obligation on the head of Commonwealth entities to notify the CIC of corruption issues, the capacity to allocate a disclosure under the PID Act would enable investigations to be undertaken at arms-length from the Commonwealth entity where appropriate, and provide greater flexibility in the way that corruption issues are handled.

What do you need to do in relation to this exposure draft?

The exposure draft of the CIC Bill is now subject to public consultation until 12 February 2021. Interested parties should visit the Attorney-General's website.

The Government will also hold public consultation sessions with the public sector and law enforcement agencies which would be subject to the legislation, as well as with other stakeholders and academia, from this month until March 2021.

The feedback received as part of these processes will inform any further changes to the draft CIC Bill before it is presented to parliament in 2021.