Draft legislation for the Commonwealth Integrity Commission released
On 2 November 2020, the federal Attorney-General released draft legislation designed to establish a federal anti-corruption agency, the Commonwealth Integrity Commission (CIC).
Background
In the context of increasing pressure, the federal government announced its intention to establish a CIC in December 2018, with submissions on a consultation paper invited between December 2018 and February 2019. Now, after the consideration of feedback provided on the consultation paper, draft legislation has been developed to establish the agency, with the release of two Bills:
The draft legislation can be found here, with the consultation period running from November 2020 to March 2021.
The process
Plans for the introduction of the CIC have already begun, with the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI) expanding in January 2021 to cover four new agencies, as well as additional staff assuming positions to implement this phase. The second phase involves full delivery of the CIC, by legislation, which will absorb the ACLEI and provide legislative coverage for the remainder of the sector.
Transitional arrangements for the handover to the CIC have not yet been finalised (and form part of further consultation) including the transfer of ongoing ACLEI investigations to the CIC and determining whether the CIC may look into conduct that occurred before it commenced as a body.
The CIC in general
The CIC is intended to be a centralised, specialist agency tasked with preventing and investigating corruption within the Commonwealth public sector. The CIC will be a new independent statutory agency in place of the current ACLEI. The 2019-2020 budget allocated just over $106 million for establishing the CIC (in addition to the $40 million the ACLEI receives in funding). Once fully established, the CIC will be fronted by 172 staff members. The CIC will be accountable to the Attorney-General and subject to oversight by an independent Inspector-General and a Parliamentary Joint Committee.
Jurisdiction
The CIC is set to have greater investigatory powers than a Royal Commission. The CIC’s powers will include the ability to:
The CIC will be divided into two divisions, namely a public sector integrity division and a law enforcement integrity division.
The public sector integrity division will have jurisdiction over:
Further to the above, the government is considering a model that provides the CIC jurisdiction to investigate allegations relating to members of the federal judiciary.
The law enforcement integrity division will have jurisdiction over law enforcement agencies and public sector agencies with investigative functions, namely: ACCC, APRA, ASIC, ACIC, AFP, ATRAC, ATO, Department of Home Affairs and Department of Agriculture, Water and Environment.
While both divisions will be tasked with investigating corrupt conduct (being conduct involving an abuse of office or perversion of the course of justice) by staff within its jurisdiction, the public sector division will only investigate conduct where the conduct also constitutes one of a list of corruption-related offences against a law of the Commonwealth.
Evidence of corrupt conduct uncovered by the CIC will be sent to the Commonwealth Director of Public Prosecutions (CDPP), with minor disciplinary issues to be referred back to the relevant agency for disciplinary action.
Referrals
There will be a mandatory requirement on heads of law enforcement agencies to refer issues of corruption within their agency to the CIC. The heads of entities covered by the public sector integrity division (with the exception of a parliamentarian’s office) will also have a mandatory obligation to report corruption issues if there is a ‘reasonable suspicion’ that a listed offence has been committed. Referrals from other integrity agencies are also able to be received by the public sector integrity division and this includes where issues of corruption involve parliamentarians and their members of staff.
Limitations
While the draft legislation will be welcomed by many as filling the void at the Commonwealth level, critics have signalled that there are still a number of issues that will need to be ironed out in the consultation process.
In its current state, the proposed legislation means there will not be public hearings relating to public sector corruption issues. This contrasts in particular to the position adopted by state agencies and must come as a relief to those within its purview.
Further, the referral threshold is high, in that corruption in the public sector can only be investigated where there is a reasonable suspicion that an offence has been committed.
This means that in the likely majority of instances, the CIC’s powers are only exercisable in private and only where there is reasonable suspicion of a criminal offence. Areas of uncertainty such as undisclosed conflicts of interest cannot be dealt with unless a criminal offence is already obvious.
Further, the definition of corruption has been narrowly defined, which effectively excludes anyone outside the public sector who improperly influences public decision-making.
It also has to be said that exempting the heads of parliamentary offices from those with a compulsory reporting obligation is unlikely to pass muster with the general public, who are similarly excluded as the CIC will not receive referrals from the public at large.
The consultation period is generous and is anticipated to generate much public debate and interest.
How does this compare to the NSW ICAC?
The referral pathways are limited and the referral threshold is high for the CIC and in a number of respects the ICAC’s jurisdiction is broader. The ICAC has equivalent investigative powers to the CIC, although they specifically also provide for the ICAC to:
For the ICAC, public inquiries are an important tool in exposing corruption and increasing public confidence in the integrity of investigations. That said, a public inquiry is not always held and in determining whether to hold a public inquiry, the Commissioners must weigh the personal risks and public benefits and consider the following (similar to the considerations for the CIC, in circumstances where a public hearing is possible, but the ICAC’s considerations are expressed substantially more in terms of openness and transparency):
Following a public inquiry, the ICAC must provide a report to the NSW Parliament. ICAC investigation reports may include findings of corrupt conduct in relation to individuals investigated, recommendations for prosecution of or taking of disciplinary action against individuals investigated, or recommendations to agencies for changes in procedures to prevent future corrupt conduct. By contrast, it seems that reports of the CIC will not generally be publicly available, again seemingly a less transparent and open approach and one that perhaps seems to be at odds with the overall purpose of such an agency.
Authors: Christine Jones & Rebecca Weakley
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Strict new laws to regulate short-term rentals in NSW
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New team to lead Legal Services Council
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New Family Court and FCC form for child abuse, family violence or risk
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New Australian Standards
AS/NZS IEC 62676.2.31:2020
Video surveillance systems for use in security applications – Live streaming and control based on web services
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Open Government Partnership – Final public consultation on draft Commitments for Australia’s Third National Action Plan
The Open Government Forum is seeking final feedback on the draft Commitments proposed to be included in Australia's Third National Action Plan. The Forum is open to feedback until 6 November 2020. You can read the draft Commitments in full on the OGP website, and are invited to leave your comments on the website on each draft Commitment
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Federal Circuit and Family Court of Australia Bill 2019 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 [Provisions]
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Nationhood, national identity and democracy
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Finance and Public Administration Legislation Committee Consultations
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill 2020
The closing date for submissions is 6 November 2020.
Intelligence and Security Legislation Amendment (Implementing Independent Intelligence Review) Bill 2020
On 6 October 2020 the Senate extended the committee’s reporting date to 9 December 2020.
Commonwealth Electoral Amendment (Donation Reform and Other Measures) Bill 2020
Senate extended the committee’s reporting date to 3 December 2020
LSC: Regulation of litigation funding schemes
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LCA Submissions
02 November 2020 — Law Council
Social Security (Administration) Amendment (Continuation of Cashless Welfare) Bill 2020
30 October 2020— Law Council
Inquiry into Customary Law and Aboriginality
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National Disability Strategy
30 October 2020— Law Council
Review of the Expensive Commonwealth Criminal Cases Fund
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Civil Dispute Resolution Regulations 2011
Australian Bushfires Disaster Emergency Declaration — Understanding your privacy obligations
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NSW
NSW legal identity document - available 16 November
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JUDCOM: Update 138, November 2020
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Work Health and Safety Act 2011 by the Work Health and Safety Amendment (Review) Act 2020. More...
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Privacy Act review: Issues paper
Attorney-General's Department (Australia); Government of Australia: 30 October 2020
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Digital Platform Services Inquiry interim report
ACCC: 26 October 2020
showed how the use of online private messaging services had grown significantly during the COVID-19 pandemic and identified competition and consumer issues across digital platforms; large platforms and advertising service providers were able to receive a range of user information from Android apps. More...
Review of the mandatory data retention regime
Commonwealth of Australia: 28 October 2020
recommends the Government implement a number of changes aimed to increasing transparency.
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Review of the mandatory data retention regime
Parliamentary Joint Committee on Intelligence and Security: 28 October 2020
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Commonwealth Ombudsman annual report 2019-20
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Australian Bureau of Statistics
05/11/2020 Public Consultation: Census Lesson Guide, 2020 (cat no. 1655.0)
NSW Custody Statistics: Quarterly update September 2020
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ICAC Annual Report 2019-20
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Feeney v Secretary, Department of Communities and Justice [2020] NSWCATAD 269
ADMINISTRATIVE LAW – Government Information (Public Access) Act – GIPA – discretion decline to deal with application – how discretion should be applied – systemic factors – weight applied to factors.
Sykes v Transport for NSW [2020] NSWCATAD 268
HUMAN RIGHTS – equal opportunity – whether leave required for complaint to proceed – principles applying to grant of leave.
Commissioner of Police v DYD [2020] NSWCATAP 224
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Wojciechowska v Blue Mountains City Council [2020] NSWCATAD 264
GOVERNMENT INFORMATION (PUBLIC ACCESS) ACT 2009 – access to government information – whether the respondent holds any further information in relation to identified categories.
Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020
Finally passed both Houses 29 Oct 2020
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Higher Education Support Amendment (Freedom of Speech) Bill 2020
House of Representatives 28 Oct 2020
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Australian Federal Integrity Commission Bill 2020
House of Representatives 26 Oct 2020 - The bill establishes the Australian Federal Integrity Commission – a new independent body responsible for the implementation of a national pro-integrity framework, and have appropriate powers of assessment, investigation and referral to enable clear, proportionate and practical responses to allegations of serious and/or systemic corruption issues at the federal level in the public interest, with comprehensive procedural fairness and whistleblower safeguards.
Commonwealth Parliamentary Standards Bill 2020
House of Representatives 26 Oct 2020 - The Bill will strengthen public confidence in the Commonwealth Parliament by equipping it with the appropriate powers and resources to prevent, manage and resolve its own integrity issues where possible, and provide clear pathways for the assessment, investigation, resolution and/or referral of serious integrity issues – including through the Australian Federal Integrity Commission.
Criminal Code (Terrorist Organisation—Islamic State Khorasan Province) Regulations 2020
30/10/21020 - This instrument repeals and replaces the Criminal Code (Terrorist Organisation—Islamic State Khorasan Province) Regulations 2017, and specifies Islamic State Khorasan Province as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
Criminal Code (Terrorist Organisation—Jama’at Nusrat al-Islam wal-Muslimin) Regulations 2020
30/10/2020 - This instrument repeals and replaces the Criminal Code (Terrorist Organisation—Al-Murabitun) Regulations 2017, and specifies Jama’at Nusrat al-Islam wal-Muslimin as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
Family Law Amendment (Notice of Child Abuse, Family Violence or Risk) Rules 2020
30/10/2020 - This instrument amends the Family Law Rules 2004 to allow for a consistent Notice of Child Abuse, Family Violence or Risk form between the Federal Circuit Court of Australia and the Family Court of Australia.
Federal Circuit Court Amendment (Notice of Child Abuse, Family Violence or Risk) Rules 2020
30/10/2020 - This instrument amends the Federal Circuit Court Rules 2001 to allow for a consistent Notice of Child Abuse, Family Violence or Risk form between the Federal Circuit Court of Australia and the Family Court of Australia.
Australian National University (Governance) Statute 2020
29/10/2020 - This instrument provides governance arrangements for the Australian National University.
NSW
Proclamations commencing Acts
Adoption Legislation Amendment (Integrated Birth Certificates) Act 2020 No 22 (2020-650) — published LW 6 November 2020
Regulations and other miscellaneous instruments
Fair Trading Amendment (Code of Conduct for Short-term Rental Accommodation Industry) Regulation (No 2) 2020 (2020-634) — published LW 28 October 2020
Fair Trading Amendment (Code of Conduct) Regulation 2020 (2020-635) — published LW 28 October 2020
Bills assented to
Statute Law (Miscellaneous Provisions) Act 2020 No 30 — Assented to 27 October 2020
Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 No 31 — Assented to 27 October 2020
For the full text of Bills, and details on the passage of Bills, see Bills.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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