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).
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.
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.
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.
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.
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
High Court dismisses challenge to Victoria's coronavirus lockdown
The High Court has thrown out a challenge to Victoria's COVID-19 lockdown from a Mornington Peninsula hotelier whose business was damaged by the state's restrictions. The High Court said it accepted the Victorian Government's arguments there was no foothold in the Constitution for such an implied right (06 November 2020). More...
Clive Palmer has lost his WA border battle. What does it mean for state and territory boundaries?
The High Court has knocked back billionaire miner Clive Palmer's challenge against Western Australia's COVID-19 hard border closure. Chief Justice Susan Kiefel said the court had found the Act complied with the constitution and the directions did not raise a constitutional issue (06 November 2020). More...
IBAC warns misuse of personal information held by local government can amount to corrupt conduct
Victorian councils need to improve how they protect the information they hold, according to a research report released by the Independent Broad-based Anti-corruption Commission (05 November 2020). More...
First person charged under foreign interference laws
A 65-year-old Melbourne man has become the first person in Australia to be charged under foreign interference laws. The Australia Federal Police allege the man, Duong Di Sanh, has a relationship with a foreign intelligence agency but have not named which country (05 November 2020). More...
PS corruption watchdog a step closer
The Attorney-General has announced that work has begun to establish a Commonwealth Integrity Commission to strengthen anti-corruption measures and law enforcement directed at the national Public Service to keep it free from criminal corruption (05 November 2020). More...
NSW Prison population remains low post-lockdown
Latest figures released by the Bureau of Crime Statistics and Research show that the NSW prison population remained steady in the 3 months to September 2020 after falling sharply between March and May 2020. The youth detention population has shown even larger recent reductions and is currently at historic lows (03 November 2020). More...
ABC upgrades emergency broadcasts
The Australian Broadcasting Corporation (ABC) has announced upgrades to its emergency broadcasting services in preparation for this year’s emergency summer season. The ABC’s new Emergency website, which brings together information from key national and State emergency services agencies. The ABC’s new Emergency website can be accessed at this PS News link (02 November 2020). More...
The Morrison Government release of Commonwealth Integrity Commission consultation draft
Commonwealth Integrity Commission designed to strengthen and complement the existing multi-agency approach to integrity, anti-corruption and law enforcement at a federal level (02 November 2020). More...
Time to revisit ALRC report to close the justice gap
A panel of Indigenous leaders has called on the necessity for governments to listen to Aboriginal and Torres Strait Islander peoples and have ‘challenging discussions’ if there is ever going to be a drop in their alarming incarceration rates (02 November 2020). More...
OAIC welcomes Privacy Act review
The Australian Government’s review of the Privacy Act is a landmark opportunity to ensure our privacy framework can respond to new challenges in the digital environment, Australian Information Commissioner and Privacy Commissioner Angelene Falk said (30 October 2020). More...
Intelligence Committee recommends scaling back privacy-invading metadata laws
The Parliamentary Joint Committee on Intelligence and Security has made bi-partisan recommendations for the scaling back of Australia’s controversial metadata retention regime (30 October 2020). More...
LCA: Response to the release of the Royal Commission into National Natural Disasters Arrangements report
As noted in the report, the delivery of legal assistance is a key example of non-government recovery support playing a fundamental role in helping individuals who are adversely affected by natural disasters.
The report, includes a recommendation for pre-agreed recovery programs that includes the provision of legal assistance Law Council of Australia's media release here (30 October 2020).
Privacy Act review - terms of reference and issues paper
The Morrison Government has released the terms of reference and issues paper for a wide-ranging review of the Privacy Act 1988 (30 October 2020). More...
A safe and stable home for women and children escaping domestic violence
Women and children escaping domestic violence will secure housing and the support they require as part of a new homelessness project in Orange. Mr Speakman said the homes would provide women and children privacy, independence and access to specialist homelessness and domestic violence services (30 October 2020). More...
Appointments to the High Court of Australia
His Excellency the Governor-General has accepted the advice of the Government to appoint the Honourable Justice Simon Steward and the Honourable Justice Jacqueline Gleeson as Justices of the High Court of Australia (28 October 2020). More...
Strict new laws to regulate short-term rentals in NSW
Short-term rental accommodation hosts, guests, letting agents and online booking platform operators will soon be subject to strict new laws with a mandatory Code of Conduct for the industry to begin in December (27 October 2020). More...
New team to lead Legal Services Council
A new team of high-profile lawyers, including the current head of the NSW Law Reform Commission, has been chosen to lead the body that regulates lawyers in both NSW and Victoria (27 October 2020). More...
App upgrade to make COVIDSafe safer
The Digital Transformation Agency has released the latest update to the COVIDSafe app, now providing assistance notifications to help users make sure their app is running properly (26 October 2020). More...
New Family Court and FCC form for child abuse, family violence or risk
A new form aims to harmonise risk notification in both the Family Court and Federal Circuit Court.
The Family Court and Federal Circuit Court will implement a new form – Notice of Child Abuse, Family Violence or Risk – on 31 October. The form will be available from the Family Court of Australia and Federal Circuit Court of Australia from 31 October.
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
Attorney General: Privacy Act Review issues paper
Public submissions on the Issues Paper would be accepted until 29 November 2020. The Attorney-General’s Privacy Act Review Issues Paper, including information on how to have a say, can be accessed at this PS News link (02 November 2020)
Office of the National Data Commissioner Exposure draft: Data Availability and Transparency Bill
We are seeking submissions on the exposure draft of the Data Availability and Transparency Bill and explanatory materials, and an Accreditation Framework discussion paper. Submissions are open until November 2020. You can also find a second independent Privacy Impact Assessment that examined the privacy implications of the Bill, and see our response.
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
Legal and Constitutional Affairs Legislation Committee
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]
Report by 20 November 2020. The amendments delegate additional powers to Registrars and Deputy Registrars of the Family Court of Australia (known respectively in practice as ‘Senior Registrars’ and ‘Registrars’) and Registrars of the Federal Circuit Court of Australia
Legal and Constitutional Affairs References Committee
Nationhood, national identity and democracy
On 31 August 2020 the committee's reporting date was extended to 8 December 2020.
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
The Legal Services Council has amended the Legal Profession Uniform General Rules 2015 with effect from 22 August 2020 so the prohibitions in s 258(1) and (3) of the Legal Profession Uniform Law do not apply in relation to litigation funding schemes now regulated as managed investment schemes. The new rule will operate for 12 months to allow for consultation See the Legal Services Council website.
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
30 October 2020—Law Council
National Disability Strategy
30 October 2020— Law Council
Review of the Expensive Commonwealth Criminal Cases Fund
29 October 2020— Business Law Section
Civil Dispute Resolution Regulations 2011
Australian Bushfires Disaster Emergency Declaration — Understanding your privacy obligations
The Attorney-General has made the Privacy (Australian Bushfires Disaster) Emergency Declaration (No. 1) 2020 (the emergency declaration) under Part VIA of the Privacy Act 1988 (Cth) (Privacy Act). The emergency declaration was made in response to bushfires in Australia resulting in death, injury and property damage occurring from August 2019 into 2020.The emergency declaration expires on 20 January 2021.
NSW legal identity document - available 16 November
The NSW Government has introduced a new birth certificate that may be used as a legal identity document for people adopted in NSW. Both an IBC and a post-adoptive birth certificate will automatically be issued where a person is adopted, and the adoption is registered in NSW from 16 November. IBCs are also available for people who were adopted prior to the introduction of IBCs, upon application to Births, Deaths and Marriages (BDM). You can find more information about the IBC in the Fact Sheet or at www.facs.nsw.gov.au/families/adoption or www.nsw.gov.au/births-deaths-marriages.
Note: A sample IBC is available here. It is equally important that lawyers and others using the IBC as an identity document understand that the IBC does not change the legal effect of adoption.
COVID-19: Information for Attending Court - 6 November 2020
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments, and includes e-bulletin No 110 from the Workers Compensation Commission.
Court of Appeal’s decisions of Interest bulletin
The Decisions of Interest bulletin is a regular publication produced by the Court of Appeal, summarising appellate decisions from Australia and internationally. More...
Legal Aid NSW DX account decommissioned effective from 30 November 2020
Legal Aid NSW has advised that it is changing its mail service provider from the DX to Australia Post. This change will be effective from 30 November 2020. To ensure no documents are lost Legal Aid NSW encourages members to communicate with them via email using Legal Aid NSW office mailing addresses which are available on the Legal Aid NSW website here (02 November 2020).
Extension of the Retail and Other Commercial Leases (COVID-19) measures
The Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 commenced on 24 October 2020, and extended with some amendments, the prohibitions and requirements in relation to the exercise of certain rights of lessors during the COVID-19 pandemic period, until the end of 31 December 2020.
NSW ICAC Section 75 report - November 2020
The NSW ICAC has released a second Section 75 report: "NSW Independent Commission Against Corruption - A parliamentary solution to a funding model for the ICAC" (26 October 2020). More...
NSW ICAC: Prosecution briefs with the DPP and outcomes
The tables on this page each provide information on prosecution briefs that are currently with the Director of Public Prosecutions (DPP), and the outcomes of DPP advice and prosecutions in relation to ICAC investigations. More...
JUDCOM: Update 138, November 2020
Specific penalties and orders -has been updated as a result of the following recent amendments:
Court Security Act 2005 by the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020
Law Enforcement (Powers and Responsibilities) Act 2002 by the Justice Legislation Amendment Act (No 2) 2018
Work Health and Safety Act 2011 by the Work Health and Safety Amendment (Review) Act 2020. More...
JUDCOM: Decisions reserved
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved. The list is updated weekly. View the latest publication here.
Extension of charge certification period - practice and procedure
In response to a request from the Office of the Director of Public Prosecutions, the chief magistrate, Judge Graeme Henson AM, has extended the charge certification period from six to eight weeks, commencing 16 November 2020 until the end of the 2020 Law Term.
Notification of NSW District Court of attendance of Victorian residents
On 15 October, the Chief Judge of the District Court of NSW advised on attendance of Victorian residents at the Court. Although residents of Victoria are required to self-isolate for 14 days upon arrival in New South Wales, a border entry permit (NSW) may exempt them from self-isolation when they are required to attend court.
Privacy Act review: Issues paper
Attorney-General's Department (Australia); Government of Australia: 30 October 2020
This review takes account of, and builds upon the Australian Competition and Consumer Commission’s Digital Platforms Inquiry final report. The issues paper outlines current privacy laws and seeks feedback on potential issues relevant to reform during the Attorney-General's Department's review. More...
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.
The report’s 22 recommendations increase transparency around the use of the mandatory data retention and increase the threshold for when data can be accessed. In addition, the committee make recommendations that reduce the currently very broad access to telecommunications data under the Telecommunications Act. More...
Review of the mandatory data retention regime
Parliamentary Joint Committee on Intelligence and Security: 28 October 2020
The Parliamentary Joint Committee on Intelligence and Security is required by Part 5-1A of the Telecommunications (Interception and Access) Act 1979 to undertake a review of the mandatory data retention regime (MDRR). This report outlines the findings from the 2020 inquiry. More...
Commonwealth Ombudsman annual report 2019-20
Annual reports: 27 October 2020. More...
Australian Bureau of Statistics
05/11/2020 Public Consultation: Census Lesson Guide, 2020 (cat no. 1655.0)
NSW Custody Statistics: Quarterly update September 2020
NSW Bureau of Crime Statistics and Research: November 2020
Aboriginal people, prison, prison population, remand, sentenced custody, social distancing, Women, Young people NSW Custody Statistics: Quarterly update September 2020.
ICAC Annual Report 2019-20
The NSW ICAC Annual Report 2019-20 was made public on 27 October 2020. More...
Feeney v Secretary, Department of Communities and Justice  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  NSWCATAD 268
HUMAN RIGHTS – equal opportunity – whether leave required for complaint to proceed – principles applying to grant of leave.
Commissioner of Police v DYD  NSWCATAP 224
APPEAL – questions of law – making a finding of fact for which there is no evidence – meaning of giving “proper, genuine and realistic consideration” to a matter; STATUTORY INTERPRETATION – meaning of s 75 of Government Information (Public Access) Act 2009 ORDERS – scope of remittal powers under s 63 and s 65 of Administrative Decisions Review Act 1997 (NSW).
Wojciechowska v Blue Mountains City Council  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
Amends the: Commonwealth Electoral Act 1918 to: Clarify the interaction between federal, state and territory electoral funding and disclosure regimes following the High Court decision in Spence v Queensland  HCA 15; make technical amendments in relation to entity registration and public election funding rules; and allow a senior Australian Electoral Commission staff member rather than a senior Divisional Returning Officer to be on the Redistribution Committee for the Australian Capital Territory; Commonwealth Electoral Act 1918 and Referendum (Machinery Provisions) Act 1984 to amend various aspects of voting and scrutiny processes; and Referendum (Machinery Provisions) Act 1984 to extend the electronically assisted voting method to Australians working in Antarctica.
Higher Education Support Amendment (Freedom of Speech) Bill 2020
House of Representatives 28 Oct 2020
The proposed amendments insert a new, definition of ‘academic freedom’ into the HESA and replace the existing term 'free intellectual inquiry' in relevant provisions with the allied concepts of' freedom of speech' and 'academic freedom'.
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.
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.
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.