New ‘federal ICAC’ announced: Commonwealth Integrity Commission will have oversight of APS, MPs and contractors

By Harley Dennett

Thursday December 13, 2018

The Morrison government has announced its model for a federal anti-corruption body to be called the Commonwealth Integrity Commission, and proposed a new criminal offence for public sector corruption.

The proposed $30 million-per-year body will have a peak commissioner and two divisions, covering law enforcement and public sector integrity, each led by a deputy commissioner. The powers of each differ significantly, in what is the major feature of the CIC model that diverges from the model proposed by Labor or is present in existing state anti-corruption bodies.

The public sector integrity division will not be able to make arrests, search premises, seize evidence or hold public hearings. However, it will have the power to compel the production of documents, conduct inspections, undertake questioning, make formal recommendations and hold private hearings. This division will cover departments, agencies and their staff, parliamentarians including ministers and their staff, staff of federal judicial officers and subject to consultation judicial officers themselves, as well as contractors — but not subcontractors.

Whether the public sector integrity division will have the ability to access telecommunications and surveillance device powers will be part of the consultation process.

The standard for corrupt conduct covered by the public sector integrity division will be a new narrow, specific criminal offence to cover:

  • abusing office as an official;
  • perverting the course of justice;
  • dishonest or non-impartial exercise of official functions; and
  • misuse of information obtained through the course of official duties.

Failure to report corruption will also be an offence, with a maximum penalty of 3 years’ imprisonment. The government will consider if this offence should be expanded to also include senior contractors.

Additionally, new aggravated offences are proposed for repeated corruption and ‘corrupt conduct by a senior official’, such as a member of the senior executive service. This will attract a maximum penalty of 5 years’s than the maximum applicable penalty for the underlying offensive. “This proposal reflects the higher level of culpability that attaches to a senior member of staff who commits a corruption-related offence.”

The law enforcement division will adopt the expansive powers of ACLEI — the Australian Commission for Law Enforcement Integrity — which it replaces. In addition to wiretapping, it will also have the power to make arrests, enter and search premises, seize evidence and hold public hearings. Its remit will expand beyond ACLEI’s to include the Australian Competition and Consumer Commission (ACCC), the Australian Prudential Regulation Authority (APRA), the Australian Securities and Investment Commission (ASIC), the Australian Taxation Office (ATO), and the whole of the Department of Agriculture and Water Resources (DAWR).

The standard for corrupt conduct in the law enforcement division will be largely as per existing legislation.

The model, developed by the Attorney General’s Department over the last 11 months, was designed to fit into the existing system, Attorney General Christian Porter said this morning, “but avoids the worst aspects of some state anti-corruption bodies.”

The government was concerned that the powers present in those state bodies were unsuitable for addressing federal public sector integrity — where the individuals in those agencies have less capacity to cover up the corruption through the assertion of the need for secrecy.

“The Commonwealth public sector is made up of an incredibly broad and diverse range of agencies, functions and officeholders. It is quite different to state governments in many respects; it is responsible for distributing significant funds, but often does so through the states or Commonwealth statutory agencies or service providers, who in turn may subcontract out the delivery of their functions. The Government believes it would not be appropriate to have a ‘one-size-fits-all’ set of significant coercive powers (ACLEI’s powers are akin to those of a Royal Commission’s) for the broad range of public service office-holders and entities engaged to perform public functions.

“It also enables the careful design of a threshold for corrupt conduct that avoids a broad and confusing swathe of potentially minor irregularities or misconduct. Similarly, restricted powers ensure that coercive powers are applied to the most serious cases while extra-judicial ‘findings of corruption’ are avoided.”

Prime Minister Scott Morrison said the proposed model would avoid it becoming a “kangaroo court’:

“The overwhelming majority of people working for the Commonwealth do the right thing, and they do their work for the right reasons. The CIC will help ensure that this remains the case.

“Our government will avoid the serious failings of state-based integrity bodies that on too many occasions have proved to be ‘kangaroo courts’ falling victim to poor process and being little more than a forum for self-serving mud slinging and the pursuit of personal, corporate and political vendettas. We have learned from their mistakes in bringing our proposed new Commission together.”

A consultation paper on the model has been released this morning. Submissions will be accepted until February 1, 2019 via email to [email protected]

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