Draft Commonwealth Integrity Commission Bill 2020 Open for Submissions

Thursday 5 November 2020 @ 3.45 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

The Federal Government has released the Exposure Draft of the Commonwealth Integrity Commission Bill 2020 (Cth) (“Draft Bill”), with submissions on the Draft Bill and Discussion Paper closing on 12 February 2021.

According to a Media Release from Attorney-General, Christian Porter, the “… draft legislation [is] designed to establish a powerful new public sector watchdog to be known as the CIC [Commonwealth Integrity Commission]”.  The Attorney-General said the draft legislation was the:

“result of detailed planning to ensure the new body has both the resources and powers it needs to investigate allegations of criminal conduct that could occur across the public sector and that the new body works with a variety of other agencies inside the multi-agency Commonwealth framework”.

Operation of the CIC Framework

Mr Porter acknowledged that the development of the CIC is “to strengthen and complement the existing multi-agency approach to integrity, anti-corruption and law enforcement at a federal level” also noting that “the process has already started with the expansion of the Australian Commission for Law Enforcement Integrity (‘ACLEI’) and will ultimately enhance the integrity framework of the Commonwealth public service and ensure it remains free from criminal corruption”.

According to Mr Porter, the draft legislation comprises two Bills:

  • the [Draft] Commonwealth Integrity Commission Bill, which, as noted, will establish the CIC as a centralised agency to investigate criminality and corruption in the public sector; and
  • the [Draft] Integrity and Anti-Corruption Legislation Amendment (CIC Establishment and Other Measures) Bill (submissions on this Bill also close on 12 February 2021), which makes the necessary consequential amendments to existing Commonwealth legislation to support the introduction of the Commonwealth Integrity Commission Bill.

Operation of the Proposed Divisions

The proposed model would be split into two divisions, one investigating enforcement agencies like the federal police and immigration officials, the other looking at the public sector and MPs. While the former will have the discretion to hold public hearings, but that power won't extend to the division investigating politicians.

According to the CIC Fact Sheet, the divisions and their powers will be:

  • Law enforcement integrity division. This division would investigate corrupt conduct – that is, conduct that involves an abuse of office, perversion of the course of justice or corruption of any other kind – by staff within its jurisdiction, giving priority to serious and systemic corruption; and
  • Public sector integrity division. This division would investigate corrupt conduct—that is, conduct that involves an abuse of office or perversion of the course of justice—by staff within its jurisdiction where this conduct would also constitute one of a list of corruption-related offences against a law of the Commonwealth. It would only investigate criminal offences and would not make findings of corruption at large. This approach would ensure that it is the courts making findings of criminally corrupt conduct.

Mr Porter conceded some may lobby for public hearings across both divisions, “but the alternative argument is that when you've got a body whose powers are so great … the government takes the view that ultimately a court should be making a public determination of guilt or innocence”.

Under the Government's model, the public sector division would prepare briefs to pass to the CDPP, which would then pursue matters in court.

Overview of the Draft Consultation Process

According to ABC News, at least six months would be needed for consultation of the Draft Bill. Marking the release of the proposed bill for the new body “with greater powers than a royal commission”, Mr Porter went on to say that “it's a complicated piece of legislation” with consultation being required to be “amongst the public sector, civil society, stakeholders, all of the states and territories”.

Investigative Powers of the CIC

As outlined in the Media Release, the CIC will have “greater investigatory powers than a Royal Commission”. The CIC's powers include the ability to:

  • compel people to give sworn evidence at hearings, with a maximum penalty of two years imprisonment for not complying;
  • compel people to provide information and produce documents (even if the information would incriminate the person), with a maximum penalty of two years imprisonment for not complying;
  • search people and their houses, or seize property (under warrant);
  • arrest people;
  • tap phones and use other surveillance devices to investigate them; and
  • confiscate people’s passports by court order.

Comment and Reaction

ABC News reports that Shadow Attorney-General Mark Dreyfus said the Government's proposal “showed it had not listened to criticisms of its idea after 2018”.

Mr Dreyfus said “they [the Government] have not listened to the criticisms that said you need to have public hearings "They have not listened to the criticisms that said you cannot just investigate criminal offences … criticisms that said that an integrity commission that is worth its name must be able to start its own investigations”.

Mr Dreyfus's comments follow colleague Tanya Plibersek (Member for Sydney, NSW) describing the ongoing delays as “disappointing”.

In October 2020, Helen Haines (Independent, Member for Indi) introduced her own bill for an integrity commission in Federal Parliament. Ms Haines commented:

“I've collaborated with MPs from across this Parliament since February when I sent individual letters inviting all MPs to work with me on this. This is the right bill for the Parliament to debate.”

Ms Haines’ bill proposes public hearings when in the public interest, with ethical safeguards to prevent “the unfair trashing of reputations”.

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