Australia: Australian Government Announces Proposal For New Federal Corruption Watchdog

Last Updated: 22 April 2019
Article by Steven W. Fleming and Stephen J. Speirs

In Short

The Situation: The Federal Government has introduced a proposal to create a Commonwealth Integrity Commission ("CIC") to replace the current "multiagency approach" to integrity and anticorruption arrangements of the federal Public Sector. It represents a further manifestation of a crackdown on corporate wrongdoing in Australia.

The Development: Although establishing a federal corruption watchdog appears to have gained bipartisan political support, whether the CIC is ultimately created will depend on the result of the upcoming Federal Election on 18 May 2019.

Looking Ahead: The Federal Opposition, or ALP, has proposed an alternative model which would provide the federal watchdog with various different powers and functions.


Commonwealth Integrity Commission

On 13 December 2018, the Federal Government announced its intention to create CIC to "detect, deter and investigate suspected corruption" across the federal public sector. The CIC is to form a central body which expands and consolidates existing federal integrity and anticorruption arrangements that are currently split across a number of different agencies (such as the Australian Public Service Commission, Australian Federal Police and Australian Commission for Law Enforcement Integrity).

The reform package also proposes that a new "public sector corruption offences" division be inserted into Chapter 7 of the Criminal Code Act 1995.

Proposed Structure of the Commonwealth Integrity Commission

The CIC will consist of two divisions: (i) a Law Enforcement Integrity Division, which will incorporate the existing structure, jurisdiction and powers of the Australian Commission for Law Enforcement Integrity ("ACLEI"); and (ii) a Public Sector Integrity Division.

Both divisions will be headed by separate Deputy Commissioners, who will each report to a new Commonwealth Integrity Commissioner.

Law Enforcement Division

The Law Enforcement Division will continue to investigate corruption pursuant to the parameters of the existing Law Enforcement Integrity Commissioner Act 2006, including investigating corrupt conduct that involves: abuse of office; perversion of the course of justice; or corruption of any other kind having regard to the duties and powers of the relevant person within the law enforcement division's jurisdiction.

In conducting its role, the Law Enforcement Division will have powers to:

  • compel the production of documents;
  • question people;
  • hold public and private hearings;
  • arrest;
  • enter/search premises;
  • seize evidence;
  • undertake controlled operations and assumed identities; and
  • undertake integrity testing.

The Law Enforcement Division's jurisdiction is to be broader than the ACLEI's current remit, with jurisdiction being extended to cover Australia's corporate regulators (including Australian Securities and Investments Commission, Australian Prudential Regulation Authority, Australian Competition and Consumer Commission and Australian Taxation Office). This broadening of jurisdiction is said to reflect the fact that Australia's corporate regulators bear "significant resemblance" to the traditional law enforcement bodies already within ACLEI's remit.

Public Sector Division

The Public Sector Division will be responsible for investigating "corrupt conduct" where the Commissioner has a reasonable suspicion that the conduct constitutes a criminal offence. The Public Sector Division will have jurisdiction over:

  • public service departments and agencies, parliamentary departments, statutory agencies, Commonwealth companies/corporations;
  • Commonwealth service providers and any subcontractors they engage; and
  • parliamentarians and their staff.

It is proposed that the Public Sector Division will only have powers to investigate criminal offences. The Public Sector Division will not have powers to make findings of corruption (or other criminal offending), but will have discretion to refer criminal briefs to the Commonwealth Director of Prosecutions. It is said that this approach is aimed at avoiding "one of the key flaws in various state anticorruption bodies, being that findings of corruption can be made at large without having to follow fundamental justice processes."

In discharging its function, the Public Sector Division will have power to:

  • compel the production of documents;
  • question people;
  • hold private hearings; and
  • enter/search premises.  

New "Public Sector Corruption Offences"

It is proposed that a new "public sector corruption offences" division be inserted into Chapter 7 of the Criminal Code in order to consolidate existing offences and introduce new proposed offences.

The new offences proposed include:

  • two "aggravated offences", these being: (i) the offence of "repeated public sector corruption," which will apply to persons who have committed the same offence three times or more; and (ii) the offence of "corrupt conduct by a senior official," which will apply where a person is a member of the Senior Executive Service (or equivalent position) and that person uses his or her position, influence, resources or knowledge to commit an offence; and
  • an offence of "failure to report public sector corruption," which will apply if a person: (i) is a senior public service official; (ii) knows of information that would lead a reasonable person to believe than an employee or agent of the agency has engaged in conduct; (ii) that such conduct, if engaged in, would constitute an offence in the Public Sector Division of the Criminal Code; and (iv) did not take reasonable steps to report the conduct to law enforcement or other appropriate authorities.

Three Key Takeaways

  1. The proposed CIC model has received much political and media attention. Whether the CIC is ultimately established will depend on the result of the upcoming Federal Election on 18 May 2019.
  2. The Federal Opposition, or ALP, has criticised the proposed CIC reforms for not going far enough and have proposed an alternative National Integrity Commission.
  3. One key difference between the two models is that the National Integrity Commission would allow for public hearings into public sector corruption cases, unlike the proposed CIC.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions