Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

by leave—I present a supplementary explanatory memorandum and move government amendments (1) to (27):

(1)    Clause 10, page 16 (line 15), omit paragraph (1)(d).

(2)    Clause 10, page 16 (after line 17), after paragraph (1)(f), insert:

            (fa)    a person engaged overseas under section 69A of the Australian Federal Police Act 1979 to perform duties overseas as an employee of the AFP;

(3)    Clause 10, page 17 (after line 32), after paragraph (5)(a), insert:

           (aa)    a person referred to in paragraph (1)(e) or (f) who is also an employee of another government agency is a secondee to the AFP; and

(4)    Clause 22, page 28 (lines 25 to 27), omit paragraph (2)(c).

(5)    Clause 22, page 28 (line 29), after paragraph (2)(d), insert:

      ; or (e)    subject to subsection (2A), a Commonwealth law that applies to the agency allows the agency to decide not to deal with the allegation or information that raises the corruption issue.

(6)    Clause 22, page 28 (after line 33), after subclause (2), insert:

     (2A)    Despite paragraph (2)(e), the agency must continue and complete, or begin and complete, an investigation of the corruption issue if the Integrity Commissioner considers, despite the Commonwealth law, that it would be more appropriate for the issue to be investigated.

(7)    Clause 31, page 38 (lines 30 and 31), omit paragraph (4)(c).

(8)    Clause 31, page 38 (line 33), at the end of subclause (4), add:

      ; or (e)    an investigation of the corruption issue is not warranted having regard to all the circumstances.

(9)    Clause 42, page 49 (lines 13 and 14), omit paragraph (3)(c).

(10)  Clause 42, page 49 (line 16), at the end of subclause (3), add:

      ; or (e)    further investigation of the corruption issue is not warranted having regard to all the circumstances.

(11)  Clause 72, page 77 (lines 18 and 19), omit the note, substitute:

Note:   Subsection 104A(1) provides certain protections for people who make submissions.

(12)  Clause 81, page 85 (line 24), before “A person”, insert “(1)”.

(13)  Clause 81, page 85 (after line 27), at the end of the clause, add:

        (2)    Subsection (3) applies if it appears to the Integrity Commissioner that, because a person:

             (a)    is to give information, or produce a document or thing; or

             (b)    has given information, or produced a document or thing;

to the Integrity Commissioner in response to a request under section 75 or 76, either:

             (c)    the safety of the person or any other person may be prejudiced; or

             (d)    the person or any other person may be subjected to intimidation or harassment.

        (3)    The Integrity Commissioner may make such arrangements as are necessary:

             (a)    to protect the safety of any person mentioned in paragraph (2)(c); or

             (b)    to protect any person mentioned in paragraph (2)(d) from intimidation or harassment.

        (4)    For the purpose of subsection (3), the arrangements that the Integrity Commissioner may make include arrangements with:

             (a)    the Minister; or

             (b)    members of the AFP; or

             (c)    members of the police force of a State or Territory.

        (5)    This section does not affect the Witness Protection Act 1994.

(14)  Clause 96, page 104 (line 28), omit “produced”, substitute “produce”.

(15)  Clause 104, page 112 (line 31) to page 113 (line 4), omit subclause (3).

(16)  Page 113 (after line 11), at the end of Division 2, add:

104A  Protection of witnesses etc.

        (1)    A person who:

             (a)    gives evidence at a hearing conducted under this Act; or

             (b)    produces a document or thing at a hearing conducted under this Act; or

             (c)    makes a submission to the Integrity Commissioner in relation to a public inquiry;

has the same protection as a witness in proceedings in the High Court.

        (2)    Subsection (3) applies if it appears to the Integrity Commissioner that, because a person:

             (a)    is to give evidence, or produce a document or thing, at a hearing under this Act; or

             (b)    has given evidence, or produced a document or thing, at a hearing under this Act; or

             (c)    is to make, or has made, a submission to the Integrity Commissioner in relation to a public inquiry;

either:

             (d)    the safety of the person or any other person may be prejudiced; or

             (e)    the person or any other person may be subjected to intimidation or harassment.

        (3)    The Integrity Commissioner may make such arrangements as are necessary:

             (a)    to protect the safety of any person mentioned in paragraph (2)(d); or

             (b)    to protect any person mentioned in paragraph (2)(e) from intimidation or harassment.

        (4)    For the purpose of subsection (3), the arrangements that the Integrity Commissioner may make include arrangements with:

             (a)    the Minister; or

             (b)    members of the AFP; or

             (c)    members of the police force of a State or Territory.

        (5)    This section does not affect the Witness Protection Act 1994.

(17)  Clause 123, page 134 (lines 3 to 7), omit subclause (4), substitute:

        (4)    However, the Integrity Commissioner must not do so if the data is evidence that he or she must deal with in accordance with Part 10.

(18)  Heading to Division 1, page 146 (lines 4 and 5), omit the heading.

(19)  Clause 147, page 152 (line 9), omit “must”.

(20)  Division 2, clause 148, page 153 (line 2) to page 154 (line 7), omit the Division.

(21)  Clause 149, page 156 (after line 28), at the end of the clause, add:

        (6)    The Attorney-General must give a copy of the certificate to:

             (a)    the Integrity Commissioner; and

             (b)    either:

                   (i)    if the information or the document referred to in subsection (1) is in the possession of a law enforcement agency—the head of the law enforcement agency; or

                  (ii)    if the information or the document referred to in subsection (1) is in the possession of a person—the person.

(22)  Clause 201, page 194 (line 25), at the end of paragraph (2)(a), add:

        and (vii)    certificates issued under section 149 during that year;

(23)  Heading to subclause 208(3), page 201 (line 29), omit the heading, substitute:

Giving information to relevant agency

(24)  Clause 208, page 201 (line 30) to page 202 (line 6), omit subclause (3), substitute:

        (3)    Subsection 207(1) does not prevent the Integrity Commissioner from disclosing information to the following heads of agencies:

             (a)    the Commonwealth Ombudsman;

             (b)    an Ombudsman of a State or Territory;

             (c)    the head of a law enforcement agency;

             (d)    the head of a police force of a State or Territory;

             (e)    the head of an integrity agency for a State or Territory;

              (f)    the head of another government agency;

if the Integrity Commissioner is satisfied that, having regard to the functions of the agency concerned, it is appropriate to do so.

(25)  Page 214 (after line 11), after clause 223, insert:

223A  Review of operation of Act

Undertaking the review

        (1)    The Minister must cause an independent review to be undertaken of the first 3 years of the operation of this Act.

Report to Minister

        (2)    The persons undertaking the review must give the Minister a written report of the review within 6 months after the end of the 3-year period.

Submissions

        (3)    The review must include an opportunity for:

             (a)    persons who are, or have been, staff members of law enforcement agencies; and

             (b)    members of the public;

to make written submissions on the operation of this Act.

Assistance

        (4)    The Integrity Commissioner and staff members of ACLEI must, if requested to do so by the persons undertaking the review, assist them in:

             (a)    conducting the review; and

             (b)    preparing the written report.

Tabling of report

        (5)    The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House.

Section not to apply if review conducted by Parliamentary committee

        (6)    However, this section does not apply if a committee of one or both Houses of the Parliament (including the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity) has reviewed the operation of this Act, or started such a review, before the end of the 3-year period.

Definition

        (7)    In this section:

independent review means a review undertaken by a person or persons who, in the Minister’s opinion, possess appropriate qualifications to undertake the review.

(26)  Clause 224, page 214 (line 13), before “The”, insert “(1)”.

(27)  Clause 224, page 214 (after line 16), at the end of the clause, add:

        (2)    The regulations may require that information or reports that are required to be given under prescribed provisions are also to be given to prescribed persons in specified circumstances.

The Law Enforcement Integrity Commissioner Bill 2006 forms part of a package of three bills that will introduce major reforms into the handling of corruption issues and other issues relating to misconduct. We introduced this legislation late in March, and the bills were referred to the Senate Legal and Constitutional Legislation Committee. The committee’s report was tabled on 11 May. The committee was called upon to report on these bills in a short time frame and has done sterling work in conducting public hearings and taking account of a range of submissions. I wish to place on record the government’s appreciation of the work of the chair and members of the committee and the staff in producing a report in such a short period of time. The government agrees in whole or in part with 13 of the 15 recommendations made by the committee. The amendments the government proposes to all three bills will give effect to agreed recommendations where legislation is necessary.

By way of background, I would like to comment briefly on those recommendations by the committee in relation to the Law Enforcement Integrity Commissioner Bill 2006 that are not expressly addressed by the proposed government amendments. Only three of these involve disagreement in principle, and the remainder are simply cases where legislation is not required to achieve the committee’s purpose.

The committee’s first recommendation is that the bill be amended such that changes to agencies subject to the commissioner’s jurisdiction are made by legislation rather than by regulation, as is currently provided for. The government does not agree with this recommendation. A requirement that jurisdiction be extended by primary legislation would effectively prevent rapid extension of jurisdiction if this became desirable. Extensions by regulation would still be subject to parliamentary oversight through tabling and the disallowance process.

The committee’s recommendation 5 is that the bill be amended to provide an offence of giving false or misleading information to the Integrity Commissioner with an appropriate maximum penalty. The government agrees with the principle underlying the recommendation, but there is no need to legislate for this purpose separately in this bill. Division 137 of the Criminal Code currently creates an offence of this type which will automatically apply and carries a penalty of 12 months imprisonment.

The committee’s recommendation 6 is that a practice and procedure manual be developed as soon as possible after the Law Enforcement Integrity Commission commences operation. The government agrees in principle to the recommendation, but implementation will be a matter for the Integrity Commissioner.

The committee’s recommendation 10 is that part 14 of the bill be amended to provide the existing Parliamentary Joint Committee on the Australian Crime Commission with jurisdiction to scrutinise the Australian Commission for Law Enforcement Integrity and those Commonwealth law enforcement agencies subject to its oversight. The government will not be introducing an amendment to implement this recommendation. While there is some overlap in the areas of responsibility, the functions of the Integrity Commissioner are distinct from those of the Australian Crime Commission. The government considers it preferable to establish a separate committee to scrutinise the former body.

I now turn to the proposed government amendments to the bill. They fall into two categories—those to implement the recommendations of the committee’s review of the bill and those necessary to address a small number of other issues that came to light after the bill was introduced. Items 1 and 2 amend clause 10 of the bill, which determines the class of people that are to be treated as staff members of law enforcement agencies for the purposes of the bill. Item 1 will correct a technical error, by omitting Protective Service officers from the list of staff members of the AFP. The term ‘AFP employee’, which also occurs in the list, includes Protective Service officers. Item 2 ensures that all persons employed by the AFP are subject to the regime established by the bill, providing the person engaged under the AFP Act to perform duties overseas as an employee of the AFP is included as a staff member of the AFP and these people are not AFP employees as that term is defined in the Australian Federal Police Act.

Amendment (3) amends subclause 10(5) of the bill, which determines which staff members of law enforcement agencies are to be regarded as secondees for the purposes of the bill. The effect of the subclause is to ensure that the person’s home agency and any relevant integrity agency is informed that the person is under investigation by the commissioner and may become involved in the investigation where appropriate. This item extends the concept of secondee to the Australian Federal Police to include a special member or a special Protective Service officer where the person is an employee of another government agency. This addresses the difficulty when some state and territory personnel are made available by the AFP by means other than secondment in the conventional sense—for example, by engagement of special members of the Australian Federal Police while on leave from their normal employer. The proposed amendment will ensure the secondee provisions in the bill apply to all staff members of the Australian Federal Police who have a home agency other than the AFP.

Amendments (4), (7) and (9) will implement the Senate committee’s recommendation 3. Clause 22 deals with the obligation of the head of a law enforcement agency to investigate a corruption issue. Clauses 31 and 42 deal with the obligation of the Integrity Commissioner to decide and reconsider how to deal with corruption issues. In each case, there are grounds provided for not taking further action, including the ground that the matter was not raised in good faith. (Extension of time granted) These items would omit this ‘not in good faith’ ground to avoid the risk of being used to justify not taking further action in a case where the person giving information has a malicious motivation that the information may be accurate.

Amendments (5) and (6): clause 22 provides grounds upon which the agency may decide not to investigate a corruption issue. The proposed amendments make allowance for the situation where another Commonwealth law would permit the head of a law enforcement agency to decide not to investigate alleged misconduct by a member of their agency staff on a ground other than those listed in clause 22. The proposed new section, section 40TF of the Australian Federal Police Act set out in schedule 1 to the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006, would result in precisely this situation, as amendments (5) and (6) would permit the agency head in a situation to rely on an alternative ground in deciding not to investigate the corruption issue, subject to agreement by the Integrity Commissioner.

Amendments (8) and (10) implement in part the Senate committee’s recommendation 2 that amend clauses 31 and 42 of the bill to provide the Integrity Commissioner with residual discretion, if none of the other grounds is applicable, to take no further action in relation to a corruption issue where he or she is satisfied that the investigation is not warranted in the particular circumstances. These amendments provide the Integrity Commissioner with the flexibility not to investigate in such cases that would involve unreasonable use of the Integrity Commissioner’s resources. The amendment addresses only one of the three elements in the committee’s recommendation 2. The first was unnecessary, as the discretion to investigate that is already provided by clauses 31 and 42 of the bill and includes reference to frivolous vexation complaints, and discretion not to investigate complaints made in good faith will be implemented by amendments (7) and (9), as already mentioned. The third ground suggested by the committee would not be appropriate in this context. In dealing with a corruption allegation, it is irrelevant whether a person giving information has a personal interest in the matter because vindication of a complainant’s rights is not a primary objective in such a case.

Amendments (11), (12), (13), (15) and (16) remedy an omission identified by the Senate committee in recommendation 4. Perhaps, given the time, I will leave the further explanation of those matters. Amendments (14) and (19) will simply correct typographical errors in clauses 96 and 147 of the bill. Amendments (17), (18), (19), (23) and (24) will amend clause 23, part 10, and clause 208 of the bill to provide the Integrity Commissioner with broad authority to disclose information to another Commonwealth or state or territory government agency that has a legitimate interest in the information being received. This authority to disclose information is subject to any specific contrary provisions in the bill that are applicable in particular cases, such as a certificate issued by the Attorney-General under section 149 preventing disclosure of certain information. These amendments will address the concern underlying committee recommendation 8. They will also address broader concerns expressed before the committee that the bill would not make adequate provision for the Integrity Commissioner to share information relevant to the functions and operations of other agencies.

Amendments (21) and (22) will implement the Senate committee’s recommendation 9 in a slightly modified form. Amendment (25) implements the Senate committee’s recommendation 11. It will insert a requirement for the minister to arrange independent expert review of the operation of the bill after three years. The obligation will only arise if a parliamentary committee has not already initiated a similar review by the end of the period to be reviewed.

Finally, amendments (26) and (27) provide that regulations may prescribe that information or reports must be given to specified persons in particular circumstances. This amendment is intended to deal with issues arising from the role of the Australian Federal Police as a provider of policing services to the Australian Capital Territory and certain other territories. For example, regulations could impose an obligation on the integrity commission to provide information about an investigation or a corruption issue affecting ACT policing to the ACT police minister, in the same circumstances in which the integrity commission must provide such information to a Commonwealth minister. Because territory policing functions are performed under arrangements made under section 8 of the Australian Federal Police Act and open to variation, it is not appropriate to include detailed provisions for this purpose in the bill. I commend the amendments to the House.

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