In a long-awaited move, the Federal Government announced yesterday that it is committed to establishing a Commonwealth Integrity Commission (CIC), designed to strengthen existing Commonwealth integrity arrangements and create “a powerful new public sector watchdog”.
The announcement was accompanied by exposure draft legislation establishing the CIC, setting out the scope of the CIC’s jurisdiction and coercive powers, and providing for new offences relating to corrupt conduct.
The terms of the draft legislation mean that the reforms could have significant impacts for all companies contracting with Commonwealth agencies. The legislation is broadly drafted, covering not only government personnel and their employed staff, but extending to Commonwealth service providers and any subcontractors they engage.
KEY FEATURES OF THE CIC ANNOUNCEMENT
The Federal Government has committed $147 million in funding to the development and operation of the CIC as a centralised, specialist commission investigating corruption in the public sector.
The CIC will be an independent statutory agency, led by the Integrity Commissioner and assisted by the Law Enforcement Integrity Commissioner and the Public Sector Integrity Commissioner.
The CIC’s primary function would be the investigation of serious criminal conduct that represents corruption in the public sector. Its public sector integrity division would investigate “corrupt conduct” where that conduct also constitutes a corruption-related offence.
As part of the draft legislation, the Government proposes adding new corruption offences to the Criminal Code Act 1995 (Cth). These new offences are intended to “ensure that the CIC can comprehensively investigate a range of criminally corrupt conduct that could be committed in the public sector.”1
WHO IS WITHIN THE CIC’S JURISDICTION?
The breadth of the draft legislation, particularly in its application to “contracted service providers” for a Commonwealth contract, means that a wide range of persons extending beyond government entities could potentially be subjected to the CIC’s coercive powers and adverse findings.
Under the draft legislation, the CIC will have jurisdiction over a range of regulated entities and their staff, including:
- law enforcement agencies
- public sector agencies
- parliamentarians and their staff
- staff of federal judicial officers (and, subject to consultation, potentially judicial officers themselves), and
- certain higher education providers and research bodies.
In addition, the breadth of the draft legislation extends the CIC’s jurisdiction to include Commonwealth service providers and any subcontractors they engage. The CIC’s jurisdiction over contracted service providers includes:
- persons contractually engaged to provide services to, or for or on behalf of, the under a contract with the Commonwealth, a law enforcement agency, or a public sector agency, and
- persons contractually engaged to provide services for the purposes (whether direct or indirect) of the Commonwealth contract.
Private sector companies and individuals (even if not subject to CIC jurisdiction as Commonwealth service providers) could also be called as witnesses or required to produce evidence in connection with any investigation by the CIC.
WHAT ARE THE CIC’S POWERS?
The CIC will have significant investigatory powers, which will be more extensive than those exercised by a Royal Commission. Its powers include:
- compelling sworn evidence at hearings
- compelling people to provide information and produce documents (even if the information would incriminate the person)
- entering and searching premises, or seizing property, under warrant
- making arrests
- tapping phones and use other surveillance devices to investigate them
- using telecommunications interception and surveillance devices, and
- confiscating passports by court order.
These powers vary across the two divisions, with, for example, public sector integrity hearings required to occur only in private, while public hearings can be held in relation to law enforcement integrity division matters.
A failure to attend a hearing, produce a document or answer a question required by the Integrity Commissioner to be answered amounts to an offence.
The bill prescribes broad powers for the derivative use of information, that is, information that leads to further investigations, obtained by the Integrity Commission, including in criminal proceedings.
Where the CIC uncovers evidence that an individual engaged in corrupt conduct, the CIC is required to refer evidence of criminal activities to the Commonwealth Director of Public Prosecutions or other relevant prosecuting agencies. More minor disciplinary issues will be referred back to the relevant agency for action.
CONSULTATION & NEXT STEPS
The draft exposure legislation comprises two bills:
- the Commonwealth Integrity Commission Bill 2020, which will establish the CIC, and
- the Integrity and Anti-Corruption Legislation Amendment (CIC Establishment and Other Measures) Bill 2020, which will amend existing legislation to give effect to the new CIC scheme.
Consultation on the exposure draft bills will run from November 2020 to March 2021. The Government is inviting submissions on the draft legislation and other considerations until 12 February 2021.
For more information, the Attorney General’s Department has produced a fact sheet which can be found here.
- Release of Commonwealth Integrity Commission consultation draft, Attorney-General for Australia and Minister for Industrial Relations
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2021