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Media Conference - Parliament House

Transcript

E&OE

Subject: Commonwealth Integrity Commission consultation draft

ATTORNEY-GENERAL: Morning everyone and thanks for being here. So, today on the website, I think a few minutes ago, the release of the draft bill for the Commonwealth Integrity Commission was made available. They're actually two bills – the draft bill for the Commonwealth Commission and a consequential amendments bill. Between the two bills, they total, in excess, of 390 pages. So, it's a complicated and detailed matter that we're dealing with. I don't want to delay everyone for too long today, going over matters that are obviously in the bill and in the written materials that describe the bill and summarise the bill and the fact sheets. But I just want to touch on five issues. One is about the ultimate operation of what will become the Commonwealth Integrity Commission. The second is about the powers that will attach to the Commission. The third is about the jurisdiction and structure of the Commission. The fourth is about the referrals mechanism, and the fifth is about offences that the Commission will investigate to.

 

So firstly, with respect to the ultimate operation of the Integrity Commission, it will obviously be a specialised centralised agency that's designed to investigate serious criminal offending related to corrupt conduct and integrity issues. The budget that's provided for the Integrity Commission is $147 million. That's $106 million worth of new money and about $40.7 million of existing allocations to the Australian Commission for Law Enforcement Integrity, which will become the law enforcement division of the ultimate Commonwealth Integrity Commission. In its ultimate operation, it'll have 172 staff, and as I say, it will be governed by 393 pages of legislation. So, it is a very substantial undertaking. And to give you just some sense of the scale of this, the employees who are employed under the Public Service Act are about 150,000 people at any given point in time, and as you'll see, the jurisdiction for the new Integrity Commission will be much larger than 150,000. So, it is a very, very substantial undertaking.

Just the second point I wanted to make is with respect to the powers of the Integrity Commission. The Commonwealth Integrity Commission, as you'll see in the legislation, will have greater powers than a royal commission. It will have the power to compel people to give sworn evidence at hearings, with a maximum penalty of two years for failure to comply – two years imprisonment, that is. It will have the power to compel people to provide information and produce documents, even if the information would incriminate the person, again, with a maximum penalty of two years in prison for non-compliance. It'll have the power to search people in their houses or seize property under warrant. It'll have the power to arrest people. It'll have the power to intercept phone calls and use other surveillance devices to investigate persons and to confiscate people's passports by court orders. It will also have the ability - its agents that is, its officers - to assume false identities for the purposes of investigation. So, with respect to that second point in its powers, it has greater powers than a royal commission.

On the third point of the jurisdiction, the jurisdiction reflects the fact that this is a two-part structure. And I might note that, with respect to the processes to create a body of this scale, there've been three stages. First was the discussion paper, the detailed discussion paper that the Prime Minister and I previously released, and then a consultation process and an expert panel feeding in to my office. The second stage has been the expansion of the jurisdiction of ACLEI, the Australian Commission for Law Enforcement Integrity. That is already happening. So, an extra $9.9 million and 38 new staff for ACLEI to cover four new agencies, and that coverage will be affected as of 1 January of next year. And then, ACLEI will be subsumed into the new body as the law enforcement division of the new body, which will be the final stage of this process. So, this process is already substantially underway. The law enforcement integrity division, which is what ACLEI will become in the new Integrity Commission, will have coverage of the Australian Criminal Intelligence Commission, the Australian Federal Police, the Australian Transactions Reports and Analysis Centre, the Department of Home Affairs, the Department of Agriculture, Water and Environment, and its new jurisdiction over the Australian Competition and Consumer Commission, the Australian Prudential Regulation Authority, the Australian Securities and Investment Commission and the Australian Taxation Office. The public sector division of the New Integrity Commission will have jurisdiction over public service departments and agencies, parliamentary departments, statutory agencies, Commonwealth companies and Commonwealth corporations. In some circumstances, it'll have jurisdiction over higher education providers – that is tertiary education providers – and research bodies that receive Commonwealth funding, Commonwealth service providers and any subcontractors they engage, as well as, of course, having jurisdiction over parliamentarians and their staff. So, the number of the people that will be covered by that public sector division is very large and it changes, but it is many hundred thousand - there being 150,000 people employed under the Public Sector Management Act and then the jurisdiction goes much wider than that.

As part of the consultation process that will follow, we'll be considering the best way in which the federal judiciary might be subject to an enhanced system of integrity, reporting and consideration. But this bill does not take into account members of the judiciary. It does cover their staff. So, staff in the courts. But part of the consultation process would be to consider that very complicated issue around the federal judiciary itself. The law enforcement integrity division will investigate, pursuant to its existing standard of corrupt conduct, which you'll find in Section 6 of the ACLEI Act and which will be transferred across to Section 17 of the new draft bill. The public sector integrity division will investigate corrupt conduct in the sense of any abuse of public office or attempt or actual perverting of the course of justice in relation to a list of offences. I think, from recollection, there are 143 offences on that list. They are largely existing Commonwealth offences, but this bill also creates some new offences, which I'll come to in a moment.

On a fourth issue of referrals, with respect to the law enforcement integrity division, all the heads of the law enforcement agencies that I've nominated for you have a mandatory obligation to refer corruption issues relating to their agencies where they have a reasonable suspicion that that is necessary. With respect to the public sector integrity division, the heads of the entities that would be covered by the public sector integrity division – that list that I've nominated for you – would likewise have a mandatory obligation to report suspected corruption issues relating to public sector staff. The standard that they would exact is if they have a reasonable suspicion that a listed offence has been committed in circumstances where there could be an abuse of public office, the head of intelligence agencies would notify IGIS. Intelligence agencies would be a part of the public sector division of the new Integrity Commission. So, the head of the intelligence agencies would notify the Inspector-General of Intelligence and Security if they had a reasonable suspicion of one of those 143 corruption offences being breached, and the IGIS would consider whether that matter is appropriate for referral on to the Commonwealth Integrity Commission or whether it stays with investigation with the IGIS. And of course, the new Commonwealth Integrity Commission could receive referrals from any of the existing 11 integrity agencies. One important point to make and why the legislation has been very complicated is that we have always had, at a federal level in Australia, a multi-agency approach to integrity and anti-corruption. So, my office has large Venn diagrams and spreadsheets about all of the existing agencies, their jurisdiction, how their referrals work. And this new body is designed to subsume the ACLEI, which will become the law enforcement division, create an entirely new public sector division, have that new agency with a commissioner and two deputy commissioners sit as an umbrella and centralised agency on top of all of the existing 11 agencies, but also have to integrate with all of those so that there's not duplication or overlap and that there's a seamlessness to the referral processes that would exist. With respect to parliamentarians, there'll also be an ability to self-refer. That won't require reasonable suspicion. So, if some issue arises with respect to a parliamentarian and they want that issue cleared up, they can self-refer to the Commonwealth Integrity Commission, and of course, all of the standard referral processes from any of the existing multi agencies can also refer a parliamentarian.

Finally, the listed offences. There are around 143 offences which the Integrity Commission could investigate to. They're listed at section 18 of the bill, and this bill also creates new offences of repeated public sector corruption, concealing public sector corruption, public disclosure of false or misleading allegations made or information given to Commonwealth investigative body, diverting resources of Commonwealth investigative bodies by making an allegation or giving information that is false or misleading, and notifying public sector corruption issues with no basis and with an intention to cause detriment. When the law enforcement division or the public sector division investigated pursuant to the standard of corrupt conduct or any of those 143 offences, the existing capacity of the Law Enforcement Integrity Commission would exist and be subsumed into the new agency so they could hold both public or at their discretion- sorry, private, or at their discretion, public hearings. They can deliver reports on matters that they investigate into. The public sector side of the Integrity Commission is not designed to make public reports. It is designed to create briefs of evidence on any of those 143 offences in the public sector which would constitute corrupt conduct, which would go to the DPP for public trial and conviction or acquittal depending on how that trial transpired.

Finally, the to-be-created Commonwealth Integrity Commission would report to- so, it would be a part of the Attorney-General's portfolio. It would be oversighted itself by an independent inspector-general, which would be a newly created position under the act, and it would be oversighted by a standing parliamentary joint committee. And all of its coercive and investigative powers – so, that is its ability to intercept phone calls and so forth – would be oversighted, as is usual with these things, by the Commonwealth Ombudsman. I'm sorry if that's taken a little bit long, but that provides you with the five sort of central issues, I think, that arise with respect to the Integrity Commission. We will now embark on what I imagine would be a 6-month or so period of consultation. That will be obviously amongst the public sector, civil society stake-holders, all of the states and territories. I would hope to hold round tables. It's a complicated piece of legislation. It may well be that during that consultation process, some of the interfaces and interactions with the existing agencies, subject to scrutiny- and I'm not saying that this bill is beyond any improvement, but I think that gives you a description of how it will operate.

QUESTION: First up on public hearings. Are you saying that the public sector division would not hold public hearings at all? Would it have no discretion to hold them? And are you open, through this consultation process, to the argument that critics of your model are going to make- where they say, look, it must have public hearings?

ATTORNEY-GENERAL: So, the law enforcement division will maintain its discretion to hold public hearings. This draft does not propose public hearings for the public sector division. The rationale for that on the government's part is that there is a higher risk and a much greater threat from corruption inside law enforcement agencies insofar as they are the agencies that are meant to enforce the law. Having that discretion - which has never been used, I might add, by the existing ACLEI to date - is appropriate in that division. We do not consider that a body with this type of power should be having at its discretion the ability to hold public hearings. Now, that's the Government's position. I know some people agree with that position. I know some people disagree with that position. But we will obviously be having all of those arguments ventilated in the context of this very detailed draft. But the Government's position is to not repeat some of the mistakes at a federal level that have occurred at a state level, it is a fair and reasonable thing to note that the public part of the process will be in a court once the public sector division has used the powers greater than a royal commission to investigate anything that it considers evidence as a reasonable suspicion of corruption, put a brief together, have it investigated and have it openly ventilated in a court.

QUESTION: Forgive me if I missed it, but does it have the power to launch investigations on its own volition?

ATTORNEY-GENERAL: It has referrals from all of the existing agencies. Its own-motion powers attach to instances where it has something already under investigation that has been referred and something else is revealed to it, the Integrity Commission, through the conduct of its investigation then can pursue those avenues, if I can put it that way. There is a filter mechanism for referrals through all of the existing agencies that exist. I might say that the law enforcement division will still be able to take direct referrals from the public.

QUESTION: Attorney, how soon could the public sector integrity division be up and running? And what would you say to a cynical person who could note that for politicians and public servants, integrity will come later and it will come weaker because the jurisdiction will be limited to things that are suspected as crimes?

ATTORNEY-GENERAL: Well, it's a very, very long list. So, I would say to people have a look at all of the matters on that list. In my observation, they cover virtually every conceivable type of serious criminal conduct that one might label corruption. Again, people might take different views about that and those views will be ventilated. But the idea that I think is inherent in your question, that urgency attaches to some state of affairs that exists at the moment, there are 11 different highly motivated and highly resourced agencies that look into issues of integrity, criminal offending and corruption across the public sector at the moment. The Government's view is that that machinery that has long existed and successfully existed, being a multiagency approach, can be improved with this sort of model. But this is something over the top of and integrated into a system that largely, I think, has worked relatively well.

QUESTION: So, when will we see the scrutiny of politicians? When will we see that public sector integrity division up and running?

ATTORNEY-GENERAL: Well, that is a question for the passage of legislation through Parliament. And part of my process and role here is to speak with the crossbench, whose role will be very important in the passage of any legislation, about this very detailed legislation, listen to them, consider their views. Also I would imagine trying to convince them that this is the best balanced approach to creating an agency of the most unheralded type in terms of its coercive and investigative powers that has ever existed at a Commonwealth level.

QUESTION: [Indistinct], a politician is accused of corruption and referred; does the CIC fundamentally investigate and create a brief of evidence and refer to the DPP rather than actually make rulings itself?

ATTORNEY-GENERAL: Essentially. Essentially, I think that's a fair description. But if a Member of Parliament or their staff or any other public servant for that matter had attached to them a reasonable suspicion, then at the moment those types of issues would be dealt with by the Ombudsman or the Independent Parliamentary Expenses Authority or the AFP. If any of those 11 existing agencies had a matter referred to them that they considered involved a parliamentarian or a public servant, in a way that they thought it should be referred to the Commonwealth Commission, then they would do so, and the commission would sit as a specialised incredibly well resourced, both in terms of its staff, its budget, but its powers, agency to specialise in the investigation of those sort of matters.

QUESTION: And is that made public when something's referred to the CIC and there is a politician under investigation? Will that be made public under this legislation?

ATTORNEY-GENERAL: Well, the investigation is a matter that is at the hands of the Integrity Commission and they would exercise great care, I would imagine. So, that's a matter that they would determine.

QUESTION: Attorney, just trying to connect some of the things you've said. Is it correct to say that the threshold for investigation, say, AFP officers or somebody from Border Force is lower than the threshold for ministers and bureaucrats? And if so, why is that the case, given the consequence of corruption of a politician is perhaps greater than an official in AFP or Border Force?

ATTORNEY-GENERAL: Well, the standards for investigation, which are always based on reasonable suspicion, are different. Now, whether you would describe them as lower I'll leave to the public debate that will exist on this, but the existing ACLEI Act has a definition of a thing called corrupt conduct, which sits in, I think, Section 6 of that act, and it'll be transferred over to Section 17. That definition, the meaning of engages in corrupt conduct, talks about abusing office, perverting the course of justice, and talks about corruption of any other kind, which is a very broad term. One of the difficulties that has arisen with state investigative bodies of this type is that where they have a breadth over that type of jurisdiction, there's been great confusion. Sometimes minor matters have been scooped up. Sometimes people's lives and reputations in the public sector have been destroyed when there's been no prosecution or indeed an ultimate finding of the commission has been reversed. So with respect to those hundreds of thousands of people, which include politicians, yes, the Government's position is that the reasonable suspicion should attach to a known offence where the offence has an element of an abuse of public office or perverting the course of justice. Now, the breadth of those offences, when you read the list of the 143 offenses, is very, very large, and it includes very broadly worded offences like the abuse of public office itself at a Commonwealth level. So you might argue that the jurisdiction of the law enforcement commission is slightly broader, or you might argue that in the important area where you're covering hundreds of thousands of public servants, including politicians, that there is clarity as to what conduct is criminally corrupt and what conduct might be misconduct or a lower standard.

QUESTION: Minister, won't the failure to provide for any sort of public hearings on the side of public figures in fact lead to the general voter thinking that the politicians are really trying to apply double standards and protect themselves excessively?

ATTORNEY-GENERAL: I guess that'll be a matter of public debate, but we've seen some recent public hearings, and whether or not the general voter thinks that they're fair or they are warranted or whether or not they represent good or bad process, that's for the general public to decide. But I think assessing that the general public has some kind of complete consistency or unanimity of views when they see a public hearing, I'm not sure that I would agree.

QUESTION: [Talks over] [Indistinct]… to have discretion to give the commissioner at least discretion to hold those hearings publicly?

ATTORNEY-GENERAL: Well, some may argue that, but the alternative argument is that when you've got a body whose powers are so great that it can tap phones, that it can compel evidence even if it's incriminating, a body whose powers basically ride across the top of all of the things that we think are important in the criminal justice system, like the right to silence, like the presumption to innocence, like the ability to have information adverse to you disclosed, the Government takes the view that ultimately a court should be making a public determination of guilt or innocence, not a report. Now, that is a view that some people will agree with and some people may not agree with, and one of the reasons why you've got to have an extensive consultation process. But we've been very clear that we have to find the right balance between preserving people's liberties and rights in the criminal justice system that have existed for hundreds of years and having an extremely powerful investigative body. And the ultimate public hearing for matters that would be the subject of public investigation is a court, and there's no better public hearing than that.

QUESTION: [Indistinct] been promising a national integrity commission since 2018. What's taking so long?

ATTORNEY-GENERAL: Well, the draft was available in a preliminary form to me last December. I was working on it over the Christmas break, then we had a pandemic. We're going to have six months of very intensive consultation. I was not advising the Government – and I think it would have been a terrible idea – to put 400 odd pieces [pages] of legislation dealing with some of the most sensitive issues and the creation of the most powerful investigative body in the history of the Commonwealth out for extensive public consultation during the height of a pandemic. Rather, we've waited for that to calm down. It has, and now it's happening.

QUESTION: As a West Australian, you've been very critical about the excesses of the CCC over in the west. Do you think that Australia, given what you know has happened over there, your criticisms or presumed criticisms of ICAC and whatever happens in Queensland, do you think there actually is a need for this body or do you stick with your view that you vented some time ago that there are- there's enough integrity bodies within Australia to satisfy the need for scrutiny?

ATTORNEY-GENERAL: So, I don't think I've ever put a view that this body isn't needed or that there are already enough integrity bodies across Australia. I think the Shadow AG may have put that view at one point in time, but I've never put that view. I think that this body in a multi-agency approach actually makes a lot of structural sense. To take the existing body that deals with law enforcement integrity and move it up over and above all of the existing integrity agencies, then add to it another half and have a commissioner in charge of that and two deputy commissioners that sit over the top and integrate with the multi-agency approach, I think that can actually bring something very significant, particularly if it's very well resourced, which this will be. I would say, Andrew, that having been a prosecutor during some of the excesses of the CCC in WA and a state Attorney-General when some of those excesses were being tidied up and dealt with and having watched people's careers be absolutely destroyed, seeing reports of state-based corruption bodies find people guilty of a standard that didn't even exist in the act. Right? These things happened, and they've happened so regularly that you can't ignore them. So I'm not denying that what I saw in WA has had an effect on me and the way that I've advised the Government. And the Government has determined to take an approach which is extremely powerful but exercising jurisdictional caution around that power.

QUESTION: Some advocates on this issue say that not all corrupt conduct is criminal. What are your thoughts on that point? Is every corrupt conduct that's going to be in this bill, is it criminal conduct always or is there some scope [indistinct] corrupt conduct that might not actually pass a criminal test?

ATTORNEY-GENERAL: People write PhDs on this, but the public sector already has a range of mechanisms and investigative agencies and processes to deal with misconduct, breaches of codes of conduct and so forth. One of the observations I offer about the Greens' bill, which Labor both did not support and then finally did support, is that it would define corrupt conduct in a way that is such a low bar, including irregularities that could constitute a disciplinary offence, that under their bill you could have the weight of the most powerful investigative body in Commonwealth history retrospectively applied to what is relatively low-grade but poor conduct that occurred many years ago, which at the time would have been only subject potentially to a disciplinary notice or proceeding against them. The subject of all of the powers that I've spoken about and a public report that they had engaged in conduct which met a standard which you would call corrupt conduct that did not exist at the time. Now, I think, and the Government thinks, that that is utterly excessive, that it rides roughshod and trashes all of the principles of right to silence, of presumption of innocence, of not being retrospectively held liable to standards that never existed at the time. Now, this body, I might add, can investigate previous conduct, but subject to offences that existed at the time. But the idea of full retrospectivity, which is what the Greens' bill occasions, the Government thinks is wrong ethically, morally, and in principle.

QUESTION: How will this body interact with existing state bodies in the sense that there is a lot of- for example, the Commonwealth could unveil something that is relevant to a state level of corruption. Will there be referral powers between that level? And is it therefore possible that because some of those state bodies have public hearings that things are taking place at a Commonwealth level but have been unearthed at a state level…

ATTORNEY-GENERAL: Well, I think the answer to that question's in the list of the 143 offences, because this body would investigate conduct pursuant to those known offences, which are Commonwealth offences. As you note, it's not impossible or even improbable that in those types of investigation, other matters might come up that should be properly notified to state law enforcement, police or indeed state bodies. And this organisation will have the ability to do that. But this organisation will investigate the Commonwealth Public Service and Commonwealth law enforcement agencies pursuant to Commonwealth offences.

QUESTION: Minister, you said it's going to take a six-month intensive consultation, so presumably to set this up, legislate, it's going to take at least a year. In the intervening period, the Government's cutting the budget of the Auditor-General. He's been doing some very good and important work. How can you justify the budget cuts to the Auditor-General when this organisation won't be set up probably for at least a year?

ATTORNEY-GENERAL: Well, the Auditor-General is part of that multi-agency approach, and the Auditor-General has the ability to refer. I understand that there are views about the various budgets of a variety of agencies and the Auditor-General, but one of the things that I would say is that what this design does is ensures maximum efficacy for the ombudsman, for the Auditor-General, for the AFP, for the Independent Parliamentary Expenses Authority, because they have an ability to send complicated matters up. And what you might find, actually, is that having this massive budget and massively empowered organisation with 147 million is it eases the budgetary tension on the existing 11 agencies, because the matters of the greatest complication and seriousness are referred to a specialist agency.

QUESTION: You've said you're going to have an exhaustive six-month consultation around these proposals. Does that mean that the Government- obviously put a proposal up, a detailed proposal up. But does the Government have an open mind on any of these design questions including the matter of public hearings? Because that, as Michelle and others have said, will be the most- or one of the most contentious elements of this proposal. So do you- if the weight of the consultation brings a view back to the Government saying, no, we think you should proceed in another path, is the Government open to that?

ATTORNEY-GENERAL: We're going to listen to everyone who wants to have input into this process, but the reverse side of that coin is whether or not, for instance, if the crossbench were so wedded to the idea of full public hearings on public sector matters conducted by the Public Integrity Commissioner, that they wouldn't allow passage of incredibly important legislation with $147 million worth of integrity and corruption investigation with all the powers of a royal commission. I'd hate to see that sort of deadlock happen, but that's a question for both sides of this argument. But there are certain matters of principle here that the Government, I think, will stick very strongly to.

QUESTION: [Indistinct]… you said if there was a deadlock, you'd be willing to consider public hearings?

ATTORNEY-GENERAL: I don't think that the answer I gave went anywhere near that proposition.

QUESTION: Can I ask the question of why, in your opinion, why it's appropriate that the Integrity Commission would not be able to, of its own volition, investigate politicians, whereas it would for other people. Why is there the double standard?

ATTORNEY-GENERAL: Well, it's not a double standard at all, because the Public Sector Integrity Commission would require referrals through one of the other multi-agencies, the other 11 agencies. Law enforcement would still have the ability to have direct public referrals. And indeed, there is an ability to refer between the law enforcement and the public sector division. But in answer to your question, one of the reasons why, when you cover hundreds of thousands of people, politicians, people at universities, people at the SBS and the ABC, in the very heightened environment that we exist in at the Commonwealth level, there is a tendency for some to refer for motives that aren't entirely pure. And we think that having a reasonable system of assessment, sober, sensible assessment, will stop the sort of things that we've seen, for instance, where the Shadow Attorney-General has oversighted 10 unsuccessful referrals of Coalition Members of Parliament for criminal investigation. I mean, that is just ridiculous. And you don't want to have these things turn into a circus.

QUESTION: Attorney, back on higher education, you mentioned there would be some circumstances where this body could investigate those sort of incidents. What circumstances would those be?

ATTORNEY-GENERAL: Essentially the linkage there is to Commonwealth funding for the organisations. But this is also meant to run parallel to and take into account the fact that universities are potentially the subject of foreign influence and interference. And we thought it was appropriate, given the huge amount of public sector resourcing and funding that goes to universities, that if we are to have a public sector integrity division, that it has coverage to acknowledge both the threat that exists in that environment, but also the fact that there's an enormous amount of federal taxpayer funding that goes into supporting the organisations themselves. Okay. We'll take one more.

QUESTION: I'd like to ask about third parties. A lobbyist who tries to influence a politician or a department or a contractor who tries to influence a department to get money. Are they captured?

ATTORNEY-GENERAL: Well, they're not in a contracting arrangement, but they can be part- an investigation is going to be about public sector employees in those agencies. The AFP already has the ability to investigate other people. And at its finer points, there will be times when the investigation into a primary suspect who is a public servant or a politician or whoever it might be, would reveal malfeasance from other people and all those matters will find their way to the DPP. Okay, thanks everyone.