Go to top of page

Appendix 6: Developments in ACLEI's operating environment

Developments in legislation or government policy can have a direct impact on ACLEI's jurisdiction powers, procedures or practices. Significant changes which occurred in 2015–16 are set out here.

Legislative change affecting ACLEI

Australian Crime Commission Amendment (National Policing Information) Act 2016

This enactment–which received Royal Assent on 5 May 2016–amends the Australian Crime Commission Act 2002 to merge the CrimTrac Agency into the ACC. The Act contains transitional provisions to ensure that the Integrity Commissioner retains the ability to deal with any allegations of corrupt conduct by former CrimTrac staff. The provisions are important, as it can take some time for corruption issues to come to light.

Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015

Schedule 11 of this Act–which commenced on 27 November 2015–made amendments to improve the general operation of the LEIC Act, namely to:

  • amend the definition of 'significant corruption issue' to allow the Integrity Commissioner and head of a law enforcement agency to reach an agreement under section 17 of the LEIC Act on what types of corruption issues should be classified as 'significant' when notified to the Integrity Commissioner
  • clarify that the same pre-investigation powers to request further information are available
    to the Integrity Commissioner when he or she is deciding how to deal with 'significant' and non-significant corruption issues
  • provide the Integrity Commissioner with greater discretion in deciding when and how to keep persons informed of action taken in relation to a corruption issue
  • expand the Integrity Commissioner's ability to share information, so that appropriate third parties may be informed if a person's safety may be in jeopardy
  • allow the Integrity Commissioner to delegate his or her power to apply for a passport surrender order to an SES (or acting SES) employee of ACLEI
  • simplify provisions relating to giving certain evidence in private, in particular to clarify that all evidence to which a secrecy provision relates cannot be given in public
  • amend the definition of 'AFP staff member' for consistency with the Australian Federal Police Act 1979, and
  • remove time limits on the secondment of officers to ACLEI.

Relevant decisions of courts and administrative tribunals

Case law informs the interpretation of legislation. Accordingly, ACLEI monitors relevant decisions of courts and tribunals to guide its administration of the LEIC Act and the use of powers. These decisions, and their effects, are summarised in the table below.

Citation

Relevance to ACLEI

Bare v IBAC [2015] VSCA 197

(29 July 2015)

Review of decision not to investigate allegations against police. By majority (Warren CJ dissenting), the Victorian Court of Appeal decided that there was error in not properly considering rights under the Victorian Charter of Human Rights. Consideration of the effect of a privative clause on judicial review applications.

R & Anor v Independent Broad-based Anti-corruption Commission [2015]
VSC 374

(7 August 2015)

Decision permitting Independent Broad-based Anti-corruption Commission to exercise a power to examine police who were also subject to a criminal investigation, not yet charged.

Leave to appeal refused in R & M v IBAC [2015] VSCA 271
(30 September 2015).

Decision to refuse leave to appeal confirmed by High Court in
R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8 (below).

Lazarus v Director of the Independent Commission Against Corruption [2015] NSWSC 1265

(1 September 2015)

Striking out of a damages claim brought by persons considered in an Independent Commission Against Corruption report. In the absence of bad faith, statutory immunity protected ICAC.

Commissioner,
Australian Federal Police v Cacu
[2015] NSWSC 1232

(3 September 2015)

NSW Supreme Court (Adams J) considered whether the obligation of a person to provide information to enable an application under the Proceeds of Crime Act 2002 (Cth) affected the capacity of the requirement that the courts maintain the legitimacy of the criminal justice system. The implementation of a requirement to provide information was stayed until after the applicant's trial, although the requirement would still apply to his spouse.

This case may inform ACLEI's practice when dealing with proceeds of crime.

Mentink v Minister for Justice [2015] FCA 1094

(13 October 2015)

and

Mentink v Minister for Justice [2016] FCA 432

(29 April 2016)

Discovery application related to challenge to Minister's decision to take no further action in relation to an alleged ACLEI corruption issue. Edelman J considered the documents sought were not directly relevant, that their provision would not facilitate resolution and that, as the documents would not be in the Minister's possession, any order would affect bodies that were not parties to the action (ie the Australian Federal Police and ACLEI).

The second case was an application for leave to appeal from decision in Mentink v Minister for Justice [2015] FCA 1094. Leave was refused in view of lack of doubt attending original decision and lack of prejudice to the applicant's substantive claims.

Commissioner of the Queensland Police Service v O'Keefe & Ors [2015]
QSC 335

(7 December 2015)

Police officers sought a statement of reasons for their being stood down. The Queensland Supreme Court (Martin J) found the decision to refuse a statement was justified because the standing down occurred in relation to investigations following allegations of corruption.

McCloy v Latham [2015]
NSWSC 1879

(12 November 2015)

and

McCloy v The Honourable Megan Latham [2015] NSWSC 1782

(3 December 2015)

Application that the ICAC Commissioner be restrained from continuing or reporting on a specific investigation because of alleged bias. Application dismissed on the basis of a lack of evidence suggesting bias.

Earlier decision affirms principle about privilege attaching to proceedings in Parliament, in relation to the attempt to tender a report of a Parliamentary Committee.

Obeid v Independent Commission Against Corruption [2015]
NSWSC 1891

(14 December 2015)

and

Obeid v Ipp [2015] NSWSC 1755

(3 December 2015)

In the context of a challenge to a number of ICAC reports, the applicant sought that information be made available through the usual discovery processes. The ICAC Commissioner declined and the applicant sought review of that decision. The NSW Supreme Court upheld the Commissioner's decision.

In the Ipp decision, the Supreme Court upheld ICAC's claim for public interest immunity in relation to a specific document.

R v Harper [2015] QCA 273

(15 December 2015)

Queensland Court of Appeal dealt with appeal based in part on a criminal trial having been affected by evidence obtained by way of an ACC examination. The decision considers X7 v ACC, but concludes that the matters raised in the ACC hearing were insubstantial in relation to the offence charged and that there was other evidence on the relevant issue.

Witness JA v Scott [2015] QCA 285

(23 December 2015)

Queensland Court of Appeal considered alleged contempt of Crime and Corruption Commission where the witness had already been dealt with for contempt based on refusing to answer the same question at an earlier hearing, using the same attendance notice.

SA v New South Wales Crime Commission [2015] NSWSC 1979

(23 December 2015)

Review of decision of NSW Crime Commission to issue examination summons. Consideration of the effect of any requirement to give reasons or provide supporting information where that might prejudice investigation.

R v Independent Broad-based
Anti-corruption Commissioner
[2016] HCA 8

(10 March 2016)

In this case, the High Court unanimously dismissed an appeal against a decision of the Victorian Supreme Court concerning the compulsory examination power in the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (the IBAC Act).

The Supreme Court decision allowed IBAC to conduct a coercive public examination as part of an investigation. The Court noted that, as the criminal trial process had not been engaged, the privilege against self-incrimination was not a relevant issue to consider in relation to the witnesses.

The High Court agreed that the general position that a person could not be required to give evidence against himself or herself was not relevant to a person who had not been charged but who may have been reasonably suspected of committing the offence. The High Court noted that it was clear that the Victorian Parliament had decided to remove the privilege against self-incrimination in matters of this kind before the Commission, and that–as members of a disciplined force–police were accountable for what they did on duty. The IBAC Act provides a limited 'use immunity' in relation to evidence given at a coercive examination and IBAC has an independent power to charge a person.

Although the Integrity Commissioner does not have an independent power to charge a person, this case may inform policy should the LEIC Act be reviewed.

X Y N v Chief Examiner [2016]
VSC 137

(12 April 2016)


Decision of Riordan J considers the effect of X7 v Australian Crime Commission [2013] HCA 29 on the power of the Chief Examiner under the Major Crime (Investigative Powers) Act ٢٠٠٤ (Vic). While the words of the statute affecting the fundamental right not to be required to self-incriminate were clear, the application queried whether a compulsory examination would amount to a contempt.

Lee v Crime and Corruption Commission & Anor [2016]
QCA 145

(7 June 2016)

Appellant was a Queensland police officer who recommended exoneration of another police officer, but allegedly without conducting an adequate investigation. The issue related to the sanction to be imposed on the appellant and the scope of the powers of the Crime and Corruption Commission to resume an investigation after having made a recommendation. The Court of Appeal found that the investigation remained on foot and could be resumed.

Duncan v Independent Commission Against Corruption [2016]
NSWCA 143

(22 June 2016)

Consideration of scope of powers of Independent Commission Against Corruption. In summary, corrupt conduct under the Act required a nexus to the exercise of an official power, but did not require proof of criminal conduct. The NSW Court of Appeal determined that ICAC had the power to make findings about matters broader than corruption.