Integrity Commissioner

Background

37.47 Corruption is a serious global phenomenon that undermines democratic institutions, jeopardises economic development, and threatens the stability and security of governments.^[70] While there is no universally accepted definition of corruption, it is understood to include bribery, embezzlement, extortion, illicit enrichment, and abuse of functions, position or influence.^[71]

37.48 The seriousness of the threat posed by corruption has been recognised by the General Assembly of the United Nations, which adopted the United Nations Convention against Corruption on 31 October 2003. The Convention requires that parties to the Convention ensure the existence of independent anti-corruption bodies that implement measures to prevent and combat corruption, and, in particular, ‘a body, bodies or persons specialised in combating corruption through law enforcement’ that are independent and free from any undue influence.^[72]

37.49 Commencing operation in December 2006, the ACLEI was established to detect and investigate corruption in the AFP, the ACC, the former NCA and prescribed Australian Government agencies with law enforcement functions.^[73] It is headed by the Integrity Commissioner, whose functions include:

• investigating and reporting on corruption issues;

• referring corruption issues to law enforcement agencies for investigation;

• managing, overseeing or reviewing the investigation of corruption by law enforcement agencies;

• conducting public inquiries into corruption;

• collecting, analysing and communicating information and intelligence relating to corruption; and

• making reports and recommendations to the responsible minister concerning the need or desirability of legislative or administrative actions on corruption issues.^[74]

37.50 The ACLEI may conduct investigations through the use of various law enforcement powers, including the application for, and execution of, arrest and search warrants, participation in controlled operations, use of surveillance devices, interception of telecommunications, access to stored communications and use of assumed identities.^[75] Additionally, the Integrity Commissioner has similar powers to a Royal Commission, including the power to execute search warrants, conduct public or private hearings, summon people to attend hearings to give evidence or produce any document or thing, and take possession of, copy or retain any document or thing.^[76]

37.51 The Integrity Commissioner is exempt from the operation of the Privacy Act.^[77] Acts and practices in relation to a record that has originated with, or has been received from, the Integrity Commissioner or a staff member of the ACLEI, also are exempt.^[78] In addition, since the Integrity Commissioner is an ‘enforcement body’ under the Act,^[79] personal information may be disclosed by an organisation to the Integrity Commissioner in certain circumstances, including where the disclosure is for the purpose of preventing, detecting, investigating or prosecuting criminal offences, or the prevention, detection, investigation or remedying of seriously improper conduct.^[80]

37.52 The Law Enforcement Integrity Commissioner Act 2006 (Cth) (LEIC Act) imposes certain confidentiality requirements on the ACLEI staff.^[81] A current or former ACLEI staff member must not record, divulge or communicate any information acquired in the course of carrying out his or her duties, except in the performance of those duties.^[82]

Oversight and accountability mechanisms

37.53 The Integrity Commissioner is required to give an annual report to the Minister for Home Affairs to be presented to the Parliament.^[83] The Commissioner also is required to give investigation and inquiry reports to the Minister if public hearings were held in the course of an investigation.^[84] The Minister must remove certain information—such as information that may endanger a person’s life or physical safety or prejudice certain proceedings—before tabling such a report in Parliament.^[85] The Integrity Commissioner also may give special reports to the Minister on the operations of his or her office for presentation to the Parliament.^[86]

37.54 The Integrity Commissioner must notify the Minister of any issue concerning the corrupt conduct of a current or former ACLEI staff member, and staff are under a similar obligation to report corruption by the Integrity Commissioner.^[87] Any member of the public also may refer to the Minister an allegation of corruption in the ACLEI or provide the Minister with information relating to such an allegation.^[88] The Minister may refer the issue to the Integrity Commissioner for investigation, or authorise a special investigator—who has the same investigative and reporting powers that would be available to the ACLEI—to investigate the issue.^[89]

37.55 After the first three years of operation, the Minister must cause an independent review of the ACLEI Act to be undertaken, unless a parliamentary committee or the Parliament Joint Committee on the ACLEI has started or completed a review of the operation of the Act before the end of the three-year period.^[90]

37.56 The LEIC Actestablished a Parliamentary Joint Committee on the ACLEI.^[91] The functions of the Committee are to

• monitor and review the Integrity Commissioner’s performance of his or her functions;

• examine the annual reports and special reports of the Integrity Commissioner;

• examine and report on trends and changes in corruption issues and recommend changes to the functions, powers and procedures of the Integrity Commissioner; and

• conduct an inquiry into any question in connection with the Committee’s duties that is referred by either House of Parliament.^[92]

37.57 In addition, the Commonwealth Ombudsman has the power to investigate complaints against the ACLEI that relate to administrative matters.^[93] The Integrity Commissioner also is subject to regular inspection and monitoring by the Commonwealth Ombudsman in relation to the exercise of his or her powers to carry out controlled operations under Part IAB of the Crimes Act, use surveillance devices under the Surveillance Devices Act, and undertake telecommunications interception and access stored communications under the Telecommunications (Interception) Act.^[94]

37.58 State and territory jurisdictions that have anti-corruption bodies commonly provide for their partial exemption from the operation of privacy laws or standards. In New South Wales, the Independent Commission Against Corruption and the Police Integrity Commission are not required to comply with the information protection principles under the Privacy and Personal Information Protection Act 1998 (NSW), except in connection with the exercise of their administrative and educative functions.^[95] In Victoria, the Office of Police Integrity falls within the definition of ‘law enforcement agency’ and therefore is not required to comply with a number of Information Privacy Principles under the Information Privacy Act 2000 (Vic).^[96] Similarly, the Queensland Crime and Misconduct Commission is defined as a ‘law enforcement agency’ under the Information Standard No 42 (Qld) and therefore is exempt from compliance with five of the 11 Information Privacy Principles under the Standard.^[97]

37.59 Under the Information Privacy Bill 2007 (WA), the Corruption and Crime Commission in Western Australia generally will be exempt from compliance with privacy legislation.^[98]

Discussion Paper proposals

37.60 In DP 72, the ALRC expressed the preliminary view that government agencies that perform an oversight role, such as the Integrity Commissioner, serve an important public interest in ensuring that government agencies that are vested with coercive powers are monitored and held accountable. This public interest should, however, be balanced with the need to protect the privacy of personal information. The ALRC noted the OPC’s submission on the Issues Paper, Review of Privacy (IP 31) that it would be desirable for the ACLEI to develop information-handling guidelines, or alternatively, for the Privacy Act to apply to the administrative operations of the ACLEI.^[99] The ALRC proposed that the Integrity Commissioner should be partially exempt from the operation of the Privacy Act except in respect of the non-administrative operations of his or her office.^[100] In addition, the ALRC proposed that the Integrity Commissioner should be subject to information-handling guidelines in respect of the non-administrative operations of his or her office.^[101]

Submissions and consultations

37.61 Some stakeholders supported the proposal to extend the coverage of the Privacy Act to the Integrity Commissioner in respect of the administrative operations of his or her office.^[102] The Cyberspace Law and Policy Centre submitted that no agency should be completely exempt from compliance with fundamental human rights and administrative law principles. It argued that agencies like the ACLEI should be required to justify any exemption from both the Privacy Act and the related provisions of the FOI Act. It also suggested that, where an exemption is justified, information-handling guidelines should be developed and published in consultation with the OPC.^[103]

37.62 In contrast, the ACLEI submitted that a complete exemption from the operation of the Privacy Act is necessary for its effective operation. It argued that the exemption is necessary for the purposes of:

• ensuring the ACLEI’s inquisitorial power, which may be used to gather intelligence about a corruption issue, is not subject to unintended fetter;

• restricting possibilities for counter-surveillance tactics to be used against the ACLEI that might otherwise frustrate the ACLEI’s operations, having particular regard to the law enforcement skills, knowledge, and access to information of those who may be subject to corruption inquiries; and

• ensuring there are no impediments to the voluntary flow of information from any source that might identify corruption.^[104]

37.63 The ACLEI submitted that its information handling already is sufficiently regulated by provisions under the LEIC Act, including provisions concerning its objects, functions and confidentiality requirements. The ACLEI argued that its exemption poses a very small risk to the privacy of individuals, because it collects little personal information of an administrative nature in practice and that information would be limited in scope. The ACLEI stated that it only has 10 investigative, legal, policy and corporate staff and therefore its information-handling practices in respect of its administrative operations would affect few people. In addition, the ACLEI submitted that:

The Integrity Commissioner recognises the importance of appropriately handling personal information. As far as possible, the Information Privacy Principles and the Privacy Commissioner’s Guidelines form an important part of ACLEI’s management of personal information.^[105]

37.64 The ACLEI suggested that it was more comparable to the ACC than to oversight bodies, in that both the ACLEI and the ACC use similar investigative powers and methods, as well as inquisitorial powers, in the performance of their functions. The ACLEI submitted that, while it has an oversight role, there are four critical differences between the ACLEI and other oversight bodies such as the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman, which relate to:

• the Integrity Commissioner’s coercive inquisitorial power which may be exercised in a public or a private hearing;

• the ACLEI’s law enforcement function and intrusive powers;

• the special nature of those who may fall subject to the ACLEI’s investigations—law enforcement officers engaged in corruption, but who are also skilled in countersurveillance and other law enforcement methodologies; and

• a focus on achieving prosecutions and disciplinary outcomes, rather than remedies for complainants.^[106]

37.65 In addition, the ACLEI submitted that a partial exemption that requires it to comply with the Privacy Act in respect of its administrative operations would be an impractical and disproportionate response to the issue of privacy. The ACLEI argued that, due to its investigative and intelligence-gathering methodologies, it is not always possible to distinguish between its administrative and non-administrative operations—especially since its covert operations relate to personnel and financial management that should not be subject to normal constraints on use and disclosure.

While this problem may affect other law enforcement agencies that use covert methodologies, including paid informants, in the case of the ACLEI the risk of compromise is increased because of the counter-surveillance knowledge of targets of the ACLEI’s investigations, who are themselves trained in similar methodologies.^[107]

37.66 The ACLEI also argued that the coverage of its administrative operations by the Privacy Act would pose a risk to its effective operation and the personal safety of some of its employees and those who give assistance to it. ACLEI stated that, since it may become a target for infiltration and compromise, administrative records concerning current or former employees should not be made available to the employee and their use or disclosure should not be constrained.^[108]

37.67 Moreover, ACLEI suggested that, where federal, state and international agencies are not compelled to provide information about corruption to the ACLEI, the narrowing of its privacy exemption may have an adverse impact on the willingness of these agencies to volunteer information.^[109]

37.68 On the other hand, the ACLEI accepted the ALRC’s proposal that the Integrity Commissioner, in consultation with the OPC, develop and publish information-handling guidelines for the ACLEI.^[110] This proposal also was supported by other stakeholders.^[111]

ALRC’s view

37.69 Due to the serious threat to society posed by corruption, the ACLEI is given coercive information-gathering powers and inquisitorial powers in carrying out its functions. While the ACLEI is not subject to the Privacy Act, it is subject to confidentiality provisions under the LEIC Actand oversight by the Parliamentary Joint Committee on the ACLEI and the Commonwealth Ombudsman. It also has reporting obligations to the AGD and, in the event of a suggestion of corruption, the Minister for Home Affairs.

37.70 Like the ACC, therefore, the ACLEI is subject to a separate system of oversight and accountability. This separate system accommodates the tension between oversight requirements and the need to avoid disclosure of the ACLEI’s sensitive operations. In these circumstances, the OPC may not be the appropriate body to deal with complaints against the ACLEI. In addition, the ALRC accepts the submission by the ACLEI that a partial exemption that applies to the Integrity Commissioner in respect of the administrative operations of his or her office may be impractical, for example, matters relating to ACLEI’s covert operations concern law enforcement officers, which includes ACLEI’s officers, it may not always be possible to distinguish between the administrative and non-administrative operations of the ACLEI.

37.71 In light of these considerations, the Integrity Commissioner and the staff members of ACLEI should continue to be exempt from the operation of the Privacy Act. They should be required, however, to comply with information-handling guidelines which should be developed and published in consultation with the OPC. The development of such guidelines will ensure that personal information is handled appropriately, without compromising the ACLEI’s operations. The guidelines should reflect the model UPPs to the maximum extent possible. In line with the ALRC’s recommendation concerning the ACC, such guidelines also should address the conditions to be imposed on the recipients of personal information disclosed by the Integrity Commissioner or the ACLEI in relation to the further handling of that information. This will ensure that the continuity of privacy protection of personal information held on the ACLEI’s records is preserved. Further, the information-handling guidelines should address whether there is a need to establish a suitable complaint-handling mechanism for privacy-related complaints that do not fall within the jurisdiction of the Commonwealth Ombudsman.

37.72 The ALRC notes that the development and publication of such information-handling guidelines received support from both the OPC and the ACLEI. As mentioned above, the ACLEI advised that it has commenced discussion with the OPC concerning the development of such guidelines, which are to be monitored by its Internal Audit Committee.^[112] In addition to the ACLEI’s Internal Audit Committee, compliance with the information-handling guidelines also should be monitored by the Parliamentary Joint Committee on the ACLEI.