Document 1
From:
Meeting Briefs
To:
AGO DLO
Cc:
Quinn, Elizabeth; (s 22)
Subject:
RE: Request - Meeting Brief - Due COB Tues, 6 Feb [SEC=UNCLASSIFIED]
Date:
Tuesday, 6 February 2018 5:03:17 PM
Attachments:
Meeting Brief - AG meeting with National Integrity Commission - 12 Feb 1....docx
UNCLASSIFIED
Hi (s 22)
Please find attached the final cleared meeting brief for the Attorneys meeting with the National
Integrity Commission on Monday 12 February 2018.
If agreed, (s 22)
from the department is available to attend the meeting.
Thank you
(s 22)
From: AGO DLO
Sent: Tuesday, 23 January 2018 2:47 PM
To: Meeting Briefs
Cc: AGO DLO
Subject: Request - Meeting Brief - Due COB Tues, 6 Feb [SEC=UNCLASSIFIED]
UNCLASSIFIED
Hello
Please find attached a request for a meeting brief, due
COB Tuesday, 6 February .
Happy to discuss.
Thanks,
(s 22)
| Departmental Liaison Officer
Office of the Hon Christian Porter MP|Attorney-General
(s 22)
Document 2
Position:
Director
Division/Branch:
Criminal Law and Protective Security Branch
Phone/Mobile:
(s 22)
Cleared by:
Julia Galluccio
Position:
A/g Assistant Secretary
Division/Branch:
Criminal Law and Protective Security Branch
Phone/Mobile:
(s 22)
4
5
Document 3
From:
(s 22)
To:
(s 22)
Subject:
Read out - AG mtg with NIC (The Australia Institute) [DLM=For-Official-Use-Only]
Date:
Monday, 12 February 2018 6:31:11 PM
For Official Use Only
Hi (s 22) ,
I sat in on the Attorney-General’s meeting with the ‘National Integrity Committee’ (Anthony
Whealy QC, Chair of TI Australia; Margaret McMurdo AC, former President of the Qld Court of
Appeal; Stephen Charles AO QC, former judge of the Victorian Court of Appeal) and Ben Oquist
(Executive Director) and Hannah from The Australia Institute. This meeting was to discuss the
Committee’s ‘Principles for designing a National Integrity Commission’.
(s 47C)
(s 47C)
—
(s 47C)
Thanks,
(s 22)
Document 4
Principles for designing a National
Integrity Commission
A briefing paper prepared in November 2017 by the
National Integrity Committee
BACKGROUND
A National Integrity Commission is urgently needed to investigate and expose
corruption and misconduct in federal government and the public sector.
There are significant gaps in the jurisdiction and investigative powers of the existing
federal agencies responsible for scrutinising the public sector and government. No
federal agency has the power to investigate corrupt conduct as defined by our state
based commissions. No federal agency can investigate misconduct of MPs, ministers,
political staff or the judiciary.1 The federal agencies that do have strong investigative
powers, such as the federal police, can use them only when investigating criminal
charges. No federal agency has the ability to hold regular public hearings, meaning that
corruption and misconduct is not properly exposed to the public. Many cases of
corruption reach across state borders, but state anti-corruption bodies are forced to
abandon investigations once they reach the federal sphere. Consequently there is a
need for an overarching body with umbrella type functions for the supervision of
corruption and integrity in every area of federal public administration.
There is a growing public distrust of federal government with a recent poll finding 85%
of Australians believe there is corruption in federal politics. In addition, there is
overwhelming public support for a National Integrity Commission, with a recent poll
1 Advice should be taken as to whether an investigation of this kind of all or some Commonwealth
judicial officers is constitutional.
Principles for designing a National Integrity Commission
1
finding over 80% of respondents support the establishment of a commission, and 78%
of respondents supportive of a commission that holds public hearings.2
The design of a National Integrity Commission is critical. That design must incorporate
features which ensure that the commission increases public trust in government. It
must therefore be such as to allow corruption and misconduct to be properly
investigated and exposed without improperly and unfairly prejudicing the innocent.
This briefing paper was prepared by the
National Integrity Committee to establish
design principles for a national integrity commission that will ensure it is given the
strength and tools to effectively do its job effectively and fairly.
NATIONAL INTEGRITY COMMITTEE
The
National Integrity Committee was established by the Australia Institute to advise
on the design of specific accountability reforms, including the establishment of a
National Integrity Commission. The members of the committee are Margaret
McMurdo AC, David Ipp AO QC, Stephen Charles AO QC, David Harper AM QC, Paul
Stein AM QC and Anthony Whealy QC.
PRINCIPLES AND RATIONALE
1. That the Commission is an independent statutory body that is
provided with the required resourcing to enable it to promote
integrity and accountability and to enable it to prevent, investigate
and expose corruption.
Rationale: establishing the National Integrity Commission as a statutory body ensures
the Commission is a permanent body protected from political intervention and
unjustified budgetary constraints imposed to lessen its effectiveness. It must be
independent from existing federal agencies as these agencies do not have the
overarching jurisdiction, investigative powers, or breadth of profile to effectively
investigate and expose corruption.
2 The Australia Institute (2017),
National poll – support for federal ICAC, May 2017,
http://www.tai.org.au/content/support-federal-icac-poll
Principles for designing a National Integrity Commission
2
A National Integrity Commission must be given sufficient resources to fulfil its purpose.
NSW ICAC has faced funding cuts over consecutive years, resulting in the loss of 17
staff including an entire investigative team. This occurred after ICAC exposed
corruption in political donations involving ten members of the Liberal Party. The NSW
Public Service Association has said that the funding cuts are an attempt by the NSW
Government to diminish scrutiny.3 Former NSW DPP Nicholas Cowdery AM QC has
raised concerns about the resources made available to NSW ICAC and a future federal
anti-corruption commission:
NSW ICAC has been faced this year with a funding cut. It is an easy way for
government to impair the effectiveness of such a body and steps would need to
be taken to ensure that adequate resources continued to be allocated to a
national integrity commission.4
2. That the Commission has a broad jurisdiction, including the ability to
investigate any conduct of any person that adversely affects or could
adversely affect, directly or indirectly, the honest or impartial
exercise of public administration, if the Commissioner deems the
conduct to be serious or systemic.
Rationale: There are significant gaps in the jurisdiction of existing federal
accountability agencies. Parliamentarians, Ministers, parliamentary staff, and at least
half of the public sector are not currently covered by effective accountability
measures. In addition, currently no federal agency can investigate conduct of third
parties attempting to improperly and unfairly influence public administration. The
Independent Review of the Jurisdiction of NSW ICAC by the Hon Murray Gleeson AC
and Bruce McClintock SC found that:
Certain kinds of fraudulent conduct, not necessarily involving any actual or
potential wrongdoing by a public official, should be treated as corrupt conduct
where they impair or could impair confidence in public administration.5
3 Knaus (2017),
Icac weakening due to budget cuts and job losses, union and NSW Labor warn, The
Guardian, 17th July 201
7, https://www.theguardian.com/australia-news/2017/jul/17/icac-weakening-
due-to-budget-cuts-and-job-losses-union-and-nsw-labor-warn
4 Cowdery (2017),
Lessons from NSW ICAC, Conference Paper: Accountability and the Law 2017
Conference,
http://tai.org.au/content/lessons-nsw-icac-watchdog-has-teeth
5 Gleeson and McClintock (2015),
Report – Independent Panel Review of the Jurisdiction of NSW ICAC
Principles for designing a National Integrity Commission
3
3. That the Commission be granted the investigative powers of a Royal
Commission to undertake its work, to be executed at the discretion
of the Commissioner.
Rationale: Corruption and misconduct are complex forms of wrongdoing. Corruption
and misconduct are often committed by highly skilled professionals in positions of
power within a system that is both well-known to them and difficult for others to
penetrate. Corruption often occurs in networks of mutually beneficial relationships of
powerful and influential people.6 The corrupt often know how to hide their trail and
stay in front. As outlined by former Premier Nick Greiner in his second reading of the
NSW
Independent Commission Against Corruption Bill in 1988:
“… corruption is by its nature secretive and difficult to elicit. It is a crime of the
powerful. It is consensual crime, with no obvious victim willing to complain. If
the commission is to be effective, it obviously needs to be able to use the
coercive powers of a Royal commission.”7
For this reason, a National Integrity Commission must be given the investigative
powers of a Royal Commission. State based anti-corruption commissions, including
NSW ICAC and Queensland CCC, have strong investigate powers including the ability to
hold public hearings, compel evidence and witnesses, and use surveillance devices. To
ensure these powers are not used irresponsibly, oversight of the Commission can be
implemented through a parliamentary committee and an inspector as used in state
based commissions around Australia.8
The necessary investigative powers include: 9
•
Coercive powers to compel the production of documents, other evidence
and the examination of witnesses
•
Ability to enter and search premises and inspect and copy documents
•
Ability to use surveillance devices and phone intercepts
•
Own motion powers to begin investigations at the discretion of the
commissioner
•
The absence of legal professional privilege, except in instances involving
privileged communication between an Australian lawyer and a person for
6 Murray (2017),
Game of Mates: how favours bleed the nation, self-published
7 Greiner (1988), NSW Parliamentary Hansard, 26th May 1988
8 See NSW
Independent Commission Against Corruption Act 1988 and Queensland
Crime and Corruption
Act 2001
9 Prenzler (2010),
Towards a model public sector integrity agency, The Australian Journal of Public
Administration, vol. 69, no. 3, pp. 251–262
Principles for designing a National Integrity Commission
4
the purpose of providing legal advice in relation to the appearance of a
person at a hearing before the Commission
•
The ability to open hearings to the public
•
The power to immunise witnesses on terms
•
Protection to witnesses that anything said or disclosed may not be used
against them in criminal proceedings
These powers must be available to be used in an investigation at the discretion of the
Chief Commissioner, without any trigger or threshold. The Victorian IBAC has strong
investigative powers but is only able to use them once a threshold of evidence has
been met and the Commission is ‘reasonably satisfied that the conduct is serious
corrupt conduct’.10 This threshold, if applied in NSW, would have not allowed NSW
ICAC to investigate the Obeid family. Operations Jasper and Acacia, which led to Eddie
Obeid being jailed for misconduct in public office, began with an anonymous phone
call to NSW ICAC suggesting that they should look into coal licences in the Bylong
Valley.
4. That the Commission may hold a public inquiry providing it is
satisfied that opening the inquiry to the public will make the
investigation to which the inquiry relates more effective, and would
be in the public interest.11
Rationale: A National Integrity Commission will not be fully effective in exposing or
investigating corruption unless it has the ability to hold public inquiries. An important
factor to take into account when deciding to open the hearing, is whether the public
interest in opening the hearing outweighs the potential damage to a person’s
reputation. Evidence from Australian state based anti-corruption commissions show
that the ability to hold public inquiries has been critical to their success. Public
inquiries are an important investigative tool, prompting members of the public to
come forward with information that they may not have had the confidence or context
to do without a public inquiry. They are also critical to exposing corruption and
misconduct to the public, demonstrating publicly that corruption in public
10
Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s.60(2)
11 Note: this Principle is the majority position of the committee, though a minority view is ‘That the
Commission may hold a public inquiry providing it considers on reasonable grounds that opening the
inquiry to the public will make the investigation to which the inquiry relates more effective and would
not cause unreasonable damage to a person’s reputation, or be contrary to the public interest.’
Principles for designing a National Integrity Commission
5
administration is taken seriously by government and that investigations are carried out
fairly by the commission.
In the 2015 report on the review of the jurisdiction of NSW ICAC, Murray Gleeson and
Bruce McClintock observed that although public inquiries carry a risk of reputational
damage and unfairness, publicity itself is a protection against administrative excess.12
The report also noted that the Chief Commissioner is the best person to make the
decision as to whether to open the inquiry, and that this process has led to
predominantly good decisions:
The decision whether to conduct a public inquiry is an operational decision
made for the purposes of the particular investigation. It is a decision best made
by the Commissioner who is apprised of all the relevant facts and in the best
position to weigh the public interest. There has, in fact, been little criticism
brought to the Panel’s attention (with one exception) of the ICAC’s decisions to
hold public inquiries, as distinct from the manner in which such inquiries are
conducted. The exception is, of course, the decision to hold the public inquiry in
[in the matter of Margaret Mary] Cunneen. That is an insufficient basis to
recommend a change.13
Anti-corruption commissioners across Australia have recognised the power of public
hearings. SA ICAC Commissioner Bruce Lander, who is currently the only Commissioner
not able to open hearings, has made a recommendation to the SA State Government
to allow the commission to hold public hearings to ensure transparency.14 Victorian
IBAC Commissioner Stephen O’Bryan QC has said that openly examining cases of
alleged serious corruption and misconduct in public hearings has encouraged and
empowered people to come forward and report suspected wrongdoing.15 Former NSW
ICAC Assistant Commissioner Anthony Whealy QC has said “there are many people out
there in the public arena who will have information that's very important to the
investigation. If you conduct the investigation behind closed doors, they never hear of
12 Gleeson and McClintock (2015),
Report – Independent Panel Review of the Jurisdiction of NSW ICAC pp
62
13 Gleeson and McClintock (2015),
Report – Independent Panel Review of the Jurisdiction of NSW ICAC pp
60-61
14 MacLennan, 2016,
ICAC Commissioner Bruce Lander pushes for public hearings to ensure transparency,
ABC, 31st October 201
6, http://www.abc.net.au/news/2016-10-31/icac-commissioner-bruce-lander-
wants-public-hearings-in-sa/7980960
15 IBAC, 2016,
IBAC sheds light on serious corruption in its third year, Media release, 14th September
2016
, http://www.ibac.vic.gov.au/media-releases/article/ibac-shines-light-on-serious-corruption-in-its-
third-year
Principles for designing a National Integrity Commission
6
it and the valuable information they have will be lost."16 Former NSW ICAC
Commissioner David Ipp AO QC has said that “Its main function is exposing corruption;
this cannot be done without public hearings."17
Sir Anthony Mason, former Chief Justice of Australia, when discussing a possible
restraint on the public hearings of a Royal Commission said:
However, this restraint, limited though it is, seriously undermines the value of
the inquiry. It shrouds the proceedings with a cloak of secrecy; denying to them
the public character which to my mind is an essential element in public
acceptance of an inquiry of this kind and of its report. An atmosphere of
secrecy readily breeds the suspicion that the inquiry is unfair or oppressive. ….
The denial of public proceedings immediately brings in its train other
detriments. Potential witnesses …, lacking knowledge of the course of
proceedings, are less likely to come forward. And the public, kept in ignorance
of developments which it has a legitimate interest in knowing, is left to
speculate on the course of events.
… Here the ultimate worth of the Royal Commission is bound up with the
publicity that the proceedings attract and the public has a substantial and
legitimate interest in knowing what is happening before the Commissioner. 18
5. That the Commission be governed by one Chief Commissioner and
two Deputy Commissioners, appointed by the Minister on
recommendations from a bipartisan Parliamentary committee. The
Chief Commissioner is to be appointed for fixed non-renewable 5
year terms, and must be a judge or a retired judge or be qualified for
appointment as a judge.
Rationale: the appointment of one Chief Commissioner ensures efficient and fast
decision making, functional staff management, and a direct line of responsibility
16 Gerathy, 2016,
ICAC inspector calls for end to public hearings to stop ‘trashing of reputations’, ABC,
12th May 2016, http://www.abc.net.au/news/2016-05-12/icac-inspector-david-levine-calls-for-end-to-
public-hearings/7409126
17 Gerathy, 2016,
ICAC inspector calls for end to public hearings to stop ‘trashing of reputations’, ABC,
12th May 2016, http://www.abc.net.au/news/2016-05-12/icac-inspector-david-levine-calls-for-end-to-
public-hearings/7409126
18 In
Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152
CLR 25 at 97.
Principles for designing a National Integrity Commission
7
whereby the Chief Commissioner is held accountable for the proper functioning of the
Commission. Appointing Deputy Commissioners is critical to ensuring that the
commission has sufficient capacity to undertake its work. Appointment by the Minister
on recommendations from a bipartisan committee and for a fixed term ensures
political independence and freedom from fear of political retaliation.
6. That the Commission be empowered to make findings of fact, to be
referred to a well-resourced and specialised unit within the DPP for
consideration for prosecution.19
By their very nature, anti-corruption bodies are not judicial and do not exercise judicial
power. Similarly to a Royal Commission, the bodies are usually empowered to receive
information; to make findings; to report those findings; and to make recommendations
to other agencies, including prosecuting authorities, in respect of further action to be
taken arising from the information and findings.
There is a risk that corruption cases are not pursued with sufficient staff, knowledge or
skills once referrals are made to the Director of Public Prosecutions (DPP). Corruption
cases are often complex and unique, and may not be prioritised in a resource scarce
department. For this reason, it is recommended that a well-resourced and specialised
unit within the DPP is established to pursue these cases.
19 Note: this Principle is the majority position of the committee, though a minority view is ‘That the
Commission be empowered to make findings of corrupt conduct, to be included in investigation
reports and referred to a well-resourced and specialised unit within the DPP for consideration for
prosecution.’ The Hon David Ipp AO QC notes that the ability to make corrupt conduct findings are
critical to the commission’s role in exposing corruption to the public, as without the power to make
corrupt conduct findings the outcomes of investigations can become lost in long lists of specific facts
that will confuse the public and may or may not be pursued by the DPP. The dishonest implications of
the specific facts found may also be confused, and the public is left not knowing if the government
representative or public servant in question is corrupt or not.
Principles for designing a National Integrity Commission
8
