Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

Schedule 4 - Amendments relating to the Integrity Commissioner's investigative powers

In 2006, the Law Enforcement Integrity Commissioner Act 2006 (Cth) (the LEIC Act) was enacted to enhance the integrity of Commonwealth law enforcement agencies. The LEIC Act establishes the Australian Commission for Law Enforcement Integrity (ACLEI) and the position of the Integrity Commissioner and provides them with powers to prevent, detect and investigate corrupt conduct within Australian Government law enforcement agencies.

The LEIC Act provides a framework for dealing with allegations of corrupt conduct within Commonwealth law enforcement agencies. The Integrity Commissioner can investigate corrupt conduct, report on corruption issues and refer corruption issues to law enforcement agencies in appropriate circumstances. The Integrity Commissioner can recommend that criminal, civil and/or asset confiscation proceedings be brought for contraventions of Commonwealth laws by staff members of law enforcement agencies.

Schedule 4 amends the LEIC Act, to:

•

change terminology and some rules relating to the provision of information, documents or things to the Integrity Commissioner

•

allow an arrest warrant issued by the Integrity Commissioner to be executed by a nominated authorised who did not apply for the warrant

•

clarify the use of force, and what items can be seized when executing search warrants issued by the Integrity Commissioner

•

provide ACLEI with a contempt power in line with that exercisable by the Australian Crime Commission, and

•

make minor amendments to fix drafting errors in the LEIC Act.

Law Enforcement Integrity Commission Act 2006

Item 1 - Subsection 5(1)

Item 1 inserts a definition of 'constable' into section 5 of the LEIC Act. 'Constable' will be defined to mean a member or special member of the Australian Federal Police (AFP) or a member of the police force or police service of a State or Territory. The insertion and reference to the definition of 'constable' in the LEIC Act will result in members or special members of the AFP or a member of a police force or police service of a State or Territory being able to use reasonable force against persons and to take part in the search of persons when executing a search warrant under the LEIC Act.

Under section 140 of the LEIC Act, the Integrity Commissioner may provide written authorisation for a person to be an authorised officer. In order to provide the authority, the person must be a member of ACLEI or a member of the Australian Federal Police.

Under section 117 of the LEIC Act, only 'authorised officers' may use reasonable force against persons when executing a search warrant. In executing the search warrant, authorised officers may obtain assistance from 'assisting officers.' Assisting officers, who are not also 'authorised officers', are only able to use reasonable force against things (for example, to open doors). In addition, only authorised officers can take part in searching a person. 'Assisting officers' who are not also authorised officers cannot take part in the search of a person.

Members or special members of the AFP, or members of a State or Territory police force, who are trained to search persons and use force often assist authorised officers during the execution of warrants issued under the LEIC Act. Under section 117, these officers are not currently allowed to use force or take part in the search of persons, even though they would be authorised to use force or search persons when executing warrants under other legislation, including the Crimes Act 1914 (Cth).

Items 38 and 39 and 40 of this Schedule will address these anomalies, by amending section 117, to refer to 'constables' as well as 'authorised officers'.

Item 2 - Subsection 5(1)

Item 2 inserts a definition of 'Federal Court' into section 5 of the LEIC Act, to clarify that references in the LEIC Act to the Federal Court are references to the Federal Court of Australia.

Item 3 - Subsection 5(1)

Item 3 inserts a definition of 'in contempt of ACLEI' in subsection 5(1) of the LEIC Act, to have the meaning given to it by section 96A (to be inserted by Item 29 of this Schedule). Item 29 will provide ACLEI with the power to refer an uncooperative witness in an examination to a superior court to be dealt with as if the witness were in contempt of that court. Section 96A will list the LEIC Actions that will constitute contempt. The phrase 'in contempt of ACLEI' will be relevant to the new provisions inserted by Item 29.

Item 4 - Subsection 20(1) (note)

Item 4 amends the note after subsection 20(1) to a minor drafting error, replacing the word 'referred' with 'notified'. Paragraph 20(1)(a) of the LEIC Act requires the head of a law enforcement agency who has notified the Integrity Commissioner of a significant corruption issue to give to the Integrity Commissioner information and documents that relate to the corruption issue which are in the agency head's possession or control. Subsection 21(1) of the LEIC Act requires the agency head who has notified the Integrity Commissioner of a significant corruption issue to pass on relevant information of which the agency head subsequently becomes aware. The note after subsection 20(1) refers to section 21 of the LEIC Act, however uses the language of 'referred' rather than 'notified'. The amendment to the note after subsection 20(1) will create consistent references to the notification of a significant corruption issue by the head of a law enforcement agency to the Integrity Commissioner.

Item 5 - Section 21 (heading)

Item 5 amends the heading to section 21, to correct a minor drafting error, replacing the word 'referred' with 'notified'. Subsection 21(1) of the LEIC Act requires the agency head who has notified the Integrity Commissioner of a significant corruption issue to pass on relevant information of which the agency head subsequently becomes aware. However, the heading to section 21 is currently 'Law enforcement agency head to pass on new information in relation to corruption issue already referred'. The amendment to the heading to section 21 will create consistent references to the notification of a significant corruption issue by the head of a law enforcement agency to the Integrity Commissioner.

Item 6 - Part 8 (heading)

Item 6 amends the heading of Part 8 of the LEIC Act, from 'Public Inquiries into corruption issues' to 'Public Inquiries by Integrity Commissioner'. This more accurately reflects the broader context of Part 8 of the LEIC Act, which covers not only public inquiries by the Integrity Commissioner into a specific corruption issue or issues within a law enforcement agency (subsection 71(a)), but also public inquiries into issues about corruption generally in law enforcement agencies (subsection 71(b)) as well as public inquiries into the integrity of staff members of law enforcement agencies (subsection 71(c))

Item 7 - Subdivision A of Division 1 of Part 9 (heading)

Item 7 amends the heading to Subdivision A of Division 1, Part 9 of the LEIC Act, from 'Requests by Integrity Commissioner' to 'Notices to give information or to produce documents or things'. This heading more accurately reflects the terminology to be used in sections 75 to 77 of the Subdivision, as they will be amended by items 8 and 9 of this Bill. Item 10 inserts new sections 77A and 77B, which will also refer to 'notices' rather than 'requests'.

The change in terminology reflects the mandatory nature of the Integrity Commissioner's 'request' to produce information, documents or things. A person to whom a request is made must comply with that request, and it is an offence under section 78 of the LEIC Act to fail to comply with the request. The change in terminology will also bring the LEIC Act in line with other legislation, such as the Australian Crime Commission Act 2002 and the Ombudsman Act 1976 , which refer to notices to produce.

Item 8 - Sections 75 and 76

Item 8 repeals section 75 and enacts a new section 75, which does not distinguish between notices to produce issued to staff members of law enforcement agencies and notices to produce issued to other persons. This differs from current sections 75 and 76 of the LEIC Act, which separately provide the Integrity Commissioner with the power to request information, documents or things from staff members of law enforcement agencies, and the power to request information, documents or things from other persons. There are different requirements for requests to staff members of law enforcement agencies from those made to other persons.

Item 8 also repeals section 76 and replaces it with a new section 76, which sets out the requirements for compliance with a notice to produce served under the new section 75.

Section 75

Section 75 will provide the same requirements for the issue and service of a notice to produce, regardless of on whom the notices are served.

Subsection 75(1) empowers the Integrity Commissioner to issue a notice to produce to any person, requiring him or her to give information and/or produce documents or things specified in the notice. This means that the Integrity Commissioner is only required to issue one notice to obtain, information, documents or things. In order to issue the notice, the Integrity Commissioner must have reasonable grounds to suspect that the information, documents or things will be relevant to the investigation. This threshold is an appropriate safeguard for the use by the Integrity Commissioner of coercive powers. The threshold is one of suspicion, rather than belief because of the investigative nature of ACLEI's functions. For example, in the course of giving evidence at a hearing, a witness may state that an associate may also be able to give evidence relevant to the corruption investigation, however the witness cannot state with any certainty whether this is the case. Alternatively, an informant might advise that documents formerly in her possession have been passed to someone else, however she is unable to confirm whether the documents are still in existence. The threshold of suspicion will enable the Integrity Commissioner to issue a notice on other persons to, for example, produce the relevant documents, without needing to form a reasonable belief that they still exist.

Subsection 75(2) allows the Integrity Commissioner to require information the subject of a notice to be provided in writing. Under existing subsection 76(4) of the LEIC Act, persons other than staff members of law enforcement agencies, are obliged to provide the information requested by the Integrity Commissioner in writing. No such obligation is imposed on staff members of law enforcement agencies under existing paragraph 75(1)(a). The inclusion of one section, applying to all persons served with a notice to produce, removes any distinction and provides the Integrity Commissioner with the discretion to require that the information be provided orally.

Subsection 75(3) states that the notice to produce must:

•

be served on a person

•

be signed by the Integrity Commissioner, and

•

specify the period within which and the manner in which the person must comply with the notice.

Specifying the manner in which a person must comply with the notice will, amongst other matters, allow the Integrity Commissioner to state that the information, documents or things sought in the notice may be delivered to an ACLEI officer other than the Integrity Commissioner. This will eliminate delays where the Integrity Commissioner is required to forward information documents or things to where the investigation is taking place.

The period for compliance which must be specified in the notice to produce will apply equally to both staff members of law enforcement agencies and other persons. Under subsection 75(4), the Integrity Commissioner will need to specify a time to comply with the notice that is at least 14 days after service on the person of the notice, unless the Integrity Commissioner considers that allowing 14 days to comply with the notice would significantly prejudice the investigation. Circumstances where permitting the full statutory time would prejudice an investigation may include time-critical investigations or a risk that the material sought under the notice will be altered or destroyed.

If the Integrity Commissioner specifies a time to comply with the notice that is less than 14 days, subsection 75(5) requires the Integrity Commissioner to record in writing the name of the corruption investigation that would be prejudiced and why a 14 day period would prejudice the investigation. A written record of the name of the corruption investigation and why it would be prejudiced will only be for the purposes of ACLEI's internal audits and external oversight by the Commonwealth Ombudsman or Attorney General. If a person was given reasons why an investigation would be prejudiced, this might in itself prejudice the investigation, by putting them on notice of the sensitivities of the investigation.

Subsection 75(6) clarifies that the Integrity Commissioner may serve a notice to produce on a person without holding a hearing. In this way, the notice to produce is different to a summons issued under section 83 of the LEIC Act, which will only be issued in relation to a hearing.

Section 76

New subsection 76(1) provides that a person served with a notice under section 75 must comply with the notice within the time specified in the notice or within such further time as the Integrity Commissioner allows.

Subsection 76(2) allows any person served with a notice to write to the Integrity Commissioner for further time to comply with the notice. The application for an extension would have to be made within the timeframe specified for compliance with the notice or within a reasonable time after the notice was to be complied with.

Under subsection 76(3), the Integrity Commissioner may allow further time to someone who has sought additional time, whether or not the person has made an application under subsection 76(2). The Integrity Commissioner will also be able to extend the time on his or her own accord within a reasonable time. There will be limited circumstances where the Integrity Commissioner might wish to grant an extension of time to someone who has not made a written application for extension. These include where the Integrity Commissioner is aware that a person is incapable of making a written application for an extension or where the Integrity Commissioner determines that the material is no longer urgently required because the investigation is moving from a covert to an overt phase, or because certain investigative activities have been delayed.

Under subsection 76(4), the Integrity Commissioner will be required to provide written acknowledgement to a person confirming that they have given all information, documents or things specified in a notice to produce. This acknowledgement will be provided to a person who has provided all information, documents or things specified in a notice to produce whether or not they have provided the information within the time specified in the notice or such further time as the Integrity Commissioner has allowed.

A person who produces all specified information, documents or things within the time frame specified in the notice or such further time as the Integrity Commissioner has allowed under subsection 76(3) will have complied with the notice. As non-compliance with a notice to produce is an offence (see section 78, to be inserted by item 11 of this Schedule), it is important that a person served with a notice has written proof that he or she has complied with the notice. The written acknowledgement provided by the Integrity Commissioner will contain the date of service of the notice to produce and the date of production of the last of the specified information, documents or things, as proof of compliance.

The obligation to provide an acknowledgement will apply to all situations where information is provided under a notice to produce, whether in writing or orally.

In accordance with the non-disclosure regime for notices to produce to be inserted by Item 10 of this Schedule, the Integrity Commissioner will be empowered to issue a notice prohibiting the disclosure of a record of compliance with a notice to produce.

Item 9 - Subsection 77(1)

Item 9 amends subsection 77(1) of the LEIC Act, to remove the reference 'to the Integrity Commissioner in accordance with a request under section 75 and 76' and replace it with 'in accordance with a notice under section 75'. This amendment reflects the changes made to sections 75 and 76 by item 8, and in particular:

•

the change in terminology, from a 'request' to a particular class of persons, to a 'notice to give information or to produce document or thing,' and

•

removal of any requirement for the information, documents or things to be provided directly to the Integrity Commissioner.

The amendment does not affect the Integrity Commissioner's powers to take possession, make copies, take extracts, retain possession and allow inspection of a document or thing.

Item 10 - After Subdivision A of Division 1 of Part 9

Item 10 inserts a new Subdivision AA into Division 1 of Part 9 of the LEIC Act.

The heading of the new Subdivision is 'Prohibitions against disclosing information about notices.' The Subdivision will introduce a non-disclosure regime in relation to notices to produce which have been issued pursuant to sections 75 of the LEIC Act, to ensure that the Integrity Commissioner can effectively control the disclosure of sensitive information. These amendments are necessary as disclosure of a notice to produce, or of the nature of the material sought in the notice, can severely undermine an investigation.

The non-disclosure regime in relation to notices to produce is consistent with the non-disclosure regime in sections 91 and 92 of the LEIC Act, in relation to summonses served under section 83 of the LEIC Act.

Section 77A

Subsection 77A(1) provides that section 77A which deals with the prohibition on disclosing notices to produce, applies to notices which have been served under section 75 of the LEIC Act (as inserted by item 8 of this Schedule).

Subsection 77A(2) allows the Integrity Commissioner to include a notation in the notice to produce, prohibiting disclosure of information about the notice or any official matter connected with the notice. Section 5 of the LEIC Act defines an official matter as a past, present or contingent corruption investigation, hearing held by the Integrity Commissioner or a special investigator in relation to a corruption investigation or court proceedings. The Integrity Commissioner may specify in the notation exceptions to the prohibition on disclosure. For example, it may be necessary for a person served with a notice to consult with others in order to comply with the notice. The Integrity Commissioner may specify to whom or in what circumstances a person served with a notice may disclose information about the notice.

Alternatively a notice to produce may simply prohibit disclosure of the information about the notice or any official matter connected with it, without specifying any exceptions to the prohibition.

Under subsection 77A(3), the Integrity Commissioner must prohibit disclosure where disclosure would reasonably be expected to prejudice:

•

a person's safety or reputation

•

the fair trial of a person who has been, or may be, charged with an offence, or

•

the investigation of corruption or any action taken as a result of the investigation.

For example, the Integrity Commissioner's investigation of a corruption issue may involve links to serious and organised crime. The Integrity Commissioner may have reliable information that an individual will be personally at risk if their involvement with an investigation by the Integrity Commissioner becomes public knowledge. This individual may be the recipient of the notice, or may be a third party whose actions are the subject of the notice and of the documents or information sought. In such a situation it is appropriate that the Integrity Commissioner is required to prevent disclosure of the notice and any matters relating to it to protect the safety of that individual and also give the recipient of the notice the confidence to provide full and open disclosure to the Integrity Commissioner.

Under subsection 77A(4), the Integrity Commissioner may prohibit disclosure if satisfied that failure to do so might be contrary to the public interest or might prejudice:

•

a person's safety or reputation

•

the fair trial of a person who has been, or may be, charged with an offence, or

•

the investigation of corruption or any action taken as a result of the investigation.

For example, the Integrity Commissioner may prohibit disclosure of information under subsection 77A(4) where there has been no reported threat to the safety or reputation of an individual but where the risk to their safety or reputation is a foreseeable consequence of disclosure.

There may also be public interest reasons for prohibitions on disclosure of information under subsection 77A(4). The Integrity Commissioner may be presented with serious but unsubstantiated allegations and it would not be in the public interest for such allegations to be made public at an early stage of the investigation as it may negatively and unfairly impact upon public perception of, and faith in, law enforcement. This could affect the ability of law enforcement to carry out their vital role in protecting national and individual security.

Under subsection 77A(5) there are no other circumstances where the Integrity Commissioner can include a notation which would prohibit disclosure of the notice to produce or any official matter connected with the notice.

Subsection 77A(6) provides that any notification under subsection 77A(2) must be accompanied with a written statement setting out the rights and obligations conferred or imposed on the person served with the notice by section 77B (as inserted by this item). This item will also insert section 77B into the LEIC Act. Section 77B creates offences for disclosing the existence of the notice or any official matter connected with it.

Subsection 77A(7) specifies that a notification under subsection 77A(2) is cancelled if, as a result of a concluded investigation relating to the notice, criminal proceedings or civil penalty proceedings are commenced.

Under subsection 77A(8), cancellation of the notice in accordance with subsection 77A(8) must be communicated in writing by the Integrity Commissioner to the person served with the notice. As it is an offence under subsection 77B to disclose information that is the subject of a notification under subsection 77A(2), it is essential that a person be made aware when their obligations of non-disclosure have ceased.

Subsection 77A(9) confirms that a credit reporting agency (being a corporation that carries on a credit reporting business) must not make a note on a person's file about a notice to produce information, documents or things to the Integrity Commissioner until a non-disclosure notification has been cancelled. Item 52 separately amends the note to subsection 18K(5) of the Privacy Act 1988 . This amendment provides that a credit reporting agency must not keep a note on a person's file about a notice to produce issued to that person if the notice to produce includes a notation that information about it is not to be disclosed.

This will ensure that notices to produce served under section 75 of the LEIC Act are treated the same as summonses served under section 83 by virtue of subsection 18K(5) of the Privacy Act.

Section 77B

Under subsection 77B(1), it will be an offence to disclose the existence of the notice or any official matter connected with a notice, which includes a non-disclosure notation which has not been cancelled. The offence applies to a person who discloses the existence of the notice or an official matter connected with the notice within five years of service of the notice. The penalty for the offence is twelve months imprisonment.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution would need to prove, beyond reasonable doubt that:

•

a person was reckless as to the circumstance of service on them of a notice to produce

•

the person was reckless as to the whether the notice included a notation under section 77A of the LEIC Act

•

the person intended to disclose the existence of, or any information about, the notice or any official matter connected with the notice

•

the person was reckless as to whether the disclosure had not been cancelled by subsection 77A(7) of the LEIC Act

•

the person was reckless as to whether the notice had been served within the last five years.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware that the circumstance exists or will exist, and having regard to the circumstances know to him or her, it is unjustifiable to take that risk.

Under subsection 77B(2), disclosure is allowed:

•

to a legal practitioner to obtain legal advice or representation in relation to the notice

•

to a legal aid officer for the purposes of obtaining legal assistance relating to compliance with the notice

•

if the person is a body corporate-to an officer or agent of the body corporate to ensure compliance with the notice, or

•

if the person is a legal practitioner-to obtain the agreement of another person to disclose information sought in the notice which is covered by legal professional privilege.

A defendant will bear the evidential burden of proving one or more of the circumstances in subsection 77B(2) as a defence to the charge. An evidential burden is appropriate because it is peculiarly within the knowledge of the defendant whether the existence or any official matter connected with the notice has been disclosed to others because of the circumstances listed in subsection 77B(2). For example, the fact that a defendant which is a body corporate passes on information to an agent of the body corporate about a notice, in order to ensure compliance with the notice will not be information that is readily apparent to those prosecuting the charge, but will be known to the body corporate. Once the defendant has satisfied the evidential burden, the prosecution will then have to refute the defence beyond reasonable doubt.

Subsection 77B(3) makes it an offence for a legal practitioner, legal aid officer, officer or agent of a body corporate who has been advised of the existence of a notice, or an official matter connected with a notice which includes a non-disclosure notation which has not been cancelled, to themselves disclose, while still in their position, that information to another person within five years after the notice was served. The penalty for the offence is twelve months imprisonment.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution would need to prove, beyond reasonable doubt that:

•

a person was reckless as to the circumstances of disclosure to that person about a notice or any official matter connected with a notice to produce that includes a notation under section 77A of the LEIC Act

•

the person was reckless as to whether disclosure was permitted to be made to the person because the person was a legal practitioner, legal aid officer, officer or agent of a body corporate

•

while the person was a legal practitioner, legal aid officer, officer or agent of a body corporate, the person intended to disclose the existence of, or any information about the notice or any official matter connected with it,

•

the person was reckless as to whether the disclosure had not been cancelled by subsection 77A(7) of the LEIC Act, and

•

the person was reckless as to whether the notice had been served within the last five years.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware that the circumstance exists or will exist, and having regard to the circumstances know to him or her, it is unjustifiable to take that risk.

Under subsection 77B(4), legal professionals and officers and agents of a body corporate with secondary knowledge of the notice have a defence to the offence provision if they themselves disclose the existence of the notice or official matter connected with it because the information is shared:

•

with another officer or agent of the body corporate for the purpose of ensuring compliance with the notice

•

for the purpose of obtaining or giving legal advice or representation in relation to the notice, or

•

for the purpose of seeking legal and financial assistance from the Attorney General under section 221 of the LEIC Act, in relation to an application for administrative review

This defence ensures that legal professionals can do all things appropriate and necessary in order to properly advise a person served with a notice to produce and ensures that officers and agents of a body corporate do all things necessary to assist a person to comply with the notice.

Any legal practitioner, legal aid officer or an officer or agents of a body corporate who has been charged with disclosing information about a notice under subsection 77B(3) bears the evidential burden of proving that one or more of the circumstances described in subsection 77B(4) was present. An evidential burden is appropriate in this case as the fact that the information has been shared for one of the purposes listed in subsection 77B(4) will be peculiarly within the knowledge of the defendant. Once the defendant has satisfied the evidential burden, the prosecution will then have to refute the defence beyond reasonable doubt.

Under subsection 77B(5) it is also an offence for a legal practitioner, legal aid officer or officer or agent of a body corporate to make a record or disclose the existence of the notice, or any information about a notice which includes a non-disclosure notation which has not been cancelled, after the person ceases to act in that role, and within five years of the service of the notice in question. The penalty for the offence is twelve months imprisonment.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution would need to prove, beyond reasonable doubt that:

•

a person was reckless as to the circumstances of disclosure to that person about a notice or any official matter connected with a notice to produce that includes a notation under section 77A of the LEIC Act

•

the person was reckless as to whether disclosure was permitted to be made to the person because the person is a legal practitioner, legal aid officer, officer or agent of a body corporate

•

when the person is no longer a legal practitioner, legal aid officer, officer or agent of a body corporate, the person intended to make a record of the notice, disclose the existence of the notice or disclose any information about the notice or the existence of it.

•

the person was reckless as to whether the disclosure had not been cancelled by subsection 77A(7) of the LEIC Act, and

•

the person was reckless as to whether the notice had been served within the last five years.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware that the circumstance exists or will exist, and having regard to the circumstances know to him or her, it is unjustifiable to take that risk.

Subsection 77B(6) clarifies that for the purposes of the offences in section, disclosing the existence of the notice includes disclosing information from which a person could reasonably be expected to infer its existence. For example, it would be likely that a person who advised a friend that they had been required to provide documents to the Integrity Commissioner, without reference to the notice would still be considered as disclosing the existence of a notice to produce.

Section 77B will apply the same offences for disclosure of a notice to produce that already exist under section 92 for the disclosure of the details of a summons.

Item 11 - Section 78

Section 78 of the LEIC Act makes it an offence for a person to fail to comply with the Integrity Commissioner's 'request' to produce information, documents or things. The penalty for the current offence is two years imprisonment.

Item 11 will repeal and replace section 78, to include an offence for a person who has been served with a notice to produce to fail to comply with the notice within:

•

the time specified in the notice, or

•

such further time as the Integrity Commissioner has allowed under subsection 76(3) (to be inserted by item 8 of this Schedule).

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution would need to prove, beyond reasonable doubt that:

•

a person was reckless as to the circumstance of service on them of a notice to produce, and

•

the person intended to fail to comply with the notice within the period specified or allowed by the Integrity Commissioner.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware that the circumstance exists or will exist, and having regard to the circumstances know to him or her, it is unjustifiable to take that risk.

The new section 78 is different to the previous section 78 in the following respects:

•

It changes the terminology from 'request under section 75 to 76' to 'notice under section 75' in accordance with the changes made by item 8 of this Schedule,

•

It will add as grounds for the offence, a failure to comply with the notice in the time specified on the notice, or such further time as the Integrity Commissioner has allowed, to factor in the new provisions providing timeframes and extensions as per item 8,

•

It will include a new subsection 78(2), which creates a defence to the offence, where it is not reasonably practicable for a person to comply with the notice within the timeframe specified on the notice or within such further timeframe as the Integrity Commissioner has allowed.

In a prosecution for failing to comply with a notice to produce, the evidential burden will be on the defendant to show why it was not reasonably practicable to comply in the time allowed. An evidential burden is appropriate as the reasons why it was not reasonably practicable to comply with the notice with the timeframe specified or as extended by the Integrity Commissioner will be peculiarly within the knowledge of the defendant. Once the defendant has satisfied the evidential burden, the prosecution would then have to refute beyond reasonable doubt that it was not reasonably practicable to comply with the notice.

Item 12 - Paragraphs 79(1)(a) and (b)

Item 12 removes references to the Integrity Commissioner from paragraphs 79(1)(a) and (b) of the LEIC Act. Subsection 79(1) of the LEIC Act currently allows a legal practitioner to rely on a claim of legal professional privilege when refusing to give information or produce a document or thing to the Integrity Commissioner. Removal of references to the Integrity Commissioner is consistent with the amendments made by items 8 and 9 of this Schedule, which remove the requirement that the information, documents or things are to be provided directly to the Integrity Commissioner.

Item 13 - Subsection 79(1)

Item 13 amends subsection 79(1) to change the reference from 'requested to do so under section 76', to 'served with a notice to so under section 75'. This is consistent with the changes to the terminology in section 75 of the LEIC Act made by item 8 of this Schedule to reflect the mandatory nature of a request to produce information, documents or things.

Item 14 - Subsection 79(5)

Item 14 will repeal subsection 79(5) and replace it with an express provision which will remove any implication that legal professional privilege has been waived when the information, document or things are produced.

Subsection 79(3) of the LEIC Act allows a legal practitioner to disclose information or produce documents or things that are subject to legal professional privilege if the person to whom the communication was made agrees to the disclosure or production. Subsection 79(5) currently states that section 79 does not affect the law relating to legal professional privilege.

Under subsection 80(5), there are certain things that a person can be compelled to provide on public interest grounds. However, subsection 80(6) allows a person to make a claim of legal professional privilege over those documents. Subsection 80(6) therefore protects, to the extent possible, the disclosure to third parties of public interest documents which are subject to legal professional privilege. No such protection currently exists for documents which are disclosed following an agreement under subsection 79(3).

Proposed subsection 79(5) will expressly prevent ACLEI from sharing the privileged information or documents with any other party. New subsection 79(5) will further clarify that provision of the information, documents or things will not affect a claim for legal professional privilege that anyone might make in relation to the information, documents or things. It will therefore also allow a person or their legal practitioner to claim or continue to claim privilege over the documents in other proceedings.

A person may refuse to provide information, documents or things if privilege is waived when the documents are produced. An express provision protecting legal professional privilege over information documents or things provided is designed to encourage persons to provide information, documents or things that to the Integrity Commissioner or officers of ACLEI, even if they would otherwise not be compelled to provide them.

Item 15 - Subsection 80(1)

Subsection 80(1) of the LEIC Act refers to a person being requested to give information or produce a document or thing under section 75 or 76 of the LEIC Act. Item 15 amends the reference in that subsection from 'requested to do so under section 75 or 76' to 'served with a notice to do so under section 75'. This is consistent with the changes to the terminology made by items 8 of this Schedule to reflect the mandatory nature of a request to produce information, documents or things.

Item 16 - Subsection 80(2)

Item 16 repeals subsection 80(2) of the LEIC Act, which currently requires a person to expressly claim that giving information or producing a document or thing might tend to incriminate them or expose them to a penalty before the information, document or thing will be inadmissible in evidence against the person in criminal proceedings. The protection against self-incrimination must currently be claimed before the giving of any information or production of every document or thing which may incriminate the person. This can result in inconsistent claims against self-incrimination, and impact on the timeliness of production of information, documents or things, particularly where a person is confused about how the process works.

Subsection 80(1) provides that a person who is served with a notice to produce is not excused from giving information or producing a document or thing on the grounds that doing so would tend to incriminate the person or expose the person to a penalty. The repeal of subsection 80(2) will mean that, while a person is still obliged to give information or produce incriminating documents or things, they will automatically be protected by subsection 80(4) from the use of that incriminating evidence in criminal proceedings or any other proceedings for the imposition or recovery of a penalty. The person will no longer be required to make an express claim of privilege against self-incrimination before the use immunity applies. This is consistent with the majority of other legislation providing privilege against self- incrimination.

Item 17 - Subsection 80(5)

Subsection 80(5) of the LEIC Act refers to a person being requested to give information or produce a document or thing under section 75 or 76 of the LEIC Act. Item 17 amends the reference in subsection 80(5) from 'requested to do so under section 75 or 76' to 'served with a notice to do so under section 75'. This is consistent with the changes to the terminology made by items 8 of this Schedule to reflect the mandatory nature of a request to produce information, documents or things.

Item 18 - Subsection 80(7)

Subsection 80(7) refers to a person being required to give information, or produce a document or thing under section 75 or 76. Item 18 amends subsection 80(7), to remove reference to section 76. This reflects the amendments which will be made to the LEIC Act by the insertion of section 75 by item 8 of this Schedule. Section 75 does not distinguish between notices to produce issued to staff members of law enforcement agencies and notices to produce issued to other persons.

Item 19 - Subsections 81(1) and (2)

Section 81 of the LEIC Act sets out the protections that are available to persons required to give information or produce documents or things to the Integrity Commissioner. Item 19 amends references in subsections 81(1) and 81(2) from 'to the Integrity Commissioner in response to a request under section 75 or 76' to 'in response to a notice served on the person under section 75.' This is consistent with the changes made by items 8 of this Schedule which:

•

change the terminology, from a request to a particular class of persons, to a 'notice to give information or to produce document or thing,'

•

create one section which does not distinguish between notices to produce issued to staff members of law enforcement agencies and notices to produce issued to other persons, and

•

remove the requirement that the information, documents or things be provided directly to the Integrity Commissioner.

Item 20 - Subsection 82(3)

Item 20 amends subsection 82(3), to correct a minor technical drafting error. The words of subsection 82(3) will be amended, from 'investigation of corruption issue' to 'investigation of a corruption issue.'

Item 21 - Subsection 83(1)

Subsection 83(1) allows the Integrity Commissioner to summons a person to attend a hearing to give evidence or to produce documents or things specified in the summons. Items 21 amends subsection 83(1) to clarify that the summons may require a person to give evidence and/or produce documents or things. This means that only one summons is required when the Integrity Commissioner is seeking that a person give evidence as well as produce documents or things.

Item 22 - Paragraph 83(1)(a)

Subsection 83(1) allows the Integrity Commissioner to summons a person to attend a hearing to give evidence or to produce documents or things specified in the summons. Item 22 amends paragraph 83(1)(a), to clarify that the summons may require a person to give evidence and/or produce documents or things. This means that only one summons is required when the Integrity Commissioner is seeking the person give evidence as well as produce documents or things.

Item 23 - Paragraph 83(1)(b)

Item 23 amends subsection 83(1) of the LEIC Act, to include a threshold of belief necessary before a summons can be issued. Currently, there is no threshold that the Integrity Commissioner must reach before a summons can be issued. The amendment will provide that a summons can only be issued where the Integrity Commissioner has reasonable grounds to suspect that the evidence or document or things which the person has been summonsed to give or produce will be relevant to the investigation or a corruption issue or the conduct of a public inquiry'. This threshold of reasonable suspicion is appropriate, given the nature of ACLEI investigative functions, and is consistent with amendments made by item 8 of this Schedule.

Item 24 - Subsection 90(2)

Item 24 amends subsection 90(2), to correct a minor technical drafting error. The words of subsection 90(2) will be amended, from 'give a such a direction' to 'give such a direction.'

Item 25 - Paragraph 92(2)(e)

Item 25 will correct a minor technical error in paragraph 95(2)(e), by replacing reference to paragraph 95(2) with paragraph 95(3).

Subsection 92(1) of the LEIC Act makes it an offence for a person to disclose the existence or information about a summons which contains a non-disclosure notation. Under paragraph 92(2)(e) it is a defence to such an offence if the person is a legal practitioner and has made the disclosure for the purpose of obtaining another person's agreement under subsection 95(2) to the legal practitioner answering a question or producing a document or thing at the hearing. However, subsection 95(2) does not make reference to any agreement between a legal practitioner and another person in relating to answering questions or producing documents or things. Subsection 95(3) refers to the agreement that the legal practitioner answers the question or produce the document or thing.

Item 26 - Subsection 95(5)

Subsection 95(3) of the LEIC Act allows a legal practitioner to answer a question or produce a document or thing that is subject to legal professional privilege if the person to whom the communication was made agrees to the answer or production. Subsection 95(5) currently states that section 95 does not affect the law relating to legal professional privilege.

Under subsection 96(5), there are certain communications that a person can be compelled to provide on public interest grounds. However, subsection 96(6) allows a person to make a claim of legal professional privilege over those things. Subsection 90(6) therefore protects, to the extent possible, the disclosure to third parties of public interest documents or communications which are subject to legal professional privilege. No such protection currently exists for documents which are disclosed following an agreement under subsection 79(3).

Item 26 will repeal subsection 95(5) and replace it with an express provision which will remove any implication that legal professional privilege has been waived when the answer is given or document or things are produced. This express provision will prevent ACLEI from sharing the privileged answer, documents or thing with any other party. The new subsection will further clarify that provision of the privileged answer, documents or thing will not affect a claim for legal professional privilege that anyone might otherwise make in relation to the answer, document or thing. It will therefore also allow a person or their legal practitioner to claim or continue to claim privilege over the documents in other proceedings.

A person may refuse to allow their solicitor to answer a question or provide documents or things to the Integrity Commissioner, if they believe that privilege will be waived when the answer is given or documents are produced. An express provision protecting legal professional privilege over answers, documents or things provided to the Integrity Commissioner in response to a summons is designed to encourage persons to share with ACLEI information documents or things that they would otherwise not be compelled to provide.

Item 27 - Subsection 96(2)

Item 27 will repeal subsection 96(2) of the LEIC Act, which currently requires a person to expressly claim that answering a question or producing a document or thing might tend to incriminate them or expose them to a penalty before the answer, document or thing will be inadmissible in evidence against the person in criminal proceedings. The protection against self-incrimination must currently be claimed in relation to every question, or before the production of every document or thing, which may incriminate the person. This can severely disrupt a hearing if a claim has to be made repeatedly or if a person is confused about how the process works.

Subsection 96(1) provides that a person who is summonsed to appear at a hearing before the Integrity Commissioner is not excused from answering a question or producing a document or thing on the grounds that doing so would tend to incriminate the person or expose the person to a penalty. The repeal of subsection 96(2) will mean that while a person is still obliged to answer or produce incriminating questions or documents, subsection 96(4) would automatically protect them from the use of that incriminating evidence in criminal proceedings or any other proceedings for the imposition or recovery of a penalty. The person will no longer have to make an express claim of privilege against self-incrimination before the use immunity applies. This is consistent with the majority of other legislation providing privilege against self-incrimination.

Despite the use immunity applied by subsection 96(4), documents or things could still be used in evidence to prove that the witness had committed an offence in relation to the examination or to the requirement to produce (for example giving a false or misleading answer or refusing to answer a question) and in proceedings for the confiscation of proceeds of crime.

Item 28 - Paragraph 96(4)(c)

Item 28 amends paragraph 96(4)(c) to include proceedings for an offence against section 77C and section 92 as an exception to the 'use immunity rule' when answering questions or producing documents or things to the Integrity Commissioner.

Currently, subsection 96(1) provides that a person who is summonsed to appear at a hearing before the Integrity Commissioner is not excused from answering a question or producing a document or thing on the grounds that doing so could incriminate the person or expose the person to a penalty. The repeal of subsection 96(2) by item 27 of this Schedule will result in a use immunity applying in relation to all answers given at an examination, and any document or thing produced, if the answer or production would tend to incriminate them or expose them to a penalty.

However, there are certain proceedings outlined in subsection 96(4) where the use immunity does not apply. These include proceedings for an offence under section 93 of the LEIC Act (offences- attendance at hearings etc).

Under section 77A (to be inserted by item 10 of this Schedule) and existing section 91 of the LEIC Act, the Integrity Commissioner may include a notation in, respectively, a notice to produce and a summons, requiring a person not to disclose information about the notice to produce or summons. It will be an offence under the new section 77B (also to be inserted by item 10 of this Schedule) and existing section 92 if the person discloses such information. Offences under section 77C and section 92 are currently not listed in subsection 96(4) as proceedings for which a 'use immunity' does not apply.

At hearings where a summons including a non-disclosure notation has been issued, the Integrity Commissioner will ask a person whether he or she has disclosed any information about the summons. If a use immunity applies to the answer given by the person to that question, the person could not technically be proceeded against for any disclosure of information about the summons. This frustrates the operation of the notation in a summons requiring a person not disclose information about the summons.

It is also conceivable that a person would be asked at a hearing whether they have disclosed any information about a notice to produce served on them under section 75. Again, if the use immunity applies to the answer given by the person to this question, the person could not be proceeded against for any disclosure which is contrary to a notation included in the notice to produce.

The amendment to paragraph 96(4)(c) will ensure that an answer given to the Integrity Commissioner that a person has disclosed information about a notice to produce or summons issued by the Integrity Commissioner will be admissible in evidence against the person in criminal proceedings brought under sections 77B or 92 of the LEIC Act.

Item 29 - After Subdivision E of Division 2 of Part 9

Item 29 inserts new sections 96A-96F into the LEIC Act relating to contempt of ACLEI. These provisions will enable the Integrity Commissioner to refer a witness who is not cooperating with an ACLEI hearing to a court to be dealt with as if the person was in contempt of that court. These provisions will mirror the amendments made to the Australian Crime Commission Act 2002 (ACC Act) as a result of the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 .

The Integrity Commissioner has access to coercive information gathering powers. In particular, section 29 provides the Integrity Commissioner with the power to summons witnesses to attend a hearing to give evidence or to produce such documents or other things, as outlined in the summons. Section 75 provides the Integrity Commissioner with the power to require persons to produce a document or thing.

Process for dealing with an uncooperative witness

The LEIC Act contains a number of criminal offences aimed at ensuring that a person issued with a notice or summons complies with that notice or summons. These offences target:

•

failing to attend a hearing (subsection 93(1))

•

failing to take an oath or affirmation or answer a question (subsection 93(2))

•

failing to produce a document or thing (subsection 93(4))

•

insulting, disturbing or using insulting language towards the Integrity Commissioner, while performing his/her functions or his/her exercising powers as Integrity Commissioner (subsection 94(1))

These offences are punishable by up to two years imprisonment or a fine not exceeding 24 penalty units.

A hearing may occur at an early or critical stage of an investigation into a corruption issue or a public enquiry. As such, it is crucial that the Integrity Commissioner is able to obtain the information it is seeking at that stage.

There are two issues currently hindering ACLEI from obtaining the information it requires. Firstly, there is no immediate threat of detention in relation to the offences in section 93 and section 94. If a person is summonsed to appear as a witness and attends the hearing but refuses to cooperate, the matter is referred to the Commonwealth Director of Public Prosecutions and the prosecution proceeds by way of summons. It is not possible to arrest a witness for the offences in accordance with the requirements of the Crimes Act.

Secondly, ACLEI investigations are often compromised by the delay in the commencement of court proceedings. It can often take a long time before a matter is brought before a court and even longer before the court is able to deal with the matter. Witnesses have been prepared to not cooperate with examiners, knowing that no penalty will be imposed for at least 12-18 months. Witnesses are aware that they may also be able to avoid criminal conviction (and therefore any penalty) by eventually agreeing to give evidence prior to the completion of the criminal process knowing that the evidence will have lost its value to the investigation/public enquiry by that stage. By delaying when information is provided, a witness is able to effectively delay and frustrate the operation of an ACLEI investigation.

Rationale for changes

This item will mirror the contempt provisions in the ACC Act which provide an examiner with the power to refer uncooperative witness to a superior court to be dealt with as if the witness was in contempt of that court. It will also bring ACLEI into line with various State bodies, such as the NSW Police Integrity Commission, the Queensland Crime and Misconduct Commission and the Western Australian Corruption and Crime Commission, who exercise coercive investigative powers comparable to ACLEI and who currently have a contempt procedure.

Traditionally, criminal contempt of court is a summary process available in superior courts to deal with actions by parties seeking to frustrate the operation of the court. Contempt proceedings are criminal in nature and the standard of proof to be applied is 'beyond reasonable doubt.' The amendments allow the Integrity Commissioner to refer contempt matters to the Supreme Court, rather than providing the Integrity Commissioner with the power to independently exercise a contempt jurisdiction. ACLEI would not deal with the person for contempt and the Supreme Court has full control of the hearing of the allegation from the time the person is brought before that court. This process has been available to the ACC since 2010 and the State agencies for some time and those agencies use the power to cite for contempt sparingly with the threat of action often being all that is necessary to secure compliance.

ACLEI, which investigates allegations of corruption by members of the ACC, should have at least the same powers as that body. An example to illustrate this point is set out below.

An ACC examiner summonses a crucial witness to give evidence relating to an organised crime syndicate. During the course of the hearing, the witness gives evidence suggesting that the syndicate's activities include alleged bribes made to staff member/s of the ACC. The witness is required to give evidence before the ACC, under threat of citation for contempt. ACLEI then summonses the same witness to answer questions based on the same set of facts, and commences an investigation into the activities of the ACC staff member/s. Under existing provisions, ACLEI would not have the power to cite the witness for contempt if they fail to answer the questions. This is clearly undesirable, given the strong interest in promptly identifying and dealing with allegations of corruption within the ACC.

Referring a person to a court to be dealt with for contempt will provide the Integrity Commissioner a swift mechanism to deal with uncooperative witnesses in certain circumstances. It is anticipated that the new contempt provisions will motivate an uncooperative witness to reconsider his or her position and comply with the requirements of an examination, as the witness is immediately subject to the possibility of being taken in custody before a superior court. Unlike the threat of criminal charges being pursued in the future, the threat is real and immediate and witnesses are more likely to cooperate, in order to avoid the threat of detention.

Section 96A

Section 96A will provide that a person is in contempt of ACLEI if he or she:

•

fails to attend a hearing as required by a summons

•

fails to appear and report from day to day unless excused or released from further attendance by the Integrity Commissioner

•

refuses or fails to take an oath/affirmation when required

•

refuses or fails to answer a question when required (unless the person is a legal practitioner claiming legal professional privilege over the answer)

•

refuses or fails to produce a document or thing when required under a notice to produce or summons (unless the person is a legal practitioner claiming legal professional privilege over the document or thing)

•

if a claim of legal professional privilege is made by a legal practitioner - refuses or fails to reveal the name and the address of the person to whom the privilege applies

•

provides false or misleading information to the Integrity Commissioner

•

insults, disturbs or uses insulting language towards the Integrity Commissioner while he/she is performing his/her functions or his/her exercising powers as Integrity Commissioner

•

creates a disturbance, or takes part in creating or continuing a disturbance in or near the place where the Integrity Commissioner is investigating a corruption issue or conducting a public inquiry.

•

obstructs or hinders the Integrity Commissioner in the performance of his or her functions

•

interrupts a hearing that is being held for the purpose of investigating a corruption issue or conducting a public inquiry, or

•

threatens a person present at a hearing that is being held for the purpose of investigating a corruption issue or conducting a public inquiry, or

These elements of being 'in contempt of ACLEI' mirror offences currently in the LEIC Act which relate to not cooperating with an ACLEI hearing.

Section 96B

Section 96B will set out the process for the Integrity Commissioner to refer an uncooperative witness to the Federal Court or the Supreme Court of a State or Territory, and for the court to determine whether the person is in contempt of ACLEI, and if so, to deal with that person if he or she was in contempt of that court. The definition of Federal Court will be inserted by item 3 of this Schedule, to mean the Federal Court of Australia.

Subsection 96B(1) will provide that where the Integrity Commissioner is of the opinion that a person is in contempt of ACLEI (within the meaning given by section 96A), the Integrity Commissioner can make an application to either the Federal Court or the Supreme Court of the State or Territory in which the hearing to is being conducted, to be dealt with for contempt. As the Integrity Commissioner presides over the hearing, it is appropriate that the Integrity Commissioner form the initial (but not conclusive) opinion that a person is in contempt. It is the court (under subsection 96B(5)) that determines whether a person is in contempt, and determines the consequences of being in contempt.

Subsection 96B(2) will require the Integrity Commissioner, before making an application under subsection 96B(1) to inform the person they intend to refer them to a court to be dealt with for contempt. This subsection will ensure that a person is given early notification of the consequences of his or her non-compliance, giving him or her an opportunity to comply with the requirements of the investigation.

Subsection 96B(3) will provide that the application to the court under subsection 96B(1) must be accompanied by a certificate that sets out the grounds for making the application and the evidence in support of the application. The certificate is necessary to set out the matters relevant to the court's determination of whether a person was in contempt of ACLEI. Ordinarily, the certificate would contain a summary of the alleged contempt, and a detailed statement from the Integrity Commissioner outlining why he or she is of the opinion that the person is in contempt. Any additional evidence or statements that become necessary will be able to be adduced under subsection 96B(5).

Subsection 96B(4) will require that a copy of the certificate referred to in subsection 96B(3) is given to the person who is the subject of the contempt proceedings before, or at the same time as, the application is made. This is a necessary and important safeguard to ensure that the person is made aware of the reasons why the Integrity Commissioner believes the person to be in contempt and is given an opportunity to prepare their own case that he or she is not in contempt.

Section 142 of the LEIC Act provides that if ACLEI obtains evidence that would be admissible in a prosecution of an offence, ACLEI must give that evidence to either the relevant Commonwealth or State or Territory Attorney-General, a relevant law enforcement agency or any other Commonwealth or State or Territory agency authorised to prosecute the offence.

If a person is dealt with for contempt under section 96B, it is not appropriate for them to be prosecuted for an offence in relation to this failure to assist with a hearing. Subsection 96B(5) will provide that ACLEI is not required to give evidence relating to the contempt application to a prosecuting authority under subsection 142 if the Integrity Commissioner makes a contempt application under subsection 96B(1).

This provision will avoid the person being dealt with twice for the same conduct and respects the principle of double jeopardy, which is also separately addressed by proposed section 96F in this Schedule.

Subsection 96B(6) will allow the court to determine that a person was in contempt of ACLEI after considering the certificate, and any evidence or statements by or in support of ACLEI or the person. If a court does find that a person was in contempt of ACLEI, the court may deal with the person as if he or she were in contempt of that court.

Subsection 96B(7) will state that the rules and principles in Chapter 2 of the Criminal Code Act 1995 apply to proceedings under the contempt provisions. This section is necessary to ensure that the court can apply the general principles of criminal responsibility in Chapter 2 of the Criminal Code to the contempt proceeding as if it was a proceeding for a criminal offence. For example, this will mean that the circumstances in which there is no criminal responsibility, set out in Part 2.3 of Chapter 2 of the Criminal Code, will apply to the contempt proceeding. This is necessary because the contempt provisions are not statutory offences to which Chapter 2 would ordinarily apply.

Section 96C

Section 96C will provide that contempt proceedings are to be conducted in accordance with the ordinary rules and procedures of the court to which the Integrity Commissioner applies. This will ensure that the court will retain overall control of the contempt proceedings from the time the person is brought before that court until the application is disposed of. The Integrity Commissioner will simply be a party to the proceeding.

Subsection 96C(3) will also provide that the certificate submitted under subsection 96B(3) by the Integrity Commissioner stating the grounds for making the application and evidence in support of that application is prima facie evidence showing contempt of ACLEI. This will allow the court to find the facts of the alleged contempt without necessarily having to rely on any oral testimony. This does not prevent the defendant from challenging the evidence. However, if there is no dispute as to the facts, the certificate will expedite the contempt proceedings.

Section 96D

While it is anticipated that in most instances, uncooperative witnesses will voluntarily attend court, there may be some instances where the assistance of law enforcement is necessary to bring the alleged contemnor to the court. The power to detain a person can also be an effective mechanism to secure compliance from a non-cooperative witnesses because it enables the Integrity Commissioner to make an instant and enforceable threat to that witness's liberty. Anecdotal evidence from State coercive bodies, which have the power to cite witnesses for contempt, indicates that this power is an invaluable tool held in reserve for conducting coercive inquiries.

Section 96D will provide the Integrity Commissioner, when proposing to make an application to the court under subsection 96B(1), to direct a constable to detain a person for the purposes of bringing him or her before a court for contempt proceedings. The definition of constable will be inserted by Item 1 of this Schedule, to mean a member or special of the AFP or a member of the police of a State. Under subsection 5(1) of the LEIC Act, State includes a Territory.

If a person is detained, the Integrity Commissioner will be required, under paragraph 96D(2)(a), to apply to the court under subsection 96B(1) as soon as practicable. Under paragraph 96D(2)(b), the person who has been detained must be brought before the court as soon as practicable. Under section 96D(3), the court will then be able to:

•

direct that the person be released from detention on the condition that he or she will appear before the court in relation to the application (paragraph 96D(3)(a)), or

•

order that the person continue to be detained until the contempt proceedings are completed (paragraph 96D(3)(b)).

Subsection 96D(4) will allow a court to impose other conditions on a person's release under paragraph 96D(3)(a), including for example, that they surrender their passport, give an undertaking as to their living arrangements or report to a law enforcement agency. Conditions may be necessary as a person unwilling to cooperate with the Integrity Commissioner may also be unwilling to cooperate fully with a contempt hearing.

Subsection 96D(5) will allow the court to vary or revoke the conditions made under subsection 96D(4) at any time.

Section 96E

Subsection 96E(1) will enable the Integrity Commissioner to withdraw a contempt application made under subsection 96C(1) at any time. If a person is in detention under section 96D when a contempt application is withdrawn, subsection 96E(2) will require the person to be released from detention immediately.

This section will give a person who initially refuses to comply with the Integrity Commissioner a further opportunity to cooperate. It also provides a safeguard measure, ensuring that a person who is not required to appear before a court is released immediately.

Section 96F

Section 96F(1) will provide that a person can be prosecuted for an offence under the LEIC Act or under a law of a State or Territory, but not under both.

Subsections 96F(2) and (3) will respectively provide that if:

•

a contempt application is made under subsection 96B(1) in respect of conduct of a person, and the court deals with the person under section 96B for that conduct, the person is not liable to be prosecuted for an offence in respect of the same conduct, or

•

a person is prosecuted for an offence in relation to conduct referred to in an application under subsection 96A(1), an application under section 96B(1) in respect of that same conduct cannot be made.

As the proposed contempt regime will overlap with existing criminal offences relating to obstruction of ACLEI investigations, the Integrity Commissioner will be able to choose the most appropriate enforcement tool in each circumstance. However, once a person's conduct has been dealt with by one route, proceedings under the other will be barred. This is consistent with the 'double jeopardy' rule in section 4C of the Crimes Act 1914 .

Item 30 - Section 93 (heading)

The heading to section 93 is simply titled 'Offences'. Given that section 94 also deals with offences under the LEIC Act, the heading to section 93 will be amended by item 30 to read 'Offences- attendance at hearings etc'.

Item 31 - Section 94 (heading)

The heading to section 94 is currently headed 'Contempt'. The subsections of section 94 create criminal offences for:

•

insulting, disturbing or using insulting language towards the Integrity Commissioner while he/she is performing his/her functions or his/her exercising powers as Integrity Commissioner (subsection 94(1))

•

creating a disturbance, or taking part in creating or continuing a disturbance in or near the place where the Integrity Commissioner is investigating a corruption issue or conducting a public inquiry (subsection 94(2))

•

interrupting a hearing that is being held for the purpose of investigating a corruption issue or conducting a public inquiry (paragraph 94(3)(a)), or

•

doing any other act or thing that would, if the hearing were held in a court of record, constitute a contempt of that court (paragraph 94(3)(b)).

To avoid confusion between this section and new sections 96A to 96F (to be inserted by item 29), item 31 will change the heading to section 94 to 'Offences-disturbing or interrupting hearings'

Item 32 - Subsection 99(1)

Item 32 repeals and replaces subsection 99(1) of the LEIC Act. The effect of this substitution is to remove 'reasonable grounds to believe' as the appropriate test that an authorised officer must satisfy in relation to all subparagraphs of subsection 99(1), in order to apply to the appropriate court for an arrest warrant. The item reintroduces the concept of 'reasonable ground to believe" to subparagraphs 99(1)(a), (1)(b) and (1)(c), as the appropriate test to apply when considering whether a person:

•

is likely to leave Australia for the purpose of avoiding or giving evidence at a hearing before the Integrity Commissioner (subparagraph 99(1)(a)(ii))

•

has absconded or is likely to abscond or is otherwise attempting or likely to attempt, to evade service' of a summons (subparagraph 99(1)(b)(i) and (ii)), or

•

has committed an offence under section 93 the LEIC Act (failure to attend a hearing, swear an oath, make an affirmation, answer a question or produce a document or thing) or is likely to do so (subparagraph 99(1)(c)).

The effect of the repeal and substitution is that it will no longer be necessary for an authorised officer to have reasonable grounds to believe certain facts that will be clear from records held by ACLEI. The authorised officer no longer needs to have reasonable grounds to believe that a person:

•

has been ordered to deliver his or her passport to the Integrity Commissioner, or

•

is to be served with a summons under section 83 of the LEIC Act.

It is appropriate that an authorising officer only need to form reasonable grounds to believe that other persons may take particular actions.

The repeal and substitution of subsection 99(1) will also result in a minor change to subsection 99(1)(b) of the LEIC Act, to change the words "has been served" to "is to be served." The previous wording was clearly a minor technical error, as it is not possible for someone who has been served with a summons to evade service of that summons under subsection 99(1)(b)(ii).

Item 33 and 34 - Subsection 100(1) and after subsection 100(9)

ACLEI uses arrest warrants to prevent witnesses or prospective witnesses from avoiding service of a summons to give or produce evidence. There are three stages to executing an arrest warrant under the LEIC Act:

1.

an ACLEI authorised officer applies to a judge for an arrest warrant (section 99)

2.

the judge issues the warrant if satisfied by the evidence (subsection 100(1)), and

3.

the authorised officer executes the warrant (subsections 100(2)-100(10)).

Section 100 of the LEIC Act only provides for warrants to be executed by the authorised officer who applied for the warrant. An authorised officer is an officer who has been authorised by the Integrity Commissioner under section 140 of the LEIC Act. This can be problematic where the arrest warrant needs to be executed in a different jurisdiction than the jurisdiction in which the warrant was issued.

Items 33 and 34 will make amendments to section 100 of the LEIC Act, to allow arrest warrants to be executed by any authorised officer and not just the authorised officer who applied for the arrest warrant under section 99 of the LEIC Act.

Item 33 removes the specific reference in subsection 100(1) to the issue of a warrant authorising 'the authorised officer' to arrest the person. Instead, subsection 100(1) will simply refer to a warrant that authorises the arrest of the person.

Item 34 inserts a new subsection 100(9A) to clarify that the authorised officer who executes the warrant need not be the same authorised officer who applied for the warrant.

Item 35 - Subsection 104(4)

Item 35 amends subsection 104(4) of the LEIC Act, to correct a minor technical drafting error. The words of subsection 104(4) will be amended, from 'a hearing that been held' to 'a hearing that has been held'

Items 36 and 37 - At the end of subparagraph 110(4)(b)(iv) and at the end of paragraph 110(4)(b)

Items 36 and 37 insert a new subparagraph to paragraph 110(4)(b), to include all items that must be stated on a search warrant which are able to be seized under the warrant.

Under current paragraph 110(4)(b), an issuing officer who issues a search warrant must state that the warrant authorises the seizure of certain things if the authorised officer or an assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence. The warrant is to state that the warrant authorises the seizure of a thing that the authorised officer believes on reasonable grounds to be:

•

evidential material in relation to a corruption issue or public inquiry to which an investigation warrant relates

•

a thing relevant to an offence to which an offence warrant relates

•

evidential material within the meaning of the Proceeds of Crime Act 2002 or tainted property (within the meaning of that Act), or

•

a thing relevant to an indictable offence.

This list of things does not cover all items which are able to be seized under a search warrant. Item 36 amends subparagraph 110(4)(b)(iv) to add an 'or' to the end of the current list of things and Item 37 amends subsection 110(b) so that a warrant is also to state, in any case, that the warrant authorises seizure of a thing that the authorised officer or assisting officer believes on reasonable grounds to be an eligible seizable item.

An 'eligible seizable item' is defined under section 5 of the LEIC Act to mean anything that would present a danger to a person or could be used to assist a person to escape from lawful custody. The inclusion of eligible seizable items as things that must be stated in a warrant will remove any confusion over what can be authorised to be seized under a warrant.

Item 38 - Paragraph 117(2)(a)

Under section 140 of the LEIC Act, the Integrity Commissioner may in writing, authorise a person to be an 'authorised officer'. In order to provide the authority, the person must be a staff member of ACLEI and meet certain other criteria or a member of the AFP.

Under section 117 of the LEIC Act, only authorised officers may use reasonable force against persons when executing a search warrant. In executing the search warrant, authorised officers may obtain assistance from 'assisting officers.' Assisting officers, who are not also authorised officers, are only able to use reasonable force against things (for example, to open doors). In addition, only authorised officers can take part in searching a person. Assisting officers, who are not also authorised officers, cannot take part in the search of a person.

There will be cases where it would be desirable for a member of the AFP or State or Territory police force, who is trained to use force, to assist an authorised officer to execute a search warrant. Under section 117 of the LEIC Act, such officers would be able to use reasonable force against persons, even though they would be so authorised if executing warrants under other legislation such as the Crimes Act.

Item 38 addresses this anomaly by amending paragraph 117(2)(a) to include 'a constable' as someone who, while assisting and authorised officer in the execution of a search warrant, may use force against persons and things that is necessary and reasonable in the circumstances. Item 1 of this Schedule inserts into subsection 5(1) of the LEIC Act a definition of constable, meaning a member or special member of the Australian Federal Police, or a member of the police force or police service of a State (or Territory).

The amendment to paragraph 117(2)(a) therefore allows these members of the AFP and the State and Territory police forces to use reasonable force against both persons and things when acting as an 'assisting officer' in the execution of a search warrant. This is the case even where the members have not been authorised to execute the search warrant under section 140 of the LEIC Act.

Item 39 - Paragraph 117(2)(b)

Item 39 amends paragraph 117(2)(b), to clarify that an assisting officer who is neither an authorised officer or a 'constable,' (as that term is defined by the definition included in subsection 5(1) by item 1 of this Schedule) may only use reasonable and necessary force against things and not persons. The inclusion of constables in the class of persons who can use reasonable and necessary force against persons under paragraph 117(2)(a) (Item 35) results in the need to amend paragraph 117(2)(b).

Item 40 - Paragraph 117(3)

Item 40 amends subsection 117(3), to allow an authorised officer, a member or special member of the AFP, or a member of a State or Territory police force, who is not also an authorised officer, to take part in searching a person. The amendment limits officers who may take part in searching a person to authorised officers and constables (as that term is defined by the definition to be included by item 1 of this Schedule). A constable (defined in subsection 5(1) to mean a member of special member of the AFP or State or Territory police force) is trained to search a person, and is authorised to do so under other legislation, such as the Crimes Act. It is therefore appropriate for a member or special member of the AFP or a member of a State or Territory police force to search a person when assisting the authorising officer in the performance of their duties.

Item 41 - At the end of section 142

Item 29 of this Schedule will insert a new subsection 96B(5), providing that ACLEI is not required to give evidence relating to contempt to a prosecuting authority under section 142 if the Integrity Commissioner has made a contempt application under subsection 96B(1). Item 41 will add a note to the end of section 142, making reference to the new subsection 96B(5).

Item 42 - Paragraph 147(1)(d)

Item 42 amends subparagraph 147(1)(d) of the LEIC Act, to correct a minor technical drafting error. The subparagraph will be amended to remove the word 'must' from the phrase 'advise the person that the Integrity Commissioner has must brought the evidence to the notice of the Minister.'

Items 43 - Paragraph 150(2)(a)

Section 150 sets out the rules in relation to provision of information or documents that have been certified by the Attorney General under section 149 as information or documents that should not be disclosed on public interest grounds. Subsection 150(2) currently refers to provision of such information or documents in response to a request under Division 1 of Part 9.

Item 43 will repeal paragraph 150(2)(a), and replace it with language that is consistent with changes made to Subdivision A, Division 1 of Part 9 by item 8 of this Schedule to:

•

reflect the mandatory nature of a request to produce information, documents or things,

•

remove the requirement that the information or document is to be provided directly to the Integrity Commissioner.

Item 44 - Subsection 150(2)

Item 44 amends subsection 150(2) to substitute 'request' with 'notice'. This amendment is consistent with the amendments made to Subdivision A, Division 1 of Part, by items 8 of this Schedule, to reflect the mandatory nature of a 'request' to produce information, documents or things.

Item 45 - Paragraph 156(5)(a)

Item 45 amends paragraph 156(5)(a) of the LEIC Act, to correct a minor technical drafting error. The paragraph will be amended to change the word 'authorises' to 'authorise' so that the phrase 'if the Minister decides to authorise a person' is grammatically correct.

Item 46 - Section 166 (heading)

Item 46 amends the heading to section 166 of the LEIC Act, to correct a minor technical drafting error. Part 12 of the LEIC Act is headed 'Dealing with Corruption Issues" and contains five divisions:

•

Division 1 - Referring ACLEI corruption issues to Minister

•

Division 2 - How Minister deals with ACLEI corruption issues

•

Division 3 - Investigation by Integrity Commission

•

Division 4 - Special Investigations

•

Division 5 - Staff members of ACLEI to report corrupt conduct

Section 166 of the LEIC Act follows immediately after the heading to Division 4 - Special Investigations.' The heading to section 166 will therefore be amended to refer to the 'Application of Division,' rather than the 'Application of Part.'

Item 47 - Section 166

Item 47 amends section 166 of the LEIC Act, to correct a minor technical drafting error. Part 12 of the LEIC Act is headed 'Dealing with Corruption Issues" and contains five divisions:

•

Division 1 - Referring ACLEI corruption issues to Minister

•

Division 2 - How Minister deals with ACLEI corruption issues

•

Division 3 - Investigation by Integrity Commission

•

Division 4 - Special Investigations

•

Division 5 - Staff members of ACLEI to report corrupt conduct

Section 166 of the LEIC Act follows immediately after Division 4 - Special Investigations.' However section 166 states 'This Part applies if the Minister authorises a person (the special investigator) to conduct a special investigation of an ACLEI corruption issue under this Division.' The other Divisions of Part 12 do not refer to a special investigation. The section will therefore be amended by substituting the word 'Division' for 'Part'.

Item 48 - Section 167(5)

Section 167 of the LEIC Act provides the investigative powers that apply to special investigations under Division 4 of Part 12 of the LEIC Act. Subsection 167(5) provides that, if a special investigator proposes to take action under section 142 (providing evidence of an offence or liability to civil penalty to the AFP or relevant State police force) or section 143 (providing evidence that could be used in confiscation proceedings to a the AFP or a relevant State police force), a special investigator does not need to inform a person (under subsection 145(3) or (4)) if doing so would be likely to prejudice an ACLEI investigation or any action taken as a result of an investigation.

Item 48 amends subsection 167(5), to change 'if the special investigator proposes to take action under section 142 or 143' to 'if the special investigator proposes to take action, or takes action under section 142 or 143'. This amendment is necessary because no obligation to inform a person under subsections 145(3) or (4) arises until the special investigator has taken action under either section 142 or section 143.

The amendment ensures that the exception to the obligation to inform a person under subsections 145(3) or (4) operates when the special investigator has taken action by giving evidence to the AFP or a State Police force under section 142 or section 143.

Item 49 - Section 167(5)

Item 49 also amends subsection 167(5) of the LEIC Act, to correct a minor technical drafting error. Reference in subsection 167(5) to the need for a special investigator to consult a person (under subsection 142(3) or (4)) is a typographical error as subsections 142(3) and (4) do not exist. Item 49 replaces these references with references to subsections 144(3) and (4) which provide that the Integrity Commissioner must consult the heads of Commonwealth government agencies or State and Territory integrity agencies where corruption issues relate to employees of those agencies who have been seconded to law enforcement agencies.

Item 50 - Paragraph 167(6)(b)

Item 50 amends paragraph 167(6)(b) of the LEIC Act, to correct a minor technical drafting error. Paragraph 167(6)(b) currently provides that a special investigator must give to the Minister the Integrity Commissioner's reasons for not consulting or informing a person that the special investigator proposes to take action under sections 142 or 143 of the LEIC Act. Under subsection 167(5), the special investigator, and not the Integrity Commissioner makes the decision not to consult or inform a person. Paragraph 167(6)(b) will therefore be amended to refer to the special investigator's reasons for not consulting or informing a person. This amendment, together with the amendment to subsection 167(5) by item 48 of this Schedule will have the effect that the special investigator must give the Minister the special investigator's reasons for not consulting or informing a person that the special investigator proposes to take action or has taken action under subsection 142 or 143 of the LEIC Act.

Item 51 - Subsection 187(2)

Item 51 amends subsection 187(2) of the LEIC Act, to correct a minor technical drafting error. Section 187 of the LEIC Act deals with acting appointments of Assistant Integrity Commissioners. However, subsection 187(2) currently refers to 'the LEIC Acting Integrity Commissioner'. The amendment to paragraph 187(2) will replace this reference with a reference to 'the LEIC Acting Assistant Integrity Commissioner.'

Privacy Act 1988

Item 52 - Subsection 18K(5) (note)

Item 52 amends the note to subsection 18K(5) of the Privacy Act 1988 . This amendment provides that a credit reporting agency must not keep a note on a person's file about a notice to produce issued to that person if the notice to produce includes a notation that information about it is not to be disclosed.

Subsection 18K(5) of the Privacy Act already provides that a credit reporting agency must not keep a note on a person's file about a summons issued to that person if the summons includes a notation, made in accordance with section 91 of the LEIC Act, that information about the summons is not to be disclosed.

The new section 77A of the LEIC Act, introduced by Item 10 of this Bill, creates the same non-disclosure regime for notices to produce (issued under new section 75 of the LEIC Act) as is currently in place for a summons (issued under section 83 of the LEIC Act). It is therefore appropriate that subsection 18K(5) of the Privacy Act also applies to offences for disclosing information about a notice to produce in contravention of a notation, made in accordance with the new section 77A of the LEIC Act.

Item 53 - Subsection 6(1) (definition of federal law enforcement officer)

Item 53 amends subsection 6(1) of the Surveillance Devices Act 2004 , to amend the definition of 'federal law enforcement officer'. Paragraph 6(1)(aa) will be added to the definition of law enforcement officer to include the Integrity Commissioner, the Assistant Integrity Commissioner and staff members of ACLEI as 'federal law enforcement officers' for the purposes of the Surveillance Devices Act.

Subsection 37(1)(aa) of the Surveillance Devices Act allows a federal law enforcement officer who belongs or is seconded to ACLEI to, without warrant, use an optical surveillance device for any purpose that is within the functions of the Integrity Commissioner as set out in section 15 of the LEIC Act, if the officer is acting in the course of his or her duties. However, the definition of federal law enforcement officer in subsection 6(1) of the Surveillance Devices Act does not include the Integrity Commissioner, the Assistant Integrity Commissioner and staff members of ACLEI. The amendment to subsection 6(1) will rectify this anomaly.

Item 54 - Application-items 7 to 19

Items 7 to 19 introduce a new regime for the issue, service and compliance with a notice to produce information, documents or things.

Item 54 provides that the amendments in items 7 to 19 will apply only in relation to a notice to produce that is served on a person under the LEIC Act on or after this Schedule commences. This will ensure some certainty in relation to compliance with and non-disclosure concerning a notice to produce.

In accordance with section 15AC of the Acts Interpretation Act 1901 , subsection 150(2) of the LEIC Act will still apply, after commencement of items 43 and 44 of this Schedule to a person who, prior to the commencement of the items, was requested to give the Integrity Commissioner information or produce a document that contained information, disclosure of which the Attorney General has certified as being contrary to the public interest under subsection 149(1) of the LEIC Act. The change in terminology from a request to give information or produce a document, to service of a notice to give information or produce a document does not affect the obligation not to contravene a certificate issued under section 49 of the LEIC Act, regardless of the timing of the request/service of the notice.

Item 55 - Application-section 96 of the Law Enforcement Integrity Commissioner Act 2006

Item 27 repeals subsection 96(2) of the LEIC Act, to remove the requirement for a witness in a hearing before the Integrity Commissioner from claiming that an answer or production of a document or thing might tend to incriminate them or expose them to a penalty before every such answer or production. Instead, the witness is automatically entitled to a 'use immunity' in relation to answers given or documents provided, even where compelled to answer questions or produce documents.

Item 55 provides that the amendment to section 96 applies to a hearing that commences on or after the Schedule commences. This will ensure that the same rules apply to a witness throughout a hearing.

Item 56 - Application-sections 96A to 96F of the Law Enforcement Integrity Commissioner Act 2006

Item 29 inserts new sections 96A to 96F into the LEIC Act, to provide ACLEI with a contempt referral power. Item 56 confirms that this power will only be exercisable in relation to matters occurring at or concerning a hearing that begins on or after the commencement of this Schedule. Any hearing that is part heard on the date of commencement will not be subject to the new contempt power, even if contempt of ACLEI occurs at a hearing held after the date of commencement.

Item 57 - Application-section 100 of the Law Enforcement Integrity Commissioner Act 2006

Items 33 and 34 will make amendments to section 100 of the LEIC Act, to allow arrest warrants to be executed, not only by the authorised officer who applied for it, but by any ACLEI authorised officer. Item 57 will provide that these amendments will apply to any arrest warrant which has been issued on or after the date of commencement of item 57.

Item 58 - Application-item 37

Item 37 inserts a new subparagraph to section 110(4)(b) of the LEIC Act, to ensure that any search warrant issued under the LEIC Act also states that the warrant authorises seizure of a thing that the authorised officer or assisting officer believes on reasonable grounds to be an eligible seizable item. Item 58 will provide that this amendment will apply to any search warrant issued on or after the commencement of item 58.

Item 59 - Application-section 117 of the Law Enforcement Integrity Commissioner Act 2006

Item 38, 39 and 40 amend section 117, to allow a constable who is not an authorised officer to use reasonable force against persons and search persons when assisting and authorised officer to execute a search warrant. Item 59 provides that these amends apply to a search warrant that is executed after item 59 commences.