Law Enforcement Integrity Legislation Amendment Act 2012 (194 of 2012)

Schedule 1   Integrity testing and expansion of coverage by ACLEI

Part 1   Integrity testing

Crimes Act 1914

29   After Part IAB

Insert:

Part IABA - Integrity testing

Division 1 - Introduction

15JA Integrity testing - simplified outline

The following is a simplified outline of this Part:

This Part provides for the authorisation of operations (called integrity testing operations) that are designed to test the integrity of staff members of the Australian Crime Commission, the Australian Federal Police and the Australian Customs and Border Protection Service, using controlled or simulated situations.

Operations can be authorised only if there is a reasonable suspicion that a staff member has committed, is committing or is likely to commit an offence punishable on conviction by imprisonment for 12 months or more.

Authorisations for integrity testing operations may form the basis for the authorisation of controlled operations under Part IAB.

Integrity testing operations may be authorised by the agency concerned, or (if a corruption issue is involved) the Australian Commission for Law Enforcement Integrity. Law enforcement officers and others may take part.

Participants in integrity testing operations are indemnified against civil liability in relation to the conduct of the operations in accordance with the authorisations concerned.

Information relating to an integrity testing operation may only be disclosed for the purposes of disciplinary or legal action in relation to the staff member concerned, or a number of related purposes.

15JB Integrity testing - concurrent operation of State and Territory laws

It is the intention of the Parliament that this Part is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Part.

15JC Integrity testing - definitions

In this Part:

appropriate authorising officer , for an integrity testing operation, has the meaning given by the table in subsection 15JE(1).

authorising officer means any of the appropriate authorising officers.

Note: These officers are listed in the table in subsection 15JE(1).

civilian participant , in an integrity testing operation, means a participant in the operation who is not a law enforcement participant (as defined in this section).

corruption issue has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.

Note: See section 7 of the Law Enforcement Integrity Commissioner Act 2006.

disciplinary or legal action , in relation to a staff member of a target agency, means any of the following:

(a) action in respect of alleged misconduct of the staff member;

(b) termination of the employment or appointment of the staff member;

(c) a disciplinary proceeding in relation to the staff member, within the meaning of the Law Enforcement Integrity Commissioner Act 2006, or a report of such a proceeding;

(d) the investigation of an offence suspected to have been committed by the staff member;

(e) a legal proceeding in relation to the staff member, or a report of such a proceeding.

Disciplinary or legal action also includes the consideration of whether an action or proceeding covered by this definition should be taken or brought.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

integrity testing agency means any of the following:

(a) the ACC;

(b) the Australian Commission for Law Enforcement Integrity;

(c) the Australian Federal Police;

(d) Customs.

integrity testing authority means an authority granted under section 15JG to conduct an integrity testing operation.

integrity testing operation : see section 15JD.

law enforcement participant , in an integrity testing operation, means a participant in the operation who is:

(a) a law enforcement officer; or

(b) an employee or officer of an integrity agency for a State or Territory, within the meaning of the Law Enforcement Integrity Commissioner Act 2006.

Note: Staff members of integrity testing agencies (as defined in this section) are law enforcement officers. Law enforcement officers also include members of State and Territory police forces, and police forces of foreign countries (see section 3).

participant , in an integrity testing operation authorised by an integrity testing authority, means a person who is authorised under this Part to participate in the operation.

responsible staff member , for an integrity testing operation authorised by an integrity testing authority, means the staff member of an integrity testing agency identified in the authority as the staff member responsible for the conduct of the operation.

staff member of an integrity testing agency has the same meaning in relation to that agency as in the Law Enforcement Integrity Commissioner Act 2006.

Note: See subsections 10(1), (2) and (2A), and section 11, of the Law Enforcement Integrity Commissioner Act 2006.

target agency means any of the following:

(a) the ACC;

(b) the Australian Federal Police;

(c) Customs.

15JD Integrity testing - meaning of integrity testing operation

(1) An integrity testing operation is an operation conducted in relation to a target agency using controlled or simulated situations to test the integrity of astaff member of the agency.

(2) An integrity testing operation includes an operation that offers the staff member an opportunity to engage in conduct, whether lawful or unlawful, so as to contravene principles of behaviour required (by law or otherwise) of persons occupying the position of such a staff member.

Note 1: The target agencies are the ACC, the Australian Federal Police and Customs (see section 15JC).

Note 2: References to a staff member include references to more than one staff member (see section 23 of the Acts Interpretation Act 1901).

Division 2 - Integrity testing operations: authority

15JE Integrity testing authorities - circumstances in which applications may be made

(1) The following table has effect:

Note 1: The target agencies are the ACC, the Australian Federal Police and Customs (see section 15JC).

Note 2: References to a staff member include references to more than one staff member (see section 23 of the Acts Interpretation Act 1901).

(2) The application of item 4 of the table in subsection (1) in relation to a staff member of a target agency does not prevent the application of any of the other items in the table in relation to the integrity of the staff member.

(3) A reference in a cell in the table in subsection (1) to an SES employee of an integrity testing agency is taken to be a reference to an SES employee authorised in writing by the officer of the agency mentioned in paragraph (a) in the cell.

15JF Integrity testing authorities - application

(1) An application under section 15JE must:

(a) be in writing; and

(b) provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and

(c) state whether or not the proposed integrity testing operation is related to any past, current or proposed:

(i) integrity testing operation; or

(ii) controlled operation under Part IAB; and

(d) state the proposed period of effect of the authority, which must not exceed 12 months.

(2) The appropriate authorising officer may require the applicant to provide such additional information concerning the proposed integrity testing operation as is necessary for the proper consideration of the application.

Note: See the table in section 15JE for which staff members may apply to conduct an integrity testing operation, and to which authorising officers (called appropriate authorising officers ) such applications may be made.

15JG Integrity testing authorities - grant

(1) The appropriate authorising officer may, after considering an application for an authority to conduct an integrity testing operation in relation to a target agency, and any additional information provided under subsection 15JF(2):

(a) authorise the operation by granting the authority, in writing, either unconditionally or subject to conditions; or

(b) refuse the application.

(2) The authorising officer must not grant the authority to conduct the integrity testing operation unless the authorising officer is satisfied that:

(a) there are reasonable grounds to suspect that a Commonwealth offence or a State offence, punishable on conviction by imprisonment for 12 months or more, has been, is being or is likely to be committed by a staff member of the target agency (whether or not the identity of the staff member is suspected or known); and

(b) it is appropriate in all the circumstances to conduct the operation; and

(c) if the authorising officer is an officer of the Australian Commission for Law Enforcement Integrity - in addition to the matters mentioned in paragraphs (a) and (b), the purpose of the operation is to investigate a corruption issue.

(3) The authorising officer may grant an integrity testing authority even if the operation has been authorised by a previous integrity testing authority, or has been the subject of a previous application for such an authority.

Example: The authorising officer may grant an integrity testing authority that authorises the continuation or resumption of an operation authorised by an earlier authority.

(4) An integrity testing authority is not a legislative instrument.

Note: See the table in section 15JE for who are the appropriate authorising officers for a proposed integrity testing operation in relation to a target agency.

15JH Integrity testing authorities - form

Contents of integrity testing authority

(1) An integrity testing authority must:

(a) state the name and rank or position of the appropriate authorising officer; and

(b) identify the responsible staff member for the integrity testing operation and, if he or she is not the applicant for the authority, state the name of the applicant; and

(c) identify the nature of the criminal activity (including the suspected offence mentioned in paragraph 15JG(2)(a)) in relation to which the integrity testing operation is to be conducted; and

(d) identify the persons authorised to participate in the integrity testing operation; and

(e) describe the nature of the integrity testing operation; and

(f) identify (to the extent known) the staff member or staff members who are the target of the operation; and

(g) state a period of effect of the authority of not more than 12 months after the day the authority is granted; and

(h) state any conditions to which the conduct of the controlled operation is subject; and

(i) state the day and time when the authority is granted.

Note: The period of effect may be extended (or further extended) for up to 12 months, but not so the period of effect of the authority ends more than 24 months after it is granted (see section 15JK).

Identity of persons authorised to conduct the integrity testing operation

(2) A person is sufficiently identified for the purposes of paragraph (1)(d) if the person is identified:

(a) by an assumed name under which the person is operating that the authorising officer can match to the person’s identity; or

(b) by a code name or code number that the authorising officer can match to the person’s identity.

(3) An authority must not identify persons for the purposes of paragraph (1)(d) by identifying a class of persons.

15JI Integrity testing authorities - notice to Integrity Commissioner

As soon as practicable after granting an integrity testing authority for an integrity testing operation, the authorising officer must give a copy of the authority to:

(a) the responsible staff member for the operation; and

(b) the Integrity Commissioner (unless the authorising officer is an officer of the Australian Commission for Law Enforcement Integrity).

15JJ Integrity testing authorities - duration

(1) An integrity testing authority comes into force when the authority is granted (see section 15JG).

(2) The authority has effect for the period stated in the authority, as extended by any variation under section 15JK, unless earlier cancelled (see section 15JL).

Note: The maximum period of effect for an integrity testing authority (taking into account any extension) is 24 months after it is granted (see paragraph 15JH(1)(g) and subsection 15JK(2)).

15JK Integrity testing authorities - variation

(1) An appropriate authorising officer for an integrity testing operation that is authorised by an integrity testing authority may, in writing, vary the authority:

(a) at any time on the authorising officer’s own initiative; or

(b) on application, in writing, by the responsible staff member for the operation.

(2) A variation may extend, or further extend, the period of effect of the authority for up to 12 months, but not so that the period of effect ends more than 24 months after the authority was granted.

(3) As soon as practicable after varying an integrity testing authority for an integrity testing operation, the authorising officer must give a copy of the variation to:

(a) the responsible staff member for the operation; and

(b) the Integrity Commissioner (unless the authorising officer is an officer of the Australian Commission for Law Enforcement Integrity).

Note: If the variation has the effect of changing the responsible staff member, the authorising officer would be required to give a copy of the variation to the new responsible staff member.

(4) Subsection 33(3) of the Acts Interpretation Act 1901 applies in relation to the variation of the authority, subject to this Act.

Note: Subsection 33(3) of the Acts Interpretation Act 1901 has the effect that the power to grant an instrument (such as an integrity testing authority) includes the power to vary the instrument in the like manner and subject to the like conditions.

(5) A variation is not a legislative instrument.

15JL Integrity testing authorities - cancellation

(1) An appropriate authorising officer for an integrity testing operation may, by order in writing given to the responsible staff member for the operation, cancel the authority at any time and for any reason.

(2) The reasons for cancelling an integrity testing authority under subsection (1) include (but are not limited to) cancellation at the request of the responsible staff member.

(3) Cancellation of an integrity testing authority takes effect at the time the order is made or at a later time stated in the order.

15JM Integrity testing authorities - defects

An application for an integrity testing authority or for the variation of an authority, and any integrity testing authority or variation granted on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular.

Division 3 - Integrity testing operations: protection of participants

15JN Integrity testing operations - authorised conduct

(1) Subject to subsection (2), an integrity testing authority for an integrity testing operation authorises each person identified in the authority as a participant to take part in the operation, subject to any conditions set out in the authority.

Note: Paragraphs 15JH(1)(d) and (e) require participants to be identified, and the nature of the operation to be described, in the authority. Subsection 15JH(2), however, allows for participants to be identified in the authority by an assumed identity, or by code.

(2) A participant is authorised to take part in the integrity testing operation for the period of effect of the authority, unless:

(a) the authority states (or is varied to state) a shorter period during which the person is so authorised; or

(b) the authority is varied to provide that the person is no longer so authorised; or

(c) the authority is cancelled before the end of that period.

(3) An integrity testing authority does not authorise a participant identified in the authority to delegate participation to another person.

15JO Integrity testing operations - indemnity against civil liability

The Commonwealth must indemnify a participant in an integrity testing operation that is authorised by an integrity testing authority against any civil liability (including reasonable costs) the participant incurs because of conduct the participant engages in if:

(a) the participant engages in the conduct in the course of, and for the purposes of, the operation in accordance with the authority; and

(b) the participant is identified in the authority; and

(c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or a State offence that the person would not otherwise have intended to commit; and

(d) the conduct does not involve the participant engaging in any conduct that is likely to:

(i) cause the death of, or serious injury to, any person; or

(ii) involve the commission of a sexual offence against any person; and

(e) if the participant is a civilian participant in the operation - he or she acts in accordance with the instructions of a law enforcement participant in the operation; and

(f) the requirements (if any) prescribed by regulation have been met.

15JP Integrity testing operations - participants unaware of variation or cancellation of authority

(1) If an integrity testing authority for an integrity testing operation is varied in a way that limits the scope of the operation, this Part continues to apply to a participant in the operation as if the authority had not been varied in that way, for so long as the participant:

(a) is unaware of the variation; and

(b) is not reckless about the existence of the variation.

(2) If an integrity testing authority to conduct an integrity testing operation is cancelled, this Part continues to apply to a person who was a participant in the operation immediately before the cancellation as if the authority had not been cancelled in that way, for so long as the person:

(a) is unaware of the cancellation; and

(b) is not reckless about the existence of the cancellation.

(3) For the purposes of this section, a person is reckless about the existence of the variation or cancellation of an integrity testing authority if:

(a) the person is aware of a substantial risk that the variation or cancellation has happened; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk that the authority has not been varied or cancelled.

Division 4 - Integrity testing operations: disclosure of information

15JQ Integrity testing operations - disclosure

Disclosure - offence

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to an integrity testing operation.

Penalty: Imprisonment for 2 years.

Exception - authorised disclosure

(2) Subsection (1) does not apply if the disclosure was:

(a) in connection with the administration or execution of this Part; or

(b) for the purposes of obtaining legal advice in relation to the integrity testing operation; or

(c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the integrity testing operation; or

(d) in connection with the administration or execution of the Law Enforcement Integrity Commissioner Act 2006; or

(e) to an authority of the Commonwealth, a State or a Territory, if the disclosure relates to the misconduct of an employee or officer of the authority; or

(f) in accordance with any requirement imposed by law; or

(g) in connection with the performance of functions or duties, or the exercise of powers, of the target agency in relation to which the operation was conducted.

Exception - corruption issue or misconduct

(3) Subsection (1) does not apply if:

(a) the person (the discloser ) discloses the information to the Integrity Commissioner; and

(b) the discloser informs the person to whom the disclosure is made of the discloser’s identity before making the disclosure; and

(c) the information concerns a corruption issue, or misconduct, in relation to an integrity testing operation; and

(d) the discloser considers that the information may assist the Integrity Commissioner to perform the Commissioner’s functions or duties; and

(e) the discloser makes the disclosure in good faith.

Note: A defendant bears an evidential burden in relation to the matters in subsections (2) and (3) - see subsection 13.3(3) of the Criminal Code.

15JR Integrity testing operations - disclosure endangering safety etc.

Offence - disclosure endangering safety etc.

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to an integrity testing operation; and

(c) either:

(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of an integrity testing operation; or

(ii) the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an integrity testing operation.

Penalty: Imprisonment for 10 years.

Exceptions - authorised disclosure

(2) Subsection (1) does not apply if the disclosure was:

(a) in connection with the administration or execution of this Part; or

(b) for the purposes of obtaining legal advice in relation to the integrity testing operation; or

(c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the integrity testing operation; or

(d) in connection with the administration or execution of the Law Enforcement Integrity Commissioner Act 2006; or

(e) a disclosure to an authority of the Commonwealth, a State or a Territory; or

(f) in accordance with any requirement imposed by law; or

(g) in connection with the performance of functions or duties, or the exercise of powers, of the target agency in relation to which the operation was conducted.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) - see subsection 13.3(3) of the Criminal Code.

Exception - corruption issue or misconduct

(3) Subsection (1) does not apply if:

(a) the person (the discloser ) discloses the information to the Integrity Commissioner; and

(b) the discloser informs the person to whom the disclosure is made of the discloser’s identity before making the disclosure; and

(c) the information concerns a corruption issue, or misconduct, in relation to an integrity testing operation; and

(d) the discloser considers that the information may assist the Integrity Commissioner to perform the Commissioner’s functions or duties; and

(e) the discloser makes the disclosure in good faith.

Note: A defendant bears an evidential burden in relation to the matters in subsection (3) - see subsection 13.3(3) of the Criminal Code.

Division 5 - Integrity testing operations: reporting

15JS Integrity testing operations - annual reports

(1) As soon as practicable after 30 June in each year, the chief officer of each integrity testing agency must submit a report to the Law Enforcement Minister setting out the details required by subsection (2) in relation to integrity testing operations authorised by an authorising officer of the agency during the previous 12 months.

(2) The details to be set out in the report are as follows:

(a) the number of integrity testing authorities granted by authorising officers of the agency;

(b) the nature of the suspected criminal activity in relation to which each authority was given;

(c) the period of effect of each authority (including any extension of the period granted by variation);

(d) if an authority was cancelled - the reasons for cancellation.

(3) A report must not disclose any information that identifies any person involved in an integrity testing operation or that is likely to lead to such a person being identified.

(4) Nothing in this section requires particulars of an integrity testing operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.

(5) In this section:

chief officer , of an integrity testing agency, means:

(a) for the ACC - the Chief Executive Officer of the ACC; or

(b) for the Australian Federal Police - the Commissioner; or

(c) for Customs - the Chief Executive Officer of Customs; or

(d) for the Australian Commission for Law Enforcement Integrity - the Integrity Commissioner.

Law Enforcement Minister means the Minister responsible for the administration of the Law Enforcement Integrity Commissioner Act 2006.

Division 6 - Integrity testing operations: evidence

15JT Evidence of integrity testing authorities

A document purporting to be an integrity testing authority:

(a) is admissible in any legal proceedings; and

(b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority.