Page 4639 - Week 13 - Tuesday, 31 October 2017
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In response to concerns about overlap between the ACT and commonwealth spheres, the committee found that there do not appear to be any structural or legislative barriers to ACLEI referring matters relating to ACT Policing to an ACT ACIC. However, the committee acknowledges that this mechanism will require discussions with the commonwealth and potentially some amendments to commonwealth legislation to best support the relationship and information sharing.
The committee also recommends that a commission should have oversight over MLAs, their staff and judicial officers, whilst also ensuring that judicial independence and parliamentary privilege are maintained. Importantly, the committee acknowledges that an ACIC needs to have regard to the public interest in the separation of powers, including the independence of the parliament’s right to control its own affairs.
In relation to the definition of “corruption”, the committee believes that the focus should be on serious and systemic corruption but that legislation should not be drafted in a way that unduly limits the scope of an ACIC. The committee recommends that lower level misconduct should not be captured within an ACIC’s scope and should continue to be investigated by other integrity agencies. Based on these parameters, the committee recommends that an ACT ACIC should have a definition of “corrupt conduct” based on part 3 of the New South Wales ICAC Act.
Another key issue considered by the committee was the threshold for investigation. Establishing an appropriate threshold is critical for the effectiveness of an anti-corruption type body. If the threshold is too high, the body is limited in its ability to act, and if it is too low the body can be accused of contravening natural justice requirements. The threshold is also important because it determines when a body can use its investigative and/or coercive powers. The committee supports an investigation threshold of “reasonable suspicion”, as is used in the Victorian IBAC Act. This threshold balances the requirement for procedural fairness whilst permitting the body to investigate where initially there may only be limited evidence.
In relation to its ability to receive complaints, the committee believes that an ACIC must be visible, accessible and a contact point for public complaints and referrals from other agencies. Whilst visibility and accessibility are important accountability requirements, it is equally important for confidentiality to apply to complaints until a decision is made about holding hearings or reporting on each case. The committee also supports having mandatory reporting within the ACT public service so that an agency head has a duty to notify an ACIC of any information or allegation that raises a corruption issue in his or her agency. At the same time an ACIC must be empowered to protect the safety of complainants or persons making a report.
In relation to the powers of an ACIC, the committee supported the commission having the following features: the power to initiate and conduct its own inquiries; the power to require attendance and answers to questions; the power to apply for warrants to search properties and seize evidence; and the power to engage in covert tactics, including listening devices, surveillance and use of undercover agents. The committee is of the view that the legislation must contain mechanisms to guard against these
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