Page 4640 - Week 13 - Tuesday, 31 October 2017
exceptional powers being abused, including safeguards to avoid any unwarranted violation of the personal rights of a person under investigation. The committee did not support giving a commission a general power to engage in integrity testing or to arm its officers.
In relation to the power to make findings, the committee recommends that an ACIC have the power to make findings of fact that corruption has occurred, and that such findings should not be taken as a finding of guilt. The ACIC should be explicitly restricted from reaching formal determinations of law which would usurp the role of the courts. Furthermore, the commission should be empowered to refer suspected instances of criminality to appropriate authorities, such as the Director of Public Prosecutions.
On the issue of retrospectivity, the committee recommends that an ACIC not be limited as to the time frames around which former actions can be assessed. The committee acknowledges that an ACIC must be able to look into matters that happened before it commenced operation if it is to enjoy public confidence but that individuals can only be prosecuted under offences that existed at that time. While the commission should be able to look at retrospective issues, the committee believes that the operational focus of an ACIC should largely be prospective and focused on current matters.
One of the most complicated and contentious issues that the committee considered was whether an integrity commission should have the power to hold public hearings. In considering all views, the committee sought to draw a balance between the legitimate objectives of public examinations—that is, transparency and accountability, public confidence in the body, the discovery of further evidence and the general deterrent effect—with the possibility of undeserved reputational damage or the potential to compromise the integrity of judicial proceedings. Having considered these factors, the committee is of the view that an ACIC should have the power to hold public examinations and that the decision to hold public examinations should be informed by a public interest test.
Finally, the committee considered features which would maintain the accountability and independence of an ACIC. The committee has formed the view that the statutory head of an ACIC should be an officer of the Assembly. The financial and operational independence from the executive was a primary consideration in this recommendation, and the committee felt there was benefit in aligning the head of an ACIC with the Ombudsman and the Auditor-General under the ACT’s integrity framework. The committee also recommends an accountability regime for an ACIC which includes oversight by an Assembly standing committee, as well as oversight by an inspector or inspectorate-type mechanism to receive and investigate complaints related to the ACIC’s conduct and operations.
On behalf of the committee, I wish to thank all those who have contributed to this inquiry by making submissions and/or appearing before the committee to give evidence. The committee recognises the significant commitment of time and resources required to participate in an inquiry of this nature and is appreciative that it was able to draw on a broad range of expertise and experience in its deliberations. In this report