Page 5140 - Week 13 - Thursday, 29 November 2018
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corrupt conduct and the penalty imposed, which will undoubtedly result in many more referrals to our integrity commission.
This further reinforces the need to have an appropriate threshold for corrupt conduct. The government understands that this is a significant responsibility being placed on individuals in the public sector and that, beyond a large offence penalty, being convicted could have significant ramifications for their career. It also reflects the government’s determination that strong governance be everyone’s responsibility, and that every senior official must act if they suspect corrupt conduct is taking place.
The commission possesses wide discretion to accept or reject complaints or notifications, and to undertake an investigation or refer a matter to another entity. The bill provides that the commission should triage all complaints and notifications based on criteria to dismiss, refer or investigate. These provisions ensure that the commission can refer complaints to other entities more suitable to handle them.
As part of its investigatory functions, the commission will have extensive coercive powers: surveillance operations, wire-tapping, and search and seizure powers; and the ability to compel individuals to self-incriminate. These coercive powers will limit human rights that are normally available to all persons. Where human rights are limited through the use of extraordinary powers, the government is of the belief that this should only be done to address the most serious corrupt conduct or systemic corrupt conduct.
The bill also has a low threshold for commencing investigations: “suspects on reasonable grounds that the conduct in the corruption report may constitute corrupt conduct”. The threshold for investigation is critical to the effectiveness of the integrity commission. If it is too high, the commission is limited in its ability to act. If it is too low, it can be argued that it permits the commission to commence an investigation using investigative and coercive powers on the basis of limited evidence, and can be accused of contravening procedural fairness and natural justice requirements and also of breaching human rights.
The select committee recommended that the legislation prohibit the use of summons in preliminary inquiries. Instead of a preliminary inquiry summons, the bill includes a preliminary inquiry notice to produce requirement, which is similar to the powers used by other bodies, including the Auditor-General and the Ombudsman. The commissioner is still able to give a notice to someone to produce a document or a thing before the commission. Failure to comply with a preliminary inquiry notice is an offence under chapter 7 of the Criminal Code. However, a person does not have to comply with a preliminary inquiry notice if they have a reasonable excuse.
All privileges, including privilege against self-incrimination, are available to be claimed during a preliminary investigation. It is useful to note that, prior to relying on the use of a preliminary inquiry notice, there are other avenues that the commission can take, including asking the relevant entity for information or documents to assist with the inquiry. If this information is not forthcoming, a formal request can then be made under the bill. The head of the public sector entity has seven days to comply with the request.
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