House of Representatives

Explanatory Memorandum

Circulated by Authority of the Minister for Justice, the Honourable Brendan O'Connor MP

Schedule 1 - Integrity commissioner amendments

In 2006, the Law Enforcement Integrity Commissioner Act (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's functions include to 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.

ACLEI present jurisdiction includes all the activities of the Australian Federal Police, the Australian Crime Commission and the former National Crime Authority. From January 2011, it has also has responsibility for investigating corrupt conduct relating to the law enforcement functions of the Australian Customs Border Protection Service (ACBPS), following that agency's prescription in Regulations made under the LEIC Act. The inclusion of the ACBPS within ACLEI's jurisdiction under the LEIC Act will enable ACLEI to investigate corrupt conduct relating to all ACBPS functions.

The inclusion of ACBPS within ACLEI's jurisdiction on a whole of agency basis will implement Recommendation 3 of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity's interim report on the Inquiry into the LEIC Act and the Government's response to this report.

Customs Administration Act 1985

Item 1 - After paragraph 16(2)(c)

Item 1 will add a new paragraph to subsection 16(2) of the Customs Administration Act 1985 so that non-disclosure obligations applying to individuals do not preclude disclosures made for the purposes of the LEIC Act or Regulations under the LEIC Act. This will bring the Customs secrecy provision in line with the Australian Crime Commission (ACC) and Australian Federal Police (AFP) provisions in relation to disclosures to the Integrity Commissioner or ACLEI.

Section 16 of the Customs Administration Act prohibits the disclosure of certain ACBPS information by ACBPS employees and others referred to in section 16(1AA) of that Act. It is an offence for these individuals to directly or indirectly make a record of, or disclose to any person, any protected information, if the record or disclosure is outside the course of their employment, or made without legislative authority. Similar provisions appear in the Australian Federal Police Act 1979 ( section 60A) and the Australian Crime Commission Act 2002 ( section 51), but explicitly permit disclosure made for the purpose of the LEIC Act.

The amendments in this Schedule will include the ACBPS within ACLEI's jurisdiction. Therefore, it is important that there is explicit provision for ACBPS employees and others covered by the Customs Administration Act to disclose information to the Integrity Commissioner or ACLEI in relation to corruption allegations arising within the ACBPS.

Law Enforcement Integrity Commissioner Act 2006

Items 2 and 3 - Subsection 5(1)

Item 2 will amend the definition of 'head of a government agency' in section 5 of the LEIC Act, to include the Chief Executive Officer of Customs, as the head of a government agency for the purposes of the LEIC Act.

Item 3 will amend the definition of 'law enforcement agency,' in section 5 of the LEIC Act to include 'Customs.'

Section 4AA of the Customs Administration Act provides that 'Customs' means the agency continued in existence under subsection 4(1). Section 4(1) of the Customs Administration Act provides that the agency previously known as the Australian Customs Service is continued in existence with the new name, the ACBPS. The reference to 'Customs' in the LEIC Act therefore covers past and present staff members of the ACBPS and its predecessor, the Australian Customs Service.

The inclusion of 'Customs' in the definition of a law enforcement agency in the LEIC Act has the effect of providing the Integrity Commissioner with the jurisdiction to investigate corrupt conduct engaged in by all Customs staff members, even if the particular functions performed by the staff member fall outside the boundaries of a traditional law enforcement role. This is appropriate because Customs officers may have access to information that is likely to be of interest to those engaged in serious and organised crime, regardless of whether the officer performs a specific law enforcement function within Customs. In addition, Customs also rotates officers between roles of a law enforcement and non-law enforcement nature, such that a Customs officer could use information obtained while in a law enforcement role while performing a non-law enforcement role. Including all Customs' functions within ACLEI's jurisdiction on a whole of agency basis is also consistent with the current application of the LEIC Act to all AFP and ACC staff, regardless of their role.

Item 4 and 5 - After subsection 10(2) and paragraph 10(5)(b)

Section 10 of the LEIC Act defines 'staff members of law enforcement agencies' for the purposes of the Act. Subsection 10(5) identifies which of those staff members in subsection 10(1) to 10(4) are 'secondees' for the purposes of the Act.

Item 4 amends section 10, to include a definition of 'Customs staff members'. The purpose of the amendment is to provide the Integrity Commissioner with jurisdiction to investigate allegations of corruption made against, or relating to, the CEO of Customs, a Customs employee, or a person authorised in writing by the CEO of Customs to perform a function of a person employed in Customs. This definition includes Commonwealth, State and Territory employees who are seconded to Customs, as well as individuals who are not in other government employment, who are authorised by the CEO of Customs to perform a function of a person employed in Customs.

Item 5 amends section 10(5) of the LEIC Act, to identify which Customs staff members are also secondees, for the purposes of the Act. New paragraph 10(5)(ba) will specify that all persons authorised by the CEO of Customs to perform a function of a person employed in Customs are secondees for the purposes of the Act. The effect of this, in combination with other provisions in the LEIC Act, is that the Integrity Commissioner has an obligation to notify the head of a government agency about a corruption issue involving one of their employees who has been authorised by the CEO of Customs to perform a Customs function.

Item 6 - Application

This item is an application provision that provides that ACLEI's jurisdiction to investigate any corrupt conduct by staff members of Customs extends to all conduct regardless of whether it was engaged in before or after the commencement of the LEIC Act on 30 June 2006. The effect of this provision is that the Integrity Commissioner can, of his or her own volition, investigate corruption issues within Customs irrespective of when the relevant conduct occurred.

Under section 19 of the LEIC Act, the Chief Executive Officer (CEO) of Customs is required to notify the Integrity Commissioner in writing of a corruption issue as soon as practicable after the CEO becomes aware of the allegation or information that raises the issue. However, the application provision ensures that this requirement only applies after the commencement of the item. This means that although the Integrity Commissioner will have the authority to investigate conduct occurring prior to the commencement of the Act, the CEO's notification obligation will only apply to conduct occurring after commencement.

The application provision also confirms that the Integrity Commissioner's authority to investigate previous corrupt conduct in ACBPS extends to conduct that occurred while the agency was known as the Australian Customs Service.