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CORRUPTION AND CRIME COMMISSION BILL 2003
Introduction and First Reading

Bill introduced, on motion by Mr J.A. McGinty (Attorney General), and read a first time.

Second Reading

MR J.A. McGINTY (Fremantle - Attorney General) [10.31 am]: I move -

That the Bill be now read a second time.

Western Australians deserve a Police Service and a public sector that are free from the scourge of corruption. To achieve this objective, the State Government has taken, and will continue to take, all necessary measures, including the enactment of new legislation, to restore the community’s confidence in the integrity and honesty of those who serve the public. Therefore, this Bill continues and strengthens the Government’s achievements in tackling crime and corruption. It will do so by providing Western Australia with one of the most powerful crime and corruption fighting bodies in Australia. The Corruption and Crime Commission will be able to investigate Western Australian judges, ministers, members of Parliament, police officers and other public officers.
At the last state election, Labor made an important commitment to the people of Western Australia to establish a royal commission into police corruption. In this way we would fight police corruption and restore public confidence in Western Australia’s Police Service. For too many years the community’s demands for action were ignored. This undermined public confidence in our Police Service and jeopardised the reputations of honest and hardworking police officers. The State Government promptly established the Royal Commission Into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers. The constant stream of allegations or admissions of assaults, perjury, theft and bribery has caused even the most cynical to agree that previous efforts to combat police corruption in this State have been ineffective. In an interim report delivered in December 2002, Royal Commissioner Geoffrey Kennedy, AO, QC indicated that it has been possible at an early stage -

to conclude that the identifiable flaws in the structure and powers of the ACC have brought about such a lack of public confidence in the current processes for the investigation of corrupt and criminal conduct that the establishment of a new permanent body is necessary.

The Government has accepted Commissioner Kennedy’s advice and consequently this Bill has several major and innovative features. There are 10 principal ways in which the CCC is an improvement over the Anti-Corruption Commission.
Accountability - a new structure: The CCC will have one commissioner, with provision for an acting commissioner, a parliamentary inspector, and continued monitoring by a parliamentary committee.

To ensure the community and Parliament will have confidence in the commissioner, the appointment of the commissioner can be made only after the Premier has consulted the parliamentary leader of each party in the Parliament. The commissioner will be a person appointed by the Governor, for a term of not more than four years, but with the possibility of reappointment. A person will be eligible for appointment as commissioner if that person is or has been a legal practitioner with not less than eight years legal experience, or is a practising barrister of the High Court of Australia with not less than eight years legal experience. An acting commissioner can be appointed if the workload of the CCC requires more than one commissioner; when the commissioner is unable to perform the functions of that office or is absent from the State; or if the commissioner has declared himself or herself unable to act, perhaps due to an actual or potential conflict of interest.

A greater degree of accountability is achieved through the role of the inspector, which is extremely powerful. The inspector has completely unfettered access to all CCC information, including operational matters and, for the purpose of his or her inquiries, all the powers, protections and immunities of a royal commission. In addition to having a reporting function, the parliamentary inspector will have responsibility for auditing the operations of the CCC and assessing the effectiveness and appropriateness of the CCC’s procedures. In the overall context of the legislation, this office of the parliamentary inspector provides an important balance in relation to the CCC’s extensive powers. Its presence will give Western Australians an additional reason to have confidence in the CCC by ensuring that the CCC’s operations and exercise of powers conform to, and are conducted in accordance with, basic principles underlying the law. With the approval of either House of Parliament or a standing committee, the inspector’s reports may be published. However, the inspector must ensure that his or her reports do not contain information that would identify a person who has been or is likely to be a witness before the CCC or reveal any particular investigation undertaken by the CCC or the Police Service.

Jurisdiction of the CCC - organised crime: The CCC will have three main jurisdictions: investigation of police corruption; investigation of public sector corruption; and a role in relation to the investigation by the police of organised crime. Members should also be aware that this Bill will repeal the Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002 and the Anti-Corruption Commission Act 1988. The Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002 will be substantially reproduced in this Bill. In addition to the desirability of having all relevant provisions in one statute, this Bill will have another major benefit in that it will enable the CCC commissioner to perform the functions of a special commissioner under that Act.

In addition, this Bill will increase police powers to fight organised crime. Other powers that are available to the CCC, such as assumed identities, integrity tests and controlled operations, will be able to be used by the Police Service against drug traffickers, outlaw motorcycle gangs and others associated with organised crime. In order for the police to have access to those powers, the Commissioner of Police will need to satisfy the CCC commissioner that there is a legitimate need for those powers to fight organised crime. These powers will significantly enhance police ability to investigate major crime.

Less secrecy: There will be less secrecy surrounding allegations that are referred to the CCC. A person can, if he chooses to do so, disclose the fact that he has referred a particular allegation of misconduct to the CCC. This should avoid the situation in which a person says, “I have referred this matter to a body which cannot be named.”

Disclosure by the commissioner: There will be less secrecy surrounding the CCC generally. The commissioner can reveal details about particular matters and outcomes of investigations when the commissioner decides that disclosure of those matters is in the public interest. The commissioner can also reveal when a matter has been referred to an appropriate authority or an independent body for consideration of prosecution or disciplinary action of the person concerned.

The secrecy and disclosure provisions are an essential component of this legislation because they will enable the CCC to effectively and successfully conduct investigations. For example, the Bill creates a category of “restricted matter”. In this context, a person is prohibited from disclosing evidence that is before the CCC, or information or documents given to the CCC. Also, the Bill prohibits disclosure of the fact that a person has been, or is about to be, examined by the CCC, or of any information that might enable that person to be identified or located. However, the State Government recognises that there are circumstances in which it will be in the public interest to disclose some matters. First, such restricted matter may be disclosed if it has already been disclosed as part of a public hearing, unless the CCC orders otherwise. Second, disclosure may also be in accordance with a CCC direction or in other specified circumstances. For example, persons may disclose restricted matter to a legal practitioner to obtain legal advice or to a person for the purpose of obtaining legal aid. Thirdly, as I have stated above, the Bill’s prohibitions which relate to restricted matter do not apply to the CCC, the parliamentary inspector, or officers of the CCC or the parliamentary inspector. Notification: There will be more natural justice for people the subject of complaints. If the Corruption and Crime Commission investigates an allegation and recommends that an independent body such as the Director of Public Prosecutions give consideration to prosecution, the independent body will be obliged to notify the person concerned that it has received such a recommendation prior to any charge being laid.

Disclosure and Protection: There will also be greater requirements of disclosure on the CCC. If the CCC recommends that an independent agency give consideration to the prosecution of a particular person, the CCC must also give the independent agency all materials in its possession that would be required for the purposes of section 103 of the Justices Act or section 611B of the Criminal Code if that prosecution took place. Members may recall that those provisions resulted from the Criminal Law (Procedure) Amendment Act 2002 and require disclosure to an accused person by the prosecution.

In view of the extensive powers given to the CCC, the Bill also contains necessary provisions to preserve, protect and safeguard the rights of any person who may be subject to the CCC’s jurisdiction. It also contains provisions to restrict the disclosure of information to protect witnesses and persons being investigated.

The Bill includes provisions that protect the State, ministers, independent agencies, principal officers of notifying authorities and officers who constitute a notifying authority if any of them, in good faith, disclose the fact that the commission has received or initiated an allegation, or the details of an allegation. Similarly, no action in tort lies against the State, ministers, the commissioner, the parliamentary inspector or an official for anything done in good faith or in the performance of a function under this legislation, and no action or proceeding, civil or criminal, lies against the State, a minister or a person employed or engaged by the State in respect of the printing or publishing of a transcript of an examination, or a report of or a recommendation made by the commission or the parliamentary inspector.

The CCC will have greater powers than the ACC: Many Australian States and overseas jurisdictions recognise that corrupt and criminal conduct by public officials, in particular within law enforcement agencies, cannot be effectively investigated and prosecuted by relying on traditional police powers. Consequently, the Government believes that a corruption fighting body must have all of the powers, resources and modern techniques that are now available for the investigation of corrupt, criminal and improper conduct. The CCC will have all of the powers of the Anti-Corruption Commission, plus the powers currently used by the Royal Commission Into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers, including powers to examine on oath, both in public and private; powers to use assumed identities and surveillance devices; and powers to conduct covert activities, such as controlled operations and integrity testing programs. Even when no allegation of misconduct has been made, the CCC may conduct integrity tests on police officers and prescribed classes of public officers. The police royal commission has used this power to great effect by targeting particular groups of people and revealing corruption, such as was evident in the case of Mr Purvey and T2. The purpose behind giving the CCC powerful provisions, such as the ability to conduct integrity tests, is not aimed at otherwise innocent people. It is envisaged that these powers will be used against a person or group of people to reveal criminality that already exists. The relevant provisions should be interpreted accordingly.

There will be serious consequences for people who fail to comply with orders of the CCC. For example, the CCC will be able to issue a warrant for the arrest of a person who has been issued a summons and who fails to attend, or whose evidence is necessary and the CCC is satisfied that the person would not attend without being compelled or was planning to leave the State. Such a warrant would allow an authorised officer to apprehend the person and bring him before the CCC. The CCC will be able to detain a person or impose conditions on his release. However, that person would be able to apply to the Supreme Court for a review of any such CCC decision.

Part 11 of the Bill sets out the offences against the CCC. For example, to assist effective investigations, the Bill prohibits specified actions including the bribing of witnesses, destruction of evidence and victimisation of any person assisting the CCC. Penalties for hindering the CCC are substantial, with many of the offences containing penalties of five years imprisonment, with fines of $100 000.

As I have indicated, strong and extensive powers will be given to the CCC. Therefore, it is appropriate to include a review clause in the Bill. The responsible minister must carry out a review of the operations and effectiveness of the Bill five years after its commencement.

Ombudsman’s Role: The role of the Ombudsman in reviewing police conduct will be transferred to the CCC. For example, the CCC will review a decision made by a police officer when the police officer should have given reasons for his or her decision and did not.

Proactive: The CCC will have the power to be proactive. The CCC will be proactive in relation to all its functions, ranging from taking a strong prevention and education role to investigating matters when there has been no formal allegation of misconduct, and taking the initiative to report on relevant matters.

Prevention and Education Function: The CCC will also have a prevention and education function. The CCC will take an active role in raising the standard of integrity and conduct of public officers and public authorities. It will provide information to, consult with and make recommendations to public authorities and the general community, and it will report on ways to prevent misconduct.

Misconduct Function: A major function of the CCC will be to ensure that allegations and information about misconduct are dealt with in an appropriate way. The CCC will be able to investigate Western Australian judges, ministers, members of Parliament and other public officers and police officers. The commission will be able to receive allegations about misconduct from any person, as well as from the police royal commission, the parliamentary commissioner, the ACC, the Inspector of Custodial Services, the Commissioner of Police, the principal officer of a notifying authority - for example, a department or organisation as defined in the Public Sector Management Act - or an officer who constitutes a notifying authority.

The CCC will perform its misconduct function by -

receiving and initiating allegations of misconduct;
considering whether action is needed in relation to allegations and matters related to misconduct;

investigating or taking other action in relation to allegations and matters related to misconduct if it is appropriate to do so, or referring the allegations or matters to independent agencies or appropriate authorities so that they can take action themselves or in cooperation with the commission;

monitoring the way in which independent agencies and appropriate authorities take action in relation to allegations and matters that are referred to them by the commission;

investigating whether misconduct has or may have occurred, is or may be occurring, or whether further misconduct may be about to occur or is likely to occur; or

furnishing reports and making recommendations on the outcome of investigations, and consulting, cooperating and exchanging information with independent agencies and appropriate authorities.

The CCC may not make a finding or form an opinion on whether a person has committed, is committing, or is about to commit a criminal or disciplinary offence. This is consistent with the position that it is for the prosecuting authorities and the courts to deal with these matters.
Reporting Function: The Bill takes cognisance of the State’s democratic and parliamentary system of government. The CCC will have the ability to prepare a report for presentation to Parliament at any time and on any matter that has been the subject of investigation by the CCC; referred by the police royal commission or Ombudsman; or not completed by the police royal commission or ACC.

The State Government recognises that extraordinary investigatory powers are being conferred on the CCC. Therefore, the Bill also provides for an essential accountability mechanism to independently scrutinise the use of these powers. Therefore, as I have already alluded, a parliamentary inspector of the CCC will be able to audit the operations of, and investigate complaints about, the CCC. Additionally, the parliamentary inspector will be able to assess the CCC’s procedures and report and make recommendations both to the CCC and Parliament.

The CCC may prepare reports -

to Parliament on the investigation of allegations;
to Parliament on the adequacy of further action that has been taken by appropriate authorities;

on any administrative or general policy matter relating to the functions of the CCC;

to the minister, another minister or a standing committee of Parliament;

annually regarding its general activities; and

periodically to each House of Parliament or a standing committee, in accordance with the rules of Parliament.

In addition, the Corruption and Crime Commission may also prepare reports -

to a relevant minister concerning the appointment of a chief executive officer;
to the Minister for Police and Emergency Services concerning a proposed appointment of a Commissioner of Police or commissioned officer;

to the Commissioner of Police or Minister for Police and Emergency Services concerning a proposed appointment of a police officer; and

to the Commissioner of Police concerning a proposed appointment of a special constable or an Aboriginal aide.

The Bill stipulates that only specified persons may have access to these confidential reports. However, the person who is the subject of an adverse report must be given a copy of the report.
Resources: Resourcing will be dramatically increased. The budget for the CCC will be more than twice the budget for the Anti-Corruption Commission. Provision has been made for approximately $21 million in the 2003-04 financial year.

In concluding, I take this opportunity to reassure all honest public officers that they have nothing to fear about this legislation or the CCC. Indeed, the State Government is confident that the vast majority of dedicated and hardworking police officers will welcome this Bill and the creation of the CCC. The Bill will restore the public confidence in the Western Australia Police Service that their corrupt colleagues have eroded. The Government makes no apologies to corrupt public officials. This legislation sends a clear and unequivocal message to these officials. Their conduct will no longer be ignored or tolerated in Western Australia. It will be rigorously investigated and prosecuted.

Finally, in his interim report, Commissioner Kennedy considered it extremely important that there be a smooth transition from the Royal Commission into Commercial Activities of Government and Other Matters and the ACC to the new CCC. Consequently, it is imperative that the CCC be established and operating prior to the conclusion of the royal commission, which is expected to occur on 31 August 2003. Therefore, expeditious passage of this Bill through the Parliament is essential. With this Bill, members have a unique opportunity to support the creation of an effective corruption-fighting agency. This will demonstrate to the people of Western Australia our resolve not to tolerate the appalling behaviour being exposed by the police royal commission.

On behalf of the State Government and the people of Western Australia, I have much pleasure in commending the Bill to the House.

Debate adjourned, on motion by Mr J.H.D. Day.