The Independent Commission Against Corruption Act 2012 (SA), Section 7, ‘Functions’, provides among other things that: The Commissioner is to perform his or her functions in a manner that— (a) is as open and accountable as is practicable, while recognising, in particular, that— (i) examinations relating to corruption in public administration must be conducted in private … Under the same section, the Act provides that the Commissioner ‘may conduct a public inquiry’, but only in relation to the Commissioner’s specific functions: ‘to evaluate the practices, policies and procedures of inquiry agencies and public authorities with a view to advancing comprehensive and effective systems for preventing or minimising corruption, misconduct and maladministration in public administration’; and ‘to conduct or facilitate the conduct of educational programs designed to prevent or minimise corruption, misconduct and maladministration in public administration’. Unlike other Acts considered in this paper, the Independent Commission Against Corruption Act 2012 (SA) appears to ‘lean’ toward private hearings for investigations conducted under the Act. In this case this does not appear to be an artefact of legislative drafting, but a substantive characteristic of the Act.
This issues paper has reviewed contemporary legislation which creates integrity commissions in each of the Australian state jurisdictions. It will be noted that there are common elements amongst all of these legislative schemes for integrity commissions. There are also significant differences. Oversight for such a commission is commonly provided for by a parliamentary committee. In some jurisdictions there is also a commissioner independent of the integrity commission who has a key role in such oversight. In Victoria this function is performed by an Integrity Commission which holds this responsibility in relation to a number of organisations which have integrity functions. The Acts creating integrity commissions provide that such commissions will hold ‘examinations’ in connection with their investigations, and that people summonsed to appear must appear, must answer questions, or produce documents as stipulated by the summons. Acts considered here include those which provide significant penalties for not complying with such directions, such as South Australia (see above). Some acts provide extensive scope of action to integrity commissions. An example is the authority for officers of the commission to use firearms and protective equipment as provided in Victoria (see above), which may encourage a perception that the integrity commission has been elevated into a kind of second police force. Similarly, in some jurisdictions (such as Queensland, above) explicit powers are provided to authorise covert operations, including in some case specific provisions that limit the liability of officers engaged in such operations, including so-called ‘controlled operations’, where officers may be required to engage in conduct otherwise considered illegal, for the sake of a commission investigation. These powers are also similar to those of a police force. Interrelated questions of scope of action and responsibility form an important line of difference overall. In some jurisdictions integrity commissions are constituted by their acts specifically to address corruption and misconduct. In others the relevant commission also has a responsibility to investigate and respond to organised or ‘major’ crime. Relevant legislation may also make separate provision for responses to more or less serious misconduct, with different and distinct processes and players in either case, as in Queensland. Arguments may be anticipated on both sides of the question as to whether integrity commissions should have such powers.