Legal Practitioners Must Ensure That Relevant Requirements Are Observed

HEARING

GUIDELINES

These Hearing Guidelines are intended to inform and guide the conduct of appearances and legal representation concerning hearings before the Integrity Commissioner, including appearance for the sole purpose of producing documents. The Hearing Guidelines are designed to promote the efficient and effective conduct of hearings, and do not prevent the Integrity Commissioner from making additional directions or giving further guidance in regulating any hearing.

Legal practitioners must ensure that relevant requirements are observed.

Separate guidelines apply in the case of LEIC Act notices to produce.

These Hearing Guidelines are published as part of ACLEI’s

operational information under its Information Publication Scheme.

December 2013

ACLEI Hearing Guidelines

Page 2 of 29

As at December 2013

The current Hearing Guidelines, as amended from time to time,

may be downloaded from the Australian Commission for

Law Enforcement Integrity website at

or requested from ACLEI on (02) 6141 2300 or

via e-mail,

CONTENTS: PAGE:

Summary3

1.Introduction5

2.Context and nature of hearings6

3.Restrictions on disclosure of summons8

4.Witnesses and legal representatives9

5.Hearing process12

6.Self-incrimination indemnity18

7.Dealing with legal professional privilege19

8.Other privileges21

9.Dealing with hearing material 24

10.Protection of witnesses27

11.Special issues27

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Hearing Guidelines
Australian Commission for Law Enforcement Integrity, Canberra.

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SUMMARY

The office of Integrity Commissioner and the Australian Commission for Law Enforcement Integrity (ACLEI) are established under the Law Enforcement Integrity Commissioner Act 2006 (the LEICAct). The LEICAct confers a range of functions and powers on the Integrity Commissioner in relation to corruption issues and integrity matters in the Australian Crime Commission (ACC), the Australian Customs and Border Protection Service, the Australian Federal Police (AFP), the CrimTrac Agency, AUSTRAC, and certain designated parts of the Department of Agriculture. ACLEI supports the Integrity Commissioner in performing those functions and exercising those powers.

The Integrity Commissioner conducts investigations of corruption issues and, at the Minister’s request, public inquiries into any issue about corruption or integrity within the LEIC Act agencies. For the purposes of such investigations and inquiries, the Integrity Commissioner may conduct public or private hearings. These Hearing Guidelines provide information about the hearing process for witnesses and their legal representatives.

The Integrity Commissioner may, and in some cases must, include in a summons to attend a hearing a notation requiring the recipient, subject to limited exceptions designed to facilitate compliance and the taking of legal advice, not to disclose any information about the summons or related matters. Breach of the notation while it remains in force is a criminal offence.

The Integrity Commissioner is not required, before conducting a hearing, to disclose the purpose of the investigation or the extent or nature of the evidence already acquired, if that will prejudice an investigation. The witness does not appear to support a particular case, but to provide information.

The Integrity Commissioner has full control of the hearing and contemptuous conduct by a witness may result in prosecution, or summary contempt proceedings before the Federal Court of Australia or a Supreme Court of a State or Territory. The Integrity Commissioner may decide to conduct hearings in private, although in the case of a public inquiry there is a presumption in favour of public hearings. The Integrity Commissioner can prohibit publication of evidence given before him or her, or of the identity of a witness.

The Integrity Commissioner determines who may appear as a witness. Witnesses, including voluntary witnesses, will normally be summoned to appear. No person may appear as of right, but a person wishing to appear should submit a written application to the Integrity Commissioner, setting out his or her reasons. The Integrity Commissioner will agree to excuse a witness from attending only in exceptional circumstances.

The Integrity Commissioner may be supported by Counsel Assisting or another suitably qualified person. Witnesses have a right to legal representation, but not necessarily to specific legal representatives. In rare cases, an interested third party may be represented with the Integrity Commissioner’s leave. Legal representatives should seek leave to appear at or before the hearing. The Integrity Commissioner may refuse leave to a particular legal practitioner, especially if one practitioner seeks leave to appear for two or more witnesses. If operational considerations are relevant, it may not always be possible to give full reasons for such decisions.

Being summoned to a hearing overrides privilege against self-incrimination. However, a witness who gives information, or a document or thing, that would tend to incriminate him or herself will automatically have direct use indemnity, without needing to claim it. The hearing process does not override legal professional privilege (client legal privilege) save in the case of the Commonwealth.

The Integrity Commissioner expects witnesses to participate in the hearing in a cooperative manner. As a general rule, a witness cannot rely on public interest immunity or a secrecy provision in any law as a reason for refusing to answer a question, or to produce a document or thing. The Integrity Commissioner takes the preliminary view that all other forms of privilege or immunity that might apply in court proceedings are overridden by the hearing process.

If the witness has been charged with an offence, the Integrity Commissioner may prevent the asking of questions related to the subject matter of the charge, or may insist on answers to such questions and take steps to prevent the prosecution at any trial obtaining any advantage from the answers given.

There is no automatic right to examine or cross-examine. The Integrity Commissioner decides who may do so in light of all relevant considerations. A person wishing to examine or cross-examine a witness should apply to the Integrity Commissioner, either before or during the course of the hearing, setting out his or her reasons. The Integrity Commissioner will give reasons for the decision unless to do so would prejudice an investigation.

Because a hearing by the Integrity Commissioner is part of an investigation, the rules of evidence do not apply. A legal representative may question the relevance or purpose of particular evidence, but, in framing a submission, should bear in mind the open-ended character of an investigation in comparison with a trial. A successful submission is likely to be one that queries the potential utility of the evidence in the investigation.

The Integrity Commissioner will normally give a person the opportunity to respond to adverse evidence given in a public hearing. If adverse evidence about a person were given at a private hearing, the Integrity Commissioner need not give the person an opportunity to respond if the evidence were not relevant to the Integrity Commissioner’s findings in the matter.

Challenges to warrants issued to the Integrity Commissioner or ACLEI should be initiated in the appropriate court. Questions as to the Integrity Commissioner’s jurisdiction in a matter should be raised with the Integrity Commissioner in advance of the hearing, or a challenge on this basis initiated in the Federal Court. The Integrity Commissioner may not consider a submission challenging jurisdiction, or the validity of a warrant, or seeking access to relevant documents, in the course of a hearing.

A witness who complies in good faith with all hearing requirements is protected against civil or criminal legal action on account of that compliance. In addition, the Integrity Commissioner has authority to take measures for the physical protection of a witness whose safety is at risk, or who may be intimidated or harassed, because the person has given, or is to give, information, or a document or thing, in compliance with a requirement made by the Integrity Commissioner in the course of or related to a hearing.

1.INTRODUCTION

1.1Purpose of Hearing Guidelines

1.1.1These Hearing Guidelines are intended to inform and guide the conduct of witnesses, legal representatives and other interested persons at or in connection with hearings by the Integrity Commissioner, in order to promote the efficient and effective conduct of such hearings.

1.2The LEICAct and its objects

1.2.1The Australian Commission for Law Enforcement Integrity (ACLEI) is a Commonwealth statutory agency established by the Law Enforcement Integrity Commissioner Act 2006 (the LEICAct). The objects of the LEICAct are to facilitate the detection, investigation, prosecution and prevention of corrupt conduct, and to maintain and improve the integrity of staff members, in law enforcement agencies (s3(1)).

1.3The Integrity Commissioner and ACLEI

1.3.1ACLEI is headed by the Integrity Commissioner. The LEICAct confers on the Integrity Commissioner a range of investigation, intelligence and reporting functions in relation to corruption in law enforcement agencies (s15). The function of ACLEI is to support the Integrity Commissioner in performing those functions.

1.3.2The agencies currently defined as law enforcement agencies, and therefore within the Integrity Commissioner’s jurisdiction, are the Australian Crime Commission (and its predecessor, the former National Crime Authority), the Australian Customs and Border Protection Service, the Australian Federal Police, AUSTRAC, the CrimTrac Agency, and the Department of Agriculture (s5(1)). However, not all staff members of the Department of Agriculture fall within the Integrity Commissioner’s jurisdiction (s10(2E)). Other agencies, or parts of agencies, may be added to the jurisdiction from time to time, by Regulation.

1.4Investigations

1.4.1The Integrity Commissioner conducts:

investigations of corruption issues under Part 6 (Part6 investigations), and
public inquiries, requested by the Minister, under Part 8 (Part8 inquiries).

1.4.2In these Hearing Guidelines, in cases where the distinction is not significant, Part6 investigations and Part 8 inquiries are collectively referred to as ‘investigations’.

1.5Hearings

1.5.1The Integrity Commissioner may conduct a hearing for the purposes of an investigation. A hearing, or part of a hearing, may be conducted in public or in private (s82), although there is a presumption that a hearing in relation to a public inquiry should be held in public (s82(5)).

1.5.2Subject to the requirements of the LEICAct, a hearing may be conducted in such manner as the Integrity Commissioner thinks fit (s82(2)).

1.6Assistant Integrity Commissioner

1.6.1The Integrity Commissioner may delegate to an Assistant Integrity Commissioner any power under the LEICAct (s219). Unless otherwise indicated, a reference to the Integrity Commissioner in these Hearing Guidelines includes an Assistant Integrity Commissioner acting under such a delegation.

1.7References to legislation

1.7.1Unless otherwise indicated, all references to legislation in these Hearing Guidelines are to the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act).

2. CONTEXT AND NATURE OF HEARINGS

2.1Hearings are part of the investigation process

2.1.1ACLEI is a law enforcement investigative body. Hearings are held for the purposes of an investigation, to enable the Integrity Commissioner to be informed on relevant matters in order to get to the truth of an allegation. For this purpose, the Integrity Commissioner may direct an investigation into the issue under consideration and require persons and organisations to provide information and produce documents, despite the privilege against self-incrimination and most other forms of privilege which are normally applicable.

2.1.2Hearings are only one means by which the Integrity Commissioner may obtain information or evidence to support an investigation. In the case of Part 6 investigations, the Integrity Commissioner’s intention is to use hearings to support effective, efficient and well planned investigations. Different considerations may apply in a Part 8 public inquiry, depending upon the nature of the issue that the Minister has requested the Integrity Commissioner to inquire into, and the submissions to the inquiry.

2.2Hearings differ from court proceedings

2.2.1The Integrity Commissioner does not perform a judicial function or form part of the administration of justice.[1] The Integrity Commissioner does not make conclusions or findings in regard to criminal or civil liability and his or her hearings are inquisitorial and not adversarial in nature. To that extent, a hearing before the Integrity Commissioner differs from criminal proceedings, even though a hearing can examine issues of criminal law and justice.

2.2.2Unlike a party to court proceedings, a person who is asked to give evidence during a hearing by the Integrity Commissioner does not have a ‘case’ to pursue. The following extract explains this point:

Persons who are asked to assist an inquisitorial inquiry by giving evidence on matters being investigated do not have a ‘case’. They have evidence to give. There may be adverse evidence that they wish to counter. They may have an interest in trying to ward off various conclusions which they fear the investigating inquiry may reach. And in preparing their evidence with all these things in mind, they may well need the assistance of legal advisers. But the conception that a witness needs to prepare a ‘case’ introduces an element inherent to adversarial proceedings but alien to an inquisitorial inquiry, at least at the investigative stage.[2]

2.2.3The word “hearing”, as employed in the LEICAct, has no significance other than to describe a process whereby the Integrity Commissioner may gather information and evidence, and exercise certain coercive powers, for the purposes of supporting an investigation. The purpose of the hearing is not to decide an issue, but to progress an investigation by assisting the Integrity Commissioner to discover facts that may lead to further action being taken. At the completion of an investigation, the Integrity Commissioner may make recommendations, express opinions, refer material to relevant prosecutorial authorities and communicate the results of an investigation to the Minister or to Parliament (see ss54, 55, 57, 73, 74, 142–147).

2.2.4There is no set approach or procedure to be followed at a hearing. Equally, the rules of procedural fairness at a hearing must adapt to the role and powers of the Integrity Commissioner in conducting an investigation into a corruption issue. In particular, it will usually be inappropriate for the Integrity Commissioner, in advance of a person’s attendance at a hearing, to disclose information that has been acquired as a result of an investigation or received from other sources.

2.2.5Part IIA of the Public Order (Protection of Person and Property) Act 1971 (the POAct)permits the use of certain powers in relation to a hearing. The Integrity Commissioner has authorised ACLEI officers under the POAct to:

require a person to provide personal particulars and evidence of identity; and
require a person to submit to a frisk search and deposit any hazardous substance or weapon.

2.2.6Additionally, under the PO Act, a person must not enter into, or remain upon premises occupied or used by the Integrity Commissioner in connection with hearings or other operations conducted by the Integrity Commissioner, while they are in possession of any firearm, explosive substance or an offensive weapon. Consequently, any law enforcement officer or person in possession of an offensive weapon (eg. Oleoresin Capsicum or ‘OC’ spray, batons, or firearm), must either attend the hearing without their appointments, or surrender their appointments to an ACLEI authorised officer upon their attendance.

2.2.7Any non-compliance with the POAct may constitute a criminal offence (s13C(2), s13D(2) and s13F of the POAct).

2.3Scope of investigations and hearings

2.3.1The jurisdiction of the Integrity Commissioner to conduct an investigation and to hold a hearing is defined broadly in the LEICAct. Firstly, the Integrity Commissioner has power to investigate a ‘corruption issue’ that relates to a law enforcement agency (eg, ss7, 9, 15, 26). The issue under investigation can be notified to the Integrity Commissioner by a law enforcement agency, or referred by the Minister, any person or government agency (ss18, 19, 23). An investigation can also be commenced on the own initiative of the Integrity Commissioner (s38). Secondly, at the request of the Minister, the Integrity Commissioner may conduct a public inquiry into a corruption issue, into the issue of corruption generally in law enforcement agencies, or into an issue about the integrity of staff members of those agencies (s71).

2.3.2The Integrity Commissioner may choose to hold a hearing for the purpose of investigating a corruption issue or conducting a public inquiry (s82(1)).

2.3.3The LEICAct places no obligation on the Integrity Commissioner to define or publish terms of reference for an investigation or inquiry. The nature of the information which the Integrity Commissioner is required to provide to a person in advance of a hearing is spelt out in two provisions of the LEICAct. First, subsection83(4) provides that a summons requiring a person to give evidence at a hearing that is being held for the purpose of a corruption issue, ‘must set out, so far as is reasonably practicable, the general nature of the matters in relation to which the Integrity Commissioner intends to question the person’. In practice, while a witness will be given some notice as to the line of questioning they will face at the hearing, care will also be taken to ensure this advance notice does not prejudice any ongoing investigations. Secondly, section72 provides that the Integrity Commissioner ‘must invite submissions on the issues that are to be the subject of [a] public inquiry’. It is implicit in that requirement that the Integrity Commissioner must provide public notice of the issues that will be dealt with at the public inquiry.

2.3.4Consistent with the obligation to observe procedural fairness, the Integrity Commissioner will deal with any relevant question raised by a party or legal representative during the course of a hearing concerning the scope or direction of the investigation, the hearing or the examination of a witness. It may not be possible for the Integrity Commissioner to deal with such a question at the time it is raised, because of the need for confidentiality or to allow an investigation to take its proper course. The Integrity Commissioner will not normally deal with submissions or questions of this kind in advance of a hearing. An exception, dealt with later in Section 11 of these Notes below, is that a submission framed as a question concerning, or challenge to, the jurisdiction of the Integrity Commissioner should ordinarily be made in advance of a hearing.

2.4Obtaining evidence by notice rather than hearing

2.4.1Independently of a hearing, the Integrity Commissioner may, by written notice served on a person, require the person to provide information or a document or thing specified in the notice within a specified period (s75). Similar principles apply to a notice under section75 as apply to summonses, concerning legal professional privilege, self-incrimination and legal protection for compliance (ss79–81). It is an offence if a person fails to comply with a notice (s78) or discloses information about the notice contrary to a notation prohibiting disclosure of such information (ss77A and 77B). See also the separate Notices Guidelines which are available on the ACLEI website,