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CHAPTER 2

Strategy and performance of the Australian Commission for Law Enforcement Integrity

2.1        The primary purpose of ACLEI is to 'enhance the integrity of Commonwealth law enforcement agencies by providing independent and effective external investigation of possible instances of corruption' in those agencies.[1] The vision of ACLEI is for an 'Australian Government law enforcement culture that resists corruption'. Its mission is to 'support the Integrity Commissioner to detect, disrupt and deter corrupt conduct' and its responsibilities are to:

• detect, investigate and prevent corrupt conduct;
• maintain and improve the integrity of law enforcement staff, through awareness-raising and making recommendations for reform of practices and laws;
• collect and analyse information about corruption, and inform the Australian Parliament about patterns and trends.[2]

ACLEI's jurisdiction                                                 

2.2        The Commonwealth agencies currently within ACLEI's jurisdiction include the Australian Crime Commission (ACC), the Australian Federal Police (AFP) and as of 1 January 2011, the Australian Customs and Border Protection Service (ACBPS).

2.3        In its interim inquiry report into the Operation of the Law Enforcement Integrity Commissioner Act 2006 of February 2010, the committee had recommended an extension of the Integrity Commissioner's jurisdiction to include the ACBPS.[3] Furthermore, the committee's final report in relation to its inquiry into the Operation of the Law Enforcement Integrity Commissioner Act 2006 tabled in July 2011 recommended that ACLEI's jurisdiction be further expanded to include all staff of the Australian Transaction and Reporting Analysis Centre (AUSTRAC), CrimTrac and Biosecurity staff of the Department of Agriculture, Fisheries and Forestry (DAFF Biosecurity). The committee identified these agency staff as subject to a higher potential risk of infiltration by organised crime because of the nature of their work. This recommendation was realised when the Minister for Home Affairs and Justice introduced the Law Enforcement Integrity Legislation Amendment Bill 2012 which was passed by Parliament on 27 November 2012. The three new agencies will come under ACLEI's jurisdiction from 1 July 2013.

Strengthening Australia's common integrity platform

2.4        In its 2011 inquiry into the Operation of the Law Enforcement Integrity Commissioner Act 2006, the committee made 21 recommendations focused on strengthening the operations of the Act or improving Australia's anti-corruption arrangements more generally. During 2011-12, the government introduced a number of key measures to strengthen the LEIC Act which implemented the committee's recommendations. By highlighting these measures, the Integrity Commissioner, Mr Philip Moss noted in the annual report that these developments had made 2012 a 'landmark year for Australia's integrity framework and for ACLEI's development'.[4] Such measures include the:

• Crimes Legislation Amendment Act (No. 2) of 2011 which amended the LEIC Act to include the ACBPS within the Integrity Commissioner's jurisdiction.[5]
• Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 which gives effect to recommendations made by the committee in its interim report into the Operation of the Law Enforcement Integrity Commissioner Act 2006. The Integrity Commissioner noted the following regarding the legislation:

Principal among these changes is the addition of a preventive function to complement the Integrity Commissioner's existing investigation responsibilities, which clarifies ACLEI's role in this important area. I note that the committee first recommended a form of preventive function for ACLEI in 2009 in its report into law enforcement integrity models.[6]

• Amendment to the Customs Administration Act 1985 to provide for the authorisation of the disclosure of protected information for the purposes of the LEIC Act.[7]
• Crimes Legislation Amendment (Powers and Offences) Act 2012 which amends the LEIC Act to extend the maximum term of appointment of an Integrity Commissioner from five to seven years.[8] The Act received Royal Assent on 4 April 2012.
• Law Enforcement Integrity Legislation Amendment Bill 2012 which was passed by Parliament on 27 November 2012. The bill introduces targeted integrity testing for staff of the AFP, ACC and ACBPS as recommended by the committee and extends the Integrity Commissioner's jurisdiction to include all staff of AUSTRAC, CrimTrac and Biosecurity staff of DAFF (formerly Australian Quarantine and Inspection Service). The Integrity Commissioner informed the committee that these measures will help 'build a common integrity platform that has the LEIC Act at its core'.[9]

2.1        The Integrity Commissioner noted that the combined effect of the legislation introduced over the review period contributes to a 'common integrity platform' by minimalising the differences or variations in standards between the agencies under ACLEI's jurisdiction.[10] Mr Moss explained that the three agencies currently under its purview:

work together so closely they now have, through their CEOs, powers to deal with situations of high vulnerability for their staff. Should misconduct of a serious nature leading to corrupt conduct occur, there are enhanced powers now for the ACC. As you would remember, it was an earlier recommendation of this committee that loss-of-confidence power be given to the ACC CEO; now that has been given also to the CEO of Customs and Border Protection. The other elements in the common platform for Customs include integrity testing across all three agencies, the requirement to report on a mandatory basis and drug testing. All these measures add up to a common approach for the agencies within my jurisdiction and for those that come into the jurisdiction in July next year.[11]

Strategy and direction

2.5        ACLEI assists the ACC, ACBPS and AFP to maintain the integrity of their staff in the face of risks associated with law enforcement activities that may give rise to corrupt conduct. Under the LEIC Act, the Integrity Commissioner is required to give priority to serious or systemic corruption in those agencies and focuses therefore on corruption issues that may:

• involve a suspected link between law enforcement and organised crime;
• bring into doubt the integrity of senior law enforcement managers;
• relate to law enforcement activities that have a higher inherent corruption risk;
• warrant the use of the Integrity Commissioner's information-gathering powers, including hearings; or
• would otherwise benefit from independent investigation.[12]

2.6        The 'Integrity Commissioner's Review' contained within the 2011-12 annual report details some of the ongoing and emerging strategies employed by ACLEI over the review period including development of:

• capabilities that support covert investigation including greater use of telecommunications interception methods;
• specialisation in corruption prevention which will be 'an important strategic engagement tool to raise awareness in agencies about ACLEI and about corruption risks generally' and ensure the alignment across agencies, including those new to the LEIC Act framework, with a common integrity platform;[13] and  
• a well-directed detection function. To this end, an 'Emerging Issues Team' was created to examine whether corruption indicators observed in one operational environment are present in other similar environments.[14]

2.7        During the period of review, the 'ACLEI corruption risk approach framework and corruption probability model' were developed which 'offer a framework to aid the identification of corruption risk and how corruption may happen in practice, and to interpret patterns and trends'.[15]

2.8        In previous annual reports, ACLEI has highlighted its two-level approach to corruption whereby corruption investigations and organised crime investigations operate in partnership to counter organised crime activities. In the 2011-12 report, ACLEI made the following observations about this approach:

Law enforcement agencies and ACLEI investigate the 'corruption handshake' from complementary perspectives. Law enforcement agencies lead the collection of intelligence about organised crime, and this information can provide insights about corrupt conduct and corruption risk. Likewise, integrity investigations, by examining the conduct of possibly corrupt law enforcement officers, can yield new information about the activities and methods of criminal groups.

Accordingly, ACLEI engages with the operational 'core business' areas of the agencies in the Integrity Commissioner’s jurisdiction, as well as with their professional standards units, to share information about organised crime operations and to work together to counter threats to law enforcement integrity.[16]

2.2        Mr Stephen Hayward, ACLEI's Executive Director Operations, informed the committee that the legislation providing for drug testing was a good example of an initiative emanating from ACLEI operations where operational and preventive strategies move in tandem:

It is about matching what we see in our investigations and allowing the agencies through, for instance, the customs integrity implementation project to move along with us to strengthen their integrity framework. Sometimes that is a delicate dance, for operational reasons. But on these occasions we have been able to move both the operational side and the preventive side along the road together, which enables the agency to manage its risks and match their measures against the risks as we see them rather than at the end of the day...We are not adopting a linear approach. It is about how we do this in that partnership arrangement.[17]

2.9        In addition to its normal activities, ACLEI gave priority during 2011-12 to six key projects, namely:

• investigating a number of serious corruption issues, some of which involved the extensive use of covert investigation methods;
• working with partner agencies to develop legislative proposals and administrative arrangements to establish a common integrity platform in the law enforcement environment;
• providing administrative support to the Hamburger Review into ACLEI's oversight of ACBPS and the Carnell Scoping Study on resource requirements for further expansion of ACLEI's jurisdiction;[18]
• extending ACLEI's Canberra premises;
• negotiating a replacement Enterprise Agreement and updating staff policies and procedures to strengthen ACLEI's governance arrangements;
• upgrading ACLEI's information technology platform and operations support software to improve capability and effectiveness.[19]  

Structure, governance and resourcing

2.10      ACLEI ended 2011-12 with an annual budget of $5.1 million and funding for 25 staff. When it first commenced operations in 2007, ACLEI had a budget of $2 million and a staff of nine. In 2012-13, ACLEI expects to raise its average staffing level through recruitment or secondment to 30 positions from the current 25.[20]

2.11      During the reporting period, ACLEI sought approval to record an operating loss of up to $0.531 million to provide one-off costs for operational reasons and accommodate movement in leave provisions as a result of the decreased government bond rate. The Minister for Finance and Deregulation approved these requests in April 2012.[21] Noting that it has applied for approval for an operating loss in four of six operating years, ACLEI highlighted the difficulties in achieving accurate budget forecasting which is 'due to the relatively small size of ACLEI's budget and the relatively high proportion allocated to salaries and the unpredictability of variable costs associated with some investigations'. These include:

the prospect for legal challenge, costs associated with interstate deployments, the need for access to computer forensic services, and expenses related to obtaining short-term surveillance capabilities.[22]

2.12      The actual amount spent over appropriation in 2011-12 was $0.427 million. The annual report noted that taking into account other factors, 'including depreciation, amortisation and internal efficiencies, ACLEI closed the year with an operating surplus of $0.100 million'. The total actual cost of ACLEI to government through appropriations in 2011-12 was $5.979 million.[23]

2.13      ACLEI received an unmodified audit opinion from the Australian National Audit Office for its accounts.[24]

2.14      A restructure was undertaken to support the refinements to ACLEI's strategic orientation including the creation of a two-branch structure. An experienced Senior Executive Officer has been seconded from the Attorney-General's Department to establish a Strategic and Secretariat Branch. The two-branch structure will enable the new Operations Branch to focus on the significant and highly technical investigation and detection work that now characterises ACLEI's operations. Such changes are also expected to enable ACLEI to focus on improving its ability to complete investigation reports and related procedural fairness processes.[25]

2.15      ACLEI's governance arrangements were strengthened with the addition of an external member to ACLEI's Audit Committee and a review of Standard Operating Procedures.[26]

Additional funding 2011-12

2.16      In May 2012, the government announced the provision of an additional $0.75 million a year through a reallocation of resources within the Attorney-General's portfolio. These funds were transferred from ACBPS and made available to ACLEI from 1 July 2012.[27] The funding will be directed into fulfilling the Hamburger Review recommendations which are expected to add to ACLEI's critical mass, flexibility and effectiveness as an agency. One such recommendation was that ACLEI conduct a scoping study in advance of any future expansion of its jurisdiction or functions. This recommendation led to the appointment of Mr Ian Carnell AM to conduct a scoping study on the inclusion of the three additional agencies under ACLEI's jurisdiction which will come into effect on 1 July 2013.[28] The government accepted the findings of the Carnell Scoping Study and agreed to provide additional resources to accommodate the expansion of ACLEI's jurisdiction. The Minister has since indicated that an additional appropriation of $1.3 million over two years will be made available from the start of the 2013-14 financial year, with further review to take place following implementation.[29]

2.17      During the year, ACLEI was allocated $2.56 million over two years from the Australian Government grant scheme established under the Proceeds of Crime Act 2002 to facilitate the agency's 'Surveillance Capability Enhancement Pilot Project'.[30] Under the project's Memorandum of Understanding (MOU) with the ACC, ACLEI is given priority to draw on the ACC's surveillance capability.[31]

Planned outcomes and performance

2.18      In 2011-12, ACLEI's 2011-12 outcome and output structure (set out in the following table) remain unchanged from 2010-11.

Table 1: Outcome and reporting framework

Outcome—Independent assurance to the Australian Government that Commonwealth law enforcement agencies and their staff act with integrity, by detecting, investigating and preventing corruption.

Outcome strategy—Ensure that corruption issues brought to the attention of the Integrity Commissioner are assessed in a timely manner and, where appropriate, investigated. ACLEI will also assist law enforcement agencies to maintain the integrity of their staff by contributing to corruption detection and prevention initiatives.

Program—Detect, investigate and prevent corruption in prescribed law enforcement agencies; assist law enforcement agencies to maintain and improve the integrity of staff members.

Program objective—ACLEI's program objective is to ensure that instances of corruption are identified and addressed, and that law enforcement agencies have appropriate measures in place to control corruption risks. In this way, ACLEI can provide independent assurance to the Australian Government about the integrity of prescribed law enforcement agencies.[32]

2.19      The Portfolio Budget Statements establish a set of 'deliverables' for the program administered. ACLEI's 2011-12 program includes a new deliverable which provides:

Where appropriate, the Integrity Commissioner uses statutory intrusive and coercive information-gathering powers to assist investigations.[33]

2.20      The only other amendment to the program deliverables is a change in wording of one 2010-11 deliverable with the replacement of the words 'contributes to' with 'enhances'. This 2011-12 deliverable now states:

ACLEI enhances corruption prevention initiatives, such as the assessment of corruption risk and raising awareness about corruption deterrence, thereby helping to build corruption-resistant work cultures.[34]

2.21      There are seven 2011-12 ACLEI deliverables for the program:

• Corruption issues are promptly brought to the attention of the Integrity Commissioner for independent assessment and decision on how each issue should be dealt with (either by ACLEI, the agency to which the issue relates, or another agency).
• Where appropriate, ACLEI independently investigates corruption issues, giving priority to conduct that constitutes serious corruption or systemic corruption.
• Where appropriate, the Integrity Commissioner uses statutory intrusive and coercive information-gathering powers to assist investigations.
• ACLEI analyses and reports on patterns and trends in law enforcement corruption.
• ACLEI recommends changes to laws and to agency practices and procedures to improve integrity in law enforcement, and to detect and prevent corruption more effectively.
• ACLEI enhances corruption prevention initiatives, such as the assessment of corruption risk and raising awareness about corruption deterrence, thereby helping to build corruption-resistant work cultures.
• Staff members of law enforcement agencies are made aware that information about corruption can be referred with confidence to the Integrity Commissioner.[35]

2.22      Seven Key Performance Indicators (KPIs) are linked to the program objective and deliverables. In comparison to previous years, ACLEI 'achieved the same standard, or exceeded its performance, against most KPIs'. However, the annual report also notes that attention given to various priority investigations and agency-building projects over the year in review 'meant that not all KPIs were met to the same level, or in the same way, as previous years'.[36]

2.23      While ACLEI highlights that the practice of allocating resources flexibly to take account of priorities is a responsible use of its resources, it notes that 'some key outcomes—such as bringing investigations to finality when a person has already been suspended from duty or dismissed—were not adequately met in 2011-12'.[37]

KPI 1: The corruption notification and referral system is effective

Measure 1: Law enforcement agencies notify ACLEI of corruption issues in a timely way	Performance against measure 1: In 2011-12 there were 73 notifications compared to 46 in the previous year (amounting to an increase of 58 per cent in the volume of notifications).[38]
Measure 2: Other agencies provide information about corruption issues to ACLEI	Performance against measure 2: 18 referrals were received from other government agencies compared to 10 in 2010-11 and 2 in 2009-10.[39]
Measure 3: ACLEI is seen as viable for reporting information about corruption	Performance against measure 3: Whistleblowers, human resources and members of the public provided information directly to ACLEI during the year. The annual report notes that ACLEI no longer publishes this statistical information for operational security reasons.

 

KPI 2: ACLEI assesses all notifications and referrals of corruption issues in a timely way

Measure 1: Upon receipt, ACLEI assesses information about corruption to determine how each issue should be dealt with. Credible information about corruption is prioritised

Performance against measure 1:[40] In 2011-12, 111 corruption issues were notified or referred with a further 11 issues from the previous year subject to assessment. All notifications and referrals were subject to an initial assessment upon receipt. Assessments completed for 65 of 97 notifications and referrals received in 2011-12 within 90 days of receipt (or 63 per cent all notifications and referrals).[41] As 63 per cent of assessments were completed within the 90 day period, the 75 per cent target for completing assessments within 90 days was not achieved. In comparison, in 2010-11, ACLEI met the 75 per cent benchmark, achieving a result of 76 per cent.[42] At the end of the year, 17 assessments were in progress of which 13 were more than 90 days old.[43] The number of assessments (97) exceeded previous years of 80 in 2010-11 and 71 in 2009-10.[44]

ACLEI response to performance: Recognising that some assessments are time-critical because target identification and opportunities for real-time evidence collection may rely on a prompt response from ACLEI, in 2012-13, it intends to examine methods to streamline assessment procedures which were developed in previous years.[45]

 

KPI 3: ACLEI's investigations are conducted professionally and efficiently, and add value to the integrity system

Measure 1: Investigations adhere to the Integrity Commissioner's Investigation Guidelines	Performance against measure 1: While the report does not explicitly state that the Integrity Commissioner's Investigation Guidelines were adhered to, it provided the following indicators of performance: review of Standard Operating Procedures commenced to ensure they remain appropriate in context of taskforce operations and major investigations. temporary position established to coordinate use of intrusive powers and warrant-based activity to improve operational effectiveness as the use of covert methods increase. specialised training to operations staff conducted to ensure compliance with ACLEI guidelines and legal requirements concerning the use of powers.[46]
Measure 2: ACLEI investigations are properly managed	Performance against measure 2: As part of a regular review process of the deployment of investigative resources measured against strategic priorities, five investigations (of a total of 28 investigations active during the year) were reconsidered and discontinued. The five investigations compare to 15 in 2010-11 and one in 2009-10.[47]
Measure 3: Investigation reports provided to the Minister are of high quality	Performance against measure 3: One investigation report about two related corruption issues was provided to the Minister. Positive feedback on the report received from the Chief Police Officer of ACT Policing.
Measure 4: Advice is provided to the Minister in a timely way	Performance against measure 4: A need to prioritise other investigations contributed to delays in finalising three investigation reports to the Minister. All three reports related to matters in which a person had been dismissed or suspended from duty.[48]

 

KPI 4: ACLEI monitors corruption investigations conducted by law enforcement agencies [49]

Measure 1: All agency corruption investigation reports provided to ACLEI for review are assessed for intelligence value and completeness

Performance against measure 1: Twenty-five agency internal investigation reports were received and reviewed (compared to 18 in 2010-11) and all report conclusions were accepted with no comments or recommendations necessary.

Measure 2: ACLEI liaises regularly with the agencies' professional standards units

Performance against measure 2: ACLEI investigation managers met regularly with the professional standards unit of the ACC, ACBPS and AFP to consider progress on corruption issues that the Integrity Commissioner had referred for internal investigation. This liaison led the AFP to reconsider and discontinue three internal investigations on the basis that no evidence of corrupt conduct was apparent.[50]

 

KPI 5: ACLEI contributes to policy development and law reform in accountability and corruption prevention relating to law enforcement

Measure 1: Each investigation addresses corruption risk and, where warranted, makes recommendations for improvement in corruption prevention or detection measures

Performance against measure 1: investigation report provided to the Minister considered how law enforcement environments could be strengthened against corruption risk. 'Community of Practice for Corruption Prevention' initiated by ACLEI in June 2011 bringing together practitioners from the ACC, ACBPS, and AFP to discuss lessons from investigations met three times. corruption prevention lessons from other ongoing investigations contributed to the design of forthcoming legislative arrangements including integrity testing.[51]

Measure 2: Submissions that relate to corruption prevention or enhancing integrity may be made to government or in other relevant forums

Performance against measure 2: Submissions to five government and parliamentary inquiries and policy input into other initiatives including consultations concerning the National Anti-Corruption Plan.

 

KPI 6: Staff members of law enforcement agencies are made aware of ACLEI's role

Measure 1: Marketing and other awareness-raising activities are in place, including joint initiatives with other agencies	Performance against measure 1: additional security features added to ACLEI website with a view to giving confidence to online reporting of corruption issues. three awareness-raising presentations about integrity issues made to ACBPS and nine to the AFP.
Measure 2: Targeted presentations about integrity are made to diverse audiences	Performance against measure 2: Eight presentations to public or special interest audiences.[52]

 

KPI 7: ACLEI handles personal information appropriately

Measure 1: Regular privacy audits are undertaken to ensure compliance with legal obligations and better practice policy for information-handling

Performance against measure 1: implementation of Australian Government 'Protective Security Policy Framework' which introduces a new classification system for controlling storage and access to official information and documents. no reported security incidents involving the unauthorised release of personal information during the year.[53]

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