National Integrity Spotlight – September 2024

In this month’s edition of the National Integrity Spotlight, we consider the most recent updates from the NACC, as well as updates from the various state integrity bodies.

NACC update

Referral and assessment update

The NACC continues to provide regular updates on the number of referrals received, the assessment process, and investigations underway.

Key data from 1 July to 20 October 2024 indicates that:

• 753 referrals were received; and
• 635 referrals were excluded at the triage stage of assessment as they did not involve a Commonwealth public official or did not raise a corruption issue.

The NACC has also indicated that:

• it is currently conducting 31 preliminary investigations;
• it is conducting 29 corruption investigations, including six joint investigations;
• 6 matters are currently before the courts; and
• 493 referrals are currently pending assessment.

Since the NACC’s inception, the NACC has obtained 37 search warrants, which relevantly include search warrants executed in the Northern Territory relating to ongoing investigations, and a search warrant executed in Canberra at Parliament House on 3 October, reportedly related to the Department of Parliamentary Services.

Victorian Independent Broad-based Anti-Corruption Commission (IBAC)

Operation Leo special report tabled 

On 9 October 2024, the IBAC tabled a special report on Operation Leo that examined allegations of bribery and misconduct by Moonee Valley City Council (MVCC) councillors in relation to outcomes for the Essendon Royals Soccer Club (ERSC), including the granting of infrastructure funding and preferential access to the Cross Keys Reserve sports facility, which includes a multi-purpose pavilion shared with a local cricket club.

It was found through the course of the investigation that MVCC councillors engaged in corrupt conduct to assist with the property development and rezoning of a number of properties owned by the construction manager. During the investigation, the IBAC also examined claims that some councillors had accepted other benefits from the ERSC in return for favourable council decisions.

The investigation ultimately found systemic corruption vulnerabilities within MVCC, not only relating to the integrity obligations of councillors and a failure to follow correct processes, but also conflicts of interest and failures to report corrupt conduct. It was also found that various gifts and benefits provided by ERSC were not declared by the councillors.

The concerns in Operation Leo relate to similar conduct highlighted in Operation Sandon (as highlighted in the July 2023 edition of the National Integrity Spotlight), in which the IBAC made 34 recommendations with the goal to promote transparency in the local government sector and strengthen governance. These recommendations have been partially implemented to date.

As part of its special report, the IBAC made a further recommendation to the Minister for Local Government that Local Government Victoria incorporate a clear expectation in the Model Code of Conduct for Councillors that requires them to report any suspected corrupt conduct.

Special report tabled in Operation Turton

On 25 September 2024, the IBAC tabled a special report in Operation Turton, which investigated allegations of unauthorised access, disclosure of information, and misuse of sensitive information by employees of the Metropolitan Fire Brigade (MFB).

The breaches related to an MFB network administrator inappropriately accessing the email accounts of MFB executives, which the investigation found was driven by a desire to further the interests of the Victorian Branch of the United Firefighters Union. Reportedly, employees did not trust that management were acting in the best interests of employees or the organisation.

Following its investigation, the IBAC made four recommendations to Fire Rescue Victoria to address systemic corruption risks to improve information security and workplace culture, including:

• the development of clear policies and procedures relating to matters that may be the subject of consultation with employees and representatives, and the circumstances in which this information may be disclosed;
• addressing information and communication technology security risks;
• reviewing internal complaint processes; and
• promoting a ‘speak-up’ culture.

The IBAC releases results of ‘perceptions of corruption’ survey

On 2 October 2024, the IBAC released the results of its 2024 ‘perceptions of corruption’ surveys, with over 9,000 participants from a group consisting of state and local government employees, Victoria Police employees, business suppliers to the government, and the Victorian community. The findings of the survey included:

• workplace behaviours most likely to be ‘high risk’ included breach of professional boundaries, inaction, and favouritism or nepotism;
• 75% of Victorian government employees indicated that their organisation was vulnerable to corruption and misconduct;
• government employees indicated a perceived reasonable, but weakening, ethical culture;
• 41% of government business suppliers declined to bid on a contract in the last 12 months due to corruption concerns (an increase from 34% in 2022);
• employees indicated that they are less likely to report corruption or misconduct than in 2022, indicating that they are less likely to feel supported by managers to make a report, and that reports are unlikely to be taken seriously; and
• there is uncertainty amongst employees as to the likely outcomes of reports of corruption or misconduct, including the protections that may apply to those who make a report.

Public sector risk profiles released, highlighting corruption risks and vulnerabilities

On 19 September 2024, the IBAC released its second series of risk profiles for government sectors, highlighting the specific corruption risks and vulnerabilities of each, with the aim of assisting agencies to appropriately reduce and prevent corruption. The second tranche of risk profiles, which were prepared using data obtained from allegations, investigations, and the IBAC’s prevention work, including consultation with those working in each sector also highlight corruption prevention strategies and appropriate ways to detect corruption.

The 2024 public sector risk profiles relate to the following sectors:

• construction and manufacturing;
• corrections and youth justice;
• emergency services;
• environment and resource management; and
• parliament.

NSW integrity agency funding reforms 

Government Sector Finance Amendment (Integrity Agencies) Bill 2024

On 18 September 2024, Parliament passed the Government Sector Finance Amendment (Integrity Agencies) Bill 2024 NSW (GSF Bill). This Bill amends the GSF Act to reinforce the independence of the Integrity Agencies.

The changes introduced via the GSF Bill formalise special budget arrangements for each of the Integrity Agencies. The GSF Act now requires that the Treasurer provide notice to the Integrity Agency and its relevant Parliamentary oversight committee of the amount proposed to be appropriated in the next budget. The Treasurer must also provide reasons for any variation to the Integrity Agencies’ budget proposals.

The Parliamentary oversight committee must then examine and report on the budget to the Treasurer within three months of receiving notice from the Treasurer. In turn, the Treasurer must respond in writing within three months. The GSF Bill also provides for the Treasurer’s consideration of applications for contingency funding by Integrity Agencies.

NSW Law Enforcement Conduct Commission (NSW LECC) releases report on Operation Tambre

In August 2024, the NSW LECC reported publicly on its investigation, known as Operation Tambre, into former NSW Police officer Daniel Keneally. Officer Keneally was convicted of a public justice offence in November 2023 in the Local Court, following which, Officer Keneally unsuccessfully appealed to the District Court in June 2024.

It was alleged that Officer Keneally had fabricated evidence in February 2021 in a police investigation that led to the wrongful arrest and charging of Luke Moore. The conviction arose from a May 2021 complaint referred to the NSW LECC by NSW Police. The NSW LECC had been unsatisfied with the outcome of NSW Police’s investigation and conducted its own independent investigation, which recommended the prosecution of Officer Keneally. Following the dismissal of his appeal, Officer Keneally resigned from NSW Police in June 2024.

The Law Enforcement Conduct Commission Act 2016 (the LECC Act) provides the NSW LECC with the power to investigate serious misconduct, make findings and express recommendations. Chief Commissioner Peter Johnson SC said, “the report illustrates the effective operation of the LECC Act… the Commission’s investigation and report led to the successful prosecution of the officer for a serious public justice offence and his departure from the NSW Police Force”.

Tasmania Integrity Commission (TIC)

On 5 August 2024, the TIC released a consultation paper in preparation for its third in a series of research papers relating to ‘Ethical conduct and misconduct risks in Tasmanian parliamentary elections’. The topic of Paper 3 is ‘The use and misuse of public resources during election campaigns’ and considers the potential impacts when publicly funded resources are used for election campaigning activities.

On 3 September 2024, TIC closed the public consultation for its research paper relating to corruption and misuse of resources in the election process. The consultation sought input from key stakeholders to communicate misconduct risks and promote potential solutions.

TIC received 9 submissions, including public submissions from the Australia Institute Tasmania, Department of Treasury and Finance, the Liberal Party of Australia (Tasmanian Division) and various members of Tasmanian Parliament.

The Western Australia Corruption and Crime Commission (WA CCC) 

WA CCC releases report on ‘Review of a Public Transport Authority Use of Force Incident’

On 17 September 2024, the WA CCC released its Review of a Public Transport Authority (PTA) use of force incident and the PTA’s management of the incident thereafter.

At about midnight on 16 February 2023 at Aubin Grove train station, ‘Mr S’ was attempting to catch the last train service home. Three PTA Transit Officers (Officers) requested Mr S accompany them upstairs to check if he had scanned his Smartrider for a ‘proof of travel’ check. Mr S stated he did not have time as he would miss the last train service. The Officers denied Mr S entry to the train. The CCTV footage shows Mr S talking to the Officers without any displays of physical aggression. As Mr S begins to walk away, one Officer tackles Mr S to the ground with the other Officers piling on to secure Mr S in handcuffs. Mr S sustained a fractured collarbone from the incident.

The Officer who first tackled Mr S provided an action report following the incident, stating Mr S “is known as a prolific fare evader as well as committing many other offences on PTA property” and stated Mr S “became agitated and made a verbal threat”.  Reporting he feared Mr S would act on this threat, the Officer placed him in a harness hold and advised Mr S that he was under arrest for disorderly behaviour.

Mr S was released from the arrest shortly thereafter and no further action was taken against Mr S. The Officers’ use of force incident was dealt with only at a supervisory level which concluded an excessive use of force had not been used and the matter was not escalated to a disciplinary investigation.

In its review, the WA CCC identified concerns with:

1. the use of force employed by the Officers; and
2. the management of the use of force incident by the PTA.

The WA CCC found Mr S did not display any body language that suggested a physical threat and, in such circumstances, the force used by the Officers was not reasonable and more than necessary to effect an arrest. The WA CCC also found that the PTA failed to perform an objective evaluation in that there was no documented analysis of the incident, and no conclusion was made at the supervisory level as to whether the use of force was lawful and in accordance with the PTA policy.

The WA CCC noted in its report that the incident raised broader concerns over the PTA’s management of use of force and accordingly recommended the PTA review, update and implement policies and procedures associated with managing use of force incidents.

WA CCC releases report on conduct of Ombudsman Christopher Field 

On 8 October 2024, the WA CCC released its report on the conduct of Ombudsman Mr Christopher Field. Mr Field has served as Ombudsman for the past 17 years, supported by the office of the Ombudsman Western Australia (OWA) in performing the statutory function of receiving, investigating and resolving complaints about State Government agencies, local governments and university. In 2021, Mr Field was elected president of the International Ombudsman Institute (IOI), a global association for the cooperation and support of independent Ombudsman institutions.

All overseas travel of the Ombudsman requires approval by a minister. The WA CCC found that Mr Field never sought such approval and, in failing to do so, managed to spend $223,429 of State funds allocated to the OWA on his travels between 2022 and 2023. Mr Field claimed his roles as Ombudsman and IOI president were indivisible and complementary. However, by using OWA funds for IOI purposes, the WA CCC found Mr Field had created an ‘unmanageable conflict of interest’.

If you found this insight article useful and you would like to subscribe to Gadens’ updates, click here.

Authored by:
Cinzia Donald, Partner (Lavan)
Kelly Griffiths, Partner
Daniel Maroske, Partner
Kathy Merrick, Partner
Jack Tipple, Special Counsel
Kristy Yeoh, Special Counsel (Lavan)
Anna Fanelli, Senior Associate
Kasia Jaruzelska, Senior Associate
Gabrielle Shina, Associate
Cassandra Bell, Lawyer
Oskar Henderson, Lawyer
Zoe Firmin, Lawyer