Heads of Commonwealth Operational Law Enforcement Agencies (HOCOLEA)
Overarching principles for selecting cases for investigation and administrative, civil and criminal sanctionsIntroduction
The Principles
Enforcement Strategies
Serious Crime
Consultation and Review
Attachment 1
Attachment 2
1. The Heads of Commonwealth Operational Law Enforcement (HOCOLEA) agencies administer and/or enforce a number of Acts of Parliament which seek to regulate behaviour. The Acts contain a range of enforcement sanctions including prosecution for criminal offences, the conduct of civil proceedings, the imposition of administrative sanctions and other remedies.
2. HOCOLEA agencies recognise that the community expects that the Commonwealth will:
- administer and enforce its legislation in a coherent, consistent and objective manner using appropriate administrative, civil and criminal sanctions;
- operate as transparently as possible so as to be accountable to the Government and the community;
- take appropriate action against offenders and contraveners; and
- operate efficiently and effectively within its resources.
3. Each HOCOLEA agency operates with limited resources. It is therefore essential for each agency to use its investigation resources efficiently and effectively and to target the most appropriate cases. It also requires each agency to make appropriate use of the range of sanctions available to it.
4. The HOCOLEA agencies have agreed on the following overarching principles for selecting cases for investigation, referral for prosecution and other regulatory activity. These overarching principles will be underpinned by the individual principles and guidelines of each HOCOLEA agency.
Each agency will act coherently, consistently and objectively
Each HOCOLEA agency will administer and enforce Commonwealth legislation and have recourse to administrative, civil and criminal sanctions in a coherent, consistent and objective manner.
Each agency will have a compliance strategy
Each HOCOLEA agency will have a compliance strategy which will include an enforcement strategy. The strategies will encourage compliance with the laws the agency enforces by making full use of all available and appropriate means, including:
- education programs;
- intelligence assessments, risk management and strategic targeting;
- auditing and other compliance work;
- applying remedies including administrative penalties;
- strategic use of available sanctions (administrative, civil and criminal), for example, prosecutions that send a message to a selected group;
- civil action;
- prosecution; and
- where appropriate, make proposals to amend Commonwealth law.
Important decisions will be made at the appropriate level
Each agency's strategies will provide that important decisions made under the strategies will be made by officers at an appropriate level.
The strategy will be in writing and distributed throughout the agency
An agency's enforcement strategy focuses on how the agency will apply its audit, compliance and investigation resources and administrative, civil and criminal sanctions to effectively deter people form breaching the laws the agency administers and enforces.
Each agency will document its enforcement strategy in writing and will distribute it appropriately throughout the agency. An agency may restrict distribution of some aspects of the enforcement strategy, such as financial triggers on investigations.
The strategy will be consistent with overall Commonwealth strategy
Each agency will ensure that its enforcement strategy is consistent with overall Commonwealth policy, including the Prosecution Policy of the Commonwealth.
The strategy will deal specifically with investigations
Each agency's enforcement strategy will specify the criteria upon which and the process by which the agency will make the decision to commence an investigation.
The strategy will address all available sanctions
Each agency's enforcement strategy will address all the sanctions open to the agency including administrative, civil and criminal sanctions. The strategy will specify:
- what decisions and discretions are available to the agency in relation to its sanctions and penalties; and
- the criteria upon which and the process by which the agency will make important decisions and exercise important discretions in relation to the sanctions and penalties available to the agency.
The DPP will prosecute on an appropriate charge all cases of serious crime where it is in the public interest to do so, as provided by the Prosecution Policy of the Commonwealth. Each agency's enforcement strategy will provide that the agency will support and facilitate this policy and practice and outline how the agency will do so preferably in a memorandum of understanding with the DPP. A definition of serious crime is at Attachment 1.
An agency will take appropriate civil and/or administrative enforcement action in cases of serious contravention which are not cases of serious crime or which are not capable of being prosecuted as serious crime. A definition of serious civil infraction is at Attachment 2.
Agencies will consult each other in developing enforcement strategies.
When developing and reviewing its enforcement strategy, each agency will consult with other relevant agencies. Relevant agencies include agencies whose statutory responsibilities impact on the first agency's strategy.
Each agency will endeavour to:
- adopt a consistent approach to similar breaches of Commonwealth law;
- identify what are serious crimes and serious contraventions and how they may be dealt with effectively and equitably, both within each agency and Commonwealth wide;
- assist other agencies, particularly downstream agencies such as the DPP and AFP, in applying Government policies such as the Prosecution Policy of the Commonwealth and determining their priorities.
Each agency will monitor its enforcement strategy
Each agency will ensure that its enforcement strategy, the policy underpinning it and the processes carried out under it will be consistent with the principles of this document and as transparent as possible.
Each agency will review annually its policy, strategy and practice in administering its enforcement strategy and report significant findings, including changes which may impact on other agencies, to HOCOLEA.
1. A serious crime is a crime:
- which involved a significant degree of criminality on the part of the offender; and
- that the Commonwealth or the community expects will be dealt with by prosecution which is conducted in public before a court and usually carries the risk of imprisonment in serious cases; and
- either produced significant real or potential harm to Commonwealth or the community; or
- is of such a nature or magnitude that it is important to deter potential offenders and prosecution will act as a very effective deterrent.
2. A significant degree of criminality can be evidenced by the crime involving certain factors, including and not limited to:
- criminal behaviour by corrupt Commonwealth officers;
- the bribing of Commonwealth officers;
- an overseas loop in a domestic transaction with the intention of avoiding detection, prosecution or recovery of proceeds of crime;
- more than one offender acting together in an organised way to perpetrate the crime;
- the use of false names or false documents; and/or
- the repeated commission of deliberate offences over a number of years.
3. A significant harm to the community can be evidenced by the crime involving certain factors, including and not limited to:
- the threatening of the integrity of the Commonwealth, Commonwealth officers or important Government institutions;
- a significant loss to the Commonwealth; and
- a significant harm to the economy, resources, assets, environment or well being of Australia or Australians.
DEFINITION OF SERIOUS CIVIL CONTRAVENTION
A serious civil contravention is a contravention which has at least one of the following attributes:
- it involves a blatant disregard for or significant degree of indifference to the civil law;
- the Commonwealth or the community expects that the matter will be dealt with by way of enforcement action;
- it resulted in or had the potential to result in significant real harm or detriment to the Commonwealth or the community;
- it is of such a nature or magnitude that it is important to deter other potential contraveners and/or educate the public.
A blatant disregard for or significant degree of indifference to the civil law can be demonstrated by the conduct involving:
- Commonwealth officers or agencies;
- collusion; or
- repeated deliberate or reckless contraventions of the law.
Significant real harm or detriment to the Commonwealth or the community can be demonstrated by the conduct involving certain factors, including if:
- the conduct results in or had the potential to result in a significant or substantial loss to the Commonwealth or the community or a sector the community; or
- the conduct results in a significant or substantial harm to the economy (or sector thereof), resources, assets, environment or well being of Australia, Australians or persons (including natural persons) carrying on business activity in Australia.