Commonwealth Integrity Commission: ‘Reasonable suspicion’ thresholds

‘Reasonable suspicion’ is a common threshold for the state of mind required before a judicial officer may issue a warrant authorising the use of coercive or intrusive powers to gather evidence. The common law on this test is reasonably well settled. “[I]t must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist”.¹ “It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind”.² In this way, reasonable suspicion incorporates both a subjective and objective assessment of that state of mind.

While the Law Council’s position on the presence and standard of the threshold at various stages of a corruption issue being managed are presented below, these recommendations should be read in conjunction with the Law Council’s recommendations in its primary submission; particularly those relating to the scope of CIC’s jurisdiction³ and the breadth of those persons able to refer corruption issues to it.⁴

The Law Council is concerned that subjecting public sector corruption issues to the ‘reasonable suspicion’ threshold at two stages (the decision to refer and the decision to deal with) before they are investigated by the CIC will unduly prevent allegations of corruption from being investigated. This will significantly hamper the CIC’s effectiveness.

To mitigate this concern, the Law Council submits that a broad pathway to refer matters to the CIC is necessary. This would maximise the amount of information the CIC is able to receive and consider from discretionary referrals while maintaining the safeguard of ensuring that the CIC only investigates those issues where the requisite ‘reasonable suspicion’ exists.

You can read the full submission below.

^{1 George v Rockett (1990) 170 CLR 104, 112.}

^{2 Ibid 113.}

^{3 Law Council of Australia, Submission to the Attorney-General’s Department, Commonwealth Integrity Commission consultation draft (18 February 2021), [26]-[48].}

^{4 Ibid [69]-[77].}

Last Updated on 22/07/2021

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