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This is a Bill, not an Act. For current law, see the Acts databases.
2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Anti-Corruption Commission
Bill 2022
No. , 2022
(Attorney-General)
A Bill for an Act to provide for the establishment of
the National Anti-Corruption Commission, and for
related purposes
No. , 2022
National Anti-Corruption Commission Bill 2022
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects of this Act ............................................................................. 2
4
Simplified outline of this Act ............................................................ 3
5
Application of this Act ...................................................................... 4
6
Crown to be bound ............................................................................ 4
7
Definitions ......................................................................................... 4
Part 2--Key concepts used in this Act
14
Division 1--Corrupt conduct and corruption issues
14
8
Meaning of
corrupt conduct
............................................................ 14
9
Meaning of
corruption issue
............................................................ 16
Division 2--Public officials
17
10
Meaning of
public official
............................................................... 17
Division 3--Commonwealth agencies and the heads of those
agencies
18
11
Commonwealth agencies and the heads of those agencies .............. 18
Division 4--Staff members of Commonwealth agencies
21
12
Meaning of s
taff member
--Commonwealth agencies ..................... 21
13
Meaning of
contracted service provider
for a
Commonwealth contract
.................................................................. 25
14
Meaning of
statutory office holder
.................................................. 27
Division 5--Commonwealth integrity agencies
28
15
Meaning of
Commonwealth integrity agency
.................................. 28
Part 3--The National Anti-Corruption Commission
29
Division 1--The Commissioner
29
16
The Commissioner........................................................................... 29
17
Functions of the Commissioner ....................................................... 29
Division 2--The Deputy Commissioners
31
18
The Deputy Commissioners ............................................................ 31
19
Functions of a Deputy Commissioner ............................................. 31
Division 3--The National Anti-Corruption Commission
32
20
Establishment of the National Anti-Corruption Commission .......... 32
21
Constitution of the NACC ............................................................... 32
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National Anti-Corruption Commission Bill 2022
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22
Functions of the NACC ................................................................... 32
Part 4--Protections for disclosers under this Act
33
Division 1--Meaning of NACC disclosure
33
23
Meaning of
NACC disclosure
.......................................................... 33
Division 2--Protection of persons from liability
34
24
Protection of persons from liability ................................................. 34
25
Liability for false or misleading statements unaffected ................... 34
26
Person's liability for own conduct not affected ............................... 34
27
Claims for protection ....................................................................... 34
28
Protection has effect despite other Commonwealth laws................. 35
Division 3--Protection from reprisals
37
29
What constitutes taking a reprisal .................................................... 37
30
Offences--taking a reprisal or threatening to take a reprisal ........... 37
Division 4--Protection for journalists' informants
39
31
Protection for journalists' informants .............................................. 39
Part 5--Referring corruption issues
40
Division 1--Voluntary referrals
40
32
Any person may refer corruption issue ............................................ 40
Division 2--Mandatory referrals
41
33
Mandatory referral--Commonwealth agencies other than
intelligence agencies ........................................................................ 41
34
Mandatory referral--intelligence agencies ...................................... 41
35
Mandatory referral--Public Interest Disclosure Act
disclosures ....................................................................................... 42
36
Mandatory referral--secrecy protection provisions......................... 43
37
Mandatory referral--exceptions ...................................................... 43
38
Mandatory referral--timing and information requirements ............. 43
Division 3--Other matters relating to referrals
45
39
Effect of referral on continued actions............................................. 45
Part 6--Dealing with corruption issues
46
Division 1--Dealing with corruption issues
46
40
Commissioner may deal with corruption issues .............................. 46
41
How Commissioner deals with corruption issues ............................ 46
42
Preliminary investigations by Commissioner .................................. 47
43
Commissioner's directions about further action .............................. 48
44
Action that can be taken without permission ................................... 49
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National Anti-Corruption Commission Bill 2022
iii
45
Previous investigations by Commonwealth integrity agencies ........ 50
46
Matters dealt with by Independent Parliamentary Expenses
Authority ......................................................................................... 51
47
Matters dealt with by Electoral Commissioner ................................ 52
48
Public statements about corruption issues ....................................... 52
Division 2--Investigations conducted by Commonwealth
agencies
54
49
Application ...................................................................................... 54
50
Commissioner may oversee investigation ....................................... 54
51
Commissioner may give directions.................................................. 54
52
Commissioner may require reports .................................................. 54
53
Commissioner's comments and recommendations .......................... 55
54
Follow-up action on completion report............................................ 55
Part 7--Investigating corruption issues
58
Division 1--General
58
55
Application of Part .......................................................................... 58
56
Conduct of corruption investigations generally ............................... 58
Division 2--Requiring information, documents and things
59
Subdivision A--Directions to agency heads
59
57
Directions to agency heads .............................................................. 59
Subdivision B--Notices to produce
59
58
Notices to produce ........................................................................... 59
59
Period for complying ....................................................................... 60
60
Offence--failure to comply with notice to produce ........................ 61
61
Offence--producing false or misleading information or
documents ........................................................................................ 61
Division 3--Hearings
63
Subdivision A--Commissioner may hold hearings
63
62
Commissioner may hold hearings.................................................... 63
63
Commissioner may summon persons .............................................. 63
64
Summons must set out matters for questioning ............................... 64
65
Commissioner may require information, documents and
things ............................................................................................... 65
66
Legal representation ........................................................................ 65
67
Record of hearings ........................................................................... 65
68
Offence--failure to attend hearing .................................................. 66
69
Offence--failure to give information, or produce documents
or things ........................................................................................... 66
70
Offence--destroying documents or things ...................................... 66
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71
Offence--giving false or misleading evidence, information
or documents ................................................................................... 67
72
Offences--obstructing or hindering hearings, threatening
persons present ................................................................................ 67
Subdivision B--Private and public hearings
68
73
Private and public hearings .............................................................. 68
74
Evidence that must be given in private ............................................ 69
75
Presence of others at private hearings .............................................. 69
76
Request to give evidence in private ................................................. 70
77
Investigation material from private hearings ................................... 71
Subdivision C--Evidence and procedure
71
78
Evidence on oath or by affirmation ................................................. 71
79
Commissioner may take evidence outside Australia ....................... 72
80
Examination and cross-examination of witnesses............................ 72
81
Offence--failure to take an oath, make an affirmation or
answer a question ............................................................................ 72
Subdivision D--Contempt of the NACC
73
82
Contempt of the NACC ................................................................... 73
83
Application for court to deal with contempt .................................... 74
84
Conduct of contempt proceedings ................................................... 74
85
Person in contempt may be detained ............................................... 75
86
Commissioner may withdraw contempt application ........................ 76
87
Double jeopardy .............................................................................. 76
Subdivision E--Travel documents and arrest of witnesses
77
88
Applying for orders to deliver travel documents ............................. 77
89
Orders to deliver travel documents .................................................. 78
90
Application for warrant to arrest witness ......................................... 79
91
Warrant for arrest ............................................................................ 80
92
Powers of judge in relation to person arrested ................................. 80
Subdivision F--Miscellaneous
81
93
Allowances for travelling and other expenses ................................. 81
94
Protection of Commissioner and legal practitioners assisting.......... 81
Division 4--Use and disclosure of certain information and
material
82
Subdivision A--Non-disclosure notations
82
95
Non-disclosure notations ................................................................. 82
96
When non-disclosure notations must or may be included ................ 82
97
Cancelling non-disclosure notations ................................................ 83
98
Offence--failure to comply with non-disclosure notations ............. 84
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National Anti-Corruption Commission Bill 2022
v
Subdivision B--Use and disclosure of investigation material
85
99
Meaning of investigation material ................................................... 85
100
Directions about use or disclosure of investigation material ........... 86
101
Offence--use or disclosure of investigation material ...................... 87
102
Disclosure to IGIS officials and Ombudsman officials ................... 87
103
Making investigation material available to courts ........................... 88
104
Obtaining derivative material .......................................................... 89
105
Disclosing investigation and derivative material to
prosecutors of the witness ................................................................ 89
106
Court's powers to order disclosure and to ensure a fair trial............ 90
107
Certain material may always be disclosed to prosecutors of
the witness ....................................................................................... 91
108
Use of material by prosecutors ........................................................ 92
109
Making material available to proceeds of crime authorities ............ 93
Division 5--Retention and return of documents and things
94
110
Commissioner may retain documents and things ............................ 94
111
When documents and things must be returned ................................ 95
112
Magistrate may permit documents and things to be retained,
forfeited etc...................................................................................... 95
Division 6--Privileges and protections
98
113
Self-incrimination ............................................................................ 98
114
Public interest grounds .................................................................... 99
115
Material sought from legal practitioners ........................................ 100
116
Other protections ........................................................................... 100
Division 7--Search powers
102
Subdivision A--Search powers
102
117
Entering certain places without a search warrant ........................... 102
118
Receipts for documents and things seized without warrant ........... 104
119
Search warrants, and stopping and searching conveyances ........... 104
120
Use and return of documents and things ........................................ 104
Subdivision B--Modification of Crimes Act search powers
105
121
Application of Subdivision ............................................................ 105
122
Subsection 3C(1)--definition of
evidential material
..................... 106
123
Divisions 2, 3 and 5 of Part IAA--references to constable
and Commissioner ......................................................................... 106
124
Subsections 3E(1) and (2)--when search warrants can be
issued ............................................................................................. 106
125
Subsection 3E(4)--previous warrants ........................................... 108
126
Provisions of sections 3E, 3F, 3L and 3LAA ................................ 108
127
Subparagraph 3LA(2)(b)(i)--accessing computer systems ........... 109
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128
Provisions of section 3T ................................................................ 109
Division 8--Interaction with criminal procedure and
confiscation proceedings
111
Subdivision A--Key concepts
111
129
Meaning of
pre-charge
.................................................................. 111
130
Meaning of
post-charge
................................................................. 111
131
Meaning of
relevant offence
.......................................................... 112
132
Meaning of
imminent
and
protected suspect
.................................. 112
133
Meaning of
derivative material
..................................................... 113
134
Meaning of
pre-confiscation application
....................................... 113
135
Meaning of
post-confiscation application
..................................... 114
136
Meaning of
confiscation proceeding
............................................. 114
137
Meaning of
relevant confiscation proceeding
............................... 114
138
Meaning of
proceeds of crime authority
........................................ 115
139
When a charge or confiscation proceeding is
resolved
.................. 115
Subdivision B--Commissioner's powers--limited operation
provisions
116
140
Limited operation--Commissioner's power to issue notices
to produce ...................................................................................... 116
141
Limited operation--Commissioner's power to hold hearings ....... 117
142
Limited operation--Commissioner's power to summon
person ............................................................................................ 117
143
Limited operation--obtaining derivative material ......................... 118
144
Limited operation--disclosing investigation material to
prosecutors of the witness .............................................................. 120
145
Limited operation--disclosing derivative material to
prosecutors of the witness .............................................................. 120
146
Limited operation--material that may always be disclosed to
prosecutors of the witness .............................................................. 120
147
Limited operation--disclosing material to proceeds of crime
authorities ...................................................................................... 121
Subdivision C--Witness' fair trial--limited operation
121
148
Limited operation--witness' fair trial ........................................... 121
Part 8--Reporting on corruption investigations
122
149
Report on corruption investigation ................................................ 122
150
Effect of findings or opinions about corrupt conduct .................... 123
151
Excluding certain information from investigation report ............... 124
152
Protected information report .......................................................... 124
153
Opportunity to respond must be given before including
certain information in investigation report .................................... 124
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National Anti-Corruption Commission Bill 2022
vii
154
Commissioner to give copies of reports to certain persons ............ 126
155
Tabling of investigation report in Parliament ................................ 127
156
Publishing investigation report in whole or part ............................ 128
157
Opportunity to respond must be given before publishing an
investigation report containing critical opinions etc. ..................... 128
158
Advising person who referred corruption issue of outcome of
the investigation ............................................................................ 129
159
Advising person whose conduct is investigated of outcome
of the investigation ........................................................................ 130
160
Follow-up action on investigation report ....................................... 131
Part 9--Public inquiries
134
161
Commissioner may conduct public inquiries ................................. 134
162
Commissioner may invite submissions .......................................... 134
163
Commissioner's powers ................................................................ 134
164
Reporting on public inquiries ........................................................ 135
165
Protected information report .......................................................... 135
166
Opportunity to respond must be given before including
certain information in inquiry report ............................................. 136
167
Commissioner to give copies of reports to certain persons ............ 136
168
Tabling of inquiry report in Parliament ......................................... 138
169
Publishing inquiry report in whole or part ..................................... 138
170
Opportunity to respond must be given before publishing an
inquiry report containing critical opinions etc. .............................. 138
171
Follow-up action on inquiry report ................................................ 139
Part 10--Oversight of the National Anti-Corruption
Commission
141
Division 1--Parliamentary Joint Committee on the National
Anti-Corruption Commission
141
172
Parliamentary Joint Committee on the National
Anti-Corruption Commission ........................................................ 141
173
Chair of the Committee ................................................................. 141
174
Eligibility for appointment as a Committee member ..................... 142
175
Terms of office of Committee members ........................................ 142
176
Powers and proceedings of the Committee .................................... 143
177
Functions of the Committee .......................................................... 143
178
Committee may approve or reject recommendation for
appointment ................................................................................... 146
179
Staff of the Committee must be cleared for security purposes....... 146
180
Protection of information and documents ...................................... 147
181
Committee's access to certain information .................................... 147
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National Anti-Corruption Commission Bill 2022
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Division 2--The Inspector of the National Anti-Corruption
Commission
148
Subdivision A--Functions and powers of the Inspector
148
182
The Inspector ................................................................................. 148
183
Independence ................................................................................. 148
184
Functions of the Inspector ............................................................. 148
Subdivision B--Appointment of the Inspector
149
185
Appointment of the Inspector ........................................................ 149
186
Acting appointments ...................................................................... 150
187
Remuneration ................................................................................ 151
188
Leave of absence ........................................................................... 151
189
Other paid work ............................................................................. 151
190
Disclosure of interests to the Minister ........................................... 151
191
Other terms and conditions ............................................................ 152
192
Resignation .................................................................................... 152
193
Termination of appointment .......................................................... 152
Subdivision C--Persons assisting the Inspector
153
194
Persons assisting the Inspector ...................................................... 153
195
Meaning of
person assisting
the Inspector .................................... 154
Subdivision D--Immunities of Inspector and persons assisting
154
196
Immunity from civil proceedings for the Inspector and
persons assisting ............................................................................ 154
197
Immunities from certain State and Territory laws ......................... 154
Subdivision E--Annual report by Inspector
155
198
Annual report ................................................................................. 155
199
Exclusion of certain information from annual report ..................... 155
200
Effect of findings or opinions about corrupt conduct .................... 155
Division 3--NACC corruption issues
156
Subdivision A--Meaning of NACC corruption issue
156
201
Meaning of
NACC corruption issue
.............................................. 156
Subdivision B--Referring NACC corruption issues
156
202
Any person may refer NACC corruption issue .............................. 156
203
Mandatory referral--Commissioner .............................................. 157
204
Mandatory referral--Public Interest Disclosure Act
disclosures ..................................................................................... 157
205
Mandatory referral--secrecy provisions........................................ 157
206
Mandatory referral--exceptions .................................................... 157
207
Mandatory referral--timing and information requirements ........... 157
208
Effect of referral on continued actions........................................... 158
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National Anti-Corruption Commission Bill 2022
ix
Subdivision C--Dealing with NACC corruption issues
159
209
Inspector may deal with NACC corruption issues ......................... 159
210
How Inspector deals with NACC corruption issues ...................... 159
211
Other matters related to dealing with NACC corruption
issues ............................................................................................. 160
Division 4--Investigating and reporting by Inspector
162
Subdivision A--Investigations by Inspector
162
212
Application of Division ................................................................. 162
213
Conduct of investigations generally .............................................. 162
214
Inspector's powers to investigate ................................................... 162
Subdivision B--Reporting on NACC corruption investigations
and NACC complaint investigations
164
215
Report on NACC corruption investigation or NACC
complaint investigation.................................................................. 164
216
Effect of findings or opinions about corrupt conduct .................... 166
217
Excluding certain information from NACC investigation
report ............................................................................................. 166
218
Protected information report .......................................................... 167
219
Opportunity to respond must be given before including
certain information in NACC investigation report......................... 167
220
Inspector to give copies of reports to certain persons .................... 168
221
Tabling of NACC investigation report in Parliament .................... 170
222
Publishing NACC investigation report in whole or in part ............ 171
223
Opportunity to respond must be given before publishing a
NACC investigation report containing critical opinions etc. ......... 171
224
Advising person who referred NACC corruption issue or
made complaint of outcome........................................................... 172
225
Advising person whose conduct is investigated of outcome
of the investigation ........................................................................ 173
226
Follow-up action on NACC investigation report ........................... 174
Part 11--Confidentiality, consultation and information sharing
177
Division 1--Confidentiality requirements
177
227
Key concepts ................................................................................. 177
228
Confidentiality requirements for entrusted persons ....................... 179
229
Authorisations to record or disclose information ........................... 180
230
Disclosure by authorised discloser in public interest ..................... 182
231
Opportunity to respond must be given before disclosure of
critical opinions, findings and recommendations .......................... 184
232
Entrusted persons generally not compellable in proceedings ........ 184
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National Anti-Corruption Commission Bill 2022
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233
Confidentiality requirements for persons who receive
information about investigations and inquiries .............................. 186
Division 2--Protected information reports
188
234
Public disclosure of protected information reports prohibited ....... 188
Division 3--National security and related matters
189
Subdivision A--Attorney-General's certificates about release of
information
189
235
Attorney-General's certificate in relation to particular
information .................................................................................... 189
236
Attorney-General's certificate in relation to international
relations ......................................................................................... 192
Subdivision B--Arrangements relating to intelligence agencies
and the IGIS
194
237
Person investigating or inquiring must consult--security
matters ........................................................................................... 194
238
Consultation before requiring information, documents or
things from IGIS officials .............................................................. 194
239
Arrangements for dealing with intelligence information ............... 195
Subdivision C--Arrangements relating to foreign nationals
197
240
Person investigating or inquiring must consult--foreign
nationals ........................................................................................ 197
Part 12--Administrative provisions for the National
Anti-Corruption Commission
198
Division 1--Appointment of the NACC Commissioners
198
241
Appointment of the Commissioner ................................................ 198
242
Appointment of the Deputy Commissioners .................................. 199
243
Acting appointments ...................................................................... 200
244
Remuneration ................................................................................ 201
245
Leave of absence ........................................................................... 201
246
Other paid work ............................................................................. 201
247
Disclosure of interests ................................................................... 201
248
Other terms and conditions ............................................................ 202
249
Resignation .................................................................................... 202
250
Termination of appointment .......................................................... 202
Division 2--The CEO, staff etc. and authorised officers
204
Subdivision A--Appointment and functions of the CEO
204
251
The Chief Executive Officer .......................................................... 204
252
Functions of CEO .......................................................................... 204
253
Commissioner may give directions to CEO ................................... 204
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National Anti-Corruption Commission Bill 2022
xi
254
Appointment of CEO ..................................................................... 205
255
Acting appointments ...................................................................... 205
256
Remuneration ................................................................................ 206
257
Leave of absence ........................................................................... 206
258
Other paid work ............................................................................. 206
259
Other terms and conditions ............................................................ 206
260
Resignation .................................................................................... 207
261
Termination of appointment .......................................................... 207
Subdivision B--Staff and consultants etc.
208
262
Staff ............................................................................................... 208
263
Consultants .................................................................................... 208
264
Persons assisting the NACC .......................................................... 208
265
Counsel assisting the NACC or a NACC Commissioner .............. 209
266
Meaning of
staff member
of the NACC ......................................... 209
Subdivision C--Authorised officers
210
267
Appointment of authorised officers ............................................... 210
268
Identity cards ................................................................................. 210
Division 3--Immunities of staff members of the NACC
212
269
Immunity from civil proceedings for staff members of the
NACC and persons assisting ......................................................... 212
270
Immunities from certain State and Territory laws ......................... 212
Division 4--Annual report by Commissioner
213
271
Annual report ................................................................................. 213
272
Exclusion of certain information from annual report ..................... 214
273
Effect of findings or opinions about corrupt conduct .................... 215
Part 13--Miscellaneous
216
Division 1--Parliamentary privilege and other protections
216
274
Effect of Act on parliamentary privileges and immunities ............ 216
275
Protections relating to non-judicial functions and powers ............. 216
Division 2--Delegations and review
217
276
Delegations .................................................................................... 217
277
Delegation by heads of Commonwealth agencies ......................... 218
278
Review of operation of Act ........................................................... 219
Division 3--Instruments under the Act
221
279
Guidelines ...................................................................................... 221
280
Regulations .................................................................................... 221
No. , 2022
National Anti-Corruption Commission Bill 2022
1
A Bill for an Act to provide for the establishment of
1
the National Anti-Corruption Commission, and for
2
related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
National Anti-Corruption Commission Act 2022
.
8
Part 1
Preliminary
Section 2
2
National Anti-Corruption Commission Bill 2022
No. , 2022
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Part 1 and
anything in this
Act not elsewhere
covered by this
table
The day this Act receives the Royal Assent.
2. Parts 2 to 9
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 12 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
3. Part 10,
Division 1
The day after this Act receives the Royal
Assent.
4. Part 10,
Divisions 2 to 4
At the same time as the provisions covered
by table item 2.
5. Parts 11 to 13
At the same time as the provisions covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of this Act
13
The objects of this Act include the following:
14
Preliminary
Part 1
Section 4
No. , 2022
National Anti-Corruption Commission Bill 2022
3
(a) to facilitate:
1
(i) the detection of corrupt conduct; and
2
(ii) the timely investigation of corruption issues that could
3
involve corrupt conduct that is serious or systemic;
4
(b) to enable, after investigation of a corruption issue, the referral
5
of persons for criminal prosecution, civil proceedings or
6
disciplinary action;
7
(c) to prevent corrupt conduct;
8
(d) to educate and provide information about corruption and the
9
detrimental effects of corruption on public administration and
10
the Australian community.
11
4 Simplified outline of this Act
12
This Act provides for the appointment of the National
13
Anti-Corruption Commissioner, and establishes the National
14
Anti-Corruption Commission.
15
The Commissioner is able to investigate corruption issues that
16
could involve corrupt conduct that is serious or systemic.
17
A corruption issue is an issue of whether a person has engaged, is
18
engaging or will engage in corrupt conduct.
19
Corrupt conduct is defined in section 8, and can only be:
20
(a)
conduct by a public official; or
21
(b)
conduct that adversely affects, or that could adversely
22
affect, the honest or impartial exercise or performance of
23
a public official's powers, functions or duties.
24
Part 4 provides special protections for persons who refer corruption
25
issues, or provide other information, under this Act.
26
Parts 5 to 7 set out processes for referring, dealing with and
27
investigating corruption issues.
28
Requirements for reporting on corruption investigations are found
29
in Part 8.
30
Part 1
Preliminary
Section 5
4
National Anti-Corruption Commission Bill 2022
No. , 2022
The Commissioner can also:
1
(a)
conduct broader public inquiries into corruption risks
2
and prevention measures within Commonwealth
3
agencies; and
4
(b)
provide education and information in relation to corrupt
5
conduct and preventing that conduct.
6
The work of the Commission is overseen by the Parliamentary
7
Joint Committee on the National Anti-Corruption Commission.
8
The Inspector of the National Anti-Corruption Commission assists
9
with this oversight, in particular with corruption issues and
10
complaints relating to the Commission.
11
5 Application of this Act
12
This Act applies both within and outside Australia and extends to
13
the external Territories.
14
6 Crown to be bound
15
(1) This Act binds the Crown in right of the Commonwealth, of each
16
of the States, of the Australian Capital Territory and of the
17
Northern Territory.
18
(2) This Act does not make the Crown liable to a pecuniary penalty or
19
to be prosecuted for an offence.
20
7 Definitions
21
accountable authority
has the same meaning as in the PGPA Act.
22
AFP
means the Australian Federal Police.
23
AFP Commissioner
means the Commissioner of Police (within the
24
meaning of the
Australian Federal Police Act 1979
).
25
agency head
: see subsection 11(1).
26
annual report
: see subsections 198(1) and 271(1).
27
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5
Australia
, when used in a geographical sense, includes the external
1
Territories.
2
Australian Geospatial-Intelligence Organisation
means that part
3
of the Defence Department known as the Australian
4
Geospatial-Intelligence Organisation.
5
Australian travel document
has the same meaning as in the
6
Australian Passports Act 2005
.
7
authorised discloser
: see subsection 227(1).
8
authorised officer
means:
9
(a) the Commissioner; or
10
(b) a Deputy Commissioner; or
11
(c) a person appointed under section 267 (appointment of
12
authorised officers).
13
CEO
means the Chief Executive Officer of the National
14
Anti-Corruption Commission.
15
Note:
See section 251.
16
civil penalty proceeding
means a proceeding for a civil penalty in
17
relation to a contravention of a law of the Commonwealth or of a
18
State or Territory.
19
Commissioner
means the National Anti-Corruption Commissioner.
20
Note:
See section 16.
21
Committee
means the Parliamentary Joint Committee on the
22
National Anti-Corruption Commission for the time being
23
constituted under Division 1 of Part 10.
24
Commonwealth agency
: see section 11.
25
Commonwealth company
has the same meaning as in the PGPA
26
Act.
27
Commonwealth contract
: see subsection 13(2).
28
Commonwealth entity
has the same meaning as in the PGPA Act.
29
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Preliminary
Section 7
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National Anti-Corruption Commission Bill 2022
No. , 2022
Commonwealth integrity agency
: see section 15.
1
completion report
: see paragraph 52(b).
2
confiscation proceeding
: see section 136.
3
constable
means:
4
(a) a member or special member of the AFP; or
5
(b) a member of the police force or police service of a State or
6
Territory.
7
container
includes:
8
(a) a trailer or other like receptacle, whether with or without
9
wheels, that is used for the movement of goods from one
10
place to another; and
11
(b) any baggage; and
12
(c) any other thing that is or could be used for the carriage of
13
goods, whether or not designed for that purpose.
14
contract
includes any arrangement, agreement, deed or
15
understanding.
16
contracted service provider
: see section 13.
17
contravenes
:
18
(a) for a certificate issued under section 235--see subsection
19
235(9); and
20
(b) for an international relations certificate--see subsection
21
236(8).
22
conveyance
includes an aircraft, vehicle or vessel.
23
corporate Commonwealth entity
has the same meaning as in the
24
PGPA Act.
25
corrupt conduct
: see section 8.
26
corruption investigation
: see subsection 41(2).
27
corruption issue
: see section 9.
28
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National Anti-Corruption Commission Bill 2022
7
criminal proceeding
means a prosecution for an offence against a
1
law of the Commonwealth or of a State or Territory.
2
Defence Department
means the Department administered by the
3
Minister administering Part III of the
Defence Act 1903
.
4
Defence Intelligence Organisation
means that part of the Defence
5
Department known as the Defence Intelligence Organisation.
6
Deputy Commissioner
means a National Anti-Corruption Deputy
7
Commissioner.
8
Note:
See section 18.
9
derivative material
: see section 133.
10
detriment
: see subsection 29(2).
11
direction to produce
: see subsection 57(3).
12
entrusted person
: see subsection 227(2).
13
exempt secrecy provision
means any of the following secrecy
14
provisions:
15
(a) Part 11 of the
Anti-Money Laundering and
16
Counter-Terrorism Financing Act 2006
;
17
(b) section 34 of the
Inspector-General of Intelligence and
18
Security Act 1986
;
19
(c) a secrecy provision under the
My Health Records Act 2012
;
20
(d) a secrecy provision in Part VIIIA of the
Privacy Act 1988
;
21
(e) sections 45 and 45B of the
Surveillance Devices Act 2004
;
22
(f) a secrecy provision that is a provision of a taxation law
23
within the meaning of the
Taxation Administration Act 1953
;
24
(g) sections 63 and 133 of the
Telecommunications (Interception
25
and Access) Act 1979
;
26
(h) a secrecy provision that is expressed by another law of the
27
Commonwealth to have effect despite this Act;
28
(i) anything done under a provision referred to in paragraphs (a)
29
to (h).
30
Federal Court
means the Federal Court of Australia.
31
Part 1
Preliminary
Section 7
8
National Anti-Corruption Commission Bill 2022
No. , 2022
finance law
has the same meaning as in the PGPA Act.
1
Foreign Affairs Department
: see subsection 240(3).
2
head
:
3
(a) of a Commonwealth agency--see subsection 11(1); and
4
(b) of a State or Territory government entity--means the person
5
holding, or performing the duties of, the principal office in
6
respect of the entity.
7
hearing
means a hearing held under this Act.
8
IGIS
means the Inspector-General of Intelligence and Security.
9
IGIS official
means:
10
(a) the IGIS; or
11
(b) any other person covered by subsection 32(1) of the
12
Inspector-General of Intelligence and Security Act 1986
.
13
imminent
: for when a charge for an offence, or a confiscation
14
proceeding, is
imminent
, see subsections 132(1) and (2).
15
inquiry report
: see subsection 164(1).
16
Inspector
means the Inspector of the National Anti-Corruption
17
Commission.
18
Note:
See section 182.
19
Inspector-General of Biosecurity
means the Inspector-General of
20
Biosecurity appointed under section 566A of the
Biosecurity Act
21
2015
.
22
Inspector-General of Live Animal Exports
means the
23
Inspector-General of Live Animal Exports referred to in section 9
24
of the
Inspector-General of Live Animal Exports Act 2019
.
25
Inspector-General of the Australian Defence Force
means the
26
Inspector-General of the Australian Defence Force referred to in
27
section 110B of the
Defence Act 1903
.
28
Preliminary
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No. , 2022
National Anti-Corruption Commission Bill 2022
9
Inspector-General of Water Compliance
means the
1
Inspector-General of Water Compliance referred to in section 215B
2
of the
Water Act 2007
.
3
intelligence agency
means:
4
(a) the Australian Geospatial-Intelligence Organisation; or
5
(b) the Australian Secret Intelligence Service; or
6
(c) the Australian Security Intelligence Organisation; or
7
(d) the Australian Signals Directorate; or
8
(e) the Defence Intelligence Organisation; or
9
(f) the Office of National Intelligence.
10
intelligence information
: see subsection 239(6).
11
international relations
has the meaning given by section 10 of the
12
National Security Information (Criminal and Civil Proceedings)
13
Act 2004
.
14
international relations certificate
: see subsection 236(2).
15
investigation material
: see section 99.
16
investigation report
: see subsection 149(1).
17
law enforcement agency
means:
18
(a) the AFP; or
19
(b) a police force or police service of a State or Territory; or
20
(c) any other authority or person responsible for the enforcement
21
of the laws of the Commonwealth or of a State or Territory.
22
law of the Commonwealth
includes a law in force in an external
23
Territory or the Jervis Bay Territory, so far as the law is so in force
24
because of an Act providing for the acceptance, administration or
25
government of that Territory.
26
legal aid officer
: see subsection 98(5).
27
legal practitioner
means a barrister, a solicitor, a barrister and
28
solicitor or a legal practitioner of the High Court or of the Supreme
29
Court of a State or Territory.
30
Part 1
Preliminary
Section 7
10
National Anti-Corruption Commission Bill 2022
No. , 2022
magistrate
: see subsection 112(5).
1
NACC
means the National Anti-Corruption Commission.
2
Note:
See section 20.
3
NACC Act process
means:
4
(a) a corruption investigation; or
5
(b) a NACC complaint investigation; or
6
(c) a NACC corruption investigation; or
7
(d) a public inquiry.
8
NACC Commissioner
means:
9
(a) the Commissioner; or
10
(b) a Deputy Commissioner.
11
NACC complaint investigation
: see subsection 212(2).
12
NACC corruption investigation
: see subsection 210(2).
13
NACC corruption issue
: see section 201.
14
NACC disclosure
: see section 23.
15
NACC investigation report
: see subsection 215(1).
16
non-disclosure notation
: see subsection 95(1).
17
notice to produce
: see subsection 58(3).
18
occupier
: see subsection 268(6).
19
official matter
: see subsection 95(5).
20
official of a registered industrial organisation
means a person
21
who holds an office (within the meaning of the
Fair Work Act
22
2009
) in an organisation registered, or an association recognised,
23
under the
Fair Work (Registered Organisations) Act 2009
.
24
paid work
means work for financial gain or reward (whether as an
25
employee, a self-employed person or otherwise).
26
parliamentarian
means:
27
Preliminary
Part 1
Section 7
No. , 2022
National Anti-Corruption Commission Bill 2022
11
(a) a senator; or
1
(b) a member of the House of Representatives; or
2
(c) a Minister of State (whether or not a senator or member of
3
the House of Representatives); or
4
(d) a person who is taken to be the President of the Senate under
5
the
Parliamentary Presiding Officers Act 1965
and who is
6
not a senator or member of the House of Representatives; or
7
(e) a person who is taken to be the Speaker of the House of
8
Representatives under the
Parliamentary Presiding Officers
9
Act 1965
and who is not a senator or member of the House of
10
Representatives; or
11
(f) a person to whom remuneration is payable under section 49
12
of the
Parliamentary Business Resources Act 2017
.
13
parliamentary office
means the office of a parliamentarian.
14
Note:
A parliamentarian is not a staff member of the parliamentary office
15
(see paragraph 12(5)(c)).
16
permanent resident of Australia
: see subsection 240(4).
17
person assisting
the Inspector: see section 195.
18
PGPA Act
means the
Public Governance, Performance and
19
Accountability Act 2013
.
20
post-charge
: see section 130.
21
post-confiscation application
: see section 135.
22
pre-charge
: see section 129.
23
pre-confiscation application
: see section 134.
24
premises
includes a place, a conveyance or a container.
25
private hearing summons
: see subsection 95(4).
26
proceeds of crime authority
: see section 138.
27
prosecuting authority
: see subsection 105(6).
28
prosecutor
: see subsection 105(5).
29
Part 1
Preliminary
Section 7
12
National Anti-Corruption Commission Bill 2022
No. , 2022
protected information report
: see sections 152, 165 and 218.
1
protected suspect
: see subsection 132(3).
2
public inquiry
means a public inquiry conducted under Part 9.
3
public official
: see section 10.
4
relevant confiscation proceeding
: see section 137.
5
relevant offence:
see section 131.
6
resolved
: for when a charge for an offence, or a confiscation
7
proceeding, is
resolved
, see section 139.
8
secrecy provision
means:
9
(a) a provision of a law of the Commonwealth that purports to
10
prohibit; or
11
(b) anything done, under a provision of a law of the
12
Commonwealth, to prohibit;
13
any of the following:
14
(c) the use of information, or a document or thing;
15
(d) dealing with information, or a document or thing;
16
(e) making a record of information, or a copy of a document or
17
thing;
18
(f) the disclosure or publication of information;
19
(g) the production of, or the publication of the contents of, a
20
document;
21
(h) the production of a thing;
22
(i) access to information, a document or a thing;
23
regardless of whether the provision of the law of the
24
Commonwealth:
25
(j) commenced before the commencement of this definition; or
26
(k) is expressed to apply despite any other law.
27
section 235 certified information
means:
28
(a) information that is about a matter specified in a certificate in
29
force under section 235; or
30
Preliminary
Part 1
Section 7
No. , 2022
National Anti-Corruption Commission Bill 2022
13
(b) information contained in a document specified in a certificate
1
in force under section 235.
2
security matter
: see subsection 237(4).
3
sensitive information
: see subsection 227(3).
4
serious offence:
see subsection 112(6).
5
staff member
:
6
(a) of a Commonwealth agency--see section 12;
7
(b) of the NACC--see section 266.
8
State or Territory government entity
means:
9
(a) a Department of a State or Territory; or
10
(b) a body (whether incorporated or not) established for a public
11
purpose by or under a law of a State or Territory.
12
statutory office holder
: see section 14.
13
subsidiary
has the same meaning as in the PGPA Act.
14
summons
means a summons issued under section 63.
15
superior court judge
: see subsection 90(3).
16
takes a reprisal
: see section 29.
17
travel document
: see subsection 88(2).
18
witness
:
19
(a) means a person who:
20
(i) is required to comply with a notice to produce; or
21
(ii) is summoned to attend a hearing; or
22
(iii) gives evidence at a hearing; and
23
(b) in relation to investigation material, has the meaning given
24
by subsection 99(4); and
25
(c) in relation to derivative material, has the meaning given by
26
subsection 99(5).
27
Part 2
Key concepts used in this Act
Division 1
Corrupt conduct and corruption issues
Section 8
14
National Anti-Corruption Commission Bill 2022
No. , 2022
Part 2--Key concepts used in this Act
1
Division 1--Corrupt conduct and corruption issues
2
8 Meaning of corrupt conduct
3
(1) Each of the following is
corrupt conduct
:
4
(a) any conduct of any person (whether or not a public official)
5
that adversely affects, or that could adversely affect, either
6
directly or indirectly:
7
(i) the honest or impartial exercise of any public official's
8
powers as a public official; or
9
(ii) the honest or impartial performance of any public
10
official's functions or duties as a public official;
11
(b) any conduct of a public official that constitutes or involves a
12
breach of public trust;
13
(c) any conduct of a public official that constitutes, involves or is
14
engaged in for the purpose of abuse of the person's office as
15
a public official;
16
(d) any conduct of a public official, or former public official, that
17
constitutes or involves the misuse of information or
18
documents acquired in the person's capacity as a public
19
official;
20
(e) any conduct of a public official in that capacity that
21
constitutes, involves or is engaged in for the purpose of
22
corruption of any other kind.
23
(2) However, paragraph (1)(a) does not apply in relation to conduct of
24
the following:
25
(a) the Governor-General;
26
(b) a Deputy Governor-General;
27
(c) a Justice of the High Court or a judge of a court created by
28
the Parliament;
29
(d) a judge of a court of a State or Territory;
30
(e) a member of a Royal Commission;
31
(f) the Inspector, or a person assisting the Inspector.
32
Key concepts used in this Act
Part 2
Corrupt conduct and corruption issues
Division 1
Section 8
No. , 2022
National Anti-Corruption Commission Bill 2022
15
(3) To avoid doubt, paragraph (1)(a) covers a public official's own
1
conduct, if it has, or could have, the specified adverse effects in
2
relation to the public official's powers, functions or duties.
3
Conduct before commencement
4
(4) Conduct may be
corrupt conduct
even though it occurred before
5
the commencement of this section.
6
(5) Conduct involving a public official may be
corrupt conduct
even
7
though the person was no longer a public official when this section
8
commenced.
9
Judicial powers, functions and duties
10
(6)
Corrupt conduct
does not include conduct engaged in by a staff
11
member of the High Court or of a court created by the Parliament
12
to exercise a power, or perform a function or duty, of a judicial
13
nature.
14
(7) Conduct is not
corrupt conduct
under paragraph (1)(a) to the
15
extent that it affects the exercise of a power, or the performance of
16
a function or duty, of a judicial nature by a public official who is a
17
staff member of the High Court or of a court created by the
18
Parliament.
19
Note:
A Justice of the High Court or a judge of a court created by the
20
Parliament is not a staff member of a Commonwealth agency: see
21
paragraph 12(5)(d).
22
Conduct need not be for personal benefit
23
(8) Conduct involving a public official may be
corrupt conduct
even if
24
the conduct is not for the person's personal benefit.
25
Conduct alone or with others
26
(9) A person may engage in
corrupt conduct
alone, or with the
27
agreement or participation of other persons (whether or not those
28
other persons are public officials).
29
Part 2
Key concepts used in this Act
Division 1
Corrupt conduct and corruption issues
Section 9
16
National Anti-Corruption Commission Bill 2022
No. , 2022
Conduct amounting to conspiracy or attempt
1
(10) Conduct comprising conspiracy or an attempt to commit or engage
2
in conduct covered by subsection (1) is itself
corrupt conduct
.
3
Conducting parliamentary business using public resources
4
(11) To avoid doubt, the use by a parliamentarian, or a staff member of
5
a Commonwealth agency, of public resources to conduct
6
parliamentary business in accordance with the following does not
7
constitute
corrupt conduct
:
8
(a) the
Parliamentary Business Resources Act 2017
;
9
(b) the
Members of Parliament (Staff) Act 1984
.
10
(12) Terms used in subsection (11) that are defined in the
11
Parliamentary Business Resources Act 2017
have the same
12
meaning in that subsection as they do in that Act.
13
Political activities
14
(13) To avoid doubt, conduct engaged in as part of a political activity
15
does not constitute
corrupt conduct
if the conduct does not involve
16
or affect either of the following:
17
(a) the exercise of a power, or the performance of a function or
18
duty, by a public official;
19
(b) the use of public resources (within the meaning of the PGPA
20
Act).
21
9 Meaning of corruption issue
22
(1) A
corruption issue
is an issue of whether a person:
23
(a) has engaged in corrupt conduct; or
24
(b) is engaging in corrupt conduct; or
25
(c) will engage in corrupt conduct.
26
(2) A NACC corruption issue is not a
corruption issue
.
27
Note:
See section 201 for the definition of a
NACC corruption issue
.
28
Key concepts used in this Act
Part 2
Public officials
Division 2
Section 10
No. , 2022
National Anti-Corruption Commission Bill 2022
17
Division 2--Public officials
1
10 Meaning of public official
2
(1) Each of the following is a
public official
:
3
(a) a parliamentarian;
4
(b) a staff member of a Commonwealth agency;
5
(c) a staff member of the NACC.
6
(2) A person who is acting for and on behalf of, or as a deputy or
7
delegate of, any person or body set out in subsection (1) is also a
8
public official
.
9
Part 2
Key concepts used in this Act
Division 3
Commonwealth agencies and the heads of those agencies
Section 11
18
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 3--Commonwealth agencies and the heads of
1
those agencies
2
11 Commonwealth agencies and the heads of those agencies
3
(1) A body or office specified in column 1 of an item in the following
4
table is a
Commonwealth agency
, and the
head
(or
agency head
)
5
of that agency is the person specified in column 2 of that item.
6
7
Commonwealth agencies and the heads of those agencies
Item
Column 1
Commonwealth agency
Column 2
Head of Commonwealth agency
1
A parliamentary office
The parliamentarian
2
A Commonwealth entity
Whichever of the following applies:
(a) if the accountable authority of the
entity is a single person--that person;
(b) if the accountable authority of the
entity is a governing body or other
group of persons:
(i) the chief executive officer
(however described) of the
entity (unless subparagraph (ii)
applies); or
(ii) if the regulations prescribe
another person as the head of the
entity--that other person
3
A Commonwealth company
Whichever of the following applies:
(a) the chief executive officer (however
described) of the company (unless
paragraph (b) applies);
(b) if the regulations prescribe another
person as the head of the company--
that other person
4
A subsidiary of:
(a) a Commonwealth
company; or
Whichever of the following applies:
(a) the chief executive officer (however
described) of the subsidiary (unless
paragraph (b) applies);
Key concepts used in this Act
Part 2
Commonwealth agencies and the heads of those agencies
Division 3
Section 11
No. , 2022
National Anti-Corruption Commission Bill 2022
19
Commonwealth agencies and the heads of those agencies
Item
Column 1
Commonwealth agency
Column 2
Head of Commonwealth agency
(b) a corporate
Commonwealth entity
(b) if the regulations prescribe another
person as the head of the subsidiary--
that other person
5
The High Court
The Chief Executive and Principal
Registrar of the High Court
6
The Australian
Geospatial-Intelligence
Organisation
The Director of the Australian
Geospatial-Intelligence Organisation
7
The Defence Intelligence
Organisation
The Director of the Defence Intelligence
Organisation
8
The Inspector-General of the
Australian Defence Force
The Inspector-General of the Australian
Defence Force
9
The Inspector-General of
Biosecurity
The Inspector-General of Biosecurity
10
The Inspector-General of Live
Animal Exports
The Inspector-General of Live Animal
Exports
11
The Inspector-General of
Water Compliance
The Inspector-General of Water
Compliance
12
A body prescribed by the
regulations for the purposes of
this item that is established for
a public purpose by, or under,
a law of the Commonwealth
(other than a general law
allowing incorporation as a
company or body corporate)
The person prescribed by the regulations
for the purposes of this item
(2) To avoid doubt, each of the following is taken to be a
1
Commonwealth agency in its own right, and not part of a
2
Department:
3
(a) the Australian Geospatial-Intelligence Organisation;
4
(b) the Defence Intelligence Organisation;
5
(c) the Inspector-General of the Australian Defence Force;
6
(d) the Inspector-General of Biosecurity;
7
Part 2
Key concepts used in this Act
Division 3
Commonwealth agencies and the heads of those agencies
Section 11
20
National Anti-Corruption Commission Bill 2022
No. , 2022
(e) the Inspector-General of Live Animal Exports;
1
(f) the Inspector-General of Water Compliance.
2
(3) Despite subsection (1), the NACC is not a
Commonwealth agency
.
3
Key concepts used in this Act
Part 2
Staff members of Commonwealth agencies
Division 4
Section 12
No. , 2022
National Anti-Corruption Commission Bill 2022
21
Division 4--Staff members of Commonwealth agencies
1
12 Meaning of staff member--Commonwealth agencies
2
(1) The following are
staff members
of a Commonwealth agency:
3
(a) in the case of a parliamentary office:
4
(i) an individual who is employed by the parliamentarian
5
under Part III or IV of the
Members of Parliament
6
(Staff) Act 1984
; and
7
(ii) an individual who is engaged by the parliamentarian as
8
a consultant under Part II of that Act;
9
(b) in the case of an agency other than a parliamentary office--
10
the head of the agency;
11
(c) if the agency is a Commonwealth entity--an official (within
12
the meaning of the PGPA Act) of the entity;
13
(d) in any case--an individual who is employed by, or engaged
14
in assisting:
15
(i) the agency; or
16
(ii) a staff member of the agency on behalf of the agency or
17
the Commonwealth;
18
(e) a director or officer of the following:
19
(i) a Commonwealth company;
20
(ii) a subsidiary of a corporate Commonwealth entity or a
21
Commonwealth company;
22
(f) if the agency is responsible for administering a
23
Commonwealth contract--an individual who is either of the
24
following:
25
(i) a contracted service provider for the contract;
26
(ii) both an officer or employee of a contracted service
27
provider for the contract and someone who provides
28
goods or services for the purposes (whether direct or
29
indirect) of the contract;
30
(g) in any case--a secondee to the agency.
31
(2) However, if a Commonwealth agency is covered by an item of the
32
following table then the
staff members
of the agency are the
33
Part 2
Key concepts used in this Act
Division 4
Staff members of Commonwealth agencies
Section 12
22
National Anti-Corruption Commission Bill 2022
No. , 2022
persons mentioned in paragraphs (1)(b), (f) and (g) and the persons
1
mentioned in column 2 of that item.
2
3
Staff members for certain Commonwealth agencies
Item
Column 1
Agency
Column 2
Staff members
1
The High Court
An individual who is appointed or
engaged as an officer or employee of
the High Court under section 26 of
the
High Court of Australia Act
1979
2
Either of the following:
(a) the Australian
Geospatial-Intelligence
Organisation;
(b) the Defence Intelligence
Organisation
An individual who is employed in
the agency or a member of the
Australian Defence Force who is
engaged in the agency
3
The Inspector-General of
Biosecurity
An individual engaged under the
Public Service Act 1999
who is
assisting the Inspector-General of
Biosecurity
4
The Inspector-General of Live
Animal Exports
An individual acting under the
authority of the Inspector-General of
Live Animal Exports
5
The Inspector-General of Water
Compliance
An individual engaged under the
Public Service Act 1999
who is
assisting the Inspector-General of
Water Compliance
6
The Inspector-General of the
Australian Defence Force
A member of the staff of the
Inspector-General of the Australian
Defence Force
7
The Administrative Appeals
Tribunal
Each of the following:
(a) a member (within the meaning of
the
Administrative Appeals
Tribunal Act 1975
) of the
Tribunal who is not a Judge
(within the meaning of that Act);
(b) a member of the staff of the
Key concepts used in this Act
Part 2
Staff members of Commonwealth agencies
Division 4
Section 12
No. , 2022
National Anti-Corruption Commission Bill 2022
23
Staff members for certain Commonwealth agencies
Item
Column 1
Agency
Column 2
Staff members
Tribunal (within the meaning of
that Act)
(3) An individual who:
1
(a) is covered by column 1 of an item of the following table; and
2
(b) is not a staff member of a Commonwealth agency under
3
subsection (1) or (2);
4
is a
staff member
of the agency identified under column 2 of that
5
item.
6
7
Staff members of Commonwealth agencies--rules for certain statutory office
holders and other individuals
Item
Column 1
Individual
Column 2
Agency
1
An individual who is a statutory
office holder
Whichever of the following applies:
(a) if the purposes of a
Commonwealth entity for the
purposes of the finance law
include assisting the office
holder, or a body (whether
incorporated or not) of which the
office holder is a member or
forms a part--the
Commonwealth entity (subject to
paragraph (b));
(b) if the primary function of the
office holder is to assist a
Commonwealth agency, or
another staff member of such an
agency, in the performance of
the agency's or the other staff
member's functions--that
agency;
(c) the Department administered by
the Minister responsible for
administering the provision of
Part 2
Key concepts used in this Act
Division 4
Staff members of Commonwealth agencies
Section 12
24
National Anti-Corruption Commission Bill 2022
No. , 2022
Staff members of Commonwealth agencies--rules for certain statutory office
holders and other individuals
Item
Column 1
Individual
Column 2
Agency
the law by or under which the
office is established (subject to
paragraphs (a) and (b))
2
An individual (other than an official
of a registered industrial
organisation) who exercises powers,
or performs functions, conferred on
the individual by or under a
provision of a law of the
Commonwealth, other than by or
under:
(a) a general law allowing
incorporation as a company or
body corporate; or
(b) the
Australian Capital Territory
(Self-Government) Act 1988
; or
(c) the
Northern Territory
(Self-Government) Act 1978
; or
(d) a provision of a law prescribed
by the regulations for the
purposes of this paragraph
Whichever of the following applies:
(a) if the power is exercised, or the
function is performed, for the
purpose of assisting a
Commonwealth agency, or
another staff member of such an
agency, in the performance of
the agency's or other staff
member's functions--that
agency;
(b) the Department administered by
the Minister responsible for
administering the provision of
the law (subject to paragraph (a))
3
An individual who is a director,
officer, employee or contractor of a
body corporate that exercises
powers, or performs functions,
conferred on the body corporate by
or under a provision of a law of the
Commonwealth, other than by or
under:
(a) a general law allowing
incorporation as a company or
body corporate; or
(b) the
Australian Capital Territory
(Self-Government) Act 1988
; or
(c) the
Northern Territory
Whichever of the following applies:
(a) if the power is exercised, or the
function is performed, for the
purpose of assisting a
Commonwealth agency, or
another staff member of such an
agency, in the performance of
the agency's or other staff
member's functions--that
agency;
(b) the Department administered by
the Minister responsible for
administering the provision of
the law (subject to paragraph (a))
Key concepts used in this Act
Part 2
Staff members of Commonwealth agencies
Division 4
Section 13
No. , 2022
National Anti-Corruption Commission Bill 2022
25
Staff members of Commonwealth agencies--rules for certain statutory office
holders and other individuals
Item
Column 1
Individual
Column 2
Agency
(Self-Government) Act 1978
; or
(d) a provision of a law prescribed
by the regulations for the
purposes of this paragraph
4
An individual who holds an
appointment under section 67 of the
Constitution
The Department administered by the
Prime Minister
Providing for individuals to be staff members of a different agency
1
(4) The regulations may provide that an individual who would
2
otherwise be a staff member of a particular Commonwealth agency
3
under subsection (1), (2) or (3) is a staff member of a different
4
Commonwealth agency.
5
Certain individuals are not staff members
6
(5) Despite anything else in this section, none of the following is a
7
staff member
of a Commonwealth agency:
8
(a) the Governor-General;
9
(b) a Deputy Governor-General;
10
(c) a parliamentarian;
11
(d) a Justice of the High Court or a judge of a court created by
12
the Parliament;
13
(e) a judge of a court of a State or Territory;
14
(f) a member of a Royal Commission;
15
(g) a staff member of the NACC;
16
(h) the Inspector, or a person assisting the Inspector.
17
13 Meaning of contracted service provider for a Commonwealth
18
contract
19
(1) A
contracted service provider
for a Commonwealth contract is:
20
Part 2
Key concepts used in this Act
Division 4
Staff members of Commonwealth agencies
Section 13
26
National Anti-Corruption Commission Bill 2022
No. , 2022
(a) a person (other than the Commonwealth or a Commonwealth
1
agency) who:
2
(i) is a party to the Commonwealth contract; and
3
(ii) is responsible for the provision of goods or services (or
4
both) under the Commonwealth contract; or
5
(b) a person who:
6
(i) is a party to a contract (the
subcontract
) with a person
7
who is a contracted service provider for the
8
Commonwealth contract under paragraph (a) (or under a
9
previous application of this paragraph); and
10
(ii) is responsible under the subcontract for the provision of
11
goods or services (or both) for the purposes (whether
12
direct or indirect) of the Commonwealth contract.
13
(2) A
Commonwealth contract
is a contract:
14
(a) to which the Commonwealth or a Commonwealth agency is a
15
party; and
16
(b) under which goods or services (or both) are to be, or were to
17
be, provided:
18
(i) to the Commonwealth or the Commonwealth agency, as
19
relevant; or
20
(ii) in connection with the activities of the Commonwealth
21
or the Commonwealth agency, as relevant.
22
Note:
Contract
is defined in section 7 to include any arrangement,
23
agreement, deed or understanding.
24
(3) Despite subsection (1), the following are not
contracted service
25
providers
for a Commonwealth contract:
26
(a) a State or Territory government entity;
27
(b) the government of a foreign country, or of a part of a foreign
28
country;
29
(c) a person in a class prescribed by the regulations for the
30
purposes of this paragraph.
31
Key concepts used in this Act
Part 2
Staff members of Commonwealth agencies
Division 4
Section 14
No. , 2022
National Anti-Corruption Commission Bill 2022
27
14 Meaning of statutory office holder
1
(1) A
statutory office holder
is an individual (other than an official of
2
a registered industrial organisation) who holds an office or
3
appointment under a law of the Commonwealth, other than under:
4
(a) a general law allowing incorporation as a company or body
5
corporate; or
6
(b) the
Australian Capital Territory (Self-Government) Act 1988
;
7
or
8
(c) the
Northern Territory (Self-Government) Act 1978
; or
9
(d) a provision of a law prescribed by the regulations for the
10
purposes of this paragraph.
11
(2) Despite paragraph (1)(a), the following offices and appointments
12
are
statutory office holders
:
13
(a) the office of Registrar, or Deputy Registrar, of Aboriginal
14
and Torres Strait Islander Corporations under the
15
Corporations (Aboriginal and Torres Strait Islander) Act
16
2006
;
17
(b) the office of a member of a committee convened under Part 2
18
of Schedule 2 to the
Corporations Act 2001
;
19
(c) any other office or appointment prescribed by the regulations
20
for the purposes of this paragraph.
21
Part 2
Key concepts used in this Act
Division 5
Commonwealth integrity agencies
Section 15
28
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 5--Commonwealth integrity agencies
1
15 Meaning of Commonwealth integrity agency
2
Each of the following office holders, together with their staff (if
3
any), is a
Commonwealth integrity agency
:
4
(a) the Commonwealth Ombudsman, a Deputy Commonwealth
5
Ombudsman, the Defence Force Ombudsman, the Postal
6
Industry Ombudsman, the Overseas Students Ombudsman,
7
the Private Health Insurance Ombudsman and the VET
8
Student Loans Ombudsman;
9
(b) the Australian Public Service Commissioner;
10
(c) the Merit Protection Commissioner;
11
(d) the Auditor-General;
12
(e) the AFP Commissioner;
13
(f) the Parliamentary Service Commissioner;
14
(g) the Parliamentary Service Merit Protection Commissioner;
15
(h) the Australian Information Commissioner;
16
(i) the CEO of the ACC (within the meaning of the
Australian
17
Crime Commission Act 2002
);
18
(j) the IGIS;
19
(k) the Inspector-General of Taxation;
20
(l) the Chief Executive Officer of the Tertiary Education Quality
21
and Standards Agency;
22
(m) the Inspector-General of Biosecurity;
23
(n) the Inspector-General of Live Animal Exports;
24
(o) the Inspector-General of Water Compliance;
25
(p) the Inspector-General of the Australian Defence Force;
26
(q) any other statutory office holder that:
27
(i) has functions that include investigating, or inquiring
28
into, action taken by public officials; and
29
(ii) is prescribed by the regulations for the purposes of this
30
subparagraph.
31
The National Anti-Corruption Commission
Part 3
The Commissioner
Division 1
Section 16
No. , 2022
National Anti-Corruption Commission Bill 2022
29
Part 3--The National Anti-Corruption Commission
1
Division 1--The Commissioner
2
16 The Commissioner
3
There is to be a National Anti-Corruption Commissioner.
4
Note:
For provisions in relation to the Commissioner's appointment, see
5
Division 1 of Part 12.
6
17 Functions of the Commissioner
7
The Commissioner has the following functions:
8
(a) to detect corrupt conduct;
9
(b) to conduct preliminary investigations into corruption issues
10
or possible corruption issues;
11
(c) to conduct corruption investigations into corruption issues
12
that could involve corrupt conduct that is serious or systemic;
13
(d) to report on corruption investigations and public inquiries;
14
(e) to refer corruption issues to Commonwealth agencies and
15
State or Territory government entities;
16
(f) to oversee investigations into corruption issues conducted by
17
Commonwealth agencies;
18
(g) to conduct public inquiries into:
19
(i) the risk of corrupt conduct occurring; and
20
(ii) measures directed at dealing with that risk and
21
preventing that conduct;
22
(h) to provide education and information in relation to corrupt
23
conduct and preventing that conduct;
24
(i) to collect, correlate, analyse and disseminate general
25
information and intelligence about corrupt conduct;
26
(j) to report, and make recommendations, to the Minister
27
concerning the need for, or desirability of, legislative or
28
administrative reform
in relation to any matters dealt with by
29
this Act;
30
Part 3
The National Anti-Corruption Commission
Division 1
The Commissioner
Section 17
30
National Anti-Corruption Commission Bill 2022
No. , 2022
(k) to provide relevant information and documents to the
1
Committee;
2
(l) to receive
public interest disclosures (within the meaning of
3
the
Public Interest Disclosure Act 2013
) and to deal with
4
those disclosures;
5
(m) any other functions conferred on the Commissioner by this
6
Act or another Act;
7
(n) to do anything incidental or conducive to the performance of
8
any of the above functions.
9
The National Anti-Corruption Commission
Part 3
The Deputy Commissioners
Division 2
Section 18
No. , 2022
National Anti-Corruption Commission Bill 2022
31
Division 2--The Deputy Commissioners
1
18 The Deputy Commissioners
2
There are to be up to 3 National Anti-Corruption Deputy
3
Commissioners.
4
Note:
For provisions in relation to a Deputy Commissioner's appointment,
5
see Division 1 of Part 12.
6
19 Functions of a Deputy Commissioner
7
(1) The functions of a Deputy Commissioner are:
8
(a) to assist the Commissioner in performing the
9
Commissioner's functions; and
10
(b) any other function conferred on a Deputy Commissioner by
11
this Act or another Act.
12
(2) In performing those functions, a Deputy Commissioner must
13
comply with any directions of the Commissioner.
14
(3) A direction under subsection (2) is not a legislative instrument.
15
Part 3
The National Anti-Corruption Commission
Division 3
The National Anti-Corruption Commission
Section 20
32
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 3--The National Anti-Corruption Commission
1
20 Establishment of the National Anti-Corruption Commission
2
(1) The National Anti-Corruption Commission (the
NACC
) is
3
established by this section.
4
(2) For the purposes of the finance law:
5
(a) the NACC
is a listed entity; and
6
(b) the CEO
is the accountable authority of the NACC; and
7
(c) the staff members of the NACC (as defined in section 266)
8
are officials of the NACC; and
9
(d) the purposes of the NACC include:
10
(i) the functions of the Commissioner referred to in section
11
17; and
12
(ii) the functions of a Deputy Commissioner referred to in
13
section 19; and
14
(iii) the functions of the NACC
referred to in section 22; and
15
(iv) the functions of the CEO
referred to in section 252.
16
21 Constitution of the NACC
17
The NACC consists of:
18
(a) the Commissioner; and
19
(b) any Deputy Commissioners; and
20
(c) the CEO; and
21
(d) the staff referred to in section 262.
22
22 Functions of the NACC
23
The NACC has the following functions:
24
(a) to assist the Commissioner in performing the
25
Commissioner's functions;
26
(b) to assist any Deputy Commissioner in performing the Deputy
27
Commissioner's functions.
28
Protections for disclosers under this Act
Part 4
Meaning of NACC disclosure
Division 1
Section 23
No. , 2022
National Anti-Corruption Commission Bill 2022
33
Part 4--Protections for disclosers under this Act
1
Division 1--Meaning of NACC disclosure
2
23 Meaning of NACC disclosure
3
A person makes a
NACC disclosure
if:
4
(a) the person refers, or provides other information about, a
5
corruption issue to the Commissioner or the IGIS under
6
Part 5; or
7
(b) the person refers, or provides other information about, a
8
NACC corruption issue to the Inspector under section 202 or
9
203; or
10
(c) the person gives evidence or information, or produces a
11
document or a thing, under this Act to a NACC
12
Commissioner, the IGIS or the Inspector in relation to any of
13
the following:
14
(i) a corruption issue;
15
(ii) a NACC Act process;
16
(iii) a NACC corruption issue;
17
(iv) a complaint made in relation to the conduct or activities
18
of the NACC or a staff member of the NACC.
19
Part 4
Protections for disclosers under this Act
Division 2
Protection of persons from liability
Section 24
34
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 2--Protection of persons from liability
1
24 Protection of persons from liability
2
(1) If a person makes a NACC disclosure:
3
(a) the person is not subject to any civil, criminal or
4
administrative liability (including disciplinary action) for the
5
NACC disclosure; and
6
(b) no contractual or other remedy may be enforced, and no
7
contractual or other right may be exercised, against the
8
person on the basis of the NACC disclosure.
9
(2) Without limiting subsection (1):
10
(a) the person has absolute privilege in proceedings for
11
defamation in respect of the NACC disclosure; and
12
(b) a contract to which the person is a party must not be
13
terminated on the basis that the NACC disclosure constitutes
14
a breach of the contract.
15
25 Liability for false or misleading statements unaffected
16
(1) Section 24 does not apply to civil, criminal or administrative
17
liability (including disciplinary action) for knowingly making a
18
statement that is false or misleading.
19
(2) Without limiting subsection (1), section 24 does not apply to
20
liability for an offence against section 137.1, 137.2, 144.1 or 145.1
21
of the
Criminal Code
.
22
26 Person's liability for own conduct not affected
23
To avoid doubt, whether the person's disclosure of their own
24
conduct is a NACC disclosure does not affect the person's liability
25
for the conduct.
26
27 Claims for protection
27
(1) If, in civil or criminal proceedings (the
primary proceedings
)
28
instituted against a person in a court, the person makes a claim
29
Protections for disclosers under this Act
Part 4
Protection of persons from liability
Division 2
Section 28
No. , 2022
National Anti-Corruption Commission Bill 2022
35
(relevant to the proceedings) that, because of section 24, the person
1
is not subject to any civil, criminal or administrative liability for
2
making a particular NACC disclosure:
3
(a) the person bears the onus of adducing or pointing to evidence
4
that suggests a reasonable possibility that the claim is made
5
out; and
6
(b) if the person discharges that onus--the party instituting the
7
primary proceedings against the person bears the onus of
8
proving that the claim is not made out; and
9
(c) the court must deal with the claim in separate proceedings;
10
and
11
(d) the court must adjourn the primary proceedings until the
12
claim has been dealt with; and
13
(e) none of the following:
14
(i) any admission made by the person in the separate
15
proceedings;
16
(ii) any information given by the person in the separate
17
proceedings;
18
(iii) any other evidence adduced by the person in the
19
separate proceedings;
20
is admissible in evidence against the person except in
21
proceedings in respect of the falsity of the admission,
22
information or evidence; and
23
(f) if the person or another person gives evidence in the separate
24
proceedings in support of the claim--giving that evidence
25
does not amount to a waiver of privilege for the purposes of
26
the primary proceedings or any other proceedings.
27
(2) To avoid doubt, a right under section 126K of the
Evidence Act
28
1995
not to be compelled to give evidence is a privilege for the
29
purposes of paragraph (1)(f) of this section.
30
28 Protection has effect despite other Commonwealth laws
31
Section 24 has effect despite any other provision of a law of the
32
Commonwealth, unless:
33
(a) the provision is enacted after the commencement of this
34
section; and
35
Part 4
Protections for disclosers under this Act
Division 2
Protection of persons from liability
Section 28
36
National Anti-Corruption Commission Bill 2022
No. , 2022
(b) the provision is expressed to have effect despite this Part or
1
that section.
2
Protections for disclosers under this Act
Part 4
Protection from reprisals
Division 3
Section 29
No. , 2022
National Anti-Corruption Commission Bill 2022
37
Division 3--Protection from reprisals
1
29 What constitutes taking a reprisal
2
(1) A person (the
first person
)
takes a reprisal
against another person
3
(the
second person
) if:
4
(a) the first person causes (by act or omission) any detriment to
5
the second person; and
6
(b) when the act or omission occurs, the first person believes or
7
suspects that the second person or any other person made,
8
may have made or proposes to make a NACC disclosure; and
9
(c) that belief or suspicion is the reason, or part of the reason, for
10
the act or omission.
11
(2)
Detriment
includes any disadvantage, including (without
12
limitation) any of the following:
13
(a) dismissal of an employee;
14
(b) injury of an employee in their employment;
15
(c) alteration of an employee's position to their detriment;
16
(d) discrimination between an employee and other employees of
17
the same employer.
18
(3) Despite subsection (1), a person does not
take a reprisal
against
19
another person to the extent that the person takes administrative
20
action that is reasonable to protect the other person from detriment.
21
30 Offences--taking a reprisal or threatening to take a reprisal
22
Offence--taking a reprisal
23
(1) A person commits an offence if the person takes a reprisal against
24
another person.
25
Penalty: Imprisonment for 2 years.
26
(2) In a prosecution for an offence against subsection (1), it is not
27
necessary to prove that the other person made, may have made or
28
intended to make a NACC disclosure.
29
Part 4
Protections for disclosers under this Act
Division 3
Protection from reprisals
Section 30
38
National Anti-Corruption Commission Bill 2022
No. , 2022
Offence--threatening to take a reprisal
1
(3) A person (the
first person
) commits an offence if:
2
(a) the first person makes a threat to another person (the
second
3
person
) to take a reprisal against the second person or a third
4
person; and
5
(b) the first person:
6
(i) intends the second person to fear that the threat will be
7
carried out; or
8
(ii) is reckless as to the second person fearing that the threat
9
will be carried out.
10
Penalty: Imprisonment for 2 years.
11
(4) For the purposes of subsection (3), the threat may be:
12
(a) express or implied; or
13
(b) conditional or unconditional.
14
(5) In a prosecution for an offence under subsection (3), it is not
15
necessary to prove that the person threatened actually feared that
16
the threat would be carried out.
17
Protections for disclosers under this Act
Part 4
Protection for journalists' informants
Division 4
Section 31
No. , 2022
National Anti-Corruption Commission Bill 2022
39
Division 4--Protection for journalists' informants
1
31 Protection for journalists' informants
2
Application
3
(1) This section applies if:
4
(a) a person (the
informant
) gives information, whether directly
5
or indirectly:
6
(i) to another person who works in a professional capacity
7
as a journalist; and
8
(ii) the information is given in the normal course of the
9
journalist's work as a journalist; and
10
(b) the journalist reasonably believes that the informant has
11
provided the information on the express or implied
12
understanding that the informant's identity would not be
13
disclosed.
14
Protection of informant's identity
15
(2) Neither the journalist nor the journalist's employer is required to
16
do anything under this Act that would disclose the identity of the
17
informant or enable that identity to be ascertained.
18
(3) If the journalist is a staff member of a Commonwealth agency, the
19
reference in subsection (2) to the journalist's employer is taken to
20
include a reference to the head of the agency.
21
Search powers exception
22
(4) However, this section does not prevent an authorised officer from
23
doing anything the authorised officer would otherwise be able to
24
do in exercising powers under Part IAA of the
Crimes Act 1914
for
25
the purposes of this Act (see section 119 (search warrants, and
26
stopping and searching conveyances)).
27
Note:
A public interest test applies to the issue of search warrants involving
28
journalists: see the modifications made by section 124 to the applied
29
search powers of the
Crimes Act 1914
.
30
Part 5
Referring corruption issues
Division 1
Voluntary referrals
Section 32
40
National Anti-Corruption Commission Bill 2022
No. , 2022
Part 5--Referring corruption issues
1
Division 1--Voluntary referrals
2
32 Any person may refer corruption issue
3
(1) Any person may refer a corruption issue or provide other
4
information about a corruption issue to the Commissioner.
5
(2) The Commissioner may request the referral or information to be:
6
(a) given in a particular way; or
7
(b) accompanied or supported by further information.
8
Referring corruption issues
Part 5
Mandatory referrals
Division 2
Section 33
No. , 2022
National Anti-Corruption Commission Bill 2022
41
Division 2--Mandatory referrals
1
33 Mandatory referral--Commonwealth agencies other than
2
intelligence agencies
3
(1) An agency head who becomes aware of a corruption issue must
4
refer the issue to the Commissioner if:
5
(a) the issue concerns the conduct of a person who is, or was, a
6
staff member of the agency while that person is, or was, a
7
staff member; and
8
(b) the agency head suspects that the issue could involve corrupt
9
conduct that is serious or systemic.
10
(2) The agency head must state in the referral the reasons why the
11
agency head suspects that the issue could involve corrupt conduct
12
that is serious or systemic.
13
(3) Subsection (1) does not apply in relation to an intelligence agency.
14
34 Mandatory referral--intelligence agencies
15
(1) The head of an intelligence agency who becomes aware of a
16
corruption issue must refer the issue to the IGIS or the
17
Commissioner if:
18
(a) the issue concerns the conduct of a person who is, or was, a
19
staff member of the intelligence agency while that person is,
20
or was, a staff member; and
21
(b) the head suspects that the issue could involve corrupt conduct
22
that is serious or systemic.
23
(2) The head must state in the referral the reasons why the head
24
suspects that the issue could involve corrupt conduct that is serious
25
or systemic.
26
(3) If the head refers the issue to the Commissioner, the head must, as
27
soon as reasonably practicable, notify the IGIS.
28
Part 5
Referring corruption issues
Division 2
Mandatory referrals
Section 35
42
National Anti-Corruption Commission Bill 2022
No. , 2022
(4) If the head refers the issue to the IGIS, and the IGIS is satisfied
1
that the issue is likely to involve corrupt conduct that is serious or
2
systemic, the IGIS must refer the issue to the Commissioner.
3
35 Mandatory referral--Public Interest Disclosure Act disclosures
4
(1) This section applies if a staff member of a Commonwealth agency
5
(the
PID officer
), in the course of performing or exercising
6
functions or powers under Division 1 or 2 of Part 3 of the
Public
7
Interest Disclosure Act 2013
(including as a delegate), becomes
8
aware of a corruption issue that:
9
(a) concerns the conduct of a person who is, or was, a staff
10
member of the agency while that person is, or was, a staff
11
member; and
12
(b) the PID officer suspects could involve corrupt conduct that is
13
serious or systemic.
14
(2) The PID officer must refer the corruption issue to:
15
(a) in the case of a Commonwealth agency other than an
16
intelligence agency--the Commissioner; or
17
(b) in the case of an intelligence agency--the IGIS or the
18
Commissioner.
19
Corruption issues that relate to intelligence agencies
20
(3) If the PID officer refers a corruption issue that relates to an
21
intelligence agency to the Commissioner, the PID officer must, as
22
soon as reasonably practicable, notify the IGIS.
23
(4) If the PID officer refers a corruption issue that relates to an
24
intelligence agency to the IGIS, and the IGIS is satisfied that the
25
issue is likely to involve corrupt conduct that is serious or
26
systemic, the IGIS must refer the issue to the Commissioner.
27
Notification to discloser
28
(5) If the PID officer became aware of the corruption issue as a result
29
of an internal disclosure made under the
Public Interest Disclosure
30
Act 2013
, the PID officer must, as soon as reasonably practicable,
31
Referring corruption issues
Part 5
Mandatory referrals
Division 2
Section 36
No. , 2022
National Anti-Corruption Commission Bill 2022
43
notify the discloser of the PID officer's referral of the issue under
1
this section.
2
36 Mandatory referral--secrecy protection provisions
3
The obligation to refer a corruption issue under this Division
4
applies despite any secrecy provision (other than an exempt
5
secrecy provision).
6
37 Mandatory referral--exceptions
7
(1) A person is not required to refer a corruption issue under this
8
Division if:
9
(a) the person believes on reasonable grounds that the
10
Commissioner or the IGIS, as relevant, is already aware of
11
the issue; or
12
(b) a determination made by the Commissioner provides that
13
referral is not required because of the kind of corruption issue
14
involved or the circumstances in which it arises.
15
(2) The Commissioner may, in writing, determine corruption issues
16
and circumstances for the purposes of paragraph (1)(b).
17
(3) A determination under subsection (2) is not a legislative
18
instrument.
19
38 Mandatory referral--timing and information requirements
20
Timing requirements
21
(1) A person who is required to refer a corruption issue under this
22
Division must do so as soon as reasonably practicable after
23
becoming aware of the issue or within such later time as is allowed
24
by the Commissioner.
25
Information requirements
26
(2) A person who is required to refer a corruption issue under this
27
Division must include with the referral all information relevant to
28
Part 5
Referring corruption issues
Division 2
Mandatory referrals
Section 38
44
National Anti-Corruption Commission Bill 2022
No. , 2022
the issue that is in the person's possession or control at the time the
1
referral is made.
2
(3) If the person subsequently becomes aware of any further
3
information that is relevant to the issue, the person must give the
4
further information to the recipient of the referral as soon as
5
reasonably practicable.
6
Exceptions to information requirements
7
(4) A person is not required to provide information under this section
8
if:
9
(a) the person has reasonable grounds to believe that the
10
recipient of the referral is already aware of the information;
11
or
12
(b) the recipient of the referral has advised the person that the
13
provision of information about the corruption issue is not
14
required.
15
Note:
This section has effect subject to section 236 (Attorney-General's
16
certificate in relation to international relations).
17
Referring corruption issues
Part 5
Other matters relating to referrals
Division 3
Section 39
No. , 2022
National Anti-Corruption Commission Bill 2022
45
Division 3--Other matters relating to referrals
1
39 Effect of referral on continued actions
2
The referral of a corruption issue under this Part does not:
3
(a) subject to any direction to stop taking action given by the
4
Commissioner under subsection 43(1), prevent a
5
Commonwealth agency or the IGIS from continuing to take
6
any action in relation to conduct that is the subject of the
7
issue; or
8
(b) affect the obligations of the agency or the IGIS in relation to
9
that conduct under any other law.
10
Part 6
Dealing with corruption issues
Division 1
Dealing with corruption issues
Section 40
46
National Anti-Corruption Commission Bill 2022
No. , 2022
Part 6--Dealing with corruption issues
1
Division 1--Dealing with corruption issues
2
40 Commissioner may deal with corruption issues
3
The Commissioner may deal with a corruption issue that:
4
(a) is referred to the Commissioner; or
5
(b) the Commissioner becomes aware of in any other way.
6
41 How Commissioner deals with corruption issues
7
(1) The Commissioner may deal with a corruption issue in any one or
8
more of the following ways:
9
(a) by investigating the corruption issue;
10
(b) by investigating the corruption issue jointly with a
11
Commonwealth agency or a State or Territory government
12
entity;
13
(c) by referring, for investigation, the corruption issue to a
14
Commonwealth agency to which the corruption issue relates
15
(if the Commissioner is satisfied that the agency has
16
appropriate capabilities to investigate the issue);
17
(d) by referring, for consideration, the corruption issue to a
18
Commonwealth agency or a State or Territory government
19
entity.
20
(2) An investigation mentioned in paragraph (1)(a) or (b) is a
21
corruption investigation
.
22
Corruption investigation threshold--serious or systemic corrupt
23
conduct
24
(3) The Commissioner may conduct, or continue to conduct, a
25
corruption investigation only if the Commissioner is of the opinion
26
that the issue could involve corrupt conduct that is serious or
27
systemic.
28
Dealing with corruption issues
Part 6
Dealing with corruption issues
Division 1
Section 42
No. , 2022
National Anti-Corruption Commission Bill 2022
47
General matters
1
(4) Corruption issues may be investigated together.
2
(5) The Commissioner may, at any time, reconsider whether or how to
3
deal with a corruption issue.
4
Commissioner may decide to take no action
5
(6) The Commissioner may decide to take no action in relation to a
6
corruption issue.
7
Commissioner under no duty to consider whether to deal with
8
corruption issue
9
(7) The Commissioner does not have a duty to consider whether to
10
deal with a corruption issue under this section, whether the
11
Commissioner is requested to do so by the person who referred the
12
issue or by any other person, or in any other circumstances.
13
42 Preliminary investigations by Commissioner
14
Application
15
(1) This section applies if the Commissioner considers it necessary or
16
desirable to conduct a preliminary investigation for any of the
17
following purposes:
18
(a) to confirm the existence or nature of a corruption issue
19
(including whether a corruption issue could involve corrupt
20
conduct that is serious or systemic);
21
(b) to assist the Commissioner to decide whether or how to deal
22
with a corruption issue.
23
Exercise of certain Part 7 powers for preliminary investigations
24
(2) The Commissioner may exercise the following Part 7 powers as if
25
the preliminary investigation mentioned in subsection (1) were a
26
corruption investigation:
27
(a) the power, under subsection 57(2), to direct the head of a
28
Commonwealth agency to give information, or a document
29
or a thing, to the Commissioner;
30
Part 6
Dealing with corruption issues
Division 1
Dealing with corruption issues
Section 43
48
National Anti-Corruption Commission Bill 2022
No. , 2022
(b) the power, under subsection 58(2) as modified by
1
subsection (3) of this section, to serve a notice to produce on
2
a person requiring the person to give information, or a
3
document or thing, to a specified staff member of the NACC.
4
(3) The modifications are as follows:
5
(a) the Commissioner may not issue a post-charge or a
6
post-confiscation notice to produce under this section; and
7
(b) subsection 58(6) does not apply to a notice to produce given
8
under this section.
9
(4) To avoid doubt, the other provisions of this Act continue to apply
10
in relation to the exercise of powers under subsections 57(2) and
11
58(2) for the purpose of conducting a preliminary investigation
12
under this section.
13
Commissioner may have regard to other material
14
(5) This section does not limit the information, documents or things to
15
which the Commissioner may have regard in making a decision
16
about whether or how to deal with a corruption issue.
17
43 Commissioner's directions about further action
18
Directions to stop action
19
(1) The Commissioner may direct an agency head to stop the agency
20
taking specified action in relation to a corruption issue that
21
concerns the agency, unless the action is permitted by the
22
Commissioner.
23
(2) However, the direction may be given only if:
24
(a) the Commissioner has consulted with the agency head about
25
giving the direction; and
26
(b) the direction is required to ensure the effectiveness of any
27
action the Commissioner has taken, or might take, under this
28
Act in relation to the corruption issue, or any other corruption
29
issue.
30
(3) The direction must be revoked if it is no longer so required.
31
Dealing with corruption issues
Part 6
Dealing with corruption issues
Division 1
Section 44
No. , 2022
National Anti-Corruption Commission Bill 2022
49
Permission to take other action
1
(4) If the agency head requests the Commissioner to permit the taking
2
of particular action, the Commissioner must:
3
(a) as soon as practicable after the request is made, decide
4
whether to permit the taking of the action; and
5
(b) if the Commissioner refuses to permit the taking of the
6
action--give the agency head written reasons for the refusal.
7
(5) However, the Commissioner need not give the reasons for a refusal
8
if doing so would be likely to prejudice:
9
(a) any action the Commissioner has taken, or might take, under
10
this Act in relation to the corruption issue, or any other
11
corruption issue; or
12
(b) any action taken by any person as a result of a NACC Act
13
process.
14
(6) A direction under subsection (1):
15
(a) is not a legislative instrument; and
16
(b) has effect despite any other law of the Commonwealth.
17
44 Action that can be taken without permission
18
(1) Despite any direction given by the Commissioner under subsection
19
43(1), the following action may be taken:
20
(a) action to prevent or lessen an imminent risk to the safety of a
21
person, or to protect a person's life;
22
(b) action that is in the interests of the security, defence or
23
international relations of Australia;
24
(c) action to prevent loss to the Commonwealth of an amount,
25
greater than the amount (if any) prescribed by the
26
regulations, which could not be recovered;
27
(d) other action for which it would be unreasonable in the
28
circumstances to await any necessary permission.
29
(2) If action is taken relying on subsection (1), the agency head must:
30
(a) as soon as practicable, but no later than 48 hours after the
31
action is taken, provide details of the action to the
32
Commissioner; and
33
Part 6
Dealing with corruption issues
Division 1
Dealing with corruption issues
Section 45
50
National Anti-Corruption Commission Bill 2022
No. , 2022
(b) take reasonable steps to:
1
(i) ensure that the action does not prejudice the
2
investigation of a corruption issue or any other NACC
3
Act process; and
4
(ii) preserve evidence that is, or could be, relevant for the
5
purposes of conducting a NACC Act process.
6
45 Previous investigations by Commonwealth integrity agencies
7
Application
8
(1) This section applies if the Commissioner is aware that a
9
Commonwealth integrity agency has previously concluded an
10
investigation into a matter regarding the conduct of a public
11
official.
12
Corruption investigation threshold--public interest
13
(2) The Commissioner may commence a corruption investigation into
14
a corruption issue involving the conduct only if the Commissioner
15
is satisfied that it is in the public interest to do so.
16
(3) The Commissioner may have regard to the following matters in
17
making the decision:
18
(a) the significance of the corruption issue;
19
(b) the details of the investigation undertaken by the
20
Commonwealth integrity agency (to the extent that those
21
details are known by, or made available to, the
22
Commissioner and the Commissioner considers them
23
relevant);
24
(c) any conclusions or findings (however described) of the
25
integrity agency in relation to the corruption issue;
26
(d) whether the Commissioner has any new evidence in relation
27
to the corruption issue that:
28
(i) was not available to the integrity agency; and
29
(ii) would not have been obtainable by the exercise of
30
reasonable diligence by that agency;
31
Dealing with corruption issues
Part 6
Dealing with corruption issues
Division 1
Section 46
No. , 2022
National Anti-Corruption Commission Bill 2022
51
(e) any unfairness to a person that may arise as a result of the
1
Commissioner conducting a further investigation into the
2
corruption issue;
3
(f) the need to ensure that the corruption issue is fully
4
investigated.
5
(4) Subsection (3) does not limit the matters to which the
6
Commissioner may have regard in making the decision.
7
46 Matters dealt with by Independent Parliamentary Expenses
8
Authority
9
Application
10
(1) This section applies if conduct of a parliamentarian or a staff
11
member of a parliamentary office has been, is or could be the
12
subject of either of the following by the Independent Parliamentary
13
Expenses Authority:
14
(a) an audit, or a review for the purpose of preparing a report,
15
under the
Independent Parliamentary Expenses Authority Act
16
2017
into the use, by the parliamentarian or the staff member,
17
of work resources or travel resources;
18
(b) a ruling, under subsection 37(1) of the
Parliamentary
19
Business Resources Act 2017
, concerning conduct by the
20
parliamentarian or the staff member in relation to travel,
21
expenses or allowances.
22
Restriction on corruption investigation by Commissioner
23
(2) The Commissioner must not commence a corruption investigation
24
into a corruption issue involving the conduct unless:
25
(a) the Independent Parliamentary Expenses Authority:
26
(i) refers the issue to the Commissioner; and
27
(ii) states that the Authority considers that the issue could
28
involve corrupt conduct that is serious or systemic; and
29
(b) the Commissioner is of the opinion that the issue could
30
involve corrupt conduct that is serious or systemic.
31
Part 6
Dealing with corruption issues
Division 1
Dealing with corruption issues
Section 47
52
National Anti-Corruption Commission Bill 2022
No. , 2022
47 Matters dealt with by Electoral Commissioner
1
Application
2
(1) This section applies if conduct of a person has been, is or could be
3
the subject of an investigation by the Electoral Commissioner
4
under, or into compliance with, the
Commonwealth Electoral Act
5
1918
.
6
Restriction on corruption investigation by Commissioner
7
(2) The Commissioner must not commence a corruption investigation
8
into a corruption issue involving the conduct unless:
9
(a) the Electoral Commissioner:
10
(i) refers the issue to the Commissioner; and
11
(ii) states that the Electoral Commissioner considers that the
12
issue could involve corrupt conduct that is serious or
13
systemic; and
14
(b) the Commissioner is of the opinion that the issue could
15
involve corrupt conduct that is serious or systemic.
16
Exception--officers and staff members of the Electoral
17
Commission
18
(3) This section does not apply in relation to conduct of an officer
19
(within the meaning of the
Commonwealth Electoral Act 1918
), or
20
a member of the staff of the Commission (within the meaning of
21
that Act).
22
48 Public statements about corruption issues
23
(1) The Commissioner may make a public statement about a
24
corruption issue at any time (whether or not the Commissioner
25
deals with the issue).
26
(2) Without limiting subsection (1), the Commissioner may make a
27
public statement if the Commissioner is satisfied that it is
28
appropriate and practicable to do so to avoid damage to a person's
29
reputation.
30
Dealing with corruption issues
Part 6
Dealing with corruption issues
Division 1
Section 48
No. , 2022
National Anti-Corruption Commission Bill 2022
53
(3) Subsection (1) is subject to subsections 230(4) to (6) and section
1
231 as if a public statement under this section were a disclosure
2
under section 230.
3
Part 6
Dealing with corruption issues
Division 2
Investigations conducted by Commonwealth agencies
Section 49
54
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 2--Investigations conducted by Commonwealth
1
agencies
2
49 Application
3
This Division applies if the Commissioner deals with a corruption
4
issue by referring it to a Commonwealth agency for investigation
5
under paragraph 41(1)(c).
6
50 Commissioner may oversee investigation
7
(1) The Commissioner may oversee the investigation.
8
(2) If the Commissioner decides to oversee the investigation, the
9
Commissioner must notify the agency head.
10
51 Commissioner may give directions
11
(1) The Commissioner may give the agency directions about the
12
planning and conduct of the investigation.
13
(2) The directions may be given to the agency's nominated contact for
14
the investigation.
15
(3) The agency head must ensure that the agency follows the
16
Commissioner's directions.
17
52 Commissioner may require reports
18
The Commissioner may require the agency head to provide either
19
or both of the following:
20
(a) progress reports on the investigation from time to time;
21
(b) a report (the
completion report
) on the completion of the
22
investigation.
23
Dealing with corruption issues
Part 6
Investigations conducted by Commonwealth agencies
Division 2
Section 53
No. , 2022
National Anti-Corruption Commission Bill 2022
55
53 Commissioner's comments and recommendations
1
(1) If the Commissioner requires an agency head to provide a
2
completion report, the Commissioner may do either or both of the
3
following:
4
(a) comment on the report;
5
(b) provide additional recommendations in relation to the report.
6
Opportunity to respond must be given before including certain
7
information in completion reports
8
(2) Before making a comment on, or a recommendation in relation to,
9
a completion report that is critical (either expressly or impliedly) of
10
a Commonwealth agency, a State or Territory government entity or
11
any other person, the Commissioner must give the head of the
12
agency, the head of the entity or the other person concerned:
13
(a) a statement setting out the comment or recommendation; and
14
(b) a reasonable opportunity to respond to the comment or
15
recommendation.
16
(3) The response may be given by:
17
(a) the head of the Commonwealth agency or of the State or
18
Territory government entity concerned, or a person
19
authorised by the head; or
20
(b) in relation to any other person concerned--the other person
21
concerned, or, with approval, a person representing the other
22
person.
23
54 Follow-up action on completion report
24
(1) If the Commissioner requires an agency head to provide a
25
completion report, the Commissioner may request the head to give
26
the Commissioner, within a specified time, details of any action
27
that the head has taken, or proposes to take, with respect to:
28
(a) a recommendation included in the report; or
29
(b) a recommendation made by the Commissioner in relation to
30
the report.
31
(2) The agency head must comply with the request.
32
Part 6
Dealing with corruption issues
Division 2
Investigations conducted by Commonwealth agencies
Section 54
56
National Anti-Corruption Commission Bill 2022
No. , 2022
(3) If the Commissioner is not satisfied with the response of the
1
agency head to the request, the Commissioner may refer to the
2
person mentioned in subsection (4):
3
(a) the recommendation; and
4
(b) if the recommendation is made by the Commissioner--the
5
reasons for the recommendation; and
6
(c) the response of the head of the agency to the
7
recommendation; and
8
(d) the Commissioner's reasons for not being satisfied with that
9
response.
10
(4) For the purposes of subsection (3), the person is:
11
(a) if the Commonwealth agency is a parliamentary office:
12
(i) for a parliamentarian who is a senator--the President of
13
the Senate; or
14
(ii) for a parliamentarian who is a member of the House of
15
Representatives--the Speaker of the House of
16
Representatives; or
17
(b) if the Commonwealth agency is a Department of the
18
Parliament established under the
Parliamentary Service Act
19
1999
:
20
(i) for the Department of the Senate--the President of the
21
Senate; or
22
(ii) for the Department of the House of Representatives--
23
the Speaker of the House of Representatives; or
24
(iii) otherwise--both the President of the Senate and the
25
Speaker of the House of Representatives; or
26
(c) if the Commonwealth agency is established or continued in
27
existence by an Act and paragraph (b) does not apply--the
28
Minister administering that Act; or
29
(d) if the Commonwealth agency is a Commonwealth entity and
30
neither paragraph (b) nor (c) applies--the Minister having
31
general responsibility for the activities of the entity.
32
(5) If the Commissioner refers material to a person under
33
subsection (3), the Commissioner may also send a copy of that
34
material to:
35
(a) the President of the Senate for presentation to the Senate; and
36
Dealing with corruption issues
Part 6
Investigations conducted by Commonwealth agencies
Division 2
Section 54
No. , 2022
National Anti-Corruption Commission Bill 2022
57
(b) the Speaker of the House of Representatives for presentation
1
to the House of Representatives.
2
(6) The Commissioner must exclude the following from the copy of
3
the material sent under subsection (5):
4
(a) section 235 certified information;
5
(b) information that the Commissioner is satisfied is sensitive
6
information.
7
(7) Before sending a copy of material under subsection (5), the
8
Commissioner must consult with the head of each Commonwealth
9
agency or State or Territory government entity to which the
10
material relates about whether the material contains sensitive
11
information.
12
Part 7
Investigating corruption issues
Division 1
General
Section 55
58
National Anti-Corruption Commission Bill 2022
No. , 2022
Part 7--Investigating corruption issues
1
Division 1--General
2
55 Application of Part
3
This Part applies:
4
(a) to the Commissioner's investigation of a corruption issue that
5
could, in the Commissioner's opinion, involve corrupt
6
conduct that is serious or systemic; and
7
(b) whether the investigation is conducted:
8
(i) by the Commissioner only; or
9
(ii) jointly by the Commissioner and a Commonwealth
10
agency or a State or Territory government entity.
11
56 Conduct of corruption investigations generally
12
The Commissioner may investigate the corruption issue in such
13
manner as the Commissioner thinks fit.
14
Investigating corruption issues
Part 7
Requiring information, documents and things
Division 2
Section 57
No. , 2022
National Anti-Corruption Commission Bill 2022
59
Division 2--Requiring information, documents and things
1
Subdivision A--Directions to agency heads
2
57 Directions to agency heads
3
(1) This section applies if the Commissioner has reasonable grounds to
4
suspect that a Commonwealth agency has information, or a
5
document or thing, relevant to a corruption investigation.
6
(2) The Commissioner may, by writing, direct the head of the
7
Commonwealth agency to give the information, document or thing
8
to a specified staff member of the NACC.
9
(3) The direction is a
direction to produce
.
10
(4) The agency head must comply with the request as soon as
11
practicable.
12
Subdivision B--Notices to produce
13
58 Notices to produce
14
(1) This section applies if the Commissioner has reasonable grounds to
15
suspect that a person has information, or a document or thing,
16
relevant to a corruption investigation.
17
(2) The Commissioner may, by notice in writing, require the person to
18
give the information, document or thing to a specified staff
19
member of the NACC.
20
Note:
Disclosing the existence of a notice, or any information about it, may
21
be prohibited: see Subdivision A of Division 4 (use and disclosure of
22
certain information and material).
23
(3) The notice is a
notice to produce
.
24
(4) If the notice is a post-charge or a post-confiscation application
25
notice, the Commissioner must also have reasonable grounds to
26
suspect that the information, documents or things are necessary for
27
the purposes of the investigation even though:
28
Part 7
Investigating corruption issues
Division 2
Requiring information, documents and things
Section 59
60
National Anti-Corruption Commission Bill 2022
No. , 2022
(a) the person has been charged or the confiscation proceeding
1
has commenced; or
2
(b) that charge or proceeding is imminent.
3
(5) The notice:
4
(a) must:
5
(i) be served on the person; and
6
(ii) be signed by the Commissioner; and
7
(iii) specify the period within which, and the manner in
8
which, the person must comply with the notice; and
9
(b) may require information be given in writing.
10
(6) The matters in relation to which the Commissioner may require the
11
person to give the information, document or thing include:
12
(a) the subject matter of any charge, or imminent charge, against
13
the person; and
14
(b) the subject matter of any confiscation proceeding, or
15
imminent confiscation proceeding, against the person.
16
(7) The Commissioner may serve the notice without holding a hearing.
17
59 Period for complying
18
(1) The period specified for complying with a notice to produce must
19
end at least 14 days after the notice is served, unless the
20
Commissioner considers that allowing a 14-day period would
21
significantly prejudice a corruption investigation.
22
(2) If a shorter period is specified, the Commissioner must record, in
23
writing:
24
(a) the name of the investigation; and
25
(b) why a 14-day period would significantly prejudice the
26
investigation.
27
Extending the period
28
(3) The person on whom the notice is served may apply to the
29
Commissioner, in writing, to extend the period for complying with
30
the notice.
31
Investigating corruption issues
Part 7
Requiring information, documents and things
Division 2
Section 60
No. , 2022
National Anti-Corruption Commission Bill 2022
61
(4) The application must be made before the period specified in the
1
notice expires, or as soon as possible after that.
2
(5) The Commissioner may extend the period whether or not an
3
application has been made.
4
Record of compliance
5
(6) If the person gives the information, document or thing, as required
6
by the notice, the Commissioner must:
7
(a) keep a written record of that fact; and
8
(b) give a copy of the record to the person on request.
9
60 Offence--failure to comply with notice to produce
10
(1) A person commits an offence if:
11
(a) the person is served with a notice to produce; and
12
(b) the person fails to comply with the notice:
13
(i) unless subparagraph (ii) applies--within the period
14
specified in the notice; or
15
(ii) if the Commissioner extends the period--within that
16
period as extended.
17
Note:
For protection for journalists' informants, see section 31, for
18
international relations certificates, see section 236, and for other
19
privileges and protections, see Division 6 of this Part.
20
Penalty: Imprisonment for 2 years.
21
(2) Subsection (1) does not apply if it is not reasonably practicable for
22
the person to comply with the notice within the required period.
23
Note:
A defendant bears an evidential burden in relation to the matter in
24
subsection (2): see subsection 13.3(3) of the
Criminal Code
.
25
61 Offence--producing false or misleading information or
26
documents
27
(1) A person commits an offence if:
28
(a) the person is served with a notice to produce; and
29
Part 7
Investigating corruption issues
Division 2
Requiring information, documents and things
Section 61
62
National Anti-Corruption Commission Bill 2022
No. , 2022
(b) the person gives information or a document as required by
1
the notice; and
2
(c) the person does so knowing that the information or
3
document:
4
(i) is false or misleading; or
5
(ii) omits any matter or thing without which the information
6
or document is misleading.
7
Penalty: Imprisonment for 5 years.
8
(2) Subsection (1) does not apply if the information or document is not
9
false or misleading in a material particular.
10
Note:
A defendant bears an evidential burden in relation to the matter in this
11
subsection: see subsection 13.3(3) of the
Criminal Code
.
12
Investigating corruption issues
Part 7
Hearings
Division 3
Section 62
No. , 2022
National Anti-Corruption Commission Bill 2022
63
Division 3--Hearings
1
Subdivision A--Commissioner may hold hearings
2
62 Commissioner may hold hearings
3
(1) The Commissioner may hold a hearing for the purposes of a
4
corruption investigation.
5
(2) Subject to this Division, a hearing may be conducted in such
6
manner as the Commissioner thinks fit.
7
Information relating to intelligence agencies
8
(3) If the Commissioner considers that a person appearing at a hearing
9
may disclose intelligence information relating to an intelligence
10
agency, the Commissioner must conduct the hearing in a manner
11
consistent with any arrangement in force between the
12
Commissioner and the head of the agency.
13
63 Commissioner may summon persons
14
(1) If the Commissioner has reasonable grounds to suspect that a
15
person has evidence relevant to a corruption investigation, the
16
Commissioner may summon the person:
17
(a) to attend a hearing at a time and place specified in the
18
summons to give evidence; and
19
(b) to attend from day to day unless excused, or released from
20
further attendance, by the Commissioner.
21
Note:
Disclosing the existence of a private hearing summons, or any
22
information about it, may be prohibited: see Subdivision A of
23
Division 4 (use and disclosure of certain information and material).
24
(2) If the Commissioner has reasonable grounds to suspect that a
25
person has particular information, or a particular document or
26
thing, relevant to the corruption investigation, the summons may
27
also require the person to:
28
(a) give the Commissioner the information at the hearing; or
29
(b) produce the document or thing at the hearing.
30
Part 7
Investigating corruption issues
Division 3
Hearings
Section 64
64
National Anti-Corruption Commission Bill 2022
No. , 2022
(3) If the summons is a post-charge or a post-confiscation application
1
summons, the Commissioner must also have reasonable grounds to
2
suspect that the evidence, information, document or thing is
3
necessary for the purposes of the investigation even though:
4
(a) the person has been charged or the confiscation proceeding
5
has commenced; or
6
(b) that charge or proceeding is imminent.
7
(4) The summons must:
8
(a) be in writing and signed by the Commissioner; and
9
(b) be served on the person required to attend the hearing.
10
(5) The Commissioner must record in writing the reasons for the
11
summons. The record must be made at or before the time the
12
summons is issued.
13
(6) The matters in relation to which the Commissioner may summon a
14
person to give evidence or information, or produce a document or
15
thing, at a hearing include:
16
(a) the subject matter of any charge, or imminent charge, against
17
the person; and
18
(b) the subject matter of any confiscation proceeding, or
19
imminent confiscation proceeding, against the person.
20
(7) The Commissioner may vary the time or place specified in a
21
summons. This subsection does not limit subsection 33(3) of the
22
Acts Interpretation Act 1901
.
23
64 Summons must set out matters for questioning
24
(1) A summons requiring a person to give evidence must set out, so far
25
as is reasonably practicable, the general nature of the matters in
26
relation to which the Commissioner intends to question the person.
27
(2) However, subsection (1):
28
(a) does not apply if the Commissioner is satisfied that
29
complying with that subsection is likely to prejudice:
30
(i) the corruption investigation to which the hearing relates
31
or any other NACC Act process; or
32
(ii) any action taken as a result of a NACC Act process; and
33
Investigating corruption issues
Part 7
Hearings
Division 3
Section 65
No. , 2022
National Anti-Corruption Commission Bill 2022
65
(b) does not prevent the Commissioner from questioning the
1
person in relation to any aspect of any corruption
2
investigation.
3
65 Commissioner may require information, documents and things
4
(1) The Commissioner may require a witness at a hearing to give
5
information, or produce a document or thing, to the Commissioner.
6
(2) Subsection (1) applies whether or not the information, document or
7
thing was specified in the summons for the person to attend the
8
hearing.
9
66 Legal representation
10
(1) A person giving evidence at a hearing may be represented by a
11
legal practitioner.
12
(2) A person who is not giving evidence may be represented at a
13
hearing by a legal practitioner if:
14
(a) special circumstances exist; and
15
(b) the Commissioner consents to the person being so
16
represented.
17
(3) To avoid doubt, this section has effect subject to section 75
18
(presence of others at private hearings).
19
67 Record of hearings
20
(1) The Commissioner must cause a record of a hearing to be made.
21
(2) The record must include, in relation to each witness who gives
22
evidence at a public hearing, any statements made by the
23
Commissioner under subsection 73(5) in relation to the witness.
24
(3) Unless the Commissioner directs otherwise, the record must
25
include the following:
26
(a) any document produced to the Commissioner at the hearing;
27
(b) a description of any thing (other than a document) produced
28
to the Commissioner at the hearing.
29
Part 7
Investigating corruption issues
Division 3
Hearings
Section 68
66
National Anti-Corruption Commission Bill 2022
No. , 2022
68 Offence--failure to attend hearing
1
A person commits an offence if:
2
(a) the person is served with a summons to attend a hearing; and
3
(b) the person:
4
(i) fails to attend as required by the summons; or
5
(ii) fails to appear and report from day to day; and
6
(c) the person has not been excused or released from further
7
attendance by the Commissioner.
8
Penalty: Imprisonment for 2 years.
9
69 Offence--failure to give information, or produce documents or
10
things
11
(1) A person commits an offence if:
12
(a) the person is required to give information, or produce a
13
document or thing, at a hearing; and
14
(b) the person fails to give the information, or produce the
15
document or thing.
16
Note:
For protection for journalists' informants, see section 31, for
17
international relations certificates, see section 236, and for other
18
privileges and protections, see Division 6 of this Part.
19
Penalty: Imprisonment for 2 years.
20
(2) Subsection (1) does not apply if it is not reasonably practicable for
21
the person to give the information, or produce the document or
22
thing.
23
Note:
A defendant bears an evidential burden in relation to the matters in
24
subsection (2): see subsection 13.3(3) of the
Criminal Code
.
25
70 Offence--destroying documents or things
26
A person commits an offence if:
27
(a) the person acts or omits to act; and
28
(b) the act or omission results in a document or thing being:
29
(i) concealed, mutilated or destroyed; or
30
(ii) rendered incapable of identification; or
31
Investigating corruption issues
Part 7
Hearings
Division 3
Section 71
No. , 2022
National Anti-Corruption Commission Bill 2022
67
(iii) in the case of a document, rendered illegible or
1
indecipherable; and
2
(c) the document or thing is, or is likely to be, required by the
3
Commissioner under a notice to produce or at a hearing.
4
Penalty: Imprisonment for 5 years.
5
71 Offence--giving false or misleading evidence, information or
6
documents
7
(1) A person commits an offence if:
8
(a) the person gives evidence or information, or produces a
9
document, at a hearing; and
10
(b) the person does so knowing that the evidence, information or
11
document:
12
(i) is false or misleading; or
13
(ii) omits any matter or thing without which the evidence,
14
information or document is misleading.
15
Penalty: Imprisonment for 5 years.
16
(2) Subsection (1) does not apply if the evidence, information or
17
document
is not false or misleading in a material particular.
18
Note:
A defendant bears an evidential burden in relation to the matter in this
19
subsection: see subsection 13.3(3) of the
Criminal Code
.
20
72 Offences--obstructing or hindering hearings, threatening
21
persons present
22
(1) A person commits an offence if:
23
(a) the person engages in conduct; and
24
(b) the conduct obstructs or hinders a staff member of the NACC
25
in the performance or exercise of the staff member's
26
functions, powers or duties in connection with a hearing.
27
Penalty: Imprisonment for 2 years.
28
(2) A person commits an offence if the person disrupts a hearing.
29
Penalty: Imprisonment for 2 years.
30
Part 7
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Division 3
Hearings
Section 73
68
National Anti-Corruption Commission Bill 2022
No. , 2022
(3) A person commits an offence if the person threatens any person
1
present at a hearing.
2
Penalty: Imprisonment for 5 years.
3
Subdivision B--Private and public hearings
4
73 Private and public hearings
5
Hearings to be held generally in private
6
(1) A hearing must be held in private, unless the Commissioner
7
decides to hold the hearing, or part of the hearing, in public.
8
When hearing may be held in public
9
(2) The Commissioner may decide to hold a hearing, or part of a
10
hearing, in public if the Commissioner is satisfied that:
11
(a) exceptional circumstances justify holding the hearing, or the
12
part of the hearing, in public; and
13
(b) it is in the public interest to do so.
14
(3) In deciding whether to hold a hearing, or part of a hearing, in
15
public, the Commissioner may have regard to the following:
16
(a) the extent to which the corruption issue could involve corrupt
17
conduct that is serious or systemic;
18
(b) whether certain evidence is of a confidential nature or relates
19
to the commission, or to the alleged or suspected
20
commission, of an offence;
21
(c) any unfair prejudice to a person's reputation, privacy, safety
22
or wellbeing that would be likely to be caused if the hearing,
23
or the part of the hearing, were to be held in public;
24
(d) whether a person giving evidence has a particular
25
vulnerability, including that they are under the direct
26
instruction or control of another person in a relative position
27
of power;
28
(e) the benefits of exposing corrupt conduct to the public, and
29
making the public aware of corrupt conduct.
30
Investigating corruption issues
Part 7
Hearings
Division 3
Section 74
No. , 2022
National Anti-Corruption Commission Bill 2022
69
(4) Subsection (3) does not limit the matters to which the
1
Commissioner may have regard.
2
Public hearings--Commissioner's statements about witnesses
3
(5) Before a witness gives evidence in public at a hearing, the
4
Commissioner may, if the Commissioner thinks it appropriate,
5
make a statement about one or more of the following:
6
(a) whether the witness appears voluntarily or in response to a
7
summons to attend the hearing;
8
(b) whether or not conduct of the witness is the subject of the
9
corruption investigation.
10
74 Evidence that must be given in private
11
Evidence must be given in private if giving the evidence would:
12
(a) breach a secrecy provision; or
13
(b) disclose any of the following:
14
(i) legal advice given to a person;
15
(ii) a communication that is protected against disclosure by
16
legal professional privilege;
17
(iii) information that the Commissioner is satisfied is
18
sensitive information;
19
(iv) section 235 certified information;
20
(v) intelligence information.
21
75 Presence of others at private hearings
22
Legal practitioner representing witness
23
(1) A legal practitioner representing a person is entitled to be present
24
when the person is giving evidence at a hearing in private.
25
Presence of others
26
(2) The Commissioner may determine that other persons may be
27
present.
28
Part 7
Investigating corruption issues
Division 3
Hearings
Section 76
70
National Anti-Corruption Commission Bill 2022
No. , 2022
Witness to be informed if others are present
1
(3) If the Commissioner determines that a person (other than a staff
2
member of the NACC) is to be present while a witness is giving
3
evidence at the hearing, the Commissioner must:
4
(a) inform the witness that the person is to be present; and
5
(b) give the witness an opportunity to comment on the person's
6
presence.
7
(4) If the Commissioner has determined that another person may be
8
present, the person is entitled to be there even if:
9
(a) the Commissioner fails to inform the witness of the person's
10
presence; or
11
(b) the witness comments adversely on the person's presence.
12
Offence--person present without authority
13
(5) A person commits an offence if:
14
(a) the person attends a hearing while evidence is being given in
15
private at the hearing; and
16
(b) the person is not:
17
(i) the person giving evidence; or
18
(ii) the legal practitioner representing the person giving
19
evidence; or
20
(iii) a staff member of the NACC; or
21
(iv) a person the Commissioner has determined may be
22
present while the person is giving evidence.
23
Penalty: Imprisonment for 2 years.
24
76 Request to give evidence in private
25
(1) A witness may:
26
(a) request to give particular evidence in private; and
27
(b) make submissions to the Commissioner as to why the
28
evidence should be given in private.
29
Investigating corruption issues
Part 7
Hearings
Division 3
Section 77
No. , 2022
National Anti-Corruption Commission Bill 2022
71
(2) A request under this section to give evidence in private does not
1
limit the Commissioner's powers under section 73 (private and
2
public hearings).
3
77 Investigation material from private hearings
4
If all or part of a hearing is held in private, the Commissioner must
5
give a direction under section 100 (directions about use or
6
disclosure of investigation material) if the Commissioner is
7
satisfied that the failure to give such a direction:
8
(a) might prejudice a person's safety; or
9
(b) would reasonably be expected to prejudice a witness' fair
10
trial, if the witness has been charged with a relevant offence
11
or such a charge is imminent; or
12
(c) might lead to the publication of section 235 certified
13
information; or
14
(d) might lead to the publication of sensitive information.
15
Subdivision C--Evidence and procedure
16
78 Evidence on oath or by affirmation
17
(1) At a hearing, the Commissioner may:
18
(a) require a witness to either take an oath or make an
19
affirmation; and
20
(b) administer an oath or affirmation to the witness.
21
Note 1:
The hearing is a
judicial proceeding
for the purposes of Part III of the
22
Crimes Act 1914
, which creates various offences in relation to such
23
proceedings.
24
Note 2:
Failure to take an oath or make an affirmation is an offence: see
25
section 81.
26
(2) The oath or affirmation is an oath or affirmation that the evidence
27
the person will give will be true.
28
(3) The Commissioner may allow a person attending a hearing who
29
has taken an oath, or made an affirmation, to give evidence by
30
tendering a written statement and verifying it by oath or
31
affirmation.
32
Part 7
Investigating corruption issues
Division 3
Hearings
Section 79
72
National Anti-Corruption Commission Bill 2022
No. , 2022
79 Commissioner may take evidence outside Australia
1
(1) If arrangements have been made between Australia and another
2
country in relation to the taking of evidence in that country by the
3
Commissioner for a hearing under this Division, the evidence may
4
be given in that country:
5
(a) on oath or affirmation; or
6
(b) under an obligation to tell the truth imposed, whether
7
expressly or by implication, by or under a law of the other
8
country; or
9
(c) under such caution or admonition as would be accepted, by
10
courts in the other country, for the purposes of giving
11
testimony in proceedings before those courts.
12
(2) The oath, affirmation, obligation, caution or admonition must be
13
administered in accordance with those arrangements and the laws
14
of that other country.
15
(3) The Commissioner may use any evidence so taken for the purpose
16
of performing any function, or exercising any power, under this
17
Act.
18
80 Examination and cross-examination of witnesses
19
At a hearing, the following persons may, so far as the
20
Commissioner thinks appropriate, examine or cross-examine any
21
witness on any matter that the Commissioner considers relevant:
22
(a) counsel assisting the Commissioner;
23
(b) a person summoned, or otherwise authorised, to appear
24
before the Commissioner at the hearing;
25
(c) any legal practitioner representing a person at the hearing.
26
81 Offence--failure to take an oath, make an affirmation or answer
27
a question
28
A person commits an offence if:
29
(a) the person is served with a summons to attend a hearing; and
30
(b) the person:
31
Investigating corruption issues
Part 7
Hearings
Division 3
Section 82
No. , 2022
National Anti-Corruption Commission Bill 2022
73
(i) fails to take an oath or make an affirmation at the
1
hearing when required to do so (see section 78); or
2
(ii) fails to answer a question at the hearing that the
3
Commissioner requires the person to answer.
4
Note:
For protection for journalists' informants, see section 31, for
5
international relations certificates, see section 236, and for other
6
privileges and protections, see Division 6 of this Part.
7
Penalty: Imprisonment for 2 years.
8
Subdivision D--Contempt of the NACC
9
82 Contempt of the NACC
10
A person is in contempt of the NACC if the person:
11
(a) when served with a summons to attend a hearing:
12
(i) fails to attend as required by the summons; or
13
(ii) fails to appear and report from day to day unless
14
excused or released from further attendance by the
15
Commissioner; or
16
(iii) refuses or fails to take an oath or make an affirmation at
17
the hearing; or
18
(iv) refuses or fails to answer a question at the hearing that
19
the Commissioner requires the person to answer; or
20
(v) refuses or fails to give information, or produce a
21
document or thing, as required at a hearing; or
22
(b) is a legal practitioner who refuses, at a hearing, to give the
23
Commissioner the name and address of a person in
24
accordance with section 115 (material sought from legal
25
practitioners); or
26
(c) gives evidence or information, or produces a document, at a
27
hearing that the person knows is false or misleading in a
28
material particular; or
29
(d) insults, disturbs or uses insulting language towards a NACC
30
Commissioner who is holding a hearing in the performance
31
or exercise of the NACC Commissioner's functions or
32
powers when the person knows that the NACC
33
Commissioner:
34
Part 7
Investigating corruption issues
Division 3
Hearings
Section 83
74
National Anti-Corruption Commission Bill 2022
No. , 2022
(i) holds a position as a NACC Commissioner; and
1
(ii) is conducting such a hearing; or
2
(e) creates a disturbance, or takes part in creating or continuing a
3
disturbance, in or near a place that the person knows is being
4
used to hold a hearing; or
5
(f) obstructs or hinders a staff member of the NACC in the
6
performance or exercise of the staff member's functions,
7
powers or duties in connection with a hearing; or
8
(g) disrupts a hearing; or
9
(h) threatens a person present at a hearing.
10
Note:
For protection for journalists' informants, see section 31, for
11
international relations certificates, see section 236, and for other
12
privileges and protections, see Division 6 of this Part.
13
83 Application for court to deal with contempt
14
(1) The Commissioner may apply to either of the following for a
15
person to be dealt with for contempt of the NACC:
16
(a) the Federal Court;
17
(b) the Supreme Court of the State or Territory in which the
18
contempt occurs.
19
(2) Before making the application, the Commissioner must inform the
20
person that the Commissioner proposes to make the application.
21
(3) The application must be accompanied by a certificate that states:
22
(a) the grounds for making the application; and
23
(b) evidence in support of the application.
24
(4) A copy of the certificate must be given to the person before, or at
25
the same time as, the application is made.
26
84 Conduct of contempt proceedings
27
(1) If the Commissioner makes an application to a court to deal with a
28
person for contempt of the NACC, proceedings are to be instituted,
29
carried on, heard and determined in accordance with the laws
30
(including any rules of court) that apply in relation to the
31
punishment of a contempt of the court.
32
Investigating corruption issues
Part 7
Hearings
Division 3
Section 85
No. , 2022
National Anti-Corruption Commission Bill 2022
75
(2) In those proceedings, the certificate that sets out the grounds for
1
making the application and evidence in support of the application
2
is prima facie evidence of the matters specified in the certificate.
3
(3) The court must:
4
(a) consider the matters specified in the certificate; and
5
(b) hear or receive any evidence or statements by or in support of
6
the application; and
7
(c) hear or receive any evidence or statements by or in support of
8
the person.
9
(4) If the court finds that the person was in contempt of the NACC, the
10
court may deal with the person as if the acts or omissions involved
11
constituted a contempt of the court.
12
(5) For the purposes of determining whether a person is in contempt of
13
the NACC, Chapter 2 of the
Criminal Code
applies as if:
14
(a) being in contempt of the NACC were an offence; and
15
(b) references to a person being criminally responsible for an
16
offence were references to a person being responsible for
17
being in contempt of the NACC.
18
85 Person in contempt may be detained
19
(1) If, during a hearing, the Commissioner proposes to make an
20
application for a person to be dealt with for contempt of the
21
NACC, the Commissioner may direct a constable or an authorised
22
officer to detain the person for the purpose of bringing the person
23
before the court for the hearing of the application.
24
(2) If the person is so detained:
25
(a) the Commissioner must, as soon as practicable, apply for the
26
person to be dealt with by the court; and
27
(b) the person must, subject to subsection (3), be brought before
28
the court as soon as practicable.
29
(3) The court may:
30
(a) direct that the person be released from detention on condition
31
that the person will appear before the court in relation to the
32
application; or
33
Part 7
Investigating corruption issues
Division 3
Hearings
Section 86
76
National Anti-Corruption Commission Bill 2022
No. , 2022
(b) order that the person continue to be detained until the
1
application is determined.
2
(4) The court may also impose any other condition on release,
3
including the following:
4
(a) that the person surrenders the following documents:
5
(i) any Australian travel document that has been issued to
6
the person;
7
(ii) any passport or other travel document that has been
8
issued to the person by or on behalf of the government
9
of a foreign country;
10
(b) that the person give an undertaking as to the person's living
11
arrangements;
12
(c) that the person report as required to a law enforcement
13
agency.
14
(5) The court may at any time vary or revoke a condition imposed
15
under subsection (4).
16
86 Commissioner may withdraw contempt application
17
(1) The Commissioner may, at any time, withdraw an application for a
18
court to deal with a person for contempt of the NACC.
19
(2) The person must be released immediately if:
20
(a) the person is in detention in relation to the contempt; and
21
(b) the Commissioner withdraws the application.
22
87 Double jeopardy
23
(1) A person is not liable to be prosecuted for an offence in respect of
24
an act or omission if:
25
(a) an application is made to the Federal Court or a Supreme
26
Court under subsection 83(1) in respect of the act or
27
omission; and
28
(b) the person is dealt with by the court under that section in
29
respect of the act or omission.
30
Investigating corruption issues
Part 7
Hearings
Division 3
Section 88
No. , 2022
National Anti-Corruption Commission Bill 2022
77
(2) If a person is prosecuted for an offence in respect of an act or
1
omission referred to in section 82 without an application being
2
made to the Federal Court or a Supreme Court under subsection
3
83(1) in respect of the act or omission, an application must not be
4
made under subsection 83(1) in respect of the act or omission.
5
Note:
For double jeopardy generally, see section 4C of the
Crimes Act 1914
.
6
Subdivision E--Travel documents and arrest of witnesses
7
88 Applying for orders to deliver travel documents
8
(1) The Commissioner may apply to a Judge of the Federal Court for
9
an order that a person deliver a travel document to the
10
Commissioner if:
11
(a) either of the following apply:
12
(i) a summons has been issued requiring the person to
13
attend a hearing (whether or not the summons has been
14
served);
15
(ii) the person has appeared at a hearing to give evidence or
16
to produce documents or things; and
17
(b) there are reasonable grounds to believe that the person may
18
be able:
19
(i) to give evidence, or further evidence, that is relevant to
20
the corruption investigation concerned; or
21
(ii) to produce documents or things, or further documents or
22
things, that are relevant to the investigation concerned;
23
and
24
(c) there are reasonable grounds to suspect that the person has a
25
travel document and intends to leave Australia.
26
(2) Each of the following is a
travel document
:
27
(a) an Australian travel document that has been issued to the
28
person;
29
(b) a passport or other travel document that has been issued to
30
the person by or on behalf of the government of a foreign
31
country.
32
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Section 89
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(3) The Commissioner must give the Judge information on oath, or by
1
affirmation, in support of the grounds for the application.
2
89 Orders to deliver travel documents
3
Court order for witness to appear before the Court
4
(1) If a Judge of the Federal Court, sitting in Chambers, is satisfied, on
5
the evidence, that the requirements of paragraphs 88(1)(a), (b) and
6
(c) are met, the Judge may make an order:
7
(a) requiring the person to appear before the Federal Court on a
8
date, and at a time and place, specified in the order; and
9
(b) requesting the person to show cause why the person should
10
not be ordered to deliver the travel document to the
11
Commissioner.
12
Court order that witness deliver travel document to Commissioner
13
(2) If a person appears before the Federal Court as required by an
14
order made under subsection (1), the Court may, if it thinks fit,
15
make an order:
16
(a) requiring the person to deliver to the Commissioner a travel
17
document that is in the person's possession, custody or
18
control; and
19
(b) authorising the Commissioner to retain the travel document
20
until the end of the period (not exceeding 1 month) that is
21
specified in the order.
22
Extension of period that Commissioner may retain travel document
23
(3) The Federal Court may, upon application by the Commissioner,
24
extend for a further period (of not more than 1 month in each case),
25
the period for which the Commissioner is authorised to retain a
26
travel document. However, the total period for which the
27
Commissioner is authorised to retain the travel document must not
28
exceed 3 months.
29
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Hearings
Division 3
Section 90
No. , 2022
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79
Revocation of court order
1
(4) If the Federal Court makes an order authorising the Commissioner
2
to retain a travel document issued to a person, the person may
3
apply to the Federal Court for the order to be revoked.
4
(5) If the Federal Court revokes the order, the Commissioner must
5
return the travel document to the person immediately.
6
Jurisdiction of the Federal Court
7
(6) The Federal Court has jurisdiction with respect to matters arising
8
under this section.
9
90 Application for warrant to arrest witness
10
(1) An authorised officer may apply to a superior court judge for a
11
warrant to arrest a person if:
12
(a) both of the following apply:
13
(i) the person has been ordered to deliver a travel document
14
to the Commissioner (whether or not the person has
15
complied with the order);
16
(ii) the authorised officer has reasonable grounds to believe
17
that the person is likely to leave Australia for the
18
purpose of avoiding giving evidence at a hearing; or
19
(b) the person is to be served with a summons under section 63
20
and the authorised officer has reasonable grounds to believe
21
that the person:
22
(i) has absconded or is likely to abscond; or
23
(ii) is otherwise attempting, or likely to attempt, to evade
24
service of the summons; or
25
(c) the authorised officer has reasonable grounds to believe that
26
the person has committed an offence under section 68 (failure
27
to attend hearing), or is likely to do so.
28
(2) An authorised officer must give the judge information on oath, or
29
by affirmation, in support of the grounds for the application.
30
(3) A
superior court judge
is:
31
(a) a Judge of the Federal Court; or
32
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Hearings
Section 91
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National Anti-Corruption Commission Bill 2022
No. , 2022
(b) a Judge of the Supreme Court of a State or Territory.
1
91 Warrant for arrest
2
(1) If a superior court judge, sitting in Chambers, is satisfied, on the
3
evidence, that there are reasonable grounds for believing that
4
paragraph 90(1)(a), (b) or (c) is met, the judge may issue a warrant
5
authorising the arrest of the person.
6
(2) For the purposes of executing the warrant, an authorised officer
7
who is not a constable has the same powers and duties as a
8
constable has in arresting a person for an offence under Divisions 4
9
and 5 of Part IAA of the
Crimes Act 1914
.
10
(3) To avoid doubt, the authorised officer executing the warrant need
11
not be the authorised officer who applied for the warrant.
12
92 Powers of judge in relation to person arrested
13
(1) A person arrested under a warrant issued under section 91 must be
14
brought, as soon as practicable, before a superior court judge.
15
(2) The judge may:
16
(a) grant the person bail:
17
(i) on such security as the judge thinks fit; and
18
(ii) on such conditions as the judge thinks are necessary to
19
ensure that the person appears as a witness at a hearing
20
before the Commissioner; or
21
(b) order that the person continue to be detained for the purpose
22
of ensuring that the person appears as a witness at a hearing
23
before the Commissioner; or
24
(c) order that the person be released.
25
(3) A person who is detained under paragraph (2)(b) must be brought
26
before a superior court judge:
27
(a) within 14 days after the person was brought, or last brought,
28
before such a judge; or
29
(b) within such shorter or longer time as a superior court judge
30
fixed on the person's last previous appearance before such a
31
judge;
32
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Division 3
Section 93
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81
and the judge may exercise any of the powers under subsection (2).
1
Subdivision F--Miscellaneous
2
93 Allowances for travelling and other expenses
3
A witness appearing at a hearing is entitled to be paid by the
4
Commonwealth any allowances for travelling and other expenses
5
that are prescribed by the regulations.
6
94 Protection of Commissioner and legal practitioners assisting
7
(1) The Commissioner has, in exercising the power to hold a hearing,
8
the same protection and immunity as a Justice of the High Court.
9
(2) A legal practitioner assisting the Commissioner, or representing a
10
person, at a hearing has the same protection and immunity as a
11
barrister appearing for a party in proceedings in the High Court.
12
(3) To avoid doubt, this section does not limit the powers of the
13
Inspector, or the powers of the Ombudsman under the
Ombudsman
14
Act 1976
, to investigate issues of administrative practice in relation
15
to a hearing that has been held under this Act.
16
Part 7
Investigating corruption issues
Division 4
Use and disclosure of certain information and material
Section 95
82
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 4--Use and disclosure of certain information and
1
material
2
Subdivision A--Non-disclosure notations
3
95 Non-disclosure notations
4
(1) A
non-disclosure notation
is a requirement included in a notice to
5
produce or a private hearing summons that prohibits disclosure of
6
information about the notice or summons, or any official matter
7
connected with the notice or summons.
8
(2) The notation may permit disclosure of information in specified
9
circumstances.
10
Information about rights and obligations
11
(3) The notation must be accompanied by a written statement setting
12
out the rights and obligations conferred or imposed by section 98
13
(failure to comply with non-disclosure notations).
14
Meanings of private hearing summons and official matter
15
(4) A
private hearing summons
is a summons to attend a hearing all
16
or part of which is to be held in private.
17
(5) An
official matter
is any of the following (whether past, present or
18
contingent):
19
(a) a corruption investigation;
20
(b) any other NACC Act process;
21
(c) court proceedings.
22
96 When non-disclosure notations must or may be included
23
(1) The Commissioner must include a non-disclosure notation in a
24
notice to produce or a private hearing summons if the
25
Commissioner is satisfied that not doing so would reasonably be
26
expected to prejudice:
27
(a) a person's safety or reputation; or
28
Investigating corruption issues
Part 7
Use and disclosure of certain information and material
Division 4
Section 97
No. , 2022
National Anti-Corruption Commission Bill 2022
83
(b) a person's fair trial, if the person has been charged with an
1
offence or such a charge is imminent; or
2
(c) a NACC Act process; or
3
(d) any action taken as a result of a NACC Act process.
4
(2) The Commissioner may include a non-disclosure notation in a
5
notice to produce or a private hearing summons if the
6
Commissioner is satisfied that:
7
(a) not doing so might prejudice:
8
(i) a person's safety or reputation; or
9
(ii) a person's fair trial, if the person has been charged with
10
an offence or such a charge is imminent; or
11
(iii) a NACC Act process; or
12
(iv) any action taken as a result of a NACC Act process; or
13
(b) not doing so might otherwise be contrary to the public
14
interest.
15
(3) The Commissioner must not include a non-disclosure notation in
16
any other case.
17
97 Cancelling non-disclosure notations
18
(1) The Commissioner may cancel a non-disclosure notation in a
19
notice to produce or a private hearing summons if the reason for
20
the notation no longer exists.
21
(2) If the Commissioner cancels the notation:
22
(a) the Commissioner must advise the person on whom the
23
notice or summons was served in writing; and
24
(b) the cancellation takes effect when the person is so advised.
25
(3) Unless it is cancelled earlier, the Commissioner must consider
26
cancelling the notation as follows:
27
(a) 5 years after the notice or summons is served;
28
(b) after every following 2 years.
29
Part 7
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Division 4
Use and disclosure of certain information and material
Section 98
84
National Anti-Corruption Commission Bill 2022
No. , 2022
Disclosure under the Privacy Act 1988
1
(4) A credit reporting body (within the meaning of the
Privacy Act
2
1988
) must not make a note under subsection 20E(5) of that Act
3
about the disclosure of credit reporting information until any
4
non-disclosure notation prohibiting the disclosure of that
5
information is cancelled.
6
98 Offence--failure to comply with non-disclosure notations
7
(1) A person commits an offence if:
8
(a) a notice to produce or a private hearing summons includes a
9
non-disclosure notation; and
10
(b) the person discloses information about the notice or
11
summons, or any official matter connected with the notice or
12
summons; and
13
(c) the notation has not been cancelled.
14
Penalty: Imprisonment for 5 years.
15
(2) Strict liability applies to paragraph (1)(c).
16
(3) Subsection (1) does not apply if the disclosure is made:
17
(a) in the circumstances, if any, permitted by the notation; or
18
(b) to a legal practitioner for the purpose of obtaining legal
19
advice or representation in relation to the notice or summons;
20
or
21
(c) to a legal aid officer for the purpose of seeking assistance in
22
relation to:
23
(i) the notice or summons; or
24
(ii) any other matter arising under, or in relation to, this Act;
25
or
26
(d) by a body corporate to an officer or agent of the body
27
corporate, or by an officer or agent of a body corporate to
28
another officer or agent of the body corporate, for the
29
purpose of ensuring compliance with the notice or summons;
30
or
31
(e) by a legal practitioner for the purpose of:
32
Investigating corruption issues
Part 7
Use and disclosure of certain information and material
Division 4
Section 99
No. , 2022
National Anti-Corruption Commission Bill 2022
85
(i) obtaining the agreement of a person as mentioned in
1
subsection 115(3) to the legal practitioner disclosing
2
advice or a communication; or
3
(ii) giving legal advice to, or making representations on
4
behalf of, the person on whom the notice or summons
5
was served; or
6
(f) after the information has already been lawfully published.
7
Note:
A defendant bears an evidential burden in relation to the matters in
8
subsection (3): see subsection 13.3(3) of the
Criminal Code
.
9
(4) A reference in this section to disclosing information (the
primary
10
information
) includes a reference to disclosing other information
11
from which a person could reasonably be expected to infer the
12
primary information.
13
Meaning of legal aid officer
14
(5) A
legal aid officer
is:
15
(a) a member or member of staff of an authority established by
16
or under a law of a State or Territory for purposes that
17
include providing legal assistance; or
18
(b) a person in a class of persons prescribed by the regulations.
19
Subdivision B--Use and disclosure of investigation material
20
99 Meaning of investigation material
21
(1)
Investigation material
is any of the following:
22
(a) particular information given, or a document or thing
23
produced, by a person as required by a notice to produce;
24
(b) particular information or evidence given by a person at a
25
hearing;
26
(c) a document or thing produced by a person at a hearing;
27
(d) particular information, or a document or thing, given to a
28
person during a hearing;
29
(e) the identity, or particular information that may reveal the
30
identity, of a person who has given evidence at a hearing;
31
Part 7
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Division 4
Use and disclosure of certain information and material
Section 100
86
National Anti-Corruption Commission Bill 2022
No. , 2022
(f) the identity, or particular information that may reveal the
1
identity, of a person about whom allegations have been made
2
at a hearing;
3
(g) the fact that a particular person has given or may be about to
4
give evidence at a hearing;
5
(h) the identity, or particular information that may reveal the
6
identity, of a person of interest to a corruption investigation,
7
if the identity or information was revealed at a hearing;
8
(i) the fact that a hearing has been, or may be, held in private.
9
(2)
Investigation material
includes copies, contents or descriptions of
10
that material.
11
(3) To avoid doubt, information, a document or a thing is not
12
investigation material
to the extent that it is obtained otherwise
13
than:
14
(a) as required by a notice to produce; or
15
(b) at a hearing.
16
(4) The
witness
, in relation to investigation material covered by
17
paragraph (1)(a), (b), (c), (d), (e), (f), (g) or (h), is the person
18
mentioned in that paragraph.
19
(5) The
witness
, in relation to derivative material, means the person
20
who is the witness in relation to the investigation material from
21
which the derivative material was obtained.
22
100 Directions about use or disclosure of investigation material
23
(1) The Commissioner may direct that investigation material:
24
(a) must not be used or disclosed; or
25
(b) may only be used by, or disclosed to, specified persons in
26
specified ways or on specified conditions.
27
Note:
For when the Commissioner must give such a direction, see section 77
28
(investigation material from private hearings).
29
(2) The Commissioner may, in writing, vary or revoke the direction.
30
(3) However, the direction must not be varied or revoked if the
31
Commissioner is satisfied that the variation or revocation:
32
Investigating corruption issues
Part 7
Use and disclosure of certain information and material
Division 4
Section 101
No. , 2022
National Anti-Corruption Commission Bill 2022
87
(a) might prejudice a person's safety; or
1
(b) would reasonably be expected to prejudice the witness' fair
2
trial, if the witness has been charged with a relevant offence
3
or such a charge is imminent; or
4
(c) might lead to the publication of section 235 certified
5
information; or
6
(d) might lead to the publication of sensitive information.
7
101 Offence--use or disclosure of investigation material
8
(1) A person commits an offence if:
9
(a) the person uses or discloses investigation material (whether
10
or not the person is the first to do so); and
11
(b) the use or disclosure contravenes a direction under section
12
100; and
13
(c) the use or disclosure is not authorised by or under this Act.
14
Penalty: Imprisonment for 2 years.
15
(2) Strict liability applies to paragraph (1)(c).
16
(3) Subsection (1) has effect despite section 34B of the
17
Inspector-General of Intelligence and Security Act 1986
.
18
102 Disclosure to IGIS officials and Ombudsman officials
19
(1) A direction given by the Commissioner under section 100 does not
20
prevent:
21
(a) a person from disclosing investigation material to an IGIS
22
official; or
23
(b) an IGIS official using investigation material, for the purpose
24
of the IGIS official performing a function, or exercising a
25
power, as an IGIS official; or
26
(c) a person from disclosing investigation material to a staff
27
member of the Office of the Commonwealth Ombudsman; or
28
(d) a staff member of the Office of the Commonwealth
29
Ombudsman using investigation material for the purposes of
30
that office.
31
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Use and disclosure of certain information and material
Section 103
88
National Anti-Corruption Commission Bill 2022
No. , 2022
(2) However, the Commissioner may direct that use or disclosure of
1
investigation material is not authorised by this section if the
2
Commissioner is satisfied that using or disclosing the material
3
would be reasonably likely to prejudice the performance or
4
exercise of functions or powers of the Commissioner.
5
(3) The Commissioner must consult the IGIS or the Ombudsman, as
6
the case requires, as soon as practicable after giving the direction.
7
(4) A direction given under subsection (2):
8
(a) has effect accordingly; and
9
(b) to avoid doubt, may be included in a direction under section
10
100 (directions about use or disclosure of investigation
11
material).
12
103 Making investigation material available to courts
13
(1) This section applies if:
14
(a) a person has been charged with an offence before a federal
15
court or a court of a State or Territory; and
16
(b) the court considers it desirable, in the interests of justice, that
17
the investigation material be made available to the person or
18
to a legal practitioner representing the person.
19
(2) The court may give the Commissioner a certificate to that effect.
20
(3) If the court does so, the Commissioner must make the investigation
21
material available to the court.
22
(4) If, after examining the investigation material, the court is satisfied
23
that the interests of justice so require, the court may make the
24
material available to any of the following:
25
(a) the person or a legal practitioner representing the person;
26
(b) if the person is not the witness in relation to the material--
27
the prosecutor of the person.
28
Investigating corruption issues
Part 7
Use and disclosure of certain information and material
Division 4
Section 104
No. , 2022
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89
104 Obtaining derivative material
1
(1) An entity mentioned in subsection (3), that may lawfully use or
2
disclose investigation material, may lawfully use or disclose the
3
material for the purpose of obtaining derivative material.
4
(2) Subsection (1):
5
(a) has effect subject to:
6
(i) any direction given under section 100 (directions about
7
use or disclosure of investigation material), including as
8
affected by subsection 106(1) (court orders); and
9
(ii) subsection 105(4) (special rule for certain post-charge
10
disclosure); and
11
(b) does not, by implication, limit the use or disclosure of the
12
investigation material for any other purpose.
13
(3) The entities are as follows:
14
(a) a staff member of the NACC;
15
(b) a person or body investigating whether the witness
16
committed an offence against a law of the Commonwealth or
17
of a State or Territory;
18
(c) a prosecutor of the witness;
19
(d) a prosecuting authority;
20
(e) a proceeds of crime authority;
21
(f) the Inspector;
22
(g) a person assisting the Inspector;
23
(h) any other person or body lawfully in possession of the
24
investigation material.
25
105 Disclosing investigation and derivative material to prosecutors
26
of the witness
27
Investigation material
28
(1) A person or body, that may lawfully disclose investigation
29
material, may lawfully disclose the material to a prosecutor of the
30
witness.
31
Part 7
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Division 4
Use and disclosure of certain information and material
Section 106
90
National Anti-Corruption Commission Bill 2022
No. , 2022
(2) Subsection (1) has effect subject to section 100 (directions about
1
use or disclosure of investigation material), unless subsection (4)
2
applies.
3
Derivative material
4
(3) A person or body, that may lawfully disclose derivative material,
5
may lawfully disclose the material to a prosecutor of the witness.
6
Special rule for certain post-charge disclosure
7
(4) However, if the disclosure is one of the following, it may only be
8
disclosed under a court order made under subsection 106(1):
9
(a) a post-charge disclosure of investigation material;
10
(b) a post-charge disclosure of derivative material that is
11
obtained from post-charge investigation material.
12
Meaning of prosecutor and prosecuting authority
13
(5) A
prosecutor
of a witness is an individual:
14
(a) who is a prosecuting authority or is employed or engaged by
15
a prosecuting authority; and
16
(b) who:
17
(i) makes, or is involved in the making of, a decision
18
whether to prosecute the witness for a relevant offence;
19
or
20
(ii) is one of the individuals engaging in such a prosecution
21
of the witness.
22
(6) A
prosecuting authority
is an individual, or authority, authorised
23
by or under a law of the Commonwealth or of a State or Territory
24
to prosecute an offence.
25
106 Court's powers to order disclosure and to ensure a fair trial
26
Court may order that material may be disclosed
27
(1) A court may, on application or on its own initiative, order that
28
investigation material or derivative material may be disclosed to
29
Investigating corruption issues
Part 7
Use and disclosure of certain information and material
Division 4
Section 107
No. , 2022
National Anti-Corruption Commission Bill 2022
91
prosecutors of the witness if the court is satisfied that the
1
disclosure is required:
2
(a) in the interests of justice; and
3
(b) despite any direction given under section 100.
4
The order may specify the prosecutors (by any means), and the
5
uses to which they may put the material.
6
(2) Subsection (1) applies to the following courts:
7
(a) if the witness has been charged with a relevant offence before
8
a federal court or a court of a State or Territory--that court;
9
(b) otherwise--a federal court (other than the Federal Circuit and
10
Family Court of Australia (Division 1)) or a court of a State
11
or Territory.
12
Court's powers to ensure the witness' fair trial
13
(3) This Subdivision does not, by implication, restrict a court's power
14
to make any orders necessary to ensure that the witness' fair trial is
15
not prejudiced by the possession or use of investigation material or
16
derivative material by a prosecutor of the witness.
17
(4) However, a person's trial for:
18
(a) an offence against a law of the Commonwealth or of a
19
Territory; or
20
(b) an offence against a law of a State that has a federal aspect
21
(within the meaning of the
Crimes Act 1914
);
22
is not unfair merely because the person has been a witness. This
23
applies whether the person became a witness:
24
(c) before being charged with the offence and before such a
25
charge was imminent; or
26
(d) after being charged with the offence or after such a charge
27
was imminent.
28
107 Certain material may always be disclosed to prosecutors of the
29
witness
30
(1) A person or body, that may lawfully disclose investigation material
31
of a kind covered by paragraph 99(1)(d), (e), (f), (g) or (h), may
32
lawfully disclose the investigation material, or derivative material
33
Part 7
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Use and disclosure of certain information and material
Section 108
92
National Anti-Corruption Commission Bill 2022
No. , 2022
obtained from the investigation material, to a prosecutor of the
1
witness.
2
(2) A person or body, that may lawfully disclose investigation material
3
or derivative material, may lawfully disclose the material to a
4
prosecutor of the witness if the witness is suspected of, or has been
5
charged with:
6
(a) an offence against this Part, other than an offence against
7
subsection 75(5) (person present at a private hearing without
8
authority); or
9
(b) an offence against any of the following that relates to a notice
10
to produce or a hearing:
11
(i) section 137.1 or 137.2 of the
Criminal Code
(about false
12
or misleading information or documents);
13
(ii) section 144.1 or 145.1 of the
Criminal Code
(about
14
forgery); or
15
(c) an offence against section 149.1 of the
Criminal Code
(about
16
obstruction of Commonwealth public officials) that relates to
17
this Act.
18
(3) Subsections (1) and (2) have effect subject to any direction given
19
under section 100, including as affected by subsection 106(1).
20
108 Use of material by prosecutors
21
(1) If a prosecutor of the witness lawfully possesses investigation
22
material or derivative material, the prosecutor may use that
23
material for purposes that include:
24
(a) making a decision whether to prosecute the witness; and
25
(b) prosecuting the witness.
26
This use of the investigation material is subject to:
27
(c) section 113 (self-incrimination); and
28
(d) any direction given under section 100 (directions about use
29
or disclosure of investigation material).
30
(2) If material is lawfully in the possession of a prosecutor of the
31
witness, the fact that the material is investigation material or
32
derivative material does not prevent it from being admissible in
33
evidence against the witness in a criminal proceeding.
34
Investigating corruption issues
Part 7
Use and disclosure of certain information and material
Division 4
Section 109
No. , 2022
National Anti-Corruption Commission Bill 2022
93
Note:
The material may be inadmissible for other reasons (for example,
1
because of subsection 113(2)).
2
(3) This Subdivision does not, by implication, restrict the use of
3
investigation material or derivative material by, or the disclosure of
4
that material to:
5
(a) a prosecuting authority who is not a prosecutor of the
6
witness; or
7
(b) an individual employed or engaged by such a prosecuting
8
authority.
9
(4) This section has effect subject to any law of the Commonwealth, a
10
State or a Territory.
11
109 Making material available to proceeds of crime authorities
12
(1) A person or body, that may lawfully disclose investigation material
13
or derivative material, may lawfully disclose the material to a
14
proceeds of crime authority.
15
(2) Subsection (1) has effect subject to any direction given under
16
section 100 (directions about use or disclosure of investigation
17
material).
18
(3) If material is lawfully in the possession of a proceeds of crime
19
authority, the fact that the material is investigation material or
20
derivative material does not prevent it from being admissible in
21
evidence against the witness in a confiscation proceeding.
22
Note:
The material may be inadmissible for other reasons (for example,
23
because of subsection 113(2)).
24
(4) Subsections (3) and 113(3) (self-incrimination) do not, by
25
implication, restrict a court's power to make any orders necessary
26
to prevent prejudice to the proper administration of justice.
27
Part 7
Investigating corruption issues
Division 5
Retention and return of documents and things
Section 110
94
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 5--Retention and return of documents and things
1
110 Commissioner may retain documents and things
2
(1) This section applies if a document or thing is produced to the
3
Commissioner under this Act.
4
(2) The Commissioner:
5
(a) may make copies of the document or thing, or take extracts
6
from the document; and
7
(b) may retain possession of the document or thing for such
8
period as is necessary for the purposes of:
9
(i) a corruption investigation or any other NACC Act
10
process; or
11
(ii) any action taken as a result of a NACC Act process.
12
(3) While the Commissioner retains the document or thing, the
13
Commissioner must allow a person who would otherwise be
14
entitled to inspect the document or view the thing:
15
(a) to do so at all reasonable times; and
16
(b) to copy the document or thing.
17
(4) Subsection (3) does not apply if:
18
(a) possession of the document or thing by the person could
19
constitute an offence; or
20
(b) inspecting or copying the document or thing (as the case
21
requires) would compromise or damage the document or
22
thing; or
23
(c) the Commissioner is satisfied that allowing the person to
24
inspect the document or view the thing would prejudice:
25
(i) a corruption investigation or any other NACC Act
26
process; or
27
(ii) any action taken as a result of a NACC Act process.
28
Investigating corruption issues
Part 7
Retention and return of documents and things
Division 5
Section 111
No. , 2022
National Anti-Corruption Commission Bill 2022
95
111 When documents and things must be returned
1
(1) This section applies if the Commissioner is satisfied that a
2
document or thing produced under this Act is not required (or is no
3
longer required) for the purposes of:
4
(a) a corruption investigation or any other NACC Act process; or
5
(b) any action taken as a result of a NACC Act process.
6
(2) The Commissioner must take reasonable steps to return the
7
document or thing to the person from whom it was received, or to
8
the owner if that person is not entitled to possess it.
9
(3) However, the Commissioner does not have to take those steps if:
10
(a) possession of the document or thing by a person could
11
constitute an offence; or
12
(b) the document or thing may otherwise be retained, destroyed
13
or disposed of under a law, or an order of a court or tribunal,
14
of the Commonwealth or of a State or a Territory; or
15
(c) the document or thing is forfeited or forfeitable to the
16
Commonwealth or is the subject of a dispute as to ownership.
17
112 Magistrate may permit documents and things to be retained,
18
forfeited etc.
19
(1) A magistrate may, on application by the Commissioner, make an
20
order under subsection (2) in relation to a document or thing
21
produced under this Act if the magistrate is satisfied that there are
22
reasonable grounds to suspect that, if the document or thing is
23
returned to any of the following persons, it is likely to be used by
24
that person or another person in the commission of a serious
25
offence:
26
(a) the owner of the document or thing;
27
(b) the person who produced the document or thing.
28
(2) The orders are as follows:
29
(a) an order that the document or thing may be retained for the
30
period specified in the order;
31
(b) an order that the document or thing is forfeited to the
32
Commonwealth;
33
Part 7
Investigating corruption issues
Division 5
Retention and return of documents and things
Section 112
96
National Anti-Corruption Commission Bill 2022
No. , 2022
(c) for a thing (other than a document)--an order that:
1
(i) the thing be sold and the proceeds given to the owner of
2
the thing; or
3
(ii) the thing be sold in some other way;
4
(d) an order that the document or thing is to be destroyed or
5
otherwise disposed of.
6
Persons with interests in documents or things
7
(3) Before making an application under this section in relation to a
8
document or thing, the Commissioner must:
9
(a) take reasonable steps to discover who has an interest in the
10
document or thing; and
11
(b) if it is practicable to do so, notify each person who the
12
Commissioner believes to have such an interest of the
13
proposed application.
14
(4) The magistrate must allow a person who has an interest in the
15
document or thing to appear and be heard in determining the
16
application.
17
Meanings of magistrate and serious offence
18
(5) A
magistrate
is a magistrate who is remunerated by salary or
19
otherwise, and includes a Judge, or acting Judge, of the Local
20
Court of the Northern Territory.
21
(6) A
serious offence
is:
22
(a) an offence against a law of the Commonwealth punishable by
23
imprisonment for 2 years or more; or
24
(b) an offence against either of the following provisions of the
25
Charter of the United Nations Act 1945
:
26
(i) Part 4 of that Act;
27
(ii) Part 5 of that Act, to the extent that it relates to the
28
Charter of the United Nations (Sanctions--ISIL
29
(Da'esh) and Al-Qaida) Regulations 2008
; or
30
(c) an offence against a law of a State that:
31
(i) has a federal aspect (within the meaning of the
Crimes
32
Act 1914
); and
33
Investigating corruption issues
Part 7
Retention and return of documents and things
Division 5
Section 112
No. , 2022
National Anti-Corruption Commission Bill 2022
97
(ii) is punishable by imprisonment for 2 years or more.
1
Part 7
Investigating corruption issues
Division 6
Privileges and protections
Section 113
98
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 6--Privileges and protections
1
113 Self-incrimination
2
(1) A person is not excused from giving an answer or information, or
3
producing a document or thing, as required by a notice to produce
4
or at a hearing on the ground that doing so would tend to
5
incriminate the person or expose the person to a penalty.
6
(2) However, the answer or information given, or the document or
7
thing produced, is not admissible in evidence against the person in:
8
(a) a criminal proceeding; or
9
(b) a proceeding for the imposition or recovery of a penalty; or
10
(c) a confiscation proceeding.
11
(3) Subsection (2) does not:
12
(a) apply to the production of a document that is, or forms part
13
of, a record of an existing or past business; or
14
(b) affect whether the answer, information, document or thing is
15
admissible in evidence against the person in:
16
(i) a confiscation proceeding, if the answer or information
17
was given, or the document or thing was produced, at a
18
time when the proceeding had not commenced and was
19
not imminent; or
20
(ii) a proceeding for an offence against this Part, other than
21
an offence against subsection 75(5) (person present at a
22
private hearing without authority); or
23
(iii) a proceeding for an offence against section 137.1 or
24
137.2 of the
Criminal Code
(about false or misleading
25
information or documents) that relates to a notice to
26
produce or a hearing; or
27
(iv) a proceeding for an offence against section 144.1 or
28
145.1 of the
Criminal Code
(about forgery) that relates
29
to a notice to produce or a hearing; or
30
(v) a proceeding for an offence against section 149.1 of the
31
Criminal Code
(about obstruction of Commonwealth
32
public officials) that relates to this Act.
33
Investigating corruption issues
Part 7
Privileges and protections
Division 6
Section 114
No. , 2022
National Anti-Corruption Commission Bill 2022
99
Note:
For subparagraph (b)(i), the court may order otherwise (see subsection
1
109(4)).
2
(4) Paragraph (3)(b) does not, by implication, affect the admissibility
3
or relevance of the information, document or thing for any other
4
purpose.
5
114 Public interest grounds
6
(1) A person is not excused from giving an answer or information, or
7
producing a document or thing, as required by a direction to
8
produce, a notice to produce, or at a hearing, on the ground that
9
doing so:
10
(a) would disclose legal advice given to a person; or
11
(b) would disclose a communication that is protected against
12
disclosure by legal professional privilege; or
13
(c) would breach a secrecy provision (other than an exempt
14
secrecy provision); or
15
(d) would be otherwise contrary to the public interest.
16
(2) Subsection (1) does not apply in relation to advice or a
17
communication that concerns:
18
(a) a person's compliance with:
19
(i) a direction to produce; or
20
(ii) a notice to produce; or
21
(b) a person's attendance, or reasonably anticipated attendance,
22
at a hearing.
23
(3) Paragraph (1)(a) does not apply in relation to legal advice given for
24
the purposes of, or in the course of, a person's work as a journalist
25
in a professional capacity.
26
(4) Paragraph (1)(b) does not apply in relation to a communication
27
made for the purposes of, or in the course of, a person's work as a
28
journalist in a professional capacity.
29
(5) The fact that a person is not excused under subsection (1) from
30
answering a question or giving information, or producing a
31
document or thing, does not otherwise affect a claim of legal
32
Part 7
Investigating corruption issues
Division 6
Privileges and protections
Section 115
100
National Anti-Corruption Commission Bill 2022
No. , 2022
professional privilege that anyone may make in relation to that
1
answer, information, document or thing.
2
(6) A person does not commit an offence, and is not liable to any
3
penalty, under the provisions of any other enactment because the
4
person:
5
(a) gives information, or produces a document or thing, as
6
required by:
7
(i) a direction to produce; or
8
(ii) a notice to produce; or
9
(b) gives an answer or information, or produces a document or
10
thing, as required at a hearing.
11
115 Material sought from legal practitioners
12
(1) This section applies if a legal practitioner refuses to give an answer
13
or information, or produce a document or thing, on the grounds
14
that doing so would disclose advice or a communication to which
15
section 114 (public interest grounds) does not apply.
16
Note:
See the exceptions set out in subsections 114(2), (3) and (4).
17
(2) The legal practitioner must, if required by the Commissioner, give
18
the Commissioner the name and address of the person (the
client
)
19
who is able to waive the legal professional privilege concerned.
20
(3) If the client agrees to disclosure of the advice or communication by
21
the legal practitioner:
22
(a) the fact that the legal practitioner discloses the advice or
23
communication does not otherwise affect a claim of legal
24
professional privilege that anyone may make in relation to
25
the advice or communication; and
26
(b) the advice or communication does not cease to be the subject
27
of legal professional privilege merely because it is disclosed.
28
116 Other protections
29
(1)
A person who gives an answer or information, or produces a
30
document or thing, as required by a direction to produce, a notice
31
Investigating corruption issues
Part 7
Privileges and protections
Division 6
Section 116
No. , 2022
National Anti-Corruption Commission Bill 2022
101
to produce, or at a hearing, has the same protection as a witness in
1
proceedings in the High Court.
2
(2) The Commissioner may make such arrangements as are necessary
3
to do the following:
4
(a) to prevent prejudice to the safety of a person because the
5
person or another person:
6
(i) has, or is to, respond to a notice to produce; or
7
(ii) has been, or is to be, a witness at a hearing;
8
(b) to protect a person from intimidation or harassment because
9
the person or another person:
10
(i) has, or is to, respond to a notice to produce; or
11
(ii) has been, or is to be, a witness at a hearing.
12
(3) The arrangements include arrangements with:
13
(a) the Minister; or
14
(b) the AFP Commissioner; or
15
(c) the head (however described) of the police force of a State or
16
Territory.
17
(4) This section does not limit the
Witness Protection Act 1994
.
18
Part 7
Investigating corruption issues
Division 7
Search powers
Section 117
102
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 7--Search powers
1
Subdivision A--Search powers
2
117 Entering certain places without a search warrant
3
General rule--places occupied by Commonwealth agencies
4
(1) For the purposes of a corruption investigation, the Commissioner
5
(or another authorised officer) may:
6
(a) enter any place occupied by a Commonwealth agency, at any
7
reasonable time of the day; and
8
(b) carry on the investigation at that place; and
9
(c) inspect any documents relevant to the investigation that are
10
kept at that place; and
11
(d) make copies of, or take extracts from, any documents so
12
inspected; and
13
(e) for the purpose of making a copy of, or taking an extract
14
from, a document, remove the document from that place; and
15
(f) seize a document or thing found at that place if the
16
Commissioner (or other authorised officer) believes on
17
reasonable grounds that:
18
(i) the document or thing is relevant to an indictable
19
offence; and
20
(ii) seizure of the document or thing is necessary to prevent
21
its concealment, loss or destruction or its use in
22
committing an indictable offence.
23
Exception--Court premises and places occupied by
24
parliamentarians or their staff, the ABC and SBS
25
(2) Subsection (1) does not apply in relation to:
26
(a) premises occupied by the High Court or a court created by
27
the Parliament; or
28
(b) any place in the Parliamentary precincts (within the meaning
29
of the
Parliamentary Precincts Act 1988
); or
30
Investigating corruption issues
Part 7
Search powers
Division 7
Section 117
No. , 2022
National Anti-Corruption Commission Bill 2022
103
(c) premises made available to a parliamentarian under the
1
Parliamentary Business Resources Act 2017
; or
2
(d) any premises occupied by the Australian Broadcasting
3
Corporation or the Special Broadcasting Service Corporation.
4
Exception--prohibited and restricted Defence areas
5
(3) Subsection (1) does not apply in relation to a place mentioned in
6
subsection (4), unless:
7
(a) the Minister administering the
Defence (Special
8
Undertakings) Act 1952
(or another Minister acting for and
9
on behalf of that Minister) has approved the person entering
10
the place or area; and
11
(b) the person complies with any conditions imposed by the
12
Minister giving the approval in relation to:
13
(i) the person entering that place or area; and
14
(ii) the manner in which the investigation is to be carried on
15
at that place or area.
16
(4) The places are as follows:
17
(a) a place that is a prohibited area for the purposes of the
18
Defence (Special Undertakings) Act 1952
under section 7 of
19
that Act;
20
(b) an area of land or water, or an area of land and water, that is
21
declared under section 14 of that Act to be a restricted area
22
for the purposes of that Act.
23
Exception--places declared by the Attorney-General
24
(5) If the Attorney-General is satisfied that carrying on an
25
investigation of a corruption issue at a place might prejudice the
26
security or defence of the Commonwealth, the Attorney-General
27
may, by written notice to the Commissioner, declare the place to be
28
a place to which this subsection applies.
29
(6) While the declaration is in force, subsection (1) does not authorise
30
a person to do anything at the place unless:
31
Part 7
Investigating corruption issues
Division 7
Search powers
Section 118
104
National Anti-Corruption Commission Bill 2022
No. , 2022
(a) a Minister specified in the declaration (or another Minister
1
acting for and on behalf of that Minister) has approved the
2
person entering the place; and
3
(b) the person complies with any conditions imposed by the
4
Minister giving the approval in relation to:
5
(i) the person entering that place; and
6
(ii) the manner in which the investigation is to be carried on
7
at that place.
8
(7) A declaration by the Attorney-General under this section is not a
9
legislative instrument.
10
118 Receipts for documents and things seized without warrant
11
(1) If a document or thing is seized, or removed from a place, under
12
section 117 (entering certain places without a search warrant), the
13
Commissioner (or another authorised officer) must provide a
14
receipt for the thing.
15
(2) If 2 or more documents or things are seized or moved, they may be
16
covered by the one receipt.
17
119 Search warrants, and stopping and searching conveyances
18
(1) For the purposes of a corruption investigation, an authorised officer
19
who is not a constable for the purposes of the
Crimes Act 1914
has
20
the same powers and duties under Divisions 2, 3 and 5 of Part IAA
21
of that Act as a constable has under those Divisions.
22
(2) The
Crimes Act 1914
has effect for the purposes of this section
23
with the modifications set out in Subdivision B.
24
120 Use and return of documents and things
25
Using and sharing documents and things
26
(1) Subdivision A of Division 4C of Part IAA of the
Crimes Act
1914
27
applies in relation to the following as if they were things seized
28
under Part IAA of that Act:
29
Investigating corruption issues
Part 7
Search powers
Division 7
Section 121
No. , 2022
National Anti-Corruption Commission Bill 2022
105
(a) a document, thing or copy seized or made under section 117
1
(entering certain places without a search warrant);
2
(b) a document, thing, copy or photograph seized or made under
3
Part IAA of the
Crimes Act
1914
as applied by section 119
4
(search warrants, and stopping and searching conveyances).
5
Return of documents and things
6
(2) Subdivision B of Division 4C of Part IAA of the
Crimes Act 1914
7
applies in relation to a thing seized under section 117 (entering
8
certain places without a search warrant) as if the thing had been
9
seized under Division 2 of Part IAA of the
Crimes Act 1914
.
10
(3) Subdivision B of Division 4C of Part IAA of the
Crimes Act 1914
11
applies in relation to a thing seized under that Act as applied by
12
section 119 (search warrants, and stopping and searching
13
conveyances).
14
Modification of the Crimes Act
15
(4) For the purposes of this section, the
Crimes Act 1914
has effect:
16
(a) as if a reference to the Commissioner (within the meaning of
17
that Act) were a reference to the National Anti-Corruption
18
Commissioner; and
19
(b) as if the following paragraph were inserted after
20
paragraph 3ZQU(5)(a) of that Act:
21
"(aa) a body (whether incorporated or not) that is established by
22
the law of a State or Territory for purposes that include the
23
purpose of investigating corruption in State or Territory
24
government entities; or"
25
Subdivision B--Modification of Crimes Act search powers
26
121 Application of Subdivision
27
This Subdivision applies for the purposes of section 119 (search
28
warrants, and stopping and searching conveyances).
29
Part 7
Investigating corruption issues
Division 7
Search powers
Section 122
106
National Anti-Corruption Commission Bill 2022
No. , 2022
122 Subsection 3C(1)--definition of evidential material
1
The
Crimes Act 1914
has effect as if the definition of
evidential
2
material
in subsection 3C(1) of that Act were substituted with the
3
following definition:
4
"evidential material
means the following, and includes such things
5
in electronic form:
6
(a) a thing relevant to the investigation of a corruption issue
7
which could, in the opinion of the Commissioner, involve
8
corrupt conduct that is serious or systemic;
9
(b) a thing relevant to an indictable offence or a thing relevant to
10
a summary offence."
11
123 Divisions 2, 3 and 5 of Part IAA--references to constable and
12
Commissioner
13
(1) Divisions 2, 3 and 5 of Part IAA of the
Crimes Act 1914
(and any
14
related definitions in that Act) have effect as if:
15
(a) a reference to a constable included a reference to an
16
authorised officer; and
17
(b) a reference to the Commissioner (within the meaning of that
18
Act) were a reference to the National Anti-Corruption
19
Commissioner.
20
(2) Despite paragraph (1)(a), subsection 3ZW(1) of the
Crimes Act
21
1914
has effect as if the reference in that subsection to a constable
22
were a reference to an authorised officer.
23
124 Subsections 3E(1) and (2)--when search warrants can be issued
24
The
Crimes Act 1914
has effect as if subsections 3E(1) and (2) of
25
that Act were substituted with the following subsections:
26
"(1) An issuing officer may issue a warrant to search premises if the
27
officer is satisfied, by information on oath or affirmation, that:
28
(a) there are reasonable grounds for suspecting that there is, or
29
there will be within the next 72 hours, any evidential material
30
at the premises; and
31
Investigating corruption issues
Part 7
Search powers
Division 7
Section 124
No. , 2022
National Anti-Corruption Commission Bill 2022
107
(b) if the search would not be for the purposes of investigating
1
an offence--there are reasonable grounds for believing that,
2
if a person was served with a summons to produce the
3
evidential material, the material might be concealed, lost,
4
mutilated or destroyed.
5
(2) An issuing officer may issue a warrant authorising an ordinary
6
search or a frisk search of a person if the officer is satisfied, by
7
information on oath or affirmation, that:
8
(a) there are reasonable grounds for suspecting that the person
9
has in their possession, or will within the next 72 hours have
10
in their possession, any evidential material; and
11
(b) if the search would not be for the purposes of investigating
12
an offence--there are reasonable grounds for believing that,
13
if the person was served with a summons to produce the
14
evidential material, the material might be concealed, lost,
15
mutilated or destroyed.
16
(2A) Subsection (2B) applies if:
17
(a) the warrant is to search:
18
(i) a person (the
journalist
) who works in a professional
19
capacity as a journalist; or
20
(ii) the employer of the journalist (working in that
21
capacity); or
22
(iii) premises occupied or controlled by the journalist or the
23
employer (in the capacities covered by
24
subparagraphs (i) and (ii)); and
25
(b) the evidential material relates to an alleged offence against a
26
secrecy provision by a person other than the journalist.
27
(2B) In deciding whether to issue the warrant, the issuing officer must
28
have regard to whether the public interest in issuing the warrant
29
outweighs:
30
(a) the public interest in protecting the confidentiality of the
31
identity of the journalist's source; and
32
(b) the public interest in facilitating the exchange of information
33
between journalists and members of the public so as to
34
facilitate reporting of matters in the public interest."
35
Part 7
Investigating corruption issues
Division 7
Search powers
Section 125
108
National Anti-Corruption Commission Bill 2022
No. , 2022
125 Subsection 3E(4)--previous warrants
1
The
Crimes Act 1914
has effect as if subsection 3E(4) of that Act
2
were substituted with the following subsection:
3
"(4) If the person applying for the warrant is one of the following and
4
has, at any time previously, applied for a warrant relating to a
5
corruption issue and the same person or premises, the person must
6
state particulars of those applications and their outcomes in the
7
information:
8
(a) an authorised officer;
9
(b) a member of the Australian Federal Police;
10
(c) a special member of the Australian Federal Police."
11
126 Provisions of sections 3E, 3F, 3L and 3LAA
12
Offence to include corruption issue
13
(1) The
Crimes Act 1914
has effect as if a reference in the following
14
provisions of that Act to an
offence
included a reference to a
15
corruption issue
:
16
(a) paragraph 3E(5)(a);
17
(b) subparagraphs 3E(6)(a)(i) and (7)(a)(i);
18
(c) subparagraphs 3F(1)(d)(i) and (2)(c)(i).
19
Subparagraphs 3E(6)(a)(ii) and (7)(a)(ii)--relevant things
20
(2) The
Crimes Act 1914
has effect as if subparagraphs 3E(6)(a)(ii)
21
and (7)(a)(ii) of that Act were substituted with the following
22
subparagraph:
23
"(ii) a thing relevant to an offence that is an indictable
24
offence, or to a corruption issue that the Commissioner
25
is investigating; or"
26
Subparagraph 3F(1)(d)(ii)--evidential material
27
(3) The
Crimes Act 1914
has effect as if subparagraph 3F(1)(d)(ii) of
28
that Act were substituted with the following subparagraph:
29
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Section 127
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National Anti-Corruption Commission Bill 2022
109
"(ii) evidential material in relation to an offence that is an
1
indictable offence, or to a corruption issue that the
2
Commissioner is investigating; or"
3
Subparagraph 3F(2)(c)(ii)--relevant things
4
(4) The
Crimes Act 1914
has effect as if subparagraph 3F(2)(c)(ii) of
5
that Act were substituted with the following subparagraph:
6
"(ii) a thing relevant to an offence that is an indictable
7
offence, or to a corruption issue that the Commissioner
8
is investigating; or"
9
Subsections 3L(1B) and 3LAA(3)
10
(5) The
Crimes Act 1914
has effect as if the references in
11
subsections 3L(1B) and 3LAA(3) of that Act to the Australian
12
Federal Police were references to the National Anti-Corruption
13
Commission.
14
127 Subparagraph 3LA(2)(b)(i)--accessing computer systems
15
The
Crimes Act 1914
has effect as if subparagraph 3LA(2)(b)(i) of
16
that Act were substituted with the following subparagraphs:
17
"(i) reasonably suspected of having committed the offence
18
stated in the relevant warrant; or
19
(ia) reasonably suspected of having engaged in the corrupt
20
conduct which is the subject of the corruption issue
21
stated in the relevant warrant; or"
22
128 Provisions of section 3T
23
Relevant things--indictable offences and corruption issues
24
(1) The
Crimes Act 1914
has effect as if paragraph 3T(1)(a) of that Act
25
were substituted with the following paragraph:
26
"(a) a thing relevant to an indictable offence, or to a corruption
27
issue that the Commissioner is investigating, is in or on a
28
conveyance; and"
29
Part 7
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Division 7
Search powers
Section 128
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Relevant things--other offences and corruption issues
1
(2) The
Crimes Act 1914
has effect as if subsection 3T(3) of that Act
2
were substituted with the following subsection:
3
"(3) If, in the course of searching for the thing, the constable or
4
authorised officer finds another thing relevant to an offence, or to a
5
corruption issue that the Commissioner is investigating, the
6
constable or authorised officer may seize that thing if the constable
7
or authorised officer suspects, on reasonable grounds, that:
8
(a) it is necessary to seize it in order to prevent its concealment,
9
loss or destruction; and
10
(b) it is necessary to seize it without the authority of a search
11
warrant because the circumstances are serious and urgent."
12
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111
Division 8--Interaction with criminal procedure and
1
confiscation proceedings
2
Subdivision A--Key concepts
3
129 Meaning of pre-charge
4
(1) An event covered by subsection (2) is a
pre-charge
event in
5
relation to a person if it happens at a time when:
6
(a) the person has not been charged with a relevant offence and
7
such a charge is not imminent; or
8
(b) all such charges have been resolved.
9
(2) The events are as follows:
10
(a) a notice to produce is issued to the person;
11
(b) a summons is issued for the person to attend a hearing as a
12
witness;
13
(c) a hearing commences at which the person is to appear as a
14
witness;
15
(d) material at a hearing that relates to the person becomes
16
investigation material;
17
(e) such investigation material or derivative material is used or
18
disclosed.
19
130 Meaning of post-charge
20
(1) An event covered by subsection (2) is a
post-charge
event in
21
relation to a person if it happens at a time when:
22
(a) the person has been charged with a relevant offence and that
23
charge is still to be resolved; or
24
(b) such a charge is imminent.
25
(2) The events are as follows:
26
(a) a notice to produce is issued to the person;
27
(b) a summons is issued for the person to attend a hearing as a
28
witness;
29
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Section 131
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(c) a hearing commences at which the person is to appear as a
1
witness;
2
(d) material at a hearing that relates to the person becomes
3
investigation material;
4
(e) such investigation material or derivative material is used or
5
disclosed.
6
131 Meaning of relevant offence
7
An offence is a
relevant offence
if:
8
(a) in the case of investigation material, derivative material or a
9
witness--the subject matter of the notice to produce or
10
hearing, as relevant, relates to the subject matter of the
11
offence; or
12
(b) in the case of a summons--the subject matter of the
13
summons relates to the subject matter of the offence.
14
132 Meaning of imminent and protected suspect
15
When a charge for an offence is imminent
16
(1) A charge for an offence is
imminent
for a person if:
17
(a) the person is a protected suspect; or
18
(b) the person is under arrest for the offence, but has not been
19
charged with the offence; or
20
(c) a person with authority to commence a process for
21
prosecuting the person for the offence has decided to
22
commence, but has not yet commenced, the process.
23
Note:
Paragraph (1)(c) would apply, for example, if a person with authority
24
to lay a charge has decided to lay, but not yet laid, the charge.
25
When a confiscation proceeding is imminent
26
(2) A confiscation proceeding against a person is
imminent
if a person
27
with authority to commence the proceeding has decided to
28
commence, but has not yet commenced, the proceeding.
29
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Meaning of protected suspect
1
(3) Each of the following is a
protected suspect
:
2
(a) a protected suspect (within the meaning of Part IC of the
3
Crimes Act 1914
);
4
(b) a person who would be covered by paragraph (a) if the
5
definition of Commonwealth offence in section 23B of that
6
Act included any offence against a law of a State or
7
Territory.
8
133 Meaning of derivative material
9
Any evidence, information, document or thing obtained directly or
10
indirectly from investigation material is
derivative material
.
11
134 Meaning of pre-confiscation application
12
(1) An event covered by subsection (2) is a
pre-confiscation
13
application
event in relation to a person if it happens at a time
14
when:
15
(a) a relevant confiscation proceeding has not commenced
16
against the person and such a proceeding is not imminent; or
17
(b) all such proceedings have been resolved.
18
(2) The events are as follows:
19
(a) a notice to produce is issued to the person;
20
(b) a summons is issued for the person to attend a hearing as a
21
witness;
22
(c) a hearing commences at which the person is to appear as a
23
witness;
24
(d) material at a hearing that relates to the person becomes
25
investigation material;
26
(e) such investigation material or derivative material is used or
27
disclosed.
28
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Division 8
Interaction with criminal procedure and confiscation proceedings
Section 135
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135 Meaning of post-confiscation application
1
(1) An event covered by subsection (2) is a
post-confiscation
2
application
event in relation to a person if it happens at a time
3
when:
4
(a) a relevant confiscation proceeding has commenced against
5
the person and that proceeding is still to be resolved; or
6
(b) such a proceeding is imminent.
7
(2) The events are as follows:
8
(a) a notice to produce is issued to the person;
9
(b) a summons is issued for the person to attend a hearing as a
10
witness;
11
(c) a hearing commences at which the person is to appear as a
12
witness;
13
(d) material at a hearing that relates to the person becomes
14
investigation material;
15
(e) such investigation material or derivative material is used or
16
disclosed.
17
136 Meaning of confiscation proceeding
18
(1) A
confiscation proceeding
means a proceeding under:
19
(a) the
Proceeds of Crime Act 2002
(
the
Act
); or
20
(b) a corresponding law within the meaning of the Act.
21
(2) A prosecution for an offence under the Act or a corresponding law
22
is not a
confiscation proceeding
.
23
(3) A proceeding is taken to be a
confiscation proceeding
against a
24
person if:
25
(a) for a proceeding under the Act--the person is a suspect
26
(within the meaning of the Act) for the proceeding; or
27
(b) for a proceeding under a corresponding law--the person is in
28
a corresponding category for that law.
29
137 Meaning of relevant confiscation proceeding
30
A confiscation proceeding is a
relevant confiscation proceeding
if:
31
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Section 138
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(a) in the case of investigation material, derivative material or a
1
witness--the subject matter of the notice to produce or
2
hearing, as relevant, relates to the subject matter of the
3
proceeding; or
4
(b) in the case of a summons--the subject matter of the
5
summons relates to the subject matter of the proceeding.
6
138 Meaning of proceeds of crime authority
7
Each of the following is a
proceeds of crime authority
:
8
(a) a proceeds of crime authority within the meaning of the
9
Proceeds of Crime Act 2002
;
10
(b) an authority of a State or Territory responsible for conducting
11
a confiscation proceeding under a corresponding law (within
12
the meaning of the
Proceeds of Crime Act 2002
).
13
139 When a charge or confiscation proceeding is resolved
14
Charge for an offence
15
(1) A charge for an offence is
resolved
in relation to a person at the
16
latest of the following times:
17
(a) when:
18
(i) the charge is withdrawn; or
19
(ii) the charge is dismissed; or
20
(iii) the person is not committed on the charge following a
21
committal hearing; or
22
(iv) the person is acquitted of the offence; or
23
(v) the person is sentenced for the offence; or
24
(vi) the person is dealt with by being the subject of an order
25
made as a consequence of a finding of guilt; or
26
(vii) the charge is otherwise finally dealt with;
27
(b) if an appeal relating to a conviction for the offence the
28
subject of the charge is not lodged within the period for
29
lodging such an appeal--when that period ends;
30
(c) if an appeal relating to a conviction for the offence the
31
subject of the charge is lodged--when the appeal lapses or is
32
finally determined.
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Interaction with criminal procedure and confiscation proceedings
Section 140
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(2) Despite paragraph (1)(b), if an appeal relating to a conviction for
1
an offence the subject of the charge is lodged after that period
2
ends, the charge ceases to be
resolved
until that appeal lapses or is
3
finally determined.
4
Confiscation proceedings
5
(3) A confiscation proceeding is
resolved
in relation to a person at the
6
latest of the following times:
7
(a) when the proceeding is discontinued;
8
(b) if an appeal relating to the proceeding is not lodged within
9
the period for lodging such an appeal--when that period
10
ends;
11
(c) if an appeal relating to the proceeding is lodged--when the
12
appeal lapses or is finally determined.
13
(4) Despite paragraph (3)(b), if an appeal relating to the proceeding is
14
lodged after that period ends, the proceeding ceases to be
resolved
15
until that appeal lapses or is finally determined.
16
Subdivision B--Commissioner's powers--limited operation
17
provisions
18
140 Limited operation--Commissioner's power to issue notices to
19
produce
20
Limitation to pre-charge and pre-confiscation application
21
operation
22
(1) In addition to its effect apart from this subsection, this Act also has
23
the effect it would have if the Commissioner's power to issue a
24
notice to produce were, by express provision, confined to a power
25
to issue either or both of the following:
26
(a) a pre-charge notice to produce;
27
(b) a pre-confiscation application notice to produce.
28
Limitation of scope of post-charge notice to produce
29
(2) In addition to its effect apart from this subsection, this Act also has
30
the effect it would have if the information, documents or things
31
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Division 8
Section 141
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required to be given under a post-charge notice to produce
1
excluded, by express provision, information, documents or things
2
in relation to the subject matter of the charge or imminent charge.
3
Limitation of scope of post-confiscation application notice to
4
produce
5
(3) In addition to its effect apart from this subsection, this Act also has
6
the effect it would have if the information, documents or things
7
required to be given under a post-confiscation application notice to
8
produce excluded, by express provision, information, documents or
9
things in relation to the subject matter of the confiscation
10
proceeding or imminent confiscation proceeding.
11
141 Limited operation--Commissioner's power to hold hearings
12
In addition to its effect apart from this subsection, this Act also has
13
the effect it would have if the Commissioner's power to hold a
14
hearing were, by express provision, confined to a power to hold
15
either or both of the following:
16
(a) a pre-charge hearing;
17
(b) a pre-confiscation application hearing.
18
142 Limited operation--Commissioner's power to summon person
19
Limitation to pre-charge and pre-confiscation application
20
operation
21
(1) In addition to its effect apart from this subsection, this Act also has
22
the effect it would have if the Commissioner's power to issue a
23
summons to a person to attend a hearing were, by express
24
provision, confined to a power to issue either or both of the
25
following:
26
(a) a pre-charge summons;
27
(b) a pre-confiscation application summons.
28
Limitation of scope of post-charge summons
29
(2) In addition to its effect apart from this subsection, this Act also has
30
the effect it would have if the matters in relation to which a person
31
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Division 8
Interaction with criminal procedure and confiscation proceedings
Section 143
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who has been issued a post-charge summons is required to give
1
evidence or information, or produce a document or thing, at a
2
hearing excluded, by express provision, matters in relation to the
3
subject matter of the charge or imminent charge.
4
Limitation of scope of post-confiscation application summons
5
(3) In addition to its effect apart from this subsection, this Act also has
6
the effect it would have if the matters in relation to which a person
7
who has been issued a post-confiscation application summons is
8
required to give evidence or information, or produce a document or
9
thing, at a hearing excluded, by express provision, matters in
10
relation to the subject matter of the confiscation proceeding or
11
imminent confiscation proceeding.
12
Limitation to post-charge operation
13
(4) In addition to its effect apart from this subsection, this Act also has
14
the effect it would have if, by express provision:
15
(a) subsection 63(2) excluded any reference to a
16
post-confiscation summons or a confiscation proceeding; and
17
(b) paragraph 63(6)(b) were omitted.
18
Limitation to post-confiscation operation
19
(5) In addition to its effect apart from this subsection, this Act also has
20
the effect it would have if, by express provision:
21
(a) subsection 63(2) excluded any reference to a post-charge
22
summons or a charge; and
23
(b) paragraph 63(6)(a) were omitted.
24
143 Limited operation--obtaining derivative material
25
Limitation relating to offences
26
(1) In addition to its effect apart from this subsection, this Act also has
27
the effect it would have if the use or disclosure by an entity of
28
investigation material under subsection 104(1) in relation to a
29
witness for the purpose of obtaining derivative material were, by
30
express provision, confined to either or both of the following:
31
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Section 143
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119
(a) a pre-charge use or disclosure;
1
(b) a post-charge use or disclosure of pre-charge investigation
2
material.
3
Limitation relating to confiscation proceedings
4
(2) In addition to its effect apart from this subsection, this Act also has
5
the effect it would have if the use or disclosure by an entity of
6
investigation material under subsection 104(1) in relation to a
7
witness for the purpose of obtaining derivative material were, by
8
express provision, confined to either or both of the following:
9
(a) a pre-confiscation application use or disclosure;
10
(b) a post-confiscation application use or disclosure of
11
pre-confiscation application investigation material.
12
Limitation of entities
13
(3) In addition to its effect apart from this subsection, this Act also has
14
the effect it would have if the entities that may lawfully use or
15
disclose investigation material in relation to a witness for the
16
purpose of obtaining derivative material were, by express
17
provision, limited to one or more of the following entities:
18
(a) a staff member of the NACC;
19
(b) a person or body investigating whether the witness
20
committed an offence against a law of the Commonwealth or
21
of a State or Territory;
22
(c) the Inspector;
23
(d) a person assisting the Inspector;
24
(e) a prosecuting authority;
25
(f) a proceeds of crime authority;
26
(g) any other person or body, other than a prosecutor of the
27
witness, lawfully in possession of the investigation material;
28
(h) any other person or body, other than a proceeds of crime
29
authority, lawfully in possession of the investigation
30
material.
31
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Investigating corruption issues
Division 8
Interaction with criminal procedure and confiscation proceedings
Section 144
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144 Limited operation--disclosing investigation material to
1
prosecutors of the witness
2
In addition to its effect apart from this subsection, this Act also has
3
the effect it would have if the disclosure of investigation material
4
under subsection 105(1) in relation to a witness to a prosecutor of
5
the witness were, by express provision, confined to either or both
6
of the following:
7
(a) a pre-charge disclosure;
8
(b) a post-charge disclosure of investigation material that is:
9
(i) pre-charge investigation material; and
10
(ii) made under an order made under subsection 106(1).
11
145 Limited operation--disclosing derivative material to
12
prosecutors of the witness
13
In addition to its effect apart from this subsection, this Act also has
14
the effect it would have if the disclosure of derivative material
15
under subsection 105(3) in relation to a witness to a prosecutor of
16
the witness were, by express provision, confined to any one or
17
more of the following:
18
(a) a pre-charge disclosure;
19
(b) a post-charge disclosure of derivative material that is
20
obtained from pre-charge investigation material (whether
21
from a pre-charge use of that investigation material or
22
otherwise);
23
(c) a post-charge disclosure of derivative material that is:
24
(i) obtained from post-charge investigation material; and
25
(ii) made under an order made under subsection 106(1).
26
146 Limited operation--material that may always be disclosed to
27
prosecutors of the witness
28
In addition to its effect apart from this subsection, this Act also has
29
the effect it would have if the disclosure of investigation material
30
or derivative material under subsection 107(1) or (2) in relation to
31
a witness to a prosecutor of the witness were, by express provision,
32
confined to any one or more of the following:
33
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Part 7
Interaction with criminal procedure and confiscation proceedings
Division 8
Section 147
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121
(a) a pre-charge disclosure;
1
(b) a post-charge disclosure of pre-charge investigation material;
2
(c) a post-charge disclosure of derivative material that is
3
obtained from pre-charge investigation material (whether
4
from a pre-charge use of the investigation material or
5
otherwise);
6
(d) a post-charge disclosure of derivative material that is
7
obtained from post-charge investigation material.
8
147 Limited operation--disclosing material to proceeds of crime
9
authorities
10
In addition to its effect apart from this section, this Act also has the
11
effect it would have if the disclosure of investigation material or
12
derivative material under subsection 109(1) in relation to a person
13
were, by express provision, confined to any one or more of the
14
following:
15
(a) a pre-confiscation application disclosure;
16
(b) a post-confiscation application disclosure of pre-confiscation
17
application investigation material;
18
(c) a post-confiscation application disclosure of derivative
19
material that is obtained from pre-confiscation application
20
investigation material (whether from a pre-confiscation
21
application use of the investigation material or otherwise);
22
(d) a post-charge disclosure of derivative material that is
23
obtained from post-confiscation application investigation
24
material.
25
Subdivision C--Witness' fair trial--limited operation
26
148 Limited operation--witness' fair trial
27
In addition to its effect apart from this section, this Act also has the
28
effect it would have if subsection 106(4), or paragraph 106(4)(d),
29
had not been enacted.
30
Part 8
Reporting on corruption investigations
Section 149
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Part 8--Reporting on corruption investigations
1
2
149 Report on corruption investigation
3
Commissioner must prepare an investigation report
4
(1) After completing a corruption investigation, the Commissioner
5
must prepare a report (an
investigation report
) on the investigation.
6
Contents of an investigation report
7
(2) Subject to section 151, the investigation report must set out:
8
(a) the Commissioner's findings or opinions on the corruption
9
issue; and
10
(b) a summary of the evidence and other material on which those
11
findings or opinions are based; and
12
(c) any recommendations that the Commissioner thinks fit to
13
make; and
14
(d) if recommendations are made--the reasons for those
15
recommendations.
16
Note:
See also section 153, which requires the Commissioner to give certain
17
persons an opportunity to respond before including certain
18
information in the report. That section also requires additional
19
information to be included in an investigation report in certain
20
circumstances.
21
(3) For the purposes of paragraph (2)(a), if the Commissioner forms
22
the opinion that a person whose conduct has been investigated has
23
engaged in corrupt conduct of a serious or systemic nature, the
24
Commissioner must include a statement to that effect in the
25
investigation report.
26
(4) To avoid doubt, for the purposes of paragraph (2)(a), if the
27
Commissioner forms the opinion that a person whose conduct has
28
been investigated has not engaged in corrupt conduct the
29
Commissioner must set out that opinion in the report.
30
(5) If:
31
Reporting on corruption investigations
Part 8
Section 150
No. , 2022
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123
(a) a person gives evidence at a hearing in relation to a
1
corruption investigation; and
2
(b) the person is not the subject of any findings or opinions in
3
relation to the corruption investigation;
4
the Commissioner may include a statement to that effect in the
5
investigation report if the Commissioner is satisfied that it is
6
appropriate and practicable to do so to avoid damage to the
7
person's reputation.
8
Recommendations that may be made
9
(6) Without limiting paragraph (2)(c), the Commissioner may make
10
one or more of the following recommendations:
11
(a) taking action in relation to a person, in accordance with
12
relevant procedures, with a view to improving their
13
performance;
14
(b) terminating the employment of a person in accordance with
15
relevant procedures;
16
(c) taking action to rectify or mitigate the effects of the conduct
17
of a person;
18
(d) adopting measures to remedy deficiencies in the policy,
19
procedures or practices that facilitated:
20
(i) the employment or engagement of an unsuitable person;
21
or
22
(ii) a person engaging in corrupt conduct; or
23
(iii) the failure to detect corrupt conduct engaged in by a
24
person.
25
Section does not limit what may be included in an investigation
26
report
27
(7) This section does not limit what may be included in an
28
investigation report.
29
150 Effect of findings or opinions about corrupt conduct
30
(1) This section applies if an investigation report includes a finding or
31
opinion that a person has engaged, is engaging or will engage in
32
Part 8
Reporting on corruption investigations
Section 151
124
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No. , 2022
corrupt conduct or conduct that could constitute or involve corrupt
1
conduct.
2
(2) The finding or opinion does not constitute a finding or opinion that
3
the person is guilty of or has committed, is committing or will
4
commit an offence.
5
151 Excluding certain information from investigation report
6
(1) The Commissioner must exclude the following from an
7
investigation report:
8
(a) section 235 certified information;
9
(b) information that the Commissioner is satisfied is sensitive
10
information.
11
Note:
This information must be included in a protected information report
12
(see section 152).
13
(2) Before including information in the report, the Commissioner must
14
consult with the head of each Commonwealth agency or State or
15
Territory government entity to which the information relates about
16
whether the information is sensitive information.
17
152 Protected information report
18
If the Commissioner excludes information from an investigation
19
report under section 151, the Commissioner must prepare another
20
report (a
protected information report
) that sets out:
21
(a) the information; and
22
(b) the reasons for excluding the information from the
23
investigation report.
24
Note:
If a protected information report is given to a person, the person must
25
not disclose the report, or information contained in the report, to the
26
public or a section of the public (see section 234).
27
153 Opportunity to respond must be given before including certain
28
information in investigation report
29
(1) Before including in an investigation report an opinion, finding or
30
recommendation that is critical (either expressly or impliedly) of a
31
Commonwealth agency, a State or Territory government entity or
32
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any other person, the Commissioner must give the head of the
1
agency, the head of the entity or the other person concerned:
2
(a) a statement setting out the opinion, finding or
3
recommendation; and
4
(b) a reasonable opportunity to respond to the opinion, finding or
5
recommendation.
6
(2) The response may be given by:
7
(a) the head of the Commonwealth agency or of the State or
8
Territory government entity concerned, or a person
9
authorised by the head; or
10
(b) in relation to any other person concerned--the other person
11
concerned, or, with approval, a person representing the other
12
person.
13
(3) If:
14
(a) the opinion or finding is that a person has engaged in corrupt
15
conduct; and
16
(b) the person provides a response to the finding or opinion;
17
the Commissioner must include in the investigation report a
18
summary of the substance of the response if the person requests the
19
Commissioner to do so.
20
(4) Subsection (3) is subject to section 151.
21
(5) However, the Commissioner must not include in the investigation
22
report any information in a response provided under this section
23
that would identify any person who, in the opinion of the
24
Commissioner, has not engaged in corrupt conduct unless the
25
Commissioner:
26
(a) is satisfied that it is necessary to do so in the public interest;
27
and
28
(b) is satisfied that doing so will not cause unreasonable damage
29
to the reputation, safety or wellbeing of the person; and
30
(c) includes in the report a statement that, in the opinion of the
31
Commissioner, the person has not engaged in corrupt
32
conduct.
33
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154 Commissioner to give copies of reports to certain persons
1
(1) The Commissioner must give the person referred to in
2
subsection (2):
3
(a) the investigation report; and
4
(b) if a protected information report is prepared in relation to the
5
investigation--the protected information report.
6
(2) For the purposes of subsection (1), the person is:
7
(a) if the investigation report relates to an investigation that
8
concerned the conduct of the Minister--the Prime Minister;
9
or
10
(b) otherwise--the Minister.
11
(3) Subject to subsection (5), the Commissioner:
12
(a) must give a copy of an investigation report; and
13
(b) may give a copy of a protected information report;
14
to the following persons:
15
(c) for a corruption investigation concerning the conduct of a
16
current Minister--the Prime Minister;
17
(d) for a corruption investigation concerning the conduct of a
18
staff member of a Commonwealth agency--the head of the
19
agency and the person mentioned in subsection (4);
20
(e) for a corruption investigation concerning the conduct of the
21
head of a Commonwealth agency:
22
(i) the person mentioned in subsection (4); and
23
(ii) if the head of the Commonwealth agency is an Agency
24
Head (within the meaning of the
Public Service Act
25
1999
)--the Australian Public Service Commissioner;
26
(f) for a corruption investigation concerning the conduct of a
27
senator--the President of the Senate;
28
(g) for a corruption investigation concerning the conduct of a
29
member of the House of Representatives--the Speaker of the
30
House of Representatives.
31
Note:
A parliamentary office is a type of Commonwealth agency and the
32
parliamentarian is the head of the agency (see subsection 11(1)).
33
(4) For the purposes of paragraphs (3)(d) and (e), the person is:
34
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(a) if the Commonwealth agency is a Department of the
1
Parliament established under the
Parliamentary Service Act
2
1999
:
3
(i) for the Department of the Senate--the President of the
4
Senate; or
5
(ii) for the Department of the House of Representatives--
6
the Speaker of the House of Representatives; or
7
(iii) otherwise--both the President of the Senate and the
8
Speaker of the House of Representatives; or
9
(b) if the Commonwealth agency is established or continued in
10
existence by an Act and paragraph (a) does not apply--the
11
Minister administering that Act; or
12
(c) if the Commonwealth agency is a Commonwealth entity and
13
neither paragraph (a) nor paragraph (b) applies--the Minister
14
having general responsibility for the activities of the entity.
15
(5) The Commissioner must exclude the following from a protected
16
information report given under paragraph (3)(b):
17
(a) section 235 certified information, if the disclosure of the
18
information would contravene the certificate issued under
19
section 235;
20
(b) information that the Commissioner is satisfied:
21
(i) is sensitive information; and
22
(ii) is desirable in the circumstances to exclude from the
23
report.
24
(6) In deciding whether to exclude information from a protected
25
information report under paragraph (5)(b), the Commissioner must
26
seek to achieve an appropriate balance between:
27
(a) the interest of a person mentioned in paragraphs (3)(c) to (g)
28
or subsection (4), to whom the report is to be given, in having
29
the information included in the report; and
30
(b) the prejudicial consequences that might result from including
31
the information in the report.
32
155 Tabling of investigation report in Parliament
33
If:
34
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No. , 2022
(a) the Commissioner gives the Minister or the Prime Minister
1
an investigation report under subsection 154(1); and
2
(b) one or more public hearings were held in the course of the
3
investigation to which the investigation report relates;
4
the Minister or Prime Minister (as the case may be) must table the
5
report in each House of the Parliament within 15 sitting days of
6
that House after its receipt.
7
156 Publishing investigation report in whole or part
8
(1) The Commissioner may publish the whole or a part of an
9
investigation report if:
10
(a) the Commissioner has given the Minister or the Prime
11
Minister the investigation report under subsection 154(1);
12
and
13
(b) the Commissioner is satisfied that it is in the public interest
14
to publish the whole or the part of the report (as the case may
15
be).
16
(2) This section is subject to section 157.
17
157 Opportunity to respond must be given before publishing an
18
investigation report containing critical opinions etc.
19
(1) This section applies to an investigation report that:
20
(a) has not been tabled in Parliament; and
21
(b) is published, in whole or in part, under section 156 more than
22
3 months after the report is given to the Minister or the Prime
23
Minister under subsection 154(1).
24
(2) The investigation report must not include an opinion, finding or
25
recommendation that is critical (either expressly or impliedly) of a
26
Commonwealth agency, a State or Territory government entity or
27
any other person, unless the Commissioner has given the head of
28
the agency, the head of the entity or the other person concerned:
29
(a) a statement setting out the opinion, finding or
30
recommendation; and
31
(b) a reasonable opportunity to respond to:
32
(i) the opinion, finding or recommendation; and
33
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129
(ii) the proposed publication of the opinion, finding or
1
recommendation.
2
(3) The response may be given by:
3
(a) the head of the Commonwealth agency or of the State or
4
Territory government entity concerned, or a person
5
authorised by the head; or
6
(b) in relation to any other person concerned--the other person
7
concerned, or, with approval, a person representing the other
8
person.
9
158 Advising person who referred corruption issue of outcome of the
10
investigation
11
(1) The Commissioner may advise a person (or a representative
12
nominated by the person) of the outcome of an investigation of a
13
corruption issue raised by the person in a referral under Part 5.
14
(2) One way of advising the person (or the representative) is to give a
15
copy of all or part of the investigation report prepared in relation to
16
the investigation.
17
(3) In advising the person of the outcome of the investigation, the
18
Commissioner:
19
(a) must not disclose section 235 certified information to the
20
person if the disclosure of the information to the person
21
would contravene the certificate issued under section 235;
22
and
23
(b) must exclude information from the advice if the
24
Commissioner is satisfied that:
25
(i) the information is sensitive information; and
26
(ii) it is desirable in the circumstances to exclude the
27
information from the advice.
28
(4) Before giving the person information about the outcome of the
29
investigation, the Commissioner must consult with the head of
30
each Commonwealth agency or State or Territory government
31
entity to which the information relates about whether the
32
information is sensitive information.
33
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Reporting on corruption investigations
Section 159
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No. , 2022
(5) In deciding whether to exclude information from the advice under
1
paragraph (3)(b), the Commissioner must seek to achieve an
2
appropriate balance between:
3
(a) the person's interest in having the information included in the
4
advice; and
5
(b) the prejudicial consequences that might result from including
6
the information in the advice.
7
159 Advising person whose conduct is investigated of outcome of the
8
investigation
9
(1) The Commissioner must advise a person of the outcome of a
10
corruption investigation if:
11
(a) the Commissioner investigates a corruption issue concerning
12
the conduct of the person; and
13
(b) the Commissioner makes a finding that the person has
14
engaged in corrupt conduct.
15
(2) The Commissioner may advise a person of the outcome of a
16
corruption investigation if:
17
(a) the Commissioner investigates a corruption issue concerning
18
the conduct of the person; and
19
(b) the Commissioner forms an opinion or makes a finding about
20
the corruption issue (other than a finding that the person has
21
engaged in corrupt conduct).
22
(3) Without limiting subsection (1) or (2), the Commissioner may
23
advise the person of the outcome of the investigation by giving the
24
person a copy of the whole or a part of the investigation report
25
prepared in relation to the investigation.
26
(4) In advising the person under subsection (1) or (2), the
27
Commissioner:
28
(a) must not disclose section 235 certified information to the
29
person if the disclosure of the information to the person
30
would contravene the certificate issued under section 235;
31
and
32
(b) must exclude information from the advice if the
33
Commissioner is satisfied that:
34
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Part 8
Section 160
No. , 2022
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131
(i) the information is sensitive information; and
1
(ii) it is desirable in the circumstances to exclude the
2
information from the advice.
3
(5) Before giving the person information under subsection (1) or (2),
4
the Commissioner must consult with the head of each
5
Commonwealth agency or State or Territory government entity to
6
which the information relates about whether the information is
7
sensitive information.
8
(6) In deciding whether to exclude information from the advice under
9
paragraph (4)(b), the Commissioner must seek to achieve an
10
appropriate balance between:
11
(a) the person's interest in having the information included in the
12
advice; and
13
(b) the prejudicial consequences that might result from including
14
the information in the advice.
15
160 Follow-up action on investigation report
16
(1) The Commissioner may request the head of a Commonwealth
17
agency to whom an investigation report is given to give the
18
Commissioner, within a specified time, details of any action that
19
the head of the Commonwealth agency has taken, or proposes to
20
take, with respect to a recommendation included in the
21
investigation report.
22
(2) The head of the Commonwealth agency must comply with the
23
request.
24
(3) If the Commissioner is not satisfied with the response of the head
25
of the Commonwealth agency to the request, the Commissioner
26
may refer to the person mentioned in subsection (4):
27
(a) the Commissioner's recommendation and the reasons for that
28
recommendation; and
29
(b) the response of the head of the agency to the
30
recommendation; and
31
(c) the Commissioner's reasons for not being satisfied with that
32
response.
33
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Reporting on corruption investigations
Section 160
132
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No. , 2022
(4) For the purposes of subsection (3), the person is:
1
(a) if the Commonwealth agency is a parliamentary office:
2
(i) for a parliamentarian who is a senator--the President of
3
the Senate; or
4
(ii) for a parliamentarian who is a member of the House of
5
Representatives--the Speaker of the House of
6
Representatives; or
7
(b) if the Commonwealth agency is a Department of the
8
Parliament established under the
Parliamentary Service Act
9
1999
:
10
(i) for the Department of the Senate--the President of the
11
Senate; or
12
(ii) for the Department of the House of Representatives--
13
the Speaker of the House of Representatives; or
14
(iii) otherwise--both the President of the Senate and the
15
Speaker of the House of Representatives; or
16
(c) if the Commonwealth agency is established or continued in
17
existence by an Act and paragraph (b) does not apply--the
18
Minister administering that Act; or
19
(d) if the Commonwealth agency is a Commonwealth entity and
20
neither paragraph (b) nor paragraph (c) applies--the Minister
21
having general responsibility for the activities of the entity.
22
(5) If the Commissioner refers material to a person under
23
subsection (3), the Commissioner may also send a copy of that
24
material to:
25
(a) the President of the Senate for presentation to the Senate; and
26
(b) the Speaker of the House of Representatives for presentation
27
to the House of Representatives.
28
(6) The Commissioner must exclude the following from the copy of
29
the material sent under subsection (5):
30
(a) section 235 certified information;
31
(b) information that the Commissioner is satisfied is sensitive
32
information.
33
(7) Before sending a copy of material under subsection (5), the
34
Commissioner must consult with the head of each Commonwealth
35
Reporting on corruption investigations
Part 8
Section 160
No. , 2022
National Anti-Corruption Commission Bill 2022
133
agency or State or Territory government entity to which the
1
material relates about whether the material contains sensitive
2
information.
3
Part 9
Public inquiries
Section 161
134
National Anti-Corruption Commission Bill 2022
No. , 2022
Part 9--Public inquiries
1
2
161 Commissioner may conduct public inquiries
3
(1) The Commissioner may, on the Commissioner's own initiative,
4
conduct a public inquiry into one or more of the following:
5
(a) corruption risks and vulnerabilities in Commonwealth
6
agencies;
7
(b) measures to prevent corruption in Commonwealth agencies.
8
(2) A public inquiry is not a corruption investigation, and must not be,
9
or involve, an inquiry into a particular corruption issue.
10
(3) The Commissioner may conduct a public inquiry in such manner as
11
the Commissioner thinks fit.
12
162 Commissioner may invite submissions
13
The Commissioner may invite submissions on matters that are the
14
subject of a public inquiry.
15
163 Commissioner's powers
16
(1) Part 7 (investigating corruption issues) applies for the purposes of a
17
public inquiry in the same way as that Part applies to the
18
investigation of a corruption issue.
19
(2) However:
20
(a) the following provisions of Part 7 do not apply for the
21
purposes of a public inquiry:
22
(i) Subdivision E of Division 3 (travel documents and
23
arrest of witnesses);
24
(ii) Division 7 (search powers); and
25
(b) that Part, as applied by this section, does not authorise:
26
(i) a notice to produce to be served on a person other than
27
an agency head; or
28
Public inquiries
Part 9
Section 164
No. , 2022
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135
(ii) the taking of any action in relation to a post-charge or a
1
post-confiscation application event.
2
164 Reporting on public inquiries
3
(1) After completing a public inquiry, the Commissioner must prepare
4
a report (the
inquiry report
) on the inquiry.
5
Contents of inquiry report
6
(2) Without limiting what the report may include, it must include:
7
(a) the Commissioner's findings or opinions on corruption risks,
8
vulnerabilities, and the effectiveness of corruption prevention
9
arrangements in Commonwealth agencies; and
10
(b) a summary of the evidence and other material on which those
11
findings or opinions are based; and
12
(c) any recommendations concerning the need for, or desirability
13
of, legislative or administrative reform to prevent corruption;
14
and
15
(d) if recommendations are made--the reasons for those
16
recommendations.
17
(3) The report must not include:
18
(a) findings or opinions about specific instances of corrupt
19
conduct; or
20
(b) section 235 certified information; or
21
(c) information that the Commissioner is satisfied is sensitive
22
information.
23
(4) Before including information in the report, the Commissioner must
24
consult with the head of each Commonwealth agency or State or
25
Territory government entity to which the information relates about
26
whether the information is sensitive information.
27
165 Protected information report
28
If the Commissioner excludes section 235 certified information or
29
sensitive information from an inquiry report, the Commissioner
30
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Public inquiries
Section 166
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National Anti-Corruption Commission Bill 2022
No. , 2022
must prepare another report (a
protected information report
) that
1
sets out:
2
(a) the information; and
3
(b) the reasons for excluding the information from the inquiry
4
report.
5
Note:
If a protected information report is given to a person, the person must
6
not disclose the report, or information contained in the report, to the
7
public or a section of the public: see section 234.
8
166 Opportunity to respond must be given before including certain
9
information in inquiry report
10
(1) Before including in an inquiry report an opinion, finding or
11
recommendation that is critical (either expressly or impliedly) of a
12
Commonwealth agency, a State or Territory government entity or
13
any other person, the Commissioner must give the head of the
14
agency, the head of the entity or the other person concerned:
15
(a) a statement setting out the opinion, finding or
16
recommendation; and
17
(b) a reasonable opportunity to respond to the opinion, finding or
18
recommendation.
19
(2) The response may be given by:
20
(a) the head of the Commonwealth agency or of the State or
21
Territory government entity concerned, or a person
22
authorised by the head; or
23
(b) in relation to any other person concerned--the other person
24
concerned, or, with approval, a person representing the other
25
person.
26
167 Commissioner to give copies of reports to certain persons
27
(1) The Commissioner must give the Minister:
28
(a) the inquiry report; and
29
(b) if a protected information report is prepared in relation to the
30
inquiry--the protected information report.
31
(2) For a public inquiry concerning a Commonwealth agency, the
32
Commissioner:
33
Public inquiries
Part 9
Section 167
No. , 2022
National Anti-Corruption Commission Bill 2022
137
(a) must give a copy of an inquiry report; and
1
(b) may give a copy of a protected information report;
2
to the following persons:
3
(c) the agency head;
4
(d) if the agency is established or continued in existence by an
5
Act--the Minister administering that Act (subject to
6
paragraph (e));
7
(e) if the agency is a Department of the Parliament established
8
under the
Parliamentary Service Act 1999
:
9
(i) for the Department of the Senate--the President of the
10
Senate; or
11
(ii) for the Department of the House of Representatives--
12
the Speaker of the House of Representatives; or
13
(iii) otherwise--both the President of the Senate and the
14
Speaker of the House of Representatives;
15
(f) if the agency is a Commonwealth entity--the Minister
16
having general responsibility for the activities of the entity.
17
(3) The Commissioner must exclude the following from a protected
18
information report given under paragraph (2)(b):
19
(a) section 235 certified information, if the disclosure of the
20
information would contravene the certificate issued under
21
section 235;
22
(b) information that the Commissioner is satisfied:
23
(i) is sensitive information; and
24
(ii) is desirable in the circumstances to exclude from the
25
report.
26
(4) In deciding whether to exclude information from a protected
27
information report under paragraph (3)(b), the Commissioner must
28
seek to achieve an appropriate balance between:
29
(a) the interest of a person mentioned in paragraphs (2)(c) to (f),
30
to whom the report is to be given, in having the information
31
included in the report; and
32
(b) the prejudicial consequences that might result from including
33
the information in the report.
34
Part 9
Public inquiries
Section 168
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National Anti-Corruption Commission Bill 2022
No. , 2022
168 Tabling of inquiry report in Parliament
1
The Minister must table an inquiry report in each House of the
2
Parliament within 15 sitting days of that House after the Minister
3
receives the report if:
4
(a) public submissions were invited on matters that were the
5
subject of the inquiry; or
6
(b) one or more public hearings were held in the course of the
7
inquiry.
8
169 Publishing inquiry report in whole or part
9
(1) The Commissioner may publish the whole or part of an inquiry
10
report if:
11
(a) the Commissioner has given the Minister the inquiry report
12
under subsection 167(1); and
13
(b) the Commissioner is satisfied that it is in the public interest
14
to publish the whole or the part of the report (as the case may
15
be).
16
(2) This section is subject to section 170.
17
170 Opportunity to respond must be given before publishing an
18
inquiry report containing critical opinions etc.
19
(1) This section applies to an inquiry report that:
20
(a) has not been tabled in Parliament; and
21
(b) is published, in whole or in part, under section 169 more than
22
3 months after the report is given to the Minister under
23
subsection 167(1).
24
(2) The inquiry report must not include an opinion, finding or
25
recommendation that is critical (either expressly or impliedly) of a
26
Commonwealth agency, a State or Territory government entity or
27
any other person, unless the Commissioner has given the head of
28
the agency, the head of the entity or the other person concerned:
29
(a) a statement setting out the opinion, finding or
30
recommendation; and
31
(b) a reasonable opportunity to respond to:
32
Public inquiries
Part 9
Section 171
No. , 2022
National Anti-Corruption Commission Bill 2022
139
(i) the opinion, finding or recommendation; and
1
(ii) the proposed publication of the opinion, finding or
2
recommendation.
3
(3) The response may be given by:
4
(a) the head of the Commonwealth agency or of the State or
5
Territory government entity concerned, or a person
6
authorised by the head; or
7
(b) in relation to any other person concerned--the other person
8
concerned, or, with approval, a person representing the other
9
person.
10
171 Follow-up action on inquiry report
11
(1) The Commissioner may request the head of a Commonwealth
12
agency to whom an inquiry report is given to give the
13
Commissioner, within a specified time, details of any action that
14
the head of the Commonwealth agency has taken, or proposes to
15
take, with respect to a recommendation included in the inquiry
16
report.
17
(2) The head of the Commonwealth agency must comply with the
18
request.
19
(3) If the Commissioner is not satisfied with the response of the head
20
of the Commonwealth agency to the request, the Commissioner
21
may refer to the person mentioned in subsection (4):
22
(a) the Commissioner's recommendation and the reasons for that
23
recommendation; and
24
(b) the response of the head of the agency to the
25
recommendation; and
26
(c) the Commissioner's reasons for not being satisfied with that
27
response.
28
(4) For the purposes of subsection (3), the person is:
29
(a) if the Commonwealth agency is a parliamentary office:
30
(i) for a parliamentarian who is a senator--the President of
31
the Senate; or
32
Part 9
Public inquiries
Section 171
140
National Anti-Corruption Commission Bill 2022
No. , 2022
(ii) for a parliamentarian who is a member of the House of
1
Representatives--the Speaker of the House of
2
Representatives; or
3
(b) if the Commonwealth agency is a Department of the
4
Parliament established under the
Parliamentary Service Act
5
1999
:
6
(i) for the Department of the Senate--the President of the
7
Senate; or
8
(ii) for the Department of the House of Representatives--
9
the Speaker of the House of Representatives; or
10
(iii) otherwise--both the President of the Senate and the
11
Speaker of the House of Representatives; or
12
(c) if the Commonwealth agency is established or continued in
13
existence by an Act and paragraph (b) does not apply--the
14
Minister administering that Act; or
15
(d) if the Commonwealth agency is a Commonwealth entity and
16
neither paragraph (b) nor (c) applies--the Minister having
17
general responsibility for the activities of the entity.
18
(5) If the Commissioner refers material to a person under
19
subsection (3), the Commissioner may also send a copy of that
20
material to:
21
(a) the President of the Senate for presentation to the Senate; and
22
(b) the Speaker of the House of Representatives for presentation
23
to the House of Representatives.
24
(6) The Commissioner must exclude the following from the copy of
25
the material sent under subsection (5):
26
(a) section 235 certified information;
27
(b) information that the Commissioner is satisfied is sensitive
28
information.
29
(7) Before sending a copy of material under subsection (5), the
30
Commissioner must consult with the head of each Commonwealth
31
agency or State or Territory government entity to which the
32
material relates about whether the material contains sensitive
33
information.
34
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Part 10
Parliamentary Joint Committee on the National Anti-Corruption Commission
Division
1
Section 172
No. , 2022
National Anti-Corruption Commission Bill 2022
141
Part 10--Oversight of the National
1
Anti-Corruption Commission
2
Division 1--Parliamentary Joint Committee on the
3
National Anti-Corruption Commission
4
172 Parliamentary Joint Committee on the National
5
Anti-Corruption Commission
6
(1) As soon as practicable after the commencement of the first session
7
of each Parliament, a joint committee of members of the
8
Parliament, to be known as the Parliamentary Joint Committee on
9
the National Anti-Corruption Commission, is to be appointed
10
according to the practice of the Parliament.
11
(2) The Committee is to consist of 12 members:
12
(a) 6 members of the Senate appointed by the Senate; and
13
(b) 6 members of the House of Representatives appointed by that
14
House.
15
(3) The 6 members appointed by each of the Senate and the House of
16
Representatives must consist of the following:
17
(a) 3 members of the Government;
18
(b) 2 members of the Opposition;
19
(c) 1 member of the Parliament who is a member of neither the
20
Government nor the Opposition.
21
173 Chair of the Committee
22
Office of Chair of the Committee
23
(1) There must be a Chair of the Committee, who must be a member of
24
the Government elected by the members of the Committee from
25
time to time.
26
(2) The Chair holds office during the pleasure of the Committee.
27
Part 10
Oversight of the National Anti-Corruption Commission
Division 1
Parliamentary Joint Committee on the National Anti-Corruption
Commission
Section 174
142
National Anti-Corruption Commission Bill 2022
No. , 2022
(3) A person holding office as Chair ceases to hold the office if the
1
person:
2
(a) ceases to be a member of the Committee; or
3
(b) resigns the office.
4
(4) A person holding office as Chair may resign the office by giving a
5
signed notice of resignation to a meeting of the Committee.
6
Votes of the Chair
7
(5) At meetings of the Committee at which the Chair is present, the
8
Chair:
9
(a) has a deliberative vote; and
10
(b) has a casting vote if votes are equal.
11
174 Eligibility for appointment as a Committee member
12
A member of the Parliament is not eligible for appointment as a
13
member of the Committee if the member is:
14
(a) a Minister; or
15
(b) the President of the Senate; or
16
(c) the Speaker of the House of Representatives; or
17
(d) the Deputy President and Chair of Committees of the Senate;
18
or
19
(e) the Deputy Speaker of the House of Representatives.
20
175 Terms of office of Committee members
21
(1) A member holds office during the pleasure of the House of the
22
Parliament by which the member was appointed.
23
(2) A person ceases to hold office as a member of the Committee if:
24
(a) the House of Representatives expires by the passing of time
25
or is dissolved; or
26
(b) the person becomes the holder of an office specified in any of
27
the paragraphs of section 174; or
28
(c) the person ceases to be a member of the House of the
29
Parliament by which the person was appointed; or
30
Oversight of the National Anti-Corruption Commission
Part 10
Parliamentary Joint Committee on the National Anti-Corruption Commission
Division
1
Section 176
No. , 2022
National Anti-Corruption Commission Bill 2022
143
(d) the person resigns the person's office as provided by
1
subsection (3).
2
(3) A member of the Committee appointed by a House of the
3
Parliament may resign the member's office by giving the Presiding
4
Officer of that House a written resignation.
5
(4) A House of the Parliament may appoint one of its members to fill a
6
vacancy among the members of the Committee appointed by that
7
House.
8
176 Powers and proceedings of the Committee
9
All matters relating to the powers and proceedings of the
10
Committee are to be determined by resolution of both Houses of
11
the Parliament.
12
177 Functions of the Committee
13
(1) The Committee has the following functions:
14
(a) to consider proposed recommendations for the appointment
15
of the following positions in accordance with section 178:
16
(i) the Commissioner;
17
(ii) a Deputy Commissioner;
18
(iii) the Inspector;
19
(b) to monitor and review the performance by the Commissioner
20
and the Inspector of their functions;
21
(c) to report to both Houses of the Parliament, with such
22
comments as it thinks fit, on any matter connected with the
23
performance of the functions of the Commissioner or the
24
Inspector that the Committee considers should be directed to
25
the attention of the Parliament;
26
(d) to examine and report to the Parliament on any matter
27
appearing in, or arising out of, the following:
28
(i) any investigation report that is laid before the Houses of
29
the Parliament under section 155;
30
(ii) each annual report prepared by the Commissioner under
31
section 271;
32
Part 10
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Division 1
Parliamentary Joint Committee on the National Anti-Corruption
Commission
Section 177
144
National Anti-Corruption Commission Bill 2022
No. , 2022
(iii) any NACC investigation report that is laid before the
1
Houses of the Parliament under section 221;
2
(iv) each annual report prepared by the Inspector under
3
section 198;
4
(e) to examine trends and changes in corruption among those
5
who are subject to this Act and report to both Houses of the
6
Parliament on any change that the Committee thinks
7
desirable to the following:
8
(i) the functions or powers of the Commissioner or the
9
Inspector;
10
(ii) the procedures followed by the Commissioner or the
11
Inspector;
12
(iii) the NACC's staffing or structure;
13
(iv) the staffing arrangements for the Inspector;
14
(f) to inquire into any question in connection with the
15
Committee's functions that is referred to it by either House of
16
the Parliament, and to report to that House upon that
17
question;
18
(g) to review the NACC's budget and finances, and to report to
19
both Houses of the Parliament on the following matters:
20
(i) whether the NACC has sufficient finances and resources
21
to effectively perform its functions;
22
(ii) whether the NACC's budget should be increased to
23
ensure that it will have sufficient finances and resources
24
to effectively perform its functions;
25
(iii) any other matter arising out of the review that the
26
Committee considers relevant.
27
(2) The Committee may request that the Inspector assist the
28
Committee in the exercise of the function mentioned in
29
paragraph (1)(g).
30
(3) Subsection (1) does not authorise the Committee to:
31
(a) investigate a corruption issue or a NACC corruption issue; or
32
(b) reconsider a decision or recommendation made by the
33
Commissioner or the Inspector in relation to a corruption
34
issue, a NACC corruption issue or a complaint made in
35
Oversight of the National Anti-Corruption Commission
Part 10
Parliamentary Joint Committee on the National Anti-Corruption Commission
Division
1
Section 177
No. , 2022
National Anti-Corruption Commission Bill 2022
145
relation to the conduct or activities of the NACC or a staff
1
member of the NACC; or
2
(c) review a decision made, or an operational activity carried out,
3
in relation to a NACC Act process that is still being
4
conducted; or
5
(d) review an operational activity undertaken or proposed to be
6
undertaken by a person or body mentioned in subsection (4);
7
or
8
(e) review any of the following to the extent that they are
9
available to a person or body mentioned in subsection (4):
10
(i) sensitive operational information;
11
(ii) operationally sensitive information (within the meaning
12
of Schedule 1 to the
Intelligence Services Act 2001
);
13
(iii) operational methods;
14
(iv) operational assistance; or
15
(f) review information provided by, or by an agency of, a
16
foreign government where that government does not consent
17
to the disclosure of the information; or
18
(g) review an aspect of the activities of an intelligence agency
19
that does not affect an Australian person; or
20
(h) review the content of, or conclusions reached in, assessments
21
or reports made by an intelligence agency, or review sources
22
of information on which such assessments or reports are
23
based; or
24
(i) review anything done by the Office of National Intelligence
25
in carrying out the evaluation functions mentioned in
26
section 9 of the
Office of National Intelligence Act 2018
.
27
(4) The persons and bodies are:
28
(a) the NACC; or
29
(b) the Inspector; or
30
(c) a Commonwealth agency; or
31
(d) a State or Territory government entity.
32
Part 10
Oversight of the National Anti-Corruption Commission
Division 1
Parliamentary Joint Committee on the National Anti-Corruption
Commission
Section 178
146
National Anti-Corruption Commission Bill 2022
No. , 2022
178 Committee may approve or reject recommendation for
1
appointment
2
Appointments that the Committee must approve or reject
3
(1) The Committee must approve or reject a proposed recommendation
4
referred to the Committee by the Minister for the appointment of
5
the following positions:
6
(a) the Commissioner;
7
(b) a Deputy Commissioner;
8
(c) the Inspector.
9
Decision to approve or reject
10
(2) The Committee must make the decision on a proposed
11
recommendation within:
12
(a) 14 calendar days after the referral; or
13
(b) if, within the first 14 calendar days after the referral, the
14
Committee notifies the Minister that it requires additional
15
time to consider the referral--44 calendar days after the
16
referral.
17
(3) As soon as practicable after making the decision, the Committee
18
must:
19
(a) give the Minister written notice of the decision; and
20
(b) report the decision to both Houses of the Parliament.
21
(4) The Committee is taken to have approved the proposed
22
recommendation if the Committee does not give notice under
23
paragraph (3)(a) within the period specified in paragraph (2)(a) or
24
(b) as the case requires.
25
179 Staff of the Committee must be cleared for security purposes
26
Each member of the staff of the Committee must be cleared for
27
security purposes to a level that is appropriate having regard to the
28
information that the member of staff will deal with in that capacity.
29
Oversight of the National Anti-Corruption Commission
Part 10
Parliamentary Joint Committee on the National Anti-Corruption Commission
Division
1
Section 180
No. , 2022
National Anti-Corruption Commission Bill 2022
147
180 Protection of information and documents
1
(1) The Committee must make arrangements for the protection and
2
security of all information held, and all records made, by the
3
Committee while such information and records remain in the
4
Committee's possession.
5
(2) The Committee must ensure that any documents having a security
6
classification (within the meaning of section 90.5 of the
Criminal
7
Code
) provided to the Committee by a person are returned to the
8
person as soon as possible after the members have examined them.
9
181 Committee's access to certain information
10
If:
11
(a) a person would, but for this subsection, be required to give
12
information, or produce a document, to the Committee; and
13
(b) either:
14
(i) the information is, or the document contains, section
15
235 certified information; or
16
(ii) the information or document is covered by an
17
international relations certificate issued under section
18
236;
19
the person must not give the information, or produce the document,
20
to the Committee.
21
Part 10
Oversight of the National Anti-Corruption Commission
Division 2
The Inspector of the National Anti-Corruption Commission
Section 182
148
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 2--The Inspector of the National Anti-Corruption
1
Commission
2
Subdivision A--Functions and powers of the Inspector
3
182 The Inspector
4
(1) There is to be an Inspector of the National Anti-Corruption
5
Commission.
6
(2) The Inspector is an independent officer of the Parliament.
7
(3) The functions, powers, rights, immunities and obligations of the
8
Inspector are as specified in this Act and in any other Act. There
9
are no implied functions, powers, rights, immunities or obligations
10
arising from the Inspector being an independent officer of the
11
Parliament.
12
183 Independence
13
Subject to this Act and any other Act, the Inspector:
14
(a) has complete discretion in performing or exercising the
15
Inspector's functions or powers; and
16
(b) is not subject to direction from anyone when doing so.
17
184 Functions of the Inspector
18
(1) The Inspector has the following functions:
19
(a) to detect corrupt conduct within, and relating to, the NACC;
20
(b) to undertake preliminary investigations into NACC
21
corruption issues or possible NACC corruption issues;
22
(c) to conduct NACC corruption investigations into NACC
23
corruption issues that could involve corrupt conduct that is
24
serious or systemic;
25
(d) to refer NACC corruption issues to the NACC,
26
Commonwealth agencies and State or Territory government
27
entities;
28
Oversight of the National Anti-Corruption Commission
Part 10
The Inspector of the National Anti-Corruption Commission
Division 2
Section 185
No. , 2022
National Anti-Corruption Commission Bill 2022
149
(e) to investigate complaints made in relation to the conduct or
1
activities of:
2
(i) the NACC; or
3
(ii) a staff member of the NACC;
4
(f) to provide relevant information and documents to the
5
Committee;
6
(g) to receive
public interest disclosures (within the meaning of
7
the
Public Interest Disclosure Act 2013
) and to deal with
8
those disclosures;
9
(h) to report, and make recommendations,
to both Houses of the
10
Parliament on the results of performing the functions
11
mentioned in paragraphs (a) to (f).
12
(2) The Inspector also has such other functions conferred on the
13
Inspector by this Act or by any other Act.
14
Subdivision B--Appointment of the Inspector
15
185 Appointment of the Inspector
16
Appointment by Governor-General
17
(1) The Inspector of the National Anti-Corruption Commission is to be
18
appointed by the Governor-General, by written instrument, on the
19
recommendation of the Minister.
20
(2) Before the Minister makes a recommendation to the
21
Governor-General:
22
(a) the Minister must have referred the proposed
23
recommendation to the Committee under section 178; and
24
(b) one of the following must have occurred:
25
(i) the Committee was taken to have approved the proposed
26
recommendation under subsection (5) of that section;
27
(ii) the Committee has notified the Minister that it has
28
decided to approve the proposed recommendation.
29
Qualifications for appointment
30
(3) A person must not be appointed as the Inspector unless the person:
31
Part 10
Oversight of the National Anti-Corruption Commission
Division 2
The Inspector of the National Anti-Corruption Commission
Section 186
150
National Anti-Corruption Commission Bill 2022
No. , 2022
(a) is a retired judge of a federal court or a court of a State or
1
Territory; or
2
(b) is enrolled as a legal practitioner (however described) of a
3
federal court or the Supreme Court of a State or Territory and
4
has been so enrolled for at least 5 years.
5
(4) A person must not be appointed as the Inspector if the person has
6
previously been appointed as the Commissioner.
7
Period of appointment
8
(5) The Inspector holds office for the period specified in the
9
instrument of appointment. The period must not exceed 10
years.
10
(6) The Inspector must not be reappointed.
11
Basis of appointment
12
(7) The Inspector may be appointed on a full-time or part-time basis.
13
186 Acting appointments
14
(1) The Minister may, by written instrument, appoint a person to act as
15
the Inspector:
16
(a) during a vacancy in the office of the Inspector (whether or
17
not an appointment has previously been made to the office);
18
or
19
(b) during any period, or during all periods, when the Inspector:
20
(i) is absent from duty or from Australia; or
21
(ii) is, for any reason, unable to perform the duties of the
22
office.
23
Note:
For rules that apply to acting appointments, see sections 33AB and
24
33A of the
Acts Interpretation Act 1901
.
25
Qualification for acting appointment
26
(2) A person must not be appointed to act as the Inspector unless the
27
person is qualified, as mentioned under subsections 185(3) and (4),
28
to be appointed as the Inspector.
29
Oversight of the National Anti-Corruption Commission
Part 10
The Inspector of the National Anti-Corruption Commission
Division 2
Section 187
No. , 2022
National Anti-Corruption Commission Bill 2022
151
187 Remuneration
1
(1) The Inspector is to be paid the remuneration that is determined by
2
the Remuneration Tribunal. If no determination of that
3
remuneration by the Tribunal is in operation, the Inspector is to be
4
paid the remuneration that is prescribed by the regulations.
5
(2) The Inspector is to be paid the allowances that are prescribed by
6
the regulations.
7
(3) This section has effect subject to the
Remuneration Tribunal Act
8
1973
.
9
188 Leave of absence
10
(1) If the Inspector is appointed on a full-time basis, the Inspector has
11
the recreation leave entitlements that are determined by the
12
Remuneration Tribunal.
13
(2) If the Inspector is appointed on a full-time basis, the Minister
may
14
grant the Inspector leave of absence, other than recreation leave, on
15
the terms and conditions as to remuneration or otherwise that the
16
Minister determines.
17
(3) If the Inspector is appointed on a part-time basis, the Minister may
18
grant leave of absence to the Inspector on the terms and conditions
19
that the Minister determines.
20
189 Other paid work
21
The Inspector must not engage in paid work outside the duties of
22
the Inspector's office without the Minister's approval.
23
190 Disclosure of interests to the Minister
24
The Inspector must give written notice to the Minister of all
25
interests, pecuniary or otherwise, that the Inspector has or acquires
26
and that conflict or could conflict with the proper performance of
27
the Inspector's functions.
28
Part 10
Oversight of the National Anti-Corruption Commission
Division 2
The Inspector of the National Anti-Corruption Commission
Section 191
152
National Anti-Corruption Commission Bill 2022
No. , 2022
191 Other terms and conditions
1
The Inspector holds office on the terms and conditions (if any) in
2
relation to matters not covered by this Act that are determined by
3
the Minister.
4
192 Resignation
5
(1) The Inspector may resign the Inspector's appointment by giving
6
the Governor-General a written resignation.
7
(2) The resignation takes effect on the day it is received by the
8
Governor-General or, if a later day is specified in the resignation,
9
on that later day.
10
193 Termination of appointment
11
(1) The Governor-General may terminate the appointment of the
12
Inspector if each House of the Parliament, in the same session of
13
the Parliament, presents an address to the Governor-General
14
praying for the removal of the Inspector:
15
(a) for misbehaviour; or
16
(b) if the Inspector is unable to perform the duties of the
17
Inspector's office because of physical or mental incapacity.
18
(2) The Governor-General must terminate the appointment of the
19
Inspector if the Inspector:
20
(a) becomes bankrupt; or
21
(b) applies to take the benefit of any law for the relief of
22
bankrupt or insolvent debtors; or
23
(c) compounds with the Inspector's creditors; or
24
(d) makes an assignment of the Inspector's remuneration for the
25
benefit of the Inspector's creditors.
26
Oversight of the National Anti-Corruption Commission
Part 10
The Inspector of the National Anti-Corruption Commission
Division 2
Section 194
No. , 2022
National Anti-Corruption Commission Bill 2022
153
Subdivision C--Persons assisting the Inspector
1
194 Persons assisting the Inspector
2
Persons made available to the Inspector
3
(1) The Inspector may be assisted by the following persons, whose
4
services are made available to the Inspector in connection with the
5
performance of any of the Inspector's functions:
6
(a) APS employees in the Department;
7
(b) officers and employees of Agencies (within the meaning of
8
the
Public Service Act 1999
);
9
(c) persons employed under the
Australian Security Intelligence
10
Organisation Act 1979
;
11
(d) persons employed under the
Intelligence Services Act 2001
;
12
(e) Parliamentary Service employees (within the meaning of
13
the
Parliamentary Service Act 1999
);
14
(f) members of the Australian Defence Force;
15
(g) members of the Australian Federal Police.
16
(2) When performing services for the Inspector under subsection (1), a
17
person is subject to the directions of the Inspector.
18
Consultants
19
(3) The Inspector may, on behalf of the Commonwealth, engage
20
consultants to assist in the performance of the Inspector's
21
functions.
22
(4) The consultants are to be engaged on the terms and conditions that
23
the Inspector determines in writing.
24
Legal counsel
25
(5) The Inspector may appoint a legal practitioner to assist the
26
Inspector in relation to a particular NACC corruption investigation.
27
Part 10
Oversight of the National Anti-Corruption Commission
Division 2
The Inspector of the National Anti-Corruption Commission
Section 195
154
National Anti-Corruption Commission Bill 2022
No. , 2022
195 Meaning of person assisting the Inspector
1
Each of the following is a
person assisting
the Inspector for the
2
purposes of this Act:
3
(a) a person made available to the Inspector as mentioned in
4
subsection 194(1);
5
(b) a person engaged as a consultant under subsection 194(3);
6
(c) a legal practitioner appointed to assist the Inspector under
7
subsection 194(5).
8
Subdivision D--Immunities of Inspector and persons assisting
9
196 Immunity from civil proceedings for the Inspector and persons
10
assisting
11
(1) The Inspector is not liable to civil proceedings in relation to an act
12
done, or omitted to be done, in good faith, in the performance or
13
purported performance, or exercise or purported exercise, of the
14
Inspector's functions, powers or duties under, or in relation to, this
15
Act.
16
(2) A person whom the Inspector requests, in writing, to assist the
17
Inspector, or a person assisting the Inspector, is not liable to civil
18
proceedings in relation to an act done, or omitted to be done, in
19
good faith for the purpose of assisting the Inspector.
20
197 Immunities from certain State and Territory laws
21
Neither the Inspector nor a person assisting the Inspector is
22
required under, or by reason of, a law of a State or Territory:
23
(a) to obtain or have a licence or permission for doing any act or
24
thing in the exercise of powers or the performance of duties
25
of the Inspector; or
26
(b) to register any vehicle, vessel, animal or article belonging to
27
the Commonwealth.
28
Oversight of the National Anti-Corruption Commission
Part 10
The Inspector of the National Anti-Corruption Commission
Division 2
Section 198
No. , 2022
National Anti-Corruption Commission Bill 2022
155
Subdivision E--Annual report by Inspector
1
198 Annual report
2
(1) As soon as practicable after the end of each financial year, the
3
Inspector must:
4
(a) prepare a report (the
annual report
) relating to the
5
performance of the Inspector's functions during the financial
6
year; and
7
(b) cause a copy of the annual report to be tabled in each House
8
of the Parliament.
9
(2) The copy of the annual report must be tabled as soon as practicable
10
after the end of the financial year, and in any event, by the
11
following 31 December.
12
(3) Subject to section 199, the annual report must include the
13
information prescribed by the regulations.
14
199 Exclusion of certain information from annual report
15
The Inspector must exclude the following from the annual report:
16
(a) section 235 certified information;
17
(b) information that the Inspector is satisfied is sensitive
18
information.
19
200 Effect of findings or opinions about corrupt conduct
20
(1) This section applies if an annual report includes a finding or
21
opinion that a person has engaged, is engaging or will engage in
22
corrupt conduct or conduct that could constitute or involve corrupt
23
conduct.
24
(2) The finding or opinion does not constitute a finding or opinion that
25
the person is guilty of or has committed, is committing or will
26
commit an offence.
27
Part 10
Oversight of the National Anti-Corruption Commission
Division 3
NACC corruption issues
Section 201
156
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 3--NACC corruption issues
1
Subdivision A--Meaning of NACC corruption issue
2
201 Meaning of NACC corruption issue
3
(1) A
NACC corruption issue
is an issue of whether, in the
4
circumstances mentioned in subsection (2), a person:
5
(a) has engaged in corrupt conduct; or
6
(b) is engaging in corrupt conduct; or
7
(c) will engage in corrupt conduct.
8
Note:
A NACC corruption issue is not a corruption issue: see subsection
9
9(2).
10
(2) The circumstances are:
11
(a) the person is a staff member of the NACC; or
12
(b) the conduct of the person adversely affects, or could
13
adversely affect, either directly or indirectly:
14
(i) the honest or impartial exercise of the powers of a staff
15
member of the NACC; or
16
(ii) the honest or impartial performance of the functions,
17
duties of a staff member of the NACC; or
18
(c) the person's conduct occurs in conspiracy with a staff
19
member of the NACC.
20
(3) For the purposes of subsection (2), it is immaterial whether the
21
conduct was, is or will be engaged in before the staff member was,
22
or while the staff member is or was, a staff member of the NACC.
23
Subdivision B--Referring NACC corruption issues
24
202 Any person may refer NACC corruption issue
25
(1) Any person may refer a NACC corruption issue or provide other
26
information about a NACC corruption issue to the Inspector.
27
(2) The Inspector may request the referral or information to be:
28
(a) given in a particular way; or
29
Oversight of the National Anti-Corruption Commission
Part 10
NACC corruption issues
Division 3
Section 203
No. , 2022
National Anti-Corruption Commission Bill 2022
157
(b) accompanied or supported by further information.
1
203 Mandatory referral--Commissioner
2
If the Commissioner becomes aware of a NACC corruption issue,
3
the Commissioner must refer the NACC corruption issue to the
4
Inspector.
5
204 Mandatory referral--Public Interest Disclosure Act disclosures
6
(1) A staff member of the NACC who, in the course of performing or
7
exercising functions or powers under Division 1 or 2 of Part 3 of
8
the
Public Interest Disclosure Act 2013
(including as a delegate),
9
becomes aware of a NACC corruption issue, must refer the NACC
10
corruption issue to the Inspector.
11
(2) If the staff member became aware of the NACC corruption issue as
12
a result of an internal disclosure made under the
Public Interest
13
Disclosure Act 2013
, the staff member must, as soon as reasonably
14
practicable, notify the discloser of the staff member's referral of
15
the issue under this section.
16
205 Mandatory referral--secrecy provisions
17
The obligation to refer a NACC corruption issue under this
18
Subdivision applies despite any secrecy provision (other than an
19
exempt secrecy provision).
20
206 Mandatory referral--exceptions
21
A person is not required to refer a NACC corruption issue under
22
this Subdivision if the person believes on reasonable grounds that
23
the Inspector is already aware of the issue.
24
207 Mandatory referral--timing and information requirements
25
Timing requirements
26
(1) A person who is required to refer a NACC corruption issue under
27
this Subdivision must do so as soon as reasonably practicable after
28
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becoming aware of the issue or within such later time as is allowed
1
by the Inspector.
2
Information requirements
3
(2) A person who is required to refer a NACC corruption issue under
4
this Subdivision must include with the referral all information
5
relevant to the issue that is in the person's possession or control at
6
the time the referral is made.
7
(3) If the person subsequently becomes aware of any further
8
information that is relevant to the issue, the person must give the
9
further information to the Inspector as soon as reasonably
10
practicable.
11
Exceptions to information requirements
12
(4) A person is not required to provide information under this section
13
if:
14
(a) the person has reasonable grounds to believe that the
15
Inspector is already aware of the information; or
16
(b) the Inspector has advised the person that the provision of
17
information about the NACC corruption issue is not required.
18
Note:
This section has effect subject to section 236 (Attorney-General's
19
certificate in relation to international relations).
20
208 Effect of referral on continued actions
21
The referral of a NACC corruption issue under this Subdivision
22
does not:
23
(a) subject to any direction to stop taking action given by the
24
Inspector under subsection 43(1) (as modified by section
25
211), prevent the NACC from continuing to take any action
26
in relation to conduct that is the subject of the issue; or
27
(b) affect the obligations of the NACC in relation to that conduct
28
under any other law.
29
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Part 10
NACC corruption issues
Division 3
Section 209
No. , 2022
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159
Subdivision C--Dealing with NACC corruption issues
1
209 Inspector may deal with NACC corruption issues
2
The Inspector may deal with a NACC corruption issue that:
3
(a) is referred to the Inspector; or
4
(b) the Inspector becomes aware of in any other way.
5
210 How Inspector deals with NACC corruption issues
6
(1) The Inspector may deal with a NACC corruption issue in any one
7
or more of the following ways:
8
(a) by investigating the NACC corruption issue;
9
(b) by investigating the NACC corruption issue jointly with a
10
Commonwealth agency, the NACC or a State or Territory
11
government entity;
12
(c) by referring, for investigation, the NACC corruption issue to
13
the NACC (if the Inspector is satisfied that it is appropriate
14
for the NACC to investigate the issue);
15
(d) by referring, for consideration, the NACC corruption issue to
16
a Commonwealth agency, the NACC or a State or Territory
17
government entity.
18
(2) An investigation mentioned in paragraph (1)(a) or (b) is a
NACC
19
corruption investigation
.
20
NACC corruption investigation threshold--serious or systemic
21
corrupt conduct
22
(3) The Inspector may conduct, or continue to conduct, a NACC
23
corruption investigation only if the Inspector is of the opinion that
24
the issue could involve corrupt conduct that is serious or systemic.
25
General matters
26
(4) NACC corruption issues may be investigated together.
27
(5) The Inspector may, at any time, reconsider whether or how to deal
28
with a NACC corruption issue.
29
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Division 3
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Section 211
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No. , 2022
Inspector may decide to take no action
1
(6) The Inspector may decide to take no action in relation to a NACC
2
corruption issue.
3
Inspector under no duty to consider whether to deal with NACC
4
corruption issue
5
(7) The Inspector does not have a duty to consider whether to deal
6
with a NACC corruption issue under this section, whether the
7
Inspector is requested to do so by the person who referred the issue
8
or by any other person, or in any other circumstances.
9
211 Other matters related to dealing with NACC corruption issues
10
Part 6 (other than sections 40 and 41) applies in relation to a
11
NACC corruption investigation with the modifications set out in
12
the following table:
13
14
Modifications
Item
A reference to...
is taken to...
1
the Commissioner
be a reference to the
Inspector.
2
the NACC
be a reference to the
Inspector.
3
a NACC Commissioner
be a reference to the
Inspector.
4
a corruption issue
be a reference to a NACC
corruption issue.
5
a corruption investigation
be a reference to a NACC
corruption investigation.
6
an agency head
include a reference to the
Commissioner.
7
a head
include a reference to the
Commissioner.
8
a Commonwealth agency
include a reference to the
NACC.
9
an agency
include a reference to the
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Part 10
NACC corruption issues
Division 3
Section 211
No. , 2022
National Anti-Corruption Commission Bill 2022
161
Modifications
Item
A reference to...
is taken to...
NACC.
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Division 4
Investigating and reporting by Inspector
Section 212
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Division 4--Investigating and reporting by Inspector
1
Subdivision A--Investigations by Inspector
2
212 Application of Division
3
(1) This Division applies:
4
(a) to the Inspector's investigation of a NACC corruption issue
5
that could, in the Inspector's opinion, involve corrupt
6
conduct that is serious or systemic; and
7
(b) whether the investigation is conducted:
8
(i) by the Inspector only; or
9
(ii) jointly by the Inspector and a Commonwealth agency,
10
the NACC or a State or Territory government entity.
11
(2) This Division also applies to an investigation into a complaint
12
made in relation to the conduct or activities of the NACC or a staff
13
member of the NACC (a
NACC complaint investigation
).
14
213 Conduct of investigations generally
15
The Inspector may perform the investigation in such manner as the
16
Inspector thinks fit.
17
214 Inspector's powers to investigate
18
(1) Divisions 2 to 6 and 8 of Part 7, and sections 117, 118, 120, 267
19
and 268, apply in relation to the investigation with the
20
modifications set out in the following table:
21
22
Modifications
Item
A reference to...
is taken to...
1
the Commissioner
be a reference to the
Inspector.
2
the NACC
be a reference to the
Inspector.
3
a NACC Commissioner
be a reference to the
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Part 10
Investigating and reporting by Inspector
Division 4
Section 214
No. , 2022
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163
Modifications
Item
A reference to...
is taken to...
Inspector.
4
a corruption issue
be a reference to:
(a) a NACC corruption issue;
or
(b) a complaint made in
relation to the conduct or
activities of the NACC or
a staff member of the
NACC.
5
a corruption investigation
be a reference to:
(a) a NACC corruption
investigation; or
(b) a NACC complaint
investigation.
6
an authorised officer
be a reference to a person
appointed by the Inspector
under section 267
(appointment of authorised
officers) as applied by this
section.
7
an agency head
include a reference to the
Commissioner.
8
a head
include a reference to the
Commissioner.
9
a Commonwealth agency
include a reference to the
NACC.
10
an agency
include a reference to the
NACC.
11
a staff member of the NACC
be a reference to:
(a) the Inspector; or
(b) a person assisting the
Inspector.
(2) However:
1
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Division 4
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Section 215
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(a) Subdivision E of Division 3 of Part 7 (travel documents and
1
arrest of witnesses) does not apply for the purposes of a
2
NACC complaint investigation; and
3
(b) the following provisions of that Part, as applied by this
4
section, do not authorise, in the context of a NACC
5
complaint investigation, the taking of any action in relation to
6
a post-charge or a post-confiscation application event:
7
(i) Subdivision B of Division 2 (notices to produce);
8
(ii) Division 3 (hearings); and
9
(c) item 6 of the table in subsection (1) does not apply to
10
subsections 267(1) and (4); and
11
(d) item 11 of the table in subsection (1) does not apply to the
12
following provisions:
13
(i) paragraph 104(3)(a);
14
(ii) paragraph 143(3)(a).
15
Subdivision B--Reporting on NACC corruption investigations
16
and NACC complaint investigations
17
215 Report on NACC corruption investigation or NACC complaint
18
investigation
19
Inspector must prepare a NACC investigation report
20
(1) After completing:
21
(a) a NACC corruption investigation; or
22
(b) a NACC complaint investigation;
23
the Inspector must prepare a report (a
NACC investigation report
)
24
on the investigation.
25
Contents of a NACC investigation report
26
(2) Subject to section 217, the NACC investigation report must set out:
27
(a) the Inspector's findings or opinions on the NACC corruption
28
issue or the complaint; and
29
(b) a summary of the evidence and other material on which those
30
findings or opinions are based; and
31
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Part 10
Investigating and reporting by Inspector
Division 4
Section 215
No. , 2022
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165
(c) any recommendations that the Inspector thinks fit to make;
1
and
2
(d) if recommendations are made--the reasons for those
3
recommendations.
4
Note:
See also section 219, which requires the Inspector to give certain
5
persons an opportunity to respond before including certain
6
information in the report. That section also requires additional
7
information to be included in a NACC investigation report in certain
8
circumstances.
9
(3) For the purposes of paragraph (2)(a), if:
10
(a) the NACC investigation report relates to a NACC corruption
11
investigation; and
12
(b) the Inspector forms the opinion that a person whose conduct
13
has been investigated has engaged in corrupt conduct of a
14
serious or systemic nature;
15
the Inspector must include a statement to that effect in the NACC
16
investigation report.
17
(4) To avoid doubt, for the purposes of paragraph (2)(a), if:
18
(a) the NACC investigation report relates to a NACC corruption
19
investigation; and
20
(b) the Inspector forms the opinion that a person whose conduct
21
has been investigated has not engaged in corrupt conduct;
22
the Inspector must set out that opinion in the report.
23
(5) If:
24
(a) a person gives evidence at a hearing in relation to a NACC
25
corruption investigation or a NACC complaint investigation;
26
and
27
(b) the person is not the subject of any findings or opinions in
28
relation to the investigation;
29
the Inspector may include a statement to that effect in the NACC
30
investigation report if the Inspector is satisfied that it is appropriate
31
and practicable to do so to avoid damage to the person's reputation.
32
Recommendations that may be made
33
(6) Without limiting paragraph (2)(c), the Inspector may make one or
34
more of the following recommendations:
35
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Oversight of the National Anti-Corruption Commission
Division 4
Investigating and reporting by Inspector
Section 216
166
National Anti-Corruption Commission Bill 2022
No. , 2022
(a) taking action in relation to a person, in accordance with
1
relevant procedures, with a view to improving their
2
performance;
3
(b) terminating the employment of a person in accordance with
4
relevant procedures;
5
(c) taking action to rectify or mitigate the effects of the conduct
6
of a person;
7
(d) adopting measures to remedy deficiencies in the policy,
8
procedures or practices that facilitated:
9
(i) the employment or engagement of an unsuitable person;
10
or
11
(ii) a person engaging in corrupt conduct; or
12
(iii) the failure to detect corrupt conduct engaged in by a
13
person.
14
Section does not limit what may be included in a NACC
15
investigation report
16
(7) This section does not limit what may be included in a NACC
17
investigation report.
18
216 Effect of findings or opinions about corrupt conduct
19
(1) This section applies if a NACC investigation report includes a
20
finding or opinion that a person has engaged, is engaging or will
21
engage in corrupt conduct or conduct that could constitute or
22
involve corrupt conduct.
23
(2) The finding or opinion does not constitute a finding or opinion that
24
the person is guilty of or has committed, is committing or will
25
commit an offence.
26
217 Excluding certain information from NACC investigation report
27
(1) The Inspector must exclude the following from a NACC
28
investigation report:
29
(a) section 235 certified information;
30
(b) information that the Inspector is satisfied is sensitive
31
information.
32
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Part 10
Investigating and reporting by Inspector
Division 4
Section 218
No. , 2022
National Anti-Corruption Commission Bill 2022
167
Note:
This information must be included in a protected information report
1
(see section 218).
2
(2) Before including information in a NACC investigation report, the
3
Inspector must consult with the following about whether the
4
information is sensitive information:
5
(a) the head of each Commonwealth agency or State or Territory
6
government entity to which the information relates;
7
(b) if the information relates to the NACC or a staff member of
8
the NACC--the Commissioner.
9
218 Protected information report
10
If the Inspector excludes information from a NACC investigation
11
report under section 217, the Inspector must prepare another report
12
(a
protected information report
) that sets out:
13
(a) the information; and
14
(b) the reasons for excluding the information from the NACC
15
investigation report.
16
Note:
If a protected information report is given to a person, the person must
17
not disclose the report, or information contained in the report, to the
18
public or a section of the public: see section 234.
19
219 Opportunity to respond must be given before including certain
20
information in NACC investigation report
21
(1) Before including in a NACC investigation report an opinion,
22
finding or recommendation that is critical (either expressly or
23
impliedly) of a Commonwealth agency, a State or Territory
24
government entity, the NACC or any other person, the Inspector
25
must give the head of the agency, the head of the entity, the
26
Commissioner or the other person concerned:
27
(a) a statement setting out the opinion, finding or
28
recommendation; and
29
(b) a reasonable opportunity to respond to the opinion, finding or
30
recommendation.
31
(2) The response may be given by:
32
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Investigating and reporting by Inspector
Section 220
168
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No. , 2022
(a) the head of the Commonwealth agency or of the State or
1
Territory government entity concerned, or a person
2
authorised by the head; or
3
(b) in relation to the NACC--the Commissioner, or a person
4
authorised by the Commissioner; or
5
(c) in relation to any other person concerned--the other person
6
concerned, or, with approval, a person representing the other
7
person.
8
(3) If:
9
(a) the opinion or finding is that a person has engaged in corrupt
10
conduct; and
11
(b) the person provides a response to the finding or opinion;
12
the Inspector must include in the NACC investigation report a
13
summary of the substance of the response if the person requests the
14
Inspector to do so.
15
(4) Subsection (3) is subject to section 217.
16
(5) However, the Inspector must not include in the NACC
17
investigation report any information in a response given under this
18
section that would identify any person who, in the opinion of the
19
Inspector, has not engaged in corrupt conduct unless the Inspector:
20
(a) is satisfied that it is necessary to do so in the public interest;
21
and
22
(b) is satisfied that doing so will not cause unreasonable damage
23
to the reputation, safety or wellbeing of the person; and
24
(c) includes in the report a statement that, in the opinion of the
25
Inspector, the person has not engaged in corrupt conduct.
26
220 Inspector to give copies of reports to certain persons
27
(1) The Inspector must give the Commissioner, the CEO and the
28
person referred to in subsection (2):
29
(a) the NACC investigation report; and
30
(b) if a protected information report is prepared in relation to the
31
investigation--the protected information report.
32
(2) For the purposes of subsection (1), the person is:
33
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Part 10
Investigating and reporting by Inspector
Division 4
Section 220
No. , 2022
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169
(a) if the NACC investigation report relates to a NACC
1
corruption investigation that concerned the conduct of the
2
Minister--the Prime Minister; or
3
(b) otherwise--the Minister.
4
(3) Subject to subsection (5), the Inspector:
5
(a) must give a copy of a NACC investigation report relating to a
6
NACC corruption investigation; and
7
(b) may give a copy of a protected information report relating to
8
the NACC corruption investigation;
9
to the following persons:
10
(c) for a NACC corruption investigation concerning the conduct
11
of a current Minister--the Prime Minister;
12
(d) for a NACC corruption investigation concerning the conduct
13
of a staff member of a Commonwealth agency--the head of
14
the agency and the person mentioned in subsection (4);
15
(e) for a NACC corruption investigation concerning the conduct
16
of the head of a Commonwealth agency:
17
(i) the person mentioned in subsection (4); and
18
(ii) if the head of the Commonwealth agency is an Agency
19
Head (within the meaning of the
Public Service Act
20
1999
)--the Australian Public Service Commissioner;
21
(f) for a NACC corruption investigation concerning the conduct
22
of a senator--the President of the Senate;
23
(g) for a NACC corruption investigation concerning the conduct
24
of a member of the House of Representatives--the Speaker
25
of the House of Representatives.
26
Note:
A parliamentary office is a type of Commonwealth agency and the
27
parliamentarian is the head of the agency (see subsection 11(1)).
28
(4) For the purposes of paragraphs (3)(d) and (e), the person is:
29
(a) if the Commonwealth agency is a Department of the
30
Parliament established under the
Parliamentary Service Act
31
1999
:
32
(i) for the Department of the Senate--the President of the
33
Senate; or
34
(ii) for the Department of the House of Representatives--
35
the Speaker of the House of Representatives; or
36
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Section 221
170
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No. , 2022
(iii) otherwise--both the President of the Senate and the
1
Speaker of the House of Representatives; or
2
(b) if the Commonwealth agency is established or continued in
3
existence by an Act and paragraph (a) does not apply--the
4
Minister administering that Act; or
5
(c) if the Commonwealth agency is a Commonwealth entity and
6
neither paragraph (a) nor paragraph (b) applies--the Minister
7
having general responsibility for the activities of the entity.
8
(5) The Inspector must exclude the following from a protected
9
information report given under paragraph (3)(b):
10
(a) section 235 certified information, if the disclosure of the
11
information would contravene the certificate issued under
12
section 235;
13
(b) information that the Inspector is satisfied:
14
(i) is sensitive information; and
15
(ii) is desirable in the circumstances to exclude from the
16
report.
17
(6) In deciding whether to exclude information from a protected
18
information report under paragraph (5)(b), the Inspector must seek
19
to achieve an appropriate balance between:
20
(a) the interest of a person mentioned in paragraphs (3)(c) to (g)
21
or subsection (4), to whom the report is to be given, in having
22
the information included in the report; and
23
(b) the prejudicial consequences that might result from including
24
the information in the report.
25
221 Tabling of NACC investigation report in Parliament
26
If:
27
(a) the Inspector gives the Commissioner a NACC investigation
28
report under subsection 220(1); and
29
(b) one or more public hearings were held in the course of the
30
investigation to which the NACC investigation report relates;
31
the Inspector must cause a copy of the report to be tabled in each
32
House of the Parliament within 15 sitting days of that House after
33
the Inspector gives the report.
34
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Part 10
Investigating and reporting by Inspector
Division 4
Section 222
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222 Publishing NACC investigation report in whole or in part
1
(1) The Inspector may publish the whole or a part of a NACC
2
investigation report if:
3
(a) the Inspector has given the Commissioner the NACC
4
investigation report under subsection 220(1); and
5
(b) the Inspector is satisfied that it is in the public interest to
6
publish the whole or the part of the report (as the case may
7
be).
8
(2) This section is subject to section 223.
9
223 Opportunity to respond must be given before publishing a
10
NACC investigation report containing critical opinions
11
etc.
12
(1) This section applies to a NACC investigation report that:
13
(a) has not been tabled in Parliament; and
14
(b) is published, in whole or in part, under section 222 more than
15
3 months after the report is given to the Commissioner under
16
subsection 220(1).
17
(2) The NACC investigation report must not include an opinion,
18
finding or recommendation that is critical (either expressly or
19
impliedly) of a Commonwealth agency, a State or Territory
20
government entity, the NACC or any other person, unless the
21
Inspector has given the head of the agency, the head of the entity,
22
the Commissioner or the other person concerned:
23
(a) a statement setting out the opinion, finding or
24
recommendation; and
25
(b) a reasonable opportunity to respond to:
26
(i) the opinion, finding or recommendation; and
27
(ii) the proposed publication of the opinion, finding or
28
recommendation.
29
(3) The response may be given by:
30
(a) the head of the Commonwealth agency or of the State or
31
Territory government entity concerned, or a person
32
authorised by the head; or
33
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Investigating and reporting by Inspector
Section 224
172
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(b) in relation to the NACC--the Commissioner, or a person
1
authorised by the Commissioner; or
2
(c) in relation to any other person concerned--the other person
3
concerned, or, with approval, a person representing the other
4
person.
5
224 Advising person who referred NACC corruption issue or made
6
complaint of outcome
7
(1) The Inspector may advise a person (or a representative nominated
8
by the person) of the outcome of:
9
(a) an investigation of a NACC corruption issue raised by the
10
person in a referral under section 202, 203 or 204; or
11
(b) if the person made the complaint in relation to which the
12
NACC complaint investigation was conducted--the NACC
13
complaint investigation.
14
(2) One way of advising the person (or the representative) is to give a
15
copy of all or part of the NACC investigation report prepared in
16
relation to the investigation.
17
(3) In advising the person of the outcome of the investigation, the
18
Inspector:
19
(a) must not disclose section 235 certified information to the
20
person if the disclosure of the information to the person
21
would contravene the certificate issued under section 235;
22
and
23
(b) must exclude information from the advice if the Inspector is
24
satisfied that:
25
(i) the information is sensitive information; and
26
(ii) it is desirable in the circumstances to exclude the
27
information from the advice.
28
(4) Before giving the person information about the outcome of the
29
investigation, the Commissioner must consult with the head of
30
each Commonwealth agency or State or Territory government
31
entity to which the information relates about whether the
32
information is sensitive information.
33
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Part 10
Investigating and reporting by Inspector
Division 4
Section 225
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173
(5) In deciding whether to exclude information from the advice under
1
paragraph (3)(b), the Inspector must seek to achieve an appropriate
2
balance between:
3
(a) the person's interest in having the information included in the
4
advice; and
5
(b) the prejudicial consequences that might result from including
6
the information in the advice.
7
225 Advising person whose conduct is investigated of outcome of the
8
investigation
9
(1) The Inspector must advise a person of the outcome of a NACC
10
corruption investigation if:
11
(a) the Inspector investigates a NACC corruption issue
12
concerning the conduct of the person; and
13
(b) the Inspector makes a finding that a person has engaged in
14
corrupt conduct.
15
(2) The Inspector may advise a person of the outcome of a NACC
16
corruption investigation if:
17
(a) the Inspector investigates a NACC corruption issue
18
concerning the conduct of the person; and
19
(b) the Inspector forms an opinion or makes a finding about the
20
NACC corruption issue (other than a finding that the person
21
has engaged in corrupt conduct).
22
(3) The Inspector may advise a person of the outcome of a NACC
23
complaint investigation if:
24
(a) the complaint concerned the conduct of the person; and
25
(b) the Inspector forms an opinion or makes a finding about the
26
complaint.
27
(4) Without limiting subsection (1), (2) or (3), the Inspector may
28
advise the person of the outcome of the investigation by giving the
29
person a copy of the whole or a part of the NACC investigation
30
report prepared in relation to the investigation.
31
(5) In advising the person under subsection (1), (2) or (3), the
32
Inspector:
33
Part 10
Oversight of the National Anti-Corruption Commission
Division 4
Investigating and reporting by Inspector
Section 226
174
National Anti-Corruption Commission Bill 2022
No. , 2022
(a) must not disclose section 235 certified information to the
1
person if the disclosure of the information to the person
2
would contravene the certificate issued under section 235;
3
and
4
(b) must exclude information from the advice if the Inspector is
5
satisfied that:
6
(i) the information is sensitive information; and
7
(ii) it is desirable in the circumstances to exclude the
8
information from the advice.
9
(6) Before giving the person information under subsection (1), (2) or
10
(3), the Inspector must consult with the head of each
11
Commonwealth agency or State or Territory government entity to
12
which the information relates about whether the information is
13
sensitive information.
14
(7) In deciding whether to exclude information from the advice under
15
paragraph (5)(b), the Inspector must seek to achieve an appropriate
16
balance between:
17
(a) the person's interest in having the information included in the
18
advice; and
19
(b) the prejudicial consequences that might result from including
20
the information in the advice.
21
226 Follow-up action on NACC investigation report
22
(1) The Inspector may request:
23
(a) the Commissioner; or
24
(b) the head of a Commonwealth agency to whom a NACC
25
investigation report is given;
26
to give the Inspector, within a specified time, details of any action
27
that the Commissioner or the head of the Commonwealth agency
28
has taken, or proposes to take, with respect to a recommendation
29
included in the NACC investigation report.
30
(2) The Commissioner or
the head of the Commonwealth agency must
31
comply with the request.
32
Oversight of the National Anti-Corruption Commission
Part 10
Investigating and reporting by Inspector
Division 4
Section 226
No. , 2022
National Anti-Corruption Commission Bill 2022
175
(3) If the Inspector is not satisfied with the response of the
1
Commissioner or the head of the Commonwealth agency to the
2
request, the Inspector may refer to the person mentioned in
3
subsection (4):
4
(a) the Inspector's recommendation and the reasons for that
5
recommendation; and
6
(b) the response of the Commissioner
or head of the agency to
7
the recommendation; and
8
(c) the Inspector's reasons for not being satisfied with that
9
response.
10
(4) For the purposes of subsection (3), the person is:
11
(a) if the response was made by the Commissioner--the
12
Minister; or
13
(b) if the response was made by the head of a Commonwealth
14
agency that is a parliamentary office:
15
(i) for a parliamentarian who is a senator--the President of
16
the Senate; or
17
(ii) for a parliamentarian who is a member of the House of
18
Representatives--the Speaker of the House of
19
Representatives; or
20
(c) if the response was made by the head of a Commonwealth
21
agency that is a Department of the Parliament established
22
under the
Parliamentary Service Act 1999
:
23
(i) for the Department of the Senate--the President of the
24
Senate; or
25
(ii) for the Department of the House of Representatives--
26
the Speaker of the House of Representatives; or
27
(iii) otherwise--both the President of the Senate and the
28
Speaker of the House of Representatives; or
29
(d) if the response was made by the head of a Commonwealth
30
agency that is established or continued in existence by an Act
31
and paragraph (c) does not apply--the Minister
32
administering that Act; or
33
(e) if the response was made by the head of a Commonwealth
34
agency that is a Commonwealth entity and neither
35
paragraph (c) nor paragraph (d) applies--the Minister having
36
general responsibility for the activities of the entity.
37
Part 10
Oversight of the National Anti-Corruption Commission
Division 4
Investigating and reporting by Inspector
Section 226
176
National Anti-Corruption Commission Bill 2022
No. , 2022
(5) If the Inspector refers material to a person under subsection (3), the
1
Inspector may also send a copy of that material to:
2
(a) the President of the Senate for presentation to the Senate; and
3
(b) the Speaker of the House of Representatives for presentation
4
to the House of Representatives.
5
(6) The Inspector must exclude the following from the copy of the
6
material sent under subsection (5):
7
(a) section 235 certified information;
8
(b) information that the Inspector is satisfied is sensitive
9
information.
10
(7) Before sending a copy of material to a person under subsection (5),
11
the Inspector must consult with the following about whether the
12
material contains sensitive information:
13
(a) the head of each Commonwealth agency or State or Territory
14
government entity to which the material relates;
15
(b) if the material relates to the NACC or a staff member of the
16
NACC--the Commissioner.
17
Confidentiality, consultation and information sharing
Part 11
Confidentiality requirements
Division 1
Section 227
No. , 2022
National Anti-Corruption Commission Bill 2022
177
Part 11--Confidentiality, consultation and
1
information sharing
2
Division 1--Confidentiality requirements
3
227 Key concepts
4
Authorised disclosers
5
(1) Each of the following is an
authorised discloser
:
6
(a) the Commissioner;
7
(b) the Inspector.
8
Entrusted persons
9
(2) A person is an
entrusted person
if the person is:
10
(a) a staff member of the NACC; or
11
(b) the Inspector; or
12
(c) a person assisting the Inspector (see section 195).
13
Sensitive information
14
(3)
Sensitive information
is information the disclosure of which:
15
(a) could prejudice the security, defence or international
16
relations of Australia; or
17
(b) would prejudice relations between:
18
(i) the Commonwealth Government and the Government of
19
a State or Territory; or
20
(ii) the Government of a State or Territory and the
21
Government of another State or Territory; or
22
(c) would involve disclosing:
23
(i) deliberations or decisions of the Cabinet, or of any
24
committee of the Cabinet, of the Commonwealth or of a
25
State; or
26
Part 11
Confidentiality, consultation and information sharing
Division 1
Confidentiality requirements
Section 227
178
National Anti-Corruption Commission Bill 2022
No. , 2022
(ii) deliberations or advice of the Federal Executive Council
1
or the Executive Council of a State or the Northern
2
Territory; or
3
(iii) deliberations or decisions of the Australian Capital
4
Territory Executive or of a committee of that Executive;
5
or
6
(d) could reveal, or enable a person to ascertain, the existence or
7
identity of a confidential source of information in relation to:
8
(i) the enforcement of the criminal law of the
9
Commonwealth, a State or Territory or a foreign
10
country; or
11
(ii) a NACC Act process; or
12
(e) could reveal, or enable a person to ascertain, the identity of a
13
person who is, or has been, a staff member of:
14
(i) the Australian Security Intelligence Organisation; or
15
(ii) the Australian Secret Intelligence Service; or
16
(f) could reveal, or enable a person to ascertain, the identity of a
17
person who is, or has been, an agent of:
18
(i) the Australian Security Intelligence Organisation; or
19
(ii) the Australian Secret Intelligence Service; or
20
(iii) the Australian Geospatial-Intelligence Organisation; or
21
(iv) the Australian Signals Directorate; or
22
(g) could reveal information:
23
(i) about the capabilities of, or information sources or
24
operational activities or methods available to, a law
25
enforcement agency, intelligence agency or the
26
Australian Defence Force; or
27
(ii) about particular operations that have been, are being or
28
are proposed to be undertaken by a law enforcement
29
agency, intelligence agency or the Australian Defence
30
Force, or about proceedings relating to those operations;
31
or
32
(iii) provided by, or on behalf of, the government of a
33
foreign country, an authority of the government of a
34
foreign country or an international organisation, where
35
that government or organisation does not consent to the
36
public disclosure of the information; or
37
Confidentiality, consultation and information sharing
Part 11
Confidentiality requirements
Division 1
Section 228
No. , 2022
National Anti-Corruption Commission Bill 2022
179
(h) would prejudice the proper performance of the functions of
1
the IGIS; or
2
(i) could endanger a person's life or physical safety; or
3
(j) could prejudice the protection of public safety; or
4
(k) would prejudice the fair trial of any person or the impartial
5
adjudication of a matter; or
6
(l) would prejudice the proper enforcement of the law (including
7
through corruption investigations, NACC corruption
8
investigations or NACC complaint investigations); or
9
(m) would involve disclosing information whose disclosure is
10
prohibited (absolutely or subject to qualifications) by or
11
under another law of the Commonwealth; or
12
(n) would involve unreasonably disclosing a person's personal
13
affairs; or
14
(o) would involve unreasonably disclosing confidential
15
commercial information.
16
228 Confidentiality requirements for entrusted persons
17
(1) A person who is, or has been, an entrusted person commits an
18
offence if:
19
(a) the person (whether directly or indirectly and whether while
20
or after ceasing to be an entrusted person):
21
(i) makes a record of any information; or
22
(ii) discloses any information; and
23
(b) the person obtained the information:
24
(i) because of the person being an entrusted person; or
25
(ii) in the course of carrying out the person's duties as an
26
entrusted person.
27
Penalty: Imprisonment for 2 years.
28
(2) Subsection (1) does not apply if the making of the record, or the
29
disclosing of the information, is authorised by section 229 or 230.
30
Part 11
Confidentiality, consultation and information sharing
Division 1
Confidentiality requirements
Section 229
180
National Anti-Corruption Commission Bill 2022
No. , 2022
229 Authorisations to record or disclose information
1
Purposes connected with functions, powers and duties of
2
Commissioner or Inspector
3
(1) A person may make a record of information, or disclose
4
information, if:
5
(a) the person obtained the information:
6
(i) because of the person being an entrusted person; or
7
(ii) in the course of carrying out the person's duties as an
8
entrusted person; and
9
(b) the person makes the record, or discloses the information, for
10
purposes connected with the exercise of the powers, or the
11
performance of the functions or duties, of the Commissioner
12
or the Inspector under this Act; and
13
(c) for a disclosure:
14
(i) the disclosure is not a disclosure to the public, or a
15
section of the public, of the whole or part of a protected
16
information report, or information contained in such a
17
report; and
18
(ii) the disclosure is not prevented by subsection (7), (9) or
19
(10).
20
Note:
A defendant bears an evidential burden in relation to the matter in
21
subsection (1): see subsection 13.3(3) of the
Criminal Code
.
22
Disclosure to a Commonwealth agency or a State or Territory
23
government entity
24
(2) An authorised discloser may disclose information to the head of a
25
Commonwealth agency, or of a State or Territory government
26
entity, if:
27
(a) the authorised discloser is satisfied that, having regard to the
28
functions of the person or entity concerned, it is appropriate
29
to do so; and
30
(b) the disclosure is not prevented by subsection (7), (9) or (10).
31
Note:
A defendant bears an evidential burden in relation to the matter in
32
subsection (2): see subsection 13.3(3) of the
Criminal Code
.
33
Confidentiality, consultation and information sharing
Part 11
Confidentiality requirements
Division 1
Section 229
No. , 2022
National Anti-Corruption Commission Bill 2022
181
Disclosure between the Commissioner and the Inspector
1
(3) The Commissioner and the Inspector may disclose information to
2
each other if:
3
(a) the Commissioner or Inspector (as the case requires) is
4
satisfied that it is appropriate to do so; and
5
(b) the disclosure is not prevented by subsection (9) or (10).
6
Note:
A defendant bears an evidential burden in relation to the matter in
7
subsection (3): see subsection 13.3(3) of the
Criminal Code
.
8
Disclosure required by another Commonwealth law
9
(4) A person may disclose information if:
10
(a) the disclosure is required under another law of the
11
Commonwealth; and
12
(b) the disclosure is not prevented by subsection (9).
13
Note:
A defendant bears an evidential burden in relation to the matter in
14
subsection (4): see subsection 13.3(3) of the
Criminal Code
.
15
Disclosure to protect life or physical safety
16
(5) An authorised discloser may disclose information to a particular
17
person if the authorised discloser is satisfied that it is necessary to
18
do so in order to protect that or another person's life or physical
19
safety.
20
Note:
A defendant bears an evidential burden in relation to the matter in
21
subsection (5): see subsection 13.3(3) of the
Criminal Code
.
22
Disclosure of publicly available information
23
(6) A person may make a record of information, or disclose
24
information, if the information has already been lawfully made
25
available to the public.
26
Restrictions on authorisations to disclose
27
(7) For the purposes of subsections (1) and (2), this subsection
28
prevents a disclosure if the disclosure would contravene a
29
certificate issued under section 235, unless the disclosure is made
30
to an IGIS official.
31
Part 11
Confidentiality, consultation and information sharing
Division 1
Confidentiality requirements
Section 230
182
National Anti-Corruption Commission Bill 2022
No. , 2022
(8) A person must notify the Attorney-General if the person intends to
1
make a disclosure to an IGIS official, under subsection (1), (2) or
2
(4), that would contravene a certificate issued under section 235.
3
(9) For the purposes of subsections (1) to (4), this subsection prevents
4
a disclosure if the disclosure would be inconsistent with an
5
arrangement entered into under section 239.
6
(10) For the purposes of subsections (1) to (3), this subsection prevents
7
a disclosure of investigation material or derivative material unless
8
the disclosure:
9
(a) is in accordance with any direction in effect under subsection
10
100(1) (directions about use or disclosure of investigation
11
material); and
12
(b) complies with Subdivision B of Division 4 of Part 7 (use and
13
disclosure of investigation material).
14
Relationship to other provisions
15
(11) Except as provided by subsections (7), (9) and (10), this section
16
has effect despite any other provision of this Act.
17
230 Disclosure by authorised discloser in public interest
18
(1) If the Commissioner is satisfied that it is in the public interest to do
19
so, the Commissioner may disclose information to the public, or a
20
section of the public, about:
21
(a) the performance of the Commissioner's functions; or
22
(b) the exercise of the Commissioner's powers; or
23
(c) a corruption investigation conducted by the Commissioner
24
(whether alone or jointly with a Commonwealth agency or a
25
State or Territory government entity); or
26
(d) a public inquiry conducted by the Commissioner.
27
(2) If the Inspector is satisfied that it is in the public interest to do so,
28
the Inspector may disclose information to the public, or a section of
29
the public, about:
30
(a) the performance of the Inspector's functions; or
31
(b) the exercise of the Inspector's powers; or
32
Confidentiality, consultation and information sharing
Part 11
Confidentiality requirements
Division 1
Section 230
No. , 2022
National Anti-Corruption Commission Bill 2022
183
(c) a NACC corruption investigation conducted by the Inspector
1
(whether alone or jointly with a Commonwealth agency, the
2
NACC or a State or Territory government entity); or
3
(d) a NACC complaint investigation conducted by the Inspector.
4
(3) Subsections (1) and (2) have effect:
5
(a) subject to the following:
6
(i) subsections (4) to (6);
7
(ii) any direction in effect under section 100 (directions
8
about use or disclosure of investigation material);
9
(iii) Subdivision B of Division 4 of Part 7 (use and
10
disclosure of investigation material);
11
(iv) section 231 (opportunity to respond must be given
12
before disclosure of critical opinions, findings and
13
recommendations);
14
(v) any arrangement entered into under section 239; and
15
(b) despite any other provision of this Act.
16
(4) An authorised discloser must not disclose under subsection (1) or
17
(2) information that includes an opinion or finding about whether a
18
particular person engaged in corrupt conduct, unless the
19
information is contained in a report prepared under Part 8
20
(reporting on corruption investigations) or Subdivision B of
21
Division 4 of Part 10 (reporting on NACC corruption
22
investigations and NACC complaint investigations).
23
(5) An authorised discloser must not disclose the following under
24
subsection (1) or (2):
25
(a) section 235 certified information;
26
(b) information that the authorised discloser is satisfied is
27
sensitive information.
28
(6) Before disclosing information under subsection (1) or (2), the
29
authorised discloser must consult with the head of each
30
Commonwealth agency or State or Territory government entity to
31
which the information relates about whether the information is
32
sensitive information.
33
Part 11
Confidentiality, consultation and information sharing
Division 1
Confidentiality requirements
Section 231
184
National Anti-Corruption Commission Bill 2022
No. , 2022
231 Opportunity to respond must be given before disclosure of
1
critical opinions, findings and recommendations
2
(1) Information disclosed under section 230 must not include an
3
opinion, finding or recommendation that is critical (either
4
expressly or impliedly) of a Commonwealth agency, a State or
5
Territory government entity, the NACC or any other person unless
6
the head of the agency, the head of the entity, the Commissioner or
7
the other person concerned has been given:
8
(a) a statement setting out the opinion, finding or
9
recommendation; and
10
(b) a reasonable opportunity to respond to:
11
(i) the opinion, finding or recommendation; and
12
(ii) the proposed disclosure of the opinion, finding or
13
recommendation.
14
(2) Subsection (1) is taken to be satisfied if the head of the agency, the
15
head of the entity, the Commissioner or the other person concerned
16
has been given the opportunity to respond to the opinion, finding or
17
recommendation under section 153 (about including certain
18
information in investigation reports).
19
(3) The response may be given by:
20
(a) the head of the Commonwealth agency or of the State or
21
Territory government entity concerned, or a person
22
authorised by the head; or
23
(b) in relation to the NACC--the Commissioner, or a person
24
authorised by the Commissioner; or
25
(c) in relation to any other person concerned--the other person
26
concerned, or, with approval, a person representing the other
27
person concerned.
28
232 Entrusted persons generally not compellable in proceedings
29
(1) This section applies to:
30
(a) proceedings before a court (whether exercising federal
31
jurisdiction or not); and
32
(b) proceedings before any tribunal, authority or person having
33
power to require the production of documents or the
34
Confidentiality, consultation and information sharing
Part 11
Confidentiality requirements
Division 1
Section 232
No. , 2022
National Anti-Corruption Commission Bill 2022
185
answering of questions, other than a Commonwealth integrity
1
agency or a member of a Royal Commission.
2
(2) A person who is, or has been, an entrusted person is not
3
compellable in any proceedings to which this section applies:
4
(a) to disclose any information that:
5
(i) the person obtained because of the person being an
6
entrusted person, or in the course of carrying out the
7
person's duties as an entrusted person; and
8
(ii) was disclosed or collected under the provisions of, or
9
for the purposes of, this Act; or
10
(b) to produce any document that:
11
(i) has come into the person's custody or control because
12
of the person being an entrusted person, or in the course
13
of carrying out the person's duties as an entrusted
14
person; and
15
(ii) was produced under the provisions of, or for the
16
purposes of, this Act.
17
(3) Subsection (1) does not apply to a proceeding if:
18
(a) any of the following persons is a party to the proceeding in
19
the person's official capacity:
20
(i) a NACC Commissioner;
21
(ii) a delegate of the Commissioner;
22
(iii) a person appointed or authorised by the Commissioner
23
to exercise a power or perform a function under this
24
Act;
25
(iv) the Inspector;
26
(v) the CEO; or
27
(b) the proceeding is brought for the purposes of carrying into
28
effect a provision of this Act; or
29
(c) the proceeding is a criminal proceeding, civil penalty
30
proceeding or confiscation proceeding brought as a result of:
31
(i) a NACC Act process; or
32
(ii) an investigation of a corruption issue that the
33
Commissioner oversees; or
34
Part 11
Confidentiality, consultation and information sharing
Division 1
Confidentiality requirements
Section 233
186
National Anti-Corruption Commission Bill 2022
No. , 2022
(iii) a referral of a corruption issue to a Commonwealth
1
agency or a State or Territory government entity under
2
paragraph 41(1)(d).
3
(4) For the purposes of this section,
produce
includes permit access to,
4
and
production
has a corresponding meaning.
5
(5) To avoid doubt, this section does not limit:
6
(a) section 103 (making investigation material available to
7
courts); or
8
(b) section 106 (court's powers to order disclosure and to ensure
9
a fair trial).
10
233 Confidentiality requirements for persons who receive
11
information about investigations and inquiries
12
(1) This section applies if:
13
(a) an entrusted person discloses information to another person
14
(the
recipient
) who is not an entrusted person; and
15
(b) the information relates to:
16
(i) a preliminary investigation conducted by the
17
Commissioner in performing the Commissioner's
18
function mentioned in paragraph 17(b); or
19
(ii) a preliminary investigation undertaken by the Inspector
20
in performing the Inspector's function mentioned in
21
paragraph 184(1)(b); or
22
(iii) a NACC Act process; and
23
(c) the information has not been lawfully made available to the
24
public.
25
(2) An authorised discloser may, by written notice given to the
26
recipient, impose such conditions on:
27
(a) the making of a record of the information by the recipient or
28
other persons; and
29
(b) the disclosure of the information by the recipient or other
30
persons;
31
as the authorised discloser considers appropriate to do any or all of
32
the following:
33
Confidentiality, consultation and information sharing
Part 11
Confidentiality requirements
Division 1
Section 233
No. , 2022
National Anti-Corruption Commission Bill 2022
187
(c) prevent prejudice to the preliminary investigation or NACC
1
Act process, or any action taken as a result of the
2
investigation or process;
3
(d) prevent further disclosure of information contained in a
4
protected information report;
5
(e) protect the identity of:
6
(i) any person of interest to the preliminary investigation or
7
NACC Act process; and
8
(ii) any person who has given, or who the authorised
9
discloser reasonably believes may give, information to
10
the authorised discloser in connection with the
11
preliminary investigation or NACC Act process
12
(including by giving evidence at a hearing).
13
Note:
For variation or revocation of a notice under this subsection, see
14
subsection 33(3) of the
Acts Interpretation Act 1901
.
15
(3) A person commits an offence if:
16
(a) the person engages in conduct; and
17
(b) the person's conduct breaches a condition under
18
subsection (2).
19
Penalty: Imprisonment for 2 years.
20
Part 11
Confidentiality, consultation and information sharing
Division 2
Protected information reports
Section 234
188
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 2--Protected information reports
1
234 Public disclosure of protected information reports prohibited
2
(1) A person commits an offence if:
3
(a) the person discloses:
4
(i) the whole or part of a report; or
5
(ii) information contained in a report; and
6
(b) the report is, or the information is contained in, a protected
7
information report; and
8
(c) the disclosure is to the public, or a section of the public.
9
Penalty: Imprisonment for 2 years.
10
(2) Subsection (1) does not apply in relation to a disclosure authorised
11
under subsection 229(4) (disclosure required by another
12
Commonwealth law) or section 230 (disclosure by authorised
13
discloser in public interest).
14
Note:
A defendant bears an evidential burden in relation to the matter in
15
subsection (2): see subsection 13.3(3) of the
Criminal Code
.
16
Confidentiality, consultation and information sharing
Part 11
National security and related matters
Division 3
Section 235
No. , 2022
National Anti-Corruption Commission Bill 2022
189
Division 3--National security and related matters
1
Subdivision A--Attorney-General's certificates about release of
2
information
3
235 Attorney-General's certificate in relation to particular
4
information
5
(1) The Attorney-General may, in writing, certify that any of the
6
following disclosures would be contrary to the public interest on
7
one or more of the grounds set out in subsection (3):
8
(a) disclosure of information that is about a matter specified in
9
the certificate;
10
(b) disclosure of the contents of a document specified in the
11
certificate;
12
(c) the giving of information, or the production of documents, to
13
the Committee in relation to a matter specified in the
14
certificate.
15
(2) The Attorney-General must be satisfied on reasonable grounds that
16
the certificate is appropriate and necessary to protect the public
17
interest.
18
(3) The grounds are that the disclosure would:
19
(a) prejudice the security, defence or international relations of
20
Australia; or
21
(b) involve the disclosure of communications between a Minister
22
and a Minister of a State or Territory, or between a Minister
23
of a State or Territory and a Minister of another State or
24
Territory, and would prejudice:
25
(i) relations between the Commonwealth Government and
26
the Government of a State or Territory; or
27
(ii) relations between the Government of a State or
28
Territory and the Government of another State or
29
Territory; or
30
(c) involve the disclosure of deliberations or decisions of the
31
Cabinet or of any committee of the Cabinet; or
32
Part 11
Confidentiality, consultation and information sharing
Division 3
National security and related matters
Section 235
190
National Anti-Corruption Commission Bill 2022
No. , 2022
(d) reveal, or enable a person to ascertain, the existence or
1
identity of a confidential source of information in relation to:
2
(i) the enforcement of the criminal law of the
3
Commonwealth, a State or Territory or a foreign
4
country; or
5
(ii) a corruption investigation; or
6
(iii) a NACC corruption investigation; or
7
(iv) a NACC complaint investigation; or
8
(v) a public inquiry; or
9
(e) reveal, or enable a person to ascertain, the identity of a
10
person who is, or has been, a staff member of:
11
(i) the Australian Security Intelligence Organisation; or
12
(ii) the Australian Secret Intelligence Service; or
13
(f) reveal, or enable a person to ascertain, the identity of a
14
person who is, or has been, an agent of:
15
(i) the Australian Security Intelligence Organisation; or
16
(ii) the Australian Secret Intelligence Service; or
17
(iii) the Australian Geospatial-Intelligence Organisation; or
18
(iv) the Australian Signals Directorate; or
19
(g) reveal information:
20
(i) about the capabilities of, or information sources or
21
operational activities or methods available to, a law
22
enforcement agency, intelligence agency or the
23
Australian Defence Force; or
24
(ii) about particular operations that have been, are being or
25
are proposed to be undertaken by a law enforcement
26
agency, intelligence agency or the Australian Defence
27
Force, or about proceedings relating to those operations;
28
or
29
(iii) provided by, or on behalf of, the government of a
30
foreign country, an authority of the government of a
31
foreign country or an international organisation, where
32
that government or organisation does not consent to the
33
public disclosure of the information; or
34
(h) prejudice the proper performance of the functions of the
35
IGIS; or
36
(i) endanger a person's life or physical safety; or
37
Confidentiality, consultation and information sharing
Part 11
National security and related matters
Division 3
Section 235
No. , 2022
National Anti-Corruption Commission Bill 2022
191
(j) prejudice the protection of public safety; or
1
(k) prejudice the fair trial of any person or the impartial
2
adjudication of a matter; or
3
(l) prejudice the proper enforcement of the law (including
4
through corruption investigations, NACC corruption
5
investigations or NACC complaint investigations).
6
(4) To avoid doubt, causing no more than embarrassment or prejudice
7
to a person's reputation is not a ground covered by subsection (3).
8
(5) The certificate must specify the kind of disclosure that would be
9
contrary to the public interest.
10
(6) Without limiting subsection (5), the kind of disclosure that may be
11
specified in the certificate includes:
12
(a) disclosure generally; or
13
(b) disclosure to a specified person or group of persons; or
14
(c) disclosure otherwise than to a specified person or group of
15
persons.
16
(7) Without limiting subsection (1), a certificate under that subsection
17
may provide that the disclosure of information about the existence
18
or non-existence of:
19
(a) information about a specified matter; or
20
(b) a document or thing;
21
would be contrary to the public interest because it would:
22
(c) prejudice the security, defence or international relations of
23
Australia; or
24
(d) prejudice the proper performance of the functions of the
25
IGIS.
26
(8) The Attorney-General must give a copy of the certificate to:
27
(a) the Commissioner; and
28
(b) the Inspector; and
29
(c) the following:
30
(i) if the information or the document referred to in
31
subsection (1) is in the possession of a Commonwealth
32
agency--the head of the agency;
33
Part 11
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National security and related matters
Section 236
192
National Anti-Corruption Commission Bill 2022
No. , 2022
(ii) if the information or the document referred to in
1
subsection (1) is in the possession of a person--the
2
person.
3
(9) A disclosure
contravenes
a certificate issued under this section if
4
the disclosure would be contrary to the public interest according to
5
the terms of the certificate.
6
(10) A certificate made under subsection (1) is not a legislative
7
instrument.
8
236 Attorney-General's certificate in relation to international
9
relations
10
Effect of international relations certificate
11
(1) Despite any other provision of this Act, a person must not disclose
12
information, or the contents of a document, under this Act if doing
13
so would contravene an international relations certificate (see
14
subsection (2)).
15
Issue of international relations certificate
16
(2) The Attorney-General may, in writing, issue a certificate (an
17
international relations certificate
) certifying that disclosure of any
18
of the following to the Commissioner or Inspector (as specified in
19
the certificate) would be contrary to the public interest on the
20
ground set out in subsection (4):
21
(a) information about a matter specified in the certificate;
22
(b) the contents of a document specified in the certificate.
23
(3) The Attorney-General must be satisfied on reasonable grounds that
24
the certificate is appropriate and necessary to protect the public
25
interest.
26
(4) The ground is that the disclosure would harm or prejudice
27
Australia's international relations in relation to information that
28
was communicated in confidence, under an international
29
agreement:
30
Confidentiality, consultation and information sharing
Part 11
National security and related matters
Division 3
Section 236
No. , 2022
National Anti-Corruption Commission Bill 2022
193
(a) by, or on behalf of, the government of a foreign country, an
1
authority of the government of a foreign country or an
2
international organisation; and
3
(b) to the Government of the Commonwealth, to an authority of
4
the Commonwealth, or to a person receiving the
5
communication on behalf of the Commonwealth or an
6
authority of the Commonwealth.
7
(5) To avoid doubt, causing no more than embarrassment or prejudice
8
to a person's reputation is not a ground covered by subsection (4).
9
(6) Without limiting subsection (2), an international relations
10
certificate may provide that the disclosure of information about the
11
existence or non-existence of:
12
(a) information about a specified matter; or
13
(b) a document or thing;
14
would be contrary to the public interest on the ground set out in
15
subsection (4).
16
Copies of international relations certificate
17
(7) The Attorney-General must give a copy of the certificate to:
18
(a) the Commissioner; and
19
(b) the Inspector; and
20
(c) the following:
21
(i) if the information or the document referred to in
22
subsection (2) is in the possession of a Commonwealth
23
agency--the head of the agency;
24
(ii) if the information or the document referred to in
25
subsection (2) is in the possession of a person--the
26
person.
27
Definitions
28
(8) A disclosure
contravenes
an international relations certificate if the
29
disclosure would be contrary to the public interest according to the
30
terms of the certificate.
31
Part 11
Confidentiality, consultation and information sharing
Division 3
National security and related matters
Section 237
194
National Anti-Corruption Commission Bill 2022
No. , 2022
Certificate not a legislative instrument
1
(9) A certificate made under subsection (2) is not a legislative
2
instrument.
3
Subdivision B--Arrangements relating to intelligence agencies
4
and the IGIS
5
237 Person investigating or inquiring must consult--security
6
matters
7
(1) This section applies if:
8
(a) the Commissioner becomes aware that a corruption issue or a
9
public inquiry relates in any way to a security matter; or
10
(b) the Inspector becomes aware that a NACC corruption issue
11
relates in any way to a security matter.
12
(2) The person who becomes so aware must consult with the head of
13
the Australian Security Intelligence Organisation.
14
(3) However, if the issue or inquiry relates to that head, the person
15
must consult instead with the head of the Office of National
16
Intelligence.
17
(4) A
security matter
is:
18
(a) espionage; or
19
(b) sabotage; or
20
(c) politically motivated violence; or
21
(d) promotion of communal violence; or
22
(e) an attack on Australian's defence system; or
23
(f) an act of foreign interference; or
24
(g) a serious threat to Australia's territorial and border integrity.
25
238 Consultation before requiring information, documents or things
26
from IGIS officials
27
(1) This section applies if the Commissioner or the Inspector intends to
28
exercise a power under this Act to require an IGIS official to give
29
Confidentiality, consultation and information sharing
Part 11
National security and related matters
Division 3
Section 239
No. , 2022
National Anti-Corruption Commission Bill 2022
195
information or produce a document or thing, and the information,
1
document or thing:
2
(a) originated from, or was collected by, an intelligence agency;
3
or
4
(b) concerns the activities of an intelligence agency.
5
(2) The Commissioner or the Inspector must not require the IGIS
6
official to give the information or produce the document or thing
7
unless the Commissioner or the Inspector (as the case requires) has
8
consulted the head of the intelligence agency.
9
(3) In deciding whether to require the IGIS official to give the
10
information or produce the document or thing, the Commissioner
11
or the Inspector must take into account the views of the head of the
12
intelligence agency, but is not bound by them.
13
(4) However, the Commissioner or the Inspector need not consult the
14
head of the intelligence agency if doing so would be likely to
15
prejudice:
16
(a) a NACC Act process; or
17
(b) any action taken as a result of a NACC Act process.
18
239 Arrangements for dealing with intelligence information
19
Arrangements between Commissioner and head of intelligence
20
agency
21
(1) The Commissioner must take all reasonable steps to ensure that:
22
(a) at any time while the Commissioner or staff members of the
23
NACC are obtaining, storing, accessing, using or disclosing
24
intelligence information relating to an intelligence agency, an
25
arrangement is in force between the Commissioner and the
26
head of the intelligence agency in relation to such actions;
27
and
28
(b) any obtaining, storage, accessing, use or disclosure of
29
intelligence information relating to the agency by the
30
Commissioner or staff members of the NACC is done in
31
accordance with the arrangement.
32
Part 11
Confidentiality, consultation and information sharing
Division 3
National security and related matters
Section 239
196
National Anti-Corruption Commission Bill 2022
No. , 2022
(2) If, at a time, the Commissioner has taken all reasonable steps to
1
ensure that an arrangement as mentioned in subsection (1) is in
2
force with the head of an intelligence agency, the fact that an
3
arrangement is not in force does not prevent the Commissioner or a
4
staff member of the NACC from obtaining, storing, accessing,
5
using or disclosing intelligence information relating to the agency
6
at that time.
7
Arrangements between Inspector and head of intelligence agency
8
(3) The Inspector must take all reasonable steps to ensure that:
9
(a) at any time while the Inspector or persons assisting the
10
Inspector are obtaining, storing, accessing, using or
11
disclosing intelligence information relating to an intelligence
12
agency, an arrangement is in force between the Inspector and
13
the head of the intelligence agency in relation to such actions;
14
and
15
(b) any obtaining, storage, accessing, use or disclosure of
16
intelligence information relating to the agency by the
17
Inspector or persons assisting the Inspector is done in
18
accordance with the arrangement.
19
(4) If, at a time, the Inspector has taken all reasonable steps to ensure
20
that an arrangement as mentioned in subsection (3) is in force with
21
the head of an intelligence agency, the fact that an arrangement is
22
not in force does not prevent the Inspector or a person assisting the
23
Inspector from obtaining, storing, accessing, using or disclosing
24
intelligence information relating to the agency at that time.
25
Effect of arrangements
26
(5) An arrangement cannot prevent the exercise of the Commissioner
27
or Inspector's powers, or the performance of the Commissioner or
28
Inspector's functions, under this Act.
29
Intelligence information
30
(6)
Intelligence information
is any information that:
31
(a) was acquired or prepared by or on behalf of an intelligence
32
agency in connection with its functions; or
33
Confidentiality, consultation and information sharing
Part 11
National security and related matters
Division 3
Section 240
No. , 2022
National Anti-Corruption Commission Bill 2022
197
(b) relates to the performance by an intelligence agency of its
1
functions; or
2
(c) identifies a person as being, or having been, a staff member
3
(within the meaning of the
Intelligence Services Act 2001
) or
4
agent of the Australian Secret Intelligence Service or the
5
Australian Security Intelligence Organisation.
6
Subdivision C--Arrangements relating to foreign nationals
7
240 Person investigating or inquiring must consult--foreign
8
nationals
9
(1) This section applies if:
10
(a) the Commissioner becomes aware that a corruption issue or a
11
public inquiry relates in any way to:
12
(i) an official of a foreign country; or
13
(ii) conduct in a foreign country of a person who is not an
14
Australian citizen or a permanent resident of Australia;
15
or
16
(b) the Inspector becomes aware that a NACC corruption issue
17
relates in any way to such an official or such conduct.
18
(2) The person who becomes so aware must consult with the Secretary
19
of the Foreign Affairs Department.
20
(3) The
Foreign Affairs Department
is the Department administered
21
by the Minister administering the
Diplomatic Privileges and
22
Immunities Act 1967
.
23
(4) A person is a
permanent resident of Australia
if the person is a
24
permanent resident within the meaning of the
Australian
25
Citizenship Act 2007
.
26
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 1
Appointment of the NACC Commissioners
Section 241
198
National Anti-Corruption Commission Bill 2022
No. , 2022
Part 12--Administrative provisions for the
1
National Anti-Corruption Commission
2
Division 1--Appointment of the NACC Commissioners
3
241 Appointment of the Commissioner
4
Appointment by Governor-General
5
(1) The National Anti-Corruption Commissioner is to be appointed by
6
the Governor-General, by written instrument, on the
7
recommendation of the Minister.
8
(2) Before the Minister makes a recommendation to the
9
Governor-General:
10
(a) the Minister must have referred the proposed
11
recommendation to the Committee under section 178; and
12
(b) one of the following must have occurred:
13
(i) the Committee was taken to have approved the proposed
14
recommendation under subsection (5) of that section;
15
(ii) the Committee has notified the Minister that it has
16
decided to approve the proposed recommendation.
17
Qualification for appointment
18
(3) A person must not be appointed as the Commissioner unless the
19
person:
20
(a) is a retired judge of a federal court or a court of a State or
21
Territory; or
22
(b) is enrolled as a legal practitioner (however described) of a
23
federal court or the Supreme Court of a State or Territory and
24
has been so enrolled for at least 5 years.
25
Period of appointment
26
(4) The Commissioner holds office for the period specified in the
27
instrument of appointment. The period must not exceed 5 years.
28
Administrative provisions for the National Anti-Corruption Commission
Part 12
Appointment of the NACC Commissioners
Division 1
Section 242
No. , 2022
National Anti-Corruption Commission Bill 2022
199
(5) The Commissioner must not be reappointed.
1
Basis of appointment
2
(6) The Commissioner must be appointed on a full-time basis.
3
242 Appointment of the Deputy Commissioners
4
Appointment by Governor-General
5
(1) A National Anti-Corruption Deputy Commissioner is to be
6
appointed by the Governor-General, by written instrument, on the
7
recommendation of the Minister.
8
(2) Before the Minister makes a recommendation to the
9
Governor-General:
10
(a) the Minister must have referred the proposed
11
recommendation to the Committee under section 178; and
12
(b) one of the following must have occurred:
13
(i) the Committee was taken to have approved the proposed
14
recommendation under subsection (5) of that section;
15
(ii) the Committee has notified the Minister that it has
16
decided to approve the proposed recommendation.
17
Qualification for appointment
18
(3) A person must not be appointed as a Deputy Commissioner unless
19
the Minister is satisfied that the person has appropriate
20
qualifications, knowledge or experience.
21
(4) At least 2 Deputy Commissioners (or if there is only one Deputy
22
Commissioner--that Deputy Commissioner) must be:
23
(a) a retired judge of a federal court or a court of a State or
24
Territory; or
25
(b) enrolled as a legal practitioner (however described) of a
26
federal court or the Supreme Court of a State or Territory and
27
has been so enrolled for at least 5 years.
28
(5) A person must not be appointed as a Deputy Commissioner if the
29
person has previously been appointed as the Commissioner.
30
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 1
Appointment of the NACC Commissioners
Section 243
200
National Anti-Corruption Commission Bill 2022
No. , 2022
Period of appointment
1
(6) A Deputy Commissioner holds office for the period specified in the
2
instrument of appointment. The period must not exceed 5 years.
3
(7) A Deputy Commissioner may be reappointed on one occasion after
4
the Deputy Commissioner's first appointment.
5
Basis of appointment
6
(8) A Deputy Commissioner may be appointed on a full-time or
7
part-time basis.
8
243 Acting appointments
9
(1) The Minister may, by written instrument, appoint a person to act as
10
a NACC Commissioner:
11
(a) during a vacancy in the office of the NACC Commissioner
12
(whether or not an appointment has previously been made to
13
the office); or
14
(b) during any period, or during all periods, when the NACC
15
Commissioner:
16
(i) is absent from duty or from Australia; or
17
(ii) is, for any reason, unable to perform the duties of the
18
office.
19
Note:
For rules that apply to acting appointments, see sections 33AB and
20
33A of the
Acts Interpretation Act 1901
.
21
Qualification for acting appointment
22
(2) A person must not be appointed to act as a NACC Commissioner
23
unless:
24
(a) if the person is to act as the Commissioner--the person is
25
qualified, as mentioned under subsection 241(3), to be
26
appointed as the Commissioner; or
27
(b) if the person is to act as a Deputy Commissioner--the person
28
is qualified, as mentioned under subsection 242(3) or (4) (as
29
the case requires), to be appointed as a Deputy
30
Commissioner.
31
Administrative provisions for the National Anti-Corruption Commission
Part 12
Appointment of the NACC Commissioners
Division 1
Section 244
No. , 2022
National Anti-Corruption Commission Bill 2022
201
244 Remuneration
1
(1) A NACC Commissioner is to be paid the remuneration that is
2
determined by the Remuneration Tribunal. If no determination of
3
that remuneration by the Tribunal is in operation, the NACC
4
Commissioner is to be paid the remuneration that is prescribed by
5
the regulations.
6
(2) A NACC Commissioner is to be paid the allowances that are
7
prescribed by the regulations.
8
(3) This section has effect subject to the
Remuneration Tribunal Act
9
1973
.
10
245 Leave of absence
11
(1) If a NACC Commissioner is appointed on a full-time basis, the
12
NACC Commissioner has the recreation leave entitlements that are
13
determined by the Remuneration Tribunal.
14
(2) If a NACC Commissioner is appointed on a full-time basis, the
15
Minister may grant the NACC Commissioner leave of absence,
16
other than recreation leave, on the terms and conditions as to
17
remuneration or otherwise that the Minister determines.
18
(3) If a Deputy Commissioner is appointed on a part-time basis, the
19
Minister may grant leave of absence to the Deputy Commissioner
20
on the terms and conditions that the Minister determines.
21
246 Other paid work
22
A NACC Commissioner must not engage in paid work outside the
23
duties of the NACC Commissioner's office without the Minister's
24
approval.
25
247 Disclosure of interests
26
(1) A disclosure by a NACC Commissioner under section 29 of the
27
PGPA Act
(which deals with the duty to disclose interests) must be
28
made to the Minister.
29
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 1
Appointment of the NACC Commissioners
Section 248
202
National Anti-Corruption Commission Bill 2022
No. , 2022
(2) Subsection (1) applies in addition to any rules made for the
1
purposes of that section.
2
(3) For the purposes of this Act and the PGPA Act, a NACC
3
Commissioner is taken not to have complied with section 29 of that
4
Act if the NACC Commissioner does not comply with
5
subsection (1) of this section.
6
248 Other terms and conditions
7
A NACC Commissioner holds office on the terms and conditions
8
(if any) in relation to matters not covered by this Act that are
9
determined by the Governor-General.
10
249 Resignation
11
(1) A NACC Commissioner may resign the NACC Commissioner's
12
appointment by giving the Governor-General a written resignation.
13
(2) The resignation takes effect on the day it is received by the
14
Governor-General or, if a later day is specified in the resignation,
15
on that later day.
16
250 Termination of appointment
17
(1) The Governor-General may terminate the appointment of a NACC
18
Commissioner if each House of the Parliament, in the same session
19
of the Parliament, presents an address to the Governor-General
20
praying for the removal of the NACC Commissioner:
21
(a) for misbehaviour; or
22
(b) if the NACC Commissioner is unable to perform the duties of
23
the NACC Commissioner's office because of physical or
24
mental incapacity.
25
(2) The Governor-General must terminate the appointment of a NACC
26
Commissioner if the NACC Commissioner:
27
(a) becomes bankrupt; or
28
(b) applies to take the benefit of any law for the relief of
29
bankrupt or insolvent debtors; or
30
(c) compounds with the NACC Commissioner's creditors; or
31
Administrative provisions for the National Anti-Corruption Commission
Part 12
Appointment of the NACC Commissioners
Division 1
Section 250
No. , 2022
National Anti-Corruption Commission Bill 2022
203
(d) makes an assignment of the NACC Commissioner's
1
remuneration for the benefit of the NACC Commissioner's
2
creditors.
3
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 2
The CEO, staff etc. and authorised officers
Section 251
204
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 2--The CEO, staff etc. and authorised officers
1
Subdivision A--Appointment and functions of the CEO
2
251 The Chief Executive Officer
3
There is to be a Chief Executive Officer of the National
4
Anti-Corruption Commission.
5
252 Functions of CEO
6
(1) The functions of the CEO are:
7
(a) to manage the affairs of the NACC; and
8
(b) to ensure the NACC performs its functions.
9
(2) The CEO has power to do all things necessary or convenient to be
10
done for or in connection with the performance of the CEO's
11
functions.
12
253 Commissioner may give directions to CEO
13
(1) The Commissioner may give directions to the CEO about the
14
performance of the CEO's functions.
15
(2) The CEO must comply with a direction given under subsection (1).
16
(3) Subsection (2) does not apply to the extent the direction relates to
17
the CEO's performance of functions or exercise of powers under
18
the following Acts in relation to the NACC:
19
(a) the PGPA Act;
20
(b) the
Public Service Act 1999
.
21
(4) A direction under subsection (1) is not a legislative instrument.
22
Administrative provisions for the National Anti-Corruption Commission
Part 12
The CEO, staff etc. and authorised officers
Division 2
Section 254
No. , 2022
National Anti-Corruption Commission Bill 2022
205
254 Appointment of CEO
1
Appointment by Governor-General
2
(1) The CEO is to be appointed by the Governor-General, by written
3
instrument, on the recommendation of the Minister.
4
(2) Before the Minister makes a recommendation to the
5
Governor-General:
6
(a) the Minister must have referred the proposed
7
recommendation to the Commissioner; and
8
(b) the Commissioner must have approved the proposed
9
recommendation.
10
Qualification for appointment
11
(3) A person must not be appointed as the CEO unless the
12
Commissioner is satisfied that the person has appropriate
13
qualifications, knowledge or experience.
14
Period of appointment
15
(4) The CEO holds office for the period specified in the instrument of
16
appointment. The period must not exceed 5 years.
17
Note:
The CEO may be reappointed: see section 33AA of the
Acts
18
Interpretation Act 1901
.
19
Basis of appointment
20
(5) The CEO must be appointed on a full-time basis.
21
255 Acting appointments
22
The Commissioner may, by written instrument, appoint a person to
23
act as the CEO:
24
(a) during a vacancy in the office of the CEO (whether or not an
25
appointment has previously been made to the office); or
26
(b) during any period, or during all periods, when the CEO:
27
(i) is absent from duty or from Australia; or
28
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 2
The CEO, staff etc. and authorised officers
Section 256
206
National Anti-Corruption Commission Bill 2022
No. , 2022
(ii) is, for any reason, unable to perform the duties of the
1
office.
2
Note:
For rules that apply to acting appointments, see sections 33AB and
3
33A of the
Acts Interpretation Act 1901
.
4
256 Remuneration
5
(1) The CEO is to be paid the remuneration that is determined by the
6
Remuneration Tribunal. If no determination of that remuneration
7
by the Tribunal is in operation, the CEO is to be paid the
8
remuneration that is prescribed by the regulations.
9
(2) The CEO is to be paid the allowances that are prescribed by the
10
regulations.
11
(3) This section has effect subject to the
Remuneration Tribunal Act
12
1973
.
13
257 Leave of absence
14
(1) The CEO has the recreation leave entitlements that are determined
15
by the Remuneration Tribunal.
16
(2) The Commissioner may grant the CEO leave of absence, other than
17
recreation leave, on the terms and conditions as to remuneration or
18
otherwise that the Minister determines.
19
258 Other paid work
20
The CEO
must not engage in paid work outside the duties of the
21
CEO's office without the Commissioner's approval.
22
259 Other terms and conditions
23
The CEO holds office on the terms and conditions (if any) in
24
relation to matters not covered by this Act that are determined by
25
the Commissioner.
26
Administrative provisions for the National Anti-Corruption Commission
Part 12
The CEO, staff etc. and authorised officers
Division 2
Section 260
No. , 2022
National Anti-Corruption Commission Bill 2022
207
260 Resignation
1
(1) The CEO may resign the CEO's appointment by giving the
2
Governor-General a written resignation.
3
(2) The resignation takes effect on the day it is received by the
4
Governor-General or, if a later day is specified in the resignation,
5
on that later day.
6
261 Termination of appointment
7
(1) The Governor-General may terminate the appointment of the CEO:
8
(a) for misbehaviour; or
9
(b) if the CEO is unable to perform the duties of the CEO's
10
office because of physical or mental incapacity.
11
(2) The Governor-General must terminate the appointment of the CEO
12
if:
13
(a) the CEO:
14
(i) becomes bankrupt; or
15
(ii) applies to take the benefit of any law for the relief of
16
bankrupt or insolvent debtors; or
17
(iii) compounds with the CEO's creditors; or
18
(iv) makes an assignment of the CEO's remuneration for the
19
benefit of the CEO's creditors; or
20
(b) the CEO is absent, except on leave of absence, for 14
21
consecutive days or for 28 days in any 12 months; or
22
(c) the CEO engages, except with Commissioner's approval, in
23
paid work outside the duties of the CEO's office (see section
24
258); or
25
(d) the CEO fails, without reasonable excuse, to comply with
26
section 29 of the PGPA Act (which deals with the duty to
27
disclose interests) or rules made for the purposes of that
28
section.
29
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 2
The CEO, staff etc. and authorised officers
Section 262
208
National Anti-Corruption Commission Bill 2022
No. , 2022
Subdivision B--Staff and consultants etc.
1
262 Staff
2
(1) The staff of the NACC must be persons engaged under the
Public
3
Service Act 1999
.
4
(2) For the purposes of the
Public Service Act 1999
:
5
(a) the CEO and the APS employees assisting the CEO together
6
constitute a Statutory Agency; and
7
(b) the CEO is the Head of that Statutory Agency.
8
263 Consultants
9
(1) The CEO may, on behalf of the Commonwealth, engage
10
consultants to assist in the performance of the NACC's functions.
11
(2) The consultants are to be engaged on the terms and conditions that
12
the CEO determines in writing.
13
264 Persons assisting the NACC
14
(1) The NACC may be assisted by:
15
(a) officers and employees of Agencies (within the meaning of
16
the
Public Service Act 1999
), and of authorities of the
17
Commonwealth, whose services are made available to the
18
NACC in connection with the performance of any of the
19
NACC's functions; and
20
(b) persons whose services are made available under
21
arrangements made under subsection (2).
22
(2) The CEO may, on behalf of the Commonwealth, make an
23
arrangement with the appropriate authority or officer of:
24
(a) a State or Territory government; or
25
(b) a State or Territory government authority; or
26
(c) a government body or authority of a foreign country;
27
under which the government or authority makes officers or
28
employees available to the NACC to perform services in
29
connection with the performance of any of the NACC's functions.
30
Administrative provisions for the National Anti-Corruption Commission
Part 12
The CEO, staff etc. and authorised officers
Division 2
Section 265
No. , 2022
National Anti-Corruption Commission Bill 2022
209
(3) An arrangement under subsection (2) may provide for the
1
Commonwealth to reimburse a State or Territory or foreign
2
country with respect to the services of a person to whom the
3
arrangement relates.
4
(4) When performing services for the NACC under this section, a
5
person is subject to the directions of the CEO and a NACC
6
Commissioner.
7
(5) To avoid doubt, a constable assisting the NACC continues to have,
8
and may exercise, all their functions, powers and duties as such a
9
constable.
10
Note:
For
constable
, see section 7.
11
265 Counsel assisting the NACC or a NACC Commissioner
12
The CEO may appoint a legal practitioner to assist the NACC or a
13
NACC Commissioner as counsel:
14
(a) generally; or
15
(b) in relation to a particular corruption investigation.
16
266 Meaning of staff member of the NACC
17
Each of the following is a
staff member
of the NACC:
18
(a) the Commissioner;
19
(b) any Deputy Commissioners;
20
(c) the CEO;
21
(d) a member of the staff referred to in section 262;
22
(e) a consultant engaged under section 263;
23
(f) a person referred to in section 264 whose services are made
24
available to the NACC;
25
(g) a legal practitioner appointed under section 265.
26
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 2
The CEO, staff etc. and authorised officers
Section 267
210
National Anti-Corruption Commission Bill 2022
No. , 2022
Subdivision C--Authorised officers
1
267 Appointment of authorised officers
2
(1) The Commissioner may, in writing, appoint a person to be an
3
authorised officer for the purposes of Part 7 (investigating
4
corruption issues).
5
(2) The person may exercise such powers of an authorised officer
6
under Part 7 as are specified in the appointment.
7
(3) The person must be:
8
(a) a staff member of the NACC:
9
(i) who the Commissioner considers has suitable
10
qualifications or experience; or
11
(ii) who is also a member of the AFP; or
12
(iii) who is also a member of the police force or police
13
service of a State or Territory; or
14
(b) a member of the AFP.
15
(4) A person who is a member of a police force or police service
16
(including the AFP) must not be appointed as an authorised officer
17
unless the head (however described) of the force or service agrees
18
to the appointment.
19
(5) In exercising powers as an authorised officer, the person must
20
comply with any directions given by the Commissioner.
21
(6) If a direction under subsection (5) is given in writing, the direction
22
is not a legislative instrument.
23
268 Identity cards
24
(1) The Commissioner must issue an identity card to a person who is
25
an authorised officer for the purposes of Part 7 (investigating
26
corruption issues).
27
(2) An identity card:
28
(a) must be in the form approved in writing by the Minister; and
29
(b) must contain a recent photograph of the authorised officer.
30
Administrative provisions for the National Anti-Corruption Commission
Part 12
The CEO, staff etc. and authorised officers
Division 2
Section 268
No. , 2022
National Anti-Corruption Commission Bill 2022
211
Identity card to be carried and produced on request
1
(3) An authorised officer must carry the identity card at all times when
2
exercising powers as an authorised officer in accordance with
3
Part 7.
4
(4) An authorised officer is not entitled to exercise any powers under
5
Part 7 in relation to premises if:
6
(a) the occupier of the premises requires the authorised officer to
7
produce the authorised officer's identity card for inspection
8
by the occupier; and
9
(b) the authorised officer fails to comply with the requirement.
10
(5) An authorised officer is not entitled to exercise any powers under
11
Part 7 in relation to a person if:
12
(a) the person requires the authorised officer to produce the
13
authorised officer's identity card for inspection by the
14
person; and
15
(b) the authorised officer fails to comply with the requirement.
16
(6) The
occupier
of premises is the person apparently in charge of the
17
premises.
18
Offence
19
(7) A person commits an offence if:
20
(a) the person has been issued with an identity card; and
21
(b) the person ceases to be an authorised officer; and
22
(c) the person does not return the identity card to the
23
Commissioner within 14 days after ceasing to be an
24
authorised officer.
25
Penalty: 60 penalty units.
26
(8) An offence against subsection (7) is an offence of strict liability.
27
(9) Subsection (7) does not apply if the identity card was lost or
28
destroyed.
29
Note:
A defendant bears an evidential burden in relation to the matter in
30
subsection (9): see subsection 13.3(3) of the
Criminal Code
.
31
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 3
Immunities of staff members of the NACC
Section 269
212
National Anti-Corruption Commission Bill 2022
No. , 2022
Division 3--Immunities of staff members of the NACC
1
269 Immunity from civil proceedings for staff members of the
2
NACC and persons assisting
3
(1) A staff member of the NACC is not liable to civil proceedings in
4
relation to an act done, or omitted to be done, in good faith, in the
5
performance or purported performance, or exercise or purported
6
exercise, of the staff member's functions, powers or duties under,
7
or in relation to, this Act.
8
(2) A person whom the Commissioner requests, in writing, to assist a
9
staff member of the NACC is not liable to civil proceedings in
10
relation to an act done, or omitted to be done, in good faith for the
11
purpose of assisting the staff member.
12
270 Immunities from certain State and Territory laws
13
A staff member of the NACC is not required under, or by reason
14
of, a law of a State or Territory:
15
(a) to obtain or have a licence or permission for doing any act or
16
thing in the exercise of powers or the performance of duties
17
as such a staff member; or
18
(b) to register any vehicle, vessel, animal or article belonging to
19
the Commonwealth.
20
Administrative provisions for the National Anti-Corruption Commission
Part 12
Annual report by Commissioner
Division 4
Section 271
No. , 2022
National Anti-Corruption Commission Bill 2022
213
Division 4--Annual report by Commissioner
1
271 Annual report
2
(1) The Commissioner must give the Minister, for presentation to each
3
House of the Parliament, a report (the
annual report
) on the
4
performance of the Commissioner's functions during each
5
financial year.
6
Note:
See also section 34C of the
Acts Interpretation Act 1901
,
which
7
contains extra rules about annual reports.
8
(2) The annual report for each financial year must include:
9
(a) the particulars prescribed by the regulations about the
10
following:
11
(i) corruption issues referred to the Commissioner during
12
that year;
13
(ii) corruption issues dealt with by the Commissioner
14
during that year;
15
(iii) corruption investigations conducted by the
16
Commissioner during that year;
17
(iv) corruption issues that the Commissioner referred to a
18
Commonwealth agency or State or Territory
19
government entity for investigation during that year;
20
(v) public inquiries conducted by the Commissioner during
21
that year;
22
(vi) certificates issued by the Attorney-General under
23
section 235 during that year;
24
(vii) international relations certificates issued during that
25
year; and
26
(b) a description of the corruption investigations conducted by
27
the Commissioner during that year that the Commissioner
28
considers raise significant issues for, or reflect developments
29
in, Commonwealth agencies; and
30
(c) a description of any patterns or trends, and the nature and
31
scope, of corruption in Commonwealth agencies or by public
32
officials that have come to the Commissioner's attention
33
during that year; and
34
Part 12
Administrative provisions for the National Anti-Corruption Commission
Division 4
Annual report by Commissioner
Section 272
214
National Anti-Corruption Commission Bill 2022
No. , 2022
(d) any recommendations for changes to the laws of the
1
Commonwealth or administrative practices of
2
Commonwealth agencies that the Commissioner, as a result
3
of performing the Commissioner's functions during that year,
4
considers should be made; and
5
(e) the extent to which corruption investigations have resulted in
6
the prosecution in that year of persons for offences; and
7
(f) the extent to which corruption investigations have resulted in
8
confiscation proceedings in that year; and
9
(g) the details of the number and results of:
10
(i) applications made to the Federal Court or the Federal
11
Circuit and Family Court of Australia (Division 2)
12
under the
Administrative Decisions (Judicial Review)
13
Act 1977
for orders of review in respect of matters
14
arising under this Act in connection with the
15
performance of functions or exercise of powers by the
16
Commissioner; and
17
(ii) other court proceedings involving the Commissioner;
18
being applications and proceedings that were determined, or
19
otherwise disposed of, during that year.
20
(3) The Minister must table the annual report in each House of the
21
Parliament within 15 sitting days of that House after its receipt.
22
(4) A report prepared under this section may be included in a report
23
prepared and given to the Minister under section 46 of the PGPA
24
Act
in relation to the NACC.
25
272 Exclusion of certain information from annual report
26
The Commissioner must exclude the following from the annual
27
report:
28
(a) section 235 certified information;
29
(b) information that the Commissioner is satisfied is sensitive
30
information.
31
Administrative provisions for the National Anti-Corruption Commission
Part 12
Annual report by Commissioner
Division 4
Section 273
No. , 2022
National Anti-Corruption Commission Bill 2022
215
273 Effect of findings or opinions about corrupt conduct
1
(1) This section applies if an annual report includes a finding or
2
opinion that a person has engaged, is engaging or will engage in
3
corrupt conduct or conduct that could constitute or involve corrupt
4
conduct.
5
(2) The finding or opinion does not constitute a finding or opinion that
6
the person is guilty of or has committed, is committing or will
7
commit an offence.
8
Part 13
Miscellaneous
Division 1
Parliamentary privilege and other protections
Section 274
216
National Anti-Corruption Commission Bill 2022
No. , 2022
Part 13--Miscellaneous
1
Division 1--Parliamentary privilege and other protections
2
274 Effect of Act on parliamentary privileges and immunities
3
Apart from section 181 (committee's access to certain
4
information), this Act does not affect the law relating to the
5
powers, privileges and immunities of any of the following:
6
(a) each House of the Parliament;
7
(b) the members of each House of the Parliament;
8
(c) the committees of each House of the Parliament and joint
9
committees of both Houses of the Parliament.
10
275 Protections relating to non-judicial functions and powers
11
To avoid doubt, this Act is a law of the Commonwealth relating to
12
criminal matters for the purposes of sections 4AAA and 4AAB of
13
the
Crimes Act 1914
.
14
Note:
Sections 4AAA and 4AAB of the
Crimes Act 1914
deal with the
15
performance of functions, and the exercise of powers, that are neither
16
judicial nor incidental to a judicial function by judges, magistrates and
17
justices of the peace.
18
Miscellaneous
Part 13
Delegations and review
Division 2
Section 276
No. , 2022
National Anti-Corruption Commission Bill 2022
217
Division 2--Delegations and review
1
276 Delegations
2
General delegations
3
(1) The Commissioner may delegate all or any of the Commissioner's
4
functions, powers or duties to:
5
(a) a Deputy Commissioner; or
6
(b) a staff member of the NACC:
7
(i) who is an SES employee or acting SES employee; or
8
(ii) who holds, or is acting in, an Executive Level 2, or
9
equivalent, position.
10
Decision to take no action
11
(2) Despite subsection (1), the Commissioner:
12
(a) must not delegate the Commissioner's duty under subsection
13
254(3) (appointment of CEO); and
14
(b) may delegate the Commissioner's power under subsection
15
41(6) (decision to take no action in relation to a corruption
16
issue) to any staff member of the NACC.
17
Limits on general delegations
18
(3) Paragraph (1)(b) does not apply:
19
(a) to a function, power or duty under:
20
(i) Subdivisions A to D of Division 3 (hearings) of Part 7;
21
or
22
(ii) Division 7 (search powers) of Part 7; or
23
(iii) Part 8 (reporting on corruption investigations); or
24
(iv) Part 9 (public inquiries), other than the provisions of
25
Part 7 as applied by section 163 (and not covered by
26
subparagraph (i) or (ii)); or
27
(v) section 230 (disclosure by authorised discloser in public
28
interest); or
29
(vi) this section; or
30
Part 13
Miscellaneous
Division 2
Delegations and review
Section 277
218
National Anti-Corruption Commission Bill 2022
No. , 2022
(b) in relation to making an arrangement mentioned in
1
subsection 239(1) (arrangements for dealing with intelligence
2
information).
3
(4) To avoid doubt, the reference in subparagraphs (3)(a)(i) and (ii) to
4
Part 7 includes a reference to that Part as applied by section 163.
5
Form of delegation
6
(5) A delegation under this section must be in writing and signed by
7
the Commissioner.
8
Complying with directions
9
(6) In performing or exercising a function, power or duty delegated
10
under subsection (1), the delegate must comply with any directions
11
of the Commissioner.
12
277 Delegation by heads of Commonwealth agencies
13
(1) The head of a Commonwealth agency may delegate all or any of
14
the head's functions, powers or duties under this Act to a staff
15
member of that agency who is:
16
(a) an SES employee or acting SES employee; or
17
(b) an individual who is concerned in, or takes part in, the
18
management of the agency.
19
Limits on delegations
20
(2) Subsection (1) does not apply in relation to making an arrangement
21
mentioned in subsection 239(1) (arrangements for dealing with
22
intelligence information).
23
Complying with directions
24
(3) In performing a function or duty, or exercising a power, under
25
subsection (1), the delegate must comply with any directions of the
26
head of the agency.
27
Miscellaneous
Part 13
Delegations and review
Division 2
Section 278
No. , 2022
National Anti-Corruption Commission Bill 2022
219
278 Review of operation of Act
1
Undertaking the review
2
(1) The Minister must cause a review to be undertaken of the first 5
3
years of the operation of:
4
(a) this Act; and
5
(b) the amendments made by the
National Anti-Corruption
6
Commission (Consequential and Transitional Provisions) Act
7
2022
.
8
(2) The review must be undertaken by one or more persons who, in the
9
Minister's opinion, possess appropriate qualifications to undertake
10
the review.
11
Report to Minister
12
(3) The person or persons undertaking the review must give the
13
Minister a written report of the review within 12 months after the
14
end of the 5-year period.
15
Submissions
16
(4) The review must include an opportunity for the following to make
17
written submissions on the operation of this Act:
18
(a) persons who are or have been public officials;
19
(b) members of the public.
20
Assistance
21
(5) An entrusted person must, if requested to do so by the persons
22
undertaking the review, assist them in:
23
(a) conducting the review; and
24
(b) preparing the written report.
25
Tabling of report
26
(6) The Minister must cause a copy of the report of the review to be
27
laid before each House of the Parliament as soon as practicable
28
after its receipt by the Minister.
29
Part 13
Miscellaneous
Division 2
Delegations and review
Section 278
220
National Anti-Corruption Commission Bill 2022
No. , 2022
Section not to apply if review conducted by Parliamentary
1
committee
2
(7) However, this section does not apply if a committee of one or both
3
Houses of the Parliament (including the Parliamentary Joint
4
Committee on the National Anti-Corruption Commission) has
5
reviewed the operation of this Act, or started such a review, before
6
the end of the 5-year period.
7
Miscellaneous
Part 13
Instruments under the Act
Division 3
Section 279
No. , 2022
National Anti-Corruption Commission Bill 2022
221
Division 3--Instruments under the Act
1
279 Guidelines
2
(1) The Commissioner may make written guidelines to assist any or all
3
of the following in connection with the operation of this Act:
4
(a) public officials;
5
(b) any other person the Commissioner considers appropriate.
6
(2) Guidelines made under subsection (1) are not a legislative
7
instrument.
8
280 Regulations
9
(1) The Governor-General may make regulations prescribing matters:
10
(a) required or permitted by this Act to be prescribed by the
11
regulations; or
12
(b) necessary or convenient to be prescribed for carrying out or
13
giving effect to this Act.
14
(2) The regulations may:
15
(a) prescribe arrangements for the Commonwealth to provide
16
financial assistance in respect of the following:
17
(i) a person's representation at a hearing by a legal
18
practitioner;
19
(ii) an application, or proposed application, to the Federal
20
Court or the Federal Circuit and Family Court of
21
Australia (Division 2) under the
Administrative
22
Decisions (Judicial Review) Act 1977
for an order of
23
review in respect of a matter arising under this Act;
24
(iii) any other matter arising under, or in relation to, this Act;
25
or
26
(b) require that information or reports that are required to be
27
given under prescribed provisions are also to be given to
28
prescribed persons in specified circumstances.
29
Part 13
Miscellaneous
Division 3
Instruments under the Act
Section 280
222
National Anti-Corruption Commission Bill 2022
No. , 2022
Appropriation
1
(3) The Consolidated Revenue Fund is appropriated for the purposes
2
of making payments to, or for the benefit of, parliamentarians
3
under arrangements prescribed for the purposes of paragraph (2)(a)
4
(arrangements for providing financial assistance).
5