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This is a Bill, not an Act. For current law, see the Acts databases.
NATIONAL INTEGRITY COMMISSIONER BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Integrity Commissioner Bill
2012
No. , 2012
(Mr Bandt)
A Bill for an Act to establish the office of the
National Integrity Commissioner, and for related
purposes
i National Integrity Commissioner Bill 2012 No. , 2012
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3
Objects of Act .................................................................................... 2
4
Saving of powers, privileges and immunities .................................... 3
5 Application
of
Act
.............................................................................
3
6 Definitions
.........................................................................................
3
7 Meaning
of
corrupt conduct .............................................................. 7
8 Meaning
of
corruption issue ............................................................ 10
Part 2--The National Integrity Commission
11
Division 1--Introduction
11
9
Guide to this Part ............................................................................. 11
Division 2--Establishment
13
10 Establishment
...................................................................................
13
11 Definition
of
integrity officers ......................................................... 13
Division 3--Functions and powers of the integrity officers
14
12 Definition
of
national integrity commissioner functions ................. 14
13 Definition
of
law enforcement integrity commissioner
functions ........................................................................................... 15
14 Definition
of
independent parliamentary advisor functions ............ 15
15
Functions and powers of the National Integrity
Commissioner .................................................................................. 16
16
Functions and powers of the Law Enforcement Integrity
Commissioner .................................................................................. 17
17
Functions and powers of the Independent Parliamentary
Advisor ............................................................................................ 17
Part 3--Dealing with corruption issues
18
Division 1--Introduction
18
18
Guide to this Part ............................................................................. 18
Division 2--Referring corruption issues to National Integrity
Commissioner
19
19
Referral of corruption issues ............................................................ 19
20
Person making referral under section 19 may elect to be kept
informed ........................................................................................... 20
National Integrity Commissioner Bill 2012 No. , 2012 ii
Division 3--How National Integrity Commissioner deals with
referred corruption issues
21
21
How National Integrity Commissioner may deal with
referred corruption issues ................................................................. 21
22
Advising person who refers corruption issue of decision
about how to deal with corruption issue .......................................... 21
23
Advising person to whom referred corruption issue relates of
decision about how to deal with corruption issue ............................ 23
Division 4--National Integrity Commissioner dealing with
corruption issues on own initiative
24
24
National Integrity Commissioner may deal with corruption
issues on own initiative .................................................................... 24
25
Advising head of Commonwealth agency of decision to deal
with corruption issue on own initiative ............................................ 24
26
Advising person of decision to deal with corruption issue on
own initiative ................................................................................... 25
Division 5--Reconsidering how to deal with a corruption issue
27
27
Reconsidering how to deal with a corruption issue ......................... 27
Part 4--Investigations by the National Integrity Commissioner
28
Division 1--Introduction
28
28
Guide to this Part ............................................................................. 28
Division 2--Investigation
29
29 Application
of
Division ................................................................... 29
30
National Integrity Commissioner to determine manner of
conducting investigation .................................................................. 29
31
Opportunity to be heard ................................................................... 29
Division 3--Reporting
31
Subdivision A--Reporting during investigation
31
32
National Integrity Commissioner to keep person who
referred corruption issue informed of progress of
investigation ..................................................................................... 31
Subdivision B--Reporting at the end of investigation
31
33 Report
on
investigation
....................................................................
31
34
National Integrity Commissioner to give report to Prime
Minister ............................................................................................ 33
35
Advising person who referred corruption issue of outcome of
the investigation ............................................................................... 33
36
Advising person whose conduct is investigated of outcome
of the investigation .......................................................................... 35
iii National Integrity Commissioner Bill 2012 No. , 2012
Part 5--Public inquiries into corruption issues
37
Division 1--Introduction
37
37
Guide to this Part ............................................................................. 37
Division 2--Conducting a public inquiry
38
38
National Integrity Commissioner may conduct public inquiry ........ 38
39 Publicising
inquiry
...........................................................................
38
Division 3--Reporting
39
40 Report
on
public inquiry .................................................................. 39
41 Giving
report
to
Prime Minister ....................................................... 40
Part 6--National Integrity Commissioner's powers in
conducting investigations and public inquiries
41
Division 1--Introduction
41
42
Guide to this Part ............................................................................. 41
Division 2--Requiring people to give information or produce
documents or things
42
Subdivision A--Requests by National Integrity Commissioner
42
43
Request to person to give information or produce documents
or things ........................................................................................... 42
44
National Integrity Commissioner may retain documents and
things ............................................................................................... 43
Subdivision B--Offence and related provisions
43
45
Failure to comply with National Integrity Commissioner's
request .............................................................................................. 43
46
Legal professional privilege--information ...................................... 44
47
Legal professional privilege--documents or things ........................ 45
48
Offences relating to claims for legal professional privilege ............ 46
49 Self-incrimination etc. ..................................................................... 47
50
Protection of person required to give information or produce
documents or things ......................................................................... 49
Division 3--Conducting hearings
51
Subdivision A--General provisions
51
51
National Integrity Commissioner may hold hearings ...................... 51
52
National Integrity Commissioner may summon person ................... 52
53
National Integrity Commissioner may take evidence outside
Australia ........................................................................................... 54
Subdivision B--Procedure at hearing
54
54
Who may be represented at a hearing .............................................. 54
55
Who may be present at a hearing ..................................................... 54
National Integrity Commissioner Bill 2012 No. , 2012 iv
Subdivision C--Taking evidence at hearing
56
56
Evidence on oath or by affirmation ................................................. 56
57
Examination and cross-examination of witnesses ............................ 56
58 Giving
evidence
in private ............................................................... 57
59 Directions
in
relation to confidentiality ........................................... 58
Subdivision D--Prohibitions against disclosing information about
a summons
60
60 Disclosure
of
summons may be prohibited ...................................... 60
61
Offences of disclosure ..................................................................... 62
Subdivision E--Offences in relation to hearings
64
62 Offences
...........................................................................................
64
63 Contempt
.........................................................................................
65
64
Legal professional privilege--answer to question ........................... 66
65
Legal professional privilege--documents or things ........................ 67
66
Offences relating to claims for legal professional privilege ............ 69
67 Self-incrimination etc. ..................................................................... 70
Subdivision F--Court orders for delivery of witness's passport
and witness's arrest
72
68
National Integrity Commissioner may apply for order that
witness deliver his or her passport ................................................... 72
69 Court
orders
.....................................................................................
73
70
Applying for a warrant to arrest witness .......................................... 75
71
Warrant for arrest ............................................................................. 76
72
Powers of Judge in relation to person arrested ................................ 77
Subdivision G--Miscellaneous
78
73
National Integrity Commissioner may retain documents or
things ............................................................................................... 78
74
Person may apply for legal and financial assistance ........................ 79
75
Protection of National Integrity Commissioner etc. ........................ 80
76 Protection
of
witnesses etc. .............................................................. 80
Division 4--Search warrants
82
Subdivision A--Preliminary
82
77
Application to things under the control of a person ......................... 82
Subdivision B--Applying for a search warrant
82
78
Authorised officer may apply for a search warrant .......................... 82
Subdivision C--Issue of a search warrant
84
79 When
search
warrants may be issued .............................................. 84
80
Content of warrants .......................................................................... 86
81
Application by telephone etc. and issue of warrant ......................... 89
v National Integrity Commissioner Bill 2012 No. , 2012
82
The things authorised by a search warrant in relation to
premises ........................................................................................... 91
83
The things authorised by a search warrant in relation to a
person ............................................................................................... 92
84
Restrictions on personal searches .................................................... 93
85
When warrant may be executed etc. ................................................ 93
Subdivision D--General provisions about executing a search
warrant
94
86 Announcement
before entry ............................................................. 94
87
Availability of assistance and use of force in executing a
warrant ............................................................................................. 94
Subdivision E--Specific provisions about executing a warrant in
relation to premises
95
88 Application
......................................................................................
95
89
Copy of warrant to be shown to occupier etc. .................................. 95
90
Occupier entitled to watch search .................................................... 95
91
Specific powers available to person executing a warrant ................ 96
92
Use of equipment to examine or process things ............................... 96
93
Use of electronic equipment at premises without expert
assistance ......................................................................................... 98
94
Use of electronic equipment at premises with expert
assistance ......................................................................................... 99
95
Person with knowledge of a computer or a computer system
to assist access etc. ......................................................................... 100
96
Accessing data held on other premises--notification to
occupier of those premises ............................................................. 101
97
Compensation for damage to electronic equipment ....................... 101
98
Copies of seized things to be provided .......................................... 102
99
Receipts of things seized under warrant ........................................ 103
Subdivision F--Specific provisions about executing a warrant in
relation to a person
103
100
Copy of warrant to be shown to person ......................................... 103
101
Conduct of an ordinary search or a frisk search ............................. 104
Subdivision G--Offences
104
102
Making false statements in warrants .............................................. 104
103
Offence for stating incorrect names in telephone warrants ............ 104
104
Offence for unauthorised form of warrant ..................................... 104
105
Offence for executing etc. an unauthorised form of warrant ......... 105
106
Offence for giving unexecuted form of warrant ............................ 105
Subdivision H--Miscellaneous
105
107
Other laws about search, arrest etc. not affected ............................ 105
National Integrity Commissioner Bill 2012 No. , 2012 vi
108
Law relating to legal professional privilege not affected ............... 106
Division 5--Powers of arrest
107
109
Authorised officers may exercise powers of arrest ........................ 107
Division 6--Authorised officers
108
110
Appointment of authorised officers ............................................... 108
111 Identity
cards
.................................................................................
108
Part 7--Dealing with evidence and information obtained in
investigation or public inquiry
110
Division 1--Introduction
110
112
Guide to this Part ........................................................................... 110
Division 2--Dealing with evidence and information obtained in
investigation or public inquiry
111
113
Evidence of offence or liability to civil penalty ............................. 111
114
Evidence that could be used in confiscation proceedings .............. 112
115
Evidence of, or information suggesting, wrongful conviction ....... 113
Part 8--Independent Parliamentary Advisor
114
Division 1--Introduction
114
116
Guide to this Part ........................................................................... 114
Division 2--Requests for advice
115
117
Minister may request advice .......................................................... 115
118
Presiding officer or chair of committee may request advice .......... 115
119
Parliamentarian or former parliamentarian may request
advice ............................................................................................. 115
120
Independent Parliamentary Advisor to provide advice in
writing ............................................................................................ 116
121
Independent Parliamentary Advisor may request additional
information .................................................................................... 116
Division 3--Reporting
117
122 Annual
report
.................................................................................
117
Division 4--Better practices guides and fact sheets
118
123
Better practices guides and fact sheets ........................................... 118
Part 9--Administrative provisions
119
Division 1--Introduction
119
124
Guide to this Part ........................................................................... 119
Division 2--Appointment etc. of the integrity officers
120
Subdivision A--National Integrity Commissioner
120
vii National Integrity Commissioner Bill 2012 No. , 2012
125 Appointment
of
National Integrity Commissioner ........................ 120
126
General terms and conditions of appointment ............................... 120
127 Restriction
on
outside employment ............................................... 121
128 Remuneration
.................................................................................
121
129
Leave of absence ............................................................................ 121
130 Resignation
....................................................................................
121
131 Termination
of
appointment .......................................................... 122
132 Acting
appointments
......................................................................
122
133 Disclosure
of
interests .................................................................... 123
Subdivision B--Law Enforcement Integrity Commissioner
123
134
Appointment etc. of Law Enforcement Integrity
Commissioner ................................................................................ 123
Subdivision C--Independent Parliamentary Advisor
124
135
Appointment of Independent Parliamentary Advisor .................... 124
136
General terms and conditions of appointment ............................... 124
137
Engaging in other paid employment .............................................. 125
138 Remuneration
.................................................................................
125
139
Leave of absence ............................................................................ 125
140 Resignation
....................................................................................
125
141 Termination
of
appointment .......................................................... 126
142 Acting
appointments
......................................................................
126
143 Disclosure
of
interests .................................................................... 127
Division 3--Appointment etc. of Assistant National Integrity
Commissioners
128
144
Appointment of Assistant National Integrity Commissioners ....... 128
145
General terms and conditions of appointment ............................... 128
146
Engaging in other paid employment .............................................. 128
147 Remuneration
.................................................................................
129
148
Leave of absence ............................................................................ 129
149 Resignation
....................................................................................
129
150 Termination
of
employment .......................................................... 130
151 Acting
appointments
......................................................................
130
152 Disclosure
of
interests .................................................................... 131
Division 4--Staff, consultants and delegations
132
153 Staff
...............................................................................................
132
154 Consultants
....................................................................................
132
155 Delegation--National
Integrity Commissioner ............................. 133
Division 5--Public reporting
134
156 Annual
report
.................................................................................
134
157
Reports on investigations and public inquiries .............................. 135
National Integrity Commissioner Bill 2012 No. , 2012 viii
158 Special
reports
...............................................................................
136
159
Contents of annual or special report .............................................. 137
Division 6--Confidentiality requirements
139
160
Confidentiality requirements for National Integrity
Commission staff ........................................................................... 139
161
Exceptions to confidentiality requirements .................................... 139
162
Disclosure by National Integrity Commissioner in public
interest etc. ..................................................................................... 141
163
Opportunity to be heard ................................................................. 142
164
National Integrity Commission staff generally not
compellable in court proceedings .................................................. 143
Part 10--Parliamentary Joint Committee on the National
Integrity Commission
145
165 Definitions
.....................................................................................
145
166
Parliamentary Joint Committee on the National Integrity
Commission ................................................................................... 145
167 Powers
and
proceedings of the committee ..................................... 146
168 Duties
of
the committee ................................................................. 147
169
Committee may approve or reject recommendation for
appointment of National Integrity Commissioner .......................... 149
170
Disclosure to committee by National Integrity Commissioner ...... 150
171
Disclosure to committee by Law Enforcement Integrity
Commissioner ................................................................................ 151
172
Disclosure to committee by Minister ............................................. 153
173
Ombudsman to brief committee about controlled operations ........ 154
Part 11--Miscellaneous
155
174
Offence of victimisation ................................................................ 155
175
Legal and financial assistance in relation to applications for
administrative review ..................................................................... 155
176 Immunity
from
civil proceedings ................................................... 156
177
Immunities from certain State and Territory laws ......................... 157
178
Review of operation of Act ............................................................ 157
179 Schedule(s)
....................................................................................
158
180 Regulations
....................................................................................
158
Schedule 1--Amendments
160
Law Enforcement Integrity Commissioner Act 2006
160
Ombudsman Act 1976
160
Privacy Act 1988
161
National Integrity Commissioner Bill 2012 No. , 2012 1
A Bill for an Act to establish the office of the
1
National Integrity Commissioner, and for related
2
purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act may be cited as the National Integrity Commissioner Act
8
2012.
9
Part 1 Preliminary
Section 2
2 National Integrity Commissioner Bill 2012 No. , 2012
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
Provision(s)
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
180
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3 Schedule 1
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
passed by both Houses of the Parliament and assented to. It will not be
8
expanded to deal with provisions inserted in this Act after assent.
9
(2) Column 3 of the table contains additional information that is not
10
part of this Act. Information in this column may be added to or
11
edited in any published version of this Act.
12
3 Objects of Act
13
(1) The objects of this Act are:
14
(a) to facilitate the investigation of corruption issues that relate
15
to a minister, a parliamentarian, a former parliamentarian, a
16
Commonwealth agency, an employee of a Commonwealth
17
agency or a person employed under the Members of
18
Parliament (Staff) Act 1984 or any other public official; and
19
Preliminary Part 1
Section 4
National Integrity Commissioner Bill 2012 No. , 2012 3
(b) to facilitate the investigation of alleged corrupt conduct
1
involving a minister, a parliamentarian, a former
2
parliamentarian, a Commonwealth agency, an employee of a
3
Commonwealth agency or a person employed under the
4
Members of Parliament (Staff) Act 1984 or any other public
5
official; and
6
(c) to enable criminal offences to be prosecuted, and civil
7
penalty proceedings to be brought, following those
8
investigations; and
9
(d) to maintain and improve the integrity of employees of
10
Commonwealth agencies and persons employed under the
11
Members of Parliament (Staff) Act 1984; and
12
(e) to enhance the integrity of ministers, parliamentarians and
13
former parliamentarians.
14
(2) To assist in achieving the objects in paragraphs (1)(a) to (d), this
15
Act establishes the office of the National Integrity Commissioner.
16
(3) To assist in achieving the objects in paragraphs (1)(d) and (e), this
17
Act establishes the office of the Independent Parliamentary
18
Advisor.
19
4 Saving of powers, privileges and immunities
20
This Act does not affect the powers, privileges and immunities of
21
each House of the Parliament, and of the members and committees
22
of each House.
23
5 Application of Act
24
This Act applies both within and outside Australia and extends to
25
every external Territory.
26
6 Definitions
27
In this Act:
28
applicable code of conduct means:
29
(a) in the case of a minister:
30
Part 1 Preliminary
Section 6
4 National Integrity Commissioner Bill 2012 No. , 2012
(i) a ministerial code of conduct imposed by the Prime
1
Minister on his or her ministers; or
2
(ii) a ministerial code of conduct:
3
(A) prescribed by the regulations; or
4
(B) adopted by resolution of the House of which the
5
minister is or was a member;
6
for the purposes of this definition;
7
(b) in the case of a parliamentarian (including a minister)--a
8
code of conduct for parliamentarians:
9
(i) prescribed by the regulations; or
10
(ii) adopted by resolution of the House of which the
11
parliamentarian is or was a member;
12
for the purposes of this definition.
13
Assistant Law Enforcement Integrity Commissioner means a
14
person appointed under section 185 of the Law Enforcement
15
Integrity Commissioner Act 2006 as an Assistant Integrity
16
Commissioner.
17
Assistant National Integrity Commissioner means a person
18
appointed under section 144 as an Assistant National Integrity
19
Commissioner.
20
Commission means the National Integrity Commission established
21
under section 10.
22
Commonwealth agency means:
23
(a) an Agency within the meaning of the Public Service Act
24
1999; or
25
(b) a department of the Parliament; or
26
(c) a person or body holding office, or exercising power, under
27
or because of the Constitution or a law of the
28
Commonwealth; or
29
(d) a body or organisation, whether incorporated or
30
unincorporated, established for a public purpose:
31
(i) by or under a law of the Commonwealth or of a
32
Territory (other than the Australian Capital Territory,
33
the Northern Territory or Norfolk Island); or
34
(ii) by the Governor-General; or
35
Preliminary Part 1
Section 6
National Integrity Commissioner Bill 2012 No. , 2012 5
(iii) by a minister.
1
confiscation proceeding means a proceeding under:
2
(a)
the
Proceeds of Crime Act 1987 or the Proceeds of Crime Act
3
2002; or
4
(b) a corresponding law within the meaning of either of those
5
Acts;
6
but does not include a criminal prosecution for an offence under
7
either of those Acts or a corresponding law.
8
corrupt conduct has the meaning given by section 7.
9
corruption issue has the meaning given by section 8.
10
criminal offence means an offence against a law of the
11
Commonwealth or of a State or Territory.
12
disciplinary offence includes any misconduct, irregularity, neglect
13
of duty, breach of discipline or other matter that constitutes or may
14
constitute grounds for disciplinary action under any law.
15
employee of a Commonwealth agency includes:
16
(a) the head of the agency;
17
(b) a temporary employee of the agency;
18
(c) an independent contractor providing a service to or on behalf
19
of the agency.
20
former parliamentarian means a former member of either House
21
of the Parliament.
22
gift means a gift whether it is or is not registrable in accordance
23
with a resolution or resolutions of a House of the Parliament.
24
government agency means:
25
(a) a Commonwealth agency; or
26
(b) a department of a State or Territory; or
27
(b) a body (whether incorporated or not) established for a public
28
purpose by or under a law of a State or Territory.
29
Independent Parliamentary Advisor means the person appointed
30
under section 135 as the Independent Parliamentary Advisor.
31
Part 1 Preliminary
Section 6
6 National Integrity Commissioner Bill 2012 No. , 2012
independent parliamentary advisor functions has the meaning
1
given by section 14.
2
integrity officer has the meaning given by section 11.
3
interest means an interest whether it is or is not registrable in
4
accordance with a resolution or resolutions of a House of the
5
Parliament.
6
Law Enforcement Integrity Commissioner means the person
7
appointed under section 175 of the Law Enforcement Integrity
8
Commissioner Act 2006 as the Integrity Commissioner.
9
law enforcement integrity commissioner functions has the
10
meaning given by section 13.
11
minister means a minister of state and includes a parliamentary
12
secretary.
13
National Integrity Commission means the National Integrity
14
Commission established under section 10.
15
National Integrity Commissioner means the person appointed
16
under section 125 as the National Integrity Commissioner.
17
national integrity commissioner functions has the meaning given
18
by section 12.
19
national law enforcement agencies means:
20
(a) the Australian Federal Police; and
21
(b) the Australian Crime Commission; and
22
(c) any other Commonwealth agency that:
23
(i) has a law enforcement function; and
24
(ii) is prescribed by the regulations for the purposes of this
25
paragraph.
26
parliamentarian means a member of either House of the
27
Parliament.
28
parliamentary allowances means allowances (including
29
allowances by way of salary) and entitlements (including
30
Preliminary Part 1
Section 7
National Integrity Commissioner Bill 2012 No. , 2012 7
superannuation entitlements) of parliamentarians under a law of the
1
Commonwealth.
2
presiding officer means:
3
(a) in relation to the Senate--the President of the Senate;
4
(b) in relation to the House of Representatives--the Speaker of
5
the House of Representatives.
6
public official means a person having public official functions or
7
acting in a public official capacity, and includes but is not limited
8
to any of the following:
9
(a) the Governor-General (whether or not acting with the advice
10
of the Federal Executive Council);
11
(b)
a
minister;
12
(c)
a
parliamentarian;
13
(d) a justice or judge of a court created by the Parliament or a
14
person who, by virtue of a law of the Commonwealth, has the
15
same status as a justice or judge of a court created by the
16
Parliament;
17
(e) a person employed under the Members of Parliament (Staff)
18
Act 1984;
19
(f) an employee or a temporary employee of a Commonwealth
20
agency, including:
21
(i) the head of a Commonwealth agency; and
22
(ii) an independent contractor providing a service to or on
23
behalf of a Commonwealth agency;
24
(g) a person declared by the regulations to be a public official for
25
the purposes of this definition;
26
(h) an employee of or any person otherwise engaged by or acting
27
for or on behalf of, or in the place of, or as deputy or delegate
28
of, any person or body described in any of paragraphs (a) to
29
(g).
30
referred corruption issue means a corruption issue referred under
31
section 19.
32
7 Meaning of corrupt conduct
33
(1) For the purposes of this Act, corrupt conduct is:
34
Part 1 Preliminary
Section 7
8 National Integrity Commissioner Bill 2012 No. , 2012
(a) any conduct of any person that adversely affects, or that
1
could adversely affect, either directly or indirectly, the honest
2
or impartial exercise of official functions by the Parliament, a
3
Commonwealth agency, any public official or any group or
4
body of public officials;
5
(b) any conduct of a public official that constitutes or involves
6
the dishonest or partial exercise of any of his or her official
7
functions;
8
(c) any conduct of a public official that constitutes or involves,
9
or of a former public official that constituted or involved, a
10
breach of public trust;
11
(d) any conduct that perverts, or that is engaged in for the
12
purpose of perverting, the course of justice;
13
(e) any conduct of a public official that involves, or of a former
14
public official that involved, the misuse of information or
15
material that he or she acquired in the course of his or her
16
official functions, whether or not for his or her benefit or for
17
the benefit of any other person.
18
(2) For the purposes of paragraph (1)(a), corrupt conduct that
19
adversely affects, or that could adversely affect, either directly or
20
indirectly, the exercise of official functions by the Parliament, a
21
Commonwealth agency, any public official or any group or body
22
of public officials includes any of the following conduct:
23
(a) official misconduct (including breach of trust, fraud in office,
24
nonfeasance, misfeasance, malfeasance, oppression, extortion
25
or imposition);
26
(b)
bribery;
27
(c)
blackmail;
28
(d) obtaining or offering secret commissions;
29
(e)
fraud;
30
(f)
theft;
31
(g) perverting the course of justice;
32
(h)
embezzlement;
33
(i)
election
bribery;
34
(j) election funding offences;
35
(k)
election
fraud;
36
(l)
treating;
37
Preliminary Part 1
Section 7
National Integrity Commissioner Bill 2012 No. , 2012 9
(m)
tax
evasion;
1
(n)
revenue
evasion;
2
(o)
currency
violations;
3
(p) illegal drug dealings;
4
(q)
illegal
gambling;
5
(r) obtaining financial benefit by vice engaged in by others;
6
(s) bankruptcy and company violations;
7
(t)
harbouring
criminals;
8
(u)
forgery;
9
(v) treason or other offences against the Sovereign;
10
(w) homicide or violence;
11
(x) matters of the same or a similar nature to any listed above;
12
(y) any conspiracy or attempt in relation to any of the above.
13
(3) Conduct may amount to corrupt conduct under this section even
14
though it occurred before the commencement of this subsection,
15
and it does not matter that some or all of the effects or other
16
ingredients necessary to establish such corrupt conduct occurred
17
before that commencement and that any person or persons
18
involved are no longer public officials.
19
(4) Conduct committed by or in relation to a person who was not or is
20
not a public official may amount to corrupt conduct under this
21
section with respect to the exercise of his or her official functions
22
after becoming a public official.
23
(5) Conduct may amount to corrupt conduct under this section even
24
though it occurred outside Australia.
25
(6) The specific mention of a kind of conduct in a provision of this
26
section must not be regarded as limiting the scope of any other
27
provision of this section.
28
(7) Despite subsections (1) to (6), conduct does not amount to corrupt
29
conduct unless it could constitute or involve:
30
(a) a criminal offence; or
31
(b) a disciplinary offence; or
32
Part 1 Preliminary
Section 8
10 National Integrity Commissioner Bill 2012 No. , 2012
(c) reasonable grounds for dismissing, dispensing with the
1
services of or otherwise terminating the services of a public
2
official; or
3
(d) in the case of conduct of a minister or a parliamentarian--a
4
substantial breach of an applicable code of conduct.
5
(8) For the purposes of paragraphs (7)(a), (b) and (c), it does not
6
matter that proceedings or action for such an offence can no longer
7
be brought or continued, or that action for such dismissal,
8
dispensing or other termination can no longer be taken.
9
8 Meaning of corruption issue
10
(1) For the purposes of this Act, a corruption issue is an issue whether
11
a person who is, or has been, a public official:
12
(a) has, or may have, engaged in corrupt conduct; or
13
(b) is, or may be, engaging in corrupt conduct; or
14
(c) will, or may at any time in the future, engage in corrupt
15
conduct.
16
(2) To avoid doubt, an allegation, or information, may raise a
17
corruption issue even if the identity of the person is unknown, is
18
uncertain or is not disclosed in the allegation or information.
19
20
The National Integrity Commission Part 2
Introduction Division 1
Section 9
National Integrity Commissioner Bill 2012 No. , 2012 11
Part 2--The National Integrity Commission
1
Division 1--Introduction
2
9 Guide to this Part
3
This Part establishes the National Integrity Commission.
4
The National Integrity Commission consists of the integrity
5
officers and the staff of the Commission.
6
The integrity officers are the National Integrity Commissioner, the
7
Law Enforcement Integrity Commissioner and the Independent
8
Parliamentary Advisor. The National Integrity Commissioner is the
9
head of the Commission (for the purposes of the Public Service Act
10
1999).
11
The functions of the Commission are as follows:
12
(a)
the national integrity functions, which are about
13
the investigation of corruption in relation to public
14
officials and Commonwealth agencies in
15
accordance with this Act;
16
(b)
the law enforcement integrity functions, which are
17
about the investigation of corruption in relation to
18
national law enforcement agencies in accordance
19
with the Law Enforcement Integrity Commissioner
20
Act 2006;
21
(c)
the independent parliamentary advisor functions,
22
which are about providing independent
23
confidential advice to ministers, parliamentarians
24
and former parliamentarians in relation to conflict
25
of interest, ethics, propriety and similar matters
26
and providing advice on the development of codes
27
of conduct.
28
Part 2 The National Integrity Commission
Division 1 Introduction
Section 9
12 National Integrity Commissioner Bill 2012 No. , 2012
Only the National Integrity Commissioner can perform the national
1
integrity commissioner functions.
2
Only the Law Enforcement Integrity Commissioner can perform
3
the law enforcement integrity commissioner functions.
4
Only the Independent Parliamentary Advisor can perform the
5
independent parliamentary advisor functions.
6
7
The National Integrity Commission Part 2
Establishment Division 2
Section 10
National Integrity Commissioner Bill 2012 No. , 2012 13
Division 2--Establishment
1
10 Establishment
2
(1) The National Integrity Commission is established by this section.
3
(2) The Commission consists of:
4
(a) the integrity officers; and
5
(b) any Assistant National Integrity Commissioner appointed
6
under Division 3 of Part 9 and the staff mentioned in
7
section 153; and
8
(c) any Assistant Law Enforcement Integrity Commissioner
9
appointed under Division 2 of Part 13 of the Law
10
Enforcement Integrity Commissioner Act 2006 and the staff
11
mentioned in section 197 of that Act.
12
(3) For the purposes of the Public Service Act 1999:
13
(a) the Commission constitutes a Statutory Agency; and
14
(b) the National Integrity Commissioner is the Head of that
15
Statutory Agency.
16
Note:
The National Integrity Commissioner holds an office equivalent to
17
that of a Secretary of a Department (see the definition of Agency
18
Head in section 7 of the Public Service Act 1999).
19
11 Definition of integrity officers
20
Each of the following is an integrity officer:
21
(a) the National Integrity Commissioner;
22
(b) the Law Enforcement Integrity Commissioner;
23
(c) the Independent Parliamentary Advisor.
24
25
Part 2 The National Integrity Commission
Division 3 Functions and powers of the integrity officers
Section 12
14 National Integrity Commissioner Bill 2012 No. , 2012
Division 3--Functions and powers of the integrity officers
1
12 Definition of national integrity commissioner functions
2
(1)
The
national integrity commissioner functions are as follows:
3
(a) to investigate and conduct public inquiries into corruption
4
issues involving:
5
(i) a public official; or
6
(ii) a Commonwealth agency;
7
and report on the results of those investigations and inquiries,
8
whether those corruption issues arose before or after the
9
commencement of this Act; and
10
(b) to communicate to appropriate authorities the results of
11
investigations and inquiries, including recommendations for
12
action that should be taken in relation to those results ; and
13
(c) on the National Integrity Commissioner's own initiative, or at
14
the request of the Prime Minister or either House of the
15
Parliament, to make reports and recommendations to the
16
Parliament about the need for or the desirability of legislative
17
or administrative action on issues in relation to:
18
(i) corruption generally in Commonwealth agencies; or
19
(ii) the integrity of public officials;
20
whether those issues arose before or after the commencement
21
of this Act; and
22
(d) with the consent of the Prime Minister, to enter into an
23
arrangement to perform the functions of a territory integrity
24
commissioner under an scheme established in accordance
25
with the conditions of licences or authorities granted under an
26
Act of a Territory; and
27
(e) to advise and assist any public official, Commonwealth
28
agency or other person (on the request of the official, agency
29
or person) on changes in laws, practices or procedures
30
compatible with the effective exercise of their functions
31
which the National Integrity Commissioner thinks necessary
32
to reduce the likelihood of the occurrence of corrupt conduct;
33
and
34
The National Integrity Commission Part 2
Functions and powers of the integrity officers Division 3
Section 13
National Integrity Commissioner Bill 2012 No. , 2012 15
(f) to educate and disseminate information to public officials,
1
Commonwealth agencies and the community on strategies to
2
combat corrupt conduct; and
3
(g) any other function conferred by this Act or another Act (or an
4
instrument under this Act or another Act) on the National
5
Integrity Commissioner.
6
(2) An arrangement referred to in paragraph (1)(d) may include
7
provision for payment by the other party to the arrangement for the
8
performance of functions by the National Integrity Commissioner
9
in accordance with the arrangement.
10
13 Definition of law enforcement integrity commissioner functions
11
The
law enforcement integrity commissioner functions are as
12
follows:
13
(a) the functions conferred on the Law Enforcement Integrity
14
Commissioner under section 15 of the Law Enforcement
15
Integrity Commissioner Act 2006; and
16
(b) any other function conferred by this Act or another Act (or an
17
instrument under this Act or another Act) on the Law
18
Enforcement Integrity Commissioner.
19
14 Definition of independent parliamentary advisor functions
20
The
independent parliamentary advisor functions are as follows:
21
(a) at the request of a minister, to provide independent
22
confidential written advice to that minister about his or her
23
compliance with the Standards of Ministerial Ethics, dated
24
December 2007 and as revised from time to time, any
25
replacement document issued in relation to ministerial
26
conduct or any another applicable code of conduct, whether
27
the request for advice relates to an issue that arose before or
28
after the commencement of this Act in relation to the
29
minister; and
30
(b) at the request of a parliamentarian or a former
31
parliamentarian, to provide independent confidential written
32
advice to that parliamentarian or former parliamentarian
33
about:
34
Part 2 The National Integrity Commission
Division 3 Functions and powers of the integrity officers
Section 15
16 National Integrity Commissioner Bill 2012 No. , 2012
(i) an applicable code of conduct; or
1
(ii) parliamentary allowances; or
2
(iii) an interest, including a potential conflict of interest; or
3
(iv) an ethical issue; or
4
(v) a matter of propriety, including the receipt of a gift; or
5
(vi) any similar issue;
6
whether the request for advice relates to an issue that arose
7
before or after the commencement of this Act in relation to
8
the parliamentarian, the former parliamentarian or a person
9
employed under the Members of Parliament (Staff) Act 1984;
10
and
11
(c) at the request of a presiding officer or a committee of a
12
House of the Parliament, to provide independent confidential
13
written advice in relation to any matter, including the
14
development of a code of conduct for parliamentarians of that
15
House; and
16
(d) to prepare better practice guides and fact sheets, in relation to
17
matters of conduct, propriety and ethics, for ministers,
18
parliamentarians, former parliamentarians and persons
19
employed under the Members of Parliament (Staff) Act 1984;
20
and
21
(e) to provide an annual report to the Parliament outlining the
22
nature of all matters considered under paragraphs (a) and (b),
23
without identifying any of the parties involved; and
24
(f) any other function conferred by this Act or another Act (or an
25
instrument under this Act or another Act) on the Independent
26
Parliamentary Advisor.
27
15 Functions and powers of the National Integrity Commissioner
28
(1) The National Integrity Commissioner has the national integrity
29
commissioner functions.
30
(2) The National Integrity Commissioner has power to do all things
31
necessary or convenient to be done for or in connection with the
32
performance of the national integrity commissioner functions
33
conferred by this section.
34
The National Integrity Commission Part 2
Functions and powers of the integrity officers Division 3
Section 16
National Integrity Commissioner Bill 2012 No. , 2012 17
16 Functions and powers of the Law Enforcement Integrity
1
Commissioner
2
(1) The Law Enforcement Integrity Commissioner has the law
3
enforcement integrity commissioner functions.
4
(2) The Law Enforcement Integrity Commissioner has the powers
5
conferred under Parts 9 and 12 of the Law Enforcement Integrity
6
Commissioner Act 2006 to do things necessary or convenient to be
7
done for or in connection with the performance of the law
8
enforcement integrity commissioner functions conferred by this
9
section.
10
17 Functions and powers of the Independent Parliamentary Advisor
11
(1) The Independent Parliamentary Advisor has the independent
12
parliamentary advisor functions.
13
(2) The Independent Parliamentary Advisor has power to do all things
14
necessary or convenient to be done for or in connection with the
15
performance of the independent parliamentary advisor functions
16
conferred by this section.
17
18
Part 3 Dealing with corruption issues
Division 1 Introduction
Section 18
18 National Integrity Commissioner Bill 2012 No. , 2012
Part 3--Dealing with corruption issues
1
Division 1--Introduction
2
18 Guide to this Part
3
This Division is about:
4
(a)
the referral of corruption issues to the National
5
Integrity Commissioner; and
6
(b)
how the National Integrity Commissioner deals
7
with referred corruption issues; and
8
(c)
how the National Integrity Commissioner deals
9
with corruption issues on his or her own initiative;
10
and
11
(d)
reconsideration by the National Integrity
12
Commissioner of how to deal with a corruption
13
issue.
14
15
Dealing with corruption issues Part 3
Referring corruption issues to National Integrity Commissioner Division 2
Section 19
National Integrity Commissioner Bill 2012 No. , 2012 19
Division 2--Referring corruption issues to National
1
Integrity Commissioner
2
19 Referral of corruption issues
3
(1) A person may refer to the National Integrity Commissioner under
4
this section an allegation, or information, that raises a corruption
5
issue.
6
(2) Without limiting subsection (1):
7
(a) the person may refer the allegation or information on behalf
8
of:
9
(i) another person; or
10
(ii) a Commonwealth agency; or
11
(iii) a body or association of persons; and
12
(b) the person may refer the allegation or information
13
anonymously; and
14
(c) the person may refer the allegation or information either
15
orally or in writing.
16
(3) If the person refers the allegation or information orally, the
17
National Integrity Commissioner may require the person to put the
18
allegation or the information in writing.
19
(4) If the person is asked to put the allegation or information in writing
20
under subsection (3), the National Integrity Commissioner may
21
refuse to investigate the corruption issue that the allegation or
22
information raises, or to investigate the corruption issue further,
23
until the allegation or information is put in writing.
24
(5)
If
the
Ombudsman:
25
(a) decides, under subsection 6(15A) of the Ombudsman Act
26
1976, to refer an allegation or information to the National
27
Integrity Commissioner; or
28
(b) is required, under subsection 6(15B) of that Act, to refer an
29
allegation or information to the National Integrity
30
Commissioner;
31
Part 3 Dealing with corruption issues
Division 2 Referring corruption issues to National Integrity Commissioner
Section 20
20 National Integrity Commissioner Bill 2012 No. , 2012
the person who referred the allegation or information to the
1
Ombudsman is taken to have referred the allegation or information
2
to the National Integrity Commissioner under this section.
3
20 Person making referral under section 19 may elect to be kept
4
informed
5
(1) If a person refers an allegation or information to the National
6
Integrity Commissioner under section 19, the National Integrity
7
Commissioner must ask the person to elect whether or not to be
8
kept informed of the action taken in relation to the corruption issue
9
raised by the allegation or information.
10
(2) Subsection (1) does not apply if the person refers the allegation or
11
information anonymously.
12
(3) If the person fails to make an election when asked to do so, the
13
person is taken to have elected not to be kept informed of the
14
action taken in relation to the corruption issue.
15
(4) If the person elects to be kept informed of the action taken in
16
relation to the corruption issue, the person may revoke the election
17
at any time by notice to the National Integrity Commissioner.
18
19
Dealing with corruption issues Part 3
How National Integrity Commissioner deals with referred corruption issues Division 3
Section 21
National Integrity Commissioner Bill 2012 No. , 2012 21
Division 3--How National Integrity Commissioner deals
1
with referred corruption issues
2
21 How National Integrity Commissioner may deal with referred
3
corruption issues
4
(1) The National Integrity Commissioner may deal with a referred
5
corruption issue by deciding:
6
(a) to investigate the corruption issue; or
7
(b) not to investigate the corruption issue.
8
(2) The National Integrity Commissioner may make a decision under
9
paragraph (1)(b) only if he or she is satisfied that:
10
(a) the corruption issue is already being, or will be, investigated
11
by another Commonwealth agency; or
12
(b) the referral of the allegation, or information, that raises the
13
corruption issue is frivolous or vexatious or was not made in
14
good faith; or
15
(c) the corrupt conduct to which the corruption issue relates has
16
been, is or will be, the subject of proceedings before a court;
17
or
18
(d) investigation of the corruption issue is not warranted having
19
regard to all the circumstances.
20
22 Advising person who refers corruption issue of decision about
21
how to deal with corruption issue
22
National Integrity Commissioner to advise person who refers
23
corruption issue
24
(1) If a person:
25
(a) refers an allegation, or information, that raises a corruption
26
issue to the National Integrity Commissioner under
27
section 19; and
28
(b) elects under section 20 to be kept informed of the action
29
taken in relation to the corruption issue;
30
the National Integrity Commissioner must advise the person of:
31
Part 3 Dealing with corruption issues
Division 3 How National Integrity Commissioner deals with referred corruption issues
Section 22
22 National Integrity Commissioner Bill 2012 No. , 2012
(c) the National Integrity Commissioner's decision under
1
section 21 in relation to the corruption issue; and
2
(d) any decision the National Integrity Commissioner makes
3
under section 27 on a reconsideration of how the corruption
4
issue should be dealt with.
5
Form and timing of advice
6
(2) The National Integrity Commissioner must advise the person of the
7
decision:
8
(a) in writing; and
9
(b) as soon as reasonably practicable after the decision is made.
10
Exception
11
(3) However, the National Integrity Commissioner need not advise the
12
person if the National Integrity Commissioner is satisfied that
13
doing so is likely to prejudice:
14
(a) the investigation of the corruption issue or another corruption
15
investigation; or
16
(b) any action taken as a result of an investigation referred to in
17
paragraph (a).
18
Advice to nominated person or office holder
19
(4)
If:
20
(a) a person refers an allegation, or information, that raises the
21
corruption issue to the National Integrity Commissioner on
22
behalf of:
23
(i) another person; or
24
(ii) a Commonwealth agency; or
25
(iii) a body or association of persons; and
26
(b) the other person, the agency, the body or the association
27
nominates:
28
(i) another person; or
29
(ii) the holder of a particular office in the agency, body or
30
association;
31
Dealing with corruption issues Part 3
How National Integrity Commissioner deals with referred corruption issues Division 3
Section 23
National Integrity Commissioner Bill 2012 No. , 2012 23
by notice in writing to the National Integrity Commissioner
1
to receive communications from the National Integrity
2
Commissioner;
3
the National Integrity Commissioner must give the advice required
4
by subsection (1) to the person nominated or the person for the
5
time being holding the office nominated.
6
23 Advising person to whom referred corruption issue relates of
7
decision about how to deal with corruption issue
8
If the National Integrity Commissioner makes a decision under
9
section 21 or 27 in relation to a referred corruption issue that
10
relates to a person, the National Integrity Commissioner may
11
advise the person of the National Integrity Commissioner's
12
decision.
13
14
Part 3 Dealing with corruption issues
Division 4 National Integrity Commissioner dealing with corruption issues on own
initiative
Section 24
24 National Integrity Commissioner Bill 2012 No. , 2012
Division 4--National Integrity Commissioner dealing with
1
corruption issues on own initiative
2
24 National Integrity Commissioner may deal with corruption issues
3
on own initiative
4
(1) If the National Integrity Commissioner becomes aware of an
5
allegation, or information, that raises a corruption issue, the
6
National Integrity Commissioner may, on his or her own initiative,
7
investigate, or inquire into, the corruption issue.
8
(2) Subsection (1) does not apply if the National Integrity
9
Commissioner becomes aware of the allegation or information
10
because of action taken under Division 2 of this Part.
11
(3) Without limiting subsection (1), if the National Integrity
12
Commissioner:
13
(a) is investigating, or inquiring into, a particular corruption
14
issue; and
15
(b) in the course of doing so, becomes aware of an allegation, or
16
information, that raises another corruption issue;
17
the National Integrity Commissioner may also investigate, or
18
inquire into, that other corruption issue.
19
25 Advising head of Commonwealth agency of decision to deal with
20
corruption issue on own initiative
21
Application of section
22
(1) This section applies if:
23
(a) the National Integrity Commissioner decides, on his or her
24
own initiative, to investigate, or inquire into, a corruption
25
issue in accordance with subsection 24(1); and
26
(b) the corruption issue relates to the conduct of a person who is
27
an employee of a Commonwealth agency (other than the
28
head of the agency).
29
Dealing with corruption issues Part 3
National Integrity Commissioner dealing with corruption issues on own initiative
Division 4
Section 26
National Integrity Commissioner Bill 2012 No. , 2012 25
Advising head of Commonwealth agency
1
(2) The National Integrity Commissioner must advise the head of that
2
Commonwealth agency of:
3
(a) the National Integrity Commissioner's decision investigate,
4
or inquire into, the corruption issue; and
5
(b) any decision the National Integrity Commissioner makes
6
under section 27 on a reconsideration of how the corruption
7
issue should be dealt with.
8
Form and timing of advice
9
(3) The National Integrity Commissioner must advise the head of the
10
Commonwealth agency of the decision:
11
(a) in writing; and
12
(b) as soon as reasonably practicable after the decision is made.
13
Exception
14
(4) However, the National Integrity Commissioner need not advise the
15
head of the Commonwealth agency if doing so would be likely to
16
prejudice:
17
(a) the investigation of the corruption issue or another corruption
18
investigation; or
19
(b) any action taken as a result of an investigation referred to in
20
paragraph (a).
21
26 Advising person of decision to deal with corruption issue on own
22
initiative
23
If:
24
(a) the National Integrity Commissioner decides, on his or her
25
own initiative, to investigate, or inquire into, a corruption
26
issue in accordance with subsection 24(1); and
27
(b) the corruption issue relates to a person who is, or has been, a
28
public official;
29
the National Integrity Commissioner may advise the person of:
30
(c) the National Integrity Commissioner's decision to
31
investigate, or inquire into, the corruption issue; and
32
Part 3 Dealing with corruption issues
Division 4 National Integrity Commissioner dealing with corruption issues on own
initiative
Section 26
26 National Integrity Commissioner Bill 2012 No. , 2012
(d) any decision the National Integrity Commissioner makes
1
under section 27 on a reconsideration of how the corruption
2
issue should be dealt with.
3
4
Dealing with corruption issues Part 3
Reconsidering how to deal with a corruption issue Division 5
Section 27
National Integrity Commissioner Bill 2012 No. , 2012 27
Division 5--Reconsidering how to deal with a corruption
1
issue
2
27 Reconsidering how to deal with a corruption issue
3
(1) The National Integrity Commissioner may, at any time, reconsider
4
how a particular corruption issue should be dealt with.
5
(2) On that reconsideration, the National Integrity Commissioner may:
6
(a) if the corruption issue is not being dealt with under paragraph
7
21(1)(a) or subsection 24(1)--decide to deal with the
8
corruption issue in accordance with one of those provisions;
9
or
10
(b) if the corruption issue is being dealt with under paragraph
11
21(1)(a) or subsection 24(1)--decide to discontinue the
12
investigation of, or inquiry into, the corruption issue.
13
(3) The National Integrity Commissioner may make a decision under
14
paragraph (2)(b) only if he or she is satisfied that:
15
(a) the corruption issue is already being, or will be, investigated
16
by another Commonwealth agency; or
17
(b) the referral of the allegation, or information, that raises the
18
corruption issue is frivolous or vexatious or was not made in
19
good faith; or
20
(c) the corrupt conduct to which the corruption issue relates has
21
been, is or will be, the subject of proceedings before a court;
22
or
23
(d) further investigation of the corruption issue is not warranted
24
having regard to all the circumstances.
25
26
Part 4 Investigations by the National Integrity Commissioner
Division 1 Introduction
Section 28
28 National Integrity Commissioner Bill 2012 No. , 2012
Part 4--Investigations by the National Integrity
1
Commissioner
2
Division 1--Introduction
3
28 Guide to this Part
4
This Division is about:
5
(a)
how the National Integrity Commissioner conducts
6
an investigation; and
7
(b)
the National Integrity Commissioner giving
8
persons an opportunity to be heard; and
9
(c)
the reporting required in relation to an
10
investigation.
11
12
Investigations by the National Integrity Commissioner Part 4
Investigation Division 2
Section 29
National Integrity Commissioner Bill 2012 No. , 2012 29
Division 2--Investigation
1
29 Application of Division
2
This Division applies if the National Integrity Commissioner
3
investigates a corruption issue.
4
30 National Integrity Commissioner to determine manner of
5
conducting investigation
6
The National Integrity Commissioner may conduct the
7
investigation in such manner as the National Integrity
8
Commissioner thinks fit.
9
Note:
Part 6 provides for particular powers that are available to the National
10
Integrity Commissioner for the purposes of the investigation.
11
31 Opportunity to be heard
12
Opinion or finding critical
13
(1) Subject to subsection (2), the National Integrity Commissioner
14
must not include in a report under section 33 in relation to an
15
investigation of a corruption issue an opinion or finding that is
16
critical of a Commonwealth agency or a person (either expressly or
17
impliedly) unless the National Integrity Commissioner has taken
18
the action required by subsection (3) or (4) before completing the
19
investigation.
20
(2) Subsection (1) does not apply if the National Integrity
21
Commissioner is satisfied that:
22
(a) a person may have:
23
(i) committed a criminal offence; or
24
(ii) contravened a civil penalty provision; or
25
(iii) engaged in conduct that could be the subject of
26
disciplinary proceedings; or
27
(iv) engaged in conduct that could be grounds for
28
terminating the person's appointment or employment;
29
and
30
Part 4 Investigations by the National Integrity Commissioner
Division 2 Investigation
Section 31
30 National Integrity Commissioner Bill 2012 No. , 2012
(b) taking action under subsection (3) or (4) would compromise
1
the effectiveness of:
2
(i) the investigation of the corruption issue or another
3
corruption investigation; or
4
(ii) any action taken as a result of an investigation referred
5
to in subparagraph (i).
6
Opportunity to appear and make submissions
7
(3) If the opinion or finding is critical of a Commonwealth agency, the
8
National Integrity Commissioner must give the head of the
9
Commonwealth agency:
10
(a) a statement setting out the opinion or finding; and
11
(b) a reasonable opportunity to appear before him or her and to
12
make submissions in relation to the opinion or finding.
13
(4) If the opinion or finding is critical of a person, the National
14
Integrity Commissioner must give the person:
15
(a) a statement setting out the opinion or finding; and
16
(b) a reasonable opportunity to appear before him or her and to
17
make submissions in relation to the opinion or finding.
18
(5) Submissions under subsection (3) or (4) may be made orally or in
19
writing.
20
Representation
21
(6) The head of a Commonwealth agency may:
22
(a) appear before the National Integrity Commissioner
23
personally; or
24
(b) authorise another person to appear before the National
25
Integrity Commissioner on his or her behalf.
26
(7) A person referred to in subsection (4):
27
(a) may appear before the National Integrity Commissioner
28
personally; or
29
(b) may, with the National Integrity Commissioner's approval,
30
be represented by another person.
31
32
Investigations by the National Integrity Commissioner Part 4
Reporting Division 3
Section 32
National Integrity Commissioner Bill 2012 No. , 2012 31
Division 3--Reporting
1
Subdivision A--Reporting during investigation
2
32 National Integrity Commissioner to keep person who referred
3
corruption issue informed of progress of investigation
4
Person who refers issue under section 19
5
If:
6
(a) a person refers an allegation, or information, that raises a
7
corruption issue to the National Integrity Commissioner
8
under section 19; and
9
(b) the National Integrity Commissioner investigates the
10
corruption issue; and
11
(c) the person elects under section 20 to be kept informed of the
12
action taken in relation to the corruption issue and has not
13
revoked the election;
14
the National Integrity Commissioner must take such steps as the
15
National Integrity Commissioner considers reasonable to keep the
16
person informed of the progress of the investigation of that
17
corruption issue.
18
Subdivision B--Reporting at the end of investigation
19
33 Report on investigation
20
Report and its contents
21
(1) After completing an investigation of a corruption issue, the
22
National Integrity Commissioner must prepare a report on the
23
investigation.
24
(2) The report must set out:
25
(a) the National Integrity Commissioner's findings on the
26
corruption issue; and
27
(b) the evidence and other material on which those findings are
28
based; and
29
Part 4 Investigations by the National Integrity Commissioner
Division 3 Reporting
Section 33
32 National Integrity Commissioner Bill 2012 No. , 2012
(c) any action that the National Integrity Commissioner has
1
taken, or proposes to take, under Part 7 in relation to the
2
investigation; and
3
(d) any recommendations that the National Integrity
4
Commissioner thinks fit to make and, if recommendations are
5
made, the reasons for those recommendations.
6
This subsection has effect subject to subsections (4) and (5).
7
Note 1:
See section 31 for the need for the National Integrity Commissioner to
8
give certain people an opportunity to be heard before including critical
9
statements in a report.
10
Note 2:
Under section 157, the report must be tabled in each House of the
11
Parliament.
12
(3) Without limiting paragraph (2)(d), the National Integrity
13
Commissioner may recommend:
14
(b) the termination of the employment of a person in accordance
15
with the relevant procedures; or
16
(d) the adoption of measures to remedy deficiencies in the
17
policy, procedures or practices that facilitated:
18
(i) a person engaging in corrupt conduct; or
19
(ii) the failure to detect corrupt conduct engaged in by a
20
person.
21
(4) The National Integrity Commissioner may exclude information
22
from the report if the National Integrity Commissioner is satisfied
23
that:
24
(a) the information is sensitive information; and
25
(b) it is desirable in the circumstances to exclude the information
26
from the report.
27
(5) In deciding whether to exclude information from the report
28
prepared under subsection (4), the National Integrity
29
Commissioner must seek to achieve an appropriate balance
30
between:
31
(a) the public interest that would be served by including the
32
information in the report; and
33
(b) the prejudicial consequences that might result from including
34
the information in the report.
35
Investigations by the National Integrity Commissioner Part 4
Reporting Division 3
Section 34
National Integrity Commissioner Bill 2012 No. , 2012 33
Supplementary report
1
(6) If the National Integrity Commissioner excludes information from
2
a report prepared under subsection (4), the National Integrity
3
Commissioner must prepare a supplementary report that sets out:
4
(a) the information; and
5
(b) the reasons for excluding the information from the report
6
prepared under subsection (4).
7
34 National Integrity Commissioner to give report to Prime Minister
8
The National Integrity Commissioner must give the Prime
9
Minister:
10
(a) the report prepared under subsection 33(1); and
11
(b) if a supplementary report is prepared under subsection 33(6)
12
in relation to the investigation--the supplementary report.
13
Note:
Section 157 provides that the Prime Minister must table a copy of the
14
report prepared under subsection 33(1) in each House of the
15
Parliament if a public hearing has been held in the course of the
16
investigation to which the report relates. The Prime Minister is not
17
required, however, to table a copy of a supplementary report under
18
subsection 33(6) in each House of the Parliament.
19
35 Advising person who referred corruption issue of outcome of the
20
investigation
21
Advice to person who referred issue under section 19
22
(1) If a person:
23
(a) refers an allegation, or information, that raises a corruption
24
issue to the National Integrity Commissioner under
25
section 19; and
26
(b) elects under section 20 to be kept informed of the action
27
taken in relation to the corruption issue and has not revoked
28
the election;
29
the National Integrity Commissioner must advise the person of the
30
outcome of the investigation of the corruption issue.
31
Part 4 Investigations by the National Integrity Commissioner
Division 3 Reporting
Section 35
34 National Integrity Commissioner Bill 2012 No. , 2012
Exception
1
(2) However, the National Integrity Commissioner need not advise the
2
person if the National Integrity Commissioner is satisfied that
3
doing so is likely to prejudice:
4
(a) the investigation of the corruption issue or another corruption
5
investigation; or
6
(b) any action taken as a result of an investigation referred to in
7
paragraph (a).
8
Manner of giving advice
9
(3) The National Integrity Commissioner may advise the person of the
10
outcome of the investigation by giving the person a copy of the
11
whole or a part of the report prepared in relation to the
12
investigation under subsection 33(1).
13
(4) In advising the person of the outcome of the investigation, the
14
National Integrity Commissioner may exclude information from
15
the advice if the National Integrity Commissioner is satisfied that:
16
(a) the information is sensitive information; and
17
(b) it is desirable in the circumstances to exclude the information
18
from the advice.
19
(5) In deciding whether to exclude information from the advice under
20
subsection (4), the National Integrity Commissioner must seek to
21
achieve an appropriate balance between:
22
(a) the person's interest in having the information included in the
23
advice; and
24
(b) the prejudicial consequences that might result from including
25
the information in the advice.
26
Advice to nominated person
27
(6)
If:
28
(a) a person refers an allegation, or information, that raises the
29
corruption issue to the National Integrity Commissioner on
30
behalf of:
31
(i) another person; or
32
(ii) a Commonwealth agency; or
33
Investigations by the National Integrity Commissioner Part 4
Reporting Division 3
Section 36
National Integrity Commissioner Bill 2012 No. , 2012 35
(iii) a body or association of persons; and
1
(b) the other person, the agency, the body or the association
2
nominates:
3
(i) another person; or
4
(ii) the holder of a particular office in the agency, body or
5
association;
6
by notice in writing to the National Integrity Commissioner
7
to receive communications from the National Integrity
8
Commissioner;
9
the National Integrity Commissioner must give the advice required
10
by subsection (1) to the person nominated or the person for the
11
time being holding the office nominated.
12
36 Advising person whose conduct is investigated of outcome of the
13
investigation
14
(1) If the National Integrity Commissioner investigates a corruption
15
issue that relates to a person, the National Integrity Commissioner
16
may advise the person of the outcome of the investigation.
17
(2) Without limiting subsection (1), the National Integrity
18
Commissioner may advise the person of the outcome of the
19
investigation by giving the person a copy of the whole or a part of
20
the report prepared in relation to the investigation under subsection
21
33(1).
22
(3) In advising the person under subsection (1), the National Integrity
23
Commissioner may exclude information from the advice if the
24
National Integrity Commissioner is satisfied that:
25
(a) the information is sensitive information; and
26
(b) it is desirable in the circumstances to exclude the information
27
from the advice.
28
(4) In deciding whether to exclude information from the advice under
29
subsection (3), the National Integrity Commissioner must seek to
30
achieve an appropriate balance between:
31
(a) the person's interest in having the information included in the
32
advice; and
33
Part 4 Investigations by the National Integrity Commissioner
Division 3 Reporting
Section 36
36 National Integrity Commissioner Bill 2012 No. , 2012
(b) the prejudicial consequences that might result from including
1
the information in the advice.
2
3
Public inquiries into corruption issues Part 5
Introduction Division 1
Section 37
National Integrity Commissioner Bill 2012 No. , 2012 37
Part 5--Public inquiries into corruption issues
1
Division 1--Introduction
2
37 Guide to this Part
3
This Division is about:
4
(a)
how the National Integrity Commissioner conducts
5
public inquiries into corruption issues; and
6
(b)
the reporting required in relation to the conduct of
7
a public inquiry.
8
9
Part 5 Public inquiries into corruption issues
Division 2 Conducting a public inquiry
Section 38
38 National Integrity Commissioner Bill 2012 No. , 2012
Division 2--Conducting a public inquiry
1
38 National Integrity Commissioner may conduct public inquiry
2
The National Integrity Commissioner may, if he or she is satisfied
3
that it is in the public interest to do so, conduct a public inquiry in
4
relation to a corruption issue or issues.
5
Note:
Part 6 provides for particular powers that are available to the National
6
Integrity Commissioner for the purposes of the public inquiry.
7
39 Publicising inquiry
8
(1) The National Integrity Commissioner must invite submissions on
9
the corruption issue that is to be the subject of the public inquiry.
10
Note:
Subsection 76(1) provides certain protections for people who make
11
submissions.
12
(2) The invitation must specify the closing date for submissions.
13
(3) If the National Integrity Commissioner receives a submission, he
14
or she may, if satisfied that it is in the public interest to do so,
15
authorise it to be published on the National Integrity Commission's
16
website.
17
18
Public inquiries into corruption issues Part 5
Reporting Division 3
Section 40
National Integrity Commissioner Bill 2012 No. , 2012 39
Division 3--Reporting
1
40 Report on public inquiry
2
Report and its contents
3
(1) After conducting a public inquiry, the National Integrity
4
Commissioner must prepare a report on the inquiry.
5
(2) The report must set out:
6
(a) the National Integrity Commissioner's findings as a result of
7
the public inquiry; and
8
(b) the evidence and other material on which those findings are
9
based; and
10
(c) any action that the National Integrity Commissioner has
11
taken, or proposes to take, under Part 7 in relation to the
12
inquiry; and
13
(d) any recommendations that the National Integrity
14
Commissioner thinks fit to make and, if recommendations are
15
made, the reasons for those recommendations.
16
Note:
Under section 157, the report must be tabled in each House of the
17
Parliament.
18
Sensitive information
19
(3) The National Integrity Commissioner may exclude information
20
from the report if the National Integrity Commissioner is satisfied
21
that:
22
(a) the information is sensitive information; and
23
(b) it is desirable in the circumstances to exclude the information
24
from the report.
25
(4) In deciding whether to exclude information from the report
26
prepared under subsection (3), the National Integrity
27
Commissioner must seek to achieve an appropriate balance
28
between:
29
(a) the public interest that would be served by including the
30
information in the report; and
31
Part 5 Public inquiries into corruption issues
Division 3 Reporting
Section 41
40 National Integrity Commissioner Bill 2012 No. , 2012
(b) the prejudicial consequences that might result from including
1
the information in the report.
2
Supplementary report
3
(5) If, under subsection (4), the National Integrity Commissioner
4
excludes information from a report prepared under subsection (1),
5
the National Integrity Commissioner must prepare a supplementary
6
report that sets out:
7
(a) the information; and
8
(b) the reasons for excluding the information from the report
9
prepared under subsection (1).
10
41 Giving report to Prime Minister
11
The National Integrity Commissioner must give the Prime
12
Minister:
13
(a) the report prepared under subsection 40(1); and
14
(b) if a supplementary report is prepared under subsection
15
40(5)--the supplementary report.
16
Note:
Section 157 provides that the Prime Minister must table a copy of the
17
report prepared under subsection 40(1) in each House of the
18
Parliament if a public hearing has been held in the course of the
19
investigation to which the report relates. The Prime Minister is not
20
required, however, to table a copy of a supplementary report under
21
subsection 40(5) in each House of the Parliament.
22
23
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Introduction Division 1
Section 42
National Integrity Commissioner Bill 2012 No. , 2012 41
Part 6--National Integrity Commissioner's powers
1
in conducting investigations and public
2
inquiries
3
Division 1--Introduction
4
42 Guide to this Part
5
This Division is about the powers of the National Integrity
6
Commissioner in conducting investigations and public inquiries.
7
The National Integrity Commissioner may:
8
(a)
require persons to provide information or produce
9
documents or things;
10
(b)
conduct
hearings;
11
(c)
apply for and execute search warrants;
12
(d)
exercise powers of arrest;
13
(e)
appoint authorised officers.
14
15
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 43
42 National Integrity Commissioner Bill 2012 No. , 2012
Division 2--Requiring people to give information or
1
produce documents or things
2
Subdivision A--Requests by National Integrity Commissioner
3
43 Request to person to give information or produce documents or
4
things
5
(1) For the purposes of investigating a corruption issue, the National
6
Integrity Commissioner may request a person:
7
(a) to give the National Integrity Commissioner the information
8
specified in the request; or
9
(b) to produce to the National Integrity Commissioner the
10
documents or things specified in the request.
11
(2) The National Integrity Commissioner's request must:
12
(a) be served on the person; and
13
(b) be in writing and signed by the National Integrity
14
Commissioner; and
15
(c) specify the period within which the person must comply with
16
the request.
17
The period specified under paragraph (c) must be at least 14 days
18
starting on the day on which the request is served on the person.
19
(3) The National Integrity Commissioner may make the request
20
without holding a public hearing.
21
(4)
The
person
must:
22
(a) give the information in writing; or
23
(b) produce the documents or things;
24
within the time specified in the request, or within such further time
25
as the National Integrity Commissioner allows.
26
Note:
Failure to comply with a request is an offence: see section 45.
27
(5) For the purposes of sections 45 to 48, the power of the National
28
Integrity Commissioner under this section to request a person to
29
give information or to produce a document or thing includes the
30
power to request or require the person to provide information or
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 44
National Integrity Commissioner Bill 2012 No. , 2012 43
produce a document or thing that is subject to legal professional
1
privilege.
2
Note:
Under sections 46 and 47, legal professional privilege may still extend
3
to the information, document or thing.
4
44 National Integrity Commissioner may retain documents and
5
things
6
(1) If a document or thing is produced to the National Integrity
7
Commissioner in accordance with a request under section 43, the
8
National Integrity Commissioner:
9
(a) may take possession of, and may make copies of, the
10
document or thing, or take extracts from the document; and
11
(b) may retain possession of the document or thing for such
12
period as is necessary for the purposes of the investigation to
13
which the document or thing relates.
14
(2) While the National Integrity Commissioner retains the document or
15
thing, he or she must allow a person who would otherwise be
16
entitled to inspect the document or view the thing to do so at the
17
times that the person would ordinarily be able to do so.
18
Subdivision B--Offence and related provisions
19
45 Failure to comply with National Integrity Commissioner's
20
request
21
A person commits an offence if:
22
(a) the person is given a request under section 43; and
23
(b) the person fails to comply with the request.
24
Penalty: Imprisonment for 2 years.
25
Note 1:
A person may refuse to give information or produce a document or
26
thing on the ground of legal professional privilege: see sections 46 and
27
47.
28
Note 2:
This section is not subject to the privilege against self-incrimination
29
but there are limits on the uses to which the evidence the person gives
30
may be put: see section 49.
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 46
44 National Integrity Commissioner Bill 2012 No. , 2012
46 Legal professional privilege--information
1
(1) A person must not refuse or fail to provide information to the
2
National Integrity Commissioner when requested to do so under
3
section 43 on the ground that the information (or the relevant part
4
of the information) would disclose a communication that is subject
5
to legal professional privilege, unless a claim to that effect has
6
been made to the National Integrity Commissioner:
7
(a) within the time that the National Integrity Commissioner, in
8
requiring the information to be provided, allowed for its
9
provision; or
10
(b) within such further time as the National Integrity
11
Commissioner allows for the information to be provided.
12
Note:
See also paragraph 49(5)(c).
13
(2) If such a claim is made, the National Integrity Commissioner may
14
decide whether to accept or reject the claim.
15
(3) The National Integrity Commissioner may, by written notice
16
served (as prescribed) on the person, require the person to provide
17
the information for consideration (by the National Integrity
18
Commissioner or a person authorised by the National Integrity
19
Commissioner) for the purpose of deciding whether to accept or
20
reject the claim.
21
(4) If the information has been provided for consideration and the
22
National Integrity Commissioner decides to accept the claim, the
23
National Integrity Commissioner must:
24
(a) return the information to the person; and
25
(b) disregard, for the purposes of any report or decision that the
26
National Integrity Commissioner makes:
27
(i) if the claim is accepted in relation to the all of the
28
information--all of the information; or
29
(ii) if the claim is accepted in relation to a part of the
30
information--that part of the information.
31
(5) If the information has been provided for consideration and the
32
National Integrity Commissioner decides to reject the claim, the
33
National Integrity Commissioner may use the information for the
34
purposes of the inquiry.
35
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 47
National Integrity Commissioner Bill 2012 No. , 2012 45
(6) Without limiting subsections (3) and (5), the powers of the
1
National Integrity Commissioner include, by force of this
2
subsection, the power to decide whether to accept or reject the
3
claim.
4
47 Legal professional privilege--documents or things
5
(1) A person must not refuse or fail to produce a document or thing to
6
the National Integrity Commissioner when requested to do so
7
under section 43 on the ground that the document or thing is
8
subject to legal professional privilege, unless:
9
(a) a court has found the document or thing (or the relevant part
10
of the document or thing) to be subject to legal professional
11
privilege; or
12
(b) a claim that the document or thing (or the relevant part of the
13
document or thing) is subject to legal professional privilege
14
has been made to the National Integrity Commissioner:
15
(i) within the time that the National Integrity
16
Commissioner, in requiring production of the document
17
or thing, allowed for its production; or
18
(ii) within such further time as the National Integrity
19
Commissioner allows for production of the document or
20
thing.
21
Note:
See also paragraph 49(5)(c).
22
(2) If such a claim is made, the National Integrity Commissioner may
23
decide whether to accept or reject the claim.
24
(3) The National Integrity Commissioner may, by written notice
25
served (as prescribed) on the person, require the person to produce
26
the document or thing for inspection (by the National Integrity
27
Commissioner or a person authorised by the National Integrity
28
Commissioner) for the purpose of deciding whether to accept or
29
reject the claim.
30
(4) If the document or thing has been produced for inspection and the
31
National Integrity Commissioner decides to accept the claim, the
32
National Integrity Commissioner must:
33
(a) return the document or thing to the person; and
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 48
46 National Integrity Commissioner Bill 2012 No. , 2012
(b) disregard, for the purposes of any report or decision that the
1
National Integrity Commissioner makes:
2
(i) if the claim is accepted in relation to the whole
3
document or thing--the whole document or thing; or
4
(ii) if the claim is accepted in relation to a part of the
5
document or thing--that part of the document or thing.
6
(5) If the document or thing has been produced for inspection and the
7
National Integrity Commissioner decides to reject the claim, the
8
National Integrity Commissioner may use the document or thing
9
for the purposes of the inquiry.
10
(6) Without limiting subsections (3) and (5), the powers of the
11
National Integrity Commissioner include, by force of this
12
subsection, the power to decide whether to accept or reject the
13
claim.
14
48 Offences relating to claims for legal professional privilege
15
(1) A person commits an offence if:
16
(a) the person had refused or failed to comply with a request
17
under section 43; and
18
(b) the National Integrity Commissioner has decided under
19
subsection 46(2) or 47(2) to reject a claim that the
20
information, document or thing (or the relevant part of the
21
information, document or thing) is subject to legal
22
professional privilege; and
23
(c) the person refuses or fails to provide the information or
24
produce the document or thing as the National Integrity
25
Commissioner requires, after that decision, under subsection
26
43(5).
27
Penalty: $1,000 or imprisonment for 6 months.
28
(2) A person commits an offence if the person refuses or fails:
29
(a) to provide information that the person was required under
30
subsection 46(3) to provide; or
31
(b) to produce a document or thing that the person was required
32
under subsection 47(3) to produce for inspection.
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 49
National Integrity Commissioner Bill 2012 No. , 2012 47
Penalty: $1,000 or imprisonment for 6 months.
1
(3) Subsections (1) and (2) are offences of strict liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
(4) Subsections (1) and (2) do not apply if the person has a reasonable
4
excuse.
5
(5) It is not a reasonable excuse for the purposes of subsection (4) for a
6
person to refuse or fail to produce a document or thing that the
7
document or thing is subject to legal professional privilege, unless
8
a court has found the document or thing to be subject to legal
9
professional privilege.
10
(6) It is a defence to a prosecution for an offence against this section
11
constituted by a refusal or failure to provide information or to
12
produce a document or thing if the information, document or thing
13
was not relevant to the request under section 43 by the National
14
Integrity Commissioner.
15
Note:
A defendant bears an evidential burden in relation to the matters in
16
subsections (4) and (6) (see subsection 13.3(3) of the Criminal Code).
17
49 Self-incrimination etc.
18
Self-incrimination
19
(1) A person is not excused from:
20
(a) giving information; or
21
(b) producing a document or thing;
22
when requested to do so under section 43 on the ground that doing
23
so would tend to incriminate the person or expose the person to a
24
penalty.
25
Use indemnity
26
(2) Subsection (4) applies if:
27
(a)
the
person:
28
(i) gives the information (whether orally or in writing); or
29
(ii) produces the document or thing;
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 49
48 National Integrity Commissioner Bill 2012 No. , 2012
and, before doing so, claims that giving the information or
1
producing the document or thing, might tend to incriminate
2
the person or expose the person to a penalty; or
3
(b) the person gives the information in writing and claims, in a
4
written statement accompanying the information, that giving
5
the information might tend to incriminate the person or
6
expose the person to a penalty; or
7
(c) the person produces the document or thing and claims, in a
8
written statement accompanying the document or thing, that
9
producing the document or thing might tend to incriminate
10
the person or expose the person to a penalty.
11
(3) Subsection (4) does not apply to the production of a document that
12
is, or forms part of, a record of an existing or past business.
13
(4) None of the following:
14
(a) the information given;
15
(b) the document or thing produced;
16
is admissible in evidence against the person in criminal
17
proceedings, or any other proceedings for the imposition or
18
recovery of a penalty, other than:
19
(c) proceedings for an offence against section 45; or
20
(d) confiscation proceedings; or
21
(e) proceedings for an offence against section 137.1 or 137.2 of
22
the Criminal Code (which deals with false or misleading
23
information or documents) that relates to this Act; or
24
(f) proceedings for an offence against section 149.1 of the
25
Criminal Code (which deals with obstruction of
26
Commonwealth public officials) that relates to this Act; or
27
(g) disciplinary proceedings against the person if the person is an
28
employee of a Commonwealth agency.
29
Public interest grounds
30
(5) A person is not excused from:
31
(a) giving information; or
32
(b) producing a document or thing;
33
when requested to do so under section 43 on the ground that doing
34
so:
35
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 50
National Integrity Commissioner Bill 2012 No. , 2012 49
(c) would disclose one of the following:
1
(i) legal advice given to a minister or a Commonwealth
2
agency;
3
(ii) a communication between an officer of a
4
Commonwealth agency and another person or body,
5
being a communication protected against disclosure by
6
legal professional privilege; or
7
(d) would breach a secrecy provision other than:
8
(i) a taxation secrecy provision; or
9
(ii) a law enforcement secrecy provision; or
10
(e) would be otherwise contrary to the public interest.
11
(6) The fact that a person is not excused under subsection (5) from:
12
(a) giving information; or
13
(b) producing a document or thing;
14
does not otherwise affect a claim of legal professional privilege
15
that anyone may make in relation to that information, document or
16
thing.
17
(7) A person does not commit an offence, and is not liable to any
18
penalty, under the provisions of any other enactment (other than a
19
taxation secrecy provision or a law enforcement secrecy provision)
20
because the person gives information, or produces a document or
21
thing, when required to do so under section 43.
22
50 Protection of person required to give information or produce
23
documents or things
24
(1) A person who gives information, or produces a document or thing,
25
to the National Integrity Commissioner in response to a request
26
under section 43 has the same protection as a witness in
27
proceedings in the High Court.
28
(2) Subsection (3) applies if it appears to the National Integrity
29
Commissioner that, because a person:
30
(a) is to give information, or produce a document or thing; or
31
(b) has given information, or produced a document or thing;
32
to the National Integrity Commissioner in response to a request
33
under section 43, either:
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 50
50 National Integrity Commissioner Bill 2012 No. , 2012
(c) the safety of the person or any other person may be
1
prejudiced; or
2
(d) the person or any other person may be subjected to
3
intimidation or harassment.
4
(3) The National Integrity Commissioner may make such
5
arrangements as are necessary:
6
(a) to protect the safety of any person mentioned in
7
paragraph (2)(c); or
8
(b) to protect any person mentioned in paragraph (2)(d) from
9
intimidation or harassment.
10
(4) For the purpose of subsection (3), the arrangements that the
11
National Integrity Commissioner may make include arrangements
12
with:
13
(a) members of the Australian Federal Police; or
14
(b) members of the police force of a State or Territory.
15
(5) This section does not affect the Witness Protection Act 1994.
16
17
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 51
National Integrity Commissioner Bill 2012 No. , 2012 51
Division 3--Conducting hearings
1
Subdivision A--General provisions
2
51 National
Integrity Commissioner may hold hearings
3
National Integrity Commissioner may hold hearings for
4
investigations or public inquiries
5
(1) The National Integrity Commissioner may hold a hearing for the
6
purpose of:
7
(a) investigating a corruption issue; or
8
(b) conducting a public inquiry.
9
(2) Subject to subsections (3), (4) and (5), a hearing may be conducted
10
in such manner as the National Integrity Commissioner thinks fit.
11
Hearing in relation to an investigation of a corruption issue
12
(3) The National Integrity Commissioner may decide to hold the
13
whole (or a part) of a hearing in relation to an investigation of
14
corruption issue either in public or in private.
15
(4) In deciding under subsection (3) whether a hearing (or a part of a
16
hearing) is to be held in public or in private, the National Integrity
17
Commissioner must have regard to the following:
18
(a) whether evidence that may be given, or a matter that may
19
arise, during the hearing (or that part of the hearing) is of a
20
confidential nature or relates to the commission, or to the
21
alleged or suspected commission, of an offence;
22
(b) the seriousness of the corruption issue or issues to which the
23
public inquiry relates;
24
(c) any unfair prejudice to a person's reputation that would be
25
likely to be caused if the hearing (or that part of the hearing)
26
took place in public;
27
(d) whether it is in the public interest that the hearing (or that
28
part of the hearing) take place in public;
29
(e) any other relevant matter.
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 52
52 National Integrity Commissioner Bill 2012 No. , 2012
Note:
If the hearing is to be held in public, a witness may request that his or
1
her evidence be taken in private: see section 58.
2
Hearing in relation to a public inquiry
3
(5) A hearing in relation to a public inquiry must be held in public.
4
However, a part of a hearing in relation to a public inquiry may be
5
held in private if the National Integrity Commissioner so directs.
6
Note:
Certain evidence must be given in private, and a witness may request
7
that his or her evidence be taken in private: see section 58.
8
Record of hearing
9
(6) The National Integrity Commissioner must make a record of a
10
hearing.
11
Note:
This subsection is subject to subsection 64(4).
12
(7) If the National Integrity Commissioner is conducting a public
13
inquiry, the record of the hearing must include:
14
(a) any document produced to the National Integrity
15
Commissioner at the hearing; or
16
(b) a description of any thing (other than a document) produced
17
to the National Integrity Commissioner at the hearing;
18
unless the National Integrity Commissioner directs otherwise.
19
Direction is not a legislative instrument
20
(8) A direction given under this section is not a legislative instrument.
21
52 National Integrity Commissioner may summon person
22
(1) The National Integrity Commissioner may summon a person to
23
attend a hearing at a time and place specified in the summons:
24
(a) to give evidence; or
25
(b) to produce documents or things specified in the summons.
26
Note 1:
In certain cases, disclosing the existence of a summons, or any
27
information about it, is an offence: see section 61.
28
Note 2:
Failure to comply with a summons is an offence: see section 62.
29
Note 3:
A person may apply for legal and financial assistance in respect of his
30
or her attendance: see section 74.
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 52
National Integrity Commissioner Bill 2012 No. , 2012 53
(2) A summons must:
1
(a) be in writing and signed by the National Integrity
2
Commissioner; and
3
(b) be served on the person required to attend a hearing.
4
(3) If the hearing is held for the purpose of investigating a corruption
5
issue, a summons requiring a person to give evidence must set out,
6
so far as is reasonably practicable, the general nature of the matters
7
in relation to which the National Integrity Commissioner intends to
8
question the person.
9
(4) Subsection (3) does not prevent the National Integrity
10
Commissioner from questioning the person in relation to:
11
(a) any aspect of the corruption issue to which the hearing
12
relates; or
13
(b) another corruption issue.
14
(5) Subsection (3) does not apply if the National Integrity
15
Commissioner is satisfied that complying with that subsection is
16
likely to prejudice:
17
(a) the investigation to which the hearing relates or another
18
corruption investigation; or
19
(b) any action taken as a result of an investigation referred to in
20
paragraph (a).
21
(6) A person summoned to appear as a witness at a hearing is entitled
22
to be paid by the Commonwealth any allowances for travelling and
23
other expenses that are prescribed by the regulations.
24
(7) For the purposes of sections 62 and 64 to 66, the power of the
25
National Integrity Commissioner under this section to summon a
26
person to give evidence or to produce a document or thing includes
27
the power to require or summon the person to give evidence
28
(including answering a question) or produce a document or thing
29
that is subject to legal professional privilege.
30
Note:
Under sections 64 and 65, legal professional privilege may still extend
31
to the information, document or thing.
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 53
54 National Integrity Commissioner Bill 2012 No. , 2012
53 National Integrity Commissioner may take evidence outside
1
Australia
2
If arrangements have been made between Australia and another
3
country in relation to the taking of evidence in that country by the
4
National Integrity Commissioner for a hearing held under this
5
Division, the National Integrity Commissioner may:
6
(a) take evidence on oath or by affirmation; and
7
(b) use any evidence taken in that country in accordance with
8
those arrangements;
9
for the purpose of performing any function, or exercising any
10
power, under this Act.
11
Subdivision B--Procedure at hearing
12
54 Who may be represented at a hearing
13
(1) A person giving evidence at a hearing may be represented by a
14
legal practitioner.
15
(2) A person who is not giving evidence may be represented at a
16
hearing by a legal practitioner if:
17
(a) special circumstances exist; and
18
(b) the National Integrity Commissioner consents to the person
19
being so represented.
20
55 Who may be present at a hearing
21
Who may be present
22
(1) The National Integrity Commissioner may determine who may be
23
present during all or part of a hearing held in private.
24
(2) The National Integrity Commissioner must allow the following
25
persons to be present when evidence is being given:
26
(a) a legal practitioner representing the person giving evidence;
27
(b) a legal practitioner representing a person who:
28
(i) is not giving evidence; but
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 55
National Integrity Commissioner Bill 2012 No. , 2012 55
(ii) has the National Integrity Commissioner's consent to
1
being present at that time.
2
Opportunity to comment on a person's presence
3
(3)
If:
4
(a) a person (the witness) is giving evidence at a hearing; and
5
(b) another person is present at the hearing at that time; and
6
(c) the other person is not:
7
(i) a staff member of the National Integrity Commission; or
8
(ii) a legal practitioner representing a person at the hearing;
9
the National Integrity Commissioner must:
10
(d) inform the witness that the person is present; and
11
(e) give the witness an opportunity to comment on the person's
12
presence.
13
(4) To avoid doubt, a person is still entitled to be present during all or
14
part of the hearing even if:
15
(a) the National Integrity Commissioner fails to comply with
16
subsection (3); or
17
(b) a witness comments adversely on the person's presence
18
under paragraph (3)(e).
19
Offence
20
(5) A person commits an offence if:
21
(a) the person is present while evidence is being given in private
22
at a hearing; and
23
(b) the person is none of the following:
24
(i) the person giving evidence;
25
(ii) a person whom the National Integrity Commissioner
26
must, under subsection (2), allow to be present while the
27
evidence is being given;
28
(iii) a person who may be present at the hearing in
29
accordance with a determination under subsection (1).
30
Penalty: Imprisonment for 12 months.
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 56
56 National Integrity Commissioner Bill 2012 No. , 2012
Determination of who may be present not a legislative instrument
1
(6) If the determination of who may be present at a hearing is made in
2
writing, the determination is not a legislative instrument.
3
Subdivision C--Taking evidence at hearing
4
56 Evidence on oath or by affirmation
5
(1) At a hearing, the National Integrity Commissioner may:
6
(a) require a witness to either take an oath or make an
7
affirmation; and
8
(b) administer an oath or affirmation to the witness.
9
Note 1:
Failure to take an oath or make an affirmation is an offence: see
10
section 62.
11
Note 2:
This means that a hearing is a judicial proceeding for the purposes of
12
Part III of the Crimes Act 1914, which creates various offences in
13
relation to judicial proceedings.
14
(2) The National Integrity Commissioner may administer an oath or
15
affirmation to a person appearing as a witness in another country,
16
but must do so in accordance with:
17
(a) any provision of the arrangements made between Australia
18
and that other country, as referred to in section 53; and
19
(b) the laws of that other country.
20
(3) The oath or affirmation is an oath or affirmation that the evidence
21
the person will give will be true.
22
(4) The National Integrity Commissioner may allow a person attending
23
a hearing who has been sworn, or who has made an affirmation, to
24
give evidence by tendering a written statement and verifying it by
25
oath or affirmation.
26
57 Examination and cross-examination of witnesses
27
At a hearing, the following persons may, so far as the National
28
Integrity Commissioner thinks appropriate, examine or
29
cross-examine any witness on any matter that the National
30
Integrity Commissioner considers relevant:
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 58
National Integrity Commissioner Bill 2012 No. , 2012 57
(a) counsel assisting the National Integrity Commissioner
1
generally or in relation to the investigation or public inquiry
2
to which the hearing relates;
3
(b) a person summoned, or otherwise authorised, to appear
4
before the National Integrity Commissioner;
5
(c) any legal practitioner representing a person at the hearing.
6
58 Giving evidence in private
7
Certain evidence must be given in private
8
(1) A person giving evidence at a hearing held in public must give
9
particular evidence in private if the evidence:
10
(a) would disclose one of the following:
11
(i) legal advice given to a minister or a Commonwealth
12
agency;
13
(ii) a communication between an officer of a
14
Commonwealth agency and another person or body,
15
being a communication protected against disclosure by
16
legal professional privilege; or
17
(b) would breach a secrecy provision other than:
18
(i) a taxation secrecy provision; or
19
(ii) a law enforcement secrecy provision.
20
Person may request that certain evidence be given in private
21
(2) A person giving evidence at a hearing held in public may request
22
that he or she give particular evidence in private on the grounds
23
that:
24
(a) the evidence relates to the profits or financial position of any
25
person; and
26
(b) the taking of evidence in public would be unfairly prejudicial
27
to the interests of the person referred to in paragraph (a).
28
(3) The National Integrity Commissioner may, if he or she considers it
29
appropriate, allow the evidence to be given in private.
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 59
58 National Integrity Commissioner Bill 2012 No. , 2012
59 Directions in relation to confidentiality
1
Prohibition or limitation on publication
2
(1) The National Integrity Commissioner may direct that:
3
(a) particular evidence given at a hearing; or
4
(b) the contents of a particular document, or a description of any
5
thing, produced to the National Integrity Commissioner at the
6
hearing; or
7
(c) particular information that might enable a person who has
8
given evidence at the hearing to be identified; or
9
(d) the fact that a particular person has given or may be about to
10
give evidence at the hearing;
11
must not be published, or must not be published except in such
12
manner, and to such persons, as the National Integrity
13
Commissioner specifies.
14
Note:
Failure to comply with a direction is an offence: see subsection (6).
15
(2) If the hearing is held in private, the National Integrity
16
Commissioner must give a direction under subsection (1) if the
17
National Integrity Commissioner is satisfied that the failure to give
18
such a direction might prejudice:
19
(a) a person's safety or reputation; or
20
(b) the fair trial of a person who has been, or may be, charged
21
with an offence.
22
(3) The National Integrity Commissioner may vary or revoke a
23
direction in writing. However, the National Integrity
24
Commissioner must not vary or revoke a direction if the National
25
Integrity Commissioner is satisfied that doing so might prejudice:
26
(a) a person's safety or reputation; or
27
(b) the fair trial of a person who has been, or may be, charged
28
with an offence.
29
Court certificate in relation to evidence in respect of which a
30
direction has been given
31
(4)
If:
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 59
National Integrity Commissioner Bill 2012 No. , 2012 59
(a) a person has been charged with an offence before a federal
1
court or a court of a State or Territory; and
2
(b) the court considers that it may be desirable in the interests of
3
justice that particular evidence given at a hearing, in respect
4
of which the National Integrity Commissioner has given a
5
direction under subsection (1), be made available to the
6
person or to a legal practitioner representing the person;
7
the court may give to the National Integrity Commissioner a
8
certificate to that effect. If the court does so, the National Integrity
9
Commissioner must make the evidence available to the court.
10
(5)
If:
11
(a) the National Integrity Commissioner makes evidence
12
available to a court under subsection (4); and
13
(b) the court, after examining the evidence, is satisfied that the
14
interests of justice so require;
15
the court may make the evidence available to the person charged
16
with the offence concerned or to a legal practitioner representing
17
the person.
18
Offence
19
(6) A person commits an offence if:
20
(a) the person is given a direction by the National Integrity
21
Commissioner under subsection (1); and
22
(b) the person contravenes the direction.
23
Penalty: Imprisonment for 12 months.
24
Direction is not a legislative instrument
25
(7) A direction given to a person under subsection (1) is not a
26
legislative instrument.
27
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 60
60 National Integrity Commissioner Bill 2012 No. , 2012
Subdivision D--Prohibitions against disclosing information
1
about a summons
2
60 Disclosure of summons may be prohibited
3
Application
4
(1) This section applies if:
5
(a) a summons is served on a person (the person served) under
6
section 52 to attend a hearing; and
7
(b) the hearing is to be held in private.
8
Notation prohibiting disclosure of information about summons
9
(2) The National Integrity Commissioner may include a notation in the
10
summons to the effect that disclosure of information about:
11
(a) the summons; or
12
(b) any official matter connected with the summons;
13
is prohibited except in the circumstances (if any) specified in the
14
notation.
15
(3) The National Integrity Commissioner must include a notation in
16
the summons if the National Integrity Commissioner is satisfied
17
that failure to do so would reasonably be expected to prejudice:
18
(a) a person's safety or reputation; or
19
(b) the fair trial of a person who has been, or may be, charged
20
with an offence; or
21
(c) the investigation to which the hearing relates or another
22
corruption investigation; or
23
(d) any action taken as a result of an investigation referred to in
24
paragraph (c).
25
(4) The National Integrity Commissioner may include a notation in the
26
summons if the National Integrity Commissioner is satisfied that:
27
(a) failure to do so might prejudice:
28
(i) a person's safety or reputation; or
29
(ii) the fair trial of a person who has been, or may be,
30
charged with an offence; or
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 60
National Integrity Commissioner Bill 2012 No. , 2012 61
(iii) the investigation to which the hearing relates or another
1
corruption investigation; or
2
(iv) any action taken as a result of an investigation referred
3
to in subparagraph (iii); or
4
(b) failure to do so might otherwise be contrary to the public
5
interest.
6
(5) The National Integrity Commissioner must not include a notation
7
in the summons in any other case.
8
Written statement to accompany notation
9
(6) If a notation is included in the summons, it must be accompanied
10
by a written statement setting out the rights and obligations
11
conferred or imposed by section 61 on the person served.
12
Cancellation of notation
13
(7) A notation included in the summons is cancelled by this subsection
14
if:
15
(a) the National Integrity Commissioner concludes the
16
investigation to which the hearing relates; and
17
(b) any criminal proceedings or civil penalty proceedings
18
resulting from the investigation are commenced.
19
(8) If a notation is cancelled by subsection (7), the National Integrity
20
Commissioner must advise the person served, in writing, of the
21
cancellation.
22
Relationship of notation with Privacy Act 1988
23
(9)
If:
24
(a) a notation has been included in the summons in relation to
25
the disclosure of information about the summons or any
26
official matter connected with the summons; and
27
(b) the notation has not been cancelled; and
28
(c) apart from this subsection, a credit reporting agency (within
29
the meaning of section 11A of the Privacy Act 1988) would
30
be required, under subsection 18K(5) of the Privacy Act
31
1988, to make a note about the disclosure of the information;
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 61
62 National Integrity Commissioner Bill 2012 No. , 2012
such a note must not be made until the notation is cancelled.
1
61 Offences of disclosure
2
(1) A person commits an offence if:
3
(a) the person is served with a summons under section 52; and
4
(b) the summons includes a notation under section 60; and
5
(c) the person discloses the existence of, or any information
6
about:
7
(i) the summons; or
8
(ii) any official matter connected with the summons; and
9
(d) when the disclosure is made:
10
(i) the notation has not been cancelled by subsection 60(7);
11
and
12
(ii) the period of 5 years after the summons is served under
13
section 52 has not ended.
14
Penalty: Imprisonment for 12 months.
15
(2) In proceedings for an offence against subsection (1), it is a defence
16
if the person makes the disclosure:
17
(a) in the circumstances, if any, permitted by the terms of the
18
notation; or
19
(b) to a legal practitioner for the purpose of obtaining legal
20
advice or representation in relation to the summons; or
21
(c) to a legal aid officer for the purpose of obtaining assistance
22
under section 74 in relation to the summons; or
23
(d) if the person is a body corporate--to an officer or agent of
24
the body corporate for the purpose of ensuring compliance
25
with the summons.
26
Note:
A defendant bears an evidential burden in relation to the matters in
27
subsection (2): see subsection 13.3(3) of the Criminal Code.
28
(3) A person commits an offence if:
29
(a) a disclosure is made to the person about:
30
(i) a summons under section 52 that includes a notation
31
under section 60; or
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 61
National Integrity Commissioner Bill 2012 No. , 2012 63
(ii) any official matter connected with a summons under
1
section 52 that includes a notation under section 60; and
2
(b) the disclosure is permitted under subsection (2) or (4)
3
because the person is a person of a particular kind; and
4
(c) while the person is a person of that kind, the person discloses
5
the existence of, or any information about:
6
(i) the summons; or
7
(ii) any official matter connected with the summons; and
8
(d) when the disclosure by the person is made:
9
(i) the notation has not been cancelled by subsection 60(7);
10
and
11
(ii) the period of 5 years after the summons is served under
12
section 52 has not ended.
13
Penalty: Imprisonment for 12 months.
14
(4) In proceedings for an offence against subsection (3), it is a defence
15
if the person discloses the information:
16
(a) if the person is an officer or agent of a body corporate
17
referred to in paragraph (2)(d):
18
(i) to another officer or agent of the body corporate for the
19
purpose of ensuring compliance with the summons; or
20
(ii) to a legal practitioner for the purpose of obtaining legal
21
advice or representation in relation to the summons; or
22
(iii) to a legal aid officer for the purpose of obtaining
23
assistance under section 74 in relation to the summons;
24
or
25
(b) if the person is a legal practitioner--for the purpose of giving
26
legal advice, making representations, or obtaining assistance
27
under section 74, in relation to the summons; or
28
(c) if the person is a legal aid officer--for the purpose of
29
obtaining legal advice or representation in relation to the
30
summons.
31
Note:
A defendant bears an evidential burden in relation to the matters in
32
subsection (4): see subsection 13.3(3) of the Criminal Code.
33
(5) A person commits an offence if:
34
(a) a disclosure is made to the person about:
35
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 62
64 National Integrity Commissioner Bill 2012 No. , 2012
(i) a summons under section 52 that includes a notation
1
under section 60; or
2
(ii) any official matter connected with a summons under
3
section 52 that includes a notation under section 60; and
4
(b) the disclosure is permitted under subsection (2) or (4)
5
because the person is a person of a particular kind; and
6
(c) when the person is no longer a person of that kind, the
7
person:
8
(i) makes a record of the summons; or
9
(ii) discloses the existence of the summons; or
10
(iii) discloses any information about the summons or the
11
existence of it; and
12
(d) when the record, or disclosure, is made by the person:
13
(i) the notation has not been cancelled by subsection 60(7);
14
and
15
(ii) the period of 5 years after the summons is served under
16
section 52 has not ended.
17
Penalty: Imprisonment for 12 months.
18
(6) A reference in this section to disclosing something's existence
19
includes disclosing information from which a person could
20
reasonably be expected to infer its existence.
21
Subdivision E--Offences in relation to hearings
22
62 Offences
23
Failure to attend hearing
24
(1) A person commits an offence if:
25
(a) the person is served with a summons to attend a hearing; and
26
(b)
the
person:
27
(i) fails to attend as required by the summons; or
28
(ii) fails to appear and report from day to day unless
29
excused or released from further attendance by the
30
National Integrity Commissioner.
31
Penalty: Imprisonment for 12 months.
32
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Section 63
National Integrity Commissioner Bill 2012 No. , 2012 65
Note:
A defendant bears an evidential burden in relation to the excuse or
1
release from further attendance referred to in subparagraph (b)(ii): see
2
subsection 13.3(3) of the Criminal Code.
3
Failure to swear an oath, make an affirmation or answer a
4
question
5
(2) A person commits an offence if:
6
(a) the person is served with a summons to attend a hearing; and
7
(b) the person fails:
8
(i) to be sworn or to make an affirmation at the hearing; or
9
(ii) to answer a question at the hearing that the National
10
Integrity Commissioner requires the person to answer.
11
Penalty: Imprisonment for 2 years.
12
Note 1:
A person may refuse to answer a question on the ground of legal
13
professional privilege: see section 64.
14
Note 2:
This subsection is not subject to the privilege against
15
self-incrimination but there are limits on the uses to which the
16
evidence the person gives may be put: see section 67.
17
Failure to produce a document or thing
18
(3) A person commits an offence if:
19
(a) the person is served with a summons to produce a document
20
or thing specified in the summons; and
21
(b) the person fails to produce the document or thing that the
22
person was required to produce.
23
Penalty: Imprisonment for 2 years.
24
Note 1:
A person may refuse to produce a document or thing on the ground of
25
legal professional privilege: see section 65.
26
Note 2:
This subsection is not subject to the privilege against
27
self-incrimination but there are limits on the uses to which the
28
evidence the person gives may be put: see section 67.
29
63 Contempt
30
(1) A person commits an offence if:
31
(a) the person insults, disturbs or uses insulting language towards
32
another person; and
33
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66 National Integrity Commissioner Bill 2012 No. , 2012
(b) the person knows that:
1
(i) the other person is the National Integrity Commissioner;
2
and
3
(ii) the other person is holding a hearing in the performance
4
of his or her functions, or the exercise of his or her
5
powers, as National Integrity Commissioner.
6
Penalty: Imprisonment for 6 months.
7
(2) A person commits an offence if:
8
(a) the person creates a disturbance, or takes part in creating or
9
continuing a disturbance, in or near a place; and
10
(b) the person knows that the place is a place where a hearing is
11
being held for the purpose of:
12
(i) investigating a corruption issue; or
13
(ii) conducting a public inquiry.
14
Penalty: Imprisonment for 6 months.
15
(3) A person commits an offence if:
16
(a) the person interrupts a hearing that is being held for the
17
purpose of:
18
(i) investigating a corruption issue; or
19
(ii) conducting a public inquiry; or
20
(b) the person does any other act or thing that would, if the
21
hearing were held in a court of record, constitute a contempt
22
of that court.
23
Penalty: Imprisonment for 6 months.
24
64 Legal professional privilege--answer to question
25
(1) A person must not refuse or fail to answer a question at a hearing
26
that the National Integrity Commissioner requires the person to
27
answer on the ground that the answer (or the relevant part of the
28
answer) would disclose a communication that is subject to legal
29
professional privilege, unless a claim to that effect is made at the
30
hearing to the National Integrity Commissioner.
31
Note:
See also paragraph 67(5)(c).
32
National Integrity Commissioner's powers in conducting investigations and public
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Section 65
National Integrity Commissioner Bill 2012 No. , 2012 67
(2) If such a claim is made, the National Integrity Commissioner may
1
decide whether to accept or reject the claim.
2
(3) The National Integrity Commissioner may, by written notice
3
served (as prescribed) on the person, require the person to answer
4
the question for consideration (by the National Integrity
5
Commissioner or a person authorised by the National Integrity
6
Commissioner) for the purpose of deciding whether to accept or
7
reject the claim.
8
(4) If the answer has been provided for consideration and the National
9
Integrity Commissioner decides to accept the claim, the National
10
Integrity Commissioner must:
11
(a) expunge the answer from any record of the hearing made
12
under subsection 51(6); and
13
(b) disregard, for the purposes of any report or decision that the
14
National Integrity Commissioner makes:
15
(i) if the claim is accepted in relation to the all of the
16
answer--all of the answer; or
17
(ii) if the claim is accepted in relation to a part of the
18
answer--that part of the answer.
19
(5) If the answer has been provided for consideration and the National
20
Integrity Commissioner decides to reject the claim, the National
21
Integrity Commissioner may use the answer for the purposes of the
22
hearing.
23
(6) Without limiting subsections (3) and (5), the powers of the
24
National Integrity Commissioner include, by force of this
25
subsection, the power to decide whether to accept or reject the
26
claim.
27
65 Legal professional privilege--documents or things
28
(1) A person must not refuse or fail to produce a document or thing to
29
the National Integrity Commissioner at a hearing on the ground
30
that the document or thing is subject to legal professional privilege,
31
unless:
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Section 65
68 National Integrity Commissioner Bill 2012 No. , 2012
(a) a court has found the document or thing (or the relevant part
1
of the document or thing) to be subject to legal professional
2
privilege; or
3
(b) a claim that the document or thing (or the relevant part of the
4
document or thing) is subject to legal professional privilege is
5
made to the National Integrity Commissioner:
6
(i) within the time that, in the summons, the National
7
Integrity Commissioner allowed for its production; or
8
(ii) within such further time as the National Integrity
9
Commissioner allows for production of the document or
10
thing.
11
Note:
See also paragraph 67(5)(c).
12
(2) If such a claim is made, the National Integrity Commissioner may
13
decide whether to accept or reject the claim.
14
(3) The National Integrity Commissioner may, by written notice
15
served (as prescribed) on the person, require the person to produce
16
the document or thing for inspection (by the National Integrity
17
Commissioner or a person authorised by the National Integrity
18
Commissioner) for the purpose of deciding whether to accept or
19
reject the claim.
20
(4) If the document or thing has been produced for inspection and the
21
National Integrity Commissioner decides to accept the claim, the
22
National Integrity Commissioner must:
23
(a) return the document or thing to the person; and
24
(b) disregard, for the purposes of any report or decision that the
25
National Integrity Commissioner makes:
26
(i) if the claim is accepted in relation to the whole
27
document or thing--the whole document or thing; or
28
(ii) if the claim is accepted in relation to a part of the
29
document or thing--that part of the document or thing.
30
(5) If the document or thing has been produced for inspection and the
31
National Integrity Commissioner decides to reject the claim, the
32
National Integrity Commissioner may use the document or thing
33
for the purposes of the hearing.
34
National Integrity Commissioner's powers in conducting investigations and public
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Conducting hearings Division 3
Section 66
National Integrity Commissioner Bill 2012 No. , 2012 69
(6) Without limiting subsections (3) and (5), the powers of the
1
National Integrity Commissioner include, by force of this
2
subsection, the power to decide whether to accept or reject the
3
claim.
4
66 Offences relating to claims for legal professional privilege
5
(1) A person commits an offence if:
6
(a) the person had been served with a summons:
7
(i) to attend a hearing and the person fails to answer a
8
question at the hearing that the National Integrity
9
Commissioner requires the person to answer; or
10
(ii) to produce a document or thing specified in the
11
summons and the person fails to produce the document
12
or thing that the person was required to produce; and
13
(b) the National Integrity Commissioner has decided under
14
subsection 64(2) or 65(2) to reject a claim that the answer,
15
document or thing (or the relevant part of the answer,
16
document or thing) is subject to legal professional privilege;
17
and
18
(c) the person refuses or fails to answer the question or produce
19
the document or thing as the National Integrity
20
Commissioner requires, after that decision, under subsection
21
52(7).
22
Penalty: $1,000 or imprisonment for 6 months.
23
(2) A person commits an offence if the person refuses or fails:
24
(a) to answer a question that the person was required under
25
subsection 64(3) to answer; or
26
(b) to produce a document or thing that the person was required
27
under subsection 65(3) to produce for inspection.
28
Penalty: $1,000 or imprisonment for 6 months.
29
(3) Subsections (1) and (2) are offences of strict liability.
30
Note:
For strict liability, see section 6.1 of the Criminal Code.
31
(4) Subsections (1) and (2) do not apply if the person has a reasonable
32
excuse.
33
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Section 67
70 National Integrity Commissioner Bill 2012 No. , 2012
(5) It is not a reasonable excuse for the purposes of subsection (4) for a
1
person to refuse or fail to produce a document or thing that the
2
document or thing is subject to legal professional privilege, unless
3
a court has found the document or thing to be subject to legal
4
professional privilege.
5
(6) It is a defence to a prosecution for an offence against this section
6
constituted by a refusal or failure to answer a question or to
7
produce a document or thing if the answer, document or thing was
8
not relevant to the corruption issue or public inquiry to which the
9
hearing related.
10
Note:
A defendant bears an evidential burden in relation to the matters in
11
subsections (4) and (6) (see subsection 13.3(3) of the Criminal Code).
12
67 Self-incrimination etc.
13
Self-incrimination
14
(1) A person is not excused from:
15
(a) answering a question; or
16
(b) producing a document or thing;
17
when summoned, under section 52, to attend a hearing to do so on
18
the ground that doing so would tend to incriminate the person or
19
expose the person to a penalty.
20
Use indemnity
21
(2) Subsection (4) applies if:
22
(a)
the
person:
23
(i) answers the question (whether orally or in writing); or
24
(ii) produces the document or thing;
25
and, before doing so, claims that answering the question, or
26
producing the document or thing, might tend to incriminate
27
the person or expose the person to a penalty; or
28
(b) the person answers the question in writing and claims, in a
29
written statement accompanying the answer, that answering
30
the question might tend to incriminate the person or expose
31
the person to a penalty; or
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 67
National Integrity Commissioner Bill 2012 No. , 2012 71
(c) the person produces the document or thing and claims, in a
1
written statement accompanying the document or thing, that
2
producing the document or thing might tend to incriminate
3
the person or expose the person to a penalty.
4
(3) Subsection (4) does not apply to the production of a document that
5
is, or forms part of, a record of an existing or past business.
6
(4) Neither of the following:
7
(a)
the
answer
given;
8
(b) the document or thing produced;
9
is admissible in evidence against the person in criminal
10
proceedings, or any other proceedings for the imposition or
11
recovery of a penalty, other than:
12
(c) proceedings for an offence against section 62; or
13
(d) confiscation proceedings; or
14
(e) proceedings for an offence against section 137.1 or 137.2 of
15
the Criminal Code (which deals with false or misleading
16
information or documents) that relates to this Act; or
17
(f) proceedings for an offence against section 149.1 of the
18
Criminal Code (which deals with obstruction of
19
Commonwealth public officials) that relates to this Act; or
20
(g) disciplinary proceedings against the person if the person is an
21
employee of a Commonwealth agency.
22
Public interest grounds
23
(5) A person is not excused from:
24
(a) answering a question; or
25
(b) producing a document or thing;
26
when summoned, under section 52, to attend a hearing to do so on
27
the ground that doing so:
28
(c) would disclose one of the following:
29
(i) legal advice given to a minister or a Commonwealth
30
agency;
31
(ii) a communication between an officer of a
32
Commonwealth agency and another person or body,
33
being a communication protected against disclosure by
34
legal professional privilege; or
35
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 68
72 National Integrity Commissioner Bill 2012 No. , 2012
(d) would breach a secrecy provision other than:
1
(i) a taxation secrecy provision; or
2
(ii) a law enforcement secrecy provision; or
3
(e) would be otherwise contrary to the public interest.
4
(6) The fact that a person is not excused under subsection (5) from:
5
(a) answering a question; or
6
(b) producing a document or thing;
7
does not otherwise affect a claim of legal professional privilege
8
that anyone may make in relation to that answer, document or
9
thing.
10
(7) A person who is served with a summons under section 52 does not
11
commit an offence, and is not liable to any penalty, under the
12
provisions of any other enactment (other than a taxation secrecy
13
provision or a law enforcement secrecy provision) because the
14
person:
15
(a) answers a question at a hearing that the National Integrity
16
Commissioner requires the person to answer; or
17
(b) produces a document or thing that the person is required to
18
produce in accordance with the summons.
19
Subdivision F--Court orders for delivery of witness's passport
20
and witness's arrest
21
68 National Integrity Commissioner may apply for order that
22
witness deliver his or her passport
23
(1) The National Integrity Commissioner may apply to a Judge of the
24
Federal Court for an order that a person deliver his or her passport
25
to the National Integrity Commissioner if:
26
(a) either of the following apply:
27
(i) a summons under section 52 has been issued requiring
28
the person to attend a hearing (whether or not the
29
summons has been served) in relation to a corruption
30
investigation or public inquiry; or
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 69
National Integrity Commissioner Bill 2012 No. , 2012 73
(ii) the person has appeared at a hearing in relation to a
1
corruption investigation or public inquiry to give
2
evidence or to produce documents or things; and
3
(b) there are reasonable grounds for believing that the person
4
may be able:
5
(i) to give evidence, or further evidence, that is relevant to
6
the investigation or public inquiry; or
7
(ii) to produce documents or things, or further documents or
8
things, that are relevant to the investigation or public
9
inquiry; and
10
(c) there are reasonable grounds for suspecting that the person:
11
(i) intends to leave Australia; and
12
(ii) has in his or her possession, custody or control a
13
passport issued to him or her.
14
(2) The National Integrity Commissioner must give the Judge
15
information on oath, or by affirmation, in support of the grounds
16
for the application.
17
69 Court orders
18
Court order for witness to appear before the Court
19
(1) If a Judge of the Federal Court, sitting in Chambers, is satisfied, on
20
the evidence, that the requirements of paragraphs 68(1)(a), (b) and
21
(c) are met, the Judge may make an order:
22
(a) requiring the person to appear before the Federal Court on a
23
date, and at a time and place, specified in the order; and
24
(b) requesting the person to show cause why he or she should not
25
be ordered to deliver the passport to the National Integrity
26
Commissioner.
27
Offence
28
(2) A person commits an offence if:
29
(a) the person leaves Australia; and
30
(b) an order has been made in relation to the person under
31
subsection (1); and
32
(c) a copy of the order has been served on the person.
33
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Section 69
74 National Integrity Commissioner Bill 2012 No. , 2012
Penalty: Imprisonment for 2 years.
1
(3) In proceedings for an offence against subsection (2), it is a defence
2
if:
3
(a) the person has appeared before the Federal Court as required
4
by the order referred to in paragraph (2)(b); and
5
(b) if the Court makes an order in relation to the person under
6
paragraph (4)(a)--the person has complied with the terms of
7
the order and any passport delivered to the National Integrity
8
Commissioner in accordance with the order has been
9
returned to the person.
10
Court order that witness deliver passport to National Integrity
11
Commissioner
12
(4) If the person appears before the Federal Court as required by the
13
order made under subsection (1), the Court may, if it thinks fit,
14
make an order:
15
(a) requiring the person to deliver to the National Integrity
16
Commissioner any passport:
17
(i) issued to him or her; and
18
(ii) in his or her possession, custody or control; and
19
(b) authorising the National Integrity Commissioner to retain the
20
passport until the end of the period (not exceeding one
21
month) that is specified in the order.
22
Extension of period that National Integrity Commissioner may
23
retain passport
24
(5) The Federal Court may, upon application by the National Integrity
25
Commissioner, extend for a further period (of not more than one
26
month), or further periods (of not more than one month in each
27
case), the period for which the National Integrity Commissioner is
28
authorised to retain a passport. However, the total period for which
29
the National Integrity Commissioner is authorised to retain the
30
passport must not exceed 3 months.
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 70
National Integrity Commissioner Bill 2012 No. , 2012 75
Revocation of court order
1
(6) If the Federal Court makes an order authorising the National
2
Integrity Commissioner to retain a passport issued to a person, the
3
person may apply to the Federal Court for the order to be revoked.
4
(7) If the Federal Court revokes the order, the National Integrity
5
Commissioner must return the passport to the person immediately.
6
Jurisdiction of the Federal Court
7
(8) The Federal Court has jurisdiction with respect to matters arising
8
under this section.
9
Definition
10
(9) In this section:
11
Australia includes the external Territories.
12
70 Applying for a warrant to arrest witness
13
(1) An authorised officer may apply to a Judge of the Federal Court of
14
Australia, or of the Supreme Court of a State or Territory, for a
15
warrant to arrest a person if the authorised officer has reasonable
16
grounds to believe that:
17
(a)
the
person:
18
(i) has been ordered to deliver his or her passport to the
19
National Integrity Commissioner (whether or not the
20
person has complied with the order); and
21
(ii) is likely to leave Australia for the purpose of avoiding
22
giving evidence at a hearing before the National
23
Integrity Commissioner; or
24
(b) the person has been served with a summons under section 52
25
and:
26
(i) has absconded or is likely to abscond; or
27
(ii) is otherwise attempting, or likely to attempt, to evade
28
service of the summons; or
29
(c) the person has committed an offence under subsection 62(1)
30
or is likely to do so.
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Section 71
76 National Integrity Commissioner Bill 2012 No. , 2012
(2) The authorised officer must give the Judge information on oath, or
1
by affirmation, in support of the grounds for the application.
2
71 Warrant for arrest
3
Issue of warrant
4
(1) If a Judge, sitting in Chambers, is satisfied, on the evidence, that
5
there are reasonable grounds for believing that paragraph 70(1)(a),
6
(b) or (c) is met, the Judge may issue a warrant authorising the
7
authorised officer to arrest the person.
8
Execution of warrant
9
(2) For the purpose of executing a warrant, if the authorised officer
10
executing the warrant (or an assisting officer) believes on
11
reasonable grounds that the person is on any premises, the
12
authorised officer (or the assisting officer) may break into and
13
enter those premises.
14
(3) However, the authorised officer executing the warrant (or an
15
assisting officer) must not enter a dwelling house at any time
16
during the period commencing at 9 pm on a day and ending at 6 am
17
on the following day unless the authorised officer (or the assisting
18
officer) believes on reasonable grounds that it would not be
19
practicable to arrest the person, either at the dwelling house or
20
elsewhere, at another time.
21
(4) The authorised officer executing the warrant (or an assisting
22
officer) must not, in the course of arresting the person, use more
23
force, or subject the other person to greater indignity, than is
24
necessary and reasonable:
25
(a) to make the arrest; or
26
(b) to prevent the escape of the person after the arrest.
27
(5) The warrant may be executed even if the authorised officer does
28
not have a copy of the warrant in his or her possession at the time it
29
is executed.
30
National Integrity Commissioner's powers in conducting investigations and public
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Section 72
National Integrity Commissioner Bill 2012 No. , 2012 77
(6) The authorised officer executing the warrant (or an assisting officer
1
who arrests the person) must inform the person, at the time of the
2
arrest, of the reason for which he or she is being arrested.
3
(7) It is sufficient if the person is informed of the substance of the
4
reason and it is not necessary that this be done in language of a
5
precise or technical nature.
6
(8) Subsection (6) does not apply to the arrest of the person if:
7
(a) the person should, in the circumstances, know the substance
8
of the reason for which he or she is being arrested; or
9
(b) the person's actions make it impracticable for the authorised
10
officer executing the warrant (or an assisting officer making
11
the arrest) to inform the person of the reason for which he or
12
she is being arrested.
13
(9) Nothing in this section prevents the arrest of a person in
14
accordance with any other law.
15
Definitions
16
(10) In this section:
17
dwelling house includes a conveyance, and a room in a hotel,
18
motel, boarding house or club, in which people ordinarily retire for
19
the night.
20
Judge means:
21
(a) a Judge of the Federal Court of Australia; or
22
(b) a Judge of the Supreme Court of a State or Territory.
23
72 Powers of Judge in relation to person arrested
24
(1) A person arrested under a warrant issued under section 71 must be
25
brought, as soon as practicable, before a Judge.
26
(2) The Judge may:
27
(a) grant the person bail:
28
(i) on such security as the Judge thinks fit; and
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Section 73
78 National Integrity Commissioner Bill 2012 No. , 2012
(ii) on such conditions as the Judge thinks are necessary to
1
ensure that the person appears as a witness at a hearing
2
before the National Integrity Commissioner; or
3
(b) order that the person continue to be detained for the purpose
4
of ensuring that the person appears as a witness at a hearing
5
before the National Integrity Commissioner; or
6
(c) order that the person be released.
7
(3) A person who is detained under paragraph (2)(b) must be brought
8
before a Judge:
9
(a) within 14 days after he or she was brought, or last brought,
10
before a Judge; or
11
(b) within such shorter or longer time as a Judge fixed on the
12
person's last previous appearance before a Judge;
13
and the Judge may exercise any of the powers under subsection (2).
14
(4) In this section:
15
Judge means:
16
(a) a Judge of the Federal Court of Australia; or
17
(b) a Judge of the Supreme Court of a State or Territory.
18
Subdivision G--Miscellaneous
19
73 National Integrity Commissioner may retain documents or things
20
(1) If a document or thing is produced to the National Integrity
21
Commissioner in accordance with a summons under section 52, the
22
National Integrity Commissioner:
23
(a) may take possession of, and may make copies of, the
24
document or thing, or take extracts from the document; and
25
(b) may retain possession of the document or thing for such
26
period as is necessary for the purposes of the investigation or
27
public inquiry to which the document or thing relates.
28
(2) While the National Integrity Commissioner retains the document or
29
thing, he or she must allow a person who would otherwise be
30
entitled to inspect the document or view the thing to do so at the
31
times that the person would ordinarily be able to do so.
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 74
National Integrity Commissioner Bill 2012 No. , 2012 79
74 Person may apply for legal and financial assistance
1
(1) A person who is summoned under section 52 to attend a hearing
2
before the National Integrity Commissioner may apply to the
3
Attorney-General for assistance in respect of:
4
(a) his or her attendance at the hearing; or
5
(b) his or her representation at the hearing by a legal practitioner.
6
Note 1:
A person summoned to appear as a witness at a hearing is entitled to
7
be paid allowances for travelling and other expenses prescribed by
8
regulations: see subsection 52(5).
9
Note 2:
A person may also apply for assistance in respect of an application to
10
the Federal Court or the Federal Magistrates Court under the
11
Administrative Decisions (Judicial Review) Act 1977 for an order of
12
review in respect of a matter arising under this Act: see section 175.
13
(2) A person who:
14
(a) is not giving evidence at a hearing before the National
15
Integrity Commissioner; and
16
(b) is being represented at the hearing by a legal practitioner with
17
the consent of the National Integrity Commissioner;
18
may apply to the Attorney-General for assistance in respect of that
19
representation.
20
Note:
A person may also apply for assistance in respect of an application to
21
the Federal Court or the Federal Magistrates Court under the
22
Administrative Decisions (Judicial Review) Act 1977 for an order of
23
review in respect of a matter arising under this Act: see section 175.
24
(3) If a person applies under subsection (1) or (2), the
25
Attorney-General may, if he or she is satisfied that:
26
(a) it would involve substantial hardship to the person to refuse
27
the application; or
28
(b) the circumstances of the case are of such a special nature that
29
the application should be granted;
30
authorise the Commonwealth to provide the person with legal or
31
financial assistance, determined by the Attorney-General, in
32
respect of:
33
(c) the person's attendance at the hearing; or
34
(d) the person's representation at the hearing by a legal
35
practitioner.
36
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 75
80 National Integrity Commissioner Bill 2012 No. , 2012
(4) Legal or financial assistance may be given:
1
(a)
unconditionally;
or
2
(b) subject to such conditions as the Attorney-General
3
determines.
4
(5) An instrument that determines the conditions on which legal or
5
financial assistance may be given is not a legislative instrument.
6
75 Protection of National Integrity Commissioner etc.
7
(1) The National Integrity Commissioner has, in exercising his or her
8
power to hold a hearing, the same protection and immunity as a
9
Justice of the High Court.
10
(2) A legal practitioner assisting the National Integrity Commissioner,
11
or representing a person at a hearing, has the same protection and
12
immunity as a barrister appearing for a party in proceedings in the
13
High Court.
14
(3) To avoid doubt, this section does not limit the powers of the
15
Ombudsman under the Ombudsman Act 1976 to investigate issues
16
of administrative practice in relation to a hearing under this
17
Division.
18
(4) A reference in this section to the National Integrity Commissioner
19
includes a reference to an Assistant National Integrity
20
Commissioner who exercises the power to hold a hearing in
21
relation to a corruption issue under an authorisation under
22
section 155.
23
76 Protection of witnesses etc.
24
(1) A person who:
25
(a) gives evidence at a hearing conducted under this Act; or
26
(b) produces a document or thing at a hearing conducted under
27
this Act; or
28
(c) makes a submission to the National Integrity Commissioner
29
in relation to a public inquiry;
30
has the same protection as a witness in proceedings in the High
31
Court.
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 76
National Integrity Commissioner Bill 2012 No. , 2012 81
(2) Subsection (3) applies if it appears to the National Integrity
1
Commissioner that, because a person:
2
(a) is to give evidence, or produce a document or thing, at a
3
hearing under this Act; or
4
(b) has given evidence, or produced a document or thing, at a
5
hearing under this Act; or
6
(c) is to make, or has made, a submission to the National
7
Integrity Commissioner in relation to a public inquiry;
8
either:
9
(d) the safety of the person or any other person may be
10
prejudiced; or
11
(e) the person or any other person may be subjected to
12
intimidation or harassment.
13
(3) The National Integrity Commissioner may make such
14
arrangements as are necessary:
15
(a) to protect the safety of any person mentioned in
16
paragraph (2)(d); or
17
(b) to protect any person mentioned in paragraph (2)(e) from
18
intimidation or harassment.
19
(4) For the purpose of subsection (3), the arrangements that the
20
National Integrity Commissioner may make include arrangements
21
with:
22
(a) members of the Australian Federal Police; or
23
(b) members of the police force of a State or Territory.
24
(5) This section does not affect the Witness Protection Act 1994.
25
26
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 77
82 National Integrity Commissioner Bill 2012 No. , 2012
Division 4--Search warrants
1
Subdivision A--Preliminary
2
77 Application to things under the control of a person
3
This Division applies to a person (the possessor) who has a thing
4
under his or her control in any place (whether for the use or benefit
5
of the possessor or another person), even if another person has the
6
actual possession or custody of the thing, as if the possessor has
7
possession of the thing.
8
Subdivision B--Applying for a search warrant
9
78 Authorised officer may apply for a search warrant
10
Application for warrant to search premises (investigation warrant)
11
(1) An authorised officer may apply to an issuing officer for an
12
investigation warrant to search premises if the authorised officer:
13
(a) has reasonable grounds for suspecting that there is, or there
14
will be within the next 72 hours, any evidential material on
15
the premises; and
16
(b) has reasonable grounds for believing that, if a person was
17
served with a summons to produce the evidential material,
18
the material might be concealed, lost, mutilated or destroyed.
19
Note:
In special circumstances and urgent cases, an application may be made
20
by telephone, fax, email or other electronic means: see section 81.
21
Application for warrant to search premises (offence warrant)
22
(2) An authorised officer may apply to an issuing officer for an
23
offence warrant to search premises if the authorised officer has
24
reasonable grounds for suspecting that there is, or there will be
25
within the next 72 hours, any evidential material on the premises.
26
Note:
In special circumstances and urgent cases, an application may be made
27
by telephone, fax, email or other electronic means: see section 81.
28
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 78
National Integrity Commissioner Bill 2012 No. , 2012 83
Application for a warrant to search person (investigation warrant)
1
(3) An authorised officer may apply to an issuing officer for an
2
investigation warrant to carry out an ordinary search or a frisk
3
search of a person if the authorised officer:
4
(a) has reasonable grounds for suspecting that the person has in
5
his or her possession, or will within the next 72 hours have in
6
his or her possession, any evidential material; and
7
(b) has reasonable grounds for believing that, if the person was
8
served with a summons to produce the evidential material,
9
the material might be concealed, lost, mutilated or destroyed.
10
Note:
In special circumstances and urgent cases, an application may be made
11
by telephone, fax, email or other electronic means: see section 81.
12
Application for a warrant to search person (offence warrant)
13
(4) An authorised officer may apply to an issuing officer for an
14
offence warrant to carry out an ordinary search or a frisk search of
15
a person if the authorised officer has reasonable grounds for
16
suspecting that the person has in his or her possession, or will
17
within the next 72 hours have in his or her possession, any
18
evidential material.
19
Note:
In special circumstances and urgent cases, an application may be made
20
by telephone, fax, email or other electronic means: see section 81.
21
Information in support of application
22
(5) An authorised officer must give the issuing officer information on
23
oath or by affirmation to support the grounds for an application
24
under subsection (1), (2), (3) or (4).
25
(6) If an authorised officer applying for a search warrant suspects that,
26
in executing the warrant, it will be necessary to use firearms, the
27
authorised officer must state that suspicion, and the grounds for it,
28
in the information given under subsection (5).
29
(7) If the authorised officer applying for a search warrant (or another
30
authorised officer who will be an assisting officer in relation to the
31
search warrant) has, at any time previously, applied for a search
32
warrant under this Act or another Act in relation to the same person
33
or premises, the authorised officer must state particulars of those
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 4 Search warrants
Section 79
84 National Integrity Commissioner Bill 2012 No. , 2012
applications, and their outcome, in the information given under
1
subsection (5).
2
Subdivision C--Issue of a search warrant
3
79 When search warrants may be issued
4
Issue of a warrant to search premises (investigation warrant)
5
(1)
If:
6
(a) an authorised officer makes an application to an issuing
7
officer under subsection 78(1); and
8
(b) the issuing officer is satisfied, on the information given under
9
subsection 78(5), that:
10
(i) there are reasonable grounds for suspecting that there is,
11
or there will be within the next 72 hours, evidential
12
material on the premises in relation to which the
13
application is made; and
14
(ii) there are reasonable grounds for believing that, if a
15
person was served with a summons to produce the
16
evidential material, the material might be concealed,
17
lost, mutilated or destroyed;
18
the issuing officer may issue an investigation warrant authorising
19
the authorised officer to search the premises.
20
Issue of a warrant to search premises (offence warrant)
21
(2)
If:
22
(a) an authorised officer makes an application to an issuing
23
officer under subsection 78(2); and
24
(b) the issuing officer is satisfied, on the information given under
25
subsection 78(5), that there are reasonable grounds for
26
suspecting that there is, or there will be within the next 72
27
hours, evidential material on the premises in relation to
28
which the application is made;
29
the issuing officer may issue an offence warrant authorising the
30
authorised officer to search the premises.
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 79
National Integrity Commissioner Bill 2012 No. , 2012 85
Issue of a warrant to search a person (investigation warrant)
1
(3)
If:
2
(a) an authorised officer makes an application to an issuing
3
officer under subsection 78(3); and
4
(b) the issuing officer is satisfied, on the information given under
5
subsection 78(5), that:
6
(i) there are reasonable grounds for suspecting that the
7
person in relation to whom the application is made has
8
in his or her possession, or will within the next 72 hours
9
have in his or her possession, evidential material; and
10
(ii) there are reasonable grounds for believing that, if the
11
person was served with a summons to produce the
12
evidential material, the material might be concealed,
13
lost, mutilated or destroyed;
14
the issuing officer may issue an investigation warrant authorising
15
the authorised officer to carry out an ordinary search or a frisk
16
search of the person.
17
Issue of a warrant to search a person (offence warrant)
18
(4)
If:
19
(a) an authorised officer makes an application to an issuing
20
officer under subsection 78(4); and
21
(b) the issuing officer is satisfied, on the information given under
22
subsection 78(5), that there are reasonable grounds for
23
suspecting that the person in relation to whom the application
24
is made has in his or her possession, or will within the next
25
72 hours have in his or her possession, evidential material;
26
the issuing officer may issue an offence warrant authorising the
27
authorised officer to carry out an ordinary search or a frisk search
28
of the person.
29
Issue of a warrant by State/Territory issuing officers
30
(5) An issuing officer in a State or internal Territory may:
31
(a) issue a search warrant in relation to premises or a person in
32
that State or Territory; or
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 4 Search warrants
Section 80
86 National Integrity Commissioner Bill 2012 No. , 2012
(b) issue a search warrant in relation to premises or a person in
1
an external Territory; or
2
(c) issue a search warrant in relation to premises or a person in
3
another State or internal Territory (including the Jervis Bay
4
Territory) if he or she is satisfied that there are special
5
circumstances that make the issue of the warrant appropriate;
6
or
7
(d) issue a search warrant in relation to a person wherever the
8
person is in Australia or in an external Territory if he or she
9
is satisfied that it is not possible to predict where the person
10
may be.
11
(6) An issuing officer in New South Wales or the Australian Capital
12
Territory may issue a search warrant in relation to premises or a
13
person in the Jervis Bay Territory.
14
(7) Subsections (5) and (6) do not apply if the issuing officer is:
15
(a) a Judge of the Federal Court of Australia; or
16
(b)
a
Federal
Magistrate.
17
Issue of a warrant by issuing officers
18
(8) The function of issuing a search warrant is conferred on an issuing
19
officer in a personal capacity and not as a court or a member of a
20
court. The issuing officer need not accept the function conferred.
21
(9) An issuing officer performing a function of, or connected with,
22
issuing a search warrant has the same protection and immunity as
23
if he or she were performing that function as, or as a member of,
24
the court of which the issuing officer is a member.
25
80 Content of warrants
26
General contents of warrant
27
(1) If an issuing officer issues a search warrant under section 79, the
28
issuing officer is to state in the warrant:
29
(a)
either:
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 80
National Integrity Commissioner Bill 2012 No. , 2012 87
(i) if the warrant is an investigation warrant--the
1
corruption issue or public inquiry to which the warrant
2
relates; or
3
(ii) if the warrant is an offence warrant--the offence to
4
which the warrant relates; and
5
(b) a description of the premises to which the warrant relates or
6
the name or a description of a person to whom it relates; and
7
(c) the kinds of evidential material that are to be searched for
8
under the warrant; and
9
(d) the name of the authorised officer who, unless he or she
10
inserts the name of another authorised officer in the warrant,
11
is to be responsible for executing the warrant; and
12
(e) the time at which the warrant expires; and
13
(f) whether the warrant may be executed at any time or only
14
during particular hours.
15
(2) The time stated in the warrant as the time at which the warrant
16
expires must be a time that is not later than the end of the seventh
17
day after the day on which the warrant is issued.
18
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
19
in the warrant must not be later than midnight on Monday in the
20
following week.
21
Additional matters for warrant in relation to premises
22
(3) If the search warrant relates to premises, the issuing officer is also
23
to state:
24
(a) that the warrant authorises the seizure of a thing (other than
25
evidential material of the kind referred to in paragraph (1)(c))
26
found at the premises in the course of the search that the
27
authorised officer or an assisting officer believes on
28
reasonable grounds to be:
29
(i) if the warrant is an investigation warrant--evidential
30
material in relation to the corruption issue or public
31
inquiry to which the warrant relates; or
32
(ii) if the warrant is an offence warrant--a thing relevant to
33
the offence to which the warrant relates; or
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 4 Search warrants
Section 80
88 National Integrity Commissioner Bill 2012 No. , 2012
(iii) in any case--evidential material (within the meaning of
1
the Proceeds of Crime Act 2002) or tainted property
2
(within the meaning of that Act); or
3
(iv) in any case--a thing relevant to an indictable offence;
4
if the authorised officer or the assisting officer believes on
5
reasonable grounds that seizure of the thing is necessary to
6
prevent its concealment, loss or destruction or its use in
7
committing an offence; and
8
(b) whether the warrant authorises an ordinary search or a frisk
9
search of a person who is at or near the premises when the
10
warrant is executed if the authorised officer or an assisting
11
officer suspects on reasonable grounds that the person has in
12
his or her possession:
13
(i) in the case of an investigation warrant--any evidential
14
material in relation to the corruption issue or public
15
inquiry to which the warrant relates; or
16
(ii) in the case of an offence warrant--a thing relevant to
17
the offence to which the warrant relates; or
18
(iii) in any case--evidential material (within the meaning of
19
the Proceeds of Crime Act 2002) or tainted property
20
(within the meaning of that Act); or
21
(iv) in any case--a thing relevant to an indictable offence; or
22
(v) in any case--any eligible seizable items.
23
Additional matters for warrant in relation to person
24
(4) If the search warrant relates to a person, the issuing officer is also
25
to state:
26
(a) the kind of search (ordinary or frisk) of the person that the
27
warrant authorises; and
28
(b) that the warrant authorises the seizure of a thing (other than
29
evidential material of the kind referred to in paragraph (1)(c))
30
found, in the course of the search, in the possession of the
31
person or in, or on, an aircraft, vehicle or vessel that the
32
person had operated or occupied at any time within 24 hours
33
before the search began, being a thing that the authorised
34
officer or an assisting officer believes on reasonable grounds
35
to be:
36
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 81
National Integrity Commissioner Bill 2012 No. , 2012 89
(i) in the case of an investigation warrant--evidential
1
material in relation to the corruption issue or public
2
inquiry to which the warrant relates; or
3
(ii) in the case of an offence warrant--a thing relevant to
4
the offence to which the warrant relates; or
5
(iii) in any case--evidential material (within the meaning of
6
the Proceeds of Crime Act 2002) or tainted property
7
(within the meaning of that Act); or
8
(iv) in any case--a thing relevant to an indictable offence;
9
if the authorised officer or the assisting officer believes on
10
reasonable grounds that seizure of the thing is necessary to
11
prevent its concealment, loss or destruction or its use in
12
committing an offence.
13
Successive warrants
14
(5) Paragraph (1)(e) does not prevent the issue of successive warrants
15
in relation to the same premises or person.
16
81 Application by telephone etc. and issue of warrant
17
(1) An authorised officer may apply to an issuing officer for a search
18
warrant by telephone, fax, email or other electronic means:
19
(a) in an urgent case; or
20
(b) if the delay that would occur if an application were made in
21
person would frustrate the effective execution of the warrant.
22
(2) The issuing officer:
23
(a) may require communication by voice to the extent that is
24
practicable in the circumstances; and
25
(b) may make a recording of the whole or any part of any such
26
communication by voice.
27
(3) An application under this section must include all information that
28
is required in an ordinary application for a search warrant, but the
29
application may, if necessary, be made before the information is
30
sworn or affirmed.
31
(4) If an application is made under this section:
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 81
90 National Integrity Commissioner Bill 2012 No. , 2012
(a) sections 79 and 79 apply as if subsections 78(1), (2), (3) and
1
(4) and 79(1), (2), (3) and (4) referred to 48 hours rather than
2
72 hours; and
3
(b) section 80 applies as if subsection 80(2) referred to the end of
4
the 48th hour rather than the end of the seventh day.
5
(5) If an application is made to an issuing officer under this section
6
and the issuing officer, after considering the information and
7
having received and considered such further information (if any) as
8
the issuing officer required, is satisfied that:
9
(a) a search warrant in the terms of the application should be
10
issued urgently; or
11
(b) the delay that would occur if an application were made in
12
person would frustrate the effective execution of the warrant;
13
the issuing officer may complete and sign the same form of search
14
warrant that would be issued under section 79.
15
(6) If the issuing officer decides to issue the search warrant, the issuing
16
officer is to inform the applicant, by telephone, fax, email or other
17
electronic means, of the terms of the warrant and the day on which
18
and the time at which it was signed.
19
(7) The applicant must then complete a form of search warrant in
20
terms substantially corresponding to those given by the issuing
21
officer, stating on the form the name of the issuing officer and the
22
day on which and the time at which the warrant was signed.
23
(8) The applicant must give or transmit to the issuing officer:
24
(a) the form of search warrant completed by the applicant; and
25
(b) if the information referred to in subsection (3) was not sworn
26
or affirmed--that information duly sworn or affirmed.
27
(9) The applicant must do so not later than the day after the warrant
28
expires or the day after the day on which the search warrant was
29
executed, whichever is the earlier.
30
(10) The issuing officer is to attach to the documents provided under
31
subsection (8) the form of search warrant he or she has completed.
32
(11)
If:
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 82
National Integrity Commissioner Bill 2012 No. , 2012 91
(a) it is material, in any proceedings, for a court to be satisfied
1
that the exercise of a power under a search warrant issued
2
under this section was duly authorised; and
3
(b) the form of search warrant signed by the issuing officer is not
4
produced in evidence;
5
the court is to assume, unless the contrary is proved, that the
6
exercise of the power was not duly authorised.
7
(12) In this section:
8
applicant means the authorised officer who applied for the search
9
warrant.
10
82 The things authorised by a search warrant in relation to premises
11
A search warrant in force in relation to premises authorises the
12
authorised officer executing the warrant or an assisting officer to
13
do any of the following:
14
(a) to enter the premises;
15
(b) to search for and record fingerprints found at the premises
16
and to take samples of things found at the premises for
17
forensic purposes;
18
(c) to search the premises for the kinds of evidential material
19
specified in the warrant, and to seize things of that kind
20
found on the premises;
21
(d) to seize other things found on the premises in the course of
22
the search that the authorised officer or the assisting officer
23
believes on reasonable grounds to be:
24
(i) in the case of an investigation warrant--evidential
25
material in relation to the corruption issue or public
26
inquiry to which the warrant relates; or
27
(ii) in the case of an offence warrant--a thing relevant to
28
the offence to which the warrant relates; or
29
(iii) in any case--evidential material (within the meaning of
30
the Proceeds of Crime Act 2002) or tainted property
31
(within the meaning of that Act); or
32
(iv) in any case--a thing relevant to an indictable offence;
33
if the authorised officer or the assisting officer believes on
34
reasonable grounds that seizure of the thing is necessary to
35
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 4 Search warrants
Section 83
92 National Integrity Commissioner Bill 2012 No. , 2012
prevent its concealment, loss or destruction or its use in
1
committing an offence;
2
(e) to seize other things found at the premises in the course of
3
the search that the authorised officer or the assisting officer
4
believes on reasonable grounds to be eligible seizable items;
5
(f) if the warrant so allows--to conduct an ordinary search or a
6
frisk search of a person at or near the premises if the
7
authorised officer or the assisting officer suspects on
8
reasonable grounds that the person has in his or her
9
possession:
10
(i) in the case of an investigation warrant--any evidential
11
material in relation to the corruption issue or public
12
inquiry to which the warrant relates; or
13
(ii) in the case of an offence warrant--a thing relevant to
14
the offence to which the warrant relates; or
15
(iii) in any case--evidential material (within the meaning of
16
the Proceeds of Crime Act 2002) or tainted property
17
(within the meaning of that Act); or
18
(iv) in any case--a thing relevant to an indictable offence; or
19
(v) in any case--any eligible seizable items.
20
83 The things authorised by a search warrant in relation to a person
21
(1) A search warrant in force in relation to a person authorises the
22
authorised officer executing the warrant or an assisting officer to
23
do any of the following:
24
(a)
to
search:
25
(i) the person as specified in the warrant and things found
26
in the possession of the person; and
27
(ii) any aircraft, vehicle or vessel that the person had
28
operated or occupied at any time within 24 hours before
29
the search began, for things specified in the warrant;
30
(b)
to:
31
(i) seize things of that kind; or
32
(ii) record fingerprints from things; or
33
(iii) take forensic samples from things;
34
found in the course of the search;
35
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 84
National Integrity Commissioner Bill 2012 No. , 2012 93
(c) to seize other things found on, or in, the possession of the
1
person or in the aircraft, vehicle or vessel referred to in
2
subparagraph (a)(ii) in the course of the search that the
3
authorised officer or the assisting officer believes on
4
reasonable grounds to be:
5
(i) in the case of an investigation warrant--evidential
6
material in relation to the corruption issue or public
7
inquiry to which the warrant relates; or
8
(ii) in the case of an offence warrant--a thing relevant to
9
the offence to which the warrant relates; or
10
(iii) in any case--evidential material (within the meaning of
11
the Proceeds of Crime Act 2002) or tainted property
12
(within the meaning of that Act); or
13
(iv) in any case--a thing relevant to an indictable offence;
14
if the authorised officer or the assisting officer believes on
15
reasonable grounds that seizure of the thing is necessary to
16
prevent its concealment, loss or destruction or its use in
17
committing an offence;
18
(d) to seize other things found in the course of the search that the
19
authorised officer or the assisting officer believes on
20
reasonable grounds to be eligible seizable items.
21
(2) If the search warrant authorises an ordinary search or a frisk search
22
of a person, a search of the person different from that authorised by
23
the warrant must not be done under the warrant.
24
84 Restrictions on personal searches
25
A search warrant may not authorise a strip search or a search of a
26
person's body cavities.
27
85 When warrant may be executed etc.
28
(1) If a search warrant states that it may be executed only during
29
particular hours, the warrant must not be executed outside those
30
hours.
31
(2) If things are seized under a search warrant, the warrant authorises
32
the authorised officer executing the warrant to make the things
33
available to officers of other government agencies if it is necessary
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 86
94 National Integrity Commissioner Bill 2012 No. , 2012
to do so for the purpose of investigating or prosecuting an offence
1
to which the things relate.
2
Subdivision D--General provisions about executing a search
3
warrant
4
86 Announcement before entry
5
(1) An authorised officer executing the search warrant must, before
6
any person enters premises under the warrant:
7
(a) announce that he or she is authorised to enter the premises;
8
and
9
(b) give any person at the premises an opportunity to allow entry
10
to the premises.
11
(2) An authorised officer is not required to comply with subsection (1)
12
if he or she believes on reasonable grounds that immediate entry to
13
the premises is required:
14
(a) to ensure the safety of a person (including an authorised
15
officer or assisting officer); or
16
(b) to ensure that the effective execution of the warrant is not
17
frustrated.
18
87 Availability of assistance and use of force in executing a warrant
19
(1) In executing a search warrant, the authorised officer executing the
20
warrant may:
21
(a) obtain the assistance that is necessary and reasonable in the
22
circumstances; and
23
(b) use the force against persons and things that is necessary and
24
reasonable in the circumstances.
25
(2) In executing a search warrant:
26
(a) if an assisting officer is also an authorised officer--the
27
assisting officer may use the force against persons and things
28
that is necessary and reasonable in the circumstances; and
29
(b) if an assisting officer is not an authorised officer--the
30
assisting officer may use the force against things that is
31
necessary and reasonable in the circumstances.
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 88
National Integrity Commissioner Bill 2012 No. , 2012 95
(3) A person who is not an authorised officer must not take part in
1
searching a person.
2
Subdivision E--Specific provisions about executing a warrant
3
in relation to premises
4
88 Application
5
This Subdivision applies if a search warrant in relation to premises
6
is being executed.
7
89 Copy of warrant to be shown to occupier etc.
8
(1) If the occupier of the premises, or another person who apparently
9
represents the occupier, is present at the premises, the authorised
10
officer executing the search warrant or an assisting officer must
11
make a copy of the warrant available to the person.
12
(2) If a person is searched under a search warrant in relation to
13
premises, the authorised officer executing the warrant or an
14
assisting officer must show the person a copy of the warrant.
15
(3) The authorised officer must identify himself or herself to the
16
person at the premises.
17
(4) The copy of the search warrant need not include the signature of
18
the issuing officer who issued it.
19
90 Occupier entitled to watch search
20
(1) The occupier of the premises, or another person who apparently
21
represents the occupier, who is present at the premises, is entitled
22
to watch the search.
23
(2) Subsection (1) is subject to Part IC of the Crimes Act 1914.
24
(3) The right to watch the search being conducted ceases if the person
25
impedes the search.
26
(4) This section does not prevent 2 or more areas of the premises being
27
searched at the same time.
28
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 91
96 National Integrity Commissioner Bill 2012 No. , 2012
91 Specific powers available to person executing a warrant
1
(1) The authorised officer executing the search warrant or an assisting
2
officer may take photographs or video recordings of the premises
3
or things on the premises:
4
(a) for a purpose incidental to the execution of the warrant; or
5
(b) with the written consent of the occupier of the premises.
6
(2) The authorised officer executing the search warrant and all
7
assisting officers may, if the warrant is still in force, finish
8
executing the warrant after all of them temporarily stop executing
9
it and leave the premises:
10
(a) for not more than one hour; or
11
(b) for a longer period with the written consent of the occupier of
12
the premises.
13
(3) The execution of a search warrant that is stopped by an order of a
14
court may be completed if:
15
(a) the order is later revoked or reversed on appeal; and
16
(b) the warrant is still in force.
17
92 Use of equipment to examine or process things
18
(1) The authorised officer executing the search warrant or an assisting
19
officer may bring to the premises any equipment (including
20
electronic equipment) reasonably necessary to examine or process
21
things found at the premises in order to determine whether they are
22
things that may be seized under the warrant.
23
(2) A thing found at the premises may be moved to another place for
24
examination or processing in order to determine whether it may be
25
seized under a warrant if:
26
(a) both of the following apply:
27
(i) it is significantly more practicable to do so having
28
regard to the timeliness and cost of examining or
29
processing the thing at another place and the availability
30
of expert assistance;
31
(ii) there are reasonable grounds to believe that the thing
32
contains or constitutes evidential material; or
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 92
National Integrity Commissioner Bill 2012 No. , 2012 97
(b) the occupier of the premises consents in writing.
1
(3) If things are moved to another place for the purpose of examination
2
or processing, the authorised officer must, if it is practicable to do
3
so:
4
(a) inform the occupier of the address of the place and the time
5
at which the examination or processing will be carried out;
6
and
7
(b) allow the occupier or his or her representative to be present
8
during the examination or processing.
9
(4) The thing may be moved to another place for examination or
10
processing for no longer than 72 hours.
11
(5) An authorised officer may apply to an issuing officer for one or
12
more extensions of that time if the authorised officer believes on
13
reasonable grounds that the thing cannot be examined or processed
14
within 72 hours or that time as previously extended.
15
(6) The authorised officer must give notice of the application for an
16
extension to the occupier of the premises, and the occupier is
17
entitled to be heard in relation to the application.
18
(7) The provisions of this Division in relation to the issuing of search
19
warrants apply, with such modifications as are necessary, to the
20
issuing of an extension.
21
(8) The authorised officer executing the search warrant or an assisting
22
officer may operate equipment (including electronic equipment)
23
already on the premises to examine or process a thing found on the
24
premises in order to determine whether it may be seized under the
25
warrant, if the authorised officer or the assisting officer believes on
26
reasonable grounds that:
27
(a) the equipment is suitable for the examination or processing;
28
and
29
(b) the examination or processing can be carried out without
30
damaging the equipment or thing.
31
(9) A notice of the application for an extension given to the occupier
32
of the premises under this section is not a legislative instrument.
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 93
98 National Integrity Commissioner Bill 2012 No. , 2012
93 Use of electronic equipment at premises without expert assistance
1
(1) The authorised officer executing the search warrant or an assisting
2
officer may operate electronic equipment on the premises to access
3
data (including data not held at the premises) if he or she believes
4
on reasonable grounds that:
5
(a) the data might constitute evidential material; and
6
(b) the equipment can be operated without damaging it.
7
Note:
An authorised officer can obtain an order requiring a person with
8
knowledge of a computer or computer system to provide assistance:
9
see section 95.
10
(2) If the authorised officer or the assisting officer believes on
11
reasonable grounds that any data accessed by operating the
12
electronic equipment might constitute evidential material, he or she
13
may:
14
(a) copy the data to a disk, tape or other associated device
15
brought to the premises; or
16
(b) if the occupier of the premises agrees in writing--copy the
17
data to a disk, tape or other associated device at the premises;
18
and take the device from the premises.
19
(3)
If:
20
(a) the authorised officer or the assisting officer takes the device
21
from the premises; and
22
(b) the National Integrity Commissioner is satisfied that the data
23
is not required (or is no longer required) for:
24
(i) investigating a corruption issue; or
25
(ii) conducting a public inquiry; or
26
(iii) judicial proceedings or administrative review
27
proceedings;
28
the National Integrity Commissioner must arrange for:
29
(c) the removal of the data from any device in the control of the
30
National Integrity Commission; and
31
(d) the destruction of any other reproduction of the data in the
32
control of the National Integrity Commission.
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 94
National Integrity Commissioner Bill 2012 No. , 2012 99
(4) However, the National Integrity Commissioner must not do so if
1
the data is evidence that he or she must deal with in accordance
2
with Part 7.
3
(5) If the authorised officer or the assisting officer, after operating the
4
equipment, finds that evidential material is accessible by doing so,
5
he or she may:
6
(a) seize the equipment and any disk, tape or other associated
7
device; or
8
(b) if the material can, by using facilities at the premises, be put
9
in documentary form--operate the facilities to put the
10
material in that form and seize the documents so produced.
11
(6) A person may seize equipment under paragraph (5)(a) only if:
12
(a) it is not practicable to put the material in documentary form
13
as referred to in paragraph (5)(b); or
14
(b) possession of the equipment by the occupier could constitute
15
an offence.
16
94 Use of electronic equipment at premises with expert assistance
17
(1) If the authorised officer executing the search warrant or an
18
assisting officer believes on reasonable grounds that:
19
(a) evidential material may be accessible by operating electronic
20
equipment at the premises; and
21
(b) expert assistance is required to operate the equipment; and
22
(c) if he or she does not take action under this subsection, the
23
material may be destroyed, altered or otherwise interfered
24
with;
25
he or she may do whatever is necessary to secure the equipment,
26
whether by locking it up, placing a guard or otherwise.
27
(2) The authorised officer or the assisting officer must notify the
28
occupier of the premises, in writing, of:
29
(a) his or her intention to secure the equipment; and
30
(b) the fact that the equipment may be secured for up to 24
31
hours.
32
(3) The equipment may be secured for up to 24 hours to allow the
33
equipment to be operated by an expert.
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 95
100 National Integrity Commissioner Bill 2012 No. , 2012
(4) If the authorised officer or the assisting officer believes on
1
reasonable grounds that expert assistance will not be available
2
within 24 hours, he or she may apply to an issuing officer for an
3
extension of that period.
4
(5) The authorised officer or the assisting officer must give notice of
5
the application for an extension to the occupier of the premises,
6
and the occupier is entitled to be heard in relation to the
7
application.
8
(6) The provisions of this Division in relation to the issuing of search
9
warrants apply, with such modifications as are necessary, to the
10
issuing of an extension.
11
(7) A notice of the application for an extension given to the occupier
12
of the premises under this section is not a legislative instrument.
13
95 Person with knowledge of a computer or a computer system to
14
assist access etc.
15
(1) The authorised officer executing the search warrant may apply to
16
an issuing officer for an order requiring a specified person to
17
provide any information or assistance that is reasonable and
18
necessary to allow the officer or an assisting officer or to do one or
19
more of the following:
20
(a) access data held in a computer, or accessible from a
21
computer, that is on premises in relation to which the warrant
22
is in force;
23
(b) copy the data to a data storage device;
24
(c) convert the data into documentary form.
25
(2) The issuing officer may grant the order if he or she is satisfied that:
26
(a) there are reasonable grounds for suspecting that evidential
27
material is held in, or is accessible from, the computer; and
28
(b) the specified person is:
29
(i) in the case of an investigation warrant--reasonably
30
suspected of having, or having access to, data that may
31
be relevant to the corruption issue or public inquiry to
32
which the warrant relates; or
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 96
National Integrity Commissioner Bill 2012 No. , 2012 101
(ii) in the case of an offence warrant--reasonably suspected
1
of having committed the offence stated in the warrant;
2
or
3
(iii) the owner or lessee of the computer; or
4
(iv) an employee of the owner or lessee of the computer; and
5
(c) the specified person has relevant knowledge of:
6
(i) the computer or a computer network of which the
7
computer forms a part; or
8
(ii) measures applied to protect data held in, or accessible
9
from, the computer.
10
(3) A person commits an offence if the person fails to comply with the
11
order.
12
Penalty: Imprisonment for 6 months.
13
96 Accessing data held on other premises--notification to occupier
14
of those premises
15
(1)
If:
16
(a) data that is held on premises (other than the premises in
17
relation to which the warrant is in force) is accessed under
18
subsection 93(1); and
19
(b) it is practicable to notify the occupier of the other premises
20
that the data has been accessed under a warrant;
21
the authorised officer executing the search warrant must:
22
(c) do so as soon as practicable; and
23
(d) if the authorised officer has arranged, or intends to arrange,
24
for continued access to the data under subsection 93(2) or
25
(5)--include that information in the notification.
26
(2) A notification under subsection (1) must include sufficient
27
information to allow the occupier of the other premises to contact
28
the authorised officer.
29
97 Compensation for damage to electronic equipment
30
(1) This section applies if:
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 98
102 National Integrity Commissioner Bill 2012 No. , 2012
(a) as a result of equipment being operated as mentioned in
1
section 92, 93 or 94:
2
(i) damage is caused to the equipment; or
3
(ii) the data recorded on the equipment is damaged; or
4
(iii) programs associated with the use of the equipment, or
5
with the use of the data, are damaged or corrupted; and
6
(b) the damage or corruption occurs because:
7
(i) insufficient care was exercised in selecting the person
8
who was to operate the equipment; or
9
(ii) insufficient care was exercised by the person operating
10
the equipment.
11
(2) The Commonwealth must pay the owner of the equipment, or the
12
user of the data or programs, such reasonable compensation for the
13
damage or corruption as the Commonwealth and the owner or user
14
agree on.
15
(3) However, if the owner or user and the Commonwealth fail to
16
agree, the owner or user may institute proceedings in the Federal
17
Court of Australia for such reasonable amount of compensation as
18
the Court determines.
19
(4) In determining the amount of compensation payable, regard is to
20
be had to whether the occupier of the premises, or the occupier's
21
employees or agents, if they were available at the time, had
22
provided any appropriate warning or guidance on the operation of
23
the equipment.
24
(5) Compensation is payable out of money appropriated by the
25
Parliament.
26
(6) For the purpose of subsection (1):
27
damage, in relation to data, includes damages by erasure of data or
28
addition of other data.
29
98 Copies of seized things to be provided
30
(1) If the authorised officer executing the search warrant or an
31
assisting officer seizes:
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 99
National Integrity Commissioner Bill 2012 No. , 2012 103
(a) a document, film, computer file or other thing that can be
1
readily copied; or
2
(b) a device storing information that can be readily copied;
3
the authorised officer or the assisting officer must, if requested to
4
do so by the occupier of the premises or another person who
5
apparently represents the occupier and who is present when the
6
warrant is executed, give a copy of the thing or the information to
7
that person as soon as practicable after the seizure.
8
(2) However, subsection (1) does not apply if:
9
(a) the thing that has been seized was seized under subsection
10
93(2) or paragraph 93(5)(a); or
11
(b) possession of the document, film, computer file, thing or
12
information by the occupier could constitute an offence.
13
99 Receipts of things seized under warrant
14
(1) If a thing is seized under a search warrant or moved under
15
subsection 92(2), the authorised officer executing the warrant or an
16
assisting officer must provide a receipt for the thing.
17
(2) If 2 or more things are seized or moved, they may be covered by
18
the one receipt.
19
Subdivision F--Specific provisions about executing a warrant
20
in relation to a person
21
100 Copy of warrant to be shown to person
22
(1) If a search warrant in relation to a person is being executed, the
23
authorised officer executing the warrant or an assisting officer
24
must make a copy of the warrant available to that person.
25
(2) The authorised officer must identify himself or herself to the
26
person being searched.
27
(3) The copy of the warrant need not include the signature of the
28
issuing officer who issued it.
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 101
104 National Integrity Commissioner Bill 2012 No. , 2012
101 Conduct of an ordinary search or a frisk search
1
An ordinary search or a frisk search of a person must, if
2
practicable, be conducted by a person of the same sex as the person
3
being searched.
4
Subdivision G--Offences
5
102 Making false statements in warrants
6
A person commits an offence if:
7
(a) the person makes a statement in applying for a search
8
warrant; and
9
(b) the person knows that the statement is false or misleading in
10
a material particular.
11
Penalty: Imprisonment for 2 years.
12
103 Offence for stating incorrect names in telephone warrants
13
A person commits an offence if:
14
(a) the person states a name of an issuing officer in a document;
15
and
16
(b) the document purports to be a form of search warrant under
17
section 81; and
18
(c) the name is not the name of the issuing officer who issued the
19
search warrant.
20
Penalty: Imprisonment for 2 years.
21
104 Offence for unauthorised form of warrant
22
A person commits an offence if:
23
(a) the person states a matter in a form of search warrant under
24
section 81; and
25
(b) the person knows that the matter departs in a material
26
particular from the form authorised by the issuing officer.
27
Penalty: Imprisonment for 2 years.
28
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 105
National Integrity Commissioner Bill 2012 No. , 2012 105
105 Offence for executing etc. an unauthorised form of warrant
1
A person commits an offence if:
2
(a) the person executes or presents a document to another
3
person; and
4
(b) the document purports to be a form of search warrant under
5
section 81; and
6
(c) the person knows that the document:
7
(i) has not been approved by an issuing officer under that
8
section; or
9
(ii) departs in a material particular from the terms
10
authorised by an issuing officer under that section.
11
Penalty: Imprisonment for 2 years.
12
106 Offence for giving unexecuted form of warrant
13
A person commits an offence if:
14
(a) the person gives an issuing officer a form of search warrant
15
under section 81; and
16
(b) the document is not the form of search warrant that the
17
person executed.
18
Penalty: Imprisonment for 2 years.
19
Subdivision H--Miscellaneous
20
107 Other laws about search, arrest etc. not affected
21
(1) This Division is not intended to limit or exclude the operation of
22
another law of the Commonwealth relating to:
23
(a) the search of persons or premises; or
24
(b) arrest and related matters; or
25
(c) the seizure of things.
26
(2) To avoid doubt, even though another law of the Commonwealth
27
provides power to do one or more of the things referred to in
28
subsection (1), a similar power conferred by this Division may be
29
used despite the existence of the power under the other law.
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 108
106 National Integrity Commissioner Bill 2012 No. , 2012
108 Law relating to legal professional privilege not affected
1
This Division does not affect the law relating to legal professional
2
privilege.
3
4
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Powers of arrest Division 5
Section 109
National Integrity Commissioner Bill 2012 No. , 2012 107
Division 5--Powers of arrest
1
109 Authorised officers may exercise powers of arrest
2
For the purposes of investigating a corruption issue, an authorised
3
officer who is not a constable (within the meaning of the Crimes
4
Act 1914) has the same powers and duties under Divisions 4 and 5
5
of Part IAA of the Crimes Act 1914 as a constable as if the
6
authorised officer were a constable.
7
8
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 6 Authorised officers
Section 110
108 National Integrity Commissioner Bill 2012 No. , 2012
Division 6--Authorised officers
1
110 Appointment of authorised officers
2
(1) The National Integrity Commissioner may, in writing, authorise a
3
person to be an authorised officer for the purposes of this Part.
4
(2) The person must be:
5
(a) a staff member of the National Integrity Commission whom
6
the National Integrity Commissioner considers has suitable
7
qualifications or experience; or
8
(b) a member of the Australian Federal Police.
9
(3) The National Integrity Commissioner may authorise a person
10
referred to in paragraph (2)(b) only if the Commissioner of the
11
Australian Federal Police agrees to the appointment.
12
(4) In exercising powers as an authorised officer, an authorised officer
13
must comply with any directions given by the National Integrity
14
Commissioner.
15
(5) If the National Integrity Commissioner gives a direction under
16
subsection (4) in writing, the direction is not a legislative
17
instrument.
18
111 Identity cards
19
Issue of identity card
20
(1) The National Integrity Commissioner must issue an identity card to
21
a person who is an authorised officer for the purposes of this Part.
22
Form of identity card
23
(2) An identity card:
24
(a) must be in the form prescribed by the regulations; and
25
(b) must contain a recent photograph of the authorised officer.
26
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Authorised officers Division 6
Section 111
National Integrity Commissioner Bill 2012 No. , 2012 109
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 this
3
Part.
4
(4) An authorised officer is not entitled to exercise any powers under
5
this Part in relation to premises if:
6
(a) the occupier of the premises requires the authorised officer to
7
produce his or her identity card for inspection by the
8
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
this Part in relation to a person if:
12
(a) the person requires the authorised officer to produce his or
13
her identity card for inspection by the person; and
14
(b) the authorised officer fails to comply with the requirement.
15
Offence
16
(6) A person commits an offence if:
17
(a) the person has been issued with an identity card; and
18
(b) the person ceases to be an authorised officer; and
19
(c) the person does not return the identity card to the National
20
Integrity Commissioner immediately after ceasing to be an
21
authorised officer.
22
Penalty: 1 penalty unit.
23
24
Part 7 Dealing with evidence and information obtained in investigation or public
inquiry
Division 1 Introduction
Section 112
110 National Integrity Commissioner Bill 2012 No. , 2012
Part 7--Dealing with evidence and information
1
obtained in investigation or public inquiry
2
Division 1--Introduction
3
112 Guide to this Part
4
This Division is about how the National Integrity Commissioner is
5
to deal with evidence and information obtained in investigating a
6
corruption issue or conducting a public inquiry.
7
The National Integrity Commissioner must give evidence of an
8
offence or liability to civil penalty to:
9
(a)
the Commissioner of the Australian Federal Police;
10
or
11
(b)
the head (however described) of the police force of
12
the relevant State or Territory; or
13
(c)
another person or authority who is authorised by or
14
under a law of the Commonwealth or the relevant
15
State or Territory to prosecute the offence or bring
16
the civil penalty proceedings;
17
as appropriate in the circumstances.
18
The National Integrity Commissioner must bring to the attention of
19
the Prime Minister evidence of, or information suggesting,
20
wrongful conviction of a person and must advise the person that
21
the National Integrity Commissioner has brought the evidence to
22
the attention of the Prime Minister.
23
24
Dealing with evidence and information obtained in investigation or public inquiry Part
7
Dealing with evidence and information obtained in investigation or public inquiry
Division 2
Section 113
National Integrity Commissioner Bill 2012 No. , 2012 111
Division 2--Dealing with evidence and information
1
obtained in investigation or public inquiry
2
113 Evidence of offence or liability to civil penalty
3
Commonwealth offence or civil penalty
4
(1) If, in investigating a corruption issue or conducting a public
5
inquiry, the National Integrity Commissioner obtains:
6
(a) evidence of an offence against a law of the Commonwealth
7
that would be admissible in a prosecution for the offence; or
8
(b) evidence of the contravention of a law of the
9
Commonwealth:
10
(i) in relation to which civil penalty proceedings may be
11
brought; and
12
(ii) that would be admissible in civil penalty proceedings
13
for the contravention;
14
the National Integrity Commissioner must:
15
(c) assemble the evidence; and
16
(d) give the evidence to:
17
(i) the Commissioner of the Australian Federal Police; or
18
(ii) another person or authority who is authorised by or
19
under a law of the Commonwealth to prosecute the
20
offence or bring the civil penalty proceedings.
21
State or Territory offence or civil penalty
22
(2) If, in investigating a corruption issue or conducting a public
23
inquiry, the National Integrity Commissioner obtains:
24
(a) evidence of an offence against a law of a State or Territory
25
that would be admissible in a prosecution for the offence; or
26
(b) evidence of the contravention of a law of a State or Territory:
27
(i) in relation to which civil penalty proceedings may be
28
brought; and
29
(ii) that would be admissible in civil penalty proceedings
30
for the contravention;
31
the National Integrity Commissioner must:
32
Part 7 Dealing with evidence and information obtained in investigation or public
inquiry
Division 2 Dealing with evidence and information obtained in investigation or public
inquiry
Section 114
112 National Integrity Commissioner Bill 2012 No. , 2012
(c) assemble the evidence; and
1
(d) give the evidence to:
2
(i) the head (however described) of the police force of the
3
State or Territory; or
4
(ii) another person or authority who is authorised by or
5
under a law of the State or Territory to prosecute the
6
offence or bring the civil penalty proceedings.
7
114 Evidence that could be used in confiscation proceedings
8
Commonwealth proceedings
9
(1) If, in investigating a corruption issue or conducting a public
10
inquiry, the National Integrity Commissioner obtains evidence that
11
would be admissible in a proceeding under the Proceeds of Crime
12
Act 1987 or the Proceeds of Crime Act 2002 (other than a criminal
13
prosecution for an offence under that Act), the National Integrity
14
Commissioner must:
15
(a) assemble the evidence; and
16
(b) give the evidence to:
17
(i) the Commissioner of the Australian Federal Police; or
18
(ii) another person or authority who is authorised by or
19
under a law of the Commonwealth to bring the
20
proceeding.
21
State or Territory proceedings
22
(2) If, in investigating a corruption issue or conducting a public
23
inquiry, the National Integrity Commissioner obtains evidence that
24
would be admissible in a proceeding under a corresponding law
25
within the meaning of the Proceeds of Crime Act 1987 or the
26
Proceeds of Crime Act 2002 (other than a criminal prosecution for
27
an offence under the corresponding law), the National Integrity
28
Commissioner must:
29
(a) assemble the evidence; and
30
(b) give the evidence to:
31
(i) the head (however described) of the police force of the
32
State or Territory; or
33
Dealing with evidence and information obtained in investigation or public inquiry Part
7
Dealing with evidence and information obtained in investigation or public inquiry
Division 2
Section 115
National Integrity Commissioner Bill 2012 No. , 2012 113
(ii) another person or authority who is authorised by or
1
under a law of the State or Territory to bring the
2
proceeding.
3
115 Evidence of, or information suggesting, wrongful conviction
4
Commonwealth offence
5
(1) If the National Integrity Commissioner:
6
(a) in investigating a corruption issue or conducting a public
7
inquiry, obtains evidence that a person was wrongly
8
convicted of an offence against a law of the Commonwealth;
9
and
10
(b) is satisfied that the evidence is, in all the circumstances, of
11
sufficient force to justify his or her doing so;
12
the National Integrity Commissioner must:
13
(c) bring the evidence to the notice of the Prime Minister; and
14
(d) advise the person that the National Integrity Commissioner
15
has brought the evidence to the notice of the Prime Minister.
16
State or Territory offence
17
(2) If the National Integrity Commissioner:
18
(a) in investigating a corruption issue or conducting a public
19
inquiry, obtains evidence that a person was wrongly
20
convicted of an offence against a law of a State or Territory;
21
and
22
(b) is satisfied that the evidence is, in all the circumstances, of
23
sufficient force to justify his or her doing so;
24
the National Integrity Commissioner must:
25
(c) bring the evidence to the notice of the Prime Minister; and
26
(d) advise the person that the National Integrity Commissioner
27
has brought the evidence to the notice of the Prime Minister.
28
29
Part 8 Independent Parliamentary Advisor
Division 1 Introduction
Section 116
114 National Integrity Commissioner Bill 2012 No. , 2012
Part 8--Independent Parliamentary Advisor
1
Division 1--Introduction
2
116 Guide to this Part
3
This Division is about the role of the Independent Parliamentary
4
Advisor in providing advice about compliance with applicable
5
codes of conduct and other matters to ministers, parliamentarians,
6
former parliamentarians, committees and presiding officers.
7
8
Independent Parliamentary Advisor Part 8
Requests for advice Division 2
Section 117
National Integrity Commissioner Bill 2012 No. , 2012 115
Division 2--Requests for advice
1
117 Minister may request advice
2
(1) A minister may request advice from the Independent Parliamentary
3
Advisor about his or her compliance with an applicable code of
4
conduct, whether the request for advice relates to an issue that
5
arose before or after the commencement of this Act.
6
(2) A request for advice must be in writing.
7
(3) A request for advice must be about a matter relating to the minister
8
requesting the advice or a family member of the minister.
9
118 Presiding officer or chair of committee may request advice
10
(1) A presiding officer or a chair of a committee of a House of the
11
Parliament may request advice from the Independent Parliamentary
12
Advisor about any relevant matter, including the development of a
13
code of conduct for parliamentarians of that House.
14
(2) A request for advice must be in writing.
15
119 Parliamentarian or former parliamentarian may request advice
16
(1) A parliamentarian or a former parliamentarian may request advice
17
from the Independent Parliamentary Advisor about:
18
(a) an applicable code of conduct;
19
(b)
parliamentary
allowances;
20
(c) an interest, including a potential conflict of interest;
21
(d) an ethical issue;
22
(e) a matter of propriety, including the receipt of a gift;
23
(f) any similar issue;
24
whether the request for advice relates to an issue that arose before
25
or after the commencement of this Act
26
(2) A request for advice must be in writing.
27
(3) A request for advice must be about a matter relating to:
28
Part 8 Independent Parliamentary Advisor
Division 2 Requests for advice
Section 120
116 National Integrity Commissioner Bill 2012 No. , 2012
(a) the parliamentarian or the former parliamentarian requesting
1
the advice; or
2
(b) a family member of the parliamentarian or the former
3
parliamentarian requesting the advice; or
4
(c) a person employed or formerly employed under the Members
5
of Parliament (Staff) Act 1984 by the parliamentarian or the
6
former parliamentarian.
7
120 Independent Parliamentary Advisor to provide advice in writing
8
The Independent Parliamentary Advisor may only provide written
9
advice in response to a request under section 117, 118 or 119.
10
121 Independent Parliamentary Advisor may request additional
11
information
12
(1) Before providing written advice in response to a request under
13
section 117, 118 or 119, the Independent Parliamentary Advisor
14
may request additional information from the person who made the
15
request.
16
(2) A request made under subsection (1) must explain how the
17
additional information relates to the original request for written
18
advice.
19
(3)
If:
20
(a) a request is made under subsection (1); and
21
(b) the Independent Parliamentary Advisor:
22
(i) does not receive the additional information; or
23
(ii) is unable to provide the written advice because the
24
additional information is insufficient for the
25
Independent Parliamentary Advisor to form an opinion
26
on the matter;
27
then, in lieu of the written advice, the Independent Parliamentary
28
Advisor must provide a written statement to the person who
29
requested the advice that Independent Parliamentary Advisor was
30
unable to prepare the advice because of insufficient information.
31
32
Independent Parliamentary Advisor Part 8
Reporting Division 3
Section 122
National Integrity Commissioner Bill 2012 No. , 2012 117
Division 3--Reporting
1
122 Annual report
2
(1) The Independent Parliamentary Advisor must give:
3
(a) the President of the Senate for presentation to the Senate; and
4
(b) the Speaker of the House of Representatives for presentation
5
to the House of Representatives;
6
a report (the annual report) on the performance of the independent
7
parliamentary advisor functions during each financial year.
8
Note:
See also section 34C of the Acts Interpretation Act 1901, which
9
contains extra rules about annual reports.
10
(2) A report under subsection (1) must include:
11
(a) information about the number of times written advice was
12
prepared by the Independent Parliamentary Advisor,
13
including information about the number of times written
14
advice related to:
15
(i) an applicable code of conduct or a part thereof; or
16
(ii) a particular type of gift; or
17
(iii) a particular type of interest; and
18
(b) the general nature of the written advice that was prepared by
19
the Independent Parliamentary Advisor.
20
(3) Information under subsection (2) must not be included in a report
21
under subsection (1) if including that information might identify
22
the person who made a request for advice.
23
24
Part 8 Independent Parliamentary Advisor
Division 4 Better practices guides and fact sheets
Section 123
118 National Integrity Commissioner Bill 2012 No. , 2012
Division 4--Better practices guides and fact sheets
1
123 Better practices guides and fact sheets
2
In accordance with the independent parliamentary advisor
3
functions, the Independent Parliamentary Advisor may promote
4
better practice in relation to matters of conduct, propriety and
5
ethics for ministers, parliamentarians, former parliamentarians and
6
persons employed under the Members of Parliament (Staff) Act
7
1984 by preparing and disseminating better practice guides and
8
fact sheets those persons.
9
10
Administrative provisions Part 9
Introduction Division 1
Section 124
National Integrity Commissioner Bill 2012 No. , 2012 119
Part 9--Administrative provisions
1
Division 1--Introduction
2
124 Guide to this Part
3
This Division is about:
4
(a)
the appointment of the integrity officers; and
5
(b)
the staff of the National Integrity Commission,
6
who are engaged under the Public Service Act
7
1999.
8
The National Integrity Commissioner may engage consultants.
9
The National Integrity Commissioner may delegate all or any of
10
his or her functions or powers, other than the power to hold a
11
hearing for the purpose of conducting a public inquiry, to an
12
Assistant National Integrity Commissioner.
13
14
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 125
120 National Integrity Commissioner Bill 2012 No. , 2012
Division 2--Appointment etc. of the integrity officers
1
Subdivision A--National Integrity Commissioner
2
125 Appointment of National Integrity Commissioner
3
(1) The National Integrity Commissioner is to be appointed by the
4
Governor-General by written instrument.
5
Note:
The National Integrity Commissioner is eligible for reappointment:
6
see subsection 33(4A) of the Acts Interpretation Act 1901.
7
(2) Before the Prime Minister makes a recommendation to the
8
Governor-General for the appointment of a person as the National
9
Integrity Commissioner:
10
(a) the Prime Minister must refer the proposed recommendation
11
for the appointment to the Parliamentary Joint Committee on
12
the National Integrity Commission under section 169; and
13
(b)
either:
14
(i) the period that the committee has under that section to
15
consider the proposed recommendation has ended
16
without the committee rejecting the proposed
17
recommendation; or
18
(ii) the committee notifies the Prime Minister that it has
19
decided to approve the proposed recommendation.
20
(3) Subject to section 126, a person may be proposed for appointment
21
on more than one occasion.
22
(4) In this section and sections 168 and 169, appointment includes
23
re-appointment.
24
126 General terms and conditions of appointment
25
(1) The National Integrity Commissioner holds office for the period
26
specified in his or her instrument of appointment. The period must
27
not exceed 5 years. The sum of the periods for which the National
28
Integrity Commissioner holds office must not exceed 5 years.
29
(2) The National Integrity Commissioner holds office on a full-time
30
basis.
31
Administrative provisions Part 9
Appointment etc. of the integrity officers Division 2
Section 127
National Integrity Commissioner Bill 2012 No. , 2012 121
(3) The National Integrity Commissioner holds office on the terms and
1
conditions (if any), in relation to matters not covered by this Act,
2
that are determined by the Governor-General.
3
127 Restriction on outside employment
4
The National Integrity Commissioner must not engage in paid
5
employment outside the duties of his or her office without the
6
Prime Minister's approval.
7
128 Remuneration
8
(1) The National Integrity Commissioner is to be paid the
9
remuneration that is determined by the Remuneration Tribunal. If
10
no determination of remuneration by the Tribunal is in operation,
11
the National Integrity Commissioner is to be paid the remuneration
12
that is prescribed by the regulations.
13
(2) The National Integrity Commissioner is to be paid the allowances
14
that are prescribed by the regulations.
15
(3) This section has effect subject to the Remuneration Tribunal Act
16
1973.
17
129 Leave of absence
18
(1) The National Integrity Commissioner has the recreation leave
19
entitlements that are determined by the Remuneration Tribunal.
20
(2) The Prime Minister may grant the National Integrity Commissioner
21
leave of absence, other than recreation leave, on the terms and
22
conditions as to remuneration or otherwise that the Prime Minister
23
determines.
24
130 Resignation
25
(1) The National Integrity Commissioner may resign his or her
26
appointment by giving the Governor-General a written resignation.
27
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 131
122 National Integrity Commissioner Bill 2012 No. , 2012
(2) The resignation takes effect on the day it is received by the
1
Governor-General or, if a later day is specified in the resignation,
2
on that later day.
3
131 Termination of appointment
4
(1) The Governor-General may terminate the appointment of the
5
National Integrity Commissioner for misbehaviour or physical or
6
mental incapacity.
7
(2) The Governor-General must terminate the appointment of the
8
National Integrity Commissioner if any of the following apply:
9
(a) the National Integrity Commissioner:
10
(i) becomes bankrupt; or
11
(ii) applies to take the benefit of any law for the relief of
12
bankrupt or insolvent debtors; or
13
(iii) compounds with his or her creditors; or
14
(iv) makes an assignment of his or her remuneration for the
15
benefit of his or her creditors;
16
(b) the National Integrity Commissioner is absent, except on
17
leave of absence, for 14 consecutive days or for 28 days in
18
any 12 months;
19
(c) the National Integrity Commissioner engages, except with
20
the Prime Minister's approval, in paid employment outside
21
the duties of his or her office;
22
(d) the National Integrity Commissioner fails, without reasonable
23
excuse, to comply with section 133 (disclosure of interests).
24
132 Acting appointments
25
(1) The Prime Minister may, by written instrument, appoint a person to
26
act as the National Integrity Commissioner:
27
(a) during a vacancy in the office of the National Integrity
28
Commissioner (whether or not an appointment has previously
29
been made to the office); or
30
(b) during any period, or during all periods, when National
31
Integrity Commissioner:
32
(i) is absent from duty or from Australia; or
33
Administrative provisions Part 9
Appointment etc. of the integrity officers Division 2
Section 133
National Integrity Commissioner Bill 2012 No. , 2012 123
(ii) is, for any reason, unable to perform the duties of the
1
office.
2
(2) The Prime Minister may appoint the Law Enforcement Integrity
3
Commissioner to act as the National Integrity Commissioner for
4
the purposes of paragraph (1)(a) or (b).
5
(3) A person appointed to act during a vacancy mentioned in
6
paragraph (1)(a) must not act for more than 12 months.
7
(4) Anything done by or in relation to a person purporting to act under
8
an appointment is not invalid merely because of any of the
9
following:
10
(a) the occasion for the appointment had not arisen;
11
(b) there was a defect or irregularity in connection with the
12
appointment;
13
(c) the appointment had ceased to have effect;
14
(d) the occasion to act had not arisen or had ceased.
15
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
16
133 Disclosure of interests
17
The National Integrity Commissioner must give written notice to
18
the Prime Minister of all interests, pecuniary or otherwise, that the
19
National Integrity Commissioner has or acquires and that conflict
20
or could conflict with the proper performance of the national
21
integrity commissioner functions.
22
Subdivision B--Law Enforcement Integrity Commissioner
23
134 Appointment etc. of Law Enforcement Integrity Commissioner
24
Division 1 of Part 13 of the Law Enforcement Integrity
25
Commissioner Act 2006 provides for the appointment and
26
conditions of appointment of the Law Enforcement Integrity
27
Commissioner.
28
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 135
124 National Integrity Commissioner Bill 2012 No. , 2012
Subdivision C--Independent Parliamentary Advisor
1
135 Appointment of Independent Parliamentary Advisor
2
(1) The Independent Parliamentary Advisor is to be appointed by the
3
Governor-General by written instrument.
4
Note:
The Independent Parliamentary Advisor is eligible for reappointment:
5
see subsection 33(4A) of the Acts Interpretation Act 1901.
6
(2) To be appointed as the Independent Parliamentary Advisor, a
7
person must have a high level of knowledge and experience in
8
parliamentary law and parliamentary privilege.
9
(3) Before the Prime Minister makes a recommendation to the
10
Governor-General for the appointment of a person as the
11
Independent Parliamentary Advisor, the Prime Minister must:
12
(a) consult with the Senate Committee of Privileges and the
13
House of Representatives Committee of Privileges and
14
Members' Interests by referring the proposed appointment to
15
each committee for consideration; and
16
(b) allow each committee at least 10 sitting days of the relevant
17
House from the date of the referral for the committees to
18
comment on the proposed appointment; and
19
(c) take into account any comments the committees make in his
20
or her decision whether to continue with the proposed
21
recommendation or not.
22
136 General terms and conditions of appointment
23
(1) The Independent Parliamentary Advisor holds office for the period
24
specified in his or her instrument of appointment. The period must
25
not exceed 5 years. The sum of the periods for which the
26
Independent Parliamentary Advisor holds office must not exceed 5
27
years.
28
(2) The Independent Parliamentary Advisor may be appointed on a
29
full-time or part-time basis.
30
Administrative provisions Part 9
Appointment etc. of the integrity officers Division 2
Section 137
National Integrity Commissioner Bill 2012 No. , 2012 125
(3) The Independent Parliamentary Advisor holds office on the terms
1
and conditions (if any), in relation to matters not covered by this
2
Act, that are determined by the Governor-General.
3
137 Engaging in other paid employment
4
If the Independent Parliamentary Advisor is appointed on a
5
full-time basis, the Independent Parliamentary Advisor must not
6
engage in paid employment outside the duties of his or her office
7
without the Prime Minister's approval.
8
138 Remuneration
9
(1) The Independent Parliamentary Advisor is to be paid the
10
remuneration that is determined by the Remuneration Tribunal. If
11
no determination of remuneration by the Tribunal is in operation,
12
the Independent Parliamentary Advisor is to be paid the
13
remuneration that is prescribed by the regulations.
14
(2) The Independent Parliamentary Advisor is to be paid the
15
allowances that are prescribed by the regulations.
16
(3) This section has effect subject to the Remuneration Tribunal Act
17
1973.
18
139 Leave of absence
19
(1) The Independent Parliamentary Advisor has the recreation leave
20
entitlements that are determined by the Remuneration Tribunal.
21
(2) The Prime Minister may grant the Independent Parliamentary
22
Advisor leave of absence, other than recreation leave, on the terms
23
and conditions as to remuneration or otherwise that the Prime
24
Minister determines.
25
140 Resignation
26
(1) The Independent Parliamentary Advisor may resign his or her
27
appointment by giving the Governor-General a written resignation.
28
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 141
126 National Integrity Commissioner Bill 2012 No. , 2012
(2) The resignation takes effect on the day it is received by the
1
Governor-General or, if a later day is specified in the resignation,
2
on that later day.
3
141 Termination of appointment
4
(1) The Governor-General may terminate the appointment of the
5
Independent Parliamentary Advisor for misbehaviour or physical
6
or mental incapacity.
7
(2) The Governor-General must terminate the appointment of the
8
Independent Parliamentary Advisor if any of the following apply:
9
(a) the Independent Parliamentary Advisor:
10
(i) becomes bankrupt; or
11
(ii) applies to take the benefit of any law for the relief of
12
bankrupt or insolvent debtors; or
13
(iii) compounds with his or her creditors; or
14
(iv) makes an assignment of his or her remuneration for the
15
benefit of his or her creditors;
16
(b) if the Independent Parliamentary Advisor is appointed on a
17
full-time basis:
18
(i) the Independent Parliamentary Advisor engages, except
19
with the Prime Minister's approval, in paid employment
20
outside the duties of his or her office; or
21
(ii) the Independent Parliamentary Advisor is absent, except
22
on leave of absence, for 14 consecutive days or for 28
23
days in any 12 months;
24
(c) if the Independent Parliamentary Advisor is appointed on a
25
part-time basis-- the Independent Parliamentary Advisor is
26
absent, except on leave of absence, to an extent that the
27
Prime Minister considers excessive;
28
(d) the Independent Parliamentary Advisor fails, without
29
reasonable excuse, to comply with section 143 (disclosure of
30
interests).
31
142 Acting appointments
32
(1) The Prime Minister may, by written instrument, appoint a person to
33
act as the Independent Parliamentary Advisor:
34
Administrative provisions Part 9
Appointment etc. of the integrity officers Division 2
Section 143
National Integrity Commissioner Bill 2012 No. , 2012 127
(a) during a vacancy in the office of the Independent
1
Parliamentary Advisor (whether or not an appointment has
2
previously been made to the office); or
3
(b) during any period, or during all periods, when the
4
Independent Parliamentary Advisor:
5
(i) is absent from duty or from Australia; or
6
(ii) is, for any reason, unable to perform the duties of the
7
office.
8
(2) The Prime Minister must not appoint the National Integrity
9
Commissioner, an Assistant National Integrity Commissioner, the
10
Law Enforcement Integrity Commissioner or an Assistant Law
11
Enforcement Integrity Commissioner to act as the Independent
12
Parliamentary Advisor for the purposes of paragraph (1)(a) or (b).
13
(3) A person appointed to act during a vacancy mentioned in
14
paragraph (1)(a) must not act for more than 12 months.
15
(4) Anything done by or in relation to a person purporting to act under
16
an appointment is not invalid merely because of any of the
17
following:
18
(a) the occasion for the appointment had not arisen;
19
(b) there was a defect or irregularity in connection with the
20
appointment;
21
(c) the appointment had ceased to have effect;
22
(d) the occasion to act had not arisen or had ceased.
23
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
24
143 Disclosure of interests
25
The Independent Parliamentary Advisor must give written notice to
26
the Prime Minister of all interests, pecuniary or otherwise, that the
27
Independent Parliamentary Advisor has or acquires and that
28
conflict or could conflict with the proper performance of the
29
independent parliamentary advisor functions.
30
31
Part 9 Administrative provisions
Division 3 Appointment etc. of Assistant National Integrity Commissioners
Section 144
128 National Integrity Commissioner Bill 2012 No. , 2012
Division 3--Appointment etc. of Assistant National
1
Integrity Commissioners
2
144 Appointment of Assistant National Integrity Commissioners
3
Appointment by Governor-General
4
An Assistant National Integrity Commissioner is to be appointed
5
by the Governor-General by written instrument.
6
Note:
An Assistant National Integrity Commissioner is eligible for
7
reappointment: see subsection 33(4A) of the Acts Interpretation Act
8
1901.
9
145 General terms and conditions of appointment
10
(1) An Assistant National Integrity Commissioner holds office for the
11
period specified in his or her instrument of appointment. The
12
period must not exceed 5 years. The sum of the periods for which a
13
person holds office as an Assistant National Integrity
14
Commissioner holds office must not exceed 5 years.
15
(2) An Assistant National Integrity Commissioner may be appointed
16
on either a full-time or part-time basis.
17
(3) A person holding office as an Assistant National Integrity
18
Commissioner holds office on the terms and conditions (if any), in
19
relation to matters not covered by this Act, that are determined by
20
the Governor-General.
21
146 Engaging in other paid employment
22
(1) An Assistant National Integrity Commissioner appointed on a
23
full-time basis must not engage in paid employment outside the
24
duties of his or her office without the Prime Minister's approval.
25
(2) An Assistant National Integrity Commissioner appointed on a
26
part-time basis must not engage in paid employment that, in the
27
Prime Minister's opinion, conflicts or could conflict with the
28
proper performance of the Assistant National Integrity
29
Commissioner's duties.
30
Administrative provisions Part 9
Appointment etc. of Assistant National Integrity Commissioners Division 3
Section 147
National Integrity Commissioner Bill 2012 No. , 2012 129
147 Remuneration
1
(1) An Assistant National Integrity Commissioner is to be paid the
2
remuneration that is determined by the Remuneration Tribunal. If
3
no determination of that remuneration by the Tribunal is in
4
operation, an Assistant National Integrity Commissioner is to be
5
paid the remuneration that is prescribed by the regulations.
6
(2) An Assistant National Integrity Commissioner is to be paid the
7
allowances that are prescribed by the regulations.
8
(3) Subsections (1) and (2) have effect subject to the Remuneration
9
Tribunal Act 1973.
10
148 Leave of absence
11
(1) A full-time Assistant National Integrity Commissioner has the
12
recreation leave entitlements that are determined by the
13
Remuneration Tribunal.
14
(2) The Prime Minister may grant a full-time Assistant National
15
Integrity Commissioner leave of absence, other than recreation
16
leave, on the terms and conditions as to remuneration or otherwise
17
that the Prime Minister determines.
18
(3) The National Integrity Commissioner may grant leave of absence
19
to any part-time Assistant National Integrity Commissioner on the
20
terms and conditions that the National Integrity Commissioner
21
determines.
22
149 Resignation
23
(1) An Assistant National Integrity Commissioner may resign his or
24
her appointment by giving the Governor-General a written
25
resignation.
26
(2) The resignation takes effect on the day it is received by the
27
Governor-General or, if a later day is specified in the resignation,
28
on that later day.
29
Part 9 Administrative provisions
Division 3 Appointment etc. of Assistant National Integrity Commissioners
Section 150
130 National Integrity Commissioner Bill 2012 No. , 2012
150 Termination of employment
1
(1) The Governor-General may terminate the appointment of an
2
Assistant National Integrity Commissioner for misbehaviour or
3
physical or mental incapacity.
4
(2) The Governor-General must terminate the appointment of an
5
Assistant National Integrity Commissioner if any of the following
6
apply:
7
(a) the Assistant National Integrity Commissioner:
8
(i) becomes bankrupt; or
9
(ii) applies to take the benefit of any law for the relief of
10
bankrupt or insolvent debtors; or
11
(iii) compounds with his or her creditors; or
12
(iv) makes an assignment of his or her remuneration for the
13
benefit of his or her creditors;
14
(b) if the Assistant National Integrity Commissioner is appointed
15
on a full-time basis--the Assistant National Integrity
16
Commissioner is absent, except on leave of absence, for 14
17
consecutive days or for 28 days in any 12 months;
18
(c) if the Assistant National Integrity Commissioner is appointed
19
on a part-time basis-- the Assistant National Integrity
20
Commissioner is absent, except on leave of absence, to an
21
extent that the Prime Minister considers excessive;
22
(d) the Assistant National Integrity Commissioner engages,
23
except with the Prime Minister's approval, in paid
24
employment outside the duties of his or her office;
25
(e) the Assistant National Integrity Commissioner fails, without
26
reasonable excuse, to comply with section 152 (disclosure of
27
interests).
28
151 Acting appointments
29
(1) The Prime Minister may appoint a person to act as an Assistant
30
National Integrity Commissioner:
31
(a) during a vacancy in the office of the Assistant National
32
Integrity Commissioner (whether or not an appointment has
33
previously been made to the office); or
34
Administrative provisions Part 9
Appointment etc. of Assistant National Integrity Commissioners Division 3
Section 152
National Integrity Commissioner Bill 2012 No. , 2012 131
(b) during any period, or during all periods, when the Assistant
1
National Integrity Commissioner is absent from duty or from
2
Australia, or is, for any reason, unable to perform the duties
3
of the office.
4
Note:
See also section 33A of the Acts Interpretation Act 1901, which
5
contains extra rules about acting appointments.
6
(2) A person appointed to act during a vacancy mentioned in
7
paragraph (1)(a) must not act for more than 12 months.
8
(3) Anything done by or in relation to a person purporting to act under
9
an appointment is not invalid merely because:
10
(a) the occasion for the appointment had not arisen; or
11
(b) there was a defect or irregularity in connection with the
12
appointment; or
13
(c) the appointment had ceased to have effect; or
14
(d) the occasion to act had not arisen or had ceased.
15
152 Disclosure of interests
16
An Assistant National Integrity Commissioner must give written
17
notice to the Prime Minister of all interests (pecuniary or
18
otherwise) that the Assistant National Integrity Commissioner has
19
or acquires and that conflict or could conflict with the proper
20
performance of the Assistant National Integrity Commissioner's
21
duties.
22
23
Part 9 Administrative provisions
Division 4 Staff, consultants and delegations
Section 153
132 National Integrity Commissioner Bill 2012 No. , 2012
Division 4--Staff, consultants and delegations
1
153 Staff
2
(1) The staff of the National Integrity Commission must be persons
3
appointed or engaged under the Public Service Act 1999.
4
(2) The National Integrity Commissioner must, by writing, designate
5
positions in Commission as positions assisting the Independent
6
Parliamentary Advisor in the performance of the independent
7
parliamentary advisor functions.
8
Note:
For creation of positions, see section 77 of the Public Service Act
9
1999.
10
(3) A person in a position designated under subsection (2) must not be
11
involved in assisting:
12
(a) the National Integrity Commissioner in the performance of
13
the national integrity commissioner functions; or
14
(b) the Law Enforcement Integrity Commissioner in the
15
performance of the law enforcement integrity commissioner
16
functions.
17
154 Consultants
18
(1) The National Integrity Commissioner may engage persons having
19
suitable qualifications and experience as consultants to the
20
National Integrity Commission.
21
(2) A person may only be engaged for a period of up to 2 years.
22
However, a person's contract may be extended beyond 2 years for
23
the sole purpose of completing a particular task or project begun in
24
the initial 2-year period.
25
(3) Other terms and conditions of appointment are to be determined by
26
the National Integrity Commissioner.
27
Administrative provisions Part 9
Staff, consultants and delegations Division 4
Section 155
National Integrity Commissioner Bill 2012 No. , 2012 133
155 Delegation--National Integrity Commissioner
1
Delegation to an Assistant National Integrity Commissioner
2
(1) The National Integrity Commissioner may delegate all or any of
3
his or her functions or powers to an Assistant National Integrity
4
Commissioner.
5
(2) Subsection (1) does not apply to the power to hold a hearing for the
6
purpose of conducting a public inquiry.
7
Delegation to certain staff members
8
(3) The National Integrity Commissioner may delegate all or any of
9
his or her functions or powers to a staff member of the National
10
Integrity Commission who is an SES employee or an acting SES
11
employee.
12
(4) Subsection (3) does not apply to:
13
(a) the power to hold a hearing for the purpose of conducting a
14
public inquiry; or
15
(b) a power under Division 2 or 3 of Part 6.
16
Form of delegation
17
(5) A delegation under this section must be in writing and signed by
18
the National Integrity Commissioner.
19
20
Part 9 Administrative provisions
Division 5 Public reporting
Section 156
134 National Integrity Commissioner Bill 2012 No. , 2012
Division 5--Public reporting
1
156 Annual report
2
(1) The National Integrity Commissioner must give the Prime
3
Minister, for presentation to each House of the Parliament, a report
4
(the annual report) on the performance of the national integrity
5
commissioner functions during each 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 the financial year must include the following:
9
(a) the prescribed particulars of:
10
(i) corruption issues raised by allegations or information
11
referred to the National Integrity Commissioner under
12
section 19 during that year; and
13
(ii) corruption issues dealt with by the National Integrity
14
Commissioner on his or her own initiative during that
15
year; and
16
(iii) corruption issues investigated by the National Integrity
17
Commissioner during that year;
18
(b) a description of investigations conducted by the National
19
Integrity Commissioner during the financial year that the
20
National Integrity Commissioner considers raise significant
21
issues or developments in law enforcement;
22
(c) a description, which may include statistics, of any patterns or
23
trends, and the nature and scope, of corruption:
24
(i) in Commonwealth agencies; or
25
(ii) by public officials;
26
that have come to the National Integrity Commissioner's
27
attention during that year in the performance of the national
28
integrity commissioner functions;
29
(d) any recommendations for changes to:
30
(i) the laws of the Commonwealth; or
31
(ii) administrative practices of Commonwealth agencies;
32
that the National Integrity Commissioner, as a result of
33
performing the national integrity commissioner functions
34
during that year, considers should be made;
35
Administrative provisions Part 9
Public reporting Division 5
Section 157
National Integrity Commissioner Bill 2012 No. , 2012 135
(e) the extent to which investigations by the National Integrity
1
Commissioner have resulted in the prosecution in that year of
2
persons for offences;
3
(f) the extent to which investigations by the National Integrity
4
Commissioner have resulted in confiscation proceedings in
5
that year;
6
(g) details of the number and results of:
7
(i) applications made to the Federal Court or the Federal
8
Magistrates Court under the Administrative Decisions
9
(Judicial Review) Act 1977 for orders of review in
10
respect of matters arising under this Act; and
11
(ii) other court proceedings involving the National Integrity
12
Commissioner;
13
being applications and proceedings that were determined, or
14
otherwise disposed of, during that year.
15
157 Reports on investigations and public inquiries
16
(1)
If:
17
(a)
both:
18
(i) the National Integrity Commissioner gives the Prime
19
Minister a report prepared under subsection 33(1); and
20
(ii) one or more public hearings were held in the course of
21
the investigation to which the report relates; or
22
(b) the National Integrity Commissioner gives the Prime
23
Minister a report prepared under subsection 40(1);
24
the Prime Minister must table the report in each House of the
25
Parliament within 15 sitting days of that House after its receipt by
26
the Prime Minister.
27
(2) Before the report is tabled in each House of the Parliament, the
28
Prime Minister must remove information from the report if the
29
Prime Minister is of the view that its inclusion may:
30
(a) endanger a person's life or physical safety; or
31
(b) prejudice proceedings brought as a result of a corruption
32
investigation or public inquiry; or
33
(c) compromise operational activities, or methodologies, of the
34
National Integrity Commission.
35
Part 9 Administrative provisions
Division 5 Public reporting
Section 158
136 National Integrity Commissioner Bill 2012 No. , 2012
(3) To avoid doubt, the Prime Minister is not required by
1
subsection (1) to cause a supplementary report prepared under
2
subsection 33(6) or 40(5) to be tabled in either House of the
3
Parliament.
4
158 Special reports
5
National Integrity Commissioner may give Prime Minister special
6
reports
7
(1) The National Integrity Commissioner may, from time to time, give
8
the Prime Minister, for presentation to the Parliament, a special
9
report:
10
(a) on the operations of the National Integrity Commission for a
11
part of a financial year; or
12
(b) on any matter relating to, or arising in connection with, the
13
performance of the national integrity commissioner
14
functions, or the exercise of the National Integrity
15
Commissioner's powers, under this Act; or
16
(c) in accordance with subsection (2).
17
(2) The Prime Minister or a House of the Parliament may request the
18
National Integrity Commissioner to, or the National Integrity
19
Commissioner may, on his or her own initiative, prepare reports
20
about the need for or the desirability of legislative or administrative
21
action on issues in relation to:
22
(a) corruption generally in Commonwealth agencies; or
23
(b) the integrity of public officials;
24
whether those issues arose before or after the commencement of
25
this Act.
26
(3) If the National Integrity Commissioner gives a special report to the
27
Prime Minister under subsection (1), the Prime Minister must table
28
the report in each House of the Parliament within 15 sitting days of
29
that House after its receipt by the Prime Minister.
30
Opinion or finding critical of a government agency or person
31
(4) The National Integrity Commissioner must not disclose
32
information in a special report prepared under subsection (1) that
33
Administrative provisions Part 9
Public reporting Division 5
Section 159
National Integrity Commissioner Bill 2012 No. , 2012 137
includes an opinion or finding that is critical of a government
1
agency or person (either expressly or impliedly) unless the
2
National Integrity Commissioner has taken the action required by
3
subsection (5) or (6) before disclosing the information.
4
(5) If the opinion or finding is critical of a government agency, the
5
National Integrity Commissioner must give the head of the agency:
6
(a) a statement setting out the opinion or finding; and
7
(b) a reasonable opportunity to appear before him or her and to
8
make submissions in relation to the opinion or finding.
9
(6) If the opinion or finding is critical of a person, the National
10
Integrity Commissioner must give the person:
11
(a) a statement setting out the opinion or finding; and
12
(b) a reasonable opportunity to appear before him or her and to
13
make submissions in relation to the opinion or finding.
14
(7) The submissions may be made orally or in writing.
15
(8) The head of a government agency may:
16
(a) appear before the National Integrity Commissioner
17
personally; or
18
(b) authorise another person to appear before the National
19
Integrity Commissioner on his or her behalf.
20
(9) A person referred to in subsection (6):
21
(a) may appear before the National Integrity Commissioner
22
personally; or
23
(b) may, with the National Integrity Commissioner's approval,
24
be represented by another person.
25
159 Contents of annual or special report
26
(1) The National Integrity Commissioner may exclude information
27
from an annual report under section 156, or a special report under
28
section 158, if the National Integrity Commissioner is satisfied
29
that:
30
(a) the information is sensitive information; and
31
(b) it is desirable in the circumstances to exclude the information
32
from the report.
33
Part 9 Administrative provisions
Division 5 Public reporting
Section 159
138 National Integrity Commissioner Bill 2012 No. , 2012
(2) In deciding whether to exclude information under subsection (1),
1
the National Integrity Commissioner must seek to achieve an
2
appropriate balance between:
3
(a) the public interest that would be served by including the
4
information in the report; and
5
(b) the prejudicial consequences that might result from including
6
the information in the report.
7
8
Administrative provisions Part 9
Confidentiality requirements Division 6
Section 160
National Integrity Commissioner Bill 2012 No. , 2012 139
Division 6--Confidentiality requirements
1
160 Confidentiality requirements for National Integrity Commission
2
staff
3
(1) A person who is, or has been, a staff member of the National
4
Integrity Commission commits an offence if:
5
(a) the person (either directly or indirectly and either while he or
6
she is, or after he or she ceases to be, a staff member of the
7
National Integrity Commission):
8
(i) makes a record of any information; or
9
(ii) divulges or communicates any information; and
10
(b) the person acquired the information:
11
(i) because of his or her being a staff member of the
12
National Integrity Commission; or
13
(ii) in the course of the carrying out his or her duties as a
14
staff member of the National Integrity Commission; and
15
(c) the information was disclosed or obtained under the
16
provisions of, or for the purposes of, this Act.
17
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
18
(2) Subsection (1) has effect subject to sections 161 and 162.
19
161 Exceptions to confidentiality requirements
20
Purposes connected with National Integrity Commissioner's
21
functions and powers
22
(1) Subsection 160(1) does not prevent a person from making a record
23
of information, or divulging or communicating information, if the
24
person:
25
(a) acquired the information in the performance of his or her
26
duties as a staff member of the National Integrity
27
Commission; and
28
(b) makes the record, or divulges or communicates the
29
information:
30
(i) for the purposes of a corruption investigation; or
31
Part 9 Administrative provisions
Division 6 Confidentiality requirements
Section 161
140 National Integrity Commissioner Bill 2012 No. , 2012
(ii) for purposes otherwise connected with the exercise of
1
the powers, or the performance of the national integrity
2
commissioner functions, under this Act.
3
Note:
A defendant bears an evidential burden in relation to the matter in
4
subsection (1): see subsection 13.3(3) of the Criminal Code.
5
(2) Without limiting subsection (1), subsection 160(1) does not
6
prevent a person from communicating information to another
7
person if:
8
(a) the person acquired the information in the performance of his
9
or her duties as a staff member of the National Integrity
10
Commission; and
11
(b) a provision of this Act requires or permits the National
12
Integrity Commissioner to communicate that information to
13
the other person.
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
Giving information to relevant agency
17
(3) Subsection 160(1) does not prevent the National Integrity
18
Commissioner from disclosing information to the following heads
19
of agencies:
20
(a) the Commonwealth Ombudsman;
21
(b) an Ombudsman of a State or Territory;
22
(c) the head of a law enforcement agency;
23
(d) the head of a police force of a State or Territory;
24
(e) the head of an integrity agency for a State or Territory;
25
(f) the head of another government agency;
26
if the National Integrity Commissioner is satisfied that, having
27
regard to the functions of the agency concerned, it is appropriate to
28
do so.
29
Note:
A defendant bears an evidential burden in relation to the matter in
30
subsection (3): see subsection 13.3(3) of the Criminal Code.
31
Administrative provisions Part 9
Confidentiality requirements Division 6
Section 162
National Integrity Commissioner Bill 2012 No. , 2012 141
National Integrity Commissioner to be satisfied that confidentiality
1
regime in place
2
(4) If the National Integrity Commissioner proposes to disclose
3
information to a person under subsection (3), the National Integrity
4
Commissioner must satisfy himself or herself that a law of the
5
Commonwealth, a State or Territory makes provision
6
corresponding to the provision made by section 160 and this
7
section with respect to the confidentiality of information acquired
8
by that person.
9
Disclosure required by another Commonwealth law
10
(5) Subsection 160(1) does not prevent a person from disclosing
11
information if the disclosure is required under another law of the
12
Commonwealth.
13
Note:
A defendant bears an evidential burden in relation to the matter in
14
subsection (5): see subsection 13.3(3) of the Criminal Code.
15
Disclosure to particular person
16
(6) The National Integrity Commissioner may disclose information to
17
a particular person if the National Integrity Commissioner is
18
satisfied that it is necessary to do so in order to protect the person's
19
life or physical safety.
20
162 Disclosure by National Integrity Commissioner in public
21
interest etc.
22
(1) If the National Integrity Commissioner is satisfied that it is in the
23
public interest to do so, the National Integrity Commissioner may
24
disclose information to the public, or a section of the public, about:
25
(a) the performance of the national integrity commissioner
26
functions; or
27
(b) the exercise of the National Integrity Commissioner's
28
powers; or
29
(c) an investigation of a corruption issue conducted by the
30
National Integrity Commissioner; or
31
(d) a public inquiry conducted by the National Integrity
32
Commissioner.
33
Part 9 Administrative provisions
Division 6 Confidentiality requirements
Section 163
142 National Integrity Commissioner Bill 2012 No. , 2012
(2) Subsection (1) has effect:
1
(a) subject to subsection (3) and section 163; and
2
(b) despite any other provision of this Act.
3
(3) In deciding whether to disclose under subsection (1) information
4
that the National Integrity Commissioner is satisfied is sensitive
5
information, the National Integrity Commissioner must seek to
6
achieve an appropriate balance between:
7
(a) the public interest that would be served by disclosing the
8
information; and
9
(b) the prejudicial consequences that might result from
10
disclosing the information.
11
163 Opportunity to be heard
12
Opinion or finding critical of a government agency or person
13
(1) The National Integrity Commissioner must not disclose
14
information under section 162 in relation to an investigation of a
15
corruption issue under this Act that includes an opinion or finding
16
that is critical of a government agency or person (either expressly
17
or impliedly) unless the National Integrity Commissioner has taken
18
the action required by subsection (2) or (3) before disclosing the
19
information.
20
Opportunity to appear and make submissions
21
(2) If the opinion or finding is critical of a government agency, the
22
National Integrity Commissioner must give the head of the agency:
23
(a) a statement setting out the opinion or finding; and
24
(b) a reasonable opportunity to appear before him or her and to
25
make submissions in relation to the opinion or finding.
26
(3) If the opinion or finding is critical of a person, the National
27
Integrity Commissioner must give the person:
28
(a) a statement setting out the opinion or finding; and
29
(b) a reasonable opportunity to appear before him or her and to
30
make submissions in relation to the opinion or finding.
31
(4) The submissions may be made orally or in writing.
32
Administrative provisions Part 9
Confidentiality requirements Division 6
Section 164
National Integrity Commissioner Bill 2012 No. , 2012 143
(5) The head of a government agency may:
1
(a) appear before the National Integrity Commissioner
2
personally; or
3
(b) authorise another person to appear before the National
4
Integrity Commissioner on his or her behalf.
5
(6) A person referred to in subsection (3):
6
(a) may appear before the National Integrity Commissioner
7
personally; or
8
(b) may, with the National Integrity Commissioner's approval,
9
be represented by another person.
10
164 National Integrity Commission staff generally not compellable
11
in court proceedings
12
(1) This section applies to:
13
(a) proceedings before a court (whether exercising federal
14
jurisdiction or not); and
15
(b) proceedings before any tribunal, authority or person having
16
power to require the production of documents or the
17
answering of questions.
18
(2) A person who is, or has been, a staff member of the National
19
Integrity Commission is not compellable in any proceedings to
20
which this section applies:
21
(a) to disclose any information that:
22
(i) he or she acquired because of his or her being or having
23
been a staff member of the National Integrity
24
Commission; and
25
(ii) was disclosed or obtained under the provisions of, or for
26
the purposes of, this Act; or
27
(b) to produce any document that:
28
(i) has come into his or her custody or control in the course
29
of, or because of, the performance of his or her duties
30
under this Act; and
31
(ii) was produced under the provisions of, or for the
32
purposes of, this Act.
33
(3) Subsection (1) does not apply to a proceeding if:
34
Part 9 Administrative provisions
Division 6 Confidentiality requirements
Section 164
144 National Integrity Commissioner Bill 2012 No. , 2012
(a) any of the following is a party to the proceedings in his or her
1
official capacity:
2
(i) the National Integrity Commissioner;
3
(ii) a delegate of the National Integrity Commissioner;
4
(iii) a person authorised by the National Integrity
5
Commissioner to exercise a power or perform a function
6
under this Act; or
7
(b) the proceeding is brought for the purposes of carrying into
8
effect a provision of this Act; or
9
(c) the proceeding is a prosecution, civil penalty proceeding or
10
confiscation proceeding brought as a result of a corruption
11
investigation or public inquiry.
12
(4) In this section:
13
produce includes permit access to, and production has a
14
corresponding meaning.
15
16
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 165
National Integrity Commissioner Bill 2012 No. , 2012 145
Part 10--Parliamentary Joint Committee on the
1
National Integrity Commission
2
3
165 Definitions
4
In this Part:
5
ACLEI corruption issue has the meaning given by section 8 of the
6
Law Enforcement Integrity Commissioner Act 2006.
7
Australian Commission for Law Enforcement Integrity or ACLEI
8
means the Australian Commission for Law Enforcement Integrity
9
established by section 195 of the Law Enforcement Integrity
10
Commissioner Act 2006.
11
committee means the Parliamentary Joint Committee on the
12
National Integrity Commission for the time being constituted under
13
this Part.
14
member means a member of the committee.
15
section 149 certified information has the same meaning as in the
16
Law Enforcement Integrity Commissioner Act 2006.
17
special investigator means a person conducting a special
18
investigation of an ACLEI corruption issue under Division 4 of
19
Part 12 of the Law Enforcement Integrity Commissioner Act 2006.
20
166 Parliamentary Joint Committee on the National Integrity
21
Commission
22
(1) As soon as practicable after the commencement of the first session
23
of each Parliament, a joint committee of members of the
24
Parliament to be known as the Parliamentary Joint Committee on
25
the National Integrity Commission is to be appointed according to
26
the practice of the Parliament with reference to the appointment of
27
members to serve on joint select committees of both Houses of the
28
Parliament.
29
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 167
146 National Integrity Commissioner Bill 2012 No. , 2012
(2) The committee is to consist of 10 members, 5 of whom must be
1
members of the Senate appointed by the Senate, and 5 of whom
2
must be members of the House of Representatives appointed by
3
that House.
4
(3) A member of the Parliament is not eligible for appointment as a
5
member of the committee if he or she is:
6
(a) a minister; or
7
(b) the President of the Senate; or
8
(c) the Speaker of the House of Representatives; or
9
(d) the Deputy President and Chair of Committees of the Senate
10
or the Chair of Committees of the House of Representatives.
11
(4) A member ceases to hold office:
12
(a) when the House of Representatives expires by the passing of
13
time or is dissolved; or
14
(b) if he or she becomes the holder of an office specified in any
15
of the paragraphs of subsection (3); or
16
(c) if he or she ceases to be a member of the House of the
17
Parliament by which he or she was appointed; or
18
(d) if he or she resigns his or her office as provided by
19
subsection (5) or (6).
20
(5) A member appointed by the Senate may resign his or her office by
21
writing signed by him or her and delivered to the President of the
22
Senate.
23
(6) A member appointed by the House of Representatives may resign
24
his or her office by writing signed by him or her and delivered to
25
the Speaker of that House.
26
(7) Either House of the Parliament may appoint one of its members to
27
fill a vacancy amongst the members of the committee appointed by
28
that House.
29
167 Powers and proceedings of the committee
30
All matters relating to the powers and proceedings of the
31
committee are to be determined by resolution of both Houses of the
32
Parliament.
33
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 168
National Integrity Commissioner Bill 2012 No. , 2012 147
168 Duties of the committee
1
National Integrity Commissioner
2
(1) The committee has the following duties in relation to the National
3
Integrity Commissioner:
4
(a) to consider the proposed recommendation for an appointment
5
of the National Integrity Commissioner in accordance with
6
section 169; and
7
(b) to monitor and review the National Integrity Commissioner's
8
performance of national integrity commissioner functions;
9
(c) to report to both Houses of the Parliament, with such
10
comments as it thinks fit, on any matter:
11
(i) connected with the performance of the national integrity
12
commissioner functions; or
13
(ii) relating to the National Integrity Commission;
14
that the committee considers should be directed to the
15
attention of Parliament;
16
(d)
to
examine:
17
(i) each annual report prepared by the National Integrity
18
Commissioner under section 156; and
19
(ii) any special report prepared by the National Integrity
20
Commissioner under section 158;
21
and report to the Parliament on any matter appearing in, or
22
arising out of, any such annual report or special report;
23
(e) to examine trends and changes in law enforcement in so far
24
as they relate to corruption and report to both Houses of the
25
Parliament on any change that the committee thinks
26
desirable:
27
(i) to the national integrity commissioner functions or the
28
powers of the National Integrity Commissioner; or
29
(ii) to the procedures followed by the National Integrity
30
Commissioner; or
31
(iii) to the structure of the National Integrity Commission;
32
(f) to inquire into any question in connection with the
33
committee's duties that is referred to it by either House of the
34
Parliament, and to report to that House on that question.
35
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 168
148 National Integrity Commissioner Bill 2012 No. , 2012
(2) Subsection (1) does not authorise the committee:
1
(a) to investigate a corruption issue; or
2
(b) to reconsider the National Integrity Commissioner's
3
decisions or recommendations in relation to a particular
4
corruption issue.
5
Law Enforcement Integrity Commissioner
6
(3) The committee has the following duties in relation to the Law
7
Enforcement Integrity Commissioner:
8
(a) to monitor and review the Law Enforcement Integrity
9
Commissioner's performance of law enforcement integrity
10
commissioner functions;
11
(b) to report to both Houses of the Parliament, with such
12
comments as it thinks fit, on any matter:
13
(i) connected with the performance of the law enforcement
14
integrity commissioner functions; or
15
(ii) relating to the Australian Commission for Law
16
Enforcement Integrity;
17
that the committee considers should be directed to the
18
attention of Parliament;
19
(c)
to
examine:
20
(i) each annual report prepared by the Law Enforcement
21
Integrity Commissioner under section 201 of the Law
22
Enforcement Integrity Commissioner Act 2006; and
23
(ii) any special report prepared by the Law Enforcement
24
Integrity Commissioner under section 204 of the Law
25
Enforcement Integrity Commissioner Act 2006;
26
and report to the Parliament on any matter appearing in, or
27
arising out of, any such annual report or special report;
28
(d) to examine trends and changes in:
29
(i) law enforcement in so far as they relate to corruption;
30
and
31
(ii) corruption generally in, or the integrity of staff members
32
of, Commonwealth agencies with a law enforcement
33
function;
34
and report to both Houses of the Parliament on any change
35
that the committee thinks desirable:
36
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 169
National Integrity Commissioner Bill 2012 No. , 2012 149
(iii) to the law enforcement integrity commissioner functions
1
or the powers of the Law Enforcement Integrity
2
Commissioner; or
3
(iv) to the procedures followed by the Law Enforcement
4
Integrity Commissioner; or
5
(v) to the structure of the Australian Commission for Law
6
Enforcement Integrity;
7
(e) to inquire into any question in connection with the
8
committee's duties that is referred to it by either House of the
9
Parliament, and to report to that House upon that question.
10
(4) Subsection (3) does not authorise the committee:
11
(a) to investigate a corruption issue (as defined in section 7 of
12
the Law Enforcement Integrity Commissioner Act 2006) or an
13
ACLEI corruption issue; or
14
(b) to reconsider the Law Enforcement Integrity Commissioner's
15
decisions or recommendations in relation to a particular
16
corruption issue (as defined in section 7 of the Law
17
Enforcement Integrity Commissioner Act 2006) or an ACLEI
18
corruption issue; or
19
(c) to reconsider a special investigator's decisions or
20
recommendations in relation to an ACLEI corruption issue.
21
169 Committee may approve or reject recommendation for
22
appointment of National Integrity Commissioner
23
(1) If the Prime Minister refers a proposed recommendation for an
24
appointment of the National Integrity Commissioner to the
25
committee for approval, the committee must:
26
(a) approve or reject the proposed recommendation within 10
27
sitting days after receiving it; or
28
(b) notify the Prime Minister in accordance with subsection (2).
29
Note:
Section 125 requires a proposed recommendation to be referred to the
30
committee for approval.
31
(2) The committee may notify the Prime Minister within 10 sitting
32
days after receiving a proposed recommendation that it needs more
33
time to consider the proposed recommendation. If the committee
34
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 170
150 National Integrity Commissioner Bill 2012 No. , 2012
does so, the committee must approve or reject the proposed
1
recommendation within 20 sitting days after receiving it.
2
(3) The decision to approve or reject a proposed recommendation is to
3
be by majority of the members of the committee for the time being
4
holding office.
5
(4) If the committee does not make a decision on a proposed
6
recommendation by the required time, the committee is taken, at
7
that time, to have approved the proposal.
8
(5) The committee must notify the Prime Minister of its decision in
9
relation to a proposed recommendation as soon as practicable after
10
making the decision.
11
(6) A notification under this section must be in writing.
12
(7) The committee must report to both Houses of the Parliament on its
13
decision in relation to a proposed recommendation.
14
170 Disclosure to committee by National Integrity Commissioner
15
(1) Subject to subsection (2), the National Integrity Commissioner:
16
(a) must comply with a request by the committee to give the
17
committee information in relation to:
18
(i) an investigation of a corruption issue; or
19
(ii) a public inquiry;
20
that the National Integrity Commissioner has conducted or is
21
conducting; and
22
(b) must when requested by the committee, and may at such
23
other times as the National Integrity Commissioner thinks
24
appropriate, inform the committee concerning the general
25
performance of the national integrity commissioner
26
functions.
27
(2) The National Integrity Commissioner may decide not to comply
28
with the request if the National Integrity Commissioner is satisfied
29
that:
30
(a) the information is sensitive information; and
31
(b) the public interest that would be served by giving the
32
information to the committee is outweighed by the
33
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 171
National Integrity Commissioner Bill 2012 No. , 2012 151
prejudicial consequences that might result from giving the
1
information to the committee.
2
(3) If the National Integrity Commissioner does not give information
3
to the committee because of subsection (2), the committee may
4
refer the request to the Prime Minister.
5
(4) If the committee refers the request to the Prime Minister, the Prime
6
Minister:
7
(a) must determine in writing whether:
8
(i) the information is sensitive information; and
9
(ii) if it is, whether the public interest that would be served
10
by giving the information to the committee is
11
outweighed by the prejudicial consequences that might
12
result from giving the information to the committee; and
13
(b) must provide copies of that determination to the National
14
Integrity Commissioner and the committee; and
15
(c) must not disclose his or her reasons for determining the
16
question referred to in subparagraph (a)(ii) in the way stated
17
in the determination.
18
(5) A determination made by the Prime Minister under subsection (4)
19
is not a legislative instrument.
20
(6) If the Prime Minister determines that:
21
(a) the information is not sensitive information; or
22
(b) the information is sensitive information but the prejudicial
23
consequences that might result from giving the information
24
to the committee do not outweigh the public interest that
25
would be served by giving the information to the committee;
26
the National Integrity Commissioner must give the information to
27
the committee.
28
171 Disclosure to committee by Law Enforcement Integrity
29
Commissioner
30
(1) Subject to subsections (2) and (3), the Law Enforcement Integrity
31
Commissioner:
32
(a) must comply with a request by the committee to give the
33
committee information in relation to:
34
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 171
152 National Integrity Commissioner Bill 2012 No. , 2012
(i) an investigation of a corruption issue (as defined in
1
section 7 of the Law Enforcement Integrity
2
Commissioner Act 2006); or
3
(ii) a public inquiry under Part 8 of the Law Enforcement
4
Integrity Commissioner Act 2006;
5
that the Law Enforcement Integrity Commissioner has
6
conducted or is conducting; and
7
(b) must when requested by the committee, and may at such
8
other times as the Law Enforcement Integrity Commissioner
9
thinks appropriate, inform the committee concerning the
10
general performance of the law enforcement integrity
11
commissioner functions.
12
(2) The Law Enforcement Integrity Commissioner must not comply
13
with the request if:
14
(a) the information is section 149 certified information; and
15
(b) the disclosure of the information to the committee would
16
contravene the certificate issued under section 149 of the Law
17
Enforcement Integrity Commissioner Act 2006.
18
(3) The Law Enforcement Integrity Commissioner may decide not to
19
comply with the request if the Law Enforcement Integrity
20
Commissioner is satisfied that:
21
(a) the information is sensitive information; and
22
(b) the public interest that would be served by giving the
23
information to the committee is outweighed by the
24
prejudicial consequences that might result from giving the
25
information to the committee.
26
(4) If the Law Enforcement Integrity Commissioner does not give
27
information to the committee because of subsection (3), the
28
committee may refer the request to the Minister.
29
(5) If the committee refers the request to the Minister, the Minister:
30
(a) must determine in writing whether:
31
(i) the information is sensitive information; and
32
(ii) if it is, whether the public interest that would be served
33
by giving the information to the committee is
34
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 172
National Integrity Commissioner Bill 2012 No. , 2012 153
outweighed by the prejudicial consequences that might
1
result from giving the information to the committee; and
2
(b) must provide copies of that determination to the Law
3
Enforcement Integrity Commissioner and the committee; and
4
(c) must not disclose his or her reasons for determining the
5
question referred to in subparagraph (a)(ii) in the way stated
6
in the determination.
7
(6) A determination made by the Minister under subsection (5) is not a
8
legislative instrument.
9
(7) If the Minister determines that:
10
(a) the information is not sensitive information; or
11
(b) the information is sensitive information but the prejudicial
12
consequences that might result from giving the information
13
to the committee do not outweigh the public interest that
14
would be served by giving the information to the committee;
15
the Law Enforcement Integrity Commissioner must give the
16
information to the committee.
17
172 Disclosure to committee by Minister
18
(1) Subject to subsections (2) and (3), the Minister must comply with a
19
request by the committee to give the committee information in
20
relation to an investigation of an ACLEI corruption issue that a
21
special investigator has conducted or is conducting.
22
(2) The Minister must not comply with the request if:
23
(a) the information is section 149 certified information; and
24
(b) the disclosure of the information to the committee would
25
contravene the certificate issued under section 149 of the Law
26
Enforcement Integrity Commissioner Act 2006.
27
(3) The Minister may decide not to comply with the request if the
28
Minister is satisfied that:
29
(a) the information is sensitive information; and
30
(b) the public interest that would be served by giving the
31
information to the committee is outweighed by the
32
prejudicial consequences that might result from giving the
33
information to the committee.
34
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 173
154 National Integrity Commissioner Bill 2012 No. , 2012
173 Ombudsman to brief committee about controlled operations
1
(1) At least once in each year the Ombudsman must provide a briefing
2
to the committee about the Law Enforcement Integrity
3
Commissioner's involvement in controlled operations under
4
Part IAB of the Crimes Act 1914 during the preceding 12 months.
5
(2) For the purposes of receiving a briefing from the Ombudsman
6
under subsection (1), the committee must meet in private.
7
8
Miscellaneous Part 11
Section 174
National Integrity Commissioner Bill 2012 No. , 2012 155
Part 11--Miscellaneous
1
2
174 Offence of victimisation
3
(1) A person commits an offence if the person causes, or threatens to
4
cause, detriment to another person (the victim) on the ground that
5
the victim, or any other person:
6
(a) has referred, or may refer, to the National Integrity
7
Commissioner an allegation, or information, that raises a
8
corruption issue; or
9
(b) has given, or may give, information to the National Integrity
10
Commissioner; or
11
(c) has produced, or may produce, a document or thing to the
12
National Integrity Commissioner.
13
Penalty: Imprisonment for 2 years.
14
(2) For the purpose of subsection (1), a threat may be:
15
(a) express or implied; or
16
(b) conditional or unconditional.
17
(3) In a prosecution for an offence against subsection (1), it is not
18
necessary to prove that the person threatened actually feared that
19
the threat would be carried out.
20
175 Legal and financial assistance in relation to applications for
21
administrative review
22
(1) A person may apply to the Attorney-General for assistance in
23
respect of the person's application, or proposed application, to the
24
Federal Court or the Federal Magistrates Court under the
25
Administrative Decisions (Judicial Review) Act 1977 for an order
26
of review in respect of a matter arising under this Act.
27
(2) The Attorney-General may, if he or she is satisfied that:
28
(a) it would involve substantial hardship to the person to refuse
29
the application; or
30
(b) the circumstances of the case are of such a special nature that
31
the application should be granted;
32
Part 11 Miscellaneous
Section 176
156 National Integrity Commissioner Bill 2012 No. , 2012
authorise the Commonwealth to provide the person with legal or
1
financial assistance, determined by the Attorney-General, in
2
respect of the person's application to the Federal Court or the
3
Federal Magistrates Court, as the case may be.
4
(3) Legal or financial assistance may be given:
5
(a)
unconditionally;
or
6
(b) subject to such conditions as the Attorney-General
7
determines.
8
(4) An instrument that determines the conditions on which legal or
9
financial assistance may be given is not a legislative instrument.
10
176 Immunity from civil proceedings
11
(1) A staff member of the National Integrity Commission is not liable
12
to civil proceedings in relation to an act done, or omitted to be
13
done, in good faith, in the performance or purported performance,
14
or exercise or purported exercise, of the staff member's functions,
15
powers or duties under, or in relation to, this Act.
16
(2) A person whom the National Integrity Commissioner requests, in
17
writing, to assist a staff member of the National Integrity
18
Commission is not liable to civil proceedings in relation to an act
19
done, or omitted to be done, in good faith for the purpose of
20
assisting the staff member.
21
(3)
If:
22
(a) information or evidence has been given to the National
23
Integrity Commissioner; or
24
(b) a document or thing has been produced to the National
25
Integrity Commissioner;
26
a person is not liable to an action, suit or proceeding in respect of
27
loss, damage or injury of any kind suffered by another person by
28
reason only that the information or evidence was given or the
29
document or thing was produced.
30
Miscellaneous Part 11
Section 177
National Integrity Commissioner Bill 2012 No. , 2012 157
177 Immunities from certain State and Territory laws
1
The National Integrity Commissioner, an Assistant National
2
Integrity Commissioner or a staff member of the National Integrity
3
Commission is not required under, or by reason of, a law of a State
4
or Territory:
5
(a) to obtain or have a licence or permission for doing any act or
6
thing in the exercise of his or her powers or the performance
7
of his or her duties as the National Integrity Commissioner,
8
an Assistant National Integrity Commissioner or a staff
9
member of the National Integrity Commission; or
10
(b) to register any vehicle, vessel, animal or article belonging to
11
the Commonwealth.
12
178 Review of operation of Act
13
Undertaking the review
14
(1) The Prime Minister must cause an independent review to be
15
undertaken of the first 3 years of the operation of this Act.
16
Report to Prime Minister
17
(2) The persons undertaking the review must give the Prime Minister a
18
written report of the review within 6 months after the end of the
19
3-year period.
20
Submissions
21
(3) The review must include an opportunity for:
22
(a) persons who are, or have been, staff members of the National
23
Integrity Commission; and
24
(b) members of the public;
25
to make written submissions on the operation of this Act.
26
Assistance
27
(4) The National Integrity Commissioner and staff members of the
28
National Integrity Commission must, if requested to do so by the
29
persons undertaking the review, assist them in:
30
Part 11 Miscellaneous
Section 179
158 National Integrity Commissioner Bill 2012 No. , 2012
(a) conducting the review; and
1
(b) preparing the written report.
2
Tabling of report
3
(5) The Prime Minister must cause a copy of the report of the review
4
to be tabled in each House of the Parliament within 15 sitting days
5
of that House after he or she receives the report.
6
Section not to apply if review conducted by Parliamentary
7
committee
8
(6) However, this section does not apply if a committee of one or both
9
Houses of the Parliament (including the Parliamentary Joint
10
Committee on the National Integrity Commission) has reviewed
11
the operation of this Act, or started such a review, before the end of
12
the 3-year period.
13
Definition
14
(7) In this section:
15
independent review means a review undertaken by a person or
16
persons who, in the Prime Minister's opinion, possess appropriate
17
qualifications to undertake the review.
18
179 Schedule(s)
19
Each Act that is specified in a Schedule to this Act is amended or
20
repealed as set out in the applicable items in the Schedule
21
concerned, and any other item in a Schedule to this Act has effect
22
according to its terms.
23
180 Regulations
24
(1) The Governor-General may make regulations prescribing matters:
25
(a) required or permitted by this Act to be prescribed; or
26
(b) necessary or convenient to be prescribed for carrying out or
27
giving effect to this Act.
28
Miscellaneous Part 11
Section 180
National Integrity Commissioner Bill 2012 No. , 2012 159
(2) The regulations may require that information or reports that are
1
required to be given under prescribed provisions are also to be
2
given to prescribed persons in specified circumstances.
3
Schedule 1 Amendments
160 National Integrity Commissioner Bill 2012 No. , 2012
Schedule 1--Amendments
1
2
Law Enforcement Integrity Commissioner Act 2006
3
1 After subsection 177(2)
4
Insert:
5
(2A) Subject to subsection (2), the Minister may appoint the National
6
Integrity Commissioner to act as the Integrity Commissioner for
7
the purposes of paragraph (1)(a) or (b).
8
(2B) A person appointed to act during a vacancy mentioned in
9
paragraph (1)(a) must not act for more than 12 months.
10
2 At the end of section 187
11
Add:
12
(3) A person appointed to act during a vacancy mentioned in
13
paragraph (1)(a) must not act for more than 12 months.
14
3 Subsection 197(1)
15
Omit "(1)".
16
4 Subsection 197(2)
17
Repeal the subsection.
18
5 Part 14
19
Repeal the Part.
20
Ombudsman Act 1976
21
6 After subsection 6(15)
22
Insert:
23
(15A) If the Ombudsman forms the opinion:
24
(a) that a complaint involves an allegation, or information, that
25
raises a corruption issue; and
26
(b) that the allegation or information could have been referred to
27
the National Integrity Commissioner under Part 3 of the
28
Amendments Schedule 1
National Integrity Commissioner Bill 2012 No. , 2012 161
National Integrity Commissioner Act 2010 and could be more
1
conveniently or effectively dealt with by the National
2
Integrity Commissioner;
3
the Ombudsman may decide not to investigate the complaint, or
4
not to investigate the complaint further, as the case may be, and to
5
refer the allegation or information to the National Integrity
6
Commissioner.
7
(15B) If the Ombudsman makes a decision under subsection (15A), the
8
Ombudsman must:
9
(a) refer the allegation, or information, that raises the corruption
10
issue to the National Integrity Commissioner as soon as is
11
reasonably practicable; and
12
(b) give the National Integrity Commissioner any information or
13
documents relating to the complaint that are in the
14
possession, or under the control, of the Ombudsman; and
15
(c) as soon as is reasonably practicable, give the complainant
16
written notice that the complaint has been transferred to the
17
National Integrity Commissioner.
18
(15C) In subsections (15A) and (15B):
19
corruption issue has the same meaning as in the National Integrity
20
Commissioner Act 2010.
21
National Integrity Commissioner has the same meaning as in the
22
National Integrity Commissioner Act 2010.
23
Privacy Act 1988
24
7 Subsection 18K(5) (note)
25
Repeal the note, substitute:
26
Note:
A credit reporting agency must not include a note about the disclosure
27
of information in a file if a notation has been made on a summons, or
28
a notice, relating to the disclosure of the information and the notation
29
has not been cancelled (see section 29A of the Australian Crime
30
Commission Act 2002, sections 77A and 91 of the Law Enforcement
31
Integrity Commissioner Act 2006 and section 60 of the National
32
Integrity Commissioner Act 2010).
33
National Integrity Commissioner Bill 2012 No. , 2012 1
1