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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
National Integrity Commission Bill 2018
No. , 2018
(Senator Waters)
A Bill for an Act to establish the National Integrity
Commission, and for related purposes
No. , 2018
National Integrity Commission Bill 2018
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Simplified outline of this Act ............................................................ 2
4
Objects of Act .................................................................................... 4
5
Saving of powers, privileges and immunities .................................... 6
6
Act binds the Crown .......................................................................... 6
7
Application of Act ............................................................................. 6
8
Definitions ......................................................................................... 6
9
Meaning of corrupt conduct ............................................................ 19
10
Meaning of corruption issue ............................................................ 21
Part 2--The Australian National Integrity Commission
23
Division 1--Establishment
23
11
Establishment .................................................................................. 23
Division 2--Functions and powers of the National Integrity
Commissioner and Commissioners
25
12
Definition of national integrity commissioner functions ................. 25
13
Definition of law enforcement integrity commissioner
functions .......................................................................................... 27
14
Definition of whistleblower protection commissioner
functions .......................................................................................... 27
15
Functions and powers of the National Integrity
Commissioner .................................................................................. 29
16
Functions and powers of the Law Enforcement Integrity
Commissioner .................................................................................. 30
17
Functions and powers of the Whistleblower Protection
Commissioner .................................................................................. 30
Part 3--Corruption prevention, research and coordination
31
Division 1--Promoting integrity in public administration and
Australia
31
18
Role of the National Integrity Commissioner .................................. 31
19
Role of the Commission .................................................................. 32
Division 2--Commonwealth integrity and anti-corruption plans
33
20
Preparation of integrity and anti-corruption plans ........................... 33
21
Audit Committee to monitor plans .................................................. 33
22
National Integrity Commissioner to receive plans on request ......... 34
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National Integrity Commission Bill 2018
No. , 2018
23
Consideration of adequacy of plans ................................................. 34
Division 3--Corruption prevention inquiries
36
24
National Integrity Commissioner may conduct inquiries ................ 36
25
Scope and powers of inquiries ......................................................... 36
26
Reports of inquiries ......................................................................... 37
Division 4--Education, training and advice
38
27
Agency heads to provide training .................................................... 38
28
Role of National Integrity Commissioner ........................................ 38
Division 5--Research and intelligence
39
29
Research functions........................................................................... 39
30
Research strategy--consultation and implementation ..................... 39
31
Relationship between research and operations ................................ 40
Division 6--Commonwealth cooperation and coordination
41
32
Principles of operation of National Integrity Commission .............. 41
33
Cooperation and coordination with other Commonwealth
agencies ........................................................................................... 41
34
Commonwealth Integrity Coordination Committee......................... 42
35
Functions of the Commonwealth Integrity Coordination
Committee ....................................................................................... 43
Division 7--National cooperation and coordination
45
36
Role of the National Integrity Commissioner .................................. 45
37
National Integrity and Anti-corruption Plan .................................... 46
38
Preparation of plan .......................................................................... 47
39
Examination of plan ........................................................................ 47
40
National Integrity and Anti-Corruption Advisory Committee ......... 48
41
Functions of the advisory committee ............................................... 49
Part 4--Dealing with corruption issues
50
Division 1--Referring corruption issues to National Integrity
Commissioner
50
42
Referral of corruption issues ............................................................ 50
43
Referral under section 42 by person in custody ............................... 51
44
Public officials must refer corruption issues .................................... 52
45
National Integrity Commissioner may enter into agreements
etc. with head of Commonwealth agency ........................................ 53
Division 2--How National Integrity Commissioner deals with
corruption issues
54
Subdivision A--General
54
No. , 2018
National Integrity Commission Bill 2018
iii
46
How National Integrity Commissioner may deal with
corruption issues .............................................................................. 54
47
Alleged contraventions of the National Integrity
(Parliamentary Standards) Act 2018 ............................................... 55
48
Criteria for deciding how to deal with a corruption issue ................ 56
49
Dealing with multiple corruption issues .......................................... 57
Subdivision B--National Integrity Commissioner dealing with
referred corruption issues
57
50
National Integrity Commissioner must make a decision ................. 57
51
Advising person who refers corruption issue of decision
about how to deal with corruption issue .......................................... 59
52
Advising person to whom referred corruption issue relates of
decision about how to deal with corruption issue ............................ 59
Subdivision C--National Integrity Commissioner dealing with
corruption issues on own initiative
60
53
National Integrity Commissioner may deal with corruption
issues on own initiative.................................................................... 60
54
Advising head of Commonwealth agency of decision to deal
with corruption issue on own initiative ............................................ 61
55
Advising person of decision to deal with corruption issue on
own initiative ................................................................................... 62
Subdivision D--Reconsidering how to deal with a corruption issue
63
56
Reconsidering how to deal with a corruption issue ......................... 63
Division 3--Information sharing when decision made on how to
deal with corruption issue
64
57
If Commonwealth agency to conduct, or continue
conducting, investigation of corruption issue .................................. 64
58
If Commonwealth agency has already commenced
investigating corruption issue .......................................................... 65
Part 5--Investigations and public inquiries by the National
Integrity Commissioner
66
Division 1--Investigations
66
59
Application of Division ................................................................... 66
60
National Integrity Commissioner to determine manner of
conducting investigation .................................................................. 66
61
Information sharing for joint investigation ...................................... 66
62
Opportunity to be heard ................................................................... 67
Division 2--Reporting in relation to investigations
69
Subdivision A--Reporting during investigation
69
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National Integrity Commission Bill 2018
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63
National Integrity Commissioner may keep person who
referred corruption issue informed of progress of
investigation .................................................................................... 69
Subdivision B--Reporting at the end of investigation
69
64
Report on investigation .................................................................... 69
65
National Integrity Commissioner to give report to Minister ............ 71
66
Advising person who referred corruption issue of outcome of
the investigation .............................................................................. 71
67
Advising person whose conduct is investigated of outcome
of the investigation .......................................................................... 72
Division 3--Conducting a public inquiry
74
68
National Integrity Commissioner may conduct public inquiry ........ 74
69
Publicising inquiry........................................................................... 74
Division 4--Reporting in relation to public inquiries
75
70
Report on public inquiry .................................................................. 75
71
Giving report to Minister ................................................................. 76
Part 6--National Integrity Commissioner's powers in
conducting investigations and public inquiries
77
Division 1--Requiring people to give information or produce
documents or things
77
Subdivision A--Requirement by National Integrity Commissioner
77
72
Notice to give information or to produce document or thing ........... 77
73
Compliance with notice ................................................................... 78
74
National Integrity Commissioner may retain documents and
things ............................................................................................... 79
Subdivision B--Prohibitions against disclosing information about
notices
79
75
Disclosure of notice may be prohibited ........................................... 79
76
Offences of disclosure ..................................................................... 81
Subdivision C--Offence and related provisions
84
77
Failure to comply with notice .......................................................... 84
78
Legal practitioner not required to disclose privileged
communications ............................................................................... 85
79
Self-incrimination etc. ..................................................................... 86
80
Protection of person required to give information or produce
documents or things ......................................................................... 87
Division 2--Conducting hearings
89
Subdivision A--General provisions
89
No. , 2018
National Integrity Commission Bill 2018
v
81
National Integrity Commissioner may hold hearings ...................... 89
82
National Integrity Commissioner may summon person ................... 90
83
National Integrity Commissioner may take evidence outside
Australia .......................................................................................... 92
Subdivision B--Procedure at hearing
93
84
Who may be represented at a hearing .............................................. 93
85
Who may be present at a hearing ..................................................... 93
Subdivision C--Taking evidence at hearing
94
86
Evidence on oath or by affirmation ................................................. 94
87
Examination and cross-examination of witnesses............................ 95
88
Person may request that particular evidence be given in
private .............................................................................................. 95
89
Directions in relation to confidentiality ........................................... 96
Subdivision D--Prohibitions against disclosing information about
a summons
98
90
Disclosure of summons may be prohibited ...................................... 98
91
Offences of disclosure ................................................................... 100
Subdivision E--Offences in relation to hearings
102
92
Offences ........................................................................................ 102
93
Contempt of the Commission ........................................................ 104
94
Federal Court or Supreme Court to deal with contempt ................ 105
95
Conduct of contempt proceedings ................................................. 107
96
Person in contempt may be detained ............................................. 107
97
National Integrity Commissioner may withdraw contempt
application ..................................................................................... 108
98
Double jeopardy ............................................................................ 109
99
Legal professional privilege--answer to question ......................... 109
100
Legal professional privilege--documents or things ...................... 110
101
Offences relating to claims for legal professional privilege........... 110
102
Self-incrimination etc. ................................................................... 111
Subdivision F--Court orders for delivery of witness's passport
and witness's arrest
114
103
National Integrity Commissioner may apply for order that
witness deliver passport ................................................................. 114
104
Court orders ................................................................................... 115
105
Applying for a warrant to arrest witness ........................................ 117
106
Warrant for arrest .......................................................................... 117
107
Powers of Judge in relation to person arrested .............................. 119
Subdivision G--Miscellaneous
120
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National Integrity Commission Bill 2018
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108
National Integrity Commissioner may retain documents or
things ............................................................................................. 120
109
Person may apply for legal and financial assistance ...................... 120
110
Protection of National Integrity Commissioner etc. ...................... 121
111
Protection of witnesses etc. ........................................................... 122
Division 3--Search warrants
124
Subdivision A--Preliminary
124
112
Application to things under the control of a person ....................... 124
Subdivision B--Applying for a search warrant
124
113
Authorised officer may apply for a search warrant ........................ 124
Subdivision C--Issue of a search warrant
126
114
When search warrants may be issued ............................................ 126
115
Content of warrants ....................................................................... 128
116
Application by telephone etc. and issue of warrant ....................... 131
117
The things authorised by a search warrant in relation to
premises ......................................................................................... 133
118
The things authorised by a search warrant in relation to a
person ............................................................................................ 134
119
Restrictions on personal searches .................................................. 135
120
When warrant may be executed etc. .............................................. 136
Subdivision D--General provisions about executing a search
warrant
136
121
Announcement before entry .......................................................... 136
122
Availability of assistance and use of force in executing a
warrant ........................................................................................... 136
Subdivision E--Specific provisions about executing a warrant in
relation to premises
137
123
Application .................................................................................... 137
124
Copy of warrant to be shown to occupier etc................................. 137
125
Occupier entitled to watch search .................................................. 138
126
Specific powers available to person executing a warrant .............. 138
127
Use of equipment to examine or process things ............................ 138
128
Use of electronic equipment at premises without expert
assistance ....................................................................................... 140
129
Use of electronic equipment at premises with expert
assistance ....................................................................................... 141
130
Person with knowledge of a computer or a computer system
to assist access etc. ........................................................................ 143
131
Accessing data held on other premises--notification to
occupier of those premises ............................................................ 144
No. , 2018
National Integrity Commission Bill 2018
vii
132
Compensation for damage to electronic equipment ....................... 144
133
Copies of seized things to be provided .......................................... 145
134
Receipts of things seized under warrant ........................................ 146
Subdivision F--Specific provisions about executing a warrant in
relation to a person
146
135
Copy of warrant to be shown to person ......................................... 146
136
Conduct of an ordinary search or a frisk search ............................. 146
Subdivision G--Offences
146
137
Making false statements in warrants .............................................. 146
138
Offence for stating incorrect names in telephone warrants ............ 147
139
Offence for unauthorised form of warrant ..................................... 147
140
Offence for executing etc. an unauthorised form of warrant ......... 147
141
Offence for giving unexecuted form of warrant ............................ 148
Subdivision H--Miscellaneous
148
142
Other laws about search, arrest etc. not affected ............................ 148
143
Law relating to legal professional privilege not affected ............... 148
Division 4--Powers of arrest
149
144
Authorised officers may exercise powers of arrest ........................ 149
Division 5--Authorised officers
150
145
Appointment of authorised officers ............................................... 150
146
Identity cards ................................................................................. 150
Part 7--Dealing with evidence and information obtained in
investigation or public inquiry
152
147
Evidence of offence or liability to civil penalty ............................. 152
148
Evidence that could be used in confiscation proceedings .............. 153
149
Evidence of, or information suggesting, wrongful conviction ....... 154
Part 8--Investigations by other Commonwealth agencies
156
Division 1--Nominated contact for investigations by
Commonwealth agencies
156
150
Nominating contact for investigation ............................................ 156
Division 2--Managing or overseeing investigations by
Commonwealth agencies
157
151
Managing an investigation ............................................................. 157
152
Overseeing an investigation ........................................................... 157
Division 3--Reporting
158
Subdivision A--Reporting by Commonwealth agencies during
investigations
158
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National Integrity Commission Bill 2018
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153
National Integrity Commissioner may request individual
progress report ............................................................................... 158
154
National Integrity Commissioner may request periodic
progress reports ............................................................................. 158
Subdivision B--Reporting by Commonwealth agencies at end of
investigations
159
155
Final report on investigation .......................................................... 159
156
National Integrity Commissioner may comment on final
report ............................................................................................. 160
157
Advising person who referred corruption issue of outcome of
the investigation ............................................................................ 162
158
Advising person whose conduct is investigated of outcome
of the investigation ........................................................................ 163
Division 4--National Integrity Commissioner to pass on
information relevant to agency
164
159
National Integrity Commissioner to pass on information
relevant to agency investigation .................................................... 164
Part 9--Whistleblower Protection
165
Division 1--Disclosures, information or requests
165
160
Receipt of disclosures, information or requests ............................. 165
161
Person making disclosure or request under section 160 may
elect to be kept informed ............................................................... 166
162
Public officials must refer whistleblower protection issues ........... 167
163
Whistleblower Protection Commissioner may enter into
agreements etc. with head of Commonwealth agency ................... 167
164
General information, advice, guidance and assistance ................... 168
Division 2--How Whistleblower Protection Commissioner deals
with disclosures of wrongdoing and whistleblower
protection issues
171
Subdivision A--General
171
165
How Whistleblower Protection Commissioner may deal with
disclosures of wrongdoing ............................................................. 171
166
How Whistleblower Protection Commissioner may deal with
whistleblower protection issues ..................................................... 172
167
Criteria for deciding how to deal with a disclosure of
wrongdoing or whistleblower protection issue .............................. 173
168
Dealing with multiple whistleblower protection issues ................. 174
Subdivision B--Whistleblower Protection Commissioner dealing
with referred whistleblower protection issues
175
No. , 2018
National Integrity Commission Bill 2018
ix
169
Whistleblower Protection Commissioner must make a
decision.......................................................................................... 175
170
Advising person who raises whistleblower protection issue
of decision about how to deal with issue ....................................... 176
171
Advising person to whom referred whistleblower protection
issue relates of decision about how to deal with issue ................... 178
Subdivision C--Whistleblower Protection Commissioner dealing
with whistleblower protection issues on own
initiative
179
172
Whistleblower Protection Commissioner may deal with
whistleblower protection issues on own initiative ......................... 179
173
Advising head of Commonwealth agency of decision to deal
with whistleblower protection issue on own initiative ................... 180
174
Advising person of decision to deal with whistleblower
protection issue on own initiative .................................................. 181
Subdivision D--Reconsidering how to deal with a whistleblower
protection issue
182
175
Reconsidering how to deal with a whistleblower protection
issue ............................................................................................... 182
Division 3--Information sharing when decision made on how to
deal with whistleblower protection issue
183
176
If Commonwealth agency to conduct, or continue
conducting, investigation of whistleblower protection issue ......... 183
177
If Commonwealth agency has already commenced
investigating whistleblower protection issue ................................. 184
Division 4--Investigations and public inquiries by the
Whistleblower Protection Commissioner
185
178
Manner and powers of investigation .............................................. 185
Division 5--Investigations by other Commonwealth agencies
186
179
Dealing with, managing or overseeing investigations ................... 186
Division 6--Remedial functions and powers
187
180
Additional recommendations ......................................................... 187
181
Proceedings and applications ......................................................... 188
182
Mediation and arbitration .............................................................. 189
183
Enforceable undertakings relating to contraventions of civil
remedy provisions ......................................................................... 190
Division 7--Special Account
192
184
Whistleblower Protection Special Account ................................... 192
185
Credits to the Account ................................................................... 192
186
Purposes of the Account ................................................................ 192
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National Integrity Commission Bill 2018
No. , 2018
Part 10--Administrative provisions relating to the Commission
194
Division 1--National Integrity Commissioner
194
187
Appointment of National Integrity Commissioner ........................ 194
188
General terms and conditions of appointment ............................... 195
189
Other paid work ............................................................................. 195
190
Remuneration ................................................................................ 195
191
Leave of absence ........................................................................... 196
192
Resignation .................................................................................... 196
193
Removal from office ...................................................................... 196
194
Acting appointments ...................................................................... 197
195
Disclosure of interests ................................................................... 198
Division 2--Law Enforcement Integrity Commissioner
199
196
Appointment etc. of Law Enforcement Integrity
Commissioner ................................................................................ 199
Division 3--Whistleblower Protection Commissioner
200
197
Appointment of Whistleblower Protection Commissioner ............ 200
198
General terms and conditions of appointment ............................... 201
199
Other paid work ............................................................................. 201
200
Remuneration ................................................................................ 201
201
Leave of absence ........................................................................... 202
202
Resignation .................................................................................... 202
203
Removal from office ...................................................................... 202
204
Acting appointments ...................................................................... 203
205
Disclosure of interests ................................................................... 204
Division 4--Assistant National Integrity Commissioners
205
206
Appointment of Assistant National Integrity Commissioners ....... 205
207
General terms and conditions of appointment ............................... 206
208
Other paid work ............................................................................. 206
209
Remuneration ................................................................................ 206
210
Leave of absence ........................................................................... 207
211
Resignation .................................................................................... 207
212
Removal from office ...................................................................... 207
213
Acting appointments ...................................................................... 208
214
Disclosure of interests ................................................................... 209
Division 5--Chief Executive Officer
210
215
CEO ............................................................................................... 210
216
Functions of the CEO .................................................................... 210
217
Powers of the CEO ........................................................................ 210
218
Commission may give directions to CEO ...................................... 210
No. , 2018
National Integrity Commission Bill 2018
xi
219
Appointment of CEO ..................................................................... 211
220
Appointment of acting CEO .......................................................... 211
221
Remuneration of the CEO ............................................................. 212
222
Leave of absence of the CEO ........................................................ 212
223
Other paid work of the CEO .......................................................... 212
224
Resignation of the CEO ................................................................. 213
225
Termination of appointment of the CEO ....................................... 213
226
Other terms and conditions of the CEO ......................................... 214
Division 6--Staff, consultants and delegations
215
227
Staff ............................................................................................... 215
228
Consultants .................................................................................... 215
229
Delegation--National Integrity Commissioner ............................. 216
230
Delegation--Whistleblower Protection Commissioner ................. 216
231
Delegation--CEO.......................................................................... 217
Division 7--Public reporting
218
232
Annual report ................................................................................. 218
233
Reports on investigations and public inquiries .............................. 219
234
Special reports ............................................................................... 220
235
Contents of annual or special report .............................................. 221
236
Public reporting--Whistleblower Protection Commissioner ......... 222
Division 8--Confidentiality requirements
223
237
Confidentiality requirements for National Integrity
Commission staff ........................................................................... 223
238
Exceptions to confidentiality requirements ................................... 224
239
Disclosure by National Integrity Commissioner in public
interest etc. .................................................................................... 225
240
Opportunity to be heard ................................................................. 226
241
National Integrity Commission staff generally not
compellable in court proceedings .................................................. 227
242
Confidentiality requirements--Whistleblower Protection
Commissioner ................................................................................ 228
Part 11--Parliamentary Joint Committee on the Australian
National Integrity Commission
230
243
Definitions ..................................................................................... 230
244
Parliamentary Joint Committee on the Australian National
Integrity Commission .................................................................... 230
245
Powers and proceedings of the committee ..................................... 232
246
Duties of the committee ................................................................. 232
247
Committee may approve or reject recommendation for
appointment ................................................................................... 235
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National Integrity Commission Bill 2018
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248
Disclosure to committee by National Integrity Commissioner ...... 237
249
Parliamentary Joint Committee--Whistleblower Protection
Commissioner ................................................................................ 238
250
Disclosure to committee by Law Enforcement Integrity
Commissioner ................................................................................ 238
251
Disclosure to committee by Minister ............................................. 240
252
Ombudsman to brief committee about controlled operations ........ 241
Part 12--Parliamentary Inspector of the Australian National
Integrity Commission
242
Division 1--Establishment and functions and powers of the
Parliamentary Inspector of the Australian National
Integrity Commission
242
253
Parliamentary Inspector of the Australian National Integrity
Commission ................................................................................... 242
254
Functions of the Parliamentary Inspector ...................................... 242
255
Matters arising from a conduct investigation ................................. 243
256
Report on conduct investigations conducted by
Parliamentary Inspector ................................................................. 244
257
Parliamentary Inspector cannot be required to disclose
particular information .................................................................... 245
Division 2--Audits, investigations, reviews and reports
246
258
Process for conducting an audit, investigation or review............... 246
259
Contents of reports on results of performance of functions ........... 246
260
Parliamentary Inspector may require information etc. ................... 246
261
Privilege against self-incrimination ............................................... 246
Division 3--Administrative provisions relating to the
Parliamentary Inspector
247
262
Appointment of Parliamentary Inspector ....................................... 247
263
General terms and conditions of appointment ............................... 248
264
Other paid work ............................................................................. 248
265
Remuneration ................................................................................ 248
266
Leave of absence ........................................................................... 249
267
Resignation .................................................................................... 249
268
Termination of appointment .......................................................... 249
269
Acting appointments ...................................................................... 250
270
Disclosure of interests ................................................................... 251
271
Assistance to Parliamentary Inspector ........................................... 251
Part 13--Miscellaneous
252
272
Offence of victimisation ................................................................ 252
No. , 2018
National Integrity Commission Bill 2018
xiii
273
Legal and financial assistance in relation to applications for
administrative review .................................................................... 252
274
Immunity from civil proceedings .................................................. 253
275
Immunities from certain State and Territory laws ......................... 254
276
Miscellaneous--Whistleblower Protection Commissioner ........... 254
277
Review relating to the Law Enforcement Integrity
Commissioner etc. ......................................................................... 254
278
Review relating to judicial integrity .............................................. 255
279
Review of operation of Act ........................................................... 256
280
Schedules ....................................................................................... 257
281
Regulations .................................................................................... 257
Schedule 1--Amendments
258
Law Enforcement Integrity Commissioner Act 2006
258
184
National Integrity Commissioner may give directions to the
Integrity Commissioner ................................................................. 258
Ombudsman Act 1976
259
Public Interest Disclosure Act 2013
260
No. , 2018
National Integrity Commission Bill 2018
1
A Bill for an Act to establish the National Integrity
1
Commission, and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
5
1 Short title
6
This Act is the National Integrity Commission Act 2018.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
Part 1 Preliminary
Section 3
2
National Integrity Commission Bill 2018
No. , 2018
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
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
281
The day after the day on which the
Consolidated Revenue Fund is appropriated
under an Act to the Department in which this
Act is administered for payment for the
purposes of the National Integrity
Commission.
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
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Simplified outline of this Act
10
This Act establishes the Australian National Integrity Commission.
11
The Commission consists of:
12
(a)
the National Integrity Commissioner; and
13
(b)
the Law Enforcement Integrity Commissioner; and
14
(c)
the Whistleblower Protection Commissioner; and
15
(d)
Assistant National Integrity Commissioners; and
16
(e)
Assistant Law Enforcement Integrity Commissioners.
17
Preliminary Part 1
Section 3
No. , 2018
National Integrity Commission Bill 2018
3
The National Integrity Commissioner has functions relating to:
1
(a)
promoting and improving the integrity and
2
accountability of Commonwealth public administration;
3
and
4
(b)
preventing, investigating, exposing and addressing
5
corruption issues involving or affecting Commonwealth
6
public administration.
7
Those functions include the following:
8
(a)
giving advice and assistance in relation to promoting
9
integrity and reduce the likelihood of the occurrence of
10
corrupt conduct;
11
(b)
educating and disseminating information to combat
12
corrupt conduct;
13
(c)
leading and supporting the preparation of strategies for
14
corruption prevention, national and international
15
coordination of anti-corruption efforts, and the
16
development and implementation of a National Integrity
17
and Anti-Corruption Plan;
18
(d)
investigating and conducting public inquiries into
19
corruption issues;
20
(e)
referring certain corruption issues to other agencies for
21
investigation, or managing, overseeing or reviewing
22
such investigations;
23
(f)
preparing reports and making recommendations about
24
legislative or other action relating to integrity and
25
corruption.
26
The Whistleblower Protection Commissioner has functions
27
including:
28
(a)
receiving and investigating disclosures of wrongdoing;
29
and
30
(b)
providing advice, assistance, guidance and support to
31
persons and agencies relating to the making of
32
disclosures of wrongdoing.
33
The Commission has a CEO who is responsible for its
34
administration and for assisting it to perform its functions.
35
Part 1 Preliminary
Section 4
4
National Integrity Commission Bill 2018
No. , 2018
This Act also provides for the appointment of the Parliamentary
1
Joint Committee on the Australian National Integrity Commission.
2
The Committee's duties include:
3
(a)
considering proposed recommendations for certain
4
appointments under this Act; and
5
(b)
monitoring and reviewing the performance of certain
6
functions under this Act;
7
(c)
reporting to Parliament about matters relating to the
8
Commission or about trends and changes in law
9
enforcement relating to corruption.
10
The Parliamentary Inspector of the Australian National Integrity
11
Commission is established by this Act as an independent officer of
12
the Parliament. The functions of the Parliamentary Inspector
13
include:
14
(a)
inspecting records of the Commission for purposes
15
including reviewing whether the Commission has
16
exercised power in an appropriate way; and
17
(b)
investigating complaints about the conduct or activities
18
of the Commission or staff of the Commission; and
19
(c)
functions in relation to the protection of information by
20
the Commission and alleged incidences of possible
21
unauthorised disclosures; and
22
(d)
reviewing information given by the Commission to the
23
Parliamentary Joint Committee on the Australian
24
National Integrity Commission.
25
4 Objects of Act
26
(1) The objects of this Act are:
27
(a) to promote and improve the integrity and accountability of
28
Commonwealth public administration; and
29
(b) to prevent, investigate, expose and address corruption issues
30
involving or affecting Commonwealth public administration;
31
and
32
(c) to enable criminal offences to be prosecuted, civil and
33
disciplinary proceedings to be brought, and other remedies to
34
Preliminary Part 1
Section 4
No. , 2018
National Integrity Commission Bill 2018
5
be obtained as a result of the investigation of corruption
1
issues; and
2
(d) to educate government agencies, public officials and
3
members of the public about corruption and its detrimental
4
effects on public administration and the community, and
5
about actions that should be or have been taken, or are being
6
taken, to address corruption; and
7
(e) to ensure a comprehensive, efficient, nationally coordinated
8
approach to the prevention, detection, reduction and
9
remediation of corruption in:
10
(i) Commonwealth public administration;
11
(ii) Australia generally; and
12
(iii) Australia's relations with other countries; and
13
(f) to assist in the cooperative implementation of Australia's
14
international anti-corruption responsibilities, including under
15
the United Nations Convention Against Corruption (2005);
16
and
17
(g) to provide information, advice, guidance and support to:
18
(i) persons who, in the public interest, disclose corruption
19
or other wrongdoing in Australia or involving
20
Australian institutions; and
21
(ii) government agencies and other bodies dealing with
22
disclosures of corruption or other wrongdoing; and
23
(h) to ensure support and protection is provided to persons who
24
disclose corruption or other wrongdoing under the Public
25
Interest Disclosure Act 2013 or Part 9.4AAA of the
26
Corporations Act 2001 or related Commonwealth legislation.
27
(2) To assist in achieving the objects in paragraphs (1)(a) to (f), this
28
Act establishes the office of the National Integrity Commissioner.
29
(3) To assist in achieving the objects in paragraphs (1)(g) and (h), this
30
Act establishes the office of the Whistleblower Protection
31
Commissioner.
32
Part 1 Preliminary
Section 5
6
National Integrity Commission Bill 2018
No. , 2018
5 Saving of powers, privileges and immunities
1
Except as expressly provided otherwise in this Act, this Act does
2
not affect the powers, privileges and immunities of each House of
3
the Parliament, and of the members and committees of each House.
4
6 Act binds the Crown
5
This Act binds the Crown in right of the Commonwealth.
6
7 Application of Act
7
This Act applies both within and outside Australia and extends to
8
every external Territory.
9
8 Definitions
10
(1) In this Act:
11
AFP means the Australian Federal Police.
12
applicable code of conduct means:
13
(a) in the case of a Minister:
14
(i) a Ministerial code of conduct imposed by the Prime
15
Minister on the Prime Minister's Ministers; or
16
(ii) a Ministerial code of conduct:
17
(A) prescribed by the regulations; or
18
(B) adopted by resolution of the House of which the
19
Minister is or was a member;
20
for the purposes of this definition; or
21
(b) in the case of a parliamentarian (including a Minister):
22
(i) the code of conduct in the National Integrity
23
(Parliamentary Standards) Act 2018; or
24
(ii) a code of conduct for parliamentarians adopted by
25
resolution of the House of which the parliamentarian is
26
or was a member.
27
Assistant Commissioner means an Assistant National Integrity
28
Commissioner appointed under section 206.
29
Preliminary Part 1
Section 8
No. , 2018
National Integrity Commission Bill 2018
7
Assistant Law Enforcement Integrity Commissioner means a
1
person appointed under section 185 of the Law Enforcement
2
Integrity Commissioner Act 2006 as an Assistant Integrity
3
Commissioner.
4
assisting officer, in relation to a warrant for a person's arrest or a
5
search warrant, means:
6
(a) a person who:
7
(i) is an authorised officer or a member or special member
8
of the AFP; and
9
(ii) is assisting in executing the warrant; or
10
(b) a person who:
11
(i) is not an authorised officer; and
12
(ii) is not a member or special member of the AFP; and
13
(ii) has been authorised by the authorised officer who is
14
executing the warrant to assist in executing the warrant.
15
authorised officer means:
16
(a) the National Integrity Commissioner; or
17
(b) a person authorised under section 145.
18
CEO means the Chief Executive Officer of the Commission.
19
charged: a person is charged with an offence if a process for
20
prosecuting the person for the offence commences.
21
civil penalty proceeding means a proceeding for a civil penalty in
22
relation to a contravention of a law of the Commonwealth or of a
23
State or Territory.
24
civil penalty provision means a provision of a law of the
25
Commonwealth or of a State or Territory in relation to a
26
contravention of which a civil penalty may be imposed.
27
Commission means the Australian National Integrity Commission
28
established under section 11.
29
Commissioner means:
30
(a) the Whistleblower Protection Commissioner; or
31
(b) the Law Enforcement Integrity Commissioner.
32
Part 1 Preliminary
Section 8
8
National Integrity Commission Bill 2018
No. , 2018
Commonwealth agency means:
1
(a) an Agency within the meaning of the Public Service Act
2
1999; or
3
(b) a Department of the Parliament that is established under the
4
Parliamentary Service Act 1999; or
5
(c) a person or body holding office, or exercising power, under
6
or because of the Constitution or a law of the
7
Commonwealth; or
8
(d) a body or organisation, whether incorporated or
9
unincorporated, established for a public purpose:
10
(i) by or under a law of the Commonwealth or of a
11
Territory (other than the Australian Capital Territory or
12
the Northern Territory); or
13
(ii) by the Governor-General; or
14
(iii) by a Minister;
15
but does not include a Commonwealth judicial officer.
16
Commonwealth entity has the same meaning as in the Public
17
Governance, Performance and Accountability Act 2013.
18
Commonwealth judicial officer has the same meaning as in the
19
Criminal Code.
20
confiscation proceeding means a proceeding under:
21
(a) the Proceeds of Crime Act 1987 or the Proceeds of Crime Act
22
2002; or
23
(b) a corresponding law within the meaning of either of those
24
Acts;
25
but does not include a criminal prosecution for an offence under
26
either of those Acts or a corresponding law.
27
constable means:
28
(a) a member or special member of the AFP; or
29
(b) a member of the police force or police service of a State or
30
Territory.
31
corrupt conduct has the meaning given by section 9.
32
Preliminary Part 1
Section 8
No. , 2018
National Integrity Commission Bill 2018
9
corruption investigation means an investigation of a corruption
1
issue under this Act.
2
corruption issue has the meaning given by section 10.
3
criminal offence means an offence against a law of the
4
Commonwealth or of a State or Territory.
5
criminal proceeding means:
6
(a) a prosecution for an offence against a law of the
7
Commonwealth or of a State or Territory; or
8
(b) a confiscation proceeding.
9
data has the same meaning as in Part IAA of the Crimes Act 1914.
10
data held in a computer has the same meaning as in Part IAA of
11
the Crimes Act 1914.
12
data storage device has the same meaning as in Part IAA of the
13
Crimes Act 1914.
14
disciplinary offence includes any misconduct, irregularity, neglect
15
of duty, breach of discipline or other matter that constitutes or may
16
constitute grounds for disciplinary action under any law.
17
disciplinary proceeding:
18
(a) means a proceeding of a disciplinary nature under a law of
19
the Commonwealth or of a State or Territory; and
20
(b) includes action taken under Subdivision D of Division 3 of
21
Part V of the Australian Federal Police Act 1979.
22
disclosure of wrongdoing means:
23
(a) a public interest disclosure within the meaning of the Public
24
Interest Disclosure Act 2013; or
25
(b) a disclosure of information qualifying for protection under
26
Part 9.4AAA of the Corporations Act 2001; or
27
(c) a referral of an allegation, or information, that raises a
28
corruption issue under Part 4 of this Act, where made by a
29
current or former employee, volunteer or contractor of an
30
organisation to whom the corruption issue also relates; or
31
Part 1 Preliminary
Section 8
10
National Integrity Commission Bill 2018
No. , 2018
(d) an alleged or suspected contravention of the National
1
Integrity (Parliamentary Standards) Act 2018, where made
2
by a current or former employee, volunteer or contractor of
3
an organisation to whom the contravention also relates; or
4
(e) a disclosure of wrongdoing of a type prescribed by the
5
regulations for the purposes of this paragraph.
6
eligible seizable item means anything that:
7
(a) would present a danger to a person; or
8
(b) could be used to assist a person to escape from lawful
9
custody.
10
employee of a Commonwealth agency includes:
11
(a) the head of the agency; and
12
(b) a temporary employee of the agency; and
13
(c) an independent contractor providing a service to or on behalf
14
of the agency.
15
engage in conduct means:
16
(a) do an act; or
17
(b) omit to do an act.
18
evidential material means:
19
(a) in relation to an investigation warrant--a thing that may be
20
relevant to:
21
(i) a corruption investigation; or
22
(ii) a public inquiry; or
23
(b) in relation to an offence warrant--a thing relevant to an
24
offence against a law of the Commonwealth.
25
Federal Circuit Court means the Federal Circuit Court of
26
Australia.
27
Federal Court means the Federal Court of Australia.
28
former parliamentarian means a former member of either House
29
of the Parliament.
30
frisk search has the same meaning as in Part IAA of the Crimes
31
Act 1914.
32
Preliminary Part 1
Section 8
No. , 2018
National Integrity Commission Bill 2018
11
gift means a gift whether it is or is not registrable in accordance
1
with a resolution or resolutions of a House of the Parliament.
2
government agency means:
3
(a) a Commonwealth agency; or
4
(b) a Department of a State or Territory; or
5
(b) a body (whether incorporated or not) established for a public
6
purpose by or under a law of a State or Territory.
7
head of a government agency means:
8
(a) the person holding, or performing the duties of, the principal
9
office in respect of the agency; or
10
(b) if the government agency is a person--that person.
11
in contempt of the Commission has the meaning given by
12
section 93.
13
industrial, civil or administrative body means:
14
(a) Fair Work Australia; or
15
(b) a court or commission (however described) performing or
16
exercising, under an industrial law within the meaning of the
17
Fair Work Act 2009, functions and powers corresponding to
18
those conferred on Fair Work Australia by the Fair Work Act
19
2009; or
20
(c) a court or commission (however described) performing or
21
exercising, under a workplace law (within the meaning of the
22
Fair Work Act 2009), functions and powers corresponding to
23
those conferred on Fair Work Australia by the Fair Work
24
(Registered Organisations) Act 2009; or
25
(d) a civil or administrative appeals tribunal of the
26
Commonwealth or of a State or Territory; or
27
(e) an anti-discrimination, equal opportunity or human rights
28
protection body, commission or tribunal of the
29
Commonwealth or of a State or Territory.
30
interest means an interest whether it is or is not registrable in
31
accordance with a resolution or resolutions of a House of the
32
Parliament.
33
Part 1 Preliminary
Section 8
12
National Integrity Commission Bill 2018
No. , 2018
investigation warrant means a warrant to search for a thing that
1
may be relevant to:
2
(a) a corruption investigation; or
3
(b) a public inquiry.
4
issuing officer means:
5
(a) for an investigation warrant:
6
(i) a Judge of the Federal Court of Australia sitting in
7
Chambers; or
8
(ii) a Judge of the Federal Circuit Court of Australia sitting
9
in Chambers; or
10
(iii) a Judge of a court of a State or Territory; or
11
(b) for an offence warrant--a magistrate.
12
law enforcement agency has the same meaning as in the Law
13
Enforcement Integrity Commissioner Act 2006.
14
law enforcement function means any of the following functions:
15
(a) investigating whether:
16
(i) an offence has been committed against a law of the
17
Commonwealth; or
18
(ii) there has been a contravention of a law of the
19
Commonwealth in relation to which civil penalty
20
proceedings may be brought;
21
(b) preparing the material necessary to prosecute a person for an
22
offence against a law of the Commonwealth;
23
(c) preparing the material necessary to bring civil penalty
24
proceedings against a person for a contravention of a law of
25
the Commonwealth;
26
(d) collecting, maintaining, correlating, analysing, accessing or
27
distributing information for the purpose of assisting the
28
enforcement of laws of the Commonwealth;
29
(e) assisting in carrying out a function referred to in
30
paragraphs (a) to (d).
31
Law Enforcement Integrity Commissioner means the person
32
appointed under section 175 of the Law Enforcement Integrity
33
Commissioner Act 2006 as the Integrity Commissioner.
34
Preliminary Part 1
Section 8
No. , 2018
National Integrity Commission Bill 2018
13
law enforcement integrity commissioner functions has the
1
meaning given by section 13.
2
law enforcement secrecy provision means:
3
(a) Part 11 of the Anti-Money Laundering and
4
Counter-Terrorism Financing Act 2006; or
5
(b) section 45 of the Surveillance Devices Act 2004; or
6
(c) sections 63 and 133 of the Telecommunications (Interception
7
and Access) Act 1979; or
8
(d) anything done under a provision referred to in paragraphs (a)
9
to (c).
10
legal aid officer means:
11
(a) a member, or member of staff, of an authority established by
12
or under a law of a State or Territory for purposes that
13
include providing legal assistance; or
14
(b) a person to whom the Attorney-General has delegated his or
15
her powers and functions under section 109.
16
legal practitioner means a barrister, a solicitor, a barrister and
17
solicitor or a legal practitioner, of the High Court or of the
18
Supreme Court of a State or Territory.
19
manage an investigation of a corruption issue by a Commonwealth
20
agency has the meaning given by section 151.
21
National Integrity Commissioner means the National Integrity
22
Commissioner appointed under section 187.
23
national integrity commissioner functions has the meaning given
24
by section 12.
25
national law enforcement agencies means:
26
(a) the AFP; or
27
(b) the Australian Crime Commission; or
28
(c) any other Commonwealth agency that:
29
(i) has a law enforcement function; and
30
(ii) is prescribed by the regulations for the purposes of this
31
paragraph.
32
Part 1 Preliminary
Section 8
14
National Integrity Commission Bill 2018
No. , 2018
nominated contact of a Commonwealth agency for an
1
investigation of a corruption issue means:
2
(a) a representative of the agency nominated under section 150
3
as the nominated contact for the investigation; or
4
(b) if representative is not nominated--the head of the agency.
5
occupier of premises means the person apparently in charge of the
6
premises.
7
offence warrant means a warrant to search for a thing relevant to
8
an offence against a law of the Commonwealth.
9
official matter means any of the following (whether past, present
10
or contingent):
11
(a) a corruption investigation;
12
(b) a hearing held by the National Integrity Commissioner or a
13
special investigator in relation to a corruption investigation;
14
(c) court proceedings.
15
ordinary search means a search of a person or of articles in the
16
possession of a person that may include:
17
(a) requiring the person to remove his or her overcoat, coat or
18
jacket or any gloves, shoes or hat; and
19
(b) an examination of those items.
20
oversee an investigation of a corruption issue by a Commonwealth
21
agency has the meaning given by section 152.
22
paid work means work for financial gain or reward (whether as an
23
employee, a self-employed person or otherwise).
24
parliamentarian means:
25
(a) a senator; or
26
(b) a member of the House of Representatives; or
27
(c) a Minister of State who is not a senator or member of the
28
House of Representatives; or
29
(d) a person who is taken to be the President of the Senate under
30
the Parliamentary Presiding Officers Act 1965 and who is
31
not a senator or member of the House of Representatives; or
32
Preliminary Part 1
Section 8
No. , 2018
National Integrity Commission Bill 2018
15
(e) a person who is taken to be the Speaker of the House of
1
Representatives under the Parliamentary Presiding Officers
2
Act 1965 and who is not a senator or member of the House of
3
Representatives.
4
parliamentary allowances means allowances (including
5
allowances by way of salary) and entitlements (including
6
superannuation entitlements) of parliamentarians under a law of the
7
Commonwealth.
8
Parliamentary Inspector means the Parliamentary Inspector of the
9
Australian National Integrity Commission referred to in
10
section 253.
11
Parliamentary Joint Committee means the Parliamentary Joint
12
Committee on the Australian National Integrity Commission for
13
the time being constituted under Part 11.
14
premises includes a place, vehicle, vessel and aircraft.
15
presiding officer means:
16
(a) in relation to the Senate--the President of the Senate; or
17
(b) in relation to the House of Representatives--the Speaker of
18
the House of Representatives.
19
presiding officers means the President of the Senate and the
20
Speaker of the House of Representatives acting jointly.
21
public inquiry means a public inquiry conducted by the National
22
Integrity Commissioner under Part 5.
23
public official means a person having Commonwealth public
24
official functions or acting in a Commonwealth public official
25
capacity, and includes but is not limited to any of the following:
26
(a) the Governor-General (whether or not acting with the advice
27
of the Federal Executive Council);
28
(b) a Minister;
29
(c) a parliamentarian;
30
(d) a person employed under the Members of Parliament (Staff)
31
Act 1984;
32
Part 1 Preliminary
Section 8
16
National Integrity Commission Bill 2018
No. , 2018
(e) an employee or a temporary employee of a Commonwealth
1
agency, including:
2
(i) the head of a Commonwealth agency; and
3
(ii) an independent contractor providing a service to or on
4
behalf of a Commonwealth agency;
5
(f) a person declared by the regulations to be a public official for
6
the purposes of this definition;
7
(g) an employee of or any person otherwise engaged by or acting
8
for or on behalf of, or in the place of, or as deputy or delegate
9
of, any person or body described in any of paragraphs (a) to
10
(f);
11
but does not include a Commonwealth judicial officer.
12
refer, in relation to an allegation or information, has the meaning
13
given by subsections (2) and (3).
14
referred corruption issue means a corruption issue referred under
15
section 42.
16
search warrant means an investigation warrant, or an offence
17
warrant, that is issued under section 114:
18
(a) to search premises; or
19
(b) to carry out an ordinary search, or frisk search, of a person.
20
secrecy provision means:
21
(a) a provision of a law of the Commonwealth that purports to
22
prohibit; or
23
(b) anything done, under a provision of a law of the
24
Commonwealth, to prohibit;
25
the communication, divulging or publication of information, the
26
production of, or the publication of the contents of, a document, or
27
the production of a thing.
28
sensitive information means information the disclosure of which:
29
(a) could prejudice:
30
(i) the security, defence or international relations of
31
Australia; or
32
Preliminary Part 1
Section 8
No. , 2018
National Integrity Commission Bill 2018
17
(ii) relations between the Commonwealth Government and
1
the Government of a State or between the Government
2
of a State and the Government of another State; or
3
(b) would involve disclosing:
4
(i) deliberations or decisions of the Cabinet, or of a
5
Committee of the Cabinet, of the Commonwealth or of a
6
State; or
7
(ii) deliberations or advice of the Federal Executive Council
8
or the Executive Council of a State or the Northern
9
Territory; or
10
(iii) deliberations or decisions of the Australian Capital
11
Territory Executive or of a committee of that Executive;
12
or
13
(c) could reveal, or enable a person to ascertain, the existence or
14
identity of a confidential source of information in relation to:
15
(i) the enforcement of the criminal law of the
16
Commonwealth, a State or Territory or a foreign
17
country; or
18
(ii) a corruption investigation; or
19
(iii) a public inquiry under this Act; or
20
(d) could endanger a person's life or physical safety; or
21
(e) could prejudice the protection of public safety; or
22
(f) could prejudice the fair trial of a person or the impartial
23
adjudication of a matter; or
24
(g) could prejudice the proper enforcement of the law (including
25
through corruption investigations); or
26
(h) would involve disclosing information whose disclosure is
27
prohibited (absolutely or subject to qualifications) by or
28
under another law of the Commonwealth; or
29
(i) would involve unreasonably disclosing a person's personal
30
affairs; or
31
(j) would involve unreasonably disclosing confidential
32
commercial information.
33
staff member of the Commission means:
34
(a) the National Integrity Commissioner; or
35
(b) the Law Enforcement Integrity Commissioner; or
36
Part 1 Preliminary
Section 8
18
National Integrity Commission Bill 2018
No. , 2018
(c) the Whistleblower Protection Commissioner; or
1
(d) any Assistant Commissioners; or
2
(e) any Assistant Law Enforcement Integrity Commissioners; or
3
(f) the CEO; or
4
(g) the staff referred to in section 227; or
5
(h) consultants engaged under section 228.
6
strip search has the same meaning as in Part IAA of the Crimes
7
Act 1914.
8
taxation secrecy provision means a secrecy provision that is a
9
provision of a taxation law within the meaning of the Taxation
10
Administration Act 1953.
11
thing relevant to an indictable offence has the same meaning as in
12
the Crimes Act 1914.
13
Whistleblower Protection Commissioner means the Whistleblower
14
Protection Commissioner appointed under section 197.
15
whistleblower protection commissioner functions has the meaning
16
given by section 14.
17
whistleblower protection issue means:
18
(a) an act or omission constituting reprisal or victimisation or
19
which causes detriment to any person, as a result of that
20
person or any other person making a disclosure of
21
wrongdoing; or
22
(b) a failure of by any person or body to fulfil whistleblower
23
protection responsibilities in respect of a disclosure of
24
wrongdoing, in circumstances where the failure has led, will
25
lead or is likely to lead to detriment or harm to any person;
26
and includes an allegation, reasonable suspicion, or information
27
relating to such an act, omission or failure.
28
whistleblower protection responsibilities means, in relation to a
29
person who made, may have made or may make a disclosure of
30
wrongdoing, or to any related person, a duty under any law or
31
applicable code of conduct or policy to:
32
Preliminary Part 1
Section 9
No. , 2018
National Integrity Commission Bill 2018
19
(a) support, protect, or prevent detriment from being caused to,
1
the person; or
2
(b) deal with a disclosure of wrongdoing in any particular way
3
prescribed by law for the purpose of protecting the rights,
4
interests and welfare of the person; or
5
(c) not cause detriment, by act or omission, to the person; or
6
(d) not victimise or engage in reprisal against the person.
7
(2) A reference in this Act to a person referring an allegation includes
8
a reference to the person making the allegation.
9
(3) A reference in this Act to a person referring information includes a
10
reference to the person giving information.
11
9 Meaning of corrupt conduct
12
(1) Subject to subsection (4), for the purposes of this Act, corrupt
13
conduct is:
14
(a) any conduct of any person that adversely affects, or that
15
could adversely affect, either directly or indirectly, the honest
16
or impartial exercise of official functions by the Parliament, a
17
Commonwealth agency, any public official or any group or
18
body of public officials; or
19
(b) any conduct of a public official that constitutes or involves
20
the dishonest or partial exercise of any of his or her official
21
functions; or
22
(c) any conduct of a public official that constitutes or involves,
23
or of a former public official that constituted or involved, a
24
breach of public trust; or
25
(d) any conduct of a public official that involves, or that is
26
engaged in for the purpose of, the public official abusing his
27
or her office as a public official; or
28
(e) any conduct of a public official that involves, or of a former
29
public official that involved, the misuse of information or
30
material that he or she acquired in the course of his or her
31
official functions, whether or not for his or her benefit or for
32
the benefit of any other person.
33
Part 1 Preliminary
Section 9
20
National Integrity Commission Bill 2018
No. , 2018
(2) Without limiting subsection (1), and subject to subsection (4),
1
conduct that involves any of the following is capable of being
2
corrupt conduct:
3
(a) official misconduct (including breach of trust, fraud in office,
4
nonfeasance, misfeasance, malfeasance, oppression, extortion
5
or imposition); or
6
(b) bribery; or
7
(c) blackmail; or
8
(d) obtaining or offering secret commissions; or
9
(e) theft; or
10
(f) perverting the course of justice; or
11
(g) embezzlement; or
12
(h) election bribery; or
13
(i) breaches of lobbying codes of conduct or electoral funding
14
laws; or
15
(j) election fraud; or
16
(k) tax evasion; or
17
(l) revenue evasion; or
18
(m) illegal drug dealings; or
19
(n) illegal gambling; or
20
(o) obtaining financial benefit by vice engaged in by others; or
21
(p) bankruptcy and company violations; or
22
(q) collusive tendering; or
23
(r) impropriety in government procurement and tender processes
24
(s) fraud in relation to applications for licences, permits or other
25
authorities under legislation designed to protect health and
26
safety or the environment or designed to facilitate the
27
management and commercial exploitation of resources; or
28
(t) dishonestly obtaining or assisting in obtaining, or dishonestly
29
benefiting from, the payment or application of public funds
30
for private advantage or the disposition of public assets for
31
private advantage; or
32
(u) defrauding the public revenue; or
33
(v) fraudulently obtaining or retaining employment or
34
appointment as a public official.
35
Preliminary Part 1
Section 10
No. , 2018
National Integrity Commission Bill 2018
21
(3) Conduct may amount to corrupt conduct under this section even
1
though it occurred before the commencement of this subsection,
2
and it does not matter that some or all of the effects or other
3
ingredients necessary to establish such corrupt conduct occurred
4
before that commencement and that any person or persons
5
involved are no longer public officials.
6
Note:
Subsection 12(3) provides that the national integrity commissioner
7
functions do not include the investigation of corruption issues that
8
arose more than 10 years before the day section 12 commences.
9
(4) Despite subsections (1) to (3), conduct does not amount to corrupt
10
conduct unless it could constitute or involve:
11
(a) a criminal offence or conduct giving rise to a civil liability; or
12
(b) a disciplinary offence; or
13
(c) reasonable grounds for dismissing, dispensing with the
14
services of or otherwise terminating the services of a public
15
official; or
16
(d) in the case of conduct of a Minister or a parliamentarian--a
17
substantial breach of an applicable code of conduct.
18
(5) In this section:
19
impartial means conduct of a person that causes, or could cause,
20
any public official or group or body of public officials to place the
21
private or personal interests of any person (including their own)
22
over the public good, in the exercise of any of their official
23
functions; including conduct of which the public official or
24
officials may have no knowledge.
25
partial means conduct of a public official that involves the placing
26
by the public official of the private or personal interests of any
27
person (including their own) over the public good, in the exercise
28
of any of their official functions.
29
10 Meaning of corruption issue
30
(1) For the purposes of this Act, a corruption issue is an issue whether
31
a person:
32
(a) has, or may have, engaged in corrupt conduct; or
33
(b) is, or may be, engaging in corrupt conduct; or
34
Part 1 Preliminary
Section 10
22
National Integrity Commission Bill 2018
No. , 2018
(c) will, or may at any time in the future, engage in corrupt
1
conduct.
2
(2) To avoid doubt, an allegation, or information, may raise a
3
corruption issue even if the identity of the person is unknown, is
4
uncertain or is not disclosed in the allegation or information.
5
The Australian National Integrity Commission Part 2
Establishment Division 1
Section 11
No. , 2018
National Integrity Commission Bill 2018
23
Part 2--The Australian National Integrity
1
Commission
2
Division 1--Establishment
3
11 Establishment
4
(1) The Australian National Integrity Commission is established by
5
this section.
6
(2) The Commission consists of:
7
(a) the National Integrity Commissioner; and
8
(b) the Law Enforcement Integrity Commissioner; and
9
(c) the Whistleblower Protection Commissioner; and
10
(d) any Assistant Commissioners; and
11
(e) any Assistant Law Enforcement Integrity Commissioners.
12
(3) For the purposes of the finance law (within the meaning of the
13
Public Governance, Performance and Accountability Act 2013):
14
(a) the Commission is a listed entity; and
15
(b) the CEO is the accountable authority of the Commission; and
16
(c) the following persons are officials of the Commission:
17
(i) the National Integrity Commissioner;
18
(ii) the Commissioners;
19
(iii) any Assistant Commissioners;
20
(iv) any Assistant Law Enforcement Integrity
21
Commissioners;
22
(v) the CEO;
23
(vi) the staff referred to in section 227;
24
(vii) consultants engaged under section 228; and
25
(d) the purposes of the Commission include:
26
(i) the functions of the Commissioner conferred by this
27
Act; and
28
(ii) the national integrity commissioner functions; and
29
Part 2 The Australian National Integrity Commission
Division 1 Establishment
Section 11
24
National Integrity Commission Bill 2018
No. , 2018
(iii) the law enforcement integrity commissioner functions;
1
and
2
(iv) the whistleblower protection commissioner functions;
3
and
4
(v) the functions of the CEO referred to in section 216.
5
The Australian National Integrity Commission Part 2
Functions and powers of the National Integrity Commissioner and Commissioners
Division 2
Section 12
No. , 2018
National Integrity Commission Bill 2018
25
Division 2--Functions and powers of the National Integrity
1
Commissioner and Commissioners
2
12 Definition of national integrity commissioner functions
3
(1) The national integrity commissioner functions are as follows:
4
(a) to advise and assist any public official, Commonwealth
5
agency or other person on changes in laws, practices or
6
procedures compatible with the effective exercise of their
7
functions which the National Integrity Commissioner thinks
8
necessary to promote integrity and reduce the likelihood of
9
the occurrence of corrupt conduct;
10
(b) to educate and disseminate information to public officials,
11
Commonwealth agencies and the community on strategies to
12
combat corrupt conduct;
13
(c) to lead and support Commonwealth and national strategies
14
for corruption prevention, national and international
15
coordination of anti-corruption efforts, and development and
16
implementation of a National Integrity and Anti-Corruption
17
Plan;
18
(d) on the National Integrity Commissioner's own initiative, or at
19
the request of the Minister or either House of the Parliament,
20
to make reports and recommendations to the Parliament
21
about the need for or the desirability of legislative or
22
administrative action on issues in relation to:
23
(i) the integrity of public officials; or
24
(ii) corruption generally in Commonwealth agencies; or
25
(iii) corruption generally in or affecting Australia;
26
whether those issues arose before or after the commencement
27
of this section;
28
(e) to investigate and conduct public inquiries into corruption
29
issues involving:
30
(i) a public official; or
31
(ii) a Commonwealth agency;
32
Part 2 The Australian National Integrity Commission
Division 2 Functions and powers of the National Integrity Commissioner and
Commissioners
Section 12
26
National Integrity Commission Bill 2018
No. , 2018
and report on the results of those investigations and inquiries,
1
whether those corruption issues arose before or after the
2
commencement of this section;
3
(f) to refer corruption issues, in appropriate circumstances, to
4
appropriate government agencies for investigation;
5
(g) to manage, oversee or review, in appropriate circumstances,
6
the investigation of corruption issues by Commonwealth
7
agencies;
8
(h) to communicate to appropriate authorities and to the public
9
the results of investigations and inquiries, including
10
recommendations for action that should be or have been
11
taken, or are being taken, in relation to those results;
12
(i) with the consent of the Minister, to enter into an arrangement
13
to perform the functions of a Territory integrity
14
commissioner under a scheme established in accordance with
15
the conditions of licences or authorities granted under an Act
16
of a Territory;
17
(j) to support the Whistleblower Protection Commissioner in the
18
discharge of their functions;
19
(k) to chair meetings of the Commission and of committees
20
established under Part 3 of this Act;
21
(l) any other function conferred on the National Integrity
22
Commissioner by this Act or another law of the
23
Commonwealth;
24
(m) to do anything incidental or conducive to the performance of
25
the above functions.
26
(2) An arrangement referred to in paragraph (1)(i) may include
27
provision for payment by the other party to the arrangement for the
28
performance of functions by the National Integrity Commissioner
29
in accordance with the arrangement.
30
(3) Despite anything else in this Act or the regulations, the national
31
integrity commissioner functions do not include the investigation
32
of corruption issues that arose more than 10 years before the day
33
this section commences.
34
The Australian National Integrity Commission Part 2
Functions and powers of the National Integrity Commissioner and Commissioners
Division 2
Section 13
No. , 2018
National Integrity Commission Bill 2018
27
13 Definition of law enforcement integrity commissioner functions
1
The law enforcement integrity commissioner functions are as
2
follows:
3
(a) the functions conferred on the Law Enforcement Integrity
4
Commissioner under section 15 of the Law Enforcement
5
Integrity Commissioner Act 2006;
6
(b) any other function conferred by this Act or another Act (or an
7
instrument under this Act or another Act) on the Law
8
Enforcement Integrity Commissioner.
9
14 Definition of whistleblower protection commissioner functions
10
(1) The whistleblower protection commissioner functions are as
11
follows:
12
(a) to provide advice, assistance, guidance and support to any
13
public official, Commonwealth agency or other person on
14
rights, obligations and processes relating to the making of
15
disclosures of wrongdoing as defined by this Act;
16
(b) to receive disclosures of wrongdoing from any person;
17
(c) to safeguard the identity and confidentiality of persons who
18
make disclosures of wrongdoing, to the maximum extent
19
possible by law and appropriate to the circumstances;
20
(d) to assess and, where appropriate, refer disclosures of
21
wrongdoing to appropriate Commonwealth agencies, other
22
government agencies, or other bodies, with functions and
23
powers to deal with those disclosures;
24
(e) to monitor and, where appropriate, provide advice or
25
assistance to agencies or bodies to whom disclosures of
26
wrongdoing have been referred, in respect of whistleblower
27
protection issues;
28
(f) to manage, oversee or review, in appropriate circumstances,
29
the manner in which Commonwealth agencies investigate or
30
deal with disclosures of wrongdoing, in respect of
31
whistleblower protection issues;
32
(g) to ensure appropriate support and protection is provided to
33
persons who make disclosures of wrongdoing;
34
Part 2 The Australian National Integrity Commission
Division 2 Functions and powers of the National Integrity Commissioner and
Commissioners
Section 14
28
National Integrity Commission Bill 2018
No. , 2018
(h) to advise and assist any public official, Commonwealth
1
agency or other person on changes in laws, practices or
2
procedures compatible with the effective exercise of their
3
functions which the Whistleblower Protection Commissioner
4
thinks necessary to promote the appropriate support and
5
protection for persons who make disclosures of wrongdoing;
6
(i) on the Whistleblower Protection Commissioner's own
7
initiative, or at the request of the Minister or either House of
8
the Parliament, to make reports and recommendations to the
9
Parliament about the need for or the desirability of legislative
10
or administrative action on issues in relation to whistleblower
11
protection, whether those issues arose before or after the
12
commencement of this section;
13
(j) to investigate and conduct public inquiries into issues of
14
reprisal, detrimental action, or failures to prevent detrimental
15
action, arising or resulting from disclosures of wrongdoing;
16
(k) to report on the results of those investigations and inquiries,
17
whether the issues of reprisal, detrimental action, or failures
18
to prevent detrimental action arose before or after the
19
commencement of this section;
20
(l) to manage, oversee or review, in appropriate circumstances,
21
the investigation by Commonwealth agencies of issues of
22
reprisal, detrimental action, or failures to prevent detrimental
23
action, arising or resulting from disclosures of wrongdoing;
24
(m) to communicate to appropriate authorities and to the public
25
the results of investigations, including reports or
26
recommendations on actions that should be or have been
27
taken, or are being taken, in relation to whistleblower
28
protection--including criminal prosecution, disciplinary
29
action, civil penalty enforcement, or the seeking or
30
provisions of remedies or rewards in favour of persons who
31
make disclosures of wrongdoing;
32
(n) to provide legal advice, representation or other practical
33
support, as appropriate, to persons who make disclosures of
34
wrongdoing and who are, or may become, a party to
35
proceedings in a court or to a matter before an industrial,
36
civil or administrative body, under any law, if the
37
Whistleblower Protection Commissioner considers that
38
The Australian National Integrity Commission Part 2
Functions and powers of the National Integrity Commissioner and Commissioners
Division 2
Section 15
No. , 2018
National Integrity Commission Bill 2018
29
representing the person will promote compliance with
1
whistleblower protection responsibilities;
2
(o) to commence proceedings in a court, or to make applications
3
to an industrial, civil or administrative body, to enforce this
4
Act or any Commonwealth law containing whistleblower
5
protection responsibilities;
6
(p) to support the National Integrity Commissioner, the Law
7
Enforcement Integrity Commissioner, other Commonwealth
8
agencies and other government agencies in the discharge of
9
their functions;
10
(q) such other functions as are delegated by the National
11
Integrity Commissioner under this Act or another Act;
12
(r) any other function conferred on the Whistleblower Protection
13
Commissioner by this Act or another law of the
14
Commonwealth;
15
(s) to do anything incidental or conducive to the performance of
16
the above functions.
17
(2) The Whistleblower Protection Commissioner must consult with the
18
National Integrity Commissioner in exercising any function
19
relating to the functions of the National Integrity Commissioner.
20
15 Functions and powers of the National Integrity Commissioner
21
(1) The National Integrity Commissioner has the national integrity
22
commissioner functions.
23
(2) The National Integrity Commissioner has power to do all things
24
necessary or convenient to be done for or in connection with the
25
performance of the national integrity commissioner functions
26
conferred by this section.
27
(3) In performing functions or exercising powers conferred on the
28
National Integrity Commissioner, the National Integrity
29
Commissioner must:
30
(a) as far as practicable, direct attention to serious corrupt
31
conduct and systemic corrupt conduct; and
32
Part 2 The Australian National Integrity Commission
Division 2 Functions and powers of the National Integrity Commissioner and
Commissioners
Section 16
30
National Integrity Commission Bill 2018
No. , 2018
(b) take into account the responsibility and role other public
1
authorities and public officials have in the prevention of
2
corrupt conduct.
3
16 Functions and powers of the Law Enforcement Integrity
4
Commissioner
5
(1) The Law Enforcement Integrity Commissioner has the law
6
enforcement integrity commissioner functions.
7
(2) The Law Enforcement Integrity Commissioner has the powers
8
conferred under Parts 9 and 12 of the Law Enforcement Integrity
9
Commissioner Act 2006 to do things necessary or convenient to be
10
done for or in connection with the performance of the law
11
enforcement integrity commissioner functions.
12
Note:
The Law Enforcement Integrity Commissioner is subject to direction
13
by the National Integrity Commissioner in relation to the performance
14
of certain functions and the exercise of certain powers (see section 184
15
of the Law Enforcement Integrity Commissioner Act 2006).
16
17 Functions and powers of the Whistleblower Protection
17
Commissioner
18
(1) The Whistleblower Protection Commissioner has the
19
whistleblower protection commissioner functions.
20
(2) The Whistleblower Protection Commissioner has power to do all
21
things necessary or convenient to be done for or in connection with
22
the performance of the whistleblower protection commissioner
23
functions conferred by this section.
24
Corruption prevention, research and coordination Part 3
Promoting integrity in public administration and Australia Division 1
Section 18
No. , 2018
National Integrity Commission Bill 2018
31
Part 3--Corruption prevention, research and
1
coordination
2
Division 1--Promoting integrity in public administration
3
and Australia
4
18 Role of the National Integrity Commissioner
5
(1) The National Integrity Commissioner has the following duties for
6
the purpose of promoting integrity and preventing corruption in
7
Australia:
8
(a) to develop and implement a strategy for how the Commission
9
can best contribute to the promotion of integrity and
10
prevention of corruption;
11
(b) to develop and publish rules, guidance and standards for
12
Commonwealth agency integrity and anti-corruption plans
13
under Division 2; and to review, monitor and support such
14
plans;
15
(c) to lead and assist in improvement of the capacity of the
16
public sector to strengthen its integrity systems and prevent
17
corrupt conduct, including through corruption prevention
18
inquiries under Division 3;
19
(d) to lead and facilitate training, education of, and advice to, the
20
public sector and the community about consequences and
21
prevention of corruption, including under Division 4;
22
(e) to undertake research into the incidence of corruption, its
23
causes and antecedents, and methods of prevention, as
24
provided for in Division 5;
25
(f) to lead and support cooperation and coordination among
26
Commonwealth agencies responsible for promoting integrity
27
and preventing or dealing with corruption or related issues, in
28
the public sector, as provided for in Division 6; and
29
(g) to lead and support cooperation and coordination among
30
government agencies, including State, Territory and
31
international agencies, and other stakeholders, in strategies
32
for combatting corruption in Australia, including the
33
Part 3 Corruption prevention, research and coordination
Division 1 Promoting integrity in public administration and Australia
Section 19
32
National Integrity Commission Bill 2018
No. , 2018
development and implementation of the National Integrity
1
and Anti-Corruption Plan under Division 7.
2
19 Role of the Commission
3
(1) In determining how to fulfil the duties under this Part, and in
4
fulfilling the duties, the National Integrity Commissioner will
5
consult with the Whistleblower Protection Commissioner and the
6
Law Enforcement Integrity Commissioner.
7
(2) The National Integrity Commissioner may enter into an agreement
8
with the head of a Commonwealth agency for the purpose of
9
assisting the agency with fulfilment of any duty or obligation under
10
this Part.
11
(3) The CEO must, by writing, designate positions in the Commission
12
as positions assisting the National Integrity Commissioner with the
13
fulfilment of duties under this Part.
14
Note:
For creation of positions, see section 77 of the Public Service Act
15
1999.
16
(4) A person in a position designated under subsection (3) may be
17
located in any Commonwealth agency with whom the CEO enters
18
into an agreement under subsection (3).
19
Corruption prevention, research and coordination Part 3
Commonwealth integrity and anti-corruption plans Division 2
Section 20
No. , 2018
National Integrity Commission Bill 2018
33
Division 2--Commonwealth integrity and anti-corruption
1
plans
2
20 Preparation of integrity and anti-corruption plans
3
(1) The head of each Commonwealth agency is to prepare, every 2
4
years, a plan to protect and enhance integrity in the performance of
5
the agency's functions (including the prevention of corruption in
6
its program delivery, use of financial assets and information,
7
decision-making, and the conduct of its staff) covering at least the
8
next 4-year period.
9
Note:
The first integrity and anti-corruption plan is to be prepared within 2
10
years of the commencement of this Act.
11
(2) Each agency's integrity and anti-corruption plan must be consistent
12
with any relevant rule, guidance or standard made under this Act.
13
(3) Nothing in this Act prevents a Commonwealth agency that is a
14
Commonwealth entity from combining its integrity and
15
anti-corruption plan with a fraud control plan, or corporate plan,
16
for the entity under the Public Governance, Performance and
17
Accountability Act 2013.
18
(4) However, despite subsection (3), an integrity and anti-corruption
19
plan must not be wholly contained within an agency's fraud control
20
plan and must deal with topics of integrity and anti-corruption
21
beyond simply fraud.
22
(5) An agency head may elect to not publish the agency's integrity and
23
anti-corruption plan, or may choose to redact it for publication, but
24
only in circumstances where publication of some or all of the plan
25
would be counter to the interests of preventing or dealing with
26
corruption in or by the agency.
27
21 Audit Committee to monitor plans
28
If a Commonwealth agency is a Commonwealth entity, the audit
29
committee for the agency must review the integrity and
30
anti-corruption plan, monitor its implementation and assess its
31
Part 3 Corruption prevention, research and coordination
Division 2 Commonwealth integrity and anti-corruption plans
Section 22
34
National Integrity Commission Bill 2018
No. , 2018
effectiveness, having regard to the level of corruption risk
1
applicable to the agency and its programs.
2
Note 1:
See section 45 of the Public Governance, Performance and
3
Accountability Act 2013 (which deals with audit committees for
4
Commonwealth entities).
5
Note 2:
The responsibility for preparing and implementing the entity's plan
6
remains with the accountable authority for the entity.
7
22 National Integrity Commissioner to receive plans on request
8
(1) A copy of a Commonwealth agency's integrity and anti-corruption
9
plan, together with (for a Commonwealth entity) any audit
10
committee comments or reports relating to its preparation or
11
monitoring, is to be provided by the head of the agency on request
12
by the National Integrity Commissioner.
13
(2) The head of a Commonwealth agency, including at the
14
recommendation of an audit committee, may request the National
15
Integrity Commissioner to review the agency's integrity and
16
anti-corruption plan or advise on its preparation.
17
(3) The National Integrity Commissioner may provide comments to
18
the head of the Commonwealth agency, designed to strengthen the
19
agency's integrity and anti-corruption plan.
20
(4) Despite any other provision of this Act, the National Integrity
21
Commissioner may publish a Commonwealth agency's integrity
22
and anti-corruption plan, in part or whole, together with any
23
comments, if satisfied it is in the public interest to do so.
24
23 Consideration of adequacy of plans
25
(1) This section applies to any report of an investigation or public
26
inquiry under section 56 or section 70, or any special report under
27
section 234, which identifies that a corruption issue arose in
28
respect of any particular Commonwealth agency or agencies.
29
(2) In preparing the report, the National Integrity Commissioner must
30
consider, address and, where relevant, report upon:
31
(a) whether the agency had in place an integrity and
32
anti-corruption plan;
33
Corruption prevention, research and coordination Part 3
Commonwealth integrity and anti-corruption plans Division 2
Section 23
No. , 2018
National Integrity Commission Bill 2018
35
(b) the adequacy of the integrity and anti-corruption plan;
1
(c) recommendations for the improvement of the agency's
2
integrity and anti-corruption plan, or the integrity and
3
anti-corruption plans of other agencies or in general; and
4
(d) whether there were any failures to implement the integrity
5
and anti-corruption plan, or to prevent corrupt conduct, and,
6
if so, the nature of and reasons for those failures.
7
Part 3 Corruption prevention, research and coordination
Division 3 Corruption prevention inquiries
Section 24
36
National Integrity Commission Bill 2018
No. , 2018
Division 3--Corruption prevention inquiries
1
24 National Integrity Commissioner may conduct inquiries
2
(1) The National Integrity Commissioner may conduct a public inquiry
3
for the purposes of identifying changes in laws, practices or
4
procedures which the National Integrity Commissioner thinks
5
necessary to promote integrity and reduce the likelihood of the
6
occurrence of corrupt conduct.
7
(2) An inquiry under this Division may be undertaken on the National
8
Integrity Commissioner's own initiative, or at the request of the
9
Minister or either House of the Parliament.
10
25 Scope and powers of inquiries
11
(1) An inquiry under this Division may concern laws, practices or
12
procedures relating to any of the following:
13
(a) the integrity of public officials;
14
(b) corruption or prevention of corruption generally in
15
Commonwealth agencies;
16
(c) corruption generally, or the prevention of corruption, in or
17
affecting Australia.
18
(2) An inquiry under this Division may concern such issues as the
19
National Integrity Commissioner deems relevant for the purposes
20
of subsection (1), whether those issues arose before or after the
21
commencement of this section.
22
(3) An inquiry under this Division may review and make general
23
recommendations about practices, procedures and standards in
24
relation to integrity, propriety, ethics, and the prevention of
25
corruption, in any of the following:
26
(a) Commonwealth agencies;
27
(b) government generally;
28
(c) other institutions or bodies in Australia;
29
(d) the community at large.
30
Corruption prevention, research and coordination Part 3
Corruption prevention inquiries Division 3
Section 26
No. , 2018
National Integrity Commission Bill 2018
37
(4) An inquiry under this Division is to be conducted as a public
1
inquiry under Division 3 of Part 5 of this Act.
2
26 Reports of inquiries
3
(1) A report of an inquiry under this Division is to be prepared in
4
accordance with Division 4 of Part 5 of this Act.
5
(2) A report may include such recommendations, to any person, as the
6
National Integrity Commissioner sees fit.
7
(3) Without limiting subsection (2), a report may include
8
recommendations to the Parliament about the need for or the
9
desirability of legislative or administrative action on any issues in
10
relation to:
11
(a) the integrity of public officials; or
12
(b) corruption generally in Commonwealth agencies; or
13
(c) corruption generally in or affecting Australia;
14
whether those issues arose before or after the commencement of
15
this section;
16
Part 3 Corruption prevention, research and coordination
Division 4 Education, training and advice
Section 27
38
National Integrity Commission Bill 2018
No. , 2018
Division 4--Education, training and advice
1
27 Agency heads to provide training
2
The head of each Commonwealth agency is to ensure that officers
3
of the agency are given appropriate education and training relating
4
to ethical conduct, corruption risk and the prevention of corrupt
5
conduct, including any obligations arising under this Act.
6
28 Role of National Integrity Commissioner
7
(1) The National Integrity Commissioner will develop and implement
8
a strategy for how the Commission can best lead, facilitate and
9
support the training and education of, and provision of advice to,
10
the public sector and the community about the consequences and
11
prevention of corruption.
12
(2) The National Integrity Commissioner will assist the heads of
13
Commonwealth agencies in ensuring that officers are given
14
appropriate education and training under section 27.
15
(3) The National Integrity Commissioner may enter into contracts,
16
agreements and partnerships with other entities to support the
17
Commission's training, education and advice functions.
18
(4) In developing and implementing the strategy under subsection (1),
19
the National Integrity Commissioner will consult with:
20
(a) the Australian Public Service Commission;
21
(b) the Merit Protection Commissioner;
22
(c) the Commonwealth Ombudsman; and
23
(d) such other agencies or bodies as the National Integrity
24
Commissioner sees fit.
25
Corruption prevention, research and coordination Part 3
Research and intelligence Division 5
Section 29
No. , 2018
National Integrity Commission Bill 2018
39
Division 5--Research and intelligence
1
29 Research functions
2
(1) The National Integrity Commissioner will develop and implement
3
a strategy for research to support the performance of the
4
Commission's functions.
5
(2) The research strategy may include research into any of the
6
following:
7
(a) the promotion of integrity and ethical conduct;
8
(b) individual and organisational behaviour related to integrity
9
and ethical conduct;
10
(c) the incidence and prevention of corruption;
11
(d) detection and investigatory processes relating to corruption;
12
(e) factors giving rise, and factors influencing responses, to
13
corruption issues among Commonwealth agencies;
14
(f) continuous improvement in responses to corruption;
15
(g) any other matter relating to the promotion of integrity or the
16
prevention and eradication of corruption.
17
30 Research strategy--consultation and implementation
18
(1) In developing and implementing the research strategy under
19
section 29, the National Integrity Commissioner will consult with:
20
(a) the Australian Institute of Criminology;
21
(b) the Australian Crime Commission;
22
(c) such other agencies or bodies as the National Integrity
23
Commissioner sees fit.
24
(2) The Minister may make suggestions to the National Integrity
25
Commissioner regarding issues suitable for inclusion in the
26
Commission's research strategy.
27
(3) The National Integrity Commissioner may enter into contracts,
28
agreements and partnerships with other entities to support the
29
Commission's research functions.
30
Part 3 Corruption prevention, research and coordination
Division 5 Research and intelligence
Section 31
40
National Integrity Commission Bill 2018
No. , 2018
31 Relationship between research and operations
1
In developing and implementing the research strategy under
2
section 29, the National Integrity Commissioner will give priority
3
to research which:
4
(a) assists the Commission in identifying and dealing with
5
specific corruption issues among Commonwealth agencies,
6
including areas of corruption risk to be addressed by the
7
Commission; and
8
(b) applies, includes and makes use of the Commission's
9
experience in dealing with specific corruption issues among
10
Commonwealth agencies, including information (including
11
records and statistics) arising from enquiries, referrals or
12
investigations relating to corruption issues.
13
Corruption prevention, research and coordination Part 3
Commonwealth cooperation and coordination Division 6
Section 32
No. , 2018
National Integrity Commission Bill 2018
41
Division 6--Commonwealth cooperation and coordination
1
32 Principles of operation of National Integrity Commission
2
The National Integrity Commissioner, Whistleblower Protection
3
Commissioner and Law Enforcement Integrity Commissioner will
4
exercise their functions and powers in such a way as to:
5
(a) work cooperatively with other Commonwealth agencies
6
responsible for integrity, ethics and the prevention of or
7
responses to corruption, including parliamentary officers and
8
agencies; and
9
(b) improve the capacity of Commonwealth agencies to prevent
10
and respond to corruption issues; and
11
(c) not duplicate or interfere with work that it considers has been
12
undertaken or is being undertaken appropriately by a
13
Commonwealth agency.
14
33 Cooperation and coordination with other Commonwealth
15
agencies
16
(1) This section applies to any Commonwealth agency with
17
responsibility for integrity, ethics or the prevention of, or responses
18
to, corruption in Commonwealth public administration, including
19
the agencies listed in subsection 34(2).
20
(2) The National Integrity Commissioner will facilitate cooperation
21
and coordination among agencies to whom this section applies, and
22
between any and all of those agencies and the Commission.
23
(3) In facilitating cooperation and coordination under subsection (2), it
24
will be the objective of the National Integrity Commissioner to
25
ensure a comprehensive, efficient, nationally coordinated approach
26
to the prevention, detection, reduction and remediation of
27
corruption in Commonwealth public administration.
28
(4) Despite any other Act, any agency to which this section applies
29
may:
30
Part 3 Corruption prevention, research and coordination
Division 6 Commonwealth cooperation and coordination
Section 34
42
National Integrity Commission Bill 2018
No. , 2018
(a) exchange any information relating to the promotion of
1
integrity, or to preventing or responding to corruption, with
2
any other agency to whom this section applies; and
3
(b) engage in joint activities, projects or operations relating to
4
the promotion of integrity, or to preventing or responding to
5
corruption, with any other agency to which this section
6
applies.
7
34 Commonwealth Integrity Coordination Committee
8
(1) The Commonwealth Integrity Coordination Committee is
9
established by this section.
10
(2) The Commonwealth Integrity Coordination Committee consists of
11
the persons who, from time to time, hold the following offices:
12
(a) Commonwealth Ombudsman;
13
(b) Australian Information Commissioner;
14
(c) Auditor-General;
15
(d) Australian Public Service Commissioner;
16
(e) Merit Protection Commissioner;
17
(f) Australian Electoral Commissioner;
18
(g) Inspector-General of Taxation;
19
(h) Inspector-General of Intelligence and Security;
20
(i) Australian Federal Police Commissioner;
21
(j) CEO of the Australian Crime Commission;
22
(k) CEO of the Independent Parliamentary Expenses Authority;
23
(l) Parliamentary Standards Commissioner;
24
(m) Secretary of the Attorney-General's Department;
25
(n) Law Enforcement Integrity Commissioner;
26
(o) Whistleblower Protection Commissioner;
27
(p) National Integrity Commissioner;
28
(q) any other office that, in the opinion of the National Integrity
29
Commissioner, has significant responsibility for integrity,
30
ethics or the prevention of, or responses to, corruption in
31
Commonwealth public administration.
32
(3) The Committee will be chaired by:
33
Corruption prevention, research and coordination Part 3
Commonwealth cooperation and coordination Division 6
Section 35
No. , 2018
National Integrity Commission Bill 2018
43
(a) a member of the Committee as agreed by the members of the
1
Committee from time to time; or
2
(b) if, no other member is agreed under paragraph (a), the
3
National Integrity Commissioner.
4
(3) The Committee will meet no less than twice in any calendar year.
5
35 Functions of the Commonwealth Integrity Coordination
6
Committee
7
The Commonwealth Integrity Coordination Committee has the
8
following functions:
9
(a) to foster cooperation and coordination between the members
10
of the Committee and their respective agencies;
11
(b) to facilitate the exchange of information between agencies in
12
performance of their functions;
13
(c) to develop common and consistent definitions, language and
14
promotional and educational materials relating to integrity
15
and anti-corruption in Commonwealth administration;
16
(d) to provide a forum for consultation on the development of
17
Rules, standards or guidance to be developed by the National
18
Integrity Commissioner, Whistleblower Protection
19
Commissioner or any other member agency;
20
(e) to provide a forum for consultation on the research,
21
education, training or advice strategies of the National
22
Integrity Commissioner or any other member agency;
23
(f) to identify priority areas of corruption risk for the
24
Commonwealth, or priority areas or opportunities for the
25
promotion of integrity and prevention of corruption;
26
(g) to identify and support joint activities, projects, initiatives or
27
operations relating to integrity and anti-corruption in
28
Commonwealth administration;
29
(h) to develop common strategies for engaging and
30
communicating with Commonwealth agencies and the wider
31
community on issues relating to integrity and anti-corruption
32
in Commonwealth administration;
33
(i) to consult and provide advice to Government or the
34
Parliament on issues of law, practice or procedure relating to
35
Part 3 Corruption prevention, research and coordination
Division 6 Commonwealth cooperation and coordination
Section 35
44
National Integrity Commission Bill 2018
No. , 2018
integrity and anti-corruption in Commonwealth
1
administration;
2
(j) to do anything incidental to or conducive to the performance
3
of the above functions.
4
Corruption prevention, research and coordination Part 3
National cooperation and coordination Division 7
Section 36
No. , 2018
National Integrity Commission Bill 2018
45
Division 7--National cooperation and coordination
1
36 Role of the National Integrity Commissioner
2
(1) It is the duty of the National Integrity Commissioner to:
3
(a) promote and assist in a comprehensive, efficient, nationally
4
coordinated approach to the prevention, detection, reduction
5
and remediation of corruption in:
6
(i) Australia generally; and
7
(ii) Australia's relations with other countries; and
8
(b) assist in the cooperative implementation of Australia's
9
international anti-corruption responsibilities, including under
10
the United Nations Convention Against Corruption (2005).
11
(2) In fulfilling their duty under subsection (1), the National Integrity
12
Commissioner may undertake research or initiatives about, or have
13
regard, express opinions, provide advice or make recommendations
14
relating to:
15
(a) corruption and its prevention in Commonwealth public
16
administration; or
17
(b) corruption and its prevention in government generally in
18
Australia; or
19
(c) issues relating to corruption and its prevention in business or
20
the wider community in Australia; or
21
(d) issues among other countries relating to corruption and
22
prevention, that affect, or may affect, Australia.
23
(3) In fulfilling their duty under subsection (1), the National Integrity
24
Commissioner will give priority to:
25
(a) their role in preparation of the National Integrity and
26
Anti-Corruption Plan under section 37; and
27
(b) their role in assisting the implementation of the National
28
Integrity and Anti-Corruption Plan.
29
Part 3 Corruption prevention, research and coordination
Division 7 National cooperation and coordination
Section 37
46
National Integrity Commission Bill 2018
No. , 2018
37 National Integrity and Anti-corruption Plan
1
(1) The Minister is to publish a National Integrity and Anti-corruption
2
Plan no less frequently than every 4 years, covering at least the
3
next 4-year period.
4
Note:
The first National Integrity and Anti-corruption Plan is to be published
5
within 2 years of the commencement of this Part.
6
(2) The National Integrity and Anti-corruption Plan must include the
7
following:
8
(a) identification of key corruption threats and related risks to
9
integrity affecting, or likely to affect, Commonwealth public
10
administration;
11
Note:
Threats and risk factors may include, but is not limited to: organised
12
crime; influence peddling; political lobbying; internal fraud, external
13
collusion, solicitation and bribery; maladministration, malfeasance
14
and misconduct.
15
(b) identification of key corruption threats and related risks to
16
integrity affecting, or likely to affect, Australia generally;
17
(c) key mechanisms in place and any additional measures
18
planned to mitigate corruption threats and risks to integrity;
19
(d) the role of business and the wider community in promoting
20
integrity and combatting corruption in Australia;
21
(e) the role of the States and Territories in promoting integrity
22
and combatting corruption in Australia;
23
(f) priority areas for Commonwealth reform or action to promote
24
integrity and combat corruption;
25
(g) key actions to be undertaken or recommended to be
26
undertaken to promote integrity and combat corruption,
27
including a timetable and parties responsible for those
28
actions;
29
(h) any other items specified in the Rules.
30
(3) The National Integrity and Anti-corruption Plan must include an
31
assessment and recommendations regarding the adequacy of
32
strategies to counter risks to integrity in high-risk areas of
33
Commonwealth public administration, including the following:
34
(a) major procurement and capital works;
35
(b) the allocation of grants and subsidies;
36
Corruption prevention, research and coordination Part 3
National cooperation and coordination Division 7
Section 38
No. , 2018
National Integrity Commission Bill 2018
47
(c) enforcement of the criminal law;
1
(d) regulatory enforcement of industry and commerce;
2
(e) border crime and transboundary corruption;
3
(f) elections;
4
(g) any other item specified in the Rules;
5
(h) any other area considered relevant for inclusion by the
6
Minister.
7
(4) The National Integrity and Anti-corruption Plan must also consider
8
appropriate measures to ensure continual improvement in the
9
facilitation and protection of whistleblowers.
10
38 Preparation of plan
11
(1) In preparing the National Integrity and Anti-Corruption Plan, the
12
Minister is to consult and have regard to the views of the
13
following:
14
(a) the National Integrity Commissioner;
15
(b) the members of the Commonwealth Integrity Coordination
16
Committee established by section 34;
17
(c) the members of the National Integrity and Anti-Corruption
18
Advisory Committee established by section 40;
19
(d) such other persons as the Minister sees fit.
20
(2) In preparing the plan, the Minister will request the National
21
Integrity Commissioner to:
22
(a) comment on a first draft of the plan;
23
(b) contribute research to the development of the plan;
24
(c) comment on the final draft of the plan prior to its adoption by
25
the Minister.
26
(1) The Minister must not publish a plan unless it has been prepared
27
following a period of public consultation.
28
39 Examination of plan
29
The Parliamentary Joint Committee is to inquire into each National
30
Integrity and Anti-Corruption Plan, and report to both houses on
31
Part 3 Corruption prevention, research and coordination
Division 7 National cooperation and coordination
Section 40
48
National Integrity Commission Bill 2018
No. , 2018
any matters it sees fit within 18 months of publication of the
1
National Integrity and Anti-Corruption Plan by the Minister.
2
40 National Integrity and Anti-Corruption Advisory Committee
3
(1) The National Integrity and Anti-Corruption Advisory Committee is
4
established by this section.
5
(2) The National Integrity and Anti-Corruption Advisory Committee
6
consists of the following:
7
(a) the persons who, from time to time, hold the following
8
offices:
9
(i) Secretary of the Department administered by the
10
Attorney-General;
11
(ii) National Integrity Commissioner;
12
(iii) Australian Federal Police Commissioner;
13
(iv) CEO of the Australian Crime Commission;
14
(v) Chairperson of the Australian Securities and
15
Investments Commission;
16
(vi) Chairperson of the Australian Competition and
17
Consumer Commission.
18
(b) at least 3 representatives of State or Territory agencies with
19
significant responsibility for integrity, ethics or the
20
prevention of, or responses to, corruption;
21
(c) at least 2 representatives of civil society organisations
22
concerned with integrity, ethics or the prevention of, or
23
responses to, corruption;
24
(d) at least 2 representatives of business organisations concerned
25
with integrity, ethics or the prevention of, or responses to,
26
corruption;
27
(e) at least 2 persons with independent specialist expertise in
28
integrity, ethics or the prevention of, or responses to,
29
corruption;
30
(f) such other persons that, in the opinion of the Minister, can
31
contribute to the development of the National Integrity and
32
Anti-Corruption Plan.
33
Corruption prevention, research and coordination Part 3
National cooperation and coordination Division 7
Section 41
No. , 2018
National Integrity Commission Bill 2018
49
(2) The Committee is to be chaired by the Secretary of the
1
Attorney-General's Department.
2
(3) The Committee will meet no less than twice in any calendar year.
3
41 Functions of the advisory committee
4
The National Integrity and Anti-corruption Advisory Committee
5
has the following functions:
6
(a) to foster cooperation and coordination between the members
7
of the Committee and their respective agencies and
8
organisations, and other organisations;
9
(b) to facilitate the exchange of information between agencies in
10
performance of their functions;
11
(c) to provide a forum for consultation on the research,
12
education, training or advice strategies of the National
13
Integrity Commissioner or any other member agency;
14
(d) to identify priority areas of corruption risk for Australia, or
15
priority areas or opportunities for the promotion of integrity
16
and prevention of corruption;
17
(e) to identify and support joint activities, projects, initiatives or
18
operations relating to integrity and anti-corruption in
19
Australia;
20
(f) to provide a forum for consultation on the development of the
21
National Integrity and Anti-Corruption Plan;
22
(g) to do anything incidental to or conducive to the performance
23
of the above functions.
24
Part 4 Dealing with corruption issues
Division 1 Referring corruption issues to National Integrity Commissioner
Section 42
50
National Integrity Commission Bill 2018
No. , 2018
Part 4--Dealing with corruption issues
1
Division 1--Referring corruption issues to National
2
Integrity Commissioner
3
42 Referral of corruption issues
4
(1) A person may refer to the National Integrity Commissioner under
5
this section an allegation, or information, that raises a corruption
6
issue.
7
(2) Without limiting subsection (1):
8
(a) the person may refer the allegation or information on behalf
9
of:
10
(i) another person; or
11
(ii) a Commonwealth agency; or
12
(iii) a body or association of persons; and
13
(b) the person may refer the allegation or information
14
anonymously; and
15
(c) the person may refer the allegation or information either
16
orally or in writing.
17
(3) If the person refers the allegation or information orally, the
18
National Integrity Commissioner may require the person to put the
19
allegation or the information in writing.
20
(4) If the person is asked to put the allegation or information in writing
21
under subsection (3), the National Integrity Commissioner may
22
refuse to investigate the corruption issue that the allegation or
23
information raises, or to investigate the corruption issue further,
24
until the allegation or information is put in writing.
25
(5) If the Ombudsman:
26
(a) decides, under subsection 6(15A) of the Ombudsman Act
27
1976, to refer an allegation or information to the National
28
Integrity Commissioner; or
29
Dealing with corruption issues Part 4
Referring corruption issues to National Integrity Commissioner Division 1
Section 43
No. , 2018
National Integrity Commission Bill 2018
51
(b) is required, under subsection 6(15B) of that Act, to refer an
1
allegation or information to the National Integrity
2
Commissioner;
3
the person who referred the allegation or information to the
4
Ombudsman is taken to have referred the allegation or information
5
to the National Integrity Commissioner under this section.
6
43 Referral under section 42 by person in custody
7
Application of section
8
(1) This section applies if a person who is detained in custody (the
9
prisoner) wishes to refer an allegation or information to the
10
National Integrity Commissioner under section 42.
11
(2) A reference in this section to a custodian is a reference to:
12
(a) the person in whose custody the prisoner is detained; or
13
(b) any other person performing duties in connection with the
14
prisoner's detention.
15
Facilities to be provided for communicating with Integrity
16
Commissioner
17
(3) The prisoner is entitled to be provided with facilities for:
18
(a) preparing a written record of the allegation or information;
19
and
20
(b) for enclosing that written record in a sealed envelope;
21
if the prisoner requests a custodian to have those facilities
22
provided.
23
(4) The prisoner is entitled to have sent to the National Integrity
24
Commissioner, without undue delay, a sealed envelope that is:
25
(a) delivered by the prisoner to a custodian; and
26
(b) addressed to the National Integrity Commissioner;
27
if the prisoner requests a custodian to have the envelope sent to the
28
National Integrity Commissioner.
29
(5) The prisoner is entitled to have delivered to the prisoner, without
30
undue delay, any sealed envelope that:
31
Part 4 Dealing with corruption issues
Division 1 Referring corruption issues to National Integrity Commissioner
Section 44
52
National Integrity Commission Bill 2018
No. , 2018
(a) is addressed to the prisoner; and
1
(b) is sent by the National Integrity Commissioner; and
2
(c) comes into the possession, or under the control, of a
3
custodian.
4
Dealing with communications between prisoner and Integrity
5
Commissioner
6
(6) If:
7
(a) the prisoner delivers to a custodian a sealed envelope
8
addressed to the National Integrity Commissioner for sending
9
to the National Integrity Commissioner; or
10
(b) a sealed envelope addressed to the prisoner and sent by the
11
National Integrity Commissioner comes into the possession,
12
or under the control, of a custodian;
13
neither that custodian, nor any other custodian, is entitled to open
14
the envelope or to inspect any document enclosed in the envelope.
15
Arrangements with State and Territory prison authorities
16
(7) For the purposes of this section, the National Integrity
17
Commissioner may make arrangements with the appropriate
18
authority of a State or a Territory for the identification and delivery
19
of sealed envelopes sent by the National Integrity Commissioner to
20
persons detained in custody in that State or Territory.
21
44 Public officials must refer corruption issues
22
(1) As soon as practicable after a public official becomes aware of an
23
allegation, or information, that raises a corruption issue, the public
24
official must:
25
(a) refer the allegation or information to the National Integrity
26
Commissioner under section 42; or
27
(b) if the public official is an employee of a Commonwealth
28
agency other than the head of the agency--notify the head of
29
the agency of the allegation or information.
30
Note:
The head of a Commonwealth agency is a public official.
31
(2) Subsection (1) does not apply if the public official:
32
Dealing with corruption issues Part 4
Referring corruption issues to National Integrity Commissioner Division 1
Section 45
No. , 2018
National Integrity Commission Bill 2018
53
(a) has already taken action referred to in subsection (1) in
1
relation to the allegation or information; or
2
(b) has reasonable grounds to believe that the National Integrity
3
Commissioner is already aware of the allegation or
4
information.
5
(3) Action taken under subsection (1) by the head of a Commonwealth
6
agency must be taken in accordance with any direction, guidance
7
or agreement under section 45 that applies to the agency.
8
45 National Integrity Commissioner may enter into agreements etc.
9
with head of Commonwealth agency
10
(1) The National Integrity Commissioner may issue directions or
11
guidance to, or enter into an agreement with, the head of a
12
Commonwealth agency in relation to either or both of the
13
following matters:
14
(a) the level of detail required to refer an allegation or
15
information to the National Integrity Commissioner;
16
(b) the way in which information or documents in relation to an
17
allegation or information may be given to the National
18
Integrity Commissioner (whether for the purpose of referring
19
an allegation or information to the National Integrity
20
Commissioner or otherwise).
21
(2) The National Integrity Commissioner may revoke the direction,
22
guidance or agreement by written notice given to the head of the
23
agency. The revocation takes effect on a day specified in the
24
notice, which must be at least 14 days after the day it is given.
25
(3) Without limiting subsection (1), the direction, guidance or
26
agreement may set out how it may be varied and other ways how it
27
may be revoked.
28
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 46
54
National Integrity Commission Bill 2018
No. , 2018
Division 2--How National Integrity Commissioner deals
1
with corruption issues
2
Subdivision A--General
3
46 How National Integrity Commissioner may deal with corruption
4
issues
5
(1) The National Integrity Commissioner may deal with a corruption
6
issue in any of the following ways:
7
(a) by investigating the corruption issue;
8
(b) if the corruption issue relates to a Commonwealth agency--
9
by referring the corruption issue to the agency for
10
investigation and:
11
(i) managing the investigation; or
12
(ii) overseeing the investigation; or
13
(iii) neither managing nor overseeing the investigation;
14
(c) if the corruption issue relates to a Commonwealth agency
15
that is not the AFP--by referring the corruption issue to the
16
AFP for investigation and:
17
(i) managing the investigation; or
18
(ii) overseeing the investigation; or
19
(iii) neither managing nor overseeing the investigation;
20
(d) by managing an investigation of the corruption issue that is
21
being conducted by a Commonwealth agency;
22
(e) by overseeing an investigation of the corruption issue that is
23
being conducted by a Commonwealth agency.
24
(2) The National Integrity Commissioner may investigate the
25
corruption issue under paragraph (1)(a) either alone or jointly with
26
another government agency with appropriate functions or powers
27
for the purpose.
28
(3) Subsections (1) and (2) have effect subject to section 47.
29
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 47
No. , 2018
National Integrity Commission Bill 2018
55
47 Alleged contraventions of the National Integrity (Parliamentary
1
Standards) Act 2018
2
(1) This section applies if:
3
(a) a corruption issue involves an alleged contravention of the
4
National Integrity (Parliamentary Standards) Act 2018; and
5
(b) the corruption issue was not referred to the National Integrity
6
Commissioner by the Parliamentary Standards
7
Commissioner.
8
(2) The National Integrity Commissioner must refer the corruption
9
issue to the Parliamentary Standards Commissioner in accordance
10
with paragraph 46(1)(b)(iii), unless the National Integrity
11
Commissioner considers that exceptional circumstances apply in
12
relation to the corruption issue.
13
(3) Without limiting subsection (2), the National Integrity
14
Commissioner may consider that exceptional circumstances apply
15
in relation to the corruption issue if the National Integrity
16
Commissioner is satisfied that:
17
(a) referring the corruption issue to the Parliamentary Standards
18
Commissioner is likely to prejudice:
19
(i) the investigation of the corruption issue or another
20
corruption investigation; or
21
(ii) protection of the identity or confidentiality of any
22
person who referred or provided information in relation
23
to the corruption issue, or protection of such a person
24
from reprisal or detrimental action; or
25
(iii) any action taken as a result of an investigation referred
26
to in paragraph (a); or
27
(b) the corruption issue involves serious corrupt conduct or
28
systemic corrupt conduct.
29
(4) In deciding whether exceptional circumstances apply in relation to
30
the corruption issue, the National Integrity Commissioner may
31
obtain advice from the Parliamentary Standards Commissioner.
32
(5) To avoid doubt, the National Integrity Commissioner must have
33
regard to the criteria in section 48:
34
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 48
56
National Integrity Commission Bill 2018
No. , 2018
(a) in deciding whether the corruption issue must be referred to
1
the Parliamentary Standards Commissioner in accordance
2
with this section; and
3
(b) if the National Integrity Commissioner decides that
4
exceptional circumstances apply in relation to the corruption
5
issue--in deciding to deal with the corruption issue in
6
accordance with another one of the ways referred to in
7
subsection 46(1).
8
48 Criteria for deciding how to deal with a corruption issue
9
(1) The National Integrity Commissioner must have regard to the
10
matters set out in subsection (2) in deciding:
11
(a) how to deal with a corruption issue; or
12
(b) whether to take no further action in relation to a corruption
13
issue.
14
(2) The matters to which the National Integrity Commissioner must
15
have regard are the following:
16
(a) the need to ensure that the corruption issue is fully
17
investigated;
18
(b) the rights and obligations of any other agency to investigate
19
the corruption issue;
20
(c) the rights and obligations of any person who refers or
21
provides information in relation to the corruption issue,
22
including any need to protect the person's identity or
23
confidentiality or to protect the person from reprisal or
24
detrimental action;
25
(d) if a joint investigation of the corruption issue by the National
26
Integrity Commissioner and another agency is being
27
considered--the extent to which the other agency is able to
28
cooperate in the investigation;
29
(e) the resources that are available to any other agency to
30
investigate the corruption issue;
31
(f) the need to ensure a balance between:
32
(i) the National Integrity Commissioner's role in dealing
33
with corruption issues (particularly in dealing with
34
significant corruption issues); and
35
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 49
No. , 2018
National Integrity Commission Bill 2018
57
(ii) ensuring that the heads of Commonwealth agencies take
1
responsibility for managing their agencies;
2
(g) the likely significance of the corruption issue for any agency
3
and for the Commonwealth.
4
(3) Subsection (2) does not limit the matters to which the National
5
Integrity Commissioner may have regard.
6
49 Dealing with multiple corruption issues
7
(1) The National Integrity Commissioner may, in the National
8
Integrity Commissioner's discretion, deal with a number of
9
corruption issues together (whether or not they are raised by the
10
same allegation or information).
11
(2) Without limiting subsection (1), if an allegation, or information,
12
raises a number of corruption issues, the National Integrity
13
Commissioner:
14
(a) may deal with some or all of those corruption issues together;
15
and
16
(b) may deal with some or all of those corruption issues
17
separately.
18
(3) Without limiting subsection (1), the National Integrity
19
Commissioner may prepare a single report in relation to a number
20
of corruption issues.
21
Subdivision B--National Integrity Commissioner dealing with
22
referred corruption issues
23
50 National Integrity Commissioner must make a decision
24
(1) If an allegation, or information, that raises a corruption issue is
25
referred to the National Integrity Commissioner under section 42,
26
the National Integrity Commissioner must decide:
27
(a) to deal with the corruption issue in one of the ways referred
28
to in subsection 46(1); or
29
(b) to take no further action in relation to the corruption issue.
30
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 50
58
National Integrity Commission Bill 2018
No. , 2018
Requesting information to assist in making the decision
1
(2) For the purposes of making a decision under subsection (1), the
2
National Integrity Commissioner may request the head of any
3
Commonwealth agency to give the National Integrity
4
Commissioner the information specified in the request.
5
(3) The head of the Commonwealth agency must comply with the
6
request.
7
(4) Subsection (3) does not limit the information to which the National
8
Integrity Commissioner may have regard in making a decision
9
under subsection (1).
10
Direction not to investigate
11
(5) If the corruption issue relates to a Commonwealth agency and the
12
National Integrity Commissioner decides to deal with the
13
corruption issue in one of the ways referred to in subsection 46(1),
14
the National Integrity Commissioner may direct the head of the
15
agency that the agency is not to investigate the corruption issue.
16
(6) If a direction under subsection (5) is given in writing, the direction
17
is not a legislative instrument.
18
Deciding to take no further action
19
(7) The National Integrity Commissioner may decide under
20
subsection (1) to take no further action in relation to the corruption
21
issue only if the National Integrity Commissioner is satisfied that:
22
(a) the corruption issue is already being, or will be, investigated
23
by another Commonwealth agency; or
24
(b) the referral of the allegation, or information, that raises the
25
corruption issue is frivolous or vexatious; or
26
(c) the corrupt conduct to which the corruption issue relates has
27
been, is or will be, the subject of proceedings before a court;
28
or
29
(d) investigation of the corruption issue is not warranted having
30
regard to all the circumstances.
31
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 51
No. , 2018
National Integrity Commission Bill 2018
59
(8) If the corruption issue relates to a Commonwealth agency, the
1
National Integrity Commissioner must advise the head of the
2
agency of a decision under subsection (1) to take no further action
3
in relation to the corruption issue. That advice must be given:
4
(a) in writing; and
5
(b) as soon as reasonably practicable after the decision is made.
6
(9) This Act continues to apply to the head of a Commonwealth
7
agency given advice under subsection (8), in relation to the
8
corruption issue unless the National Integrity Commissioner
9
advises otherwise:
10
(a) in the advice given under subsection (8); or
11
(b) in a later written advice given to the head of that agency.
12
51 Advising person who refers corruption issue of decision about
13
how to deal with corruption issue
14
The National Integrity Commissioner may advise a person (or a
15
representative nominated by the person) of:
16
(a) the National Integrity Commissioner's decision under
17
section 50 in relation to a corruption issue raised by the
18
person in a referral under section 46; and
19
(b) any decision the National Integrity Commissioner makes
20
under section 56 on a reconsideration of how the corruption
21
issue should be dealt with.
22
52 Advising person to whom referred corruption issue relates of
23
decision about how to deal with corruption issue
24
If the National Integrity Commissioner makes a decision under
25
section 50 in relation to a referred corruption issue that relates to a
26
person, the National Integrity Commissioner may advise the person
27
of the National Integrity Commissioner's decision.
28
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 53
60
National Integrity Commission Bill 2018
No. , 2018
Subdivision C--National Integrity Commissioner dealing with
1
corruption issues on own initiative
2
53 National Integrity Commissioner may deal with corruption issues
3
on own initiative
4
National Integrity Commissioner may decide to deal with a
5
corruption issue
6
(1) If the National Integrity Commissioner becomes aware of an
7
allegation, or information, that raises a corruption issue, the
8
National Integrity Commissioner may, on the National Integrity
9
Commissioner's own initiative, deal with the corruption issue in
10
one of the ways referred to in subsection 46(1).
11
(2) Subsection (1) does not apply if the National Integrity
12
Commissioner becomes aware of the allegation or information
13
because of action taken under Division 1 of this Part.
14
Requesting information to assist in making the decision
15
(3) For the purposes of making a decision under subsection (1), the
16
National Integrity Commissioner may request the head of any
17
Commonwealth agency to give the National Integrity
18
Commissioner the information specified in the request.
19
(4) The head of the Commonwealth agency must comply with the
20
request.
21
(5) Subsection (3) does not limit the information to which the National
22
Integrity Commissioner may have regard in making a decision
23
under subsection (1).
24
Direction not to investigate
25
(6) If the corruption issue relates to a Commonwealth agency and the
26
National Integrity Commissioner decides to deal with the
27
corruption issue in one of the ways referred to in subsection 46(1),
28
the National Integrity Commissioner may direct the head of the
29
agency that the agency is not to investigate the corruption issue.
30
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 54
No. , 2018
National Integrity Commission Bill 2018
61
(7) If a direction under subsection (6) is given in writing, the direction
1
is not a legislative instrument.
2
Becoming aware of another corruption issue
3
(8) Without limiting subsection (1), if the National Integrity
4
Commissioner:
5
(a) is investigating, or inquiring into, a particular corruption
6
issue; and
7
(b) in the course of doing so, becomes aware of an allegation, or
8
information, that raises another corruption issue;
9
the National Integrity Commissioner may deal with that other
10
corruption issue in one of the ways referred to in subsection 46(1).
11
54 Advising head of Commonwealth agency of decision to deal with
12
corruption issue on own initiative
13
Application of section
14
(1) This section applies if:
15
(a) the National Integrity Commissioner decides, on the National
16
Integrity Commissioner's own initiative, to deal with a
17
corruption issue in one of the ways referred to in
18
subsection 46(1); and
19
(b) the corruption issue relates to the conduct of a person who is
20
an employee of a Commonwealth agency (other than the
21
head of the agency).
22
Advising head of Commonwealth agency
23
(2) The National Integrity Commissioner must advise the head of that
24
Commonwealth agency of:
25
(a) the National Integrity Commissioner's decision to deal with
26
the corruption issue in that way; and
27
(b) any decision the National Integrity Commissioner makes
28
under section 56 on a reconsideration of how the corruption
29
issue should be dealt with.
30
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 55
62
National Integrity Commission Bill 2018
No. , 2018
Form and timing of advice
1
(3) The National Integrity Commissioner must advise the head of the
2
Commonwealth agency of the decision:
3
(a) in writing; and
4
(b) as soon as reasonably practicable after the decision is made.
5
Exception
6
(4) However, the National Integrity Commissioner need not advise the
7
head of the Commonwealth agency if doing so would be likely to
8
prejudice:
9
(a) the investigation of the corruption issue or another corruption
10
investigation; or
11
(b) any action taken as a result of an investigation referred to in
12
paragraph (a).
13
55 Advising person of decision to deal with corruption issue on own
14
initiative
15
If:
16
(a) the National Integrity Commissioner decides, on the National
17
Integrity Commissioner's own initiative, to deal with a
18
corruption issue in one of the ways referred to in
19
subsection 46(1); and
20
(b) the corruption issue relates to a person who is, or has been, a
21
public official;
22
the National Integrity Commissioner may advise the person of:
23
(c) the National Integrity Commissioner's decision to deal with
24
the corruption issue in that way; and
25
(d) any decision the National Integrity Commissioner makes
26
under section 56 on a reconsideration of how the corruption
27
issue should be dealt with.
28
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 56
No. , 2018
National Integrity Commission Bill 2018
63
Subdivision D--Reconsidering how to deal with a corruption
1
issue
2
56 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 in one of the
7
ways referred to in subsection 46(1)--decide to deal with the
8
corruption issue in accordance with one of the ways referred
9
to in that subsection; or
10
(b) if the corruption issue is being dealt with in one of the ways
11
referred to in subsection 46(1)--decide to deal with the
12
corruption issue in another of the ways referred to in that
13
subsection, or to take no further action in relation to the
14
corruption issue.
15
(3) The National Integrity Commissioner may decide under
16
subsection (2) to take no further action in relation to the corruption
17
issue only if the National Integrity Commissioner is satisfied that:
18
(a) the corruption issue is already being, or will be, investigated
19
by another Commonwealth agency; or
20
(b) the referral of the allegation, or information, that raises the
21
corruption issue is frivolous or vexatious; or
22
(c) the corrupt conduct to which the corruption issue relates has
23
been, is or will be, the subject of proceedings before a court;
24
or
25
(d) further investigation of the corruption issue is not warranted
26
having regard to all the circumstances.
27
Part 4 Dealing with corruption issues
Division 3 Information sharing when decision made on how to deal with corruption
issue
Section 57
64
National Integrity Commission Bill 2018
No. , 2018
Division 3--Information sharing when decision made on
1
how to deal with corruption issue
2
57 If Commonwealth agency to conduct, or continue conducting,
3
investigation of corruption issue
4
(1) This section applies if:
5
(a) the National Integrity Commissioner decides to deal with a
6
corruption issue that relates to a Commonwealth agency by
7
referring the corruption issue to:
8
(i) the agency; or
9
(ii) the AFP;
10
for investigation; or
11
(b) an allegation, or information, that raises a corruption issue is
12
referred to the National Integrity Commissioner under
13
section 42 by the head of a Commonwealth agency and the
14
Commonwealth agency is investigating the corruption issue.
15
(2) The National Integrity Commissioner must give the head of the
16
Commonwealth agency investigating the corruption issue
17
information or a document if:
18
(a) the information or document:
19
(i) relates to the corruption issue to the extent to which the
20
agency is investigating the issue; and
21
(ii) is in the possession, or under the control, of the National
22
Integrity Commissioner; and
23
(b) the head of the agency does not already have the information
24
or document.
25
Note:
Under section 159, the National Integrity Commissioner has a
26
continuing obligation to pass on information that the National
27
Integrity Commissioner becomes aware of and that is relevant to the
28
corruption issue.
29
(3) The National Integrity Commissioner may give the original or a
30
copy of a document.
31
Dealing with corruption issues Part 4
Information sharing when decision made on how to deal with corruption issue Division
3
Section 58
No. , 2018
National Integrity Commission Bill 2018
65
58 If Commonwealth agency has already commenced investigating
1
corruption issue
2
(1) This section applies if:
3
(a) the National Integrity Commissioner decides to deal with a
4
corruption issue that relates to a Commonwealth agency in
5
one of the ways referred to in subsection 46(1); and
6
(b) the agency has started or continued investigating the
7
corruption issue before the National Integrity Commissioner
8
makes that decision.
9
(2) The National Integrity Commissioner may direct the head of the
10
agency investigating the corruption issue to give the National
11
Integrity Commissioner, or the head of another government
12
agency, all information or documents that:
13
(a) relate to the corruption issue; and
14
(b) are in the possession, or under the control, of the head of the
15
agency.
16
(3) The direction must be in writing.
17
(4) A direction given under this section is not a legislative instrument.
18
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 1 Investigations
Section 59
66
National Integrity Commission Bill 2018
No. , 2018
Part 5--Investigations and public inquiries by the
1
National Integrity Commissioner
2
Division 1--Investigations
3
59 Application of Division
4
This Division applies if the National Integrity Commissioner
5
investigates a corruption issue (whether alone or jointly with
6
another person or persons).
7
60 National Integrity Commissioner to determine manner of
8
conducting investigation
9
The National Integrity Commissioner may conduct the
10
investigation in such manner as the National Integrity
11
Commissioner thinks fit.
12
Note:
Part 6 provides for particular powers that are available to the National
13
Integrity Commissioner for the purposes of the investigation.
14
61 Information sharing for joint investigation
15
(1) If:
16
(a) the National Integrity Commissioner is investigating a
17
corruption issue jointly with another government agency; and
18
(b) information or documents in relation to the investigation are
19
in the possession, or under the control, of the National
20
Integrity Commissioner; and
21
(c) the head of the agency does not already have the information
22
or documents;
23
the National Integrity Commissioner may give the head of the
24
agency the information or documents.
25
(2) The National Integrity Commissioner may give the head of the
26
agency the original or a copy of a document under subsection (1).
27
Investigations and public inquiries by the National Integrity Commissioner Part 5
Investigations Division 1
Section 62
No. , 2018
National Integrity Commission Bill 2018
67
62 Opportunity to be heard
1
Opinion or finding critical
2
(1) Subject to subsection (2), the National Integrity Commissioner
3
must not include in a report under section 64 in relation to an
4
investigation of a corruption issue an opinion or finding that is
5
critical of a Commonwealth agency or a person (either expressly or
6
impliedly) unless the National Integrity Commissioner has taken
7
the action required by subsection (3) or (4) before completing the
8
investigation.
9
(2) Subsection (1) does not apply if the National Integrity
10
Commissioner is satisfied that:
11
(a) a person may have:
12
(i) committed a criminal offence; or
13
(ii) contravened a civil penalty provision; or
14
(iii) engaged in conduct that could be the subject of
15
disciplinary proceedings; or
16
(iv) engaged in conduct that could be grounds for
17
terminating the person's appointment or employment;
18
and
19
(b) taking action under subsection (3) or (4) would compromise
20
the effectiveness of:
21
(i) the investigation of the corruption issue or another
22
corruption investigation; or
23
(ii) any action taken as a result of an investigation referred
24
to in subparagraph (i).
25
Opportunity to appear and make submissions
26
(3) If the opinion or finding is critical of a Commonwealth agency, the
27
National Integrity Commissioner must give the head of the
28
Commonwealth agency:
29
(a) a statement setting out the opinion or finding; and
30
(b) a reasonable opportunity to appear before him or her and to
31
make submissions in relation to the opinion or finding.
32
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 1 Investigations
Section 62
68
National Integrity Commission Bill 2018
No. , 2018
(4) If the opinion or finding is critical of a person, the National
1
Integrity Commissioner must give the person:
2
(a) a statement setting out the opinion or finding; and
3
(b) a reasonable opportunity to appear before him or her and to
4
make submissions in relation to the opinion or finding.
5
(5) Submissions under subsection (3) or (4) may be made orally or in
6
writing.
7
Representation
8
(6) The head of a Commonwealth agency may:
9
(a) appear before the National Integrity Commissioner
10
personally; or
11
(b) authorise another person to appear before the National
12
Integrity Commissioner on the head of the agency's behalf.
13
(7) A person referred to in subsection (4):
14
(a) may appear before the National Integrity Commissioner
15
personally; or
16
(b) may, with the National Integrity Commissioner's approval,
17
be represented by another person.
18
Investigations and public inquiries by the National Integrity Commissioner Part 5
Reporting in relation to investigations Division 2
Section 63
No. , 2018
National Integrity Commission Bill 2018
69
Division 2--Reporting in relation to investigations
1
Subdivision A--Reporting during investigation
2
63 National Integrity Commissioner may keep person who referred
3
corruption issue informed of progress of investigation
4
The National Integrity Commissioner may keep a person (or a
5
representative nominated by the person) informed of the progress
6
of an investigation of a corruption issue if the person raised the
7
corruption issue in a referral under section 42.
8
Subdivision B--Reporting at the end of investigation
9
64 Report on investigation
10
Report and its contents
11
(1) After completing an investigation of a corruption issue, the
12
National Integrity Commissioner must prepare a report on the
13
investigation.
14
(2) The report must set out:
15
(a) the National Integrity Commissioner's findings on the
16
corruption issue; and
17
(b) the evidence and other material on which those findings are
18
based; and
19
(c) any action that the National Integrity Commissioner has
20
taken, or proposes to take, under Part 7 in relation to the
21
investigation; and
22
(d) any recommendations that the National Integrity
23
Commissioner thinks fit to make and, if recommendations are
24
made, the reasons for those recommendations.
25
This subsection has effect subject to subsections (4) and (5).
26
Note 1:
See section 62 for the need for the National Integrity Commissioner to
27
give certain people an opportunity to be heard before including critical
28
statements in a report.
29
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 2 Reporting in relation to investigations
Section 64
70
National Integrity Commission Bill 2018
No. , 2018
Note 2:
The National Integrity Commissioner may publish the report if
1
satisfied that it is in the public interest to do so: see section 239. Under
2
section 233, the report must be tabled in each House of the Parliament
3
if a public hearing has been held in the course of the investigation to
4
which the report relates.
5
(3) Without limiting paragraph (2)(d), the National Integrity
6
Commissioner may recommend:
7
(a) taking action in relation to a person, in accordance with
8
relevant procedures, with a view to the person improving the
9
person's performances; or
10
(b) the termination of the employment of a person in accordance
11
with the relevant procedures; or
12
(c) taking action to rectify or mitigate the effects of the conduct
13
of a person; or
14
(d) the adoption of measures to remedy deficiencies in the
15
policy, procedures or practices that facilitated:
16
(i) a person engaging in corrupt conduct; or
17
(ii) the failure to detect corrupt conduct engaged in by a
18
person;
19
(e) taking appropriate action with a view to having a person
20
charged with a criminal offence; or
21
(f) taking appropriate action to initiate disciplinary proceedings
22
against a person.
23
(4) The National Integrity Commissioner may exclude information
24
from the report if the National Integrity Commissioner is satisfied
25
that:
26
(a) the information is sensitive information or the inclusion of
27
the information may:
28
(i) endanger a person's life or physical safety; or
29
(ii) prejudice proceedings brought as a result of a corruption
30
investigation or public inquiry, or an investigation of a
31
corruption issue that the National Integrity
32
Commissioner manages or oversees; or
33
(iii) compromise operational activities, or methodologies, of
34
the Commission; and
35
(b) it is desirable in the circumstances to exclude the information
36
from the report.
37
Investigations and public inquiries by the National Integrity Commissioner Part 5
Reporting in relation to investigations Division 2
Section 65
No. , 2018
National Integrity Commission Bill 2018
71
(5) In deciding whether to exclude information from the report under
1
subsection (4), the National Integrity Commissioner must seek to
2
achieve an 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
Supplementary report
8
(6) If the National Integrity Commissioner excludes information from
9
a report under subsection (4), the National Integrity Commissioner
10
must prepare a supplementary report that sets out:
11
(a) the information; and
12
(b) the reasons for excluding the information from the report
13
under subsection (4).
14
65 National Integrity Commissioner to give report to Minister
15
The National Integrity Commissioner must give the Minister:
16
(a) the report prepared under subsection 64(1); and
17
(b) if a supplementary report is prepared under subsection 64(6)
18
in relation to the investigation--the supplementary report.
19
Note:
Section 233 provides that the Minister must table a copy of the report
20
prepared under subsection 64(1) in each House of the Parliament if a
21
public hearing has been held in the course of the investigation to
22
which the report relates. The Minister is not required, however, to
23
table a copy of a supplementary report under subsection 64(6) in each
24
House of the Parliament.
25
66 Advising person who referred corruption issue of outcome of the
26
investigation
27
Advice to person who referred issue under section 42
28
(1) The National Integrity Commissioner may advise a person (or a
29
representative nominated by the person) of the outcome of an
30
investigation of a corruption issue raised by the person in a referral
31
under section 42.
32
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 2 Reporting in relation to investigations
Section 67
72
National Integrity Commission Bill 2018
No. , 2018
Manner of giving advice
1
(2) One way of advising the person (or the representative) is to give a
2
copy of all or part of any report prepared under subsection 64(1) in
3
relation to the investigation.
4
(3) In advising the person of the outcome of the investigation, the
5
National Integrity Commissioner may exclude information from
6
the advice if the National Integrity Commissioner is satisfied that:
7
(a) the information is sensitive information; and
8
(b) it is desirable in the circumstances to exclude the information
9
from the advice.
10
(4) In deciding whether to exclude information from the advice under
11
paragraph (3)(b), the National Integrity Commissioner must seek to
12
achieve an appropriate balance between:
13
(a) the person's interest in having the information included in the
14
advice; and
15
(b) the prejudicial consequences that might result from including
16
the information in the advice.
17
67 Advising person whose conduct is investigated of outcome of the
18
investigation
19
(1) If the National Integrity Commissioner investigates a corruption
20
issue that relates to a person, the National Integrity Commissioner
21
may advise the person of the outcome of the investigation.
22
(2) Without limiting subsection (1), the National Integrity
23
Commissioner may advise the person of the outcome of the
24
investigation by giving the person a copy of the whole or a part of
25
the report prepared in relation to the investigation under
26
subsection 64(1).
27
(3) In advising the person under subsection (1), the National Integrity
28
Commissioner may exclude information from the advice if the
29
National Integrity Commissioner is satisfied that:
30
(a) the information is sensitive information; and
31
(b) it is desirable in the circumstances to exclude the information
32
from the advice.
33
Investigations and public inquiries by the National Integrity Commissioner Part 5
Reporting in relation to investigations Division 2
Section 67
No. , 2018
National Integrity Commission Bill 2018
73
(4) In deciding whether to exclude information from the advice under
1
subsection (3), the National Integrity Commissioner must seek to
2
achieve an appropriate balance between:
3
(a) the person's interest in having the information included in the
4
advice; and
5
(b) the prejudicial consequences that might result from including
6
the information in the advice.
7
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 3 Conducting a public inquiry
Section 68
74
National Integrity Commission Bill 2018
No. , 2018
Division 3--Conducting a public inquiry
1
68 National Integrity Commissioner may conduct public inquiry
2
The National Integrity Commissioner may, if the National Integrity
3
Commissioner is satisfied that it is in the public interest to do so,
4
conduct a public inquiry in 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
69 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 111(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, the
14
National Integrity Commissioner may, if satisfied that it is in the
15
public interest to do so, authorise it to be published on the
16
Commission's website.
17
Investigations and public inquiries by the National Integrity Commissioner Part 5
Reporting in relation to public inquiries Division 4
Section 70
No. , 2018
National Integrity Commission Bill 2018
75
Division 4--Reporting in relation to public inquiries
1
70 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 233, the report must be tabled in each House of the
17
Parliament.
18
Sensitive information etc.
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 or the inclusion of
23
the information may:
24
(i) endanger a person's life or physical safety; or
25
(ii) prejudice proceedings brought as a result of a corruption
26
investigation or public inquiry, or an investigation of a
27
corruption issue that the National Integrity
28
Commissioner manages or oversees; or
29
(iii) compromise operational activities, or methodologies, of
30
the Commission; and
31
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 4 Reporting in relation to public inquiries
Section 71
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National Integrity Commission Bill 2018
No. , 2018
(b) it is desirable in the circumstances to exclude the information
1
from the report.
2
(4) In deciding whether to exclude information from the report under
3
subsection (3), the National Integrity Commissioner must seek to
4
achieve an appropriate balance between:
5
(a) the public interest that would be served by including the
6
information in the report; and
7
(b) the prejudicial consequences that might result from including
8
the information in the report.
9
Supplementary report
10
(5) If, under subsection (4), the National Integrity Commissioner
11
excludes information from a report prepared under subsection (1),
12
the National Integrity Commissioner must prepare a supplementary
13
report that sets out:
14
(a) the information; and
15
(b) the reasons for excluding the information from the report
16
under subsection (3).
17
71 Giving report to Minister
18
The National Integrity Commissioner must give the Minister:
19
(a) the report prepared under subsection 70(1); and
20
(b) if a supplementary report is prepared under
21
subsection 70(5)--the supplementary report.
22
Note:
Section 233 provides that the Minister must table a copy of the report
23
prepared under subsection 70(1) in each House of the Parliament. The
24
Minister is not required, however, to table a copy of a supplementary
25
report under subsection 70(5) in each House of the Parliament.
26
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 1
Section 72
No. , 2018
National Integrity Commission Bill 2018
77
Part 6--National Integrity Commissioner's powers
1
in conducting investigations and public
2
inquiries
3
Division 1--Requiring people to give information or
4
produce documents or things
5
Subdivision A--Requirement by National Integrity
6
Commissioner
7
72 Notice to give information or to produce document or thing
8
Giving notice
9
(1) For the purpose of investigating a corruption issue, the National
10
Integrity Commissioner may, by notice in writing, require a person
11
to do either or both of the following:
12
(a) give the information specified in the notice;
13
(b) produce the documents or things specified in the notice;
14
if the National Integrity Commissioner has reasonable grounds to
15
suspect that the information, documents or things will be relevant
16
to the investigation.
17
Note:
In certain cases, disclosing the existence of a notice, or any
18
information about it, is an offence: see section 76.
19
(2) The National Integrity Commissioner may require that information
20
specified under paragraph (1)(a) is to be given in writing.
21
(3) The notice must:
22
(a) be served on the person; and
23
(b) be signed by the National Integrity Commissioner; and
24
(c) specify the period within which, and the manner in which,
25
the person must comply with the notice.
26
(4) The period specified under paragraph (3)(c) must be at least 14
27
days after the day the notice is served on the person, unless the
28
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 73
78
National Integrity Commission Bill 2018
No. , 2018
National Integrity Commissioner considers that allowing a 14-day
1
period would significantly prejudice a corruption investigation, in
2
which case a shorter period may be specified.
3
(5) If a shorter period is specified under paragraph (3)(c), the National
4
Integrity Commissioner must record, in writing:
5
(a) the name of the corruption investigation that would be
6
prejudiced; and
7
(b) why a 14-day period would significantly prejudice the
8
investigation.
9
(6) The National Integrity Commissioner may serve a notice on a
10
person without holding a hearing.
11
73 Compliance with notice
12
Compliance with notice
13
(1) A person served with a notice under section 72 must comply with
14
the notice:
15
(a) within the period specified in the notice; or
16
(b) within such further time as the National Integrity
17
Commissioner allows under subsection (3).
18
Note:
Failure to comply with a notice is an offence: see section 77.
19
Extension of time
20
(2) A person served with a notice under section 72 may apply to the
21
National Integrity Commissioner, in writing, for further time to
22
comply with the notice:
23
(a) before the period expires; or
24
(b) as soon as possible after the period expires.
25
(3) The National Integrity Commissioner may allow a person served
26
with a notice further time to comply with the notice whether or not
27
an application has been made.
28
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 1
Section 74
No. , 2018
National Integrity Commission Bill 2018
79
Acknowledgement
1
(4) If a person served with a notice has given the information and/or
2
produced the documents or things specified in the notice, the
3
National Integrity Commissioner must give the person a written
4
acknowledgement of that fact.
5
74 National Integrity Commissioner may retain documents and
6
things
7
(1) If a document or thing is produced in accordance with a notice
8
under section 72, the 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, the National Integrity Commissioner must allow a person
16
who would otherwise be entitled to inspect the document or view
17
the thing to do so at the times that the person would ordinarily be
18
able to do so.
19
Subdivision B--Prohibitions against disclosing information
20
about notices
21
75 Disclosure of notice may be prohibited
22
Application
23
(1) This section applies in respect of a notice served on a person under
24
section 72.
25
Notation prohibiting disclosure of information about notice
26
(2) The National Integrity Commissioner may include a notation in the
27
notice to the effect that disclosure of information about:
28
(a) the notice; or
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 75
80
National Integrity Commission Bill 2018
No. , 2018
(b) any official matter connected with the notice;
1
is prohibited except in the circumstances (if any) specified in the
2
notation.
3
(3) The National Integrity Commissioner must include a notation in
4
the notice if the National Integrity Commissioner is satisfied that
5
failure to do so would reasonably be expected to prejudice:
6
(a) a person's safety or reputation; or
7
(b) a person's fair trial, if the person has been charged with an
8
offence or such a charge is imminent; or
9
(c) the investigation to which the notice relates or another
10
corruption investigation; or
11
(d) any action taken as a result of an investigation referred to in
12
paragraph (c).
13
(4) The National Integrity Commissioner may include a notation in the
14
notice if the National Integrity Commissioner is satisfied that:
15
(a) failure to do so might prejudice:
16
(i) a person's safety or reputation; or
17
(ii) a person's fair trial, if the person has been charged with
18
an offence or such a charge is imminent; or
19
(iii) the investigation to which the notice relates or another
20
corruption investigation; or
21
(iv) any action taken as a result of an investigation referred
22
to in subparagraph (iii); or
23
(b) failure to do so might otherwise be contrary to the public
24
interest.
25
(5) The National Integrity Commissioner must not include a notation
26
in the notice in any other case.
27
Written statement to accompany notation
28
(6) If a notation is included in the notice, it must be accompanied by a
29
written statement setting out the rights and obligations conferred or
30
imposed by section 76 on the person on whom the notice is served.
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 1
Section 76
No. , 2018
National Integrity Commission Bill 2018
81
Cancellation of notation
1
(7) A notation included in the notice is cancelled by this subsection if:
2
(a) the National Integrity Commissioner concludes the
3
investigation to which the notice relates; and
4
(b) any criminal proceedings or civil penalty proceedings
5
resulting from the investigation are commenced.
6
(8) If a notation is cancelled by subsection (7), the National Integrity
7
Commissioner must advise the person who was served with the
8
notated notice, in writing, of the cancellation.
9
Relationship of notation with the Privacy Act 1988
10
(9) If:
11
(a) a notation has been included in the notice in relation to the
12
disclosure of information about the notice or any official
13
matter connected with the notice; and
14
(b) the notation has not been cancelled; and
15
(c) apart from this subsection, a credit reporting body (within the
16
meaning of the Privacy Act 1988) would be required, under
17
subsection 20E(5) of that Act, to make a note about the
18
disclosure of the information;
19
such a note must not be made until the notation is cancelled.
20
76 Offences of disclosure
21
(1) A person commits an offence if:
22
(a) the person is served with a notice under section 72; and
23
(b) the notice includes a notation under section 75; and
24
(c) the person discloses the existence of, or any information
25
about:
26
(i) the notice; or
27
(ii) any official matter connected with the notice; and
28
(d) when the disclosure is made:
29
(i) the notation has not been cancelled by subsection 75(7);
30
and
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 76
82
National Integrity Commission Bill 2018
No. , 2018
(ii) the period of 5 years after the notice is served under
1
section 72 has not ended.
2
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
3
(2) In proceedings for an offence against subsection (1), it is a defence
4
if the person makes the disclosure:
5
(a) in the circumstances, if any, permitted by the terms of the
6
notation; or
7
(b) to a legal practitioner for the purpose of obtaining legal
8
advice or representation in relation to the notice; or
9
(c) to a legal aid officer for the purpose of seeking assistance
10
under section 273 in relation to the notice; or
11
(d) if the person is a body corporate--to an officer or agent of
12
the body corporate for the purpose of ensuring compliance
13
with the notice; or
14
(e) if the person is a legal practitioner--for the purpose of
15
obtaining the agreement of another person under
16
subsection 78(3) to the legal practitioner answering a
17
question or producing a document or thing.
18
Note:
A defendant bears an evidential burden in relation to the matters in
19
subsection (2): see subsection 13.3(3) of the Criminal Code.
20
(3) A person commits an offence if:
21
(a) a disclosure is made to a person about:
22
(i) a notice under section 72 that includes a notation under
23
section 75; or
24
(ii) any official matter connected with a notice under
25
section 72 that includes a notation under section 75; and
26
(b) the disclosure is permitted under subsection (2) or (4)
27
because the person is a person of a particular kind; and
28
(c) while the person is a person of that kind, the person discloses
29
the existence of, or any information about:
30
(i) the notice; or
31
(ii) any official matter connected with the notice; and
32
(d) when the disclosure by the person is made:
33
(i) the notation has not been cancelled by subsection 75(7);
34
and
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 1
Section 76
No. , 2018
National Integrity Commission Bill 2018
83
(ii) the period of 5 years after the notice is served under
1
section 72 has not ended.
2
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
3
(4) In proceedings for an offence against subsection (3), it is a defence
4
if the person discloses the information:
5
(a) if the person is an officer or agent of a body corporate
6
referred to in paragraph (2)(d):
7
(i) to another officer or agent of the body corporate for the
8
purpose of ensuring compliance with the notice; or
9
(ii) to a legal practitioner for the purpose of obtaining legal
10
advice or representation in relation to the notice; or
11
(iii) to a legal aid officer for the purpose of seeking
12
assistance under section 221 in relation to the notice; or
13
(b) if the person is a legal practitioner--for the purpose of giving
14
legal advice, making representations, or seeking assistance
15
under section 273, in relation to the notice; or
16
(c) if the person is a legal aid officer--for the purpose of
17
obtaining legal advice or representation in relation to the
18
notice.
19
Note:
A defendant bears an evidential burden in relation to the matters in
20
subsection (4): see subsection 13.3(3) of the Criminal Code.
21
(5) A person commits an offence if:
22
(a) a disclosure is made to a person about:
23
(i) a notice under section 72 that includes a notation under
24
section 75; or
25
(ii) any official matter connected with a notice under
26
section 72 that includes a notation under section 75; and
27
(b) the disclosure is permitted under subsection (2) or (4)
28
because the person is a person of a particular kind; and
29
(c) when the person is no longer a person of that kind, the
30
person:
31
(i) makes a record of the notice; or
32
(ii) discloses the existence of the notice; or
33
(iii) discloses any information about the notice or the
34
existence of it; and
35
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 77
84
National Integrity Commission Bill 2018
No. , 2018
(d) when the record, or disclosure, is made by the person:
1
(i) the notation has not been cancelled by subsection 75(7);
2
and
3
(ii) the period of 5 years after the notice is served under
4
section 72 has not ended.
5
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
6
(6) A reference in this section to disclosing something's existence
7
includes disclosing information from which a person could
8
reasonably be expected to infer its existence.
9
Subdivision C--Offence and related provisions
10
77 Failure to comply with notice
11
(1) A person commits an offence if:
12
(a) the person is served with a notice under section 72; and
13
(b) the person fails to comply with the notice:
14
(i) within the period specified in the notice; or
15
(ii) if the National Integrity Commissioner has allowed the
16
person further time under subsection 73(3)--within
17
such further time.
18
Note 1:
If a notice requires a document or thing to be produced, a legal
19
practitioner may refuse to produce the document or thing in certain
20
circumstances: see section 78.
21
Note 2:
This section is not subject to the privilege against self-incrimination
22
but there are limits on the uses to which the evidence the person gives
23
may be put: see section 79.
24
Penalty: Imprisonment for 2 years.
25
(2) In proceedings for an offence against subsection (1), it is a defence
26
if it is not reasonably practicable for the person to comply with the
27
notice:
28
(a) within the period specified in the notice; or
29
(b) within such further time as allowed by the National Integrity
30
Commissioner under subsection 73(3).
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 1
Section 78
No. , 2018
National Integrity Commission Bill 2018
85
Note:
A defendant bears an evidential burden in relation to the matter in
1
subsection (2): see subsection 13.3(3) of the Criminal Code.
2
78 Legal practitioner not required to disclose privileged
3
communications
4
(1) A legal practitioner may refuse:
5
(a) to give information; or
6
(b) to produce a document or thing;
7
when served with a notice to do so under section 72 if the
8
information would disclose, or the document contains, a privileged
9
communication made by the legal practitioner (or to the legal
10
practitioner) in his or her capacity as a legal practitioner.
11
(2) Subsection (1) has effect subject to paragraph 79(4)(c).
12
(3) Subsection (1) does not apply if the person to whom the
13
communication was made (or by whom the communication was
14
made) agrees to the legal practitioner:
15
(a) giving the information; or
16
(b) producing the document or thing.
17
(4) If the legal practitioner refuses:
18
(a) to give the information; or
19
(b) to produce the document or thing;
20
he or she must, if required by the National Integrity Commissioner,
21
give the National Integrity Commissioner the name and address of
22
the person to whom the communication was made (or by whom the
23
communication was made).
24
(5) If a legal practitioner gets agreement, as mentioned in
25
subsection (3):
26
(a) the fact that he or she:
27
(i) gives information; or
28
(ii) produces a document or thing;
29
does not otherwise affect a claim of legal professional
30
privilege that anyone may make in relation to that
31
information, document or thing; and
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 79
86
National Integrity Commission Bill 2018
No. , 2018
(b) the information or document does not cease to be the subject
1
of legal professional privilege merely because it is given,
2
produced or referred to.
3
79 Self-incrimination etc.
4
Self-incrimination
5
(1) A person is not excused from:
6
(a) giving information; or
7
(b) producing a document or thing;
8
when served with a notice to do so under section 72 on the ground
9
that doing so would tend to incriminate the person or expose the
10
person to a penalty.
11
(2) Subsection (3) 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
(3) 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 77; 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
(4) A person is not excused from:
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 1
Section 80
No. , 2018
National Integrity Commission Bill 2018
87
(a) giving information; or
1
(b) producing a document or thing;
2
when served with a notice to do so under section 72 on the ground
3
that doing so:
4
(c) would disclose one of the following:
5
(i) legal advice given to a Minister or a Commonwealth
6
agency;
7
(ii) a communication between an officer of a
8
Commonwealth agency and another person or body,
9
being a communication protected against disclosure by
10
legal professional privilege; or
11
(d) would breach a secrecy provision other than:
12
(i) a taxation secrecy provision; or
13
(ii) a law enforcement secrecy provision; or
14