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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL ANTI-CORRUPTION COMMISSION BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
GLOSSARY
The following abbreviations and acronyms are used throughout this explanatory memorandum.
Abbreviation Definition
Commissioner National Anti-Corruption Commissioner
Consequential Bill National Anti-Corruption Commission (Consequential and
Transitional Provisions) Bill 2022
Crimes Act Crimes Act 1914
Criminal Code Criminal Code Act 1995
ICCPR International Covenant on Civil and Political Rights
Inspector Inspector of the National Anti-Corruption Commission
NACC National Anti-Corruption Commission
NACC Bill National Anti-Corruption Commission Bill
1
AMENDMENTS TO THE NATIONAL ANTI-CORRUPTION COMMISSION BILL 2022
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the National Anti-Corruption Commission Bill ('the Bill') is to
implement the Government's response to relevant recommendations of the Joint Select Committee on
National Anti-Corruption Commission Legislation and the Parliamentary Joint Committee on Human
Rights. In summary, these amendments would:
• amend the definition of corrupt conduct by removing the reference to 'corruption of any other
kind' in paragraph 8(1)(e);
• extend protections for journalists' informants to persons assisting the journalist who are
employed or engaged by the journalist's employer, and persons assisting the journalist in a
professional capacity;
• clarify that the Commissioner may deal with a corruption issue on the Commissioner's own
initiative;
• improve safeguards for the wellbeing of persons who have been issued a summons or notice to
produce and require assistance to comply with the summons or notice, or wish to disclose
information to a medical professional;
• narrow the grounds on which the Commissioner may bring proceedings against a person for
contempt of the NACC;
• require the Commissioner to advise a person whose conduct has been investigated of the
outcome of the investigation, including in circumstances where the Commissioner has made no
findings of corrupt conduct; and
• expand the functions of the Inspector to include reviewing the exercise of the Commission's
powers to summon persons to give evidence at hearings and the Commission's powers to obtain
warrants to arrest witnesses who have failed or are likely to fail to appear in response to a
summons.
2. The amendments would also:
• amend clause 74 to provide that evidence that would disclose legal advice is only required to be
heard in private where that advice is subject to legal professional privilege, to ensure that
evidence may be given in public where privilege has been waived or where the advice is not
privileged, consistent with the protections afforded to communications that are subject to legal
professional privilege;
• correct a typographical error in several cross-references in the Bill;
• amend the heading to subclause 276(2) to refer to the Commissioner's role in providing advice
on the appointment of the CEO, which is non-delegable;
• amend subclause 276(6) to ensure that staff members of the NACC to whom the Commissioner
has delegated the power to decide to take no action in relation to a corruption issue are required
to comply with any directions from the Commissioner in the exercise of that power; and
• insert new clause 276A to enable the Inspector to delegate their powers and functions in a
similar fashion to the Commissioner.
Date of effect
Consistent with the NACC Bill and Consequential Bill, the amendments would generally commence on a
single day to be fixed by Proclamation, intended to be in mid-2023. However, if they do not commence
within the period of 12 months beginning on the day on which the NACC Bill receives the Royal Assent they
would commence on the day after the end of that period.
2
Financial Impact
There are no financial impacts associated with these amendments.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
National Anti-Corruption Commission Bill 2022
The amendments to the Bill are compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview
The Parliamentary Amendments to the National Anti-Corruption Commission Bill ('the Bill') implement
the Government's response to relevant recommendations of the Joint Select Committee on National
Anti-Corruption Commission Legislation and the Parliamentary Joint Committee on Human Rights. In
summary, the amendments would:
• amend the definition of corrupt conduct by removing the reference to 'corruption of any other
kind' in paragraph 8(1)(e);
• extend protections for journalists' informants to persons assisting the journalist who are
employed or engaged by the journalist's employer, and persons assisting the journalist in a
professional capacity;
• clarify that the Commissioner may deal with a corruption issue on the Commissioner's own
initiative;
• improve safeguards for the wellbeing of for persons who have been issued a summons or notice
to produce and require assistance to comply with the summons or notice, or wish to disclose
information to a medical professional;
• narrow the grounds on which the Commissioner may bring proceedings against a person for
contempt of the NACC;
• require the Commissioner to advise a person whose conduct has been investigated of the
outcome of the investigation, including in circumstances where the Commissioner has made no
findings of corrupt conduct; and
• expand the functions of the Inspector to include reviewing the exercise of the Commission's
powers to summon persons to give evidence at hearings and the Commission's powers to obtain
warrants to arrest witnesses who have failed or are likely to fail to appear in response to a
summons.
The amendments would also:
• amend clause 74 to provide that evidence that would disclose legal advice is only required to be
heard in private where that advice is subject to legal professional privilege, to ensure that
evidence may be given in public where privilege has been waived or where the advice is not
privileged, consistent with the protections afforded to communications that are subject to legal
professional privilege;
• correct a typographical error in several cross-references in the Bill;
• amend the heading to subclause 276(2) to refer to the Commissioner's role in providing advice
on the appointment of the CEO, which is non-delegable;
• amend subclause 276(6) to ensure that staff members of the NACC to whom the Commissioner
has delegated the power to decide to take no action in relation to a corruption issue are required
to comply with any directions from the Commissioner in the exercise of that power; and
• insert new clause 276A to enable the Inspector to delegate their powers and functions in a
similar fashion to the Commissioner.
4
Human rights implications
The right to the presumption of innocence contained in article 14(2) of the ICCPR
Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to
be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of
proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved
beyond reasonable doubt.
The amendments engage the right to the presumption of innocence under article 14(2) of the ICCPR.
This is because the amendments provide that a defendant bears an evidential burden in relation to certain
offence-specific defences.
Limitations on the right to be presumed innocent must be reasonable, necessary and proportionate to
achieve a legitimate objective.
Offences that require a defendant to bear an evidential burden in relation to an applicable defence in the
amendments may amount to a limitation on the right to be presumed innocent. This includes provisions
where an evidential burden is created by expressing a matter to be a defence or exception to an offence
or providing that the defendant must adduce or point to evidence suggesting a reasonable possibility of
the matter. Requiring the defendant to bear the evidential burden in this way may limit article 14(2), as a
defendant's failure to discharge the burden may permit their conviction despite reasonable doubt as to
their guilt. However, under international human rights law, a requirement for a defendant to bear an
evidential burden will not necessarily limit the presumption of innocence provided that the law is not
unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse
onus provision is relevant in determining its justification.
The following provisions in the amendments introduce new exceptions to offences for which defendants
bear an evidential burden.
Amendment 13 would amend subclause 98 of the Bill to provide an additional exception to the offence
of failing to comply with a non-disclosure notation. The exception would apply if the disclosure was
made to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care,
treatment or counselling (including psychological counselling). A defendant would bear an evidential
burden with respect to the purpose of the disclosure.
Amendment 15 would amend subclause 101 of the Bill to provide a new exception to the offence of
using or disclosing investigation material in contravention of a direction issued under clause 101. The
exceptions would apply in relation to the disclosure of investigation material by a witness:
• to a legal practitioner for the purpose of obtaining legal advice or representation in relation to
the corruption investigation to which the investigation material relates;
• to a legal aid officer for the purpose of seeking assistance in relation to the investigation; or
• to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric
care, treatment or counselling (including psychological counselling).
Amendment 15 further provides the offence in clause 101 of the Bill would not apply if the use or
disclosure is made by a legal practitioner for the following purposes:
• obtaining the agreement of another person to the legal practitioner disclosing advice or a
communication (see clause 115); or
• to give legal advice to, or make representations on behalf of, a witness in the investigation.
Amendments 13 and 15 introduce new defences that would serve to protect persons from liability under
the existing offences in clauses 98 and 101, which serve the legitimate objective of preventing the
unauthorised use or disclosure of information that could prejudice a NACC investigation or inquiry.
It is reasonable and necessary for a defendant to bear an evidential burden where the facts in relation to
the defence are peculiarly within the knowledge of the defendant, and where it would be significantly
more difficult and costly for the prosecution to prove (see the Attorney-General's Department's Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers).
5
It is reasonable and necessary for the defendant to bear an evidential burden of adducing or pointing to
evidence that suggests a reasonable possibility that their disclosure was authorised by the provisions
inserted in Amendments 13 and 15 because:
• the purpose for which the person has made the disclosure will be solely and entirely within the
person's knowledge, and it would not be onerous for the person to adduce or point to evidence
that suggests a reasonable possibility of that purpose--this is particularly the case as
communications with lawyers and medical practitioners are typically subject to a range of legal
and ethical protections that would be expected to limit the ability of the prosecution to obtain
information about the purpose for which the person has made the disclosure;
• requiring the prosecution to disprove the existence of every circumstance or reason for which a
disclosure was made would create a significant risk to successful prosecution and affect the
deterrent effect of the offence;
• requiring the prosecution to prove matters relating to the relationship between two private
parties, including a medical practitioner or psychologist and their patient, or a legal practitioner
and their client, would also create a risk to successful prosecution and affect the deterrent effect
of the offence; and
• it would be unlikely that a prosecution would be brought where information indicating the
availability of the defence--that the disclosure was authorised--is available to the prosecution.
The amendments are proportionate because, consistent with section 13.3 of the Criminal Code, this
burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that a
particular matter exists or does not exist. It does not require the defendant to prove those matters beyond
reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will also be
required to disprove those matters beyond reasonable doubt. The reversed evidential burden provisions
established in the amendments also create offence-specific defences that operate in addition to, not
instead of, the general defences available at criminal law.
The right to the enjoyment of the highest attainable standard of physical and mental health contained in
article 12 of the ICESCR
Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) protects the
right to the enjoyment of the highest attainable standard of physical and mental health.
Amendments 13 and 15 would promote this right, by ensuring appropriate safeguards are in place to
protect the mental health and wellbeing of those who are the subject of, or otherwise involved in,
corruption investigations. This includes ensuring that persons are able to disclose relevant information
for the purposes of accessing support from a medical practitioner or psychologist.
Amendment 13 would amend subclause 98 to provide an additional exception to the offence of failing to
comply with a non-disclosure notation. The amendment would amend subclause 98(3) to provide that the
offence does not apply if the disclosure if made to a medical practitioner or psychologist for the purpose
of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).
Amendment 15 would amend clause 101 to insert similar exceptions to the offence of using or disclosing
investigation material in contravention of a direction issued under clause 100.
These amendments recognise the importance of ensuring that persons involved in corruption
investigations can access mental health care, and protect the right to enjoy the highest attainable standard
of mental health under Article 12 of the ICESCR.
The right to freedom of peaceful assembly contained in article 21 of the ICCPR
Article 21 of the ICCPR protects the right of peaceful assembly. It provides no restrictions may be
placed on the exercise of this right other than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national security or public safety, public order, the
protection of public health or morals or the protection of the rights and freedoms of others.
Amendment 10 would promote the right to freedom of peaceful assembly, by ensuring a person is not
held in contempt of the NACC as a result of protesting or assembling peacefully near a hearing.
6
The Amendment implements the Government's response to the Parliamentary Joint Committee on
Human Rights' recommendation, at paragraph 1.35 of Report 5 of 2022, to provide that creating a
disturbance near a place that a person knows is being used to hold a hearing will not constitute a
contempt of the NACC.
This would ensure that persons may exercise their right to gather as a group for a specific purpose,
including to conduct a legitimate protest.
The right to freedom of expression contained in article 19(2) of the ICCPR
Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the
freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art or through any other media.
However, Article 19(3) of the ICCPR provides that the exercise of the rights provided for in article 19(2)
carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary for the protection of national security
and for the respect of individuals' rights or reputations.
Amendments 5 and 16 would promote the right to freedom of expression by providing expanded
protections for journalists' sources, under the amendments to clauses 31 and 124 of the NACC Bill.
Amendment 5 would extend subclause 31(5) of the Bill to protect persons assisting a journalist in their
work as a journalist from being compelled to disclose, or provide information that may assist to
ascertain, an informant's identity. This protection would be available to any person assisting a journalist
who is employed or engaged by the journalist's employer, as well as any person assisting the journalist
in the person's professional capacity--including, for example, freelance camera operators. Amendment 5
implements the Government's response to the Joint Select Committee on the National Anti-Corruption
Commission Bills' report to expand the protection of journalists' sources to all relevant persons with
knowledge of an informant's identity.
Amendment 16 would amend clause 124 of the Bill to broaden journalistic safeguards in relation to
search warrants. The amendment requires an issuing officer to weigh the public interest of issuing a
search warrant in relation to a journalist or their employer, or the premises occupied by the journalist or
their employer against the public interest in protecting the confidentiality of the identity of a journalist's
informant.
Amendment 16 implements the Government's response to Recommendation 5 of the Parliamentary Joint
Committee on Human Rights' Report 5 of 2022.
Amendments 5 and 16 recognise the importance of upholding the public interest associated with a free
press and strengthen the safeguards in the Bill to protect the identities of journalists' sources.
Conclusion
The Parliamentary Amendments are compatible with the applicable human rights and freedoms.
The Bill as amended is compatible with the applicable human rights and freedoms as provided for in the
Explanatory Memorandum to the Bill.
7
NOTES ON AMENDMENTS
Amendments 1, 2, 13 and 15--disclosure for health care purposes
1. Amendments 1, 2, 13 and 15 would implement the Government's response to Recommendation 4 of the
Joint Select Committee on National Anti-Corruption Commission Legislation's report to permit the
disclosure of information which is otherwise subject to a non-disclosure notation to a medical
practitioner or psychologist.
2. Amendment 1 would insert the definition of medical practitioner under clause 7. The amendment would
provide that medical practitioner means a person registered or licensed as a medical practitioner under a
law of a State or Territory that provides for the registration or licensing of medical practitioners. A
medical practitioner would include a registered or licensed psychiatrist.
3. Amendment 2 would insert the definition of psychologist under clause 7. The amendment would provide
that psychologist means a person registered or licensed as a psychologist under a law of a State or
Territory that provides for the registration or licensing of psychologists.
4. Amendment 13 would amend subclause 98 to provide an additional exception to the offence of failing to
comply with a non-disclosure notation. The amendment would amend subclause 98(3) to provide that the
offence does not apply if the disclosure is made to a medical practitioner or psychologist for the purpose
of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).
5. Amendment 15 would amend clause 101 to insert similar exceptions to the offence of using or disclosing
investigation material in contravention of a direction issued under clause 100.
6. Amendment 15 would also insert further exceptions to the offence in clause 101. The offence would also
not apply if the use or disclosure was made by the witness:
• to a legal practitioner for the purpose of obtaining legal advice or representation in relation to
the corruption investigation to which the investigation material relates;
• to a legal aid officer for the purpose of seeking assistance in relation to the investigation; or
• to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric
care, treatment or counselling (including psychological counselling).
7. A legal practitioner may also use or disclose investigation material for the following purposes:
• obtaining the agreement of another person to the legal practitioner disclosing advice or a
communication (see clause 115); or
• to give legal advice to, or make representations on behalf of, the witness.
8. Amendments 13 and 15 would introduce new exceptions to the relevant offences which apply in addition
to the standard defences available under the Criminal Code. A defendant would bear an evidential
burden in relation to the matters in Amendments 13 and 15 (see subsection 13.3(3) of the Criminal
Code).
9. It is reasonable and necessary for the defendant to bear an evidential burden of adducing or pointing to
evidence that suggests a reasonable possibility that their disclosure was authorised by the provisions
inserted in Amendments 13 and 15 because:
• the purpose for which the person has made the disclosure will be solely and entirely within the
person's knowledge, and it would not be onerous for the person to adduce or point to evidence
that suggests a reasonable possibility of that purpose--this is particularly the case as
communications with lawyers and medical practitioners are typically subject to a range of legal
and ethical protections that would be expected to limit the ability of the prosecution to obtain
information about the purpose for which the person has made the disclosure;
• requiring the prosecution to disprove the existence of every circumstance or reason for which a
disclosure was made would create a significant risk to successful prosecution and affect the
deterrent effect of the offence;
8
• requiring the prosecution to prove matters relating to the relationship between two private
parties, including a medical practitioner or psychologist and their patient, or a legal practitioner
and their client, would also create a risk to successful prosecution and affect the deterrent effect
of the offence; and
• it would be unlikely that a prosecution would be brought where information indicating the
availability of the defence - that the disclosure was authorised - is available to the prosecution.
10. The amendments recognise the importance of ensuring appropriate safeguards are in place to protect the
mental health and wellbeing of those who are the subject of, or otherwise involved in, corruption
investigations. This includes ensuring that persons are able to disclose relevant information for the
purposes of accessing support from a medical practitioner or psychologist.
Amendments 3 and 4--meaning of corrupt conduct
11. Amendments 3 and 4 would implement the Government's response to Recommendation 5 of the Joint
Select Committee on the National Anti-Corruption Commission Legislation's report to omit
paragraph 8(1)(e) from the Bill.
12. The amendments would remove reference to 'corruption of any other kind' from the definition of
corrupt conduct under clause 8(1).
13. The amendments would provide further clarity to the definition of corrupt conduct, which would be
defined by reference to the exhaustive list of the types of conduct that would be captured under
paragraphs 8(1)(a)-(d).
Amendment 5--safeguards and protections for journalists and their informants
14. Amendment 5 would implement the Government's response to Recommendation 1 of the Joint Select
Committee on the National Anti-Corruption Commission Bills' report to extend the protection of
journalists' sources contained in clause 31 of the Bill to all staff within the relevant news organisation
with knowledge of an informant's identity.
15. The amendment would extend subclause 31(2) of the Bill to protect persons assisting a journalist in their
work as a journalist from being compelled to disclose, or provide information that may assist to
ascertain, an informant's identity. This protection would apply to:
• a person assisting the journalist who is employed or engaged by the journalist's employer; and
• a person assisting the journalist in the person's professional capacity.
16. Paragraph 31(2)(c) would apply to a person assisting the journalist who is employed or engaged by the
journalist's employer. The concept of 'assisting' a journalist would cover persons who are directly
assisting a journalist (for example, an editor assisting the journalist with an article or program, or an
administrative staff member assisting the journalist with logistical arrangements for meetings with their
sources), and persons who are indirectly assisting the journalist (for example, a lawyer who has been
requested by an editor to provide legal advice in connection with a journalist's article before the article is
finalised for publication).
17. Paragraph 31(2)(d) would apply to a person assisting the journalist in the person's professional capacity.
This paragraph would apply to persons who are not employed or engaged by the same employer as the
journalist, provided that they are providing assistance in their professional capacity. It is appropriate to
cover persons providing professional assistance to a journalist whether or not they are employees of the
same news organisation as the journalist, as a journalist may not be employed by a news organisation
and, furthermore, may be assisted by persons who are not employed by the same organisation. This may
occur where, for example:
• two journalists working for different media organisations are collaborating on a major
investigation--each journalist would be a person assisting the other journalist in the person's
professional capacity, and so would attract the protection in clause 31 in relation to the other
journalists' sources; or
9
• a journalist is being assisted by a freelance photographer, who is not employed by the same
media organisation as the journalist--the freelance photographer would be a person assisting
the journalist in the person's professional capacity and so would attract the protection in clause
31 in relation to the journalist's sources.
18. The concept of a person providing assistance to the journalist in the person's 'professional capacity' is
intended to ensure that the protection in paragraph (d) aligns with that in paragraph (c), to cover persons
providing professional assistance to a journalist of a kind that might otherwise be provided by persons
employed or engaged by a media organisation. This would include the examples listed above, as well as
assistance with editing the journalist's article, making logistical arrangements to assist the journalist to
meet with a source, or providing legal advice in connection with the journalist's article before the article
is finalised for publication.
19. This would mean that the NACC would not be able to compel a journalist, a journalist's employer, a
person assisting the journalist who is employed or engaged by the journalist's employer or a person
assisting the journalist in the person's professional capacity, who have knowledge of an informant's
identity to identify the journalist's source in response to a notice to produce or under questioning at a
hearing.
20. The protection afforded by this amendment recognises the ethical obligation of journalists who have
given an undertaking of confidentiality to an informant to protect their identity and is intended to assist
to uphold the public interest associated with a free press.
Amendments 6 and 7--dealing with corruption issues
21. Amendments 6 and 7 would implement the Government's response to Recommendation 3 of the Joint
Select Committee on National Anti-Corruption Commission Legislation's report to insert an express
statement that the Commissioner may deal with a corruption issue on the Commissioner's own initiative.
22. These amendments would insert a new subclause 40(2) which would provide, to avoid doubt, the
Commissioner may deal with a corruption issue on the Commissioner's own initiative.
23. These amendments confirm the Commissioner will have own motion powers to deal with a corruption
issue, irrespective of how the corruption issue has come to their attention, and reinforce the
Commissioner's independence.
Amendments 8, 11, 22 and 24--Inspector's review function
24. Amendments 8, 11, 22 and 24 would implement the Government's response to Recommendation 2 of the
Joint Select Committee on the National Anti-Corruption Commission Bills' report, to include a pro-
active audit function limited to the review of the NACC's use of coercive powers.
25. The amendments require the Commissioner to notify the Inspector within 3 days of a witness summons
or arrest warrant being issued, consistent with the Committee's recommendation at paragraph 1.432 of
its report. The amendments also expand the Inspector's functions to enable the Inspector to review the
information provided to assess compliance with the law and make recommendations to the NACC based
on the outcome of those reviews.
26. Amendment 8 would amend clause 63 (the Commissioner's power to summon persons) to insert a new
notification requirement following the issue of a summons. The amendment would require the
Commissioner to give a copy of the summons to the Inspector within 3 business days following the issue
of the summons.
27. Subclause 63(5) of the Bill would require the Commissioner to record in writing the reasons for the
summons, at or before the time the summons is issued. Amendment 8 would also require the
Commissioner to provide a copy of that record to the Inspector, within 3 business days of the summons
being issued.
28. Amendment 8 would also insert new subclause 63(9), which would provide that a summons is not
invalid merely because the Commissioner failed to provide the Inspector with the summons and reasons
within 3 business days. This is appropriate, as a failure on the Commissioner's behalf to notify the
10
Inspector of the issue of the summons would have no bearing on the validity of the Commissioner's
decision to issue the summons.
29. Amendment 11 would make analogous amendments to clause 91 (provision for the issue and execution
of a warrant to arrest a witness). The amendment would require the Commissioner to give the Inspector a
copy of the warrant and the application for the warrant within 3 business days following the issue of the
warrant.
30. Subclause 90(2) of the Bill would require the authorised officer executing the warrant to provide
information on oath or by affirmation in support of the grounds for the application. Amendment 11
would also provide that if this information is given in writing, a copy of it must also be provided to the
Inspector, within 3 business days of the warrant being issued.
31. Amendment 22 would amend clause 184 of the Bill to insert additional functions for the Inspector in
new paragraphs 184(1)(ea) and (eb). The amendments would expand the Inspector's functions to
include:
• reviewing the conduct of, and determining the extent of compliance with the law by, the NACC
in issuing summonses and in applying for and executing warrants for arrest; and
• making recommendations to the NACC on the outcome of such reviews.
32. Under paragraph 184(1)(h) of the Bill, the Inspector has a function to report and make recommendations
to both houses of Parliament on the results of performing any of its functions. The Inspector would be
able to report to Parliament, with recommendations, on the outcome of their reviews and
recommendations inserted by Amendment 22.
33. The new functions inserted by Amendment 22 would enable the Inspector to exercise their judgment and
discretion, to determine whether it is appropriate or desirable to report to the Parliament on particular
outcomes and recommendations, following a review. This is appropriate as many recommendations are
likely to be relatively minor or administrative in nature, and would not warrant their being drawn to the
Parliament's attention in detail--for example, recommendations for targeted process improvements to
reduce the risk of potential non-compliance.
34. Amendment 24 would insert new clause 214A, which would set out the Inspector's powers when
exercising their new review functions inserted by Amendment 22. For the purposes of conducting a
review, the Inspector and any person assisting the Inspector:
• may, at all reasonable times, enter and remain on any premises occupied by the NACC; and
• is entitled to all reasonable facilities and assistance that the Commissioner is capable of
providing; and
• is entitled to full and free access at all reasonable times to any information, documents or other
property of the NACC; and
• may require a staff member of the NACC to provide any relevant information within the staff
member's possession or to which the staff members has access that the Inspector considers
necessary; and
• may examine, make copies of or take extracts from any information or documents.
35. These powers would provide the Inspector with comprehensive access to the NACC's records and
facilities, and the ability to require staff members of the NACC to provide information in their
possession. These powers are similar to the powers afforded to the Commonwealth Ombudsman when
conducting inspections under Chapter 4A of the Telecommunications (Interception and Access) Act
1979, or the Inspector-General of Intelligence and Security when conducting inspections under section
9A of the Inspector-General of Intelligence and Security Act 1986.
36. The reference to the Inspector and persons assisting the Inspector being entitled to 'all reasonable
facilities and assistance' would enable the Inspector to request, for example, an office at the NACC's
premises for use during an inspection, or access to the NACC's systems to enable the Inspector or
person's assisting to directly access records held by the NACC that are relevant to a review.
11
Amendment 9--evidence that must be given in private
37. Amendment 9 would amend subparagraph 74(b)(i) to provide that evidence which discloses legal advice
protected by legal professional privilege (as opposed to all legal advice, as currently drafted) must be
given in private.
38. The amendment would narrow the scope of subparagraph 74(b)(i) to ensure it does not inadvertently
require all evidence disclosing legal advice to be heard in private, and would ensure consistent treatment
for legal advice covered by subparagraph 74(b)(i) and communications that are legally privileged
covered by subparagraph 74(b)(ii). The amendment ensures that the evidence can be heard in public if:
• legal professional privilege has been waived--for example, by the Commonwealth or a witness
in the interests of transparency; or
• the legal advice does not attract legal professional privilege--for example, where the advice is
given for the purpose of facilitating illegal or improper purposes, such as to facilitate the
commission of a criminal offence.
Amendment 10--narrowing the scope of contempt of the NACC
39. Amendment 10 would implement the Government's response to the Parliamentary Joint Committee on
Human Rights' recommendation to provide that creating a disturbance near a place that a person knows
is being used to hold a hearing will not constitute a contempt of the NACC.
40. Amendment 10 would amend clause 82 to omit paragraph (e). This means that a person will not be held
in contempt of the NACC for creating a disturbance, or taking part in creating or continuing a
disturbance, in or near a place that the person knows is being used to hold a hearing.
This would ensure that persons may exercise their right to assemble peacefully for a specific purpose,
including to conduct a legitimate protest.
Amendments 12 and 14--vulnerable persons and persons with disabilities
41. Amendments 12 and 14 would implement the Government's response the recommendation of the
Parliamentary Joint Committee on Human Rights at paragraph 1.21 of its Report 5 of 2022 on the
National Anti-Corruption Commission Bills. The Committee stated that:
The committee considers that the compatibility of the measure may be assisted were the bill
amended to require that if the Commissioner is considering making a non-disclosure notation on a
notice to produce or summons and the Commissioner is aware that a person has a disability or
other vulnerability that may impact their ability to comply with a non-disclosure notation, they
must consider making exceptions to allow the person to obtain any necessary assistance in order
that they may engage fairly with the Commission's processes.
42. Amendment 12 would insert a new obligation into clause 96, which sets out the circumstances in which
non-disclosure notations must or may be included in a notice to produce or private hearing summons.
The new obligation would apply if the Commissioner is aware that a non-disclosure notation will apply
to a person who has a disability or other vulnerability that may affect their ability to comply with the
notice or summons. The Commissioner may be 'aware' that a person has a disability or other
vulnerability based on their existing knowledge of the person or, for example, because the person or their
representative draw the matter to the Commissioner's attention. The concept of a 'vulnerability' should
be interpreted broadly and in the context of a person's ability to comply with a notice or summons, or to
otherwise engage fairly with the Commission's processes. For example, a person's limited proficiency in
English would constitute a vulnerability if it may affect their ability to understand and respond to
questions during a hearing. In such circumstances, the Commissioner would be required to consider
permitting the person to disclose information to obtain assistance necessary to comply with the notice or
summons, or to otherwise engage fairly with the Commission's processes.
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43. Circumstances in which the Commissioner may decide to not permit any further disclosure may include:
• where the Commission itself has made arrangements to provide the person with assistance to
comply with a summons--for example, where the Commission has provided an interpreter or
sign language interpreter to ensure that a witness can understand and respond fully to questions,
and to ensure procedural fairness, during a hearing, removing the need for the Commissioner to
permit further disclosures; or
• the Commissioner has provided the person with sufficient additional time to comply with a
notice to produce, so as to enable them to comply without assistance.
44. Amendment 14 would insert a new obligation in the same terms as Amendment 12 into clause 100,
which allows the Commissioner to direct that investigation material must not be used or disclosed, or
may only be used in specified circumstances.
45. This means that if the Commissioner is aware that a direction about the use or disclosure of investigation
material will apply to a person with a disability or vulnerability that would affect their ability to comply
with the direction, the Commissioner must also consider expressly permitting in the direction that the
person may disclose the information to obtain assistance to comply with the direction or to otherwise
engage with the NACC's processes.
46. The amendments recognise the importance of ensuring the NACC Bill contains strong procedural
fairness and accessibility requirements for people who are engaging with the Commission's processes.
Amendment 16--when search warrants can be issued
47. Amendment 16 would implement the Government's response to Recommendation 5 of the Parliamentary
Joint Committee on Human Rights' Report 5 of 2022 on the National Anti-Corruption Commission Bills.
48. The Committee recommended that the Bill be amended to remove paragraph 3E(2A)(b) of the Crimes
Act as substituted by clause 124 of the NACC Bill, with the effect that an issuing officer would be
required to have regard to the public interest (as set out in substituted subclause 3E(2B)) when
considering whether to issue a search warrant to the NACC to search a journalist or their employer, or
premises occupied by the journalist or the employer.
49. The existing substituted paragraph 3E(2A)(b) would limit the application of the additional public interest
test for the issue a search warrant to the NACC in relation to a journalist or their employer (or premises
occupied by the journalist or their employer) to circumstances where the Commission is investigating a
secrecy offence by a person other than the journalist.
50. The amendment to clause 124 would remove the existing substituted paragraph 3E(2A)(b) and substitute
a restructured subclause 3E(2A) into the Crimes Act. The new substituted subclause 3E(2A) would
provide that substituted subclause 3E(2B) applies if the NACC search warrant is to search:
• a journalist; or
• a journalist's employer; or
• premises occupied by the journalist or their employer (in their capacities as a journalist or a
journalist's employer).
51. This would broaden journalistic safeguards in relation to search warrants issued under the NACC Bill by
requiring an issuing officer to have regard to the public interest when considering whether to issue all
search warrants under this clause.
52. This would mean that an issuing officer would, for all warrant applications under this clause, be required
to weigh the public interest of issuing the warrant against the public interest in protecting the
confidentiality of the identity of a journalist's informant. They would also be required, for all warrant
applications, to weigh the public interest in issuing a warrant against the public interest in facilitating the
exchange of information between journalists and the public so as to facilitate reporting of matters in the
public interest.
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53. Expanding the requirement for an issuing officer to weigh up these competing public interests in
deciding all warrant applications under this clause would ensure that an issuing officer specifically turns
their mind to the public interest associated with source confidentiality and freedom of the press.
54. This amendment is appropriate to support the freedom of the press in Australia by providing robust
safeguards for the identity of journalist's informants. It also recognises that the Commission may
commence a corruption investigation following media reporting on any kind of corruption issue meaning
broader safeguards beyond circumstances where the Commission is investigating an alleged
unauthorised disclosure of information by a public official are necessary.
Amendments 17 to 21 and 25 to 30-- advising person whose conduct is investigated of outcome of the
investigation
55. Amendments 17 to 21 and 25 to 30 would implement the Government's response to Recommendation 6
of the Joint Select Committee on National Anti-Corruption Commission Legislation's report to require
the Commissioner to advise a person of the outcome of a corruption investigation if the Commissioner
investigates the conduct of the person and has formed the opinion or made a finding that the person has
not engaged in corrupt conduct. This would be in addition to the existing requirement under subclause
159(1) that would require the Commissioner to notify a person about the outcome of an investigation if
the Commissioner makes a finding that the person has engaged in corrupt conduct. The Committee
further recommended that consideration should be given to whether this requirement should be qualified
so that if a person is subject to multiple ongoing investigations, the Commissioner is not obliged to
provide the report in those circumstances.
56. Amendment 17 would omit existing subclauses 159(1) and (2), and provide the Commissioner must
advise a person of the outcome of a corruption investigation if the Commissioner investigates a
corruption issue concerning the conduct of the person. The effect of this amendment is to require the
Commissioner to advise a person of the outcome of a corruption investigation in circumstances including
where the Commissioner has made a finding that the person has engaged in corrupt conduct, and where
no such finding has been made.
57. This would ensure a person is notified of the outcome of an investigation concerning their conduct,
unless such a notification would not be appropriate.
58. Amendment 21 addresses circumstances where the Commissioner should not be required to advise a
person of the outcome of a corruption investigation. The amendment would insert new subclause 159(7),
which would provide the requirement to advise a person of the outcome of an investigation would not
apply if advising the person is not reasonably practicable, for example, where the person has left the
country or are otherwise uncontactable.
59. The requirement would also not apply where advising the person would be contrary to the public
interest, including because it might prejudice:
• a person's fair trial;
• a NACC Act process (being a corruption investigation, a NACC complaint investigation, a
NACC corruption investigation, or a public inquiry);
• any other investigation that is being undertaken by a Commonwealth agency or a State or
Territory government entity; or
• any action taken as a result of a NACC Act process or an investigation.
60. This is appropriate to ensure that notifying a person to the existence of an investigation does not
prejudice a separate, ongoing investigation or trial, such as in circumstances where the subject has not
been aware of the Commission's investigation and notification would alert a person to the fact that they
have been--and may continue to be--under investigation.
61. Amendment 25 would amend clause 225, which sets out the circumstances under which the Inspector
must advise a person of the outcome of a NACC corruption investigation. The amendment would omit
existing subclauses 225(1) and (2), and provide the Inspector must advise a person of the outcome of a
NACC corruption investigation if the Inspector investigates a NACC corruption issue concerning the
conduct of the person. The effect of this amendment is to require the Inspector to advise a person of the
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outcome of a NACC corruption investigation in circumstances including where the Inspector has made a
finding that the person has engaged in corrupt conduct, and in circumstances where no such finding has
been made.
62. Amendment 26 would amendment subclause 225(3) to require the Inspector to advise a person of the
outcome of a NACC complaint investigation where the complaint concerned the conduct of the person,
and the Inspector forms an opinion or makes a finding about the complaint. This will include
circumstances, for example, where the Inspector makes a finding that in effect substantiates or dismisses
the complaint.
63. This would ensure a person is notified of the outcome of an investigation concerning their conduct,
unless such a notification would not be appropriate.
64. Amendment 30 addresses circumstances where the Inspector should not be required to advise a person of
the outcome of a NACC corruption investigation or NACC complaint investigation. The amendment
would insert new subclause 225(8), which would provide the requirement to advise a person of the
outcome of an investigation would not apply if advising the person is not reasonably practicable, for
example, where the person has left the country or are otherwise uncontactable.
65. The requirement would also not apply where advising the person would be contrary to the public
interest, including because it might prejudice:
• a person's fair trial;
• a NACC Act process (being a corruption investigation, a NACC complaint investigation, a
NACC corruption investigation, or a public inquiry);
• any other investigation that is being undertaken by a Commonwealth agency or a State or
Territory government entity; or
• any action taken as a result of a NACC Act process or an investigation.
66. This is appropriate to ensure that notifying a person to the existence of an investigation does not
prejudice a separate, ongoing investigation or trial, such as in circumstances where the subject has not
been aware of the Inspector's investigation and notification would alert a person to the fact that they
have been--and may continue to be--under investigation.
Amendments 23, 31 and 32--Appointments
67. Amendments 23, 31 and 32 would correct typographical errors in cross-references to 'subclause 178(5)'
contained in subparagraphs 185(2)(b)(i), 241(2)(b)(i) and 242(2)(b)(i) of the Bill, to correctly refer to
subclause 178(4) of the Bill. The amendment ensures that the before the Minister makes a
recommendation to the Governor-General on the appointments of the Inspector, Commissioner or
Deputy Commissioners, either of the following must have occurred:
• the Committee was taken to have approved the proposed recommendation under subclause
178(4) of the Bill; or
• the Committee notified the Minister that it decided to approve the proposed recommendation.
Amendments 33-36--delegations
68. Amendments 33-35 would amend clause 276 to:
• amend the title to refer to the delegation by the Commissioner, as a consequential amendment to
amendment 34 which would insert new clause 276A (Delegation by the Inspector);
• amend the heading to subclause 276(2) to ensure it fully reflects the content of that subclause,
including the restriction on the delegation of the requirement to consult the Commissioner on
the appointment of the CEO; and
• ensure that staff members of the NACC to whom the Commissioner has delegated the power to
decide to take no action in relation to a corruption issue are required to comply with any
directions from the Commissioner in the exercise of that power.
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69. Amendment 36 would insert new clause 276A, which would permit the Inspector to delegate their
functions, powers and duties under the NACC Bill. This would ensure the effective and efficient exercise
of relevant functions, powers or duties.
General delegation down to Executive Level 2 staff
70. Generally, new clause 276A would permit the Inspector to delegate to persons assisting the Inspector
who are SES employees or employees at or above the Executive Level 2 classification (including staff
acting in those positions). Executive Level 2 persons assisting the Inspector would be expected to lead
investigation teams or supporting functions, similar to a Superintendent in the Australian Federal Police
or a state or territory police force. It is appropriate that the Inspector be able to delegate certain statutory
powers to the senior official leading investigation teams or supporting functions, subject to appropriate
conditions and directions.
Delegation to any person assisting the Inspector
71. New clause 276A would permit the Inspector to delegate the power to decide to take no action in relation
to a NACC corruption issue, and to exercise the Inspector's powers to conduct reviews, to any person
assisting the Inspector. This would ensure the Inspector can devote their resources appropriately.
72. The delegation of the decision to take no action would be expected to be accompanied by directions
under subclause 276A(5) about the kinds of unmeritorious referrals that can be expeditiously dispensed
with, and the kinds of referrals that should be elevated for more senior decision making. This could
include guidance that, for example referrals that contain no discernible connection with the Commission,
the Commonwealth public sector or corruption of any kind, are nonsensical, are duplicates of a previous
referral, or that relate to a matter that the Inspector or senior delegate has determined should not continue
to be escalated (such as continued referrals into a matter that has been fully investigated and that do not
contain fresh evidence) can be expeditiously dispensed with by a more junior delegate.
73. The delegation of the power to conduct reviews to any person assisting the Inspector is appropriate
because persons assisting the Inspector of all levels of seniority will be involved in the conduct of
reviews, and will require the powers conferred by new clause 214A to do so. The ability for the Inspector
to delegate these powers to any person assisting is consistent with the approach taken to the exercise of
comparable review or inspection-related powers in other Commonwealth legislation, such as under
section 9A of the Inspector-General of Intelligence and Security Act 1986 (Inspection functions of the
Inspector-General) and Chapter 4A of the Telecommunications (Interception and Access) Act 1979
(Oversight by the Commonwealth Ombudsman). The delegation of the power to conduct reviews would
similarly be expected to be accompanied by directions under new subclause 276A(5) about the kinds of
reviews that can be conducted by more junior officers, and those appropriate to be conducted at a more
senior level.
Certain functions must not be delegated
74. The Inspector would not be able to delegate any of the following functions, powers or duties:
• the power to summon persons and conduct hearings under clause 214 of the Bill;
• reporting on NACC corruption investigations and NACC complaint investigations;
• the power to disclose information in the public interest under clause 230 of the Bill;
• their function to make recommendations to the NACC on the outcomes of reviews;
• any functions, powers or duties in relation to making an arrangement with the head of an
intelligence agency for dealing with intelligence information; or
• their delegation power.
Delegation must be in writing
75. The Inspector's delegation would be required to be in writing and signed by the Inspector.
Directions
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76. A delegate would be required to comply with any directions of the Inspector. These directions would not
be legislative instruments as they would direct a person who has been delegated functions, powers or
duties by the NACC Bill and the amendments. This is appropriate to ensure the independence of the
Inspector.
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