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2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
National Integrity Commissioner Bill 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of Adam Bandt, MP)
National Integrity Commissioner Bill 2012
OUTLINE
The National Integrity Commissioner Bill 2012 establishes a National Integrity Commission,
bringing together and co-locating the independent oversight functions for:
i. the investigation and prevention of misconduct and corruption in all Commonwealth
departments, agencies, federal parliamentarians and their staff;
ii. the investigation and prevention of corruption in the Australian Federal Police and the
Australian Crimes Commission; and
iii. independent advice to Ministers and parliamentarians on conduct, ethics and matters
of proprietary.
The National Integrity Commission is established as an independent statutory agency and
consists of the National Integrity Commissioner, the Law Enforcement Integrity
Commissioner and the Independent Parliamentary Advisor.
The National Integrity Commissioner is concerned with corruption in relation to public
officials and Commonwealth agencies and has full investigative powers, including
conducting public and private hearings and summoning any person or agency to produce
documents and appear before the Commissioner. The provisions in the Bill in relation to the
National Integrity Commissioner dealing with corruption issues, conducting investigations,
holding public inquiries, including powers requiring people to give evidence or produce
documents, taking evidence at hearings, and applying for and executing search warrants are
based on similar provisions in the Law Enforcement Integrity Commissioner Act 2006.
The Law Enforcement Integrity Commissioner is concerned with corruption in relation to
national law enforcement agencies in accordance with the Law Enforcement Integrity
Commissioner Act 2006 and has the functions and powers conferred under that Act.
The Independent Parliamentary Advisor is concerned with providing independent
confidential advice to ministers, parliamentarians, and former parliamentarians in relation to
conflict of interest, ethics, proprietary and similar matters and providing advice on the
development of codes of conduct.
The National Integrity Commission will operate in the federal jurisdiction and will not
replace or over-ride state legislation. It establishes a provision for the ACT and Northern
Territory to contract the National Integrity Commission to operate in respect of their territory,
in the same way that the Commonwealth Ombudsman acts as the ACT Ombudsman.
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NOTES ON CLAUSES
PART 1 - PRELIMINARY
Clause 1 provides that the Act may be cited as the National Integrity Commissioner Act
2012.
Clause 2 provides for the Commencement of the Bill.
Item 1: Clause 1, clause 2 and any other provision of the Bill that is not specifically
mentioned in this provision, will commence on the day on which the Bill receives Royal
Assent.
Item 2: Clauses 3 to 180 are to commence on a single day to be fixed by Proclamation.
However, if any of these provisions do not commence within the period of 6 months
beginning on the day on which this Act receives Royal Assent, they commence on the first
day after the end of that period.
Item 3: Schedule 1 to commence at the same time as the provisions covered in item 2.
Clause 3 provide for the objects of the Bill.
The overall aim of the Bill is to continuously improve the integrity of the Commonwealth
agencies and ministers and parliamentarians by establishing an independent body responsible
for detecting and investigating corrupt behaviour of those persons and within these agencies.
The Bill aims to deter corruption by increasing the risk of detection. The Bill enables criminal
offences to be prosecuted and civil penalty proceedings to be brought, where necessary
following an investigation.
Clause 4 provides that the Bill does not affect the powers, privileges and immunities of each
House of Parliament, and of the members and committees of each House.
Clause 5 provides that the National Integrity Commission will have jurisdiction within and
outside Australia and every external Territory.
Clause 6 defines terms and expressions used frequently throughout the Bill in order to avoid
doubt and clarify the intended meaning of each word for the specific purposes of the Bill.
Clause 7 provides for the definition of "corrupt conduct" as including any conduct that:
· adversely affects the honest or impartial exercise of functions by the Parliament, a
Commonwealth agency or public officials by any person;
· involves the dishonest exercise of functions by a public official;
· involves a breach of public trust by a public official;
· perverts the course of justice;
· involves the misuse of information or material by a public official.
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Furthermore, subclause 7(2) lists kinds of "corrupt conduct", such as blackmail, bribery and
fraud, for the purposes of adversely affecting the exercise of functions by the Parliament, a
Commonwealth agency or public officials.
Subclauses (3) and (4) provide for when conduct is able to be corrupt conduct even through it
occurred before the commencement of the Bill or before a person became a public official.
Subclause (5) provides that conduct can be corrupt conduct even though it occurred outside
Australia. Subclause (6) provides that the specific mention of a kind of conduct does not limit
the scope of nay other provision in clause 7.
Subclause 7(7) provides that conduct does not amount to "corrupt conduct" unless it could
involve a criminal offence, disciplinary offence, reasonable grounds for dismissing a public
official or a substantial breach of a code of conduct. Subclause (8) provides that it does not
matter if those proceedings or actions can no longer be brought.
Clause 8 provides that a corruption issue exists where public official has engaged, is
engaging, or may at any time in the future engage, in corrupt conduct.
The capacity to investigate cases where corrupt conduct is foreseeable in the future makes the
National Integrity Commissioner's role proactive in addressing corruption.
The clause also provides for investigations to be commenced in circumstances where the
identity of public official alleged to be engaging in corrupt conduct is unknown. This
provision is to ensure that corruption issues cannot be ignored because the person concerned
has not been identified at the outset.
PART 2 - THE NATIONAL INTEGRITY COMMISSION
Division 1 - Introduction
Clause 9 provides for the guide to this part.
Division 2 - Establishment
Clause 10 establishes the National Integrity Commission as a statutory agency with the
National Integrity Commissioner as its head. The National Integrity Commission consists of
integrity officers, Assistant National Integrity Commissioners and Assistant Law
Enforcement Integrity Commissioners and staff.
Clause 11 defines integrity officers as the National Integrity Commissioner, the Law
Enforcement Integrity Commissioner and the Independent Parliamentary Advisor.
Division 3 - Functions and powers of integrity officers
Clause 12 outlines the functions of the National Integrity Commissioner, which include
investigating and reporting on corruption issues, conducting public inquiries at the request of
the Minister and collecting and analysing information on corruption issues to make
recommendations to the Minister.
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This clause also provides for the National Integrity Commissioner, on his or her own
initiative or on request by the Minister, to report to the Minister on necessary or desirable,
legislative or administrative, action in relation to corruption in Commonwealth agencies or
the integrity of public officials. The National Integrity Commissioner may also, with the
consent of the Prime Minster, enter into an arrangement to perform the functions of a territory
integrity commission.
The National Integrity Commissioner also has functions related to advising and assisting
public officials as to changes in the law or procedures to reduce the likelihood of corrupt
conduct and educating and disseminating information on strategies to combat corrupt
conduct. Other functions may be conferred on the National Integrity Commissioner by other
provisions of the Bill or by another Act.
Clause 13 provides that that the functions of the Law Enforcement Integrity Commissioner
are conferred under section 15 of the Law Enforcement Integrity Commissioner Act 2006.
Other functions may be conferred on the Law Enforcement Integrity Commissioner by other
provisions of the Bill or by another Act.
Clause 14 outlines the functions of the Independent Parliamentary Advisor which include
providing confidential advice to Ministers on their compliance with the Standards of
Ministerial Ethics as revised from time to time or any other code of conduct, providing
confidential advice to parliamentarians on matter such as codes of conduct, allowances,
conflicts of interest, issues of ethics or proprietary, or similar issues, providing a presiding
officer or a parliamentary committee with advice on any matters, preparing practice guides
and fact sheets. The clause also provides for the Independent Parliamentary Advisor to
provide an annual report to parliament on the provision of advice to ministers and
parliamentarians, without identifying the parties. Other functions may be conferred on the
Independent Parliamentary Advisor by other provisions of the Bill or by another Act.
Clauses 15, 16 and 17 provide for the powers of the National Integrity Commissioner, Law
Enforcement Integrity Commissioner and Independent Parliamentary Advisor. The National
Integrity Commissioner and the Independent Parliamentary Advisor have the power to do all
things necessary to be done for or in connection with the performance of their functions. The
Law Enforcement Integrity Commissioner has the powers conferred under Parts 9 and 12 of
the Law Enforcement Integrity Commissioner Act 2006.
PART 3 - DEALING WITH CORRUPTION ISSUES
Division 1 - Introduction
Clause 18 provides an outline of this Part.
Division 2 - Referring corruption issues to National Integrity Commissioner
Clause 19 provides that any person may refer an allegation or information that raises a
corruption issue to the National Integrity Commissioner. A person may refer allegations or
information on behalf of another person, a government agency or an association.
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A person can opt to refer allegations or information anonymously. This is an important
feature of the clause, because it is anticipated that people who raise corruption issues with the
National Integrity Commissioner may work with, or be acquainted with the persons about
whom the information or allegation relates.
Clause 20 provides that the National Integrity Commissioner must ask a person who refers an
allegation or information that raises a corruption issue to elect whether he or she wishes to be
kept informed of the action taken in relation to the matter.
The function of the National Integrity Commissioner is not primarily to vindicate the rights of
private complainants but to pursue indications of corruption, however they arise. It is likely
that many referrals of allegations or information will be in the nature of tip-offs or reports of
criminal conduct. Nonetheless, this clause provides a mechanism for identifying those who
may have a personal interest in a matter and wish to be treated as complainants.
Division 3 - How National Integrity Commissioner deals with referred corruption issues
Clause 21 provides for how the National Integrity Commissioner may deal with referred
corruption issues. The National Integrity Commissioner may decide to investigate the
corruption issue or not investigate the corruption issue. The National Integrity Commissioner
may deal with the issues unless they are already being investigated by another
Commonwealth agency, or the referral was frivolous, vexatious or not made in good faith, or
where the corruption issue is the subject of court proceedings or the investigation is not
warranted having regard to all the circumstances.
Clause 22 provides for the National Integrity Commissioner advising a person who refers a
corruption issue of decisions about how to deal with the issue. If a person refers a corruption
issue to the National Integrity Commissioner under clause 19 and elects to be kept informed
of action taken in relation to the issue under clause 20, the National Integrity Commissioner
must advise the person in writing of his or her decision about how to deal with the issue
under clause 21, and the result of any reconsideration of how to deal with the corruption issue
under clause 27. The National Integrity Commissioner does not have to notify the person if
he or she is satisfied that doing so is likely to prejudice an investigation of a corruption issue.
However, if circumstances change so that notifying the person would no longer prejudice the
investigation, then the person's right to be advised is revived.
Clause 23 provides that the National Integrity Commissioner may advise a person to whom a
referred corruption issue relates as to a decision about how to deal with the issue. There is no
mandatory obligation for the National Integrity Commissioner to advise the person under this
clause, because such an obligation might preclude an effective investigation of the issue in
some cases.
Division 4 - National Integrity Commissioner dealing with corruption issues on own
initiative
Clause 24 provides that if the National Integrity Commissioner becomes aware of an
allegation or information that raises a corruption issue, the National Integrity Commissioner
may deal with the issue on his or her own initiative. This includes an allegation or
information that the National Integrity Commissioner becomes aware of in the course of
investigating or inquiring into another corruption issue.
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Clause 25 provides that if the National Integrity Commissioner decides to deal with a
corruption issue under clause 24 on his or her own initiative, he or she must advise the head
of the relevant Commonwealth agency of his or her decision to deal with the matter in that
way, or any decision made following reconsideration under clause 27. The agency head must
be advised in writing and as soon as reasonably practicable after the decision is made.
However, the National Integrity Commissioner need not advise the head of the agency if
doing so is likely to prejudice an investigation or any action taken as a result.
Clause 26 applies if the National Integrity Commissioner decides to deal with a corruption
issue on his or her own initiative and the corruption issue relates to a person who is, or has
been a public official. The National Integrity Commissioner may advise the public official of
the decision to deal with the corruption issue in that way, or any decision made following
reconsideration under clause 27. There is no mandatory obligation for the National Integrity
Commissioner to advise the staff member under this clause, because such an obligation might
preclude an effective investigation of the issue in some cases.
Division 5 - Reconsidering how to deal with a corruption issue
Clause 27 provides that the National Integrity Commissioner may, at any time, reconsider
how a corruption issue is to be dealt with. On that reconsideration, the National Integrity
Commissioner may decide to adopt a new or an alternative method of investigation under
subclause 21(1) or subclause 24(1). If the corruption issue is already being, or will be,
investigated by another Commonwealth agency, the National Integrity Commissioner may
decide to take no further action in relation to that issue, although an investigation by the
National Integrity Commissioner is not precluded in these circumstances. The National
Integrity Commissioner may also take no further action if the allegation or information which
raises the corruption issue is frivolous, vexatious or not made in good faith or where the
corrupt conduct has been, is or will be the subject of court proceedings.
PART 4 - INVESTIGATIONS BY THE NATIONAL INTEGRITY COMMISSIONER
Division 1 - Introduction
Clause 28 provides an outline for this Part.
Division 2 - Investigation
Clause 29 provides that Division 2 dealing with Investigation applies if the National Integrity
Commissioner investigates a corruption issue.
Clause 30 provides that the National Integrity Commissioner may conduct the investigation
in such a manner as the National Integrity Commissioner thinks fit.
Clause 31 provides that the National Integrity Commissioner must not disclose any opinions
or findings that are critical of a Commonwealth agency or person in a report, unless the head
of the agency or the person has been given an opportunity to appear, or have a representative
appear before the National Integrity Commissioner to make submissions in relation to the
subject matter.
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Where the opinion or finding is critical of a person, the National Integrity Commissioner
must provide the person with a statement setting out the opinion or finding and give the
person a reasonable opportunity to be heard or make submissions. Where the opinion or
finding is critical of an agency, the National Integrity Commissioner must provide the head of
the agency with the same opportunities. The clause also provides for submissions to be made
by a representative of the head of agency or person.
However, the National Integrity Commissioner does not have to give a person the opportunity
to be heard where the National Integrity Commissioner is satisfied that a person may have
committed a criminal offence, contravened a civil penalty provision or engaged in conduct
which could be the subject of disciplinary proceedings or termination of employment/
appointment, and that an investigation or any related action would be compromised by giving
the person the opportunity to make submissions.
Division 3 - Reporting
Clause 32 provides that the National Integrity Commissioner must take reasonable steps to
inform a person who refers a matter to the National Integrity Commissioner about the
progress of the investigation if the person has elected to be kept informed under clause 20 as
to the progress of an investigation.
Clause 33 provides that the National Integrity Commissioner must complete a report after an
investigation of a corruption issue. The report must set out the National Integrity
Commissioner's findings, evidence, action taken or to be taken, recommendations and
reasons. The National Integrity Commissioner may recommend termination of the
employment of a person, or the adoption of measures to remedy deficiencies in policy,
procedures or practices. The National Integrity Commissioner may exclude sensitive
information, however, that information must be included in a supplementary report.
Clause 34 provides that the National Integrity Commissioner must give a copy of the report
and any supplementary report to the Prime Minister.
Clause 35 provides that the National Integrity Commissioner must also inform a person who
refers a matter to the National Integrity Commissioner about the outcomes of the
investigation if the person has elected to be kept informed under clause 20. However, if the
National Integrity Commissioner is satisfied that advising the person is likely to prejudice an
investigation or any related action, the National Integrity Commissioner can withhold
advising the person until such time as the circumstances change to remove such prejudice.
Clause 36 provides that the National Integrity Commissioner may advise a person about the
outcome of the investigation where the corruption issue relates to that person. The National
Integrity Commissioner may provide the person with a copy of the whole or part of the
report. However, the National Integrity Commission may withhold sensitive information if it
is desirable to do so in the circumstances.
PART 5 - PUBLIC INQUIRIES INTO CORRUPTION ISSUES
Division 1 - Introduction
Clause 37 provides the outline to the Part.
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Division 2 - Conducting a public inquiry
Clause 38 provides that the National Integrity Commissioner may conduct a public inquiry
into a corruption issue if satisfied it is in the public interest.
Clause 39 imposes a duty on the National Integrity Commissioner to invite submissions on
issues that are the subject of the public inquiry.
Division 3 - Reporting
Clause 40 provides that at the end of an inquiry the National Integrity Commissioner is
required to prepare a report on the inquiry. The report must include the findings, evidence,
action taken or proposed to be taken and recommendations.
The report may exclude "sensitive information" that it is desirable in the circumstances to
exclude. When deciding whether to exclude sensitive information, the National Integrity
Commissioner must take into account the public interest that would be served by including
the information in the report, and the potential prejudicial consequences that might result
from including the information in the report. If information has been excluded from the
report, a supplementary report must be prepared by the National Integrity Commissioner with
the excluded information and reasons for the exclusion.
Clause 41 provides that at the conclusion of the inquiry, the National Integrity Commissioner
must provide the Prime Minister with a copy of the report on the public inquiry prepared
under clause 40 and any supplementary report. Under clause 157 the Prime Minister is
required to table the report in Parliament, however there is no requirement for the Prime
Minister to table a supplementary report.
PART 6 - NATIONAL INTEGRITY COMMISSIONER'S POWERS IN
CONDUCTING INVESTIGATIONS AND PUBLIC INQUIRIES
Division 1 - Introduction
Clause 42 provides an outline to this Part.
Division 2 - Requiring people to give information or produce documents or things
Clause 43 provides that the National Integrity Commissioner will be able to make requests to
persons requiring them to provide information or produce documents or things for the
purposes of investigating a corruption issue. All requests made under clause 43 must be made
in writing, signed by the National Integrity Commissioner and served on persons (subclause
43(2)).
A person that has a request made to him or her under clause 43 must give the information in
writing or produce the documents or things within the time specified in the request or such
further time as the National Integrity Commissioner allows (subclause 43(4)).
A person will commit an offence if he or she fails to comply with a request made to him or
her under clause 43. The offence is set out in clause 45 of the Bill.
8
To ensure that investigations into corruption issues are conducted efficiently, effectively and
fairly, it is necessary to provide the National Integrity Commissioner with the power to
compel the production of documents and information relevant to an investigation.
The type of documents or information that the National Integrity Commissioner will be able
to request under clause 75 is limited to those that are necessary for the purposes of
investigating a corruption issue.
Corruption issue is a term defined in clause 8 of the Bill.
Clause 44 allows the National Integrity Commissioner to retain documents or things
produced to him or her pursuant to a request made under clause 43. Under clause 44, the
National Integrity Commissioner will be able to:
· Take possession of a document or thing,
· Make copies of a document or thing,
· Take extracts from a document, and
· Retain possession of a document or thing for as long as necessary for the purposes of
the investigation for which the document or thing was requested.
Documents or things obtained pursuant to a request made under clause 43 will not be able to
be retained indefinitely. Rather, the period of time that the National Integrity Commissioner
can retain documents or things under clause 44 is limited to the period for which those
documents or things are necessary for the purposes of the investigation for which they were
requested.
At all times while the National Integrity Commissioner retains a document or thing obtained
pursuant to a request made under clause 43, the National Integrity Commissioner must allow
persons who would otherwise be entitled to inspect or view the document or thing to inspect
or view the document or thing at the times that the person would ordinarily be able to do so
(subclause 44(2)). Providing a power of inspection means that the person is not completely
deprived of the document or thing.
Clause 44 is necessary to enable the National Integrity Commissioner to access documents
and information relevant to an investigation into a corruption issue. It also preserves the chain
of evidence, for example, should an investigation eventually lead to action being taken by
prosecutorial authorities or regulators. This clause is similar to sections 2 and 6F of the Royal
Commissions Act, section 18 of the Inspector-General of Intelligence and Security Act,
sections 28 and 29 of the ACC Act, sections 9 and 13 of the Ombudsman Act and sections 18
and 19 of the Inspector-General of Taxation Act.
Clause 45 provides that a person commits an offence if he or she fails to comply with a
request made to him or her under clause 43 within the time period specified in the request.
A person is not excused from complying with a request made under clause 43 on grounds that
production of the information or documents requested could incriminate them. The privilege
against self-incrimination is abrogated in clause 49 of the Bill.
The maximum penalty for the offence is 2 years imprisonment.
Clauses 46, 47 and 48 refer to legal professional privilege. A person must not fail to provide
information or produce a document or thing to the National Integrity Commissioner on the
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ground of legal professional privilege unless a claim has been made to that effect to the
National Integrity Commissioner within the time requiring the information or document or
thing to be produced. In relation to a request to produce a document or thing legal
professional privilege may be claimed if a court has found the document or thing to be
subject to legal professional privilege.
A person commits an offence if they refuse to comply with a request under clause 43 and the
National Integrity Commissioner has decide to reject a claim that the information, document
or thing is subject to legal professional privilege. The maximum penalty for the offence is
$1,000 or imprisonment for 6 months.
Clause 49 provides that the privilege against self-incrimination is abrogated. This means that
a person, requested to provide information, documents or things under clause 43 cannot
refuse to produce the document, information or things on grounds that doing so could
incriminate him or her.
The privilege is not completely abrogated; rather, a use immunity is provided (see subclauses
49(2) and (4)). However the use immunity is not available in five specified circumstances
(see subclause 49(4).
The use immunity operates where a person, prior to producing information or documents or
things pursuant to a request under clause 43 claims that doing so may tend to incriminate or
expose them to a penalty, the information or documents or things will not be admissible as
evidence against the person in criminal proceedings or any other proceedings for the
imposition or recovery of a penalty. There are five circumstances where this use immunity
will not be available.
The use immunity will not be available, meaning that the information or documents or things
will be able to be used in evidence, in:
(a) Proceedings for an offence against clause 45 of the Bill - failure to provide
information, documents or things requested by the National Integrity Commissioner
under clause 43 of the Bill,
(b) Confiscation proceedings - this term is defined in clause 5 of the Bill to mean
proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act
2002, or a corresponding law within the meaning of either of those Acts, but does
not include a criminal prosecution for an offence under either of those Acts or a
corresponding law,
(c) Proceedings for an offence against section 137.1 or 137.2 of the Criminal Code -
being offences for providing false or misleading statements or documents,
(d) Proceedings for an offence against section 149.1 of the Criminal Code - being an
offence for obstructing a Commonwealth public official, or
(e) Disciplinary proceedings against the person if the person is an employee of the
Commonwealth - `disciplinary proceedings' is a term defined in clause 5 of the Bill
and extends to proceedings against the person if they are an employee of the
Commonwealth. This exclusion will only apply if the disciplinary proceedings are
against an employee of the Commonwealth. That is, the use immunity will not be
abrogated in respect of disciplinary proceedings that could be taken in respect of
another profession (for example, the use immunity will exist for information,
documents or things produced by a doctor so that they could not be used in
disciplinary proceedings that might be taken by an medical professional association
against that doctor, for example, for medical negligence).
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Immunity on public interest grounds
A person is not excused from answering a question or providing information or documents or
things when requested under clause 43, on the grounds that answering the question, or
producing the information or documents or things would disclose:
· Legal advice given to a Minister or Commonwealth Government Agency, or
· A communication between another officer of a Commonwealth government agency
and another person, if that disclosure is protected by legal professional privilege.
Commonwealth government agency is a term defined in clause 5 of the Bill.
Similarly, a person is not excused from answering a question or providing information or
documents or things when requested under clause 43, on the grounds that answering the
question, or producing the information or documents or things would breach a secrecy
provision.
There is an exception however if disclosure would breach a taxation secrecy provision or a
law enforcement secrecy provision. This means that if answering the question or disclosing
the information or document or thing would breach a taxation secrecy provision or a law
enforcement secrecy provision, the person will not be required to answer the question or
disclose the information or document or thing and hence could not be held criminally
responsible under clause 45 for failing to comply with a request made under clause 43.
`Taxation secrecy provision' and `law enforcement secrecy provision' are terms defined in
clause 5 of the Bill.
If a person answers a question or provides documents or information or things in response to
a request made of him or her under clause 43, and that answer or disclosure constitutes a
breach of a secrecy provision (other than a taxation secrecy provision or a law enforcement
secrecy provision), subclause 49(7) provides that the person cannot be liable to a penalty for
an offence of breaching the secrecy provision.
Clause 49 also provides that it no excuse for a person to refuse or fail to comply with a
request made under clause 43 to answer a question or produce information or documents or
things on grounds that doing so would be contrary to the public interest.
It is necessary to abrogate the privilege against self-incrimination to ensure that the National
Integrity Commissioner can be given access to information, documents and things relevant to
an investigation into a corruption issue. The inclusion of a use immunity in all but five
limited cases provides a safeguard to persons that are required to answer questions or produce
documents or information or things under a request made under clause 43 that compliance
with that request cannot be used against them in criminal proceedings or proceedings for the
imposition or recovery of a penalty (this includes civil penalty proceedings).
Clause 50 provides that a person who gives information or documents to the National
Integrity Commissioner in response to a request made under clause 43 of the Bill has the
same protection as a witness in proceedings of the High Court.
For example, witnesses will be afforded protections against threatening behaviour,
intimidation, injury and violence. These protections arise from existing offences, such as
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those for threatening, intimidating and inflicting injury or violence upon a witness in Part III
of the Crimes Act. Further, no action lies in relation to the evidence given by the witness in
respect of words he or she uses in the course of the proceedings before the National Integrity
Commissioner.
Division 3 - Conducting hearings
Clause 51 confers powers on the National Integrity Commissioner to hold a hearing for the
purpose of investigating a corruption issue or conducting a public inquiry.
The National Integrity Commissioner has a general power to regulate the conduct of
proceedings at a hearing as he or she sees fit.
Hearing in relation to an investigation into a corruption issue
Subclause 51(3) confers power on the National Integrity Commissioner to hold the whole, or
part of, a hearing into a corruption issue in public or in private. In determining whether to
hold a hearing into a corruption issue in public or in private, subclause 51(4) requires the
National Integrity Commissioner to have regard to whether:
· Evidence that may be given, or a matter that could arise, in the hearing is of a
confidential nature, or relates to the commission (whether real, alleged or suspected)
of an offence,
· The seriousness of the corruption issue,
· A person's reputation could be unfairly prejudiced if the hearing is held in public, and
· It is in the public interest for the hearing to be held in public.
In making the decision whether a hearing into a corruption issue should be held in public or
private, the National Integrity Commissioner is also required to consider any other relevant
matters.
Even where the National Integrity Commissioner determines that a hearing into a corruption
issue is to be held in public, under clause 58 a witness can still request that his or her
evidence be taken in private. Under subclause 58(3) the National Integrity Commissioner can
allow evidence in a public hearing to be given in private if he or she considers it appropriate.
Hearing in relation to a public inquiry
Subclause 51(5) requires that a hearing into a public inquiry be held in public, however it also
confers a discretion on the National Integrity Commissioner to direct that part of a hearing
into a public inquiry be held in private.
It is necessary for the National Integrity Commissioner to have the discretion to hold part of a
hearing into a public inquiry in private because subclause 58(1) of the Bill provides that
certain evidence can only be given in private. Subclause 58(1) requires evidence to be given
in private if the evidence would disclose:
· Legal advice given to a Minister or Commonwealth Government Agency, or
· A communication between another officer of a Commonwealth government agency
and another person, if that disclose is protected by legal professional privilege.
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Subclause 58(1) also requires that evidence be given in private if giving the evidence would
breach a secrecy provision.
Record of a hearing
Subclause 51(6) requires the National Integrity Commissioner to make a record of each
hearing he or she conducts. Subclause 51(7) sets out certain matters that the National
Integrity Commissioner must cause to be included in a record of a hearing. These are:
· Any document produced to the National Integrity Commissioner at the hearing, and
· Description of any thing (other than a document) produced to the National Integrity
Commissioner at the hearing.
However, the National Integrity Commissioner will not be required to include these matters
in the record of a hearing if he or she directs otherwise under subclause 51(7). A direction
given by the National Integrity Commissioner under subclause 51(7) is not a legislative
instrument.
The National Integrity Commissioner holds the discretion as to whether a hearing into a
corruption issue will be heard in public or in private.
Clause 52 confers power on the National Integrity Commissioner to summon a person. Under
subclause 52(1), the National Integrity Commissioner can serve a summons on a person to
attend a hearing at a time and place specified in the summons for the purpose of giving
evidence or producing documents or things specified in the summons. The summons must be
in writing, signed by the National Integrity Commissioner and served on the person required
to attend the hearing (subclause 52(2)).
If the hearing is held for the purpose of investigating a corruption issue and the summons
requires the person to give evidence at the hearing, the summons must set out, to the extent
that is reasonably practicable, the general nature of the matters that National Integrity
Commissioner intends to question the person on (subclause 52(3)). The National Integrity
Commissioner will not be required to set out the matters if he or she is satisfied that doing so
would be likely to prejudice the investigation into the corruption issue, or any action that
could be taken as a result of the investigation into the corruption issue (as examples,
disciplinary action, criminal prosecution, or proceedings for a contravention of a civil penalty
provision).
Although a summons requiring a person to attend a hearing to answer questions should set
out the matters that the National Integrity Commissioner intends to question a person on,
subclause 83(4) provides that if the matters are listed in the summons, the matters listed will
not limit the ability of the National Integrity Commissioner to question the person on aspects
of any corruption issue (whether or not it is the corruption issue that the hearing relates to).
Clause 74 provides that a person can apply for legal and financial assistance in respect of his
or her attendance at a hearing.
Subclause 52(6) provides that a person that is summoned to appear as a witness at a hearing
is entitled to be paid allowances for travel and other expenses. The regulations will prescribe
the allowances. It is necessary for the allowances to be prescribed in the regulations so that
the allowances can be adjusted in a timely manner to respond to changes in market
conditions.
13
Failure to comply with a summons issued under clause 52 is an offence under clause 61 of
the Bill.
It is also an offence for a person to disclose the existence of a summons, or information about
a summons (see clause 61 of the Bill).
Clause 53 provides that if there are arrangements in place between Australia and another
country that allow evidence to be taken in that other country for the purposes of a hearing
held under the Bill, the National Integrity Commissioner may take evidence on oath or by
affirmation in that country. Provided that use of the evidence is in accordance with
Australia's arrangement with the other country, the National Integrity Commissioner can use
the evidence for the purposes of performing his or her functions, or exercising his or her
powers, under the Bill.
Clause 54 provides that those providing evidence at a hearing are entitled to be represented
by a legal practitioner. Those not providing evidence at a hearing are also entitled to be
represented by a legal practitioner if special circumstances exist and they have consent from
the National Integrity Commissioner.
Clause 55 provides that, for a private hearing, the National Integrity Commissioner may
determine the people who can be present during all, or part of the hearing. A determination
made by the National Integrity Commissioner under subclause 55(1) is not a legislative
instrument.
In any case however, the National Integrity Commissioner must allow all legal practitioners
representing a person giving evidence to be present when the evidence is being given. The
National Integrity Commissioner can also consent to a legal practitioner representing a person
not giving evidence to be present.
If a witness is giving evidence at a hearing and there is another person present who is neither
a staff member of the Commission nor a legal practitioner representing a person at the
hearing, the National Integrity Commissioner must inform the witness that the person is
present and give the witness an opportunity to comment on the person's presence.
Subclause 55(4) also provides, for the avoidance of doubt, that even if the National Integrity
Commissioner fails to inform the witness that a person, who is neither a staff member of the
Commission nor a legal practitioner representing a person at the hearing, is present at the
hearing, or the National Integrity Commissioner does not give the witness the opportunity to
comment on the person's presence at the hearing, the person is still entitled to be present at
the hearing if the National Integrity Commissioner has determined this to be the case under
subclause 55(1).
Subclause 55(5) creates a criminal offence. The offence applies if a person is present while
evidence is being given in private at a hearing and the person is not authorised to be there.
The only time a person can be taken to be authorised to be there is where:
· The person is giving evidence, or
· The person is a legal practitioner representing a person giving evidence,
· The person is a legal practitioner and even though he or she is not representing a
person giving evidence, the National Integrity Commissioner has consented to him or
her being present,
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· The National Integrity Commissioner has determined under subclause 86(1) that the
person can be present.
The offence is punishable by a maximum penalty of 12 months imprisonment.
Clause 56 provides that the National Integrity Commissioner may require a witness at a
hearing to take an oath or affirmation. Clause 56 confers power on the National Integrity
Commissioner to administer an oath or affirmation to a witness.
The consequence of the power of the National Integrity Commissioner under subclause 56(1)
to compel a witness to take an oath or affirmation is that hearings held by the National
Integrity Commissioner under the Bill are characterised as `judicial proceedings' under Part
III of the Crimes Act. This means that the offences attaching to judicial proceedings as set out
in Part III of the Crimes Act are applicable to hearings conducted under the Bill. For
example, offences for giving false testimony, fabricating evidence, intimidation of witnesses,
corruption of witnesses, deceiving witnesses, destroying evidence etc are available.
If the National Integrity Commissioner is taking evidence from a witness overseas, as he or
she is authorised to do under clause 53 of the Bill, the National Integrity Commissioner is
empowered by subclause 56(2) to administer an oath or affirmation on the witness. If the
National Integrity Commissioner does administer an oath or affirmation on a witness
overseas, subclause 56(2) requires the National Integrity Commissioner to ensure that the
oath or affirmation is administered in accordance with the arrangement made between
Australia and the other country for the taking of that evidence (this is the same `arrangement'
referred to in clause 53 of the Bill) and in accordance with the laws of that other country.
An oath or affirmation administered by the National Integrity Commissioner under clause 56
is an oath or affirmation that the evidence the witness will give will be true.
Under subclause 56(4) the National Integrity Commissioner has a discretion to allow a person
who is attending a hearing who has been sworn or has made an affirmation to give evidence
at the hearing by tendering a written statement and verifying it by oath or affirmation.
Failure to take an oath or make an affirmation if requested by the National Integrity
Commissioner is an offence under clause 62 of the Bill. The offence is punishable by a
maximum penalty of two years imprisonment. Clause 67 of the Bill abrogates the privilege
against self-incrimination for this offence.
Conferring power on the National Integrity Commissioner to compel a witness to take an oath
or affirmation ensures the efficacy of evidence given in a hearing.
Clause 57 provides that the National Integrity Commissioner can allow for a witness to be
examined and cross-examined during a hearing. However the only persons who the National
Integrity Commissioner can authorise to conduct examination and cross-examination are:
· Counsel assisting the National Integrity Commissioner generally,
· Counsel assisting the National Integrity Commissioner in the investigation or public
inquiry to which the hearing relates,
· Persons summoned, or otherwise authorised under the Bill, to appear before the
National Integrity Commissioner, and
· Legal practitioners representing a person at the hearing.
15
This clause provides for a way for evidence of a witness to be adduced and tested during a
hearing. It is similar to section 6FA of the Royal Commissions Act.
Clause 58 relates to the giving of evidence in private.
Certain evidence must be given in private
Subclause 58(1) of the Bill provides that certain evidence can only be given in private.
Subclause 58(1) requires evidence to be given in private if the evidence would disclose:
· Legal advice given to a Minister or Commonwealth Agency, or
· A communication between another officer of a Commonwealth agency and another
person, if that disclosure is protected by legal professional privilege.
Subclause 58(1) also requires that evidence be given in private if giving the evidence would
breach a secrecy provision.
There is an exception to the requirement to give evidence at all if disclosure would breach a
taxation secrecy provision or a law enforcement secrecy provision. If answering the question
or disclosing information or a document or thing would breach a taxation secrecy provision
or a law enforcement secrecy provision, the person will not be required to answer the
question or disclose the information or document or thing.
Person may request that certain evidence be given in private
Under subclause 58(2), a witness who is giving evidence at a public hearing can request that
the evidence be given in private if the evidence relates to the profits or financial position of a
person and the taking of the evidence in public would be unfairly prejudicial to the interests
of that person.
Under subclause 58(3), the National Integrity Commissioner has the discretion to allow the
evidence to be given in private if he or she considers it appropriate.
Clause 59 provides for directions in relation to confidentiality.
Prohibition of limitation on publication
Subclause 59(1) confers power on the National Integrity Commissioner to issue a direction
limiting or preventing the publication of evidence, documents and descriptions of things
produced to the National Integrity Commissioner during a hearing. Under subclause 59(1) the
National Integrity Commissioner can also prevent or limit the publication of information that
could enable the identification of a person who has given evidence at a hearing, or the fact
that the person has given, or may be about to give, evidence at the hearing.
The Integrity Commissioner has a discretion whether to issue a direction under subclause
59(1) unless the hearing is being held in private and the National Integrity Commissioner is
satisfied that failure to give a direction might prejudice a person's safety or reputation, or the
fair trial of a person who has been or may be charged with an offence. In such cases,
subclause 59(2) removes the National Integrity Commissioner's discretion and requires him
or her to issue a direction under subclause 59(1).
16
Failure to comply with a direction issued by the National Integrity Commissioner under
subclause 59(1) is an offence under subclause (6), punishable by a maximum penalty of 12
months imprisonment.
Under subclause 59(3), the National Integrity Commissioner has a limited ability to vary or
revoke a direction given under subclause 59(1). The National Integrity Commissioner cannot
vary or revoke a direction if the National Integrity Commissioner is satisfied that doing so
might prejudice a person's safety or reputation or the fair trial of a person who has been or
may be charged with an offence.
Any variation to, or revocation of, a subclause 59(1) direction must be given in writing.
Court certificate in relation to evidence in respect of which a direction has been given
Where a person has been charged with an offence, before a federal court or a court of a State
or Territory, and the court considers it to be desirable in the interests of justice that particular
evidence that is the subject of a direction given by the National Integrity Commissioner under
subclause 59(1) be made available to the person or a legal practitioner representing the
person, the court is empowered to give the National Integrity Commissioner a certificate to
that effect. If the National Integrity Commissioner is given a certificate by a court under
subclause 59(4), he or she must make the evidence available to the court.
If the National Integrity Commissioner provides evidence to a court pursuant to a certificate
issued by the court under subclause 59(4), the court may, after examining the evidence, make
the evidence available to the person charged with the offence concerned, or to a legal
practitioner representing the person, provided that the court is satisfied that the interests of
justice so require (subclause 59(5)). The court makes the final determination whether the
evidence should be passed to the defendant, or the defendant's legal practitioner.
Offence
Subclause 59(6) makes it an offence for a person to contravene a direction given to him or
her by the National Integrity Commissioner under subclause 59(1).
The offence is punishable by a maximum penalty of 12 months imprisonment.
Clause 60 provides that if a summons has been served on a person under clause 52 requiring
the person to attend a private hearing, under subclause 60(2) the National Integrity
Commissioner has a general discretion (limited by subclauses 60(3)-(5)) to include a notation
in the summons preventing or limiting disclosure of information about the summons or any
official matter connected with the summons.
Under subclause 60(3) the National Integrity Commissioner will be required to include a
notation (no discretion) if the National Integrity Commissioner is satisfied that failure to
include a notation would reasonably be expected to prejudice the safety, reputation or fair
trial of a person, or an investigation or action taken as a result of an investigation, whether
that investigation relates to the hearing or another corruption issue.
If the National Integrity Commissioner has a discretion whether to include a notation in a
summons (that is, subclause 60(3) does not apply), subclause 60(4) provides that the National
17
Integrity Commissioner can only include the notation if satisfied that failure to do so might
prejudice the safety, reputation or fair trial of a person, or an investigation or action taken as a
result of an investigation, whether that investigation relates to the hearing or another
corruption issue, or would otherwise be contrary to the public interest. If none of these factors
are present, subclause 60(5) provides that the National Integrity Commissioner cannot
include a notation in a summons.
Written statement to accompany notation
If a notation is included in a summons, subclause 60(6) requires that the summons must be
accompanied by a written statement that sets out the rights and obligations conferred and
imposed by clause 61 of the Bill.
Cancellation of a notation
Subclause 60(7) provides that a notation to a summons is cancelled if the National Integrity
Commissioner concludes the subject investigation and any criminal proceedings resulting
from the investigation have commenced.
If a notation is cancelled, subclause 60(8) requires the National Integrity Commissioner to
advise the person that was served the summons of the cancellation in writing.
This clause is designed to prevent a disclosure which could lead to the destruction, or
alteration of evidence, intimidation of witnesses etc. Disclosing the mere existence of an
investigation may prompt actions of those under investigation, detrimentally affecting the
National Integrity Commissioner's outcome. However, a specified circumstance allowing
disclosure is likely to be in order to obtain legal advice.
Relationship of notation with Privacy Act
Subclause 60(9) provides that where a notation has been made on a summons, credit
reporting agencies are prohibited from making a note about any disclosure of personal
information they make about an individual unless the notation is cancelled. This is relevant
because credit reporting agencies would otherwise be required to make a note about that
disclosure in the individual's credit information file (subsection 18(5) of the Privacy Act).
Clause 61 provides for offences in relation to disclosure.
Offence
Subclause 61(1) creates a criminal offence where a person who has been served with a
summons (under clause 52 of the Bill) that includes a notation (included on the summons
under clause 60 of the Bill) and the person discloses the existence of, or any information
about, the summons or any official matter connected with the summons. The elements of the
offence will only be satisfied if the prosecution can prove that the notation was not cancelled
by subclause 60(7) and five years has not passed since the summons was served on the
person.
The offence is punishable by a maximum penalty of 12 months imprisonment.
Defence
18
Subclause 61(2) provides a defence to the offence in subclause 61(1) where the disclosure
was made:
· In circumstances permitted by the terms of the notation,
· To a legal practitioner for the purpose of obtaining legal advice or representation in
relation to the summons,
· To a legal aid officer for the purpose of obtaining assistance in relation to the
summons, or
· Where the person is a body corporate--to an officer or agent of the body corporate for
the purpose of ensuring compliance with the summons.
If a defendant wishes to rely on the defence in subclause 61(2), he or she will bear an
evidentiary burden in relation to the matters set out in subclause 61(2). This is because of the
operation of section 13.3 of the Criminal Code. It is appropriate for the defendant to bear the
burden of proving these matters because they are matters that, by their nature, are within the
knowledge of the defendant.
Offence
Subclause 61(3) creates a criminal offence where a person who has been served with a
summons (under clause 52 of the Bill) that includes a notation (included on the summons
under clause 60 of the Bill) and the person discloses the existence of, or any information
about, the summons or any official matter connected with the summons. The elements of the
offence will only be satisfied if the prosecution can prove that the notation was not cancelled
by subclause 60(7) and five years has not passed since the summons was served on the
person.
The offence is punishable by a maximum penalty of 12 months imprisonment.
Defence
Subclause 61(4) provides a defence to the offence in subclause 61(3) where the disclosure
was made:
· if the person is an officer or agent of a body corporate referred to in paragraph (2)(d):
- to another officer or agent of the body corporate for the purpose of ensuring
compliance with the summons,
- to a legal practitioner for the purpose of obtaining legal advice or
representation in relation to the summons, or
- to a legal aid officer for the purpose of obtaining assistance under section 74 in
relation to the summons, or
· if the person is a legal practitioner--for the purpose of giving legal advice, making
representations, or obtaining assistance in relation to the summons, or
· if the person is a legal aid officer--for the purpose of obtaining legal advice or
representation in relation to the summons.
If a defendant wishes to rely on the defence in subclause 61(4), he or she will bear an
evidentiary burden in relation to the matters set out in subclause 61(4). This is because of the
operation of section 13.3 of the Criminal Code. It is appropriate for the defendant to bear the
burden of proving these matters because they are matters that, by their nature, are within the
knowledge of the defendant.
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Offence
Subclause 61(5) creates a criminal offence where a person who has been served with a
summons (under clause 52 of the Bill) that includes a notation (included on the summons
under clause 60 of the Bill) and the person makes a record of, or discloses the existence of, or
any information about, the summons or any official matter connected with the summons. The
elements of the offence will only be satisfied if the prosecution can prove that the notation
was not cancelled by subclause 60(7) and five years has not passed since the summons was
served on the person.
The restrictions of disclosure are imposed to ensure the quality of investigations and to
protect the nature of any proceedings. The offences are aimed at preventing investigative
work from being compromised by the disclosure of information that could infer the identity
of a witness or the existence of an investigation.
Subclause 61(6) provides that a reference in clause 61 to disclosing the existence of
something extends to the disclosure of information from which a person could reasonably be
expected to infer its existence.
Clause 62 outlines various offences for failing to comply with a summons served by the
National Integrity Commissioner.
Offence for failure to attend hearing
Subclause 62(1) makes it is an offence for a person to fail to attend or report from day to day
at a hearing if required to do so under a summons.
There is an exception to this offence where the defendant can prove that the National
Integrity Commissioner excused him or her from attending the hearing. The defendant will
bear an evidentiary burden to prove that he or she was excused if he or she wishes to rely on
this exception. The defendant bears the evidentiary burden because of the operation of section
13.3 of the Criminal Code.
The offence is punishable by a maximum penalty of 12 months imprisonment.
Failure to swear an oath or make an affirmation
Subclause 62(2) makes it an offence for a person who is served with a summons to attend a
hearing to fail to be sworn or make an affirmation at the hearing.
The offence is punishable by a maximum penalty of 2 years imprisonment.
Failure to answer questions
Subclause 62(2) also makes it an offence for a person who is served with a summons to
attend a hearing to fail to answer questions that the National Integrity Commissioner requires
the person to answer at the hearing.
This offence is punishable by a maximum penalty of 2 years imprisonment.
Failure to produce a document or thing
20
Subclause 62(4) makes it an offence for a person to fail to produce a document or thing the
person was required to produce under a summons served on them by the National Integrity
Commissioner.
This offence is punishable by a maximum penalty of 2 years imprisonment.
Clause 63 creates three types of offences that support the National Integrity Commissioner's
power to control the proceedings of hearings and address improper behaviour. The offences
will preserve the integrity and due conduct of proceedings.
Subclause 63(1) makes it an offence for a person to insult, disturb or use insulting language
toward another person where that other person is the National Integrity Commissioner. The
offence will only be made out if the on can prove that the person knew that the other person
was the National Integrity Commissioner, and was holding a hearing in the performance of
his or her functions, or the exercise of his or her powers, as the National Integrity
Commissioner. This offence is punishable by a maximum penalty of 6 months imprisonment.
Subclause 63(2) makes it an offence for a person to create a disturbance or take part in
creating or continuing a disturbance in or near a place where a hearing is being held for the
purpose of investigating a corruption issue or conducting a public inquiry. The offence will
only be made out if the prosecution can prove that the person knew that the place is a place
where a hearing is being held for the purpose of investigating a corruption issue or
conducting a public inquiry. This offence is punishable by a maximum penalty of 6 months
imprisonment.
Subclause 63(3) makes it an offence for a person to interrupt a hearing that is being held for
the purpose of investigating a corruption issue or conducting a public inquiry. It is also an
offence under subclause 63(3) for a person to do an act or thing that, if the hearing were
being held in a court of record, would constitute contempt of that court. This offence is
punishable by a maximum penalty of 6 months imprisonment.
Clauses 64, 65 and 66 contain provisions relating to legal professional privilege in similar
terms as clauses 46, 47 and 48 above.
Clause 67 abrogates the privilege against self-incrimination. This means that a person,
summoned under clause 52 to answer questions, provide information, documents or things at
a hearing cannot refuse to produce the document, information or things on grounds that doing
so could incriminate him or her. This clause is in similar terms as clause 49 above.
Clause 68 gives the National Integrity Commissioner standing to apply to a Judge of the
Federal Court for an order that a person deliver his or her passport to the National Integrity
Commissioner. The National Integrity Commissioner can only apply to the Judge if:
(i) the person has been served with a summons under clause 52 of the Bill to attend a
hearing into a corruption investigation or public inquiry, or the person has already
attended a hearing in relation to a corruption investigation or public inquiry to give
evidence or produce documents or things, and
(ii) there are reasonable ground for believing that the person may be able to give
evidence that is relevant to the investigation or public inquiry, and
21
(iii) there are reasonable grounds for suspecting that the person has, in his or her
possession, custody or control, a passport issued to him or her, and
(iv) there are reasonable grounds for suspecting that the person intends to leave
Australia.
In applying for an order under subclause 68(1), subclause 68(2) requires that the National
Integrity Commissioner give the Judge the information on oath or by affirmation.
This clause is aimed at preserving the evidence of witnesses by assuring their attendance at a
hearing to provide information, documents, things or testimony where there is a reasonable
suspicion that the witness may leave Australia before providing that evidence.
Clause 69 allows the Federal Court to make an independent decision about whether a
person's passport should be submitted to the National Integrity Commissioner.
Clause 70 confers power on an authorised officer to apply to a Judge of the Federal Court of
Australia, or of the Supreme Court of a State or Territory, for a warrant to arrest a person. An
authorised officer can only make an application to a court under subclause 70(1) if he or she
has reasonable grounds to believe that the person falls within one of the three categories that
follow:
(i) The person has been ordered to deliver his or her passport to the National Integrity
Commissioner (whether or not the person has complied with the order) and is likely
to leave Australia for the purpose of avoiding giving evidence at a hearing before
the National Integrity Commissioner, or
(ii) The person has been served with a summons issued under clause 52 and has either
absconded or is likely to abscond, or is otherwise attempting, or likely to attempt, to
evade service of the summons, or
(iii) The person has committed an offence under subclause 62(1) or is likely to do so.
In making an application under subclause 70(1), subclause 70(2) requires that the authorised
officer give the Judge the information required in subclause 70(1) either on oath, or by
affirmation.
Clause 71 provides for the issue of a warrant for arrest. If a Judge, while sitting in Chambers,
is satisfied on the evidence that there are reasonable grounds for believing that the matters set
out in subclause 70(1)(a) or 70(1)(b) or 70(1)(c) are met, subclause 71(1) confers power on
the Judge to issue a warrant authorising the authorised officer to arrest the person.
Subclause 71(2) provides that, for the purpose of executing a warrant issued under subclause
71(1), if the authorised officer executing the warrant, or an assisting officer, believes on
reasonable grounds that the person to whom the warrant relates is on certain premises, the
authorised officer or assisting officer is authorised to break into, and enter, those premises.
However, if the premises are a dwelling house, subclause 71(3) limits the ability of the
authorised officer or assisting officer to enter the premises. Subclause 71(3) prohibits the
authorised officer executing the warrant, or assisting officer, from entering a dwelling house
at any time during the period commencing at 9 pm on a day and ending at 6 am on the
following day unless the authorised officer or assisting officer believes on reasonable grounds
22
that it would not be practicable to arrest the person, either at the dwelling house or elsewhere,
at another time.
In arresting a person under a warrant issued under subclause 71(1), subclause 71(4) prohibits
the authorised officer executing the warrant, or assisting officer, from using more force, or
subjecting the person to greater indignity, than is necessary and reasonable to make the arrest
or to prevent the escape of the person after the arrest.
Under subclause 71 (5) a warrant issued under subclause 71(1) can be executed even if the
authorised officer does not have a copy of the warrant in his or her possession at the time that
the warrant is executed.
Subclause 71 (6) requires the authorised officer executing a warrant issued under subclause
100(1), or an assisting officer who arrests the person to whom the warrant relates, to inform
the person, at the time of the arrest, of the reason for which he or she is being arrested. For
the purposes of informing the person under subclause 71(6), subclause 71(7) provides that it
is sufficient if the person is informed of the substance of the reason. That is, it is not
necessary that this be done in language of a precise or technical nature.
There is an exception to the requirement on an authorised officer or assisting officer under
subclause 71 (6) to inform the person, at the time of the arrest, of the reason for which he or
she is being arrested. Subclause 71(8) provides that the requirement on an authorised officer
or assisting officer under subclause 71(6) to inform the person, at the time of the arrest, of the
reason for which he or she is being arrested does not apply if:
· the person should, in the circumstances, know the substance of the reason for which
he or she is being arrested, or
· the person's actions make it impracticable for the authorised officer executing the
warrant (or an assisting officer making the arrest) to inform the person of the reason
for which he or she is being arrested.
Subclause 71(9) provides that nothing in clause 71 prevents the arrest of a person in
accordance with any other law (such as the Crimes Act).
Definitions
Subclause 71 (10) sets out particular definitions for the terms `dwelling house' and `Judge'
for the purposes of the operation of clause 71.
Subclause 71(10) provides that, for the purposes of clause 71, `dwelling house' includes a
conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily
retire for the night.
Subclause 71(10) provides also that `Judge' means a Judge of the Federal Court of Australia,
or a Judge of the Supreme Court of a State or Territory.
Clause 72 provides for the powers of a Judge in relation to a person arrested. Subclause 72(1)
provides that a person who is arrested under a warrant issued under clause 71 must be
brought before a Judge as soon as practicable after the arrest.
23
Following the person being brought before the Judge in accordance with subclause 72(1),
subclause 72(2) confers power on the Judge to:
(a) Grant the person bail on such security as the Judge thinks fit and on such
conditions as the Judge thinks are necessary to ensure that the person appears as a
witness at a hearing before the National Integrity Commissioner, or
(b) Order that the person continue to be detained for the purpose of ensuring that the
person appears as a witness at a hearing before the National Integrity
Commissioner, or
(c) Order that the person be released.
Where a person is detained under subclause 72(2)(b), subclause 72(3) requires that the person
must be brought before a Judge within the time fixed by the Judge on the person's last
appearance before a Judge, or if a Judge has not fixed a time, within 14 days after the person
was last brought before a Judge.
Subclause 72(4) provides a particular definition of `Judge' for the purposes of the operation
of clause 72. Subclause 72(4) provides that, for the purposes of clause 72, `Judge' means a
Judge of the Federal Court of Australia, or a Judge of the Supreme Court of a State or
Territory.
Clause 73 allows the National Integrity Commissioner to retain documents or things
produced to him or her pursuant to a summons issued under clause 52. Under clause 73, the
National Integrity Commissioner will be able to:
· Take possession of a document or thing,
· Make copies of a document or thing,
· Take extracts from a document, and
· Retain possession of a document or thing for as long as necessary for the purposes of
the investigation or public inquiry for which the document or thing was requested.
Documents or things obtained pursuant to a summons issued under clause 52 will not be able
to be retained indefinitely. Rather, the period of time that the National Integrity
Commissioner can retain documents or things is limited to the period for which those
documents or things are necessary for the purposes of the investigation or public inquiry for
which they were requested.
At all times while the National Integrity Commissioner retains a document of thing obtained
pursuant to a summons issued under clause 52, the National Integrity Commissioner must
allow persons who would otherwise be entitled to inspect or view the document or thing to
inspect or view the document or thing at the times that the person would ordinarily be able to
do so (subclause 73(2)). Providing a power of inspection means that the person is not
completely deprived of the document or thing.
Clause 74 provides for a person who is summoned under clause 52 to attend a hearing may
apply to the Attorney-General for assistance in respect of his or her attendance at the hearing,
or his or her representation at the hearing by a legal practitioner.
Under subclause 74(2), a person who is not giving evidence at a hearing before the National
Integrity Commissioner; and is being represented at the hearing by a legal practitioner with
24
the consent of the National Integrity Commissioner, may apply to the Attorney-General for
assistance in respect of that representation.
Under subclause 74(3), the Attorney-General can authorise the Commonwealth to provide a
person who has applied for assistance under subclause 74(1) or (2) with financial or legal
assistance in respect of the person's attendance at the hearing or the person's representation at
the hearing by a legal practitioner, if the Attorney-General is satisfied that it would involve
substantial hardship to the person to refuse the application or the circumstances of the case
are of such a special nature that the application should be granted.
Subclause 74(4) provides that Legal or financial assistance may be given unconditionally or
subject to such conditions as the Attorney-General determines.
Subclause 74(5) provides that an instrument that determines the conditions on which legal or
financial assistance may be given is not a legislative instrument.
Clause 75 provides that the National Integrity Commissioner and any Assistant National
Integrity Commissioner have the same protection and immunity as a Justice of the High
Court whilst performing their duties, obligations and exercising their powers. A legal
practitioner assisting the National Integrity Commissioner or representing a person and
witnesses before the National Integrity Commissioner have the same protection as the
respective roles appearing in the High Court.
Clause 76 provides protections for witnesses at a hearing before the National Integrity
Commissioner.
Division 4 - Search warrants
Clause 77 prescribes that the persons subject to search warrants under the Division will be
the "possessor"- a person who has the control of a thing in any place, even if someone else
has actual possession or custody of the thing.
Clause 78 sets out the process for applications for warrants to search premises and persons.
The clause makes a distinction between applications for an investigation warrant and
applications for an offence warrants.
An investigation warrant will be sought where there is suspicion of evidential material
relevant to an investigation of a corruption issue or public inquiry. Along similar lines to
section 4 of the Royal Commissions Act 1902, subparagraph 78 (1)(b) provides that an
investigation warrant to search premises will only be available where the authorised officer
has reasonable grounds for believing that if a person was served with a summons to produce
the evidential material it would be concealed, mutilated, lost or destroyed.
An offence warrant will be sought in more definitive circumstances where there is suspicion
of evidential material relevant to a particular offence against a law of the Commonwealth.
An authorised officer may apply for a warrant to search premises, carry out an ordinary
search or a frisk search of a person.
An authorised officer must give information on oath or affirmation of particulars of
applications and outcomes of previous warrants sought or executed on the subject persons or
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premises in addition to, the grounds of their suspicions and beliefs. The authorised officer
must also give information on oath or by affirmation, if and why he or she believes that it
may be necessary to use firearms in the execution of the warrant.
Information required regarding previous warrants applied for and/or executed in relation to
the same people alerts the issuing officer to a situation of possible harassment and/or lack of
reasonable grounds.
Clause 79 provides that the issuing officer may issue a warrant if he or she is satisfied that
the authorised officer has reasonable grounds to suspect that there is or will be within 72
hours, evidential material on the premises or person which may be concealed, lost, mutilated
or destroyed.
Clause 80 sets out the information that is required to be included in a warrant which must
include a statement as to whether the warrant is an investigation warrant or an offence
warrant. If it is an investigation warrant the warrant must state the corruption issue or public
inquiry to which it relates. If it is an offence warrant, the warrant must state the offence to
which the warrant relates.
In both cases the warrant must contain a description of the premises or the name and
description of the person to be searched, the kinds of evidentiary material that are to be
searched for, the name of the authorised officer responsible for execution of the warrant, the
period in which the warrant remains in force (which can be no longer than seven (7) days, yet
successive warrants may be issued) and the particular hours in which the warrant may be
executed. If the warrant is in relation to premises, it must also include authorisation for the
necessary seizure of things found to prevent concealment, loss, destruction or use, and
whether an ordinary or frisk search of a person at, or near the premises is authorised. Where
the warrant is in relation to a person, it must also include whether an ordinary or frisk search
is authorised and the authority for the necessary seizure of things found in the person's
possession, or in an aircraft, vehicle or vessel the subject person had operated or occupied
within 24 hours before the search to prevent the concealment, loss, destruction or use.
Clause 81 provides that an authorised officer may apply for a warrant by telephone, fax, e-
mail or other electronic means where there is urgency or where a delay would in some way
frustrate the effective execution of the warrant. These applications must contain all necessary
information required from an ordinary warrant application and an application made by these
means must be where there is a belief that evidentiary material is, or will be on the subject
premises or person within 48 hours (any time longer, up to 72 hours will require an ordinary
application).
This clause acknowledges that in practice there may be circumstances where there is a need
for urgency and therefore provides for faster process.
Clauses 82 and 83 set out the powers of an authorised officer in executing a warrant in
relation to premises and persons respectively.
In the case of a warrant executed on premises an authorised officer is allowed to enter and
search the subject premises and record fingerprints and take samples for forensic purposes.
The authorised officer can also seize what is believed to be eligible seizable items, the types
of evidential material specified in the warrant and any other things found if there is a belief
that seizure is necessary to prevent concealment, loss, destruction or use of what may be
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evidentiary material. If the warrant allows, the authorised officer may also conduct an
ordinary or frisk search of a person who is at, or near the premises.
A search warrant executed in relation to a person allows an authorised officer to search the
person in the manner specified in the warrant, being either a frisk or ordinary search. The
authorised officer may search all things found in the person's possession, any aircraft, vessel
or vehicle operated or occupied by the person within the 24 hours before the search, seize
things specified in the warrant, take and record fingerprints and forensic samples, seize other
things found if there is a belief that it is evidentiary material and the seizure is necessary to
prevent concealment, loss, destruction or use. The search of the person must not be different
from that authorised in the warrant.
Clause 84 provides that a warrant may not authorise a strip or body cavity search as the
procedure is too invasive and not necessary for the investigations predicted to be undertaken
by the National Integrity Commissioner. This clause protects a person who may be subject to
an investigation and subsequently a search under a warrant.
Clause 85 further imposes the obligation to adhere to the conditions of the warrant. A
warrant must not be executed outside hours specified in the warrant. Items seized may be
made available to officers of other government agencies, if necessary for the purpose of
investigating or prosecuting an offence.
This clause extends the information sharing clauses of the Bill and promotes co-operation
amongst the law enforcement agencies. It will also reduce the duplication in work and
minimise delays in investigations should evidence not be accessible from other agencies.
Clause 86 provides that prior to entering premises under a warrant, an authorised officer
must announce that he or she is authorised to enter, and provide any person at the premises
with the opportunity to allow the entry. Announcement of entry will not, however, be
required if the authorised officer believes that immediate entry is required to ensure either the
safety of a person, or the effective execution of the warrant.
This clause ensures the person is given notice and provided with an opportunity to co-operate
with the authorised officer in the search. A search with co-operation is often more successful
and professional. The occupier of the premises is also entitled to be made aware of the
situation.
Clause 87 provides that an authorised officer may obtain the assistance necessary and use a
reasonable amount of force whilst executing a warrant. A person who is not an authorised
officer must not take part in searching any person.
The authorised officer is given the discretion to use the necessary force needed which allows
for the authorised officer to protect him or herself and others assisting in the execution of a
warrant. The requirement of having only authorised officers taking part in searches and
arrests is to ensure that these procedures are carried out by only those who have been
provided with training and fulfilled the requirements to ensure that care, professionalism and
due diligence are present.
Clause 88 is a formal provision providing that the Subdivision applies whare a warrant is
executed at premises.
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Clause 89 provides that if an occupier or someone representing the occupier is present at the
premises, the authorised officer must identify him or herself to the person and make a copy of
the warrant available to that person, and/or a person being searched under the warrant.
The person has the right to be informed and it clarifies that the search is legal and all
requirements have been fulfilled to allow the procedure to take place.
Clause 90 provides that the occupier or someone representing the occupier, is entitled to
watch the search, or part thereof (more than one area may be searched at a time), but such
right ceases when he or she impedes the search in any way.
This clause provides the occupier with rights but those rights shall not conflict with a search.
In circumstances where an occupier can assist in the search by providing instructions as to
how to operate a device etc. it will be useful for the authorised officer to have him or her
present.
Clause 91 provides that an authorised officer may take photographs or video recordings at
the premises for a purpose incidental to the execution of the warrant, or with the written
consent of the occupier. The authorised officer may temporarily stop the search and leave the
premises for up to one (1) hour (or longer with the written consent of the occupier) and then
return to the premises and complete the search, only if the warrant is still in force. If the
execution of a warrant is stopped by a court order which is later revoked or reversed on
appeal, the execution may be completed only if the warrant is still in force.
This clause ensures that under no circumstances should a warrant be executed unless it is
valid and in force, regardless of partial execution or court proceedings delaying etc. It
prescribes the authorised officer with the onus to re-apply for a new warrant where an
existing warrant expires for any reason. The strict provision of this clause is to ensure the
admissibility of evidence obtained and further, to protect the Commonwealth from being
exposed to an action for damages in relation to premises and persons searched and items
seized.
Clause 92 provides that an authorised officer may bring any equipment necessary to examine
and process things to determine if they may be seized under the warrant. If it is not
practicable to examine or process things on the premises, or if the occupier consents, things
may be moved to another place. If things are moved, the authorised officer must advise the
occupier of the time and place of any examination or processing, and allow him, her or a
representative to attend. An authorised officer may operate equipment (other than electronic
equipment) to examine or process things to determine if they may be seized, only where the
authorised officer or assisting officer believe the examination or processing can be carried out
without damaging the equipment or thing.
Clause 93 provides that an authorised officer may operate electronic equipment to see if
evidentiary material is accessible, if he or she believes that it can be operated without
damage. If evidentiary material is found, the equipment may be seized with any disk, tape or
associated device, only if it is not practicable to document, or copy the evidentiary material,
or if the possession of such equipment constitutes an offence.
This clause permits an authorised officer to copy all data held on a storage device if some of
the data contains evidentiary material. In circumstances where it is not practical to make
copies such as a computer where the hard drive contains a large amount of data, an authorised
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officer is not required to search through all the data during the execution of the warrant at the
premises, and copy only the evidentiary material found at this time. Rather this clause allows
the authorised officer to copy all of the data where an initial search uncovers some
evidentiary material or where the authorised officer believes it may contain evidentiary
material. For example, the most effective way to search a large amount of data may be to load
it all to a single device and develop a program to search the data.
Clause 94 provides that if an authorised officer believes that an expert may access evidential
material from electronic equipment found at the premises, and the material may be destroyed,
altered or interfered with if action is not taken to secure the equipment, the authorised officer
may, after notifying the occupant in writing, take steps necessary to secure the equipment, for
up to 24 hours to allow it to be operated by an expert. An authorised officer may apply to an
issuing officer for an extension of time if it is believed that an expert will not be available
within 24 hours. The occupant must be notified of the application for an extension and is
entitled to be heard.
This clause allows the authorised officer to follow a procedure which adequately considers
the occupier's rights, and allows for evidentiary material to be preserved until processed or
examined.
Clause 95 provides that an authorised officer may apply to an issuing officer for an order
requiring a specified person to provide information or assistance necessary to access data
from a computer on warrant premises. The issuing officer may grant the order where there are
reasonable grounds to suspect that the specified person can access evidentiary material from
the computer, if he or she is suspected of committing the offence stated in the warrant, if he
or she is the owner or the lessee, or the employee of the owner or lessee of the computer, and
has the relevant knowledge of the computer or the network and the measures applied to
protect the data held, or accessible from the computer. A person that fails to comply with
such order is liable to six (6) months imprisonment.
This clause intends to secure the access and value of evidentiary material stored in computers
on warrant premises. Developments in technology allow computers to store large amounts of
data and have complex security measures such as encryption and passwords to protect
information. Multi-level password protection is often programmed to delete or alter data
when an incorrect password is provided and this clause provides for assistance to ensure that
relevant data is not erased or altered by misuse.
Clause 96 provides that when data accessed under clause 93(1) is held on premises other than
the warrant premises, the authorised officer must, if it is practicable to do so, notify the
occupier of the premises in relation to which the warrant is in force. If the authorised officer
intends to continue to access data on premises other than the warrant premises then this
information must also be conveyed to the occupier.
As most business computers are networked to other computers, files on one computer are
often accessible by another computer. Accordingly, it is critical that the authorised officers
executing a search warrant are able to search material accessible from the warrant premises,
irrespective of where the material is physically located. This clause mirrors section 3LB of
the Crimes Act 1914 and includes the term practicable as a discretionary tool for the
authorised officer to evaluate the circumstances and consequences of advising the third party.
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Clause 97 provides that if insufficient care is exercised when either operating, or choosing a
person to operate equipment, the Commonwealth must pay reasonable compensation to the
owner if the equipment, data or programs are damaged. In determining reasonable
compensation, consideration will be given to whether or not the owner, user, their agents or
employees provided any appropriate warnings or guidance for the operation of the
equipment. If an agreement on reasonable compensation cannot be reached, the owner or user
may institute proceedings in the Federal Court.
Clause 98 provides that if a document, film, computer file or other thing that can be readily
copied is seized, the authorised officer must provide a copy to the occupier if requested.
This clause allows the person to obtain legal advice in relation to copies of material seized
while ensuring there can be no dispute as to the state of evidence.
Clause 99 provides for a receipt for items seized or moved under a warrant to be provided by
the Authorised to ensure the proper handling and returning of evidence when it is no longer
required. This clause ensures there will be no dispute as to an item not being returned as well
as keeping records of evidentiary material.
Clause 100 provides that an authorised officer must identify themselves to a person being
searched and a copy of the warrant must be made available to him or her. The person has a
right to be informed of the situation, prior to a search commencing. This identification offers
an opportunity for the person to co-operate as they are less likely to resist with the officers
which will make the search easier on all involved.
Clause 101 provides that if practicable, an ordinary or frisk search of a person is to be
conducted by a person of the same sex.
Clause 102 provides that a person (i.e. an authorised officer) commits an offence if he or she
knowingly makes a false or misleading statement in applying for a search warrant and will be
liable to two (2) years imprisonment.
This clause intends to ensure that all warrants executed are granted by a Judge or Magistrate
on correct information. The reasonable grounds to believe that evidentiary material may be
obtained stated in the application must be honest and accurate.
Clause 103 provides that a person commits an offence if he or she states a name of an issuing
officer on the form of search warrant that differs to that of the issuing officer who approved
the telephone application and will be liable to two (2) years imprisonment.
This clause is to ensure that the approval of a search warrant is in all ways true and correct.
Clause 104 provides that in circumstances where a person makes an application for a search
warrant by telephone, he or she commits an offence if a matter is stated on the form of search
warrant which he or she knows to be a departure from the authority given by the issuing
officer and will be liable to two (2) years imprisonment.
This clause intends to serve as a control on the operation of telephone warrants. Potentially,
telephone warrants may cause problems with confusion, misinterpretation and honest
mistakes arising out of the haste at the time and this clause will ensure that persons applying
for telephone warrants do not take advantage of the process.
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Clause 105 provides that person commits an offence if he or she executes or presents a
document purporting to be a search warrant which he or she knows has not been approved, or
departs from the approval obtained from an issuing officer and will be liable to two (2) years
imprisonment.
This clause intends to prevent authorised officers from failing to fulfil all requirements of a
valid search warrant.
Clause 106 provides that a person commits an offence if he or she gives an issuing officer a
form of search warrant which is not the form of search warrant that he or she executed under
a telephone application and will be liable to two (2) years imprisonment.
This clause ensures that the telephone application granted is the same as the search carried
out. All of these offences carry a criminal penalty making the authorised officers individually
liable for their own actions.
Clause 107 provides that this Division is not intended to limit or exclude the operation of
another law of the Commonwealth in relation to the search of persons or premises, arrests or
seizures.
Clause 108 provides that this Division does not affect the laws relating to legal professional
privilege.
Division 5-Powers of Arrest
Clause 109 provides that authorised officers who are not "constables", will still have the
same powers and duties as a constable under Divisions 4 and 5 of Part IIA of the Crimes Act
1914 for the purpose of investigating corruption issues. These powers and duties include
those related to arrest as well as search. The term "constable" is defined in the Crimes Act as
meaning a special member of the Australian Federal Police or a member of the police force or
police service of a State or Territory.
Division 6-Authorised Officers
Clause 110 provides that the National Integrity Commissioner may appoint a person in
writing to be an authorised officer where, the person is either a member of the AFP or, a staff
member of the National Integrity Commission and the National Integrity Commissioner
considers him or her to be suitable and qualified for the appointment.
This clause seeks to ensure that authorised officers exercising powers and duties under the
Bill possess the upmost of integrity, skills and experiences in investigations and obtaining
evidence. Authorised officers are given the powers of arrest and to apply and execute search
warrants under the Bill and it is essential that they are experienced, diligent and trustworthy.
Clause 111 provides that the National Integrity Commissioner must issue all authorised
officers an identity card in the form provided in the Regulations, which includes a recent
photograph of the authorised officer, which must be returned to the National Integrity
Commissioner immediately upon ceasing to be an authorised officer, a failure to do so is
punishable by one (1) penalty unit.
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This clause intends to ensure that authorised officers are easily identifiable. In circumstances
where authorised officers are executing a search warrant on premises, the identity card can be
displayed to occupiers to confirm their authority.
PART 7 - DEALING WITH EVIDENCE AND INFORMATION OBTAINED IN
INVESTIGATION OR PUBLIC INQUIRY
Division 1 - Introduction
Clause 112 provides an outline of the Part.
Division 2 - Dealing with Evidence Obtained in Investigation or Public Inquiry
Clause 113 provides that if the National Integrity Commissioner obtains admissible evidence
rendering a person liable to a criminal or civil penalty under a Commonwealth, State or
Territory law, the National Integrity Commissioner must provide the evidence to the
Commissioner of the Australian Federal Police in the case of a Commonwealth law, the head
of the police force of the State or Territory in the case of a State or Territory law, or an
authority or person who is authorised to prosecute the offence or commence civil penalty
proceedings under a Commonwealth, State or Territory law.
Clause 114 provides that if the National Integrity Commissioner obtains admissible evidence
rendering a person liable to proceedings under the Proceeds of Crime Act 1987, the Proceeds
of Crime Act 2002 or a corresponding law of a State or Territory, the National Integrity
Commissioner must provide the evidence to the Commissioner of the Australian Federal
Police in the case of a Commonwealth law, the head of the police force of the State or
Territory in the case of a State or Territory law, or an authority or a person who is authorised
to commence proceedings under a Commonwealth, State or Territory law.
Clause 115 provides that if, during an investigation or public inquiry, the National Integrity
Commissioner obtains evidence that a person was wrongly convicted of an offence against a
law of the Commonwealth, a State or Territory, he or she must notify the Prime Minister of
the evidence. The National Integrity Commissioner must also notify the convicted person that
the evidence has been brought to the notice of the Prime Minister.
PART 8 - INDEPENDENT PARLIAMENTARY ADVISOR
Division 1 - Introduction
Clause 116 provides an outline of this Part.
Division 2 - Requests for advice
Clause 117 provides that a Minister may request advice from the Parliamentary Advisor
about their compliance with an applicable code of conduct. The request must be in writing
and must be about a matter related to the Minister or a family member of the Minister.
Clause 118 provides that a presiding officer or chair of committee of the House of
Representatives or the Senate may request advice in writing from the Parliamentary Advisor
32
about any relevant matter, including the development of a code of conduct for
parliamentarians.
Clause 119 provides that a parliamentarian or former parliamentarian may request advice
from the Parliamentary Advisor on matters such codes of conduct, parliamentary allowances,
conflicts of interest, and ethical issue or matter of propriety. The request must be in writing
and must be about a matter related to the parliamentarian or a family member of the
parliamentarian or a person employed or formally employed by the parliamentarian.
Clause 120 provides that the advice provided by the Parliamentary Advisor must be in
writing.
Clause 121 provides for the Parliamentary Advisor to request additional information.
Division 3 - Reporting
Clause 122 provides for the Parliamentary Advisor to provide an annual report at the end of
each financial year to the President of the Senate and the Speaker of the House of
Representatives.
Division 4 - Better practice guides and fact sheets
Clause 123 provides that the Parliamentary Advisor may promote better practice in relation
to matters of conduct, proprietary and ethics by preparing and disseminating guides and fact
sheets to Ministers and parliamentarians.
PART 9 - ADMINISTRATIVE PROVISIONS
Division 1 - Introduction
Clause 124 provides an outline of the Part.
Division 2 - Appointment etc of the integrity officers
This Division deals with the appointment, terms and conditions and remuneration of the
integrity officers.
Clauses 125 to 133 provide for the appointment and conditions of appointment of the
National Integrity Commissioner.
Clause 134 provides that the appointment and conditions of appointment of the Law
Enforcement Integrity Commissioner are provided for in the Law Enforcement Integrity
Commissioner Act 2006.
Clauses 135 to 143 provide for the appointment and conditions of appointment of the
Independent Parliamentary Advisor.
Division 3 - Appointment etc of Assistance National Integrity Commissioners
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Clauses 144 to 152 provide for the appointment and conditions of appointment of Assistant
National Integrity Commissioners.
Division 4 - Staff, consultants and delegations
Clauses 153 and 154 provide for the appointment of staff and engagement of consultants by
the National integrity Commission.
Clause 155 provides for the delegation of powers by the National Integrity Commissioner,
except in relation to holding hearings for the purpose of a public inquiry. Delegations must be
in writing and signed by the National Integrity Commissioner.
Division 5 - Public reporting
Clause 156 provides that the National Integrity Commissioner must give a report to the
Prime Minister to be presented in Parliament on the performance of the National Integrity
Commissioner's functions during each financial year. The clause prescribes all matters to be
addressed in the report.
Clause 157 provides that the Prime Minister must cause reports given to him or her by the
National Integrity Commissioner under clauses 33 or 40 relating to a public hearing, to be
laid before each House of Parliament within fifteen (15) sitting days of receipt of the report.
The clause further provides that prior to the report being tabled, the Prime Minister must
remove all information from the report that could endanger a person's safety, prejudice an
investigation or proceedings brought as a result of an investigation, or compromise
operational activities or methodologies of the National Integrity Commission.
To avoid doubt, the clause also particularises that a supplementary report is not required to be
tabled in Parliament.
Clause 158 provides that the National Integrity Commissioner may give the Prime Minister a
special report on the operation, function and exercise of his or her powers for part of a year to
be presented in Parliament. The Prime Minister must cause the report to be laid before each
House of the Parliament within fifteen (15) sitting days after receipt.
The National Integrity Commissioner must not disclose any opinions or findings in a special
report which are critical of a government agency or person in a report, unless the head of the
agency or the person has been given an opportunity to appear, or have a representative appear
before the National Integrity Commissioner to make submissions in relation to the subject
matter.
Clause 159 provides that the National Integrity Commissioner may exclude from an annual
report prepared under clause 156 or a special report prepared under clause 158 information
that is sensitive and it is desirable to exclude, however, in doing so, the National Integrity
Commissioner must seek to balance the public interest served and the prejudicial
consequences occurring by the disclosure of the information in the report.
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Division 6 - Confidentiality Requirements
Clause 160 provides that a person who either directly or indirectly, whilst they are, or were a
staff member of National Integrity Commission makes record, divulges or communicates any
information disclosed or obtained under the Bill, acquired by being a staff member of
National Integrity Commission, or in the course of his or her duties as a staff member of
National Integrity Commission, is liable to 60 penalty units and/or one (1) year
imprisonment, subject to clauses 161 and 162.
Clause 161 provides that clause 160 does not prevent a staff member from making records,
divulging or communicating information acquired in the performance of his or her duties for
the performance of the functions of the National Integrity Commissioner under the Bill. The
National Integrity Commissioner is also permitted to disclose information to the
Commonwealth Ombudsman, the Ombudsman of a State or Territory, the head of a law
enforcement agency, the head of a police force of a State or Territory, the head of an integrity
agency or the head of another government agency where the National Integrity Commissioner
decides that the information may be more appropriately dealt with by that agency. The
National Integrity Commissioner is permitted to disclose information where a corresponding
law is in force with a corresponding provision to clause 160 with respect to confidentiality of
information acquired by persons within that agency.
This clause provides that the disclosure of information is not prevented by clause 160 where
the disclosure is required under another Commonwealth law.
This clause also provides that the National Integrity Commissioner is authorised to disclose
information to a particular person where necessary to protect the person's life or safety.
Clause 162 provides that the National Integrity Commissioner may disclose information to
the public or a section of the public about the performance of his or her functions or an
investigation where the disclosure is in the public interest.
The clause provides that prior to disclosing any sensitive information, the National Integrity
Commissioner must consider a balance between the public interest and the prejudicial
consequences that may result in disclosing the information.
Clause 163 provides that the National Integrity Commissioner must not disclose any opinions
or findings which are critical of a government agency or person, unless the head of the
agency or the person has been given an opportunity to appear, or have a representative appear
before the National Integrity Commissioner to make submissions in relation to the subject
matter.
Clause 164 provides that a person who is, or has been a staff member of National Integrity
Commission cannot be compelled to disclose information that was obtained under the
provisions of the Bill, which were acquired because of being, or having been a staff member
of National Integrity Commission, before any court proceedings or a person authorised to
hear, receive and examine evidence.
However, the clause provides that a staff member or former staff member of National
Integrity Commission will be compelled to provide evidence in proceedings where either the
National Integrity Commissioner, a delegate of the National Integrity Commissioner or a
35
person authorised by the National Integrity Commissioner are party to proceedings in official
capacity. Staff members of National Integrity Commission may also be compelled to provide
evidence in proceedings brought in carrying out a provision of the Bill or proceedings
resulting from an investigation.
PART 10 - PARLIAMENTARY JOINT COMMITTEE ON THE NATIONAL
INTEGRITY COMMISSION
Clause 165 defines key terms used in this Part. The Parliamentary Joint Committee on the
National Integrity Commission will be referred to as the `committee' and members of the
committee will be referred to as a `member'.
Clause 166 provides that as soon as is practicable after the first session of each Parliament, a
Joint Committee of members is to be appointed by the existing practices of appointing
members to serve on joint select committees for both Houses of the Parliament.
The committee will be made up of five (5) members of each House. Members of the
committee cannot hold the office of Minister, President, Speaker, Deputy-President or Chair
of Committees and will cease to be a member of the committee if he or she obtains one of
these offices after their appointment. Either House may appoint one of its members to fill a
vacancy amongst the members of the committee appointed by that House.
Clause 167 requires all matters relating to the powers and proceedings of the committee to be
determined by resolution of both Houses of Parliament.
Clause 168 provides that the committee: is to consider a proposed recommendation for an
appointment of the National Integrity Commissioner; must monitor, review and report on the
performance of the national integrity commissioner functions and any matter relating to the
National Integrity Commission; examine annual and special reports of National Integrity
Commission; examine trends in law enforcement in relation to corruption and proposed
changes to the National Integrity Commissioner's functions, powers, procedures or the
National Integrity Commission structure.
The clause also provides for similar duties for the committee in relation to the Law
Enforcement Integrity Commissioner.
To avoid doubt, this clause also provides that the committee is not authorised to investigate a
corruption issue or reconsider decisions or recommendations made by the National Integrity
Commissioner or by the Law Enforcement Integrity Commissioner.
Clause 169 provides that if the Prime Minister refers a proposed recommendation for an
appointment of the National Integrity Commissioner for approval, the committee must
approve or reject the recommendation within 10 sitting days or notify the Prime Minister they
need more time to consider the proposed recommendation.
Clause 170 provides that the National Integrity Commissioner must inform the committee
when requested, of the general conduct of National Integrity Commission operations and
provide information related to investigations and inquiries. If the National Integrity
Commissioner is satisfied that the information is, or includes sensitive information and the
36
prejudicial consequences outweigh the public interest served by providing the information to
the committee, the National Integrity Commissioner may also decide not to comply with the
committee's request.
In circumstances where the National Integrity Commissioner does not provide requested
information to the committee, the committee may refer their request to the Prime Minister,
who will then determine whether or not the information is sensitive information, and, if so,
whether the prejudicial consequences outweigh the public interest served by providing the
information to the committee.
Clause 171 is an equivalent provision to clause 170, in relation to the Law Enforcement
Integrity Commissioner.
Clause 172 provides that the Minister must comply with a request from the committee in
relation to an investigation of an ACLEI corruption issue by a special investigator, unless the
information would contravene a certificate under section 149 of the Law Enforcement
Integrity Commissioner Act 2006.
Clause 173 provides for the Ombudsman to brief the committee about the Law Enforcement
Integrity Commissioner's involvement in controlled operations.
PART 11 - MISCELLANEOUS
Clause 174 provides that any person who causes, or threatens to cause detriment to another
person (the `victim') on the basis that the victim refers, notifies or produces documents to the
National Integrity Commissioner is liable to two (2) years imprisonment. Where a victim is
threatened, whether the threat is express, implied, conditional or unconditional, the
prosecution of the offence does not require proof that the victim actually feared the threat
would be carried out. The burden is lowered with the intention of pursuing all threats made,
regardless of the intensity and to demonstrate that threatening witnesses or those providing
assistance to the National Integrity Commissioner is not tolerated.
The clause intends to ensure that persons involved in an investigation by the National
Integrity Commissioner can assist in the investigation and be protected from harassment or
violence by reason of their involvement.
Clause 175 provides that in relation to an application or proposed application to the Federal
Court or the Federal Magistrates Court for an order of review of a matter arising under the
Bill (pursuant to the Administrative Decisions (Judicial Review) Act 1977) a person may
apply to the Attorney-General for legal and financial assistance.
Where an application for legal and/or financial assistance is made, the Attorney-General may
authorise the Commonwealth to provide such assistance, either unconditionally or subject to
specified terms, if satisfied that a substantial hardship would be suffered if assistance was
refused, or where the circumstances of the case are of a special nature.
The intention of this provision is to attempt to provide an equal access to justice. The
assistance can provide resources for representation and minimise a potential disadvantage.
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Further, the assistance will allow access to legal advice to assess claims and prevent
applications being pursued where there is no merit, saving the court's time.
Clause 176 provides that a staff member of National Integrity Commission is not liable to
civil proceedings in relation to an act or omission done in good faith during the performance,
or purported performance of their functions under the Bill.
A person requested by the National Integrity Commissioner to assist a staff member of the
National Integrity Commission is not liable to civil proceedings in relation to an act or
omission done in good faith during the performance, or purported performance, of assisting
the staff member.
In circumstances where information, documents or evidence is produced to the National
Integrity Commissioner, a person is not liable to any action, suit, claim or proceeding in
relation to the loss, damage or injury suffered by another person as a result of the evidence
being provided to the National Integrity Commissioner.
The intention of the clause is to allow staff members of the National Integrity Commission to
perform their duties, functions and exercise the powers authorised under the Bill, without the
fear of personal liability for any actions they perform.
Clause 177 provides that the National Integrity Commissioner, an Assistant National
Integrity Commissioner and staff members of National Integrity Commission are not required
to obtain a licence or permission under any State or Territory law, for the purpose of doing an
act or thing in the course of their respective duties under the Bill. Further, the National
Integrity Commission is not required to register any vehicle, vessel, animal or article
belonging to the Commonwealth.
The clause intends to prevent National Integrity Commission being restricted in the
performance of its duties by imposing different State and Territory regulations. Due to the
National Integrity Commission's function of investigating corruption issues nationally, staff
members will be qualified under the Commonwealth.
Clause 178 provides that the Prime Minister must cause an independent review to be
undertaken into the first three years of the operation of the Act. The review must be
completed within 6 months after the end of the 3 year period.
Clause 179 provides that each Act specified in a Schedule to the Bill is amended or repealed
as set out in the Schedule.
Clause 180 provides that the Governor-General may make Regulations prescribing matters
required or permitted by the Bill, or which are necessary or convenient to be prescribed.
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SCHEDULE 1 - AMENDMENTS
Law Enforcement Integrity Commissioner Act 2006
Items 1 to 5 make consequential amendments to the Law Enforcement Integrity
Commissioner Act 2006, given the Bill provides for the Law Enforcement Integrity
Commissioner to be a part of the National Integrity Commission, including the repeal of the
provisions in that Act about the Parliamentary Joint Committee on the Australian
Commission for Law Enforcement Integrity (Part 14) which have now been subsumed into
Part 10 of this Bill.
Ombudsman Act 1976
Item 6 makes consequential amendments to the Ombudsman Act 1976 providing for the
Ombudsman to refer allegations or information that raise a corruption issue to the National
Integrity Commissioner.
Privacy Act 1988
Item 7 amends a note attached to subsection 18K(5) of the Privacy Act 1988 relation to the
disclosure of information if a notation has been made on a summons.
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