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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Independent Commission Against Crime and Corruption
Bill 2007
A BILL FOR
An Act to establish the Independent Commission Against Crime and
Corruption; to define its functions and powers; and for other
purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
Part 2—The Independent Commission against Crime and
Corruption
Division 1—The Commission
4 Establishment of
Commission
5 Membership of Commission
6 Eligibility for appointment under
this Part
7 Terms and conditions of appointment
8 Remuneration
9 Acting
Commissioner or assistant commissioner
10 Members of Commission not to engage
in remunerative employment
Division 2—The Commission's
functions
11 Functions of Commission
12 Task
forces
13 Co-operation with other law enforcement agencies
14 Incidental
powers of Commission
15 Staff of Commission
16 Counsel assisting
Commission
17 Delegation
Part 3—Investigations and hearings
Division 1—Investigations
18 Initiation of
investigation
19 Persons who may make complaints
20 Certain matters need
not be entertained
21 Power to obtain information
22 Power to obtain
documents
23 Power to enter public premises
24 Privilege as regards
information, documents, etc
25 Privilege as regards entry of public
premises
26 Self-incrimination
27 Injunctions
28 Powers exercisable
whether or not hearings being held
Division 2—Hearings
29 Hearings
30 Public
and private hearings
31 Rights of appearance and
representation
32 Examination and cross-examination
33 Power to summon
witnesses and take evidence
34 Declarations as to objections by
witness
35 Attendance of prisoner before Commission
36 Arrest of
witness
Division 3—Search warrants
37 Search
warrants
38 Authority conferred by warrant
39 Duty to show
warrant
40 Use of force
41 Assistance in executing warrant
42 Execution
of warrant by day or night
43 Expiry of warrant
44 Seizure under
warrant
Division 4—Miscellaneous
45 Protection of
witnesses
46 Reimbursement of expenses of witnesses
47 Legal and financial
assistance
Part 4—Referral of matters by
Commission
48 Interpretation
49 Referral of matter
50 Report to
Commission
51 Further action by Commission
52 Responsibility of relevant
authority
53 Revocation of referral, recommendation, etc
Part 5—The Operations Review
Committee
54 Interpretation
55 Establishment of
Committee
56 Membership of Committee
57 Acting appointed
member
58 Eligibility for appointment
59 Terms and conditions of
appointment
60 Remuneration
61 Effect of other Acts
62 Functions of
Committee
63 Procedure at meetings
64 Conflict of interest
Part 6—The Parliamentary Joint
Committee
65 Establishment of Committee
66 Membership of
Committee
67 Presiding officer
68 Vacancy in office
69 Functions of
Joint Committee
70 Procedure at
meetings
71 Evidence
72 Confidentiality
Part 7—References by and reports to
Parliament
73 Interpretation
74 References by
Parliament
75 Reports on referred matters
76 Special reports
77 Annual
report
78 Report relating to authorities
79 Provisions relating to
reports
Part 8—Offences
80 False or misleading
evidence
81 Offences relating to documents or other things
82 Fraud on
witness
83 Preventing witness from attending
84 Injury to
witness
85 Dismissal of witness by employer
86 Impersonation of officer of
Commission
87 Procuring false testimony by witness
88 Bribery of
witness
89 Bribery of officer of Commission
90 Obstruction of
Commission
Part 9—Contempt of
Commission
91 Interpretation
92 Contempt
93 Punishment of
contempt
94 General provisions regarding contempt
95 Act or omission that
is both an offence and contempt
Part 10—Miscellaneous
96 Evidence and
procedure
97 Court proceedings
98 Immunity from
liability
99 Secrecy
100 Publication of evidence, etc
101 Evidence in
criminal proceedings
102 Disclosures prejudicing investigations
103 Duty
to report corrupt conduct
104 Indemnity from
prosecution
105 Parliament
106 Service of documents
107 Penalties for
offences committed by corporations
108 Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Independent Commission Against Crime and
Corruption Act 2007.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
assistant commissioner means an assistant commissioner
appointed under Part 2;
Commission means the Independent Commission Against Crime
and Corruption established under Part 2;
Commissioner means the Commissioner appointed under Part
2;
conduct includes omission;
domestic partner means a person who is a domestic partner
within the meaning of the Family Relationships Act 1975, whether
declared as such under that Act or not;
investigation means an investigation into a matter that the
Commission is authorised to investigate under this Act;
Joint Committee means the Committee on the Independent
Commission Against Crime and Corruption established under Part 6;
judicial body means a court or tribunal, body or person
invested by law with judicial or quasi-judicial powers, or with authority to
make an inquiry or to receive evidence;
judicial officer means a person who alone or with others
constitutes a judicial body;
local government body means a council or other body
constituted under the Local Government Act 1999;
member of the Commission means the Commissioner or an
assistant commissioner;
officer of the Commission means a member of the Commission, a
member of the staff of the Commission or a person engaged by the Commission
under section 15(2);
organised crime means a course of criminal conduct or series
of criminal offences that—
(a) involves substantial planning and organisation; and
(b) is carried out principally for the profit of persons other than those
who commit the offences;
premises means land or a building, structure, aircraft,
vehicle or vessel, or a part of any of those things;
public authority means—
(a) an agency or instrumentality of the Crown or a body (whether or not
incorporated) that is established by or under an Act and—
(i) is comprised of persons, or has a governing body comprised of persons,
a majority of whom are appointed by the Governor, a Minister or an agency or
instrumentality of the Crown; or
(ii) is subject to control or direction by a Minister; or
(b) a statutory authority the accounts of which the Auditor-General is
required by law to audit; or
(c) a local government body; or
(d) the South Australia police; or
(e) an authority declared by regulation to be a public authority for the
purposes of this Act;
public officer means—
(a) the Governor; or
(b) a person appointed to public office by the Governor or by a Minister;
or
(c) a judicial officer; or
(d) a member of Parliament; or
(e) a person employed in the Public Service of the State; or
(f) a police officer; or
(g) any other officer or employee of the Crown; or
(h) a person who constitutes or is a member of the governing body of a
public authority; or
(i) an officer or employee of a public authority; or
(j) a person, or persons of a class, declared by regulation to be a public
officer for the purposes of this Act;
search warrant means a search warrant issued under this
Act;
spouse—a person is the spouse of another if they are
legally married;
task force means a group of persons to which a particular
task has been or is to be assigned.
(2) For the purposes of this Act—
corrupt conduct means—
(a) conduct of a person that adversely affects, or could adversely affect,
directly or indirectly the honest or impartial exercise of an official function
by a public officer or public authority; or
(b) conduct of a public officer that constitutes or involves the dishonest
or partial exercise of his or her official functions; or
(c) conduct of a public officer or former public officer that constitutes
or involves a breach of public trust; or
(d) conduct of a public officer or former public officer that involves the
misuse of information acquired in the course of his or her official functions
(whether or not for his or her benefit or for the benefit of any other
person),
if that conduct constitutes or involves—
(e) a criminal offence; or
(f) grounds for disciplinary action under any law; or
(g) grounds under any law for removing a public officer from
office,
whether or not proceedings for an offence, disciplinary action or removal
from office can still be taken.
(3) Conspiring or attempting to engage in conduct referred to in
subsection (2) also constitutes corrupt conduct for the purposes of this
Act.
(4) The application of this Act extends to—
(a) conduct that occurred before the commencement of this
Act—
(i) whether or not any of the elements establishing corrupt conduct
occurred before that commencement; and
(ii) whether or not a person involved in the conduct who was a public
officer at the time of its occurrence is still a public officer after that
commencement; or
(b) conduct that constitutes corrupt conduct only after the person engaged
in it becomes a public officer; or
(c) conduct that occurs outside this State.
Part
2—The Independent Commission against Crime and
Corruption
(1) The Independent Commission Against Crime and Corruption is
established.
(2) The Commission—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) is capable of suing and being sued in its corporate name;
and
(d) has all the powers of a natural person that are capable of being
exercised by a body corporate; and
(e) has the functions and powers assigned or conferred by or under this
Act.
(3) If a document appears to bear the common seal of the Commission, it
will be presumed, in the absence of proof to the contrary, that the document was
duly executed by the Commission.
The Commission consists of—
(a) a Commissioner appointed by the Governor on the address of both Houses
of Parliament; and
(b) such assistant commissioners (if any) as the Governor may, with the
concurrence of the Commissioner, appoint.
6—Eligibility for
appointment under this Part
(1) A person is not eligible for appointment as the Commissioner or an
assistant commissioner unless—
(a) the person is eligible to be appointed as a Justice of the High Court
of Australia, or a Judge of the Federal Court of Australia or the Supreme Court
of a State or Territory of the Commonwealth; or
(b) the person is a former judge of a court referred to in
paragraph (a) or any other court of a State or Territory of the
Commonwealth.
(2) A person is not eligible to be appointed as the Commissioner or an
assistant commissioner if—
(a) the person is a member of the judiciary; or
(b) the person is a member of—
(i) the Parliament of this State or any other State of the Commonwealth;
or
(ii) the Parliament of the Commonwealth; or
(iii) a Legislative Assembly of a Territory of the Commonwealth.
7—Terms and
conditions of appointment
(1) The Commissioner or an assistant commissioner will be appointed on
conditions determined by the Governor and for a term, not exceeding
5 years, specified in the instrument of appointment.
(2) A person appointed to be the Commissioner or an assistant commissioner
is, on the expiration of his or her term of office, eligible for reappointment
but a person cannot hold office as the Commissioner or an assistant commissioner
for terms totalling more than 5 years.
(3) The Governor may, on the address of both Houses of Parliament, remove
the Commissioner from office.
(4) The Governor may remove an assistant commissioner from
office—
(a) for breach of, or non-compliance with, a condition of appointment;
or
(b) for misconduct; or
(c) for failure or incapacity to carry out official duties
satisfactorily.
(5) The office of Commissioner or assistant commissioner becomes vacant if
the holder—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Governor; or
(d) is appointed to judicial office; or
(e) is nominated for election as a member of—
(i) the Parliament of this State or any other State of the Commonwealth;
or
(ii) the Parliament of the Commonwealth; or
(iii) a Legislative Assembly of a Territory of the Commonwealth;
or
(f) becomes bankrupt; or
(g) is convicted in this State of an offence that is punishable by
imprisonment for a term of at least 12 months, or is convicted in a court
of a place outside this State of an offence that, if committed in this State,
would be an offence so punishable; or
(h) is removed from office by the Governor under subsection (3) or
(4).
(6) On the office of Commissioner becoming vacant, a person must be
appointed in accordance with this Act to fill the vacancy.
(7) On the office of an assistant commissioner becoming vacant, a person
may be appointed in accordance with this Act to fill the vacancy.
A member of the Commission is entitled to remuneration, allowances and
expenses determined by the Governor.
9—Acting
Commissioner or assistant commissioner
(1) If, for any reason—
(a) the Commissioner or an assistant commissioner is temporarily unable to
perform official duties; or
(b) the office of Commissioner or assistant commissioner is temporarily
vacant,
the Governor may—
(c) appoint a person who is eligible for appointment as Commissioner as
Acting Commissioner; or
(d) appoint a person who is eligible for appointment as an assistant
commissioner as an acting assistant commissioner.
(2) The Acting Commissioner has all the powers, functions, privileges and
immunities of the Commissioner.
(3) An acting assistant commissioner has all the powers, functions,
privileges and immunities of an assistant commissioner.
(4) Subject to this Act, the terms and conditions of appointment and
employment (including the salary and allowances) of a person appointed under
subsection (1) will be as determined from time to time by the
Governor.
10—Members of
Commission not to engage in remunerative employment
A member of the Commission must not, without the approval of the Minister,
engage in any remunerative employment or undertaking outside official
duties.
Division 2—The
Commission's functions
(1) The principal functions of the Commission are as follows:
(a) to investigate an allegation or complaint, or any circumstances which,
in the Commission's opinion, imply that—
(i) corrupt conduct; or
(ii) conduct liable to allow, encourage or cause the occurrence of corrupt
conduct; or
(iii) conduct connected with corrupt conduct,
may have occurred, may be occurring or may be about to occur;
(b) to investigate an allegation or complaint, or any circumstances which,
in the Commission's opinion, imply that—
(i) organised crime; or
(ii) conduct liable to allow, encourage or cause the occurrence of
organised crime; or
(iii) conduct connected with organised crime,
may have occurred, may be occurring or may be about to occur;
(c) to investigate any matter referred to the Commission by both Houses of
Parliament;
(d) to communicate to appropriate authorities the results of its
investigations;
(e) to examine the laws governing, and the practices and procedures of,
public authorities and public officers, in order to facilitate the discovery of
corrupt conduct and organised crime and to secure the revision of methods of
work or procedures which, in the opinion of the Commission, may be conducive to
corrupt conduct or organised crime;
(f) to instruct, advise and assist a public authority, public officer or
any other person (on the request of the authority, officer or person) on ways in
which corrupt conduct or organised crime may be eliminated;
(g) to advise public authorities and public officers of changes in
practices and procedures compatible with the effective exercise of their
functions that the Commission thinks necessary to reduce the likelihood of the
occurrence of corrupt conduct and organised crime;
(h) to co-operate with public authorities and public officers in reviewing
laws, practices and procedures with a view to reducing the likelihood of the
occurrence of corrupt conduct and organised crime;
(i) to educate and advise public authorities, public officers and the
community on strategies to combat corrupt conduct and organised crime;
(j) to educate and disseminate information to the public on the
detrimental effects of corrupt conduct and organised crime and on the importance
of maintaining the integrity of public administration;
(k) to enlist and foster public support in combatting corrupt conduct and
organised crime;
(l) to develop, arrange, supervise, participate in or conduct educational
or advisory programs as may be described in a reference made to the Commission
by both Houses of Parliament;
(m) subject to subsection (3)—
(i) to make findings and form opinions, on the basis of the results of its
investigations, in respect of conduct, circumstances or events with which its
investigations are concerned, whether or not the findings or opinions relate to
corrupt conduct or organised crime, including (but not limited
to)—
(A) findings that particular persons have engaged, are engaged or about to
engage in corrupt conduct or organised crime; and
(B) opinions as to whether consideration should or should not be given to
the prosecution or the taking of other action against particular persons;
and
(C) findings of fact; and
(ii) to formulate recommendations for the taking of action that the
Commission considers should be taken in relation to its findings or opinions or
the results of its investigations;
(n) any function incidental or ancillary to the functions specified in the
above paragraphs.
(2) The Commission must conduct its investigations with a view to
determining—
(a) whether—
(i) corrupt conduct or other conduct referred to in
subsection (1)(a); or
(ii) organised crime or other conduct referred to in
subsection (1)(b),
has occurred, is occurring or is about to occur; and
(b) whether a law governing a public authority or public officer needs to
be changed for the purpose of reducing the likelihood of the occurrence of
corrupt conduct or organised crime; and
(c) whether a method of work, practice or procedure of a public authority
or public officer did or could allow, encourage or cause the occurrence of
corrupt conduct or organised crime.
(3) The Commission must not make a finding, form an opinion or formulate a
recommendation that section 75 prevents the Commission from including in a
report.
(4) Other functions of the Commission are as follows:
(a) to assemble evidence that may be admissible in the prosecution of a
person for a criminal offence against a law of this State in connection with
corrupt conduct or organised crime and to furnish that evidence to the
Attorney-General;
(b) to furnish to the Attorney-General other evidence obtained in the
course of its investigations (being evidence that may be admissible in the
prosecution of a person for a criminal offence against a law of the Commonwealth
or another State or a Territory of the Commonwealth) and to recommend the action
that the Commission considers should be taken in relation to that
evidence.
(5) If, in the course of its investigations, the Commission obtains
information relating to the exercise of the functions of a public authority, the
Commission may, if it considers it desirable to do so—
(a) furnish that information or a report on that information to the
Minister responsible for the authority; and
(b) make to that Minister such recommendations (if any) relating to the
exercise of the functions of the authority as the Commission considers
appropriate.
(6) If the Commission furnishes evidence or information to a person under
this section on the understanding that the information is confidential, the
person is subject to the provisions of section 99 in relation to the
information.
(7) The protection of the public interest and the prevention of breaches
of public trust must be treated by the Commission as of paramount importance in
the exercise of its functions.
For the purposes of carrying out its principal functions, the Commission
may—
(a) arrange for the establishment of task forces within the State;
and
(b) seek the establishment of joint task forces with the authorities of
the Commonwealth and other States and Territories; and
(c) co-operate with State task forces, Commonwealth task forces, joint
task forces and other task forces; and
(d) co-ordinate or co-operate in co-ordinating any such task
forces.
13—Co-operation
with other law enforcement agencies
(1) In carrying out an investigation, the Commission—
(a) should, unless of the opinion that it is not appropriate to do so,
work in co-operation with such of the following bodies as may be
relevant:
(i) the Australian Federal Police;
(ii) a police force or police service of a State or a Territory of the
Commonwealth;
(iii) the Auditor-General;
(iv) the Ombudsman;
(v) the Australian Crime Commission; and
(b) may work in co-operation with such other persons or bodies as the
Commission thinks appropriate.
(2) In carrying out its other functions the Commission—
(a) should, unless of the opinion that it is not appropriate to do so,
work in co-operation with such of the following bodies as may be
relevant:
(i) the Auditor-General;
(ii) educational institutions;
(iii) management consultants; and
(b) may work in co-operation with such other persons and bodies as the
Commission thinks appropriate.
(3) The Commission may consult with and disseminate intelligence and
information to the Australian Federal Police, a police force or police service
of a State or Territory of the Commonwealth, the Australian Crime Commission,
and other persons or bodies (including any task force and any member of a task
force) as the Commission thinks appropriate.
(4) If the Commission disseminates information to a person or body under
this section on the understanding that the information is confidential, the
person or body is subject to the provisions of section 99 in relation to
the information.
14—Incidental
powers of Commission
The Commission has power to do all things necessary to be done for or in
connection with, or reasonably incidental to, the performance of its functions,
and specific powers conferred on the Commission by this Act must not be taken to
limit, by implication, the generality of this section.
(1) There will be such staff of the Commission as the Commission thinks
necessary for the proper performance of its functions.
(2) The Commission may engage any suitably qualified person to provide the
Commission with services, information or advice.
(3) The Commission may—
(a) with the approval of the Minister administering an administrative unit
of the Public Service, make use of the services, facilities or staff of that
unit; or
(b) with the approval of the Minister, after consultation by the Minister
with the Commissioner of Police, make use of a police officer.
(4) A member of the staff of the Commission is not a Public Service
employee.
(5) The Minister may, by notice in the Gazette, provide that specified
provisions of the Public Sector Management Act 1995 apply to members
of staff of the Commission.
(6) Subject to subsection (5), the terms and conditions of employment
of a member of the staff of the Commission will, to the extent that they are not
determined by or under any other law, be as determined by the
Governor.
16—Counsel
assisting Commission
The Commissioner may appoint a legal practitioner to assist the Commission
as counsel, either generally or in relation to a particular matter.
(1) Subject to this section—
(a) the Commission may, by instrument in writing, delegate its powers or
functions under this Act to any person; and
(b) the Commissioner or an assistant commissioner may, by instrument in
writing, delegate his or her powers or functions under this Act to any
person.
(2) Subject to subsection (3), the following powers and functions may
be delegated to an assistant commissioner:
(a) a power of delegation conferred by this section;
(b) a function or power of making a report under this Act;
(c) the power to require a public authority or public officer to produce a
statement of information under section 21;
(d) the power to require a person to attend and produce a document or
other thing under section 22;
(e) the power to authorise an officer of the Commission to enter premises
under section 23;
(f) the making of an application for an injunction under
section 27;
(g) the powers of the Commission or the Commissioner under Part 3
Division 2 at, or in connection with, a hearing;
(h) the power of the Commissioner to issue a warrant for the apprehension
of a person under section 36 or 94;
(i) the power of the Commissioner to issue a search warrant under
section 37;
(j) the powers of the Commission under Part 9 or in connection with a
hearing.
(3) The powers and functions referred to in subsection (2)(a), (b),
(h) and (i) may only be delegated if the Commissioner is of the
opinion—
(a) that there may be a conflict of interest if the power or function is
not delegated; or
(b) that it is in the interests of justice to delegate it.
(4) A statement in the instrument of delegation of the Commissioner's
opinion will be accepted as conclusive.
(5) A delegation under this section may, by instrument in writing, be
revoked at any time.
(6) The exercise or performance of a power or function by a delegate under
this section does not affect the exercise or performance of that power or
function by the Commission or person who delegated it.
Part
3—Investigations and hearings
18—Initiation of
investigation
(1) The Commission may make an investigation on receipt of a complaint, on
the Commission's own initiative or on a report or reference made to the
Commission.
(2) The Commission may make an investigation even though no particular
person has been implicated in a matter.
19—Persons who may
make complaints
(1) A complaint about a matter that concerns or may concern corrupt
conduct or organised crime may be made by any person or body of
persons.
(2) If a prisoner informs the manager of the correctional institution that
the prisoner wishes to make a complaint under this section, the manager of the
correctional institution must take such steps as are necessary to facilitate the
making of a complaint.
(3) Section 33(7) of the Correctional Services Act 1982
applies in relation to a letter sent by a prisoner to the Commission.
(4) Section 33(8) of the Correctional Services Act 1982
applies in relation to a letter sent to a prisoner by the Commission.
(5) Subject to this Act, the Commission may investigate a complaint or
decide that a complaint need not be investigated.
(6) Subject to this Act, the Commission may discontinue an investigation
of a complaint.
(7) Before deciding whether to investigate or discontinue an investigation
of a complaint, the Commission should, unless of the opinion that the subject
matter of the complaint is so sensitive that it would be inappropriate to do so,
consult the Operations Review Committee in relation to the matter.
(8) A person must not, in making a complaint under this section, wilfully
make a false statement to, or mislead or attempt to mislead, the Commission or
an officer of the Commission.
Maximum penalty: $2 500 or imprisonment for 6 months.
20—Certain matters
need not be entertained
The Commission may refuse to investigate a complaint, or having commenced
to investigate a matter, may discontinue an investigation (other than in
relation to a matter referred to it by either House of Parliament) if, in the
Commission's opinion—
(a) in the case of a complaint—
(i) the matter raised in the complaint is trivial; or
(ii) the complaint is frivolous or vexatious or is not made in good faith;
or
(b) in the case of an investigation—
(i) the subject matter of the investigation is trivial; or
(ii) having regard to all the circumstances of the case, the investigation
or the continuance of the investigation of the matter is unnecessary or
unjustifiable.
21—Power
to obtain information
(1) For the purposes of an investigation, the Commission may, by notice in
writing served on a public authority or public officer, require the authority or
official to produce a statement of information.
(2) A notice under this section—
(a) must specify—
(i) the information to be stated; and
(ii) the period (from the time that the notice is served) within which the
statement must be produced; and
(iii) the person (being the Commissioner, an assistant commissioner or any
other officer of the Commission) to whom the statement is to be produced;
and
(b) may permit the statement to be made by a person acting on behalf of
the public authority or public officer but need not specify the person or class
of persons who may so act.
(3) A person must not—
(a) without reasonable excuse, fail to comply with a notice served on him
or her under this section; or
(b) in purported compliance with a notice served on him or her under this
section, knowingly furnish information that is false or misleading.
Maximum penalty: $2 500 or imprisonment for 6 months.
(1) For the purposes of an investigation, the Commission may, by notice in
writing served on a person, require the person—
(a) to attend, at a time and place specified in the notice, before a
person (being the Commissioner, an assistant commissioner or any other officer
of the Commission) specified in the notice; and
(b) to produce at that time and place to the person so specified a
document or other thing specified in the notice.
(2) A notice under this section may permit the requirements of the notice
to be satisfied by a person acting on behalf of the person on whom it was served
but need not specify the person or class of persons who may so act.
(3) A person must not, without reasonable excuse, fail or refuse to comply
with a notice under this section.
Maximum penalty: $2 500 or imprisonment for 6 months.
23—Power
to enter public premises
(1) For the purposes of an investigation, the Commissioner or a person
authorised in writing by the Commission may, at any time—
(a) enter and inspect premises occupied or used by a public authority or
public officer in that capacity; and
(b) inspect any document or other thing in or on the premises;
and
(c) take copies of any document in or on the premises.
(2) A public authority or public officer must make available such
facilities as are necessary to enable the powers conferred by this section to be
exercised.
24—Privilege as
regards information, documents, etc
(1) The Commission must withdraw a requirement made by it under
section 21 or 22 if it appears to the Commission—
(a) that a person has a ground of privilege whereby, in proceedings before
a court, the person might resist the requirement; and
(b) that the person does not intend to comply with the
requirement.
(2) A person is not entitled to refuse to comply with a requirement made
under section 21 or 22 by reason of—
(a) a rule that, in proceedings before a court, might justify an objection
to compliance with a requirement of the same kind as that made under
section 21 or 22 on grounds of public interest; or
(b) a privilege of a public authority or public officer in that capacity
that the authority or official could have claimed in a court; or
(c) a duty of secrecy or other restriction on disclosure applying to a
public authority or public officer.
25—Privilege as
regards entry of public premises
(1) The powers conferred by section 23 must not be exercised if it
appears to the Commissioner or the person authorised under that
section—
(a) that a person has a ground of privilege whereby, in proceedings before
a court, the person might resist inspection of the premises or production of the
document or other thing; and
(b) that the person does not consent to the inspection or
production.
(2) The powers conferred by section 23 may be exercised
despite—
(a) a rule that, in proceedings before a court, might justify an objection
to an inspection of the premises or to production of the document or other thing
on grounds of public interest; or
(b) a privilege of a public authority or public officer in that capacity
that the authority or official could have claimed in a court; or
(c) a duty of secrecy or other restriction on disclosure applying to a
public authority or public officer.
(1) A statement of information, document or other thing produced under
section 21 or 22, that tends to incriminate the person producing it, will
not be admissible in proceedings against the person except in proceedings for an
offence against this Act.
(2) This section does not prevent the use of such a statement, document or
other thing for the purposes of an investigation under this Act.
(1) Subject to this section, the Supreme Court may, on application made by
the Commission, grant an injunction restraining a person from engaging in
conduct that is the subject of, or affects the subject matter of, an
investigation or proposed investigation by the Commission.
(2) The Supreme Court must not grant an injunction under this section
unless it is satisfied—
(a) that the conduct sought to be restrained is likely to impede the
investigation or proposed investigation; or
(b) that it is necessary in the public interest to do so.
(3) The Supreme Court cannot require the Commission to give an undertaking
as to damages as a condition of the granting of an injunction under this
section.
28—Powers
exercisable whether or not hearings being held
The powers conferred by this Division are exercisable in relation to an
investigation whether or not a hearing is being held before the Commission for
the purposes of the investigation.
(1) The Commission may, for the purposes of an investigation, hold
hearings.
(2) A hearing will be conducted by the Commissioner or an assistant
commissioner, as determined by the Commissioner.
(3) At a hearing the presiding member of the Commission will announce the
general scope and purpose of the hearing.
(4) A person appearing before the Commission at a hearing is entitled to
be informed of the general scope and purpose of the hearing.
30—Public and
private hearings
(1) A hearing must be held in public unless the Commission directs that
the hearing, or part of the hearing, is to be held in private.
(2) If the Commission directs that a hearing or part of a hearing is to be
held in private, the Commission may give directions as to the persons who may be
present during the hearing or part of the hearing.
(3) The Commission may not give a direction under subsection (1)
unless it is satisfied that it is desirable to do so in the public interest for
reasons connected with the subject matter of an investigation or the nature of
the evidence to be given.
(4) A person who is present at a hearing of the Commission in
contravention of a direction given under this section is guilty of an
offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
31—Rights of
appearance and representation
(1) At a hearing before it the Commission may—
(a) authorise a person who, in the Commission's opinion, is substantially
and directly interested in the subject matter of the hearing, to appear at, or
be represented by a legal practitioner at, the hearing or a specified part of
the hearing; or
(b) authorise a person giving evidence at the hearing to be represented by
a legal practitioner at the hearing or a specified part of the
hearing.
(2) The Commission must give a reasonable opportunity for a person giving
evidence at a hearing to be legally represented.
(3) A legal practitioner appointed by the Commission to assist it may
appear before the Commission.
32—Examination and
cross-examination
(1) A legal practitioner appointed by the Commission to assist it, or a
person or a person's legal practitioner authorised to appear at a hearing may,
with leave of the Commission, examine or cross-examine a witness on any matter
that the Commission considers relevant.
(2) A witness so examined or cross-examined has the same protection and is
subject to the same liabilities as if examined by a member of the
Commission.
33—Power
to summon witnesses and take evidence
(1) The Commissioner may summon a person to appear before the Commission
at a hearing at a time and place specified in the summons—
(a) to give evidence; or
(b) to produce such documents or other things (if any) as are referred to
in the summons,
or both.
(2) The member presiding at a hearing before the Commission may require a
person appearing at the hearing to produce a document or other thing.
(3) The Commission may, at a hearing, take evidence on oath or affirmation
and for that purpose—
(a) the presiding member may require a person appearing at the hearing to
give evidence either to take an oath or to make an affirmation in a form
approved by the member; and
(b) the presiding member, or a person authorised for that purpose by the
presiding member, may administer an oath or affirmation to a person so appearing
at the hearing.
(4) A person summoned to appear as a witness at a hearing before the
Commission must not, without reasonable excuse—
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from
further attendance, by the presiding member.
Maximum penalty: $2 500 or imprisonment for 6 months.
(5) A person appearing as a witness at a hearing before the Commission
must not, without reasonable excuse—
(a) when required under subsection (3) either to take an oath or make
an affirmation—refuse or fail to comply with the requirement; or
(b) refuse or fail to answer a question that the person is required to
answer by the Commissioner or the presiding member; or
(c) refuse or fail to produce a document or other thing in the person's
custody or control that the person was required by the summons or the presiding
member to produce.
Maximum penalty: $5 000 or imprisonment for 1 year.
(6) It is a defence to a prosecution for an offence against
subsection (5)(c) for the defendant to show that the document or other
thing was not relevant to an investigation.
(7) Subject to subsection (8), a person summoned to attend a hearing
or appearing before the Commission at a hearing is not entitled to refuse to
answer a question or produce a document or other thing on the ground of
privilege but any such answer given or document or other thing produced will not
be admissible—
(a) except in civil proceedings against the person; or
(b) except in proceedings against the person for an offence against this
section; or
(c) unless the person does not object to giving the answer or producing
the document or other thing.
(8) If—
(a) a legal practitioner or other person is required to answer a question
or produce a document or other thing at a hearing before the Commission;
and
(b) the answer to the question would disclose, or the document or other
thing contains, a privileged communication passing between a legal practitioner
(in his or her capacity as a legal practitioner) and a person for the purpose of
providing or receiving legal professional services in relation to the
appearance, or reasonably anticipated appearance, of a person at a hearing
before the Commission,
the legal practitioner or other person is entitled to refuse to comply with
the requirement, unless the privilege is waived by a person having authority to
do so.
34—Declarations as
to objections by witness
The Commissioner or presiding member may declare that all or any classes of
answers given, or documents or other things produced, by a witness will be
regarded as having been given or produced on objection by the witness and, on
the Commissioner or presiding member so declaring, the witness need not make an
objection in respect of each such answer, document or other thing.
35—Attendance of
prisoner before Commission
If the attendance at a hearing before the Commission of a prisoner is
required, the Commissioner may, by order in writing served personally on the
manager of the correctional institution in whose custody the prisoner is, direct
the manager to produce the prisoner or have the prisoner produced, at the time
and place specified in the order.
(1) If a person served with a summons to attend the Commission as a
witness fails to attend in answer to the summons, the Commissioner may, on proof
by statutory declaration of service of the summons, apply to a justice for a
warrant for the apprehension of the person.
(2) If the Commissioner is satisfied, by evidence on oath or affirmation,
that it is probable that a person whose evidence is desired and is necessary and
relevant to an investigation under this Act—
(a) will not attend before the Commission to give evidence without being
compelled to do so; or
(b) is about to, or is preparing to, leave the State and the person's
evidence will not be obtained if the person departs,
the Commissioner may apply to a justice for a warrant for the apprehension
of the person.
(3) The Commissioner is authorised to administer an oath or affirmation
for the purposes of subsection (2).
(4) A warrant may be issued under subsection (2) without or before
the issue of a summons to the person whose evidence is desired.
(5) A warrant may be issued under subsection (2) after the issue of a
summons to the person whose evidence is desired, even though the time specified
in the summons for the person to attend has not yet passed.
(6) A warrant under this section authorises the arrest of the witness and
the bringing of the witness promptly before the Commission and being detained in
custody for that purpose until released by order of the Commissioner.
(7) A warrant issued under this section may be executed by a police
officer, or by any person to whom it is addressed, and the person executing it
may use such force as is reasonably necessary in entering premises for the
purpose of executing it.
(8) The issue of a warrant or the arrest of a witness does not relieve the
witness from any liability incurred by him or her for non-compliance with a
summons.
(1) If there are reasonable grounds for doing so, a justice or the
Commissioner may issue a search warrant, on the application of an officer of the
Commission, if the officer has reasonable grounds for believing—
(a) that there is on particular premises, a document or other thing
connected with a matter being investigated under this Act; or
(b) that such a document or other thing may, within the next
72 hours, be brought onto the premises.
(2) An application for a search warrant is to be made to a
justice.
38—Authority
conferred by warrant
(1) A search warrant authorises a police officer, or other person named in
the warrant—
(a) to enter the premises; and
(b) to search the premises for documents or other things connected with
any matter that is being investigated under this Act; and
(c) to seize any such documents or other things found on the premises and
deliver them to the Commission.
(2) A police officer executing a search warrant may search a person found
on the premises whom he or she reasonably suspects of having a document or other
thing specified in the warrant.
A person executing a search warrant must produce the warrant for inspection
by an occupier of the premises if requested to do so by the occupier.
A person authorised to enter premises under a search warrant
may—
(a) use such force as is reasonably necessary for the purpose of entering
the premises; and
(b) if it is reasonably necessary to do so, break open any receptacle on
the premises for the purposes of the search.
41—Assistance in
executing warrant
A person executing a warrant may be assisted by such persons as he or she
considers desirable or necessary in the circumstances.
42—Execution of
warrant by day or night
(1) A search warrant may be executed by day, but must not be executed by
night unless the terms of the warrant authorise its execution by
night.
(2) In this section—
by day means during the period between 6 am and 9 pm on any
day; and
by night means during the period between 9 pm on any day
and 6 am on the following day.
A search warrant ceases to have effect—
(a) 1 month after its issue; or
(b) if it is withdrawn by the person who issued it; or
(c) when it is executed,
whichever first occurs.
(1) If, in the course of searching, in accordance with the terms of a
search warrant, for documents or other things—
(a) the person executing the warrant finds a document or other thing that
the person believes on reasonable grounds to be evidence that would be
admissible in proceedings for an indictable offence against the law of the
Commonwealth or of a State or Territory of the Commonwealth; and
(b) the person believes on reasonable grounds that it is necessary to
seize the document or other thing in order to prevent its concealment, loss,
mutilation or destruction, or its use in committing such an offence,
the person executing the warrant may seize the document or other thing and,
if it is so seized, it will be taken, for the purposes of this Act, to have been
seized under the warrant.
(2) If a document or other thing is seized under a search
warrant—
(a) the Commission may retain the document or other thing if, and for so
long as, its retention by the Commission is reasonably necessary for the
purposes of an investigation to which it is relevant; and
(b) if the retention of the document or other thing by the Commission is
not, or ceases to be, reasonably necessary for those purposes,
the Commission must cause it to be delivered to—
(c) the person who appears to the Commission to be entitled to possession
of the document or other thing; or
(d) the Attorney-General with a recommendation as to the action that
should be taken in relation to the document or other thing.
If it appears to the Commissioner that, because a person—
(a) has appeared, is appearing or is to appear at a hearing before the
Commission to give evidence or to produce a document or other thing;
or
(b) has produced or proposes to produce a document or other thing to the
Commission under this Act otherwise than at a hearing before the Commission;
or
(c) has assisted, is assisting or is to assist the Commission in some
other manner,
the safety of the person or any other person may be prejudiced or the
person or any other person may be subjected to intimidation or harassment, the
Commissioner may make such arrangements as are necessary to avoid prejudice to
the safety of any such person or to protect any such person from intimidation or
harassment.
46—Reimbursement
of expenses of witnesses
A witness appearing before the Commission will be paid in respect of
attendance before the Commission an amount ascertained in accordance with the
prescribed scale or, if there is no prescribed scale, such amount as the
Commission determines.
47—Legal and
financial assistance
(1) A witness who is appearing or is about to appear before the Commission
may make an application to the Attorney-General for the provision of assistance
under this section in respect of the witness's appearance.
(2) If an application is made by a person under this section, the
Attorney-General may, if satisfied that—
(a) the person would suffer substantial hardship if the application were
refused; or
(b) the circumstances of the case are of such a special nature that the
application should be granted,
authorise the provision to that person (either unconditionally or subject
to conditions) of such legal or financial assistance in respect of the
appearance of that person before the Commission as the Attorney-General
determines.
Part 4—Referral of
matters by Commission
In this Part—
relevant authority means the person or body to whom a matter
is referred by the Commission under this Part.
(1) The Commission may, before or after investigating a matter (whether or
not the investigation is completed, and whether or not the Commission has made
any findings) refer the matter for investigation or other action to a person or
body considered by the Commission to be appropriate in the
circumstances.
(2) The Commission may, when referring a matter, recommend the action that
should be taken by the relevant authority and the time within which it should be
taken.
(3) The Commission may communicate to the relevant authority information
that the Commission has obtained during its investigation of the
matter.
(4) The Commission may not refer a matter to a person or body except after
appropriate consultation with the person or body and after taking into
consideration the views of the person or body.
(5) If the Commission communicates information to a person or body under
this section on the understanding that the information is confidential, the
person or body is subject to the provisions of section 99 in relation to
the information.
(1) The Commission may, when referring a matter under this Part, require
the relevant authority to submit to the Commission a report or reports on the
action taken by the relevant authority in relation to the matter.
(2) A report under this section—
(a) must be of such a nature as the Commission directs; and
(b) must be submitted to the Commission within such time as the Commission
directs.
51—Further
action by Commission
(1) If the Commission is not satisfied that a relevant authority has duly
and properly taken action in relation to a matter referred under this Part, the
Commission must inform the relevant authority of the grounds of the Commission's
dissatisfaction and give the authority an opportunity to comment within a
specified time.
(2) If, after considering any comments received from the relevant
authority within the specified time, the Commission is still not satisfied, the
Commission may submit a report to the Minister responsible for the relevant
authority setting out any recommendation that was given as to the action that
should be taken and the grounds of dissatisfaction, together with any comments
from the relevant authority and the Commission.
(3) If, after considering any comments received from the Minister
responsible for the authority within 21 days after the report was submitted
to that Minister under subsection (2), the Commission is still of the
opinion that its recommendation should be adopted, the Commission may make a
report as referred to in section 78.
52—Responsibility
of relevant authority
It is the duty of a relevant authority to comply with a requirement or
direction of the Commission under this Part.
53—Revocation of
referral, recommendation, etc
The Commission may—
(a) revoke a referral under this Part; or
(b) revoke or vary a recommendation, requirement or direction under this
Part; or
(c) vary the time within which a requirement under this Part is to be
complied with.
Part 5—The
Operations Review Committee
In this Part—
appointed member means an appointed member of the
Committee;
Committee means the Operations Review Committee
established under this Part.
The Operations Review Committee is established.
The Committee consists of 7 members, being—
(a) the Commissioner; and
(b) an assistant commissioner, nominated by the Commission; and
(c) 5 persons, appointed by the Governor on the recommendation of the
Attorney-General with the concurrence of the Commissioner, of whom 4 will be
appointed to represent community views.
(1) If there is a vacancy in the office of an appointed member, the
Governor may appoint a person to act in that office.
(2) While a person is acting as an appointed member, the person has all
the powers and functions of the member.
58—Eligibility for
appointment
A Minister of the Crown is not eligible to be appointed as a member of the
Committee.
59—Terms and
conditions of appointment
(1) Subject to this Part, an appointed member will be appointed on
conditions determined by the Governor and for a term, not exceeding
2 years, specified in the instrument of appointment.
(2) An appointed member is, on the expiration of his or her term of
office, eligible for reappointment.
(3) The Governor may, on the recommendation of the Attorney-General with
the concurrence of the Commissioner, remove an appointed member from office at
any time.
(4) The office of an appointed member becomes vacant if the
member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice addressed to the Minister; or
(d) becomes a Minister of the Crown; or
(e) is absent, except on leave granted by the Minister, from 4 consecutive
meetings of the Committee reasonable notice of which has been given to the
member personally or by post, unless, before the expiration of 4 weeks
after the last of those meetings, the member's absence is excused by the
Minister; or
(f) becomes bankrupt; or
(g) becomes a patient within the meaning of the Mental Health
Act 1993; or
(h) is convicted in this State of an offence that is punishable by
imprisonment for a term of at least 12 months, or is convicted in a court
of a place outside this State of an offence that, if committed in this State,
would be an offence so punishable; or
(i) is removed from office by the Governor under
subsection (3).
(5) On the office of an appointed member becoming vacant, a person must be
appointed in accordance with this Act to fill the vacancy.
An appointed member is entitled to remuneration, allowances and expenses
determined by the Governor.
(1) If, by or under any other Act, provision is made—
(a) requiring a person who is the holder of a specified office to devote
the whole of his or her time to the duties of that office; or
(b) prohibiting the person from engaging in employment outside the duties
of that office,
the provision does not operate to disqualify the person from holding both
that office and the office of appointed member or from accepting and retaining
any remuneration payable to the person under this Act as an appointed
member.
(2) The office of an appointed member is not, for the purposes of any Act,
an office or place of profit under the Crown.
(1) The functions of the Committee are as follows:
(a) at the request of the Commission, to advise the Commission as to
whether the Commission should investigate or discontinue an investigation of a
complaint made under this Act;
(b) to advise the Commission on other matters as the Commission may from
time to time refer to the Committee.
(2) The Commissioner must consult with the Committee on a regular basis at
least once every 3 months.
(1) The Commissioner will call the first meeting of the Committee in such
manner as he or she thinks fit.
(2) A meeting of the Committee will be chaired by the Commissioner or, in
his or her absence, by an assistant commissioner.
(3) A quorum of the Committee consists of 5 members of the Committee, of
whom 1 must be the Commissioner or an assistant commissioner, and no business
may be transacted at a meeting of the Committee unless a quorum is
present.
(4) Each member present at a meeting of the Committee is, subject to
section 64, entitled to 1 vote on a matter arising for decision at the
meeting but the person presiding at the meeting has, in the event of an equality
of votes, a casting vote as well as a deliberative vote.
(5) A decision carried by a majority of the votes cast by the members
present and voting at a meeting is a decision of the Committee.
(6) The procedure for the calling of meetings of the Committee and for the
conduct of business at those meetings will, subject to this Act, be as
determined by the Committee.
(1) A member of the Committee who has an interest in a matter before the
Committee must disclose the existence of that interest to the
Committee.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2) A member of the Committee has an interest in a matter before the Board
if—
(a) the member or a person with whom the member is closely associated
would, if the matter were decided in a particular manner, receive or have a
reasonable expectation of receiving a direct or indirect pecuniary benefit or
suffer or have a reasonable expectation of suffering a direct or indirect
pecuniary detriment; or
(b) the member or a person with whom the member is closely associated
would, if the matter were decided in a particular manner, obtain or have a
reasonable expectation of obtaining a non-pecuniary benefit or suffer or have a
reasonable expectation of suffering a non-pecuniary detriment,
(not being a benefit or detriment that would be enjoyed or suffered by the
member or his or her associate in common with a substantial class or group of
persons).
(3) A person is closely associated with a member of the Committee if that
person is—
(a) a body corporate of which the member is a director or a member of the
governing body; or
(b) a proprietary company in which the member is a shareholder;
or
(c) a beneficiary under a trust or an object of a discretionary trust of
which the member is a trustee; or
(d) a party to a partnership or share-farming agreement to which the
member is also a party; or
(e) an employer or an employee of the member; or
(f) the spouse, domestic partner, parent or child of the member.
(4) A disclosure under subsection (1) must be recorded in the minutes
of the Committee.
(5) A member of the Committee who has an interest in a matter before the
Committee—
(a) must not, except on the request of the Committee, take part in any
discussion by the Committee relating to that matter; and
(b) must not vote in relation to that matter; and
(c) must, unless the Committee permits otherwise, be absent from the
meeting room when any such discussion or voting is taking place.
Maximum penalty: $5000 or imprisonment for 1 year.
(6) It is a defence to a charge of an offence against this section for the
defendant to prove that, at the time of the alleged offence, the defendant was
unaware of his or her interest in the matter.
(7) The fact that a member has failed to comply with this section in
relation to a matter does not, of itself, invalidate a resolution or decision on
that matter, but, where it appears that the non-compliance may have had a
decisive influence on the passing of the resolution or the making of the
decision, the Supreme Court may, on the application of the Committee, the
Minister or any person affected by the resolution or decision, annul the
resolution or decision and make such ancillary orders as it thinks
fit.
Part
6—The Parliamentary Joint Committee
As soon as practicable after the commencement of this Part and the
commencement of the first session of each Parliament, a joint committee of
members of Parliament, to be known as the Committee on the Independent
Commission Against Crime and Corruption, must be appointed.
(1) The Joint Committee will consist of 9 members, of
whom—
(a) 3 must be members of, and appointed by, the Legislative Council;
and
(b) 6 must be members of, and appointed by, the House of
Assembly.
(2) The appointment of members of the Joint Committee must, as far as
practicable, be in accordance with the practice of Parliament with reference to
the appointment of members to serve on joint committees of both Houses of
Parliament.
(3) A Minister of the Crown is not eligible for appointment as a member of
the Joint Committee.
(1) There will be a presiding officer and an assistant presiding officer
of the Joint Committee, to be elected by the members of the Joint Committee from
amongst their own number.
(2) A member of the Joint Committee ceases to hold office as presiding
officer or assistant presiding officer of the Joint Committee
if—
(a) the member ceases to be a member of the Committee; or
(b) the member resigns from the office by written notice presented to a
meeting of the Committee; or
(c) the member is discharged from office by the Committee.
(3) At any time when the presiding officer is absent from the State or is,
for any reason, unable to perform the duties of presiding officer or there is a
vacancy in that office, the assistant presiding officer may exercise the
functions of the presiding officer under this Act.
(1) The office of a member of the Joint Committee becomes
vacant—
(a) when the House of Assembly is dissolved or expires by the effluxion of
time; or
(b) if the member becomes a Minister of the Crown; or
(c) if the member ceases to be a member of the Legislative Council or
House of Assembly; or
(d) if, in the case of a member of the Legislative Council, the member
resigns the office by instrument in writing addressed to the President of the
Legislative Council; or
(e) if, in the case of a member of the House of Assembly, the member
resigns the office by instrument in writing addressed to the Speaker of the
House of Assembly; or
(f) if the member is discharged from office by the House of Parliament to
which the member belongs.
(2) Either House of Parliament may appoint 1 of its members to fill a
vacancy among the members of the Joint Committee appointed by that
House.
69—Functions of
Joint Committee
(1) The functions of the Joint Committee are as follows:
(a) to monitor and to review the exercise by the Commission of its
functions;
(b) to report to both Houses of Parliament, with such comments as it
thinks fit, on any matter relating to the Commission or connected with the
exercise of its functions to which, in the opinion of the Joint Committee, the
attention of Parliament should be directed;
(c) to examine each annual and other report of the Commission and report
to both Houses of Parliament on any matter appearing in, or arising out of, a
report;
(d) to examine trends and changes in corrupt conduct or organised crime,
and practices and methods relating to corrupt conduct or organised crime, and
report to both Houses of Parliament on any change that the Joint Committee
thinks should be made to the functions, structure or procedures of the
Commission;
(e) to inquire into any question in connection with the Commission's
functions referred to it by a House of Parliament, and report to that House on
that question.
(2) Nothing in this part authorises the Joint Committee—
(a) to investigate a matter relating to particular conduct; or
(b) to reconsider a decision to investigate, not to investigate or to
discontinue investigation of a particular complaint; or
(c) to reconsider the findings, recommendations, determinations or other
decisions of the Commission in relation to a particular investigation or
complaint.
(1) The Clerk of the House of Assembly must call the first meeting of the
Joint Committee in each Parliament in such manner as the Clerk thinks
fit.
(2) A meeting of the Joint Committee will be chaired by the presiding
officer or, in his or her absence, by the assistant presiding officer or, in the
absence of them both, by a member of the Joint Committee chosen by those present
at the meeting.
(3) Subject to subsections (4) and (5), the Joint Committee may act
despite vacancies in its membership.
(4) Subject to subsection (5), 5 members constitute a quorum of the
Joint Committee and no business may be transacted at a meeting of the Joint
Committee unless a quorum is present.
(5) The Joint Committee must meet as a joint committee at all
times.
(6) Each member present at a meeting of the Joint Committee is entitled to
1 vote on a matter arising for decision at the meeting but the person presiding
at the meeting has, in the event of an equality of votes, a casting vote as well
as a deliberative vote.
(7) A decision carried by a majority of the votes cast by the members
present and voting at a meeting is a decision of the Joint Committee.
(8) The Joint Committee may sit and transact business despite any
prorogation of the Houses of Parliament or any adjournment of either House of
Parliament.
(9) The Joint Committee may not sit and transact business while either
House of Parliament is sitting.
(10) The procedure for the calling of meetings of the Joint Committee and
for the conduct of business at those meetings will, subject to this Act, be as
determined by the Committee.
(1) The Joint Committee has the power to send for persons, papers and
records.
(2) Subject to section 72, the Joint Committee must take all evidence
in public.
(3) If the Joint Committee as constituted at any time has taken evidence
in relation to a matter but the Committee as so constituted has ceased to exist
before reporting on the matter, the Committee as constituted at a subsequent
time, whether during the same or another Parliament, may consider that evidence
as if it had taken the evidence.
(4) The production of documents to the Joint Committee will be in
accordance with the practice of the House of Assembly with respect to the
production of documents to select committees of the House of Assembly.
(1) If any evidence proposed to be given before, or the whole or a part of
a document produced or proposed to be produced in evidence to, the Joint
Committee relates to a secret or confidential matter, the Committee may and, at
the request of the witness giving the evidence or producing the document,
must—
(a) take the evidence in private; or
(b) direct that the document, or that part of the document, be treated as
confidential.
(2) If a direction under subsection (1) applies to a document or part
of a document produced in evidence to the Joint Committee, the contents of the
document or part will, for the purposes of this section, be taken to be evidence
given by the person producing the document and taken by the Committee in
private.
(3) If, at the request of a witness, evidence is taken by the Joint
Committee in private—
(a) the Committee must not, without the consent in writing of the witness;
and
(b) a person (including a member of the Committee) must not, without the
consent in writing of the witness and the authority of the Committee under
subsection (5),
disclose or publish the whole or a part of that evidence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(4) If evidence is taken by the Joint Committee in private otherwise than
at the request of a witness, a person (including a member of the Committee) must
not, without the authority of the Committee under subsection (5), disclose
or publish the whole or a part of that evidence.
Maximum penalty: $2 500 or imprisonment for 5 months.
(5) The Joint Committee may, in its discretion, disclose or publish or, by
writing under the hand of a member of the Joint Committee authorised for the
purpose, authorise the disclosure or publication of evidence taken in private by
the Committee, but this subsection does not operate so as to affect the
necessity for the consent of a witness under subsection (3).
(6) Nothing in this section prohibits—
(a) the disclosure or publication of evidence that has already been
lawfully published; or
(b) the disclosure or publication by a person of a matter of which the
person has become aware other than by reason, directly or indirectly, of the
giving of evidence before the Joint Committee.
(7) If evidence taken by the Joint Committee in private is disclosed or
published in accordance with this section—
(a) it is a defence to proceedings (other than proceedings for defamation)
whether civil or criminal, brought in respect of the disclosure or publication
of the evidence if it is proved that the disclosure or publication was
authorised under this section; and
(b) in the case of proceedings for defamation brought in respect of the
publication of a report of the evidence given to the Joint Committee in private,
it is a defence to the proceedings if the report is a fair report.
Part 7—References
by and reports to Parliament
In this Part—
appropriate officer means—
(a) the President of the Legislative Council or, if the office of
President is vacant, the Clerk of the Legislative Council; or
(b) the Speaker of the House of Assembly or, if the office of Speaker is
vacant, the Clerk of the House of Assembly.
(1) Either House of Parliament may, by resolution—
(a) refer to the Commission any matter as referred to in
section 11(1); or
(b) amend or revoke a reference made under this section.
(2) It is the duty of the Commission—
(a) to fully investigate a matter so referred to it for investigation;
and
(b) to comply as fully as possible with any directions contained in a
reference of a matter referred to in section 11(1).
75—Reports
on referred matters
(1) The Commission may prepare reports in relation to a matter that has
been or is the subject of an investigation.
(2) The Commission must prepare reports in relation to a matter referred
to the Commission by a House of Parliament, as directed by that House.
(3) The Commission must prepare reports in relation to matters as to which
the Commission has conducted a public hearing, unless a House of Parliament has
given different directions under subsection (2).
(4) The Commission must furnish reports prepared under this section to the
appropriate officer of the House of Parliament by which matters have been
referred.
(5) A report required under this section must be furnished as soon as
practicable after the Commission has concluded its involvement in the
matter.
(6) The Commission may defer making a report under this section if it is
satisfied that it is desirable to do so in the public interest, except in
relation to a matter referred to the Commission by a House of
Parliament.
(7) A report under this section—
(a) must, in respect of each affected person, include a statement as to
whether or not, in all the circumstances, the Commission is of the opinion that
consideration should be given to—
(i) the prosecution of the person for a specified criminal offence;
and
(ii) the taking of disciplinary action under any law against the person;
and
(iii) the taking of action against the person as a public officer on
specified grounds, with a view to dismissing, dispensing with the services of or
otherwise terminating the services of the public officer; and
(b) must not include—
(i) a finding or opinion that a specified person is guilty of or has
committed, is committing or is about to commit a criminal offence (whether or
not a specified offence) or has, is or is about to engage in conduct
constituting or involving grounds for disciplinary action under any law (whether
or not a specified law) against the person; or
(ii) a recommendation that a specified person be, or an opinion that a
specified person should be, prosecuted for a criminal offence (whether or not a
specified offence) or that disciplinary action under any law (whether or not a
specified law) should be taken against the person; and
(c) may include—
(i) statements as to any of the Commission's findings, opinions and
recommendations; and
(ii) statements as to the Commission's reasons for any of its findings,
opinions and recommendations.
(8) A reference in subsection (7) to an affected person is a
reference to a person described as such in a reference made by both Houses of
Parliament or against whom, in the Commission's opinion, substantial allegations
have been made in the course of or in connection with the investigation
concerned.
(9) For the purposes of subsection (7), a finding or opinion that a
person has engaged, is engaging or is about to engage—
(a) in corrupt conduct (whether or not specified corrupt conduct);
or
(b) in specified conduct that constitutes or involves, or could constitute
or involve, corrupt conduct,
is not a finding or opinion that the person is guilty or has committed, is
committing or is about to commit, a criminal offence or has engaged, is engaging
or is about to engage, in conduct constituting or involving grounds for
disciplinary action under a law against the person.
The Commission may, at any time, make a special report to the appropriate
officer of each House of Parliament on any administrative or general policy
matter relating to the functions of the Commission.
(1) The Commission must, within 4 months after each 30 June, prepare
a report of its operations during the year ended on that 30 June and
furnish the report to the appropriate officer of each House of
Parliament.
(2) A report by the Commission under this section in relation to a year
must include the following:
(a) a description of the matters that were referred to the
Commission;
(b) a description of the matters investigated by the Commission;
(c) recommendations for changes in the laws of the State, or for
administrative action, that the Commission considers should be made as a result
of the exercise of its functions;
(d) the general nature and extent of information furnished under this Act
by the Commission during the year to a law enforcement agency;
(e) the extent to which its investigations have resulted in prosecutions
of disciplinary action in that year;
(f) the number of search warrants issued by justices and the Commissioner
respectively under this Act in that year;
(g) a description of its activities during that year in relation to its
educational and advisory functions.
78—Report
relating to authorities
(1) The Commission may furnish to the appropriate officer of each House of
Parliament a report setting out a recommendation referred to in section 51
that the Commission is of the opinion should be adopted and the reasons for its
opinion.
(2) A report may not be furnished until after the period of 21 days
referred to in section 51(3) has passed.
79—Provisions
relating to reports
(1) A copy of a report furnished to the appropriate officer of a House of
Parliament under this Part must be laid before that House within 12 sitting
days of that House after it is received by the appropriate officer.
(2) The Commission may include in a report a recommendation that the
report be made public forthwith.
(3) If a report includes a recommendation by the Commission that the
report be made public forthwith, an appropriate officer of a House of Parliament
may make it public whether or not that House is in session and whether or not
the report has been laid before that House.
(4) If a report is made public by the appropriate officer of a House of
Parliament before it is laid before that House, it attracts the same privileges
and immunities as if it had been laid before that House.
(5) An appropriate officer need not inquire whether all or any conditions
precedent have been satisfied in relation to a report purporting to have been
made and furnished in accordance with this Act.
80—False or
misleading evidence
A person who, at a hearing before the Commission, gives evidence that is,
to the knowledge of the person, false or misleading in a material particular is
guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
81—Offences
relating to documents or other things
(1) A person who, knowing that a document or other thing is or may be
required in connection with an investigation—
(a) wilfully destroys it or renders it incapable of identification;
or
(b) in the case of a document, renders it illegible, indecipherable or
unusable, with intent to prevent it from being used in connection with the
investigation,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) A person who, with intent to delay or obstruct the carrying out by the
Commission of an investigation—
(a) destroys or alters a document or other thing relating to the subject
matter of the investigation; or
(b) sends or attempts to send, or conspires with another person to send,
out of the State any such document or other thing, or any property of any
description belonging to or in the disposition of or under the control of any
person whose affairs are the subject matter of the investigation,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
(3) A person who—
(a) with intent to delay or obstruct the carrying out by the Commission of
an investigation; or
(b) with intent to mislead the Commission,
fabricates a document or other thing is guilty of an offence, if the
document or other thing is produced in evidence to the Commission or is produced
in purported compliance with a requirement under section 21 or
22.
Maximum penalty: $20 000 or imprisonment for 4 years.
(4) If in a prosecution for an offence against subsection (2) it is
proved that the defendant has destroyed or altered a document or other thing, or
has sent or attempted to send, or conspired to send, out of the State any such
document or other thing, the onus of proving that in so doing he or she has not
acted in contravention of this section is on the defendant.
A person who practises a fraud or deceit on, or knowingly makes or exhibits
a false statement, representation or writing to, a person—
(a) called or to be called as a witness before the Commission with intent
to affect the testimony of that person as a witness; or
(b) required to comply with a notice under section 21 or 22 with
intent to affect that person's compliance with the notice,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
83—Preventing
witness from attending
(1) A person who wilfully prevents or endeavours to prevent a person who
has been summoned to attend as a witness before the Commission—
(a) from attending as a witness; or
(b) from producing anything in evidence pursuant to a summons to
attend,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
(2) A person who wilfully prevents or endeavours to prevent a person from
complying with a requirement under section 21 or 22 is guilty of an
offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
A person who uses, causes, inflicts or procures any violence, punishment,
damage, loss or disadvantage to another for or on account of the other
person—
(a) having appeared as a witness before the Commission, or given any
particular evidence before the Commission; or
(b) having complied with a requirement under section 21 or
22,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
85—Dismissal of
witness by employer
(1) An employer who dismisses an employee from his or her employment, or
prejudices an employee in his or her employment, for or on account of the
employee—
(a) having appeared as a witness before the Commission, or given any
particular evidence before the Commission; or
(b) having complied with a requirement under section 21 or
22,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
(2) In proceedings for an offence against this section the onus is on the
employer to prove that an employee shown to have been dismissed or prejudiced in
his or her employment was so dismissed or prejudiced for some reason other than
the reasons mentioned in subsection (1).
86—Impersonation
of officer of Commission
(1) A person must not directly or indirectly represent that he or she is
an officer of the Commission, or is of a particular class of officer, unless the
person is such an officer, or is of that class.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2) For the purposes of subsection (1), a person represents that a
state of affairs exists if the person does or says anything, or causes, permits
or suffers anything to be done or said, by virtue of which it is represented, or
a belief may be induced, that the state of affairs exists.
87—Procuring
false testimony by witness
A person who procures or causes or attempts or conspires to procure or
cause—
(a) the giving of false testimony at a hearing before the Commission;
or
(b) in purported compliance with a notice served on a person under
section 21, the furnishing of information that is, to the knowledge of the
person so served, false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
A person who—
(a) gives, confers or procures, or promises to give or confer, or to
procure or attempt to procure, property or a benefit of any kind to, on or for a
person, on an agreement or understanding that a person called or to be called as
a witness before the Commission will give false testimony or withhold true
testimony; or
(b) attempts by any means to induce a person called or to be called before
the Commission to give false testimony, or to withhold true testimony;
or
(c) asks, receives or obtains, or agrees or attempts to receive or obtain,
property or a benefit of any kind for himself or herself, or for another person,
on an agreement or understanding that a person will as a witness before the
Commission give false testimony or withhold true testimony,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 4 years.
89—Bribery of
officer of Commission
(1) An officer of the Commission must not corruptly ask for, receive or
obtain, or agree to receive or obtain, money, property or a benefit of any kind
for himself or herself, or for another person—
(a) to forgo or neglect his or her duty, or influence him or her, in the
exercise of his or her functions as an officer of the Commission; or
(b) on account of anything already done or omitted to be done, or to be
afterwards done or omitted to be done, by him or her in the exercise of those
functions; or
(c) to use, or take advantage of, his or her position as an officer of the
Commission in order improperly to gain a benefit or advantage for, or facilitate
the commission of an offence by, another person.
Maximum penalty: $20 000 or imprisonment for 4 years.
(2) A person must not—
(a) corruptly give to, confer upon, procure for; or
(b) promise or offer to give to, confer upon, or procure for; or
(c) attempt to procure for,
an officer of the Commission, or another person, money, property or a
benefit of any kind—
(d) for that officer, or another officer of the Commission, to forgo or
neglect his or her duty, or to influence him or her in the exercise of his or
her functions as an officer of the Commission; or
(e) on account of anything already done, or omitted to be done, by him or
her in the exercise of those functions; or
(f) for the officer to use or take advantage of his or her position in
order improperly to gain a benefit or advantage for, or facilitate the
commission of an offence by, the person first referred to in this
subsection.
Maximum penalty: $20 000 or imprisonment for 4 years.
A person must not—
(a) without reasonable excuse, wilfully obstruct, hinder, resist or
threaten the Commission or an officer of the Commission in the exercise of
powers or functions under this Act; or
(b) without reasonable excuse, refuse or wilfully fail to comply with a
lawful requirement of the Commission or an officer of the Commission under this
Act; or
(c) wilfully make a false statement to or mislead, or attempt to mislead,
the Commission or an officer of the Commission in the exercise of powers or
functions under this Act; or
(d) disrupt a hearing before the Commission.
Maximum penalty: $5 000 or imprisonment for 1 year.
In this Part—
offender means a person guilty or alleged to be guilty of
contempt of the Commission.
A person who, without reasonable excuse—
(a) having been served with a summons to attend before the Commission as a
witness, fails to attend in obedience to the summons; or
(b) having been served with a summons to attend before the Commission,
fails to produce a document or other thing in the person's custody or control
that the person is required by the summons to produce; or
(c) being called or examined as a witness before the Commission, refuses
to be sworn or to make an affirmation or refuses or otherwise fails to answer a
question put to the person by the Commissioner or an assistant commissioner;
or
(d) wilfully threatens or insults—
(i) the Commissioner, an assistant commissioner or an officer of the
Commission; or
(ii) a legal practitioner appointed to assist the Commission as counsel;
or
(iii) a witness or person summoned to attend before the Commission;
or
(iv) a legal practitioner or other person authorised to appear before the
Commission; or
(e) misbehaves himself or herself before the Commission; or
(f) interrupts the proceedings of the Commission; or
(g) obstructs or attempts to obstruct the Commission, the Commissioner, an
assistant commissioner or a person acting under the authority of the Commission
or the Commissioner in the exercise of any lawful power or function;
or
(h) does any other thing that, if the Commission were a court of law
having power to commit for contempt, would be contempt of that court;
or
(i) publishes, or permits or allows to be published, evidence given before
the Commission or any of the contents of a document produced at a hearing that
the Commission has ordered not to be published,
is guilty of contempt of the Commission.
(1) A contempt of the Commission under section 92 may be punished in
accordance with this section.
(2) The Commissioner may certify the contempt in writing to the Supreme
Court.
(3) If the Commissioner certifies the contempt of a person to the Supreme
Court—
(a) the Supreme Court must inquire into the alleged contempt;
and
(b) after hearing any witnesses called to give evidence against or on
behalf of the person charged with the contempt, and any statement offered in
defence,
the Supreme Court (if satisfied that the person is guilty of the contempt)
may punish or take steps for the punishment of the person in the same manner and
to the same extent as if the person had committed that contempt in or in
relation to proceedings in the Supreme Court (and the provisions of the
Supreme Court Act 1935, and the rules of court made under the Act,
with any necessary adaptations, apply and extend accordingly).
(4) A certificate purporting to be given by the Commissioner under this
section is, in the absence of proof to the contrary, proof of the matters so
certified.
(5) Neither liability to be punished nor punishment under this section for
a contempt referred to in section 92(a) excuses the offender from attending
before the Commission in obedience to the summons, and the Commissioner may
enforce attendance by warrant issued by a justice.
94—General
provisions regarding contempt
(1) In the case of an alleged contempt of the Commission, the Commissioner
may summon the offender to appear before the Commission at a time and place
specified in the summons to show cause why he or she should not be dealt with
under section 93 for the contempt.
(2) If the offender fails to attend before the Commission in obedience to
the summons, and no reasonable excuse to the satisfaction of the Commissioner is
offered for the failure, the Commissioner may, on proof of the service of the
summons, apply to a justice for a warrant to apprehend the offender and bring
the offender before the Commissioner to show cause why he or she should not be
dealt with under section 93 for the contempt.
(3) If a contempt of the Commission is committed in the face, or at a
hearing, of the Commission, no summons need be issued against the offender, but
the offender may be taken into custody then and there by a police officer and
called on to show cause why he or she should not be dealt with under
section 93 for the contempt.
(4) The Commissioner may apply to a justice for a warrant to apprehend the
offender while the offender (whether or not already in custody under this
section) is before the Commission and to bring the offender forthwith before the
Supreme Court.
(5) A warrant under this section is sufficient authority to detain the
offender in a prison or elsewhere, pending the offender being brought before the
Supreme Court.
(6) The warrant must be accompanied by—
(a) the instrument by which the Commissioner certifies the contempt to the
Supreme Court; or
(b) a written statement setting out the details of the alleged
contempt.
(7) A justice may, on the application of the Commissioner, revoke the
warrant at any time before the offender is brought before the Supreme
Court.
(8) When the offender is brought before the Supreme Court, the Court may,
pending determination of the matter, direct—
(a) that the offender be kept in such custody as the Court may determine;
or
(b) that the offender be released.
95—Act or
omission that is both an offence and contempt
(1) An act or omission may be punished—
(a) as a contempt of the Commission even though it is punishable as an
offence; or
(b) as an offence even though it is punishable as a contempt of the
Commission.
(2) An offender is not liable to be punished twice for an act or omission
that constitutes both an offence and a contempt of the Commission.
(1) The Commission is not bound by the rules of evidence and may inform
itself on any matter in such manner as it considers appropriate.
(2) The Commission must exercise its functions with as little formality
and technicality as is possible, and, in particular, the Commission should
accept written submissions as far as is possible and hearings should be
conducted with as little emphasis on an adversarial approach as is
possible.
(1) The Commission may—
(a) commence, continue, discontinue or complete an investigation;
or
(b) furnish reports in connection with an investigation; or
(c) do all such acts and things as are necessary or expedient for those
purposes,
despite any proceedings that may be in or before a court, tribunal, royal
commission, warden, coroner, magistrate, justice or other person.
(2) If the Commission does any of the things mentioned in
subsection (1)—
(a) the Commission must, as far as practicable, ensure that a hearing or
other action relating to the investigation is conducted in private during the
currency of the proceedings (so far as the hearing or other action relates to or
affects the subject matter of the proceedings); and
(b) the Commission must, as far as practicable, give such directions
(having effect during the currency of the proceedings) under section 101 as
will avoid prejudice to any person affected by the proceedings; and
(c) the Commission must defer making a report to Parliament in relation to
the investigation during the currency of the proceedings.
(3) This section has effect whether or not the proceedings commenced
before or after the relevant investigation commenced and whether or not the
Commission or an officer of the Commission is a party to the
proceedings.
(1) No liability (apart from this Act) attaches to—
(a) a member of the Commission; or
(b) a person acting under the direction of the Commission or the
Commissioner; or
(c) any other person engaged in the administration of this Act,
for an honest act or omission in the exercise or purported exercise of a
power or function under this Act.
(2) A liability that would, but for subsection (1), lie against a
person referred to in that subsection lies instead against the Crown.
(3) A legal practitioner assisting the Commission or representing a person
before the Commission has the same protection and immunity as a legal
practitioner has in appearing for a party in proceedings in the Supreme
Court.
(1) A person to whom this section applies must not, directly or
indirectly, except for the purposes of this Act or otherwise in connection with
the exercise of the person's powers or functions under this Act—
(a) make a record of information; or
(b) divulge or communicate to a person information,
being information acquired by the person by reason of, or in the course of,
the exercise of the person's powers or functions under this Act.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2) A person to whom this section applies cannot be
required—
(a) to produce in a court a document or other thing that has come into the
person's possession, custody or control by reason of, or in the course of, the
exercise of the person's powers or functions under this Act; or
(b) to divulge or communicate to a court any matter or thing that has come
to the person's notice in the exercise of the person's powers or functions under
this Act,
except for the purposes of a prosecution instituted as a result of an
investigation conducted by the Commission in the exercise of its powers or
functions.
(3) Nothing in this section prevents a person to whom this section applies
from divulging such information—
(a) for the purposes of and in accordance with this Act; or
(b) for the purposes of a prosecution instituted as a result of an
investigation conducted by the Commission in the exercise of its powers or
functions; or
(c) in accordance with a direction of the Commissioner, if the
Commissioner certifies that it is necessary to do so in the public interest;
or
(d) to any prescribed authority or person.
(4) An authority or person to whom information is divulged under
subsection (3)(d), and any person or employee under the control of that
authority or person is, in respect of that information, subject to the same
rights, privileges, obligations and liabilities under subsections (2) and
(3) as if he or she were a person to whom this section applies and had acquired
the information in the exercise of functions under this Act.
(5) In this section—
court includes a tribunal, authority or person having power
to require the production of documents or the answering of questions;
produce includes permit access to.
(6) This section applies to—
(a) a person who is or was an officer of the Commission; and
(b) a person who is or was a legal practitioner appointed to assist the
Commission or who is or was a person who assists, or performs services for or on
behalf of, such a legal practitioner in the exercise of the legal practitioner's
functions as council to the Commission; and
(c) a person who is or was a member of the Operations Review Committee;
and
(d) the Attorney-General and any other person involved in prosecutions for
offences.
100—Publication
of evidence, etc
(1) The Commission may, where it considers it desirable in the interests
of the administration of justice to do so, direct that—
(a) evidence given before it; or
(b) the contents of a document, or a description of a thing produced to
the Commission or seized under a search warrant issued under this Act;
or
(c) information that might enable a person who has given evidence before
the Commission to be identified; or
(d) the fact that a person has given or may be about to give evidence at a
hearing,
must not be published or must not be published except in such manner, and
to such persons, as the Commission specifies.
(2) A person must not make a publication in contravention of a direction
given under this section.
Maximum penalty: $5 000 or imprisonment for 1 year.
101—Evidence
in criminal proceedings
(1) If—
(a) a person has been charged with an offence before a court of the State;
and
(b) the court considers that it is desirable in the interests of justice
that particular evidence given before the Commission (being evidence in relation
to which the Commission has given a direction under section 100) be made
available to the person or to a legal practitioner representing the person or to
the prosecutor,
the court may give to the Commission a direction to that effect.
(2) The Commissioner may appear before the court for the purpose of making
representations concerning the giving of such a direction.
(3) On such a direction being given, the Commission must make the evidence
or information available to the court.
(4) The court may make the evidence or information available to the person
charged with the offence concerned, to a legal practitioner representing the
person charged or to the prosecutor, if the court has examined the evidence or
information and is satisfied that the interests of justice so require.
(5) Nothing in section 99 prevents a person to whom that section
applies from producing a document or other thing, or divulging or communicating
a matter or thing, to the extent necessary to give effect to this
section.
(6) Nothing in section 100 prevents the evidence or information being
made available under this section.
102—Disclosures
prejudicing investigations
(1) A person who is required—
(a) by a notice under section 21 or 22 to produce a statement of
information or to attend and produce a document or other thing; or
(b) by a summons under section 33 to give evidence or to produce a
document or other thing,
must not disclose information about the notice or summons that is likely to
prejudice the investigation to which it relates.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2) Subsection (1) does not apply to a notice or summons unless it
specifies that information about the notice or summons must not be
disclosed.
(3) A person does not contravene this section if—
(a) the disclosure is made to an employee, agent or other person in order
to obtain information to comply with the notice or summons and the employee,
agent or other person is directed not to inform the person to whom the
information relates about the matter; or
(b) the disclosure is made to obtain legal advice or representation in
relation to the notice or summons; or
(c) the disclosure is made for the purposes of, or in the course of, legal
proceedings.
(4) A reference in this section to the disclosure of information about a
notice or summons includes a reference to—
(a) a disclosure about the existence or nature of the notice or summons or
of the investigation to which it relates; and
(b) a disclosure of information to a person from which the person could
reasonably be expected to infer the existence or nature of the notice or summons
or of the investigation to which it relates.
103—Duty to
report corrupt conduct
(1) Despite a duty of secrecy or other restriction on disclosure, a person
to whom this section applies is under a duty to report to the Commission any
matter that the person suspects on reasonable grounds concerns or may concern
corrupt conduct or organised crime.
(2) The Commission may issue guidelines as to what matters need or need
not be reported.
(3) This section applies to the following persons:
(a) the Ombudsman;
(b) the Commissioner of Police;
(c) a principal officer of a public authority;
(d) a person who constitutes a public authority.
(4) In this section—
principal officer in relation to a public authority,
means—
(a) the head of the authority;
(b) the most senior officer;
(c) the person normally entitled to preside at meetings of the
authority.
104—Indemnity
from prosecution
The Commission may recommend to the Attorney-General—
(a) that a person be granted an indemnity from prosecution; or
(b) that a person be given an undertaking that—
(i) an answer, statement or disclosure in proceedings before the
Commission; or
(ii) the fact of a disclosure, or production of a document in proceedings
before the Commission,
will not be used in evidence against the person.
Nothing in this Act affects the rights and privileges of Parliament in
relation to the freedom of speech, and debates and proceedings, in
Parliament.
For the purposes of this Act, service of a document on a person may be
effected—
(a) on a natural person—
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by registered post or facsimile to
the last known address of the place of residence or usual place of business of
the person; or
(iii) by sending it electronically to that person; or
(b) on a body corporate—
(i) by leaving it at the registered office or usual place of business of
the body corporate with an officer of the body corporate; or
(ii) by sending it by registered post or facsimile to its registered
office or its usual place of business; or
(iii) by sending it electronically to that body corporate or an officer of
the body corporate.
107—Penalties for
offences committed by corporations
The maximum penalty applicable to a body corporate convicted of an offence
against this Act is double the pecuniary penalty otherwise applying to the
offence.
(1) The Governor may make such regulations as are contemplated by this
Act, or as are necessary or desirable for the purposes of this Act.
(2) Without limiting the generality of subsection (1), the
regulations may—
(a) provide for and regulate the appointment, conditions of employment,
discipline, code of conduct and termination of employment of staff of the
Commission; and
(b) provide for security checks of officers of the Commission and
applicants for appointment or engagement as officers of the Commission;
and
(c) provide for service of a notice on an occupier whose premises are
entered under a search warrant; and
(d) provide for the issue of identity cards to officers of the Commission
and regulate their use; and
(e) provide for the use and custody of the seal of the Commission;
and
(f) prescribe forms for the purposes of this Act; and
(g) provide for the disclosure by officers of the Commission of all or any
of the following pecuniary interests or other matters:
(i) real or personal property;
(ii) income;
(iii) gifts;
(iv) financial or other contributions to any travel;
(v) shareholdings or other beneficial interests in bodies
corporate;
(vi) partnerships;
(vii) trusts;
(viii) positions (whether remunerated or not) held in, or membership of,
bodies corporate, trade unions, professional associations or other organisations
or associations;
(ix) occupations, trades, professions or vocations;
(x) debts;
(xi) payments of money or transfers of property to relatives or other
persons by, or under arrangements made by, officers of the Commission;
(xii) any other direct or indirect benefits, advantages or liabilities,
whether pecuniary or not, of a prescribed kind; and
(h) prescribe the manner in which, and the times at which, pecuniary
interests or other matters must be disclosed and provide for the verification by
statutory declaration or otherwise of any such disclosure; and
(i) provide for the compilation and maintenance of registers of pecuniary
interests or other matters by officers of the Commission and the inspection and
publication of any such register; and
(j) prescribe fines not exceeding $2 500 for contravention of or
failure to comply with a regulation.
(3) Regulations (other than regulations with respect to matters referred
to in subsection (2)(g), (h), or (i)) may only be made on the
recommendation of the Commissioner.