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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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The National Anti-Corruption Commission Bill 2022 (NACC Bill) seeks to
create a new Commonwealth anti-corruption agency, the National Anti-Corruption,
that would investigate and report
on serious or systemic corruption in the
Commonwealth public sector, refer evidence of criminal corrupt conduct for
prosecution,
and undertake education and prevention activities regarding
corruption.
This National Anti-Corruption Commission (Consequential and Transitional
Provisions) Bill 2022 seeks to support the National Anti-Corruption Commission
Bill 2022, which would amend various Acts to give effect to the NACC.
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Portfolio
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Attorney-General
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Introduced
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House of Representatives on 28 September 2022
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1.58 The National Anti-Corruption Commission Bill 2022 (the bill) would provide the Commissioner with broad discretion to deal with corruption issues,[36] including a range of powers in order to investigate and report on corruption issues that the Commissioner is of the opinion could involve corrupt conduct[37] that is serious or systemic. Clause 41 sets out how the Commissioner may deal with a corruption issue.[38] Subclause 9(1) defines a corruption issue as an issue of whether a person has engaged, is engaging, or will engage in corrupt conduct. Further to this, clause 8 defines corrupt conduct to include:
• conduct that took place before the National Anti-Corruption Commission (the NACC) was established;[39]
• conduct of a former public official while they were a public official;[40] and
• misuse of information by a former public official that was acquired by the former public official in the course of their functions or duties as a public official.[41]
1.59 The committee notes that the effect of this is that the Commissioner may investigate corrupt conduct that occurred prior to the commencement of the bill.
1.60 Retrospective application challenges a basic principle of the rule of law that laws should only operate prospectively. The committee therefore has long-standing scrutiny concerns in relation to provisions which have the effect of applying retrospectively. These concerns will be particularly heightened if the legislation will, or might, have a detrimental effect on individuals.
1.61 Generally, where proposed legislation will have a retrospective effect, the committee expects that the explanatory materials will set out the reasons why retrospectivity is sought, whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. In this instance, the explanatory memorandum states that:
It is appropriate that the Commissioner is able to investigate allegations of serious or systemic corrupt conduct that occurred before the NACC was established. This reflects the fact that the definition would not impose new standards of conduct in public administration, but would reflect long‑standing community expectations of public officials, including the expectation to act in the public interest. It is possible that certain conduct involving public officials could have fallen short of these existing expectations before the NACC was established ... the Commissioner would only be able to make a finding of corrupt conduct if the conduct fell within one of the limbs of the definition, at the time it occurred.[42]
1.62 According to the statement of compatibility, investigating past conduct that is serious or systemic is 'critical to ensuring the Australian community has confidence in the integrity and effective administration of public institutions'.[43]
1.63 In addition, the explanatory memorandum notes that the definition of corrupt conduct would not create a criminal offence, and so would not impose retrospective criminal liability for any conduct.[44] It also states that while corrupt conduct may constitute criminal conduct, only a court would be able to make a finding of criminal guilt or impose punishments upon finding that a person had committed an offence. To this end, the bill would enable the Commissioner to refer evidence of criminal conduct to the Commonwealth Department of Public Prosecutions for prosecution.[45]
1.64 The committee acknowledges that the intention of the bill is to expose corruption in public administration. The committee notes that the definition of corrupt conduct, which would include conduct that took place before the NACC was established, would be central to the operation of the bill and the Commissioner's jurisdiction.
1.65 While acknowledging that the bill does not seek to retrospectively impose criminal liability for past corrupt conduct, the committee notes that the bill may subject affected persons to processes in relation to past conduct that could have adverse impacts, such as damage to a person's reputation. In this regard, the committee notes the justification in the explanatory memorandum that this is appropriate because the definition of corrupt conduct reflects long-standing standards of conduct by public officials, rather than imposing any new standards, and is needed to ensure the community has confidence in the integrity of Australia's institutions.[46] However, the committee also notes that paragraph 8(1)(e) extends the definition of corrupt conduct to include conduct of a public official that constitutes 'corruption of any other kind'. According to the explanatory memorandum, this is intended to capture 'emerging areas of corruption that may not currently be foreseen'.[47] The committee notes that this explanation appears to contemplate unknown conduct which is not subject to long‑standing standards.
1.66 In relation to paragraph 8(1)(e), the committee recommends that the explanatory memorandum be updated to:
• explain why it is appropriate to allow the bill to have retrospective application, given that it appears that it appears that the bill is intended to cover investigations of 'emerging areas of corruption that may not currently be foreseen' in relation to the conduct of a public official; and
• to provide a more detailed list of examples of the kinds of conduct of a public official that is likely to constitute 'corruption of any other kind', noting the importance of this definition for the overall operation of the bill.
1.67 The committee otherwise draws its long-standing scrutiny concerns regarding legislation that seeks to have a retrospective effect to the attention of senators and leaves to the Senate as a whole the appropriateness of the retrospective application of the bill.
1.68 The bills seek to establish several defences which reverse the evidential burden of proof. The committee has scrutiny concerns in relation to a number of these reverse burden provisions, which are set out below.
1.69 Clause 60 makes it an offence to not to comply with a notice to produce within the required period. Clause 69 makes it an offence to fail to give information or produce a document or thing when required to do so, either by a summons or by the Commissioner under clause 65. Subclauses 60(2) and 69(2) provide that it is a defence to these offences if it is not reasonably practicable for the person to comply.
1.70 Clauses 61 and 71 set out offences in relation to providing false or misleading information. Clause 61 makes it an offence to provide false or misleading information, or omit a matter or thing without which the information given is false or misleading, in response to a notice to produce. Clause 71 provides that it is an offence to provide false or misleading information, or omit a matter or thing without which the information given is false or misleading, at a hearing when required by the Commissioner or Inspector. Subclauses 61(2) and 71(2) provide that it is a defence if the information or document was not false or misleading in a material particular.
1.71 Clause 98 makes it an offence to disclose information in contravention of a non-disclosure notation attached to a notice or summons. Strict liability would apply to whether the non-disclosure notation has not been cancelled.[49] Subclause 98(3) provides a number of specific defences. For example, under paragraph 98(3)(f) it is a defence if the disclosure is made after the information has already been lawfully published.
1.72 Clause 228 creates an offence for an entrusted person (or former entrusted person) to disclose information they obtained as an entrusted person.[50] Subclause 228(2) provides that it is a defence if an entrusted person lawfully uses or discloses information under clauses 229 or 230. This includes for the purposes of performing a function or duty under the bill,[51] or if the disclosure is required under another law of the Commonwealth.[52]
1.73 Clause 234 makes it an offence to disclose the whole or part of a protected information report. Subclause 234(2) provides that it is a defence if the disclosure was authorised under subclause 229(4) (if the disclosure is required under another law of the Commonwealth) or clause 230 (if the disclosure is in the public interest).
1.74 In addition, item 203 in Schedule 1 to the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (the Consequential Bill) would insert an exception to the existing offence in Section 355‑155 in Schedule 1 of the Taxation Administration Act 1953 (on-disclosure of protected information by other people) for disclosures in relation to the NACC. Specifically, proposed subsection 355-192(1) provides that section 355‑155 does not apply if the entity is the Inspector-General of Taxation, the disclosure is for the purposes of the bill and is in relation to a corruption issue that relates to the Australian Tax Office or the Inspector-General of Taxation. Proposed subsection 355‑192(2) provides that it is a defence if the disclosure is for the purpose of performing a function or duty of the NACC or its staff under the bill.
1.75 The defendant bears an evidential burden of proof in relation to each of the defences outlined above.
1.76 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.[53] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.
1.77 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified.
1.78 The explanatory memorandum seeks to justify the reverse burden provisions on the grounds that if a person bears the burden of proving the relevant defence, then they are more likely to comply with a notice to produce or summons,[54] ensure that information provided is complete and truthful,[55] or that the disclosure of information is in fact permitted and authorised.[56] For example, in relation to clauses 60 and 69 the explanatory memorandum states that:
Clauses 60 and 69 serve the legitimate objective of ensuring NACC and Inspector investigations are timely. If a person bears the burden of proving that it was not reasonably practicable for them to comply with a notice to produce (per the offence in clause 60) or a summons to attend a hearing (per the offence in clause 69), then they are more likely to comply with the notice or summons within the specified timeframe.[57]
1.79 It is not clear to the committee how reversing the evidential burden of proof is intended to improve compliance. In any case, the committee does not consider that this is a sufficient justification for reversing the evidential burden of proof. To this end, the committee notes that the relevant test, as set out in the Guide to Framing Commonwealth Offences,[58] is that a matter should only be included in an offence‑specific defence (as opposed to being specified as an element of the offence) where:
• it is peculiarly within the knowledge of the defendant; and
• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.[59]
1.80 In relation to the defences set out in subclauses 69(2), 228(2) and 234(2), the statement of compatibility states:
It is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant. For example, a defendant is best-placed to give evidence that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe (see the defences in clauses 58 and 69). Similarly, a defendant is best placed to produce regarding the circumstances in which they made a particular record or disclosure (clauses 84, 228 and 234), or circumstances in which an identity card was lost or stolen (clause 268).[60]
1.81 The committee notes that the relevant test is not whether the defendant is 'best-placed' to give evidence, but rather whether a matter is peculiarly within the knowledge of the defendant.
1.82 The explanatory memorandum similarly claims that the defences in subclauses 60(2), 61(2), 71(2) and 98(3) are peculiarly within the knowledge of the defendant, but provides little to no explanation as to why this is the case.[61] In relation to proposed subsections 355-192(1) and (2) of the Consequential Bill, the explanatory memorandum contains no justification for the reversal of the evidential burden of proof.
1.83 In this case, it does not appear that the matters relevant to the defences set out in proposed subsections 355-192(1) and (2) of the Consequential Bill and subclauses 60(2), 61(2) 69(2), 71(2), 98(3), 229(1), 229(4) and 234(2) would be peculiarly within the knowledge of the defendant, or that it would be significantly more difficult or costly for the prosecution to establish the matters than for the defendant to establish them. As a result, from a scrutiny perspective, the committee considers that these matters would be more appropriately included as elements of the offences, rather than as offence-specific defences.
1.84 For example, it would appear that whether the disclosure was required under another law of the Commonwealth in accordance with subclause 229(4) would be a matter that the prosecution could readily ascertain. Further, in relation to paragraph 98(3)(f), it appears that whether or not information had been published is not a matter that would be peculiarly within the knowledge of the defendant. In relation to subclause 98(3), it appears that several of these matters are not peculiarly within the knowledge of the defendant. In this instance, the explanatory memorandum states that '[t]he reason the defendant believed a disclosure to be permitted will in some cases be peculiarly within the mind of the defendant'.[62] The committee notes that this explanation suggests that matters will not always be peculiarly within the knowledge of the defendant.
1.85 In relation to subclauses 60(2) and 69(2), the committee also considers that an offence-specific defence of 'reasonably practicable' should not be applied to an offence, unless it is not possible to rely on the general defences in the Criminal Code or to design more specific defences. The committee notes that the explanatory memorandum contains no justification regarding why it is not possible to design more specific offences in this instance. In addition, the explanatory memorandum provides examples of where it may not be reasonably practicable for the person to comply, including where the person does not have the information, document or thing that is required, or where it is not possible to compile all of the relevant information or documents in the time allowed.[63] It is unclear to the committee why these examples could not have been included as defences, or as elements of the offences.
1.86 The committee considers it is not appropriate to reverse the evidential burden of proof in relation to matters that are not peculiarly within the knowledge of the defence. The committee therefore recommends that:
• where there is sufficient justification for providing that a matter is peculiarly within the knowledge of the defendant, the explanatory memorandum be updated to reflect this justification; and
• where there is not a sufficient justification, consideration be given to amending the bill so that the matters specified by the committee are included as elements of the relevant offence, rather than as offence-specific defences.
1.87 In addition, in relation to subclauses 60(2) and 69(2), the committee recommends that:
• where there is sufficient justification for providing a general defence, the explanatory memorandum be updated to reflect this justification; and
• where there is not a sufficient justification, consideration be given to amending the bill so that more specific defences apply.
1.88 The Commissioner would be empowered to require that a person give information to the NACC where it is reasonably believed they have information, or a document or thing, relevant to a corruption investigation. This could apply to persons who have separately been charged with a relevant offence, or been subject to relevant confiscation proceedings.[65] Clause 105 provides that a person or body that may lawfully disclose investigation material, or material derived from the investigation material, may disclose it to a prosecutor of the witness. In the case of investigation material (but not derivative material) this is subject to any direction to the contrary by the Commissioner.[66] In the case of material obtained post-charge, it may only be disclosed with a court order. The court may order that investigation material or derivative material may be disclosed to prosecutors of the witness if satisfied that the disclosure is required in the interests of justice, but this does not restrict a court’s power to make any orders necessary to ensure that the witness’ fair trial is not prejudiced.[67]
1.89 Clause 113 would provide that a person is not excused from answering a question or producing a document or thing as required by a notice to produce, or at a hearing, on the ground that doing so would tend to incriminate the person or expose the person to a penalty. That is, the bill would abrogate a person's common law privilege against self-incrimination.
1.90 The committee recognises that there may be circumstances in which the privilege against self-incrimination can be overridden. However, abrogating the privilege represents a serious loss of personal liberty. In considering whether it is appropriate to abrogate the privilege against self-incrimination, the committee will consider whether the public benefit in doing so significantly outweighs this loss to personal liberty. The committee considers that any justification for abrogating the privilege against self-incrimination will be more likely to be considered appropriate if accompanied by both a 'use immunity' and a 'derivative use immunity'. A use immunity provides that information or documents produced are not admissible in evidence in most proceedings. By contrast, a derivative use immunity provides that anything obtained as a direct, or indirect, consequence of the information or documents is not admissible in most proceedings.
1.91 In this case, subclause 113(2) states that an answer given, or a document or thing produced, is not admissible in evidence against the person in a criminal proceeding, or a proceeding for the imposition or recovery of a penalty, or a confiscation proceeding. However, there is no such protection in relation to information derived from an answer or information given, or a document or thing produced. This means that clause 113 will provide a use immunity but not a derivative use immunity. Further, as set out above, the bill makes clear that material derived from anything a witness is compelled to produce may be able to be used in prosecuting them, subject to a court order.[68]
1.92 In addition, clause 114 of the bill provides that a person is not excused from giving an answer, or producing a document or thing, under a notice to produce or at a hearing on the grounds that the information is protected against disclosure by legal professional privilege. Subclauses 114(2), (3) and (4) set out exceptions to this abrogation of legal professional privilege. However, clause 115 requires a legal practitioner who refuses to provide information, documents or things on the grounds that doing so would disclose advice or a communication to which section 114 does not apply to provide the name and address of the person who is able to waive the legal professional privilege concerned. Paragraph 82(b) provides that a practitioner who refuses to comply with this requirement would be in contempt of the NACC.
1.93 Abrogating legal professional privilege represents a serious loss of personal liberty as an abrogation necessarily interferes with the legitimate, confidential communications between individuals and their legal representatives. The committee considers that legal professional privilege is not merely a rule of substantive law but an important common law right which is fundamental to the administration of justice. This has been recognised by the High Court on numerous occasions.[69] Where legal professional privilege is abrogated, use and derivative use immunities should ordinarily apply to documents or communications revealing the content of legal advice, in order to minimise harm to the administration of justice and to individual rights.
1.94 Where a bill seeks to abrogate the privilege against self-incrimination or legal professional privilege, the committee would expect a sound justification for the abrogation to be included in the explanatory memorandum.
1.95 In relation to the abrogation of the privilege against self-incrimination, the explanatory memorandum states that the existence of use immunity is an important safeguard and that the lack of derivative use immunity is appropriate:
... to ensure the Commissioner can fulfil their statutory functions of detecting, preventing and investigating corrupt conduct that could be serious or systemic. Such conduct causes significant harm, including:
- direct harm to individual victims of serious or systemic corrupt conduct;
- broader, direct harms across the Australian community and economy—for example, through the corrupt diversion of public resources; and
- harm to public confidence in government and public administration.
It is important that material derived from investigation material can be used to investigate, disrupt and—where appropriate—prosecute persons involved in serious or systemic corrupt conduct, including by prosecuting persons who have been witnesses before the Commissioner. For example, material provided by a witness in a hearing may lead the Commissioner to pursue new lines of investigation, which ultimately culminate in a brief of evidence against the witness. It is critical that such evidence can be used to disrupt corrupt conduct, including by prosecuting persons who have been witnesses.
Further, it would open court proceedings up to inappropriate delay, and be contrary to the interests of justice, if evidence referred by the NACC could not be admitted until the prosecution had established its provenance.[70]
1.96 The explanatory memorandum also states that a lack of derivative use immunity is consistent with the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), and that the bill would preserve the inherent power of the courts to make orders that are necessary to ensure a fair trial of the witness, including orders to limit or remove any prejudice from the prosecution’s lawful possession or use of derivative material.[71]
1.97 While acknowledging this explanation, and welcoming the safeguards included within the bill, the committee remains concerned about abrogating the privilege against self-incrimination in circumstances in which derivative use immunity is not available. The committee notes that consistency with existing legislation does not justify abrogating a significant common law right. Rather, any abrogation should be justified with respect to the specific circumstances of the case at hand. Moreover, in light of the fact that information can be given to a prosecutor,[72] the committee is concerned that the approach taken in the bill may impact on a person's right to a fair trial. While the committee notes that it remains open to the court to make an order that the prosecutor disregard prejudicial derivative material,[73] the committee notes that knowledge of prejudicial material may unconsciously inform a prosecutor’s decisions in an unfair manner.
1.98 The committee considers that it would be more appropriate if the privilege against self-incrimination in clause 113 should be conditional upon requiring the NACC to demonstrate that all other less coercive avenues to obtain information have been exhausted prior to compelling a person to give evidence in circumstances where the privilege is abrogated.
1.99 In relation to the abrogation of legal professional privilege the explanatory memorandum states:
... it is appropriate to abrogate legal professional privilege in this way due to the significant impact that corrupt conduct can have in eroding the community’s trust in public administration. Privileged information can provide valuable insight into conduct, and be important evidence in a corruption investigation. This clause would prevent corrupt actors from relying on legal professional privilege as a shield from investigation by the Commissioner.[74]
1.100 The explanatory memorandum also argues that abrogating legal professional privilege is appropriate because it would prevent corrupt actors from using the privilege as a shield to protect against investigation, and because allowing the privilege without limitation could affect the public's confidence in the NACC.[75]
1.101 While acknowledging the concerns expressed in the explanatory memorandum, the committee remains concerned about abrogating legal professional privilege in circumstances in which a use and derivate use immunity is not available.
1.102 Moreover, the committee considers that the justifications contained within the explanatory memorandum do not adequately address the rationale for the existence of legal professional privilege. The committee considers that clauses 114 and 115 may have the effect of discouraging persons from obtaining legal advice. Clauses 114 and 115 may also impact on a person's right to a fair trial because certain disclosures allowed by those clauses raise the possibility of adverse inferences being drawn about persons who have sought legal advice. For example, clauses 114 and 115 open the possibility of adverse inferences being drawn in relation to a person having sought legal advice from a practitioner with a particular speciality. To this end, the committee considers that it would be appropriate if the bill was amended to provide additional safeguards in relation to the publication of such information. For instance, by providing that the Commissioner must give a notice to an affected party where the Commissioner proposes to publish privileged information, stating that they intend to publish the information and why they are satisfied that it is appropriate to do so.
1.103 The committee welcomes the existence of numerous safeguards in the bill, including that the abrogation of legal professional privilege does not apply to journalists,[76] and that evidence must be given in private if it would involve the disclosure of information covered by legal professional privilege.[77] However, these safeguards do not fully assuage the committee's concerns in this instance.
1.104 As above, the committee considers that it would be more appropriate if the NACC was required to consider whether other less coercive avenues to obtain information were available prior to compelling a person to give evidence in circumstances where legal professional privilege is abrogated.
1.105 In light of the above, the committee recommends that consideration be given to amending the bill:
• so that the privilege against self-incrimination and legal professional privilege are only abrogated to the extent that both use and derivative use immunity are available;
• or, at a minimum, to provide that the NACC must consider whether less coercive avenues are available to obtain the information prior to compelling a person to give information in circumstances which would abrogate the privilege against self-incrimination or legal professional privilege.
1.106 Subclause 72(1) provides that a person would commit an offence if they obstruct or hinder a staff member of the NACC in the performance or exercise of the staff member’s functions, powers or duties in connection with a hearing. Similarly, subclause 72(2) provides that a person commits an offence if they disrupt a hearing.
1.107 Both offences carry a maximum penalty of 2 years imprisonment.
1.108 The committee considers that it is unclear what conduct could constitute disrupting a hearing such that it would constitute this offence. Similarly, it is unclear what conduct could constitute obstructing or hindering a staff member of the NACC. The committee notes that there is nothing on the face of the bill clarifying the meaning of these terms. The explanatory memorandum helpfully clarifies the relevant fault elements for both offences, but otherwise provides no further guidance.[79]
1.109 The committee considers that the terms 'disrupt', 'obstruct', and 'hinder' could conceivably cover a broad range of conduct from relatively minor actions to serious misconduct. If the intention is to cover this entire spectrum by relying on the ordinary meaning of 'disrupt', 'obstruct', and 'hinder' the bill and accompanying explanatory materials should make that clear. However, the committee considers that, given the significant penalties that may be imposed under clause 72, it would be more appropriate to clarify with a higher level of precision what conduct subclauses 72(1) and (2) are intended to cover.
1.110 The committee considers that any offence provision should be clearly drafted and sufficiently precise to ensure that any person may understand what may constitute an offence. The committee notes that insufficiently defined terms contained within offence provisions may impact on the predictability and guidance capacity of the law, undermining fundamental rule of law principles. This is particularly so when the offence provision contains a custodial penalty, as in this instance.
1.111 It appears that clause 72, as with many offences within the bill, has been drawn from the LEIC Act.[80] The explanatory memorandum to the bill notes that the penalty of two years imprisonment is consistent with the equivalent provision in the LEIC Act. The committee takes this opportunity to note that consistency with existing provisions is not a sufficient justification for the use of imprecise terms within an offence provision.
1.112 The committee also notes that paragraph 82(g) of the bill provides that a person is in contempt of the NACC if they disrupt a hearing. Similarly, paragraph 82(f) provides that a person is in contempt of the NACC if they obstruct or hinder a staff member. If such a finding is made the court could find that the person was in contempt of the Commission, and deal with them as if their conduct had constituted contempt of that court.[81]
1.113 It is unclear to the committee why it is necessary to include both a contempt provision at clause 82 and an offence provision at clause 72 in relation to the same conduct. This is particularly so given the custodial penalties set out under clause 72 and the fact that the court could find that contempt of the NACC could constitute contempt of the court, noting that the court can impose significant penalties for contempt including, in certain cases, imprisonment. The committee's already significant concerns in relation to the use of imprecise terms is heightened given this duplication. The committee notes that the explanatory memorandum does not explain why both provisions are needed.
1.114 In light of the above, the committee recommends that:
• unless sufficient justification can be provided as to why it is necessary and appropriate to make it both an offence, and a contempt of court, to disrupt a hearing or obstruct or hinder a staff member of the Commission, consideration be given to amending the bill to remove clause 72; and
• if clause 72 is not removed, that consideration be given to amending the bill to better clarify what conduct is intended to be covered by this clause or, at a minimum, that the explanatory memorandum to the bill be updated to included specific examples of the kinds of conduct that the provisions are intended to cover.
1.115 As noted above, the bill would provide that a person is in contempt of the NACC where they engage in certain conduct.[83] Clause 83 provides that the Commissioner may subsequently make an application for the court to deal with contempt. Subclause 83(3) states that an application to the court must be accompanied by a certificate that states the grounds for making the application and the evidence in support of the application. Subclause 84(2) provides that a clause 83(3) certificate is prima facie evidence of the matters specified in the certificate.
1.116 Certificates that constitute prima facie evidence of the matters contained within them are known as evidentiary certificates. The committee notes that where an evidentiary certificate is issued, this allows evidence to be admitted into court which would need to be rebutted by the other party to the proceeding. While a person still retains the right to rebut or dispute those facts, that person assumes the burden of adducing evidence to do so. The use of evidentiary certificates therefore effectively reverses the evidential burden of proof, and may, if used in criminal proceedings, interfere with the common law right to be presumed innocent until proven guilty. Consequently, the committee expects a detailed justification for any proposed powers to use evidentiary certificates to be included in the explanatory materials. In this instance the explanatory memorandum contains no justification, merely re-stating the effect of the provision.
1.117 The committee notes that the Guide to Framing Commonwealth Offences states, in relation to criminal proceedings, that evidentiary certificates:
... are generally only suitable where they relate to formal or technical matters that are not likely to be in dispute or would be difficult to prove under the normal evidential rules.[84]
1.118 The Guide to Framing Commonwealth Offences further provides that evidentiary certificates 'may be appropriate in limited circumstances where they cover technical matters sufficiently removed from the main facts at issue'.[85]
1.119 In this instance, it appears that the matters that may be included in a certificate given in accordance with subclause 83(3) may encompass a wide range of technical and non-technical issues. Consequently, it is not clear to the committee whether a certificate would cover only formal or technical matters sufficiently removed from the relevant proceedings such as might make its use appropriate.
1.120 In light of the above, the committee recommends that unless sufficient justification can be provided as to why it is necessary and appropriate to provide that a certificate given under subclause 83(3) is an evidentiary certificate, noting that such certificates are generally only considered appropriate when they cover formal or technical matters, consideration be given to amending the bill to remove subclause 84(4).
1.121 The bill seeks to introduce several provisions which provide immunity from civil liability.
1.122 Subdivision D of Part 10 to the bill would provide certain immunities for the Inspector and persons assisting the Inspector. Subclause 196(1) provides that the Inspector is protected from civil liability in relation to an act or omission done in good faith, during the actual or purported performance or exercise of their functions, powers or duties under the bill. Subclause 169(2) further extends immunity from civil liability to any person whom the Inspector requests, in writing, to assist a staff member. Clause 269 of Part 12 to the bill provides an identical immunity in relation to a staff member of the NACC or a person whom the Commissioner requests assists a staff member of the NACC.
1.123 The immunities provided for under clauses 196 and 269 would remove any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that a lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply the lack of an honest or genuine attempt to undertake a task. Proving that a person has not engaged in good faith will therefore involve personal attack on the honesty of a decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances. The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified.
1.124 In relation to the immunity provided under clause 196, the explanatory memorandum states that providing immunity from liability:
... would ensure that the Inspector and persons assisting the Inspector are able to perform their functions and duties under the NACC Bill without fear of personal liability for any actions they perform in good faith. Without immunity from civil proceedings, the Inspector or a person assisting may be exposed to civil liability in the performance of their duties. For example, the Inspector may be exposed in circumstances where a person wishes to bring legal action to seek compensation for damage to their personal property arising from a search on Commonwealth premises. This clause would protect the Inspector and persons assisting the Inspector from such action.[87]
1.125 The explanatory memorandum provides an identical explanation in relation to clause 269.[88]
1.126 The committee considers that a desire for administrative efficiency is not, of itself, a sufficient justification for conferring a broad immunity from liability. The committee therefore remains concerned that the immunity conferred by clauses 196 and 269 is overly broad, particularly given that the effect of these clauses is that affected persons will have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown.
1.127 In light of the above, the committee recommends that
• the explanatory memorandum be updated to explain why it is necessary and appropriate to confer immunity from civil proceedings on a potentially broad range of persons, so that affected persons have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown; and
• where there is not a sufficient justification, consideration be given to amending the bill so that a more limited immunity is conferred.
1.128 The bill seeks to confer a broad range of powers on the Commissioner, Inspector and authorised officers to obtain information—including personal information—relevant to an investigation or public inquiry.[90] The bill also includes a number of provisions which would allow for the disclosure of this information, including through the tabling or publication of reports, public hearings and the disclosure of other information relevant to the NACC.[91] As a result the committee considers that the bill trespasses on an individual's right to privacy.
1.129 Subclause 227(3) would define a class of information to be known as sensitive information. Under paragraph 227(3)(n), this includes information the disclosure of which would unreasonably disclose a person's personal affairs.[92]
1.130 The bill proposes several measures which would provide protections around the use and disclosure of sensitive information. Among other things, this includes that:
• evidence at a hearing would need to be given in private if it would disclose sensitive information;[93]
• sensitive information would be required to be excluded from an inquiry report;[94]
• sensitive information would be required to be excluded from the Commissioner’s and Inspector's annual reports;[95] and
• sensitive information would be required to be excluded from the Commissioner’s investigation reports and the Inspector’s NACC investigation reports.[96]
1.131 In addition, where sensitive information is excluded from reports, such information would generally be required to be included in a protected information report.[97] Clause 234 would make it a criminal offence for a person to disclose a protected information report, or information contained in a protected information report, to the public.[98]
1.132 In relation to personal information, these requirements would apply where the relevant authorised discloser (defined in clause 227 to include the Commissioner and the Inspector) is satisfied that disclosure of the information would unreasonably disclose a person's personal affairs.[99] The committee notes that in this instance there is no guidance, either on the face of the bill or in the explanatory memorandum, regarding the circumstances in which an authorised discloser may be satisfied that the disclosure of sensitive information would unreasonably disclose a person's personal affairs. The explanatory memorandum merely states:
The relevant authorised discloser would need to be satisfied that information fell within the definition of sensitive information for associated restrictions on the disclose of that information to arise. Once the authorised discloser is satisfied, there would be restrictions on the disclosure of the information.[100]
1.133 The explanatory memorandum also notes that in assessing whether information is sensitive or not, the relevant authorised discloser may be required to consult with relevant officials.[101] For example, under subclause 151(2) the Commissioner must consult with the head of each Commonwealth agency or state or territory government entity to which the information relates about whether the information is sensitive information before including it in an investigation report.
1.134 While the committee welcomes these proposed restrictions on the disclosure of sensitive information, the committee is concerned that there is a significant amount of flexibility in the meaning of the terms 'unreasonably' and 'personal affairs' in this context. Further, the committee is concerned about the lack of guidance as to what an authorised discloser would need to consider in order to be satisfied about the matters in paragraph 227(3)(n). The committee notes that these terms are key to the operation of the sensitive information framework and its effectiveness in protecting against undue trespass on an individual's right to privacy. The committee's scrutiny concerns are heightened in this instance due to the potential harm that could result from the disclosure of personal information, which could, for example, adversely and permanently affect a person’s reputation. The committee also notes that while this framework seeks to minimise the disclosure of personal information, there are no requirements on the face of the bill for disclosing only de-identified data.
1.135 While the committee acknowledges that some flexibility may be required in this instance, it is unclear why at least high-level guidance in relation to the circumstances in which an authorised discloser may be satisfied that disclosure of information would unreasonably disclose a person's personal affairs cannot be included on the face of the bill. The committee considers that, at a minimum, it would also be useful for the explanatory memorandum to provide specific examples of when the threshold for the definition of sensitive information in paragraph 227(3)(n) is likely to be met. Without this information, the ability of the Parliament to consider whether appropriate safeguards are in place to protect personal information is limited.
1.136 Finally, the committee notes that section 47F of the Freedom of Information Act 1982 provides relevant matters which the minister must have regard to in determining whether the disclosure of a document would involve the unreasonable disclosure of personal information (as defined by the Privacy Act 1988). The committee considers that a similar approach would be helpful in this instance.
1.137 Given the potential impact on an individual's right to privacy resulting from the disclosure of personal information, the committee recommends that:
• consideration be given to amending the bill to include a list of considerations that an authorised discloser must have regard to in order to be satisfied that disclosure of information would unreasonably disclose a person's personal affairs; or
• at a minimum, that the explanatory memorandum be updated to include such a list of considerations and to provide specific examples of circumstances in which this threshold is likely to be met.
1.138 Division 2 of Part 13 to the bill sets out the circumstances in which the Commissioner may delegate their functions, powers and duties under the bill.
1.139 Subparagraph 276(1)(b)(ii) provides that the Commissioner may delegate all or any of the Commissioner's functions, powers or duties to a staff member of the NACC who holds, or is acting in, an Executive Level 2, or equivalent, position.
1.140 Paragraph 276(2)(b) provides that the Commissioner may delegate the Commissioner's power to take no action in relation to a corruption issue under subclause 41(6) to any staff member of the NACC.
1.141 Paragraph 277(1)(b) provides that the head of a Commonwealth agency may delegate all or any of their functions, powers or duties to an individual who is concerned in, or takes part in, the management of the agency.
1.142 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.
1.143 In relation to the broad delegation of powers set out under subparagraph 276(1)(b)(ii), the explanatory memorandum states:
The jurisdiction of the NACC will be significantly broader than that of the Integrity Commissioner. Accordingly, the number of decisions of this kind that would need to be taken could reasonably be expected to significantly increase. In these circumstances, it would be appropriate for the Commissioner to be able to delegate these functions to Executive Level 2 staff in appropriate circumstances and subject to appropriate directions.
1.144 While noting this explanation, and acknowledging the operational complexities involved, it remains unclear to the committee why it is considered necessary to delegate all of the powers and functions of the Commissioner to persons who hold an Executive Level 2 position. The committee's concerns in this instance are heightened by the significant nature of the powers involved.
1.145 In relation to the broad delegation of powers set out under paragraph 276(2)(b), the explanatory memorandum states:
It is anticipated that the NACC will receive a larger number of referrals than the Integrity Commissioner, necessitating the need to dispense with unmeritorious referrals in the most expeditious manner available. In turn, this would ensure the Commissioner can devote their resources appropriately to dealing with corrupt conduct that could be serious or systemic.[103]
1.146 While acknowledging this explanation, it is not clear to the committee why it is appropriate to delegate the power under paragraph 276(2)(b) to any staff member of the NACC. The committee notes that it is sometimes appropriate to delegate powers to a wide range of staff in order to allow for administrative efficiency. However, the committee considers that it would be possible to achieve this without allowing delegation to any staff member. The committee considers that it would be appropriate to, at a minimum, amend the bill to provide that delegates possess the appropriate training, qualifications, skills or experience to exercise decision-making powers or carry out administrative functions.
1.147 In relation to the broad of powers set out under subparagraph 277(1)(b), the explanatory memorandum states:
The second class of delegates is outlined for Commonwealth agencies that do not have SES employees, for example parliamentary offices and Commonwealth companies, as well as to enable delegations to statutory office holders in circumstances where an office or entity headed by that statutory office holder forms part of a separate Commonwealth agency within the meaning of the NACC Bill.[104]
1.148 While noting this explanation, the committee continues to have concerns given the breadth of the power conferred by paragraph 277(1)(b). The committee reiterates that it is possible to deal with issues of administrative efficiency while still providing appropriate limits on delegation powers. For example, as noted above, the bill could be amended to provide that delegates possess the appropriate training, qualifications, skills or experience to exercise decision-making powers or carry out administrative functions.
1.149 The committee notes that subparagraph 267(3)(a)(i) provides that an authorised officer must be a staff member of the NACC who the Commissioner considers has suitable qualifications or experience. It is unclear to the committee why a similar requirement cannot be included in the provisions discussed above.
1.150 In light of the above, the committee recommends that:
• the explanatory memorandum be updated to explain why it is necessary and appropriate to delegate:
• all of the Commissioner's functions, powers or duties to Executive Level 2 staff members of the NACC; and
• the Commissioner's powers under subclause 41(6) to any staff member; and
• the Commissioner's functions, powers or duties to an individual who is concerned in, or takes part in, the management of the agency; and
• that consideration be given to amending the bill to limit these broad delegations by, at a minimum, providing that only delegates in possession of the appropriate training, qualifications, skills or experience are able to exercise decision-making powers or carry out administrative functions.
1.151 Schedule 1 to the Consequential Bill would repeal the LEIC Act, and transfer many of the functions, duties and powers conferred on the Australian Commission for Law Enforcement Integrity to the NACC. Powers which Schedule 1 proposes to transfer to the NACC include significant covert investigative powers. Briefly, these are:
• powers under the Surveillance Devices Act 2004: including powers to search a computer and to access content on that computer;[106]
• powers under the Telecommunications (Interception and Access) Act 1979: including powers to access telecommunications interceptions, stored communications, telecommunications data and international production orders;[107]
• powers under the Telecommunications Act 1997: including powers to obtain assistance from communications providers to access encrypted information;[108]
• powers under Division 4, Part IAB of the Crimes Act 1914: allowing the NACC to authorise and conduct controlled operations;[109]
• powers under Part IABA of the Crimes Act 1914: allowing the NACC to conduct operations designed to test the integrity of staff members of certain Commonwealth agencies, using controlled or simulated situations;[110]
• powers under the Proceeds of Crime Act 2002: including powers to seek information about accounts, to search for and seize property and evidential material, and to apply for freezing orders;[111]
• information sharing powers: allowing information to be shared with specified Commonwealth agencies.[112]
1.152 Many of these powers have the potential to impact unduly upon personal rights and liberties, including by impacting upon a person's right to privacy or by authorising the use of coercion. Several of these powers have previously attracted committee comment on this basis. For example, the committee considered the computer access scheme set out within the Surveillance Devices Act 2004 and the industry assistance framework set out within Part 15 of the Telecommunications Act 1997 in Scrutiny Digest 12 of 2018 and Scrutiny Digest 14 of 2018.[113] The committee's comments in relation to both frameworks were extensive, and included concerns in relation to the potentially significant impact of the measures on an individual's privacy, without appropriate limits being set on the use of coercive powers. In particular, the committee expressed its concerns in relation to warrant regimes that do not adequately guard against the seizure of material unrelated to an investigation; do not adequately protect third parties; or that authorise covert access to material and thereby deny individuals the opportunity to protect privileged information. The committee was also concerned that the warrant regime was not subject to adequate judicial oversight.
1.153 Other powers listed above have raised similar concerns. For example, the committee commented on the international production order framework, set out under the Telecommunications (Interception and Access) Act 1979 in Scrutiny Digest 5 of 2020 and Scrutiny Digest 8 of 2020.[114] The committee was concerned that the framework, which permits Australian agencies to access overseas communications and permits foreign governments to access private communications, did not contain adequate safeguards or oversight mechanisms. In particular, the committee was concerned that International Production Orders could be issued by members of the Administrative Appeals Tribunal, rather than issuing powers being restricted to members of judicial officers.
1.154 The committee reiterates its previous concerns here. In particular, the committee repeats its longstanding scrutiny view that legislation enabling coercive search powers be tightly controlled, with sufficient safeguards to protect individual rights and liberties. The committee considers that one such safeguard is that the power to issue warrants or orders relating to the use of intrusive powers should only be conferred on judicial officers. Where a warrant or order contains a significant coercive element or has the potential to significantly impact upon a person's right to privacy, the committee considers that it is appropriate if issuing powers are restricted to superior court judges. The committee also considers that issuing thresholds for warrants or orders that would allow for the use of significant surveillance powers should incorporate thresholds of necessity and proportionality into the authorisation criteria, to ensure that the use of such powers remains proportional and appropriate. Generally speaking, the committee considers that established and robust oversight mechanisms should be put in place over any covert investigative power frameworks, such as those outlined above.
1.155 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of granting significant existing covert investigative powers on the NACC.
1.156 Item 2 of Schedule 1 to the Consequential Bill seeks to insert paragraph (zi) into Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Proposed paragraph (zi) would have the effect of excluding certain decisions made under the NACC Bill from judicial review by the Federal Court. These are:
• decision-making powers in Part 6 (corruption issues);
• decision-making powers in Part 7 (investigation powers); and
• decisions made under clauses 161 and 162 (conducting public inquiries into corruption risks etc), clauses 162, 209 and 210 (NACC corruption issues) and clause 213 (investigations by Inspector).
1.157 Judicial review of these decisions remains available under section 39B of the Judiciary Act 1903 and paragraph 75(v) of the Constitution.[116]
1.158 Where a provision excludes the operation of the ADJR Act, the committee expects that the explanatory memorandum should provide a justification for the exclusion. In this instance, the explanatory memorandum states:
The provisions of the NACC Bill that would be excluded from the operation of the ADJR Act concern intermediate process steps necessary for the NACC to effectively undertake an investigation into a corruption issue. If a person were able to seek review of decisions made under these provisions, this could significantly impede the NACC’s ability to fulfil its statutory functions. Enabling a person to seek review of these intermediate decisions could also cause lengthy delays that could prejudice the NACC Act process.[117]
1.159 The committee acknowledges that it may be appropriate to exclude judicial review over certain kinds of intermediate or procedural decisions in order to ensure the administrative efficiency of the NACC. However, the committee remains concerned that the exclusion set out in proposed paragraph (zi) is overbroad. It is not clear to the committee that all of the decisions excluded from ADJR Act review could be appropriately classified as 'intermediate' decisions or 'process steps'. For example, the Commissioner's power under clause 40 to deal with corruption issues does not appear to be procedural or intermediate. Other decisions which proposed paragraph (zi) seeks to exclude could be described as 'intermediate' but are nevertheless significant decisions which the committee considers should be subject to ADJR Act review. The Commissioner's discretion to hold a public hearing in exceptional circumstances appears to be one such decision.[118]
1.160 The committee also notes that, in interpreting the ADJR Act’s review jurisdiction, the courts have held that, in general, decisions must be final and determinative before they will be reviewable decisions.[119] It is therefore unclear to the committee why the court's ruling is not sufficient to ensure that intermediate decisions are excluded from review.
1.161 The committee notes that the ADJR Act overcomes a number of technical and remedial complications that arise in an application for judicial review under alternative jurisdictional bases (principally, section 39B of the Judiciary Act 1903) and also provides for the right to reasons in some circumstances. From a scrutiny perspective, the committee considers that the proliferation of exclusions from the ADJR Act should be avoided.
1.162 In light of the above, the committee recommends:
• that the explanatory memorandum be updated to explain why the court's ruling in relation to the ADJR Act’s review jurisdiction is not sufficient to ensure administrative efficiency, and to justify the breadth of the exclusion at item 2, Schedule 1 to the Consequential Bill; and
• that consideration be given to amending the Consequential Bill to provide that ADJR Act review is available for decisions made under jurisdiction‑conferring provisions, such as clause 40, and for significant intermediate decisions, such as a decision under clause 71.
[35] Clause 8 and subclause 9(1). The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[36] Defined in clause 9.
[37] Defined in clause 8.
[38] See Parts 7 (investigating corruption issues) and 8 (reporting on corruption investigations). The bill would also establish an Inspector of the National Anti-Corruption Commission who would have similar powers in relation to NACC corruption issues—being whether a person has engaged, is engaged, or will engage in corrupt conduct that occurs within the Commission, adversely affects the NACC or that may be otherwise inappropriate for the Commissioner to deal with (clause 201).
[39] Subclause 8(4).
[40] Subclause 8(5).
[41] Proposed paragraph 8(1)(d).
[42] Explanatory memorandum, p. 76.
[43] Statement of compatibility, p. 30.
[44] Explanatory memorandum, p. 76.
[45] Explanatory memorandum, p. 56.
[46] Explanatory memorandum, pp. 69 and 76.
[47] Explanatory memorandum, p. 56.
[48] Subclauses 60(2), 61(2) 69(2), 71(2), 98(3), 229(1), 229(4) and 234(2); and Schedule 1, item 203, proposed subsections 355-192(1) and (2) in the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[49] Paragraph 98(1)(c).
[50] Subclause 227(2) defines entrusted person as a staff member of the Commission (including the Commissioner), the Inspector or a person assisting the Inspector.
[51] Clause 229(1).
[52] Clause 229(4).
[53] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.
[54] Per the offences in clauses 60 and 69.
[55] Per the offences in clauses 61 and 71.
[56] Per the offences in 228 and 234.
[57] Explanatory memorandum, p. 21.
[58] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50–52.
[59] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.
[60] Explanatory memorandum, p. 22.
[61] Explanatory memorandum, pp. 133, 134 and 142.
[62] Explanatory memorandum, p. 159.
[63] Explanatory memorandum, pp. 132 and 139–140.
[64] Clauses 113 and 114. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[65] See clauses 58, 63 and 105. 'Investigation material' is defined at clause 99.
[66] See clause 100 and subclause 105(2).
[67] Clause 106.
[68] Clauses 105–108.
[69] See, for example, Baker v Campbell (1983) 153 CLR 52.
[70] Explanatory memorandum, p. 173.
[71] Explanatory memorandum, p. 173.
[72] See, for example, clauses 107 and 108.
[73] See clause 106.
[74] Explanatory memorandum, p. 175.
[75] Explanatory memorandum, p. 175.
[76] Subclauses 114(3) and (4).
[77] Clause 74.
[78] Subclauses 72(1) and 72(2), paragraphs 82(g) and 82(f). The committee draws senators’ attention to these provision pursuant to Senate Standing Order 24(1)(a)(i).
[79] Explanatory memorandum, p. 142.
[80] For clause 72, see section 94 of the Law Enforcement Integrity Commissioner Act 2006.
[81] See clause 82, and page 150 of the explanatory memorandum.
[82] Subclause 84(2). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[83] See clause 82.
[84] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 54.
[85] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 55.
[86] Clauses 196 and 269. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[87] Explanatory memorandum, p. 227.
[88] Explanatory memorandum, p. 295.
[89] Paragraphs 54(6)(b), 74(b)(iii) and 151(1)(b), subparagraphs 154(5)(b)(i), 158(3)(b)(i), 159(4)(b)(i) and 160(6)(6)(b), paragraph 164(3)(c), subparagraph 167(3)(b)(i), paragraphs 171(6)(b) and 227(3)(n) and subclause 272(b). The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[90] This includes conducting searches and compelling people to give evidence, information and produce documents at a hearing or for the purpose of an investigation. See Part 7.
[91] For example, reports are required to be tabled in Parliament where a public hearing has been held in the course of an investigation, NACC investigation, or public inquiry, or where public submissions were invited on matters that were the subject of a public inquiry (clauses 155, 168 and 221). The Commissioner and Inspector would be able to publish reports and disclose other information if satisfied it is in the public interest to do so (clauses 156, 169, 222 and 230).
[92] Paragraph 227(3)(n).
[93] Clause 74.
[94] Clause 164.
[95] Clauses 199 and 272.
[96] Clause 151 and 217.
[97] See clause 152 in relation to the Commissioner’s investigation reports, clause 218 in relation to the Inspector’s NACC investigation reports, and clause 165 in relation to inquiry reports.
[98] Where there is a requirement to give copies of protected information reports, the Commissioner and Inspector are required to exclude sensitive information if it is desirable in the circumstances to exclude the information from the report. In deciding whether to exclude information from a protected information report, the relevant authorised discloser must seek to achieve an appropriate balance between the person’s interest in having the information included in the report, and the prejudicial consequences that might result from including the information in the report. See, for example, subclause 167(4) in relation to a protected information report prepared for an inquiry.
[99] Subclause 227(3).
[100] Explanatory memorandum, p. 259.
[101] Explanatory memorandum, p. 259.
[102] Subparagraph 276(1)(b)(ii), and paragraphs 276(2)(b) and 277(1)(b). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).
[103] Explanatory memorandum, p. 299.
[104] Explanatory memorandum, p. 300.
[105] Schedule 1. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[106] Schedule 1, items 188–204.
[107] Schedule 1, items 263–270.
[108] Schedule 1, items 263–270.
[109] Schedule 1, items 35–39, 42–46, 48–54 and 56–62.
[110] Schedule 1, items 63–88.
[111] Schedule 1, items 158–162.
[112] Schedule 1, items 4-10, 117–121, 108–111 and 201–204.
[113] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 12 of 2018, 17 October 2018, pp. 20-49; Scrutiny Digest 14 of 2018, 28 November 2018, pp. 23–82.
[114] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2020, 17 April 2020, pp. 24–35; Scrutiny Digest 8 of 2020, 17 June 2020, pp. 27–52.
[115] Schedule 1, item 2 of the Consequential and Transitional Bill. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[116] Explanatory memorandum, p. 305.
[117] Explanatory memorandum, p. 305.
[118] Clause 71.
[119] Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321.
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