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This is a Bill, not an Act. For current law, see the Acts databases.
2013
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
National Integrity Commission Bill 2013
No. , 2013
(Senator Milne)
A Bill for an Act to establish the National Integrity
Commission, and for related purposes
No. , 2013
National Integrity Commission Bill 2013
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects of Act .................................................................................... 2
4
Saving of powers, privileges and immunities .................................... 3
5
Application of Act ............................................................................. 3
6
Definitions ......................................................................................... 3
7
Meaning of corrupt conduct .............................................................. 8
8
Meaning of corruption issue ............................................................ 10
Part 2--The National Integrity Commission
11
Division 1--Introduction
11
9
Guide to this Part ............................................................................. 11
Division 2--Establishment
13
10
Establishment ................................................................................... 13
11
Definition of integrity officers ......................................................... 13
Division 3--Functions and powers of the integrity officers
14
12
Definition of national integrity commissioner functions ................. 14
13
Definition of law enforcement integrity commissioner
functions ........................................................................................... 15
14
Definition of independent parliamentary advisor functions ............ 15
15
Functions and powers of the National Integrity
Commissioner .................................................................................. 16
16
Functions and powers of the Law Enforcement Integrity
Commissioner .................................................................................. 17
17
Functions and powers of the Independent Parliamentary
Advisor ............................................................................................ 17
Part 3--Dealing with corruption issues
18
Division 1--Introduction
18
18
Guide to this Part ............................................................................. 18
Division 2--Referring corruption issues to National Integrity
Commissioner
19
19
Referral of corruption issues ............................................................ 19
20
Person making referral under section 19 may elect to be kept
informed ........................................................................................... 20
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National Integrity Commission Bill 2013
No. , 2013
Division 3--How National Integrity Commissioner deals with
referred corruption issues
21
21
How National Integrity Commissioner may deal with
referred corruption issues ................................................................. 21
22
Advising person who refers corruption issue of decision
about how to deal with corruption issue .......................................... 21
23
Advising person to whom referred corruption issue relates of
decision about how to deal with corruption issue ............................ 23
Division 4--National Integrity Commissioner dealing with
corruption issues on own initiative
24
24
National Integrity Commissioner may deal with corruption
issues on own initiative .................................................................... 24
25
Advising head of Commonwealth agency of decision to deal
with corruption issue on own initiative ............................................ 24
26
Advising person of decision to deal with corruption issue on
own initiative ................................................................................... 25
Division 5--Reconsidering how to deal with a corruption issue
27
27
Reconsidering how to deal with a corruption issue ......................... 27
Part 4--Investigations by the National Integrity Commissioner
28
Division 1--Introduction
28
28
Guide to this Part ............................................................................. 28
Division 2--Investigation
29
29
Application of Division ................................................................... 29
30
National Integrity Commissioner to determine manner of
conducting investigation .................................................................. 29
31
Opportunity to be heard ................................................................... 29
Division 3--Reporting
32
Subdivision A--Reporting during investigation
32
32
National Integrity Commissioner to keep person who
referred corruption issue informed of progress of
investigation ..................................................................................... 32
Subdivision B--Reporting at the end of investigation
32
33
Report on investigation .................................................................... 32
34
National Integrity Commissioner to give report to Prime
Minister ............................................................................................ 34
35
Advising person who referred corruption issue of outcome of
the investigation ............................................................................... 34
No. , 2013
National Integrity Commission Bill 2013
iii
36
Advising person whose conduct is investigated of outcome
of the investigation .......................................................................... 36
Part 5--Public inquiries into corruption issues
38
Division 1--Introduction
38
37
Guide to this Part ............................................................................. 38
Division 2--Conducting a public inquiry
39
38
National Integrity Commissioner may conduct public inquiry ........ 39
39
Publicising inquiry ........................................................................... 39
Division 3--Reporting
40
40
Report on public inquiry .................................................................. 40
41
Giving report to Prime Minister ....................................................... 41
Part 6--National Integrity Commissioner's powers in
conducting investigations and public inquiries
42
Division 1--Introduction
42
42
Guide to this Part ............................................................................. 42
Division 2--Requiring people to give information or produce
documents or things
43
Subdivision A--Requests by National Integrity Commissioner
43
43
Request to person to give information or produce documents
or things ........................................................................................... 43
44
National Integrity Commissioner may retain documents and
things ............................................................................................... 44
Subdivision B--Offence and related provisions
44
45
Failure to comply with National Integrity Commissioner's
request .............................................................................................. 44
46
Legal professional privilege--information ...................................... 45
47
Legal professional privilege--documents or things ........................ 46
48
Offences relating to claims for legal professional privilege ............ 47
49
Self-incrimination etc. ..................................................................... 48
50
Protection of person required to give information or produce
documents or things ......................................................................... 51
Division 3--Conducting hearings
52
Subdivision A--General provisions
52
51
National Integrity Commissioner may hold hearings ...................... 52
52
National Integrity Commissioner may summon person ................... 53
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National Integrity Commission Bill 2013
No. , 2013
53
National Integrity Commissioner may take evidence outside
Australia ........................................................................................... 55
Subdivision B--Procedure at hearing
55
54
Who may be represented at a hearing .............................................. 55
55
Who may be present at a hearing ..................................................... 55
Subdivision C--Taking evidence at hearing
57
56
Evidence on oath or by affirmation ................................................. 57
57
Examination and cross-examination of witnesses ............................ 58
58
Giving evidence in private ............................................................... 58
59
Directions in relation to confidentiality ........................................... 59
Subdivision D--Prohibitions against disclosing information about
a summons
61
60
Disclosure of summons may be prohibited ...................................... 61
61
Offences of disclosure ..................................................................... 63
Subdivision E--Offences in relation to hearings
66
62
Offences ........................................................................................... 66
63
Contempt ......................................................................................... 67
64
Legal professional privilege--answer to question ........................... 68
65
Legal professional privilege--documents or things ........................ 69
66
Offences relating to claims for legal professional privilege ............ 70
67
Self-incrimination etc. ..................................................................... 72
Subdivision F--Court orders for delivery of witness's passport
and witness's arrest
74
68
National Integrity Commissioner may apply for order that
witness deliver his or her passport ................................................... 74
69
Court orders ..................................................................................... 75
70
Applying for a warrant to arrest witness .......................................... 77
71
Warrant for arrest ............................................................................. 78
72
Powers of Judge in relation to person arrested ................................ 79
Subdivision G--Miscellaneous
80
73
National Integrity Commissioner may retain documents or
things ............................................................................................... 80
74
Person may apply for legal and financial assistance ........................ 81
75
Protection of National Integrity Commissioner etc. ........................ 82
76
Protection of witnesses etc. .............................................................. 82
Division 4--Search warrants
84
Subdivision A--Preliminary
84
77
Application to things under the control of a person ......................... 84
No. , 2013
National Integrity Commission Bill 2013
v
Subdivision B--Applying for a search warrant
84
78
Authorised officer may apply for a search warrant .......................... 84
Subdivision C--Issue of a search warrant
86
79
When search warrants may be issued .............................................. 86
80
Content of warrants .......................................................................... 89
81
Application by telephone etc. and issue of warrant ......................... 91
82
The things authorised by a search warrant in relation to
premises ........................................................................................... 93
83
The things authorised by a search warrant in relation to a
person ............................................................................................... 95
84
Restrictions on personal searches .................................................... 96
85
When warrant may be executed etc. ................................................ 96
Subdivision D--General provisions about executing a search
warrant
96
86
Announcement before entry ............................................................. 96
87
Availability of assistance and use of force in executing a
warrant ............................................................................................. 97
Subdivision E--Specific provisions about executing a warrant in
relation to premises
97
88
Application ...................................................................................... 97
89
Copy of warrant to be shown to occupier etc. .................................. 98
90
Occupier entitled to watch search .................................................... 98
91
Specific powers available to person executing a warrant ................ 98
92
Use of equipment to examine or process things ............................... 99
93
Use of electronic equipment at premises without expert
assistance ....................................................................................... 101
94
Use of electronic equipment at premises with expert
assistance ....................................................................................... 102
95
Person with knowledge of a computer or a computer system
to assist access etc. ......................................................................... 103
96
Accessing data held on other premises--notification to
occupier of those premises ............................................................. 104
97
Compensation for damage to electronic equipment ....................... 105
98
Copies of seized things to be provided .......................................... 106
99
Receipts of things seized under warrant ........................................ 106
Subdivision F--Specific provisions about executing a warrant in
relation to a person
107
100
Copy of warrant to be shown to person ......................................... 107
101
Conduct of an ordinary search or a frisk search ............................. 107
Subdivision G--Offences
107
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National Integrity Commission Bill 2013
No. , 2013
102
Making false statements in warrants .............................................. 107
103
Offence for stating incorrect names in telephone warrants ............ 107
104
Offence for unauthorised form of warrant ..................................... 108
105
Offence for executing etc. an unauthorised form of warrant ......... 108
106
Offence for giving unexecuted form of warrant ............................ 108
Subdivision H--Miscellaneous
109
107
Other laws about search, arrest etc. not affected ............................ 109
108
Law relating to legal professional privilege not affected ............... 109
Division 5--Powers of arrest
110
109
Authorised officers may exercise powers of arrest ........................ 110
Division 6--Authorised officers
111
110
Appointment of authorised officers ............................................... 111
111
Identity cards ................................................................................. 111
Part 7--Dealing with evidence and information obtained in
investigation or public inquiry
113
Division 1--Introduction
113
112
Guide to this Part ........................................................................... 113
Division 2--Dealing with evidence and information obtained in
investigation or public inquiry
114
113
Evidence of offence or liability to civil penalty ............................. 114
114
Evidence that could be used in confiscation proceedings .............. 115
115
Evidence of, or information suggesting, wrongful conviction ....... 116
Part 8--Independent Parliamentary Advisor
118
Division 1--Introduction
118
116
Guide to this Part ........................................................................... 118
Division 2--Requests for advice
119
117
Minister may request advice .......................................................... 119
118
Presiding officer or chair of committee may request advice .......... 119
119
Parliamentarian or former parliamentarian may request
advice ............................................................................................. 119
120
Independent Parliamentary Advisor to provide advice in
writing ............................................................................................ 120
121
Independent Parliamentary Advisor may request additional
information .................................................................................... 120
Division 3--Reporting
121
122
Annual report ................................................................................. 121
No. , 2013
National Integrity Commission Bill 2013
vii
Division 4--Better practices guides and fact sheets
122
123
Better practices guides and fact sheets ........................................... 122
Part 9--Administrative provisions
123
Division 1--Introduction
123
124
Guide to this Part ........................................................................... 123
Division 2--Appointment etc. of the integrity officers
124
Subdivision A--National Integrity Commissioner
124
125
Appointment of National Integrity Commissioner ........................ 124
126
General terms and conditions of appointment ............................... 124
127
Restriction on outside employment ............................................... 125
128
Remuneration ................................................................................. 125
129
Leave of absence ............................................................................ 125
130
Resignation .................................................................................... 126
131
Termination of appointment .......................................................... 126
132
Acting appointments ...................................................................... 126
133
Disclosure of interests .................................................................... 127
Subdivision B--Law Enforcement Integrity Commissioner
128
134
Appointment etc. of Law Enforcement Integrity
Commissioner ................................................................................ 128
Subdivision C--Independent Parliamentary Advisor
128
135
Appointment of Independent Parliamentary Advisor .................... 128
136
General terms and conditions of appointment ............................... 129
137
Engaging in other paid employment .............................................. 129
138
Remuneration ................................................................................. 129
139
Leave of absence ............................................................................ 129
140
Resignation .................................................................................... 130
141
Termination of appointment .......................................................... 130
142
Acting appointments ...................................................................... 131
143
Disclosure of interests .................................................................... 132
Division 3--Appointment etc. of Assistant National Integrity
Commissioners
133
144
Appointment of Assistant National Integrity Commissioners ....... 133
145
General terms and conditions of appointment ............................... 133
146
Engaging in other paid employment .............................................. 133
147
Remuneration ................................................................................. 134
148
Leave of absence ............................................................................ 134
149
Resignation .................................................................................... 134
viii
National Integrity Commission Bill 2013
No. , 2013
150
Termination of employment .......................................................... 135
151
Acting appointments ...................................................................... 136
152
Disclosure of interests .................................................................... 136
Division 4--Staff, consultants and delegations
137
153
Staff ............................................................................................... 137
154
Consultants .................................................................................... 137
155
Delegation--National Integrity Commissioner ............................. 138
Division 5--Public reporting
139
156
Annual report ................................................................................. 139
157
Reports on investigations and public inquiries .............................. 140
158
Special reports ............................................................................... 141
159
Contents of annual or special report .............................................. 143
Division 6--Confidentiality requirements
144
160
Confidentiality requirements for National Integrity
Commission staff ........................................................................... 144
161
Exceptions to confidentiality requirements .................................... 144
162
Disclosure by National Integrity Commissioner in public
interest etc. ..................................................................................... 146
163
Opportunity to be heard ................................................................. 147
164
National Integrity Commission staff generally not
compellable in court proceedings .................................................. 148
Part 10--Parliamentary Joint Committee on the National
Integrity Commission
150
165
Definitions ..................................................................................... 150
166
Parliamentary Joint Committee on the National Integrity
Commission ................................................................................... 150
167
Powers and proceedings of the committee ..................................... 152
168
Duties of the committee ................................................................. 152
169
Committee may approve or reject recommendation for
appointment of National Integrity Commissioner .......................... 154
170
Disclosure to committee by National Integrity Commissioner ...... 155
171
Disclosure to committee by Law Enforcement Integrity
Commissioner ................................................................................ 157
172
Disclosure to committee by Minister ............................................. 158
173
Ombudsman to brief committee about controlled operations ........ 159
Part 11--Miscellaneous
160
174
Offence of victimisation ................................................................ 160
No. , 2013
National Integrity Commission Bill 2013
ix
175
Legal and financial assistance in relation to applications for
administrative review ..................................................................... 160
176
Immunity from civil proceedings ................................................... 161
177
Immunities from certain State and Territory laws ......................... 162
178
Review of operation of Act ............................................................ 162
179
Schedule(s) .................................................................................... 163
180
Regulations .................................................................................... 164
Schedule 1--Amendments
165
Law Enforcement Integrity Commissioner Act 2006
165
Ombudsman Act 1976
165
Privacy Act 1988
166
Public Interest Disclosure Act 2013
167
No. , 2013
National Integrity Commission Bill 2013
1
1
A Bill for an Act to establish the National Integrity
2
Commission, and for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act may be cited as the National Integrity Commission Act
8
2013.
9
Part 1 Preliminary
Section 2
2
National Integrity Commission Bill 2013
No. , 2013
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
180
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Schedule 1
At the same time as the provision(s) covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of Act
13
(1) The objects of this Act are:
14
(a) to facilitate the investigation of corruption issues that relate
15
to a minister, a parliamentarian, a former parliamentarian, a
16
Commonwealth agency, an employee of a Commonwealth
17
Preliminary Part 1
Section 4
No. , 2013
National Integrity Commission Bill 2013
3
agency or a person employed under the Members of
1
Parliament (Staff) Act 1984 or any other public official; and
2
(b) to facilitate the investigation of alleged corrupt conduct
3
involving a minister, a parliamentarian, a former
4
parliamentarian, a Commonwealth agency, an employee of a
5
Commonwealth agency or a person employed under the
6
Members of Parliament (Staff) Act 1984 or any other public
7
official; and
8
(c) to enable criminal offences to be prosecuted, and civil
9
penalty proceedings to be brought, following those
10
investigations; and
11
(d) to maintain and improve the integrity of employees of
12
Commonwealth agencies and persons employed under the
13
Members of Parliament (Staff) Act 1984; and
14
(e) to enhance the integrity of ministers, parliamentarians and
15
former parliamentarians.
16
(2) To assist in achieving the objects in paragraphs (1)(a) to (d), this
17
Act establishes the National Integrity Commission.
18
(3) To assist in achieving the objects in paragraphs (1)(d) and (e), this
19
Act establishes the office of the Independent Parliamentary
20
Advisor.
21
4 Saving of powers, privileges and immunities
22
This Act does not affect the powers, privileges and immunities of
23
each House of the Parliament, and of the members and committees
24
of each House.
25
5 Application of Act
26
This Act applies both within and outside Australia and extends to
27
every external Territory.
28
6 Definitions
29
In this Act:
30
Part 1 Preliminary
Section 6
4
National Integrity Commission Bill 2013
No. , 2013
applicable code of conduct means:
1
(a) in the case of a minister:
2
(i) a ministerial code of conduct imposed by the Prime
3
Minister on his or her ministers; or
4
(ii) a ministerial code of conduct prescribed by the
5
regulations, or adopted by resolution of the House of
6
which the minister is or was a member, for the purposes
7
of this definition; or
8
(b) in the case of a parliamentarian (including a minister)--a
9
code of conduct for parliamentarians:
10
(i) prescribed by the regulations; or
11
(ii) adopted by resolution of the House of which the
12
parliamentarian is or was a member;
13
for the purposes of this definition.
14
Assistant Law Enforcement Integrity Commissioner means a
15
person appointed under section 185 of the Law Enforcement
16
Integrity Commissioner Act 2006 as an Assistant Integrity
17
Commissioner.
18
Assistant National Integrity Commissioner means a person
19
appointed under section 144 as an Assistant National Integrity
20
Commissioner.
21
Commission means the National Integrity Commission established
22
under section 10.
23
Commonwealth agency means:
24
(a) an Agency within the meaning of the Public Service Act
25
1999; or
26
(b) a department of the Parliament; or
27
(c) a person or body holding office, or exercising power, under
28
or because of the Constitution or a law of the
29
Commonwealth; or
30
(d) a body or organisation, whether incorporated or
31
unincorporated, established for a public purpose:
32
Preliminary Part 1
Section 6
No. , 2013
National Integrity Commission Bill 2013
5
(i) by or under a law of the Commonwealth or of a
1
Territory (other than the Australian Capital Territory,
2
the Northern Territory or Norfolk Island); or
3
(ii) by the Governor-General; or
4
(iii) by a minister.
5
confiscation proceeding means a proceeding under:
6
(a) the Proceeds of Crime Act 1987 or the Proceeds of Crime Act
7
2002; or
8
(b) a corresponding law within the meaning of either of those
9
Acts;
10
but does not include a criminal prosecution for an offence under
11
either of those Acts or a corresponding law.
12
corrupt conduct has the meaning given by section 7.
13
corruption issue has the meaning given by section 8.
14
criminal offence means an offence against a law of the
15
Commonwealth or of a State or Territory.
16
disciplinary offence includes any misconduct, irregularity, neglect
17
of duty, breach of discipline or other matter that constitutes or may
18
constitute grounds for disciplinary action under any law.
19
employee of a Commonwealth agency includes:
20
(a) the head of the agency; or
21
(b) a temporary employee of the agency; or
22
(c) an independent contractor providing a service to or on behalf
23
of the agency.
24
former parliamentarian means a former member of either House
25
of the Parliament.
26
gift means a gift whether it is or is not registrable in accordance
27
with a resolution or resolutions of a House of the Parliament.
28
government agency means:
29
(a) a Commonwealth agency; or
30
Part 1 Preliminary
Section 6
6
National Integrity Commission Bill 2013
No. , 2013
(b) a department of a State or Territory; or
1
(b) a body (whether incorporated or not) established for a public
2
purpose by or under a law of a State or Territory.
3
Independent Parliamentary Advisor means the person appointed
4
under section 135 as the Independent Parliamentary Advisor.
5
independent parliamentary advisor functions has the meaning
6
given by section 14.
7
integrity officer has the meaning given by section 11.
8
interest means an interest whether it is or is not registrable in
9
accordance with a resolution or resolutions of a House of the
10
Parliament.
11
Law Enforcement Integrity Commissioner means the person
12
appointed under section 175 of the Law Enforcement Integrity
13
Commissioner Act 2006 as the Integrity Commissioner.
14
law enforcement integrity commissioner functions has the
15
meaning given by section 13.
16
minister means a minister of state and includes a parliamentary
17
secretary.
18
National Integrity Commission means the National Integrity
19
Commission established under section 10.
20
National Integrity Commissioner means the person appointed
21
under section 125 as the National Integrity Commissioner.
22
national integrity commissioner functions has the meaning given
23
by section 12.
24
national law enforcement agencies means:
25
(a) the Australian Federal Police; and
26
(b) the Australian Crime Commission; and
27
(c) any other Commonwealth agency that:
28
(i) has a law enforcement function; and
29
Preliminary Part 1
Section 6
No. , 2013
National Integrity Commission Bill 2013
7
(ii) is prescribed by the regulations for the purposes of this
1
paragraph.
2
parliamentarian means a member of either House of the
3
Parliament.
4
parliamentary allowances means allowances (including
5
allowances by way of salary) and entitlements (including
6
superannuation entitlements) of parliamentarians under a law of the
7
Commonwealth.
8
presiding officer means:
9
(a) in relation to the Senate--the President of the Senate; or
10
(b) in relation to the House of Representatives--the Speaker of
11
the House of Representatives.
12
public official means a person having public official functions or
13
acting in a public official capacity, and includes but is not limited
14
to any of the following:
15
(a) the Governor-General (whether or not acting with the advice
16
of the Federal Executive Council);
17
(b) a minister;
18
(c) a parliamentarian;
19
(d) a justice or judge of a court created by the Parliament or a
20
person who, by virtue of a law of the Commonwealth, has the
21
same status as a justice or judge of a court created by the
22
Parliament;
23
(e) a person employed under the Members of Parliament (Staff)
24
Act 1984;
25
(f) an employee or a temporary employee of a Commonwealth
26
agency, including:
27
(i) the head of a Commonwealth agency; and
28
(ii) an independent contractor providing a service to or on
29
behalf of a Commonwealth agency;
30
(g) a person declared by the regulations to be a public official for
31
the purposes of this definition;
32
(h) an employee of or any person otherwise engaged by or acting
33
for or on behalf of, or in the place of, or as deputy or delegate
34
Part 1 Preliminary
Section 7
8
National Integrity Commission Bill 2013
No. , 2013
of, any person or body described in any of paragraphs (a) to
1
(g).
2
referred corruption issue means a corruption issue referred under
3
section 19.
4
7 Meaning of corrupt conduct
5
(1) For the purposes of this Act, corrupt conduct is:
6
(a) any conduct of any person that adversely affects, or that
7
could adversely affect, either directly or indirectly, the honest
8
or impartial exercise of official functions by the Parliament, a
9
Commonwealth agency, any public official or any group or
10
body of public officials; or
11
(b) any conduct of a public official that constitutes or involves
12
the dishonest or partial exercise of any of his or her official
13
functions; or
14
(c) any conduct of a public official that constitutes or involves,
15
or of a former public official that constituted or involved, a
16
breach of public trust; or
17
(d) any conduct that perverts, or that is engaged in for the
18
purpose of perverting, the course of justice; or
19
(e) any conduct of a public official that involves, or of a former
20
public official that involved, the misuse of information or
21
material that he or she acquired in the course of his or her
22
official functions, whether or not for his or her benefit or for
23
the benefit of any other person.
24
(2) For the purposes of paragraph (1)(a), corrupt conduct that
25
adversely affects, or that could adversely affect, either directly or
26
indirectly, the exercise of official functions by the Parliament, a
27
Commonwealth agency, any public official or any group or body
28
of public officials includes any of the following conduct:
29
(a) official misconduct (including breach of trust, fraud in office,
30
nonfeasance, misfeasance, malfeasance, oppression, extortion
31
or imposition);
32
(b) bribery;
33
(c) blackmail;
34
Preliminary Part 1
Section 7
No. , 2013
National Integrity Commission Bill 2013
9
(d) obtaining or offering secret commissions;
1
(e) fraud;
2
(f) theft;
3
(g) perverting the course of justice;
4
(h) embezzlement;
5
(i) election bribery;
6
(j) election funding offences;
7
(k) election fraud;
8
(l) treating;
9
(m) tax evasion;
10
(n) revenue evasion;
11
(o) currency violations;
12
(p) illegal drug dealings;
13
(q) illegal gambling;
14
(r) obtaining financial benefit by vice engaged in by others;
15
(s) bankruptcy and company violations;
16
(t) harbouring criminals;
17
(u) forgery;
18
(v) treason or other offences against the Sovereign;
19
(w) homicide or violence;
20
(x) matters of the same or a similar nature to any listed above;
21
(y) any conspiracy or attempt in relation to any of the above.
22
(3) Conduct may amount to corrupt conduct under this section even
23
though it occurred before the commencement of this subsection,
24
and it does not matter that some or all of the effects or other
25
ingredients necessary to establish such corrupt conduct occurred
26
before that commencement and that any person or persons
27
involved are no longer public officials.
28
(4) Conduct committed by or in relation to a person who was not or is
29
not a public official may amount to corrupt conduct under this
30
section with respect to the exercise of his or her official functions
31
after becoming a public official.
32
Part 1 Preliminary
Section 8
10
National Integrity Commission Bill 2013
No. , 2013
(5) Conduct may amount to corrupt conduct under this section even
1
though it occurred outside Australia.
2
(6) The specific mention of a kind of conduct in a provision of this
3
section must not be regarded as limiting the scope of any other
4
provision of this section.
5
(7) Despite subsections (1) to (6), conduct does not amount to corrupt
6
conduct unless it could constitute or involve:
7
(a) a criminal offence; or
8
(b) a disciplinary offence; or
9
(c) reasonable grounds for dismissing, dispensing with the
10
services of or otherwise terminating the services of a public
11
official; or
12
(d) in the case of conduct of a minister or a parliamentarian--a
13
substantial breach of an applicable code of conduct.
14
(8) For the purposes of paragraphs (7)(a), (b) and (c), it does not
15
matter that proceedings or action for such an offence can no longer
16
be brought or continued, or that action for such dismissal,
17
dispensing or other termination can no longer be taken.
18
8 Meaning of corruption issue
19
(1) For the purposes of this Act, a corruption issue is an issue whether
20
a person who is, or has been, a public official:
21
(a) has, or may have, engaged in corrupt conduct; or
22
(b) is, or may be, engaging in corrupt conduct; or
23
(c) will, or may at any time in the future, engage in corrupt
24
conduct.
25
(2) To avoid doubt, an allegation, or information, may raise a
26
corruption issue even if the identity of the person is unknown, is
27
uncertain or is not disclosed in the allegation or information.
28
The National Integrity Commission Part 2
Introduction Division 1
Section 9
No. , 2013
National Integrity Commission Bill 2013
11
Part 2--The National Integrity Commission
1
Division 1--Introduction
2
9 Guide to this Part
3
This Part establishes the National Integrity Commission.
4
The National Integrity Commission consists of the integrity
5
officers and the staff of the Commission.
6
The integrity officers are the National Integrity Commissioner, the
7
Law Enforcement Integrity Commissioner and the Independent
8
Parliamentary Advisor. The National Integrity Commissioner is the
9
head of the Commission (for the purposes of the Public Service Act
10
1999).
11
The functions of the Commission are as follows:
12
(a)
the national integrity functions, which are about
13
the investigation of corruption in relation to public
14
officials and Commonwealth agencies in
15
accordance with this Act;
16
(b)
the law enforcement integrity functions, which are
17
about the investigation of corruption in relation to
18
national law enforcement agencies in accordance
19
with the Law Enforcement Integrity Commissioner
20
Act 2006;
21
(c)
the independent parliamentary advisor functions,
22
which are about providing independent
23
confidential advice to ministers, parliamentarians
24
and former parliamentarians in relation to conflict
25
of interest, ethics, propriety and similar matters
26
Part 2 The National Integrity Commission
Division 1 Introduction
Section 9
12
National Integrity Commission Bill 2013
No. , 2013
and providing advice on the development of codes
1
of conduct.
2
Only the National Integrity Commissioner can perform the national
3
integrity commissioner functions.
4
Only the Law Enforcement Integrity Commissioner can perform
5
the law enforcement integrity commissioner functions.
6
Only the Independent Parliamentary Advisor can perform the
7
independent parliamentary advisor functions.
8
The National Integrity Commission Part 2
Establishment Division 2
Section 10
No. , 2013
National Integrity Commission Bill 2013
13
Division 2--Establishment
1
10 Establishment
2
(1) The National Integrity Commission is established by this section.
3
(2) The Commission consists of:
4
(a) the integrity officers; and
5
(b) any Assistant National Integrity Commissioner appointed
6
under Division 3 of Part 9 and the staff mentioned in
7
section 153; and
8
(c) any Assistant Law Enforcement Integrity Commissioner
9
appointed under Division 2 of Part 13 of the Law
10
Enforcement Integrity Commissioner Act 2006 and the staff
11
mentioned in section 197 of that Act.
12
(3) For the purposes of the Public Service Act 1999:
13
(a) the Commission constitutes a Statutory Agency; and
14
(b) the National Integrity Commissioner is the Head of that
15
Statutory Agency.
16
Note:
The National Integrity Commissioner holds an office equivalent to
17
that of a Secretary of a Department (see the definition of Agency
18
Head in section 7 of the Public Service Act 1999).
19
11 Definition of integrity officers
20
Each of the following is an integrity officer:
21
(a) the National Integrity Commissioner;
22
(b) the Law Enforcement Integrity Commissioner;
23
(c) the Independent Parliamentary Advisor.
24
Part 2 The National Integrity Commission
Division 3 Functions and powers of the integrity officers
Section 12
14
National Integrity Commission Bill 2013
No. , 2013
Division 3--Functions and powers of the integrity officers
1
12 Definition of national integrity commissioner functions
2
(1) The national integrity commissioner functions are as follows:
3
(a) to investigate and conduct public inquiries into corruption
4
issues involving:
5
(i) a public official; or
6
(ii) a Commonwealth agency;
7
and report on the results of those investigations and inquiries,
8
whether those corruption issues arose before or after the
9
commencement of this Act;
10
(b) to communicate to appropriate authorities the results of
11
investigations and inquiries, including recommendations for
12
action that should be taken in relation to those results;
13
(c) on the National Integrity Commissioner's own initiative, or
14
at the request of the Prime Minister or either House of the
15
Parliament, to make reports and recommendations to the
16
Parliament about the need for or the desirability of legislative
17
or administrative action on issues in relation to:
18
(i) corruption generally in Commonwealth agencies; or
19
(ii) the integrity of public officials;
20
whether those issues arose before or after the commencement
21
of this Act;
22
(d) with the consent of the Prime Minister, to enter into an
23
arrangement to perform the functions of a territory integrity
24
commissioner under a scheme established in accordance with
25
the conditions of licences or authorities granted under an Act
26
of a Territory;
27
(e) to advise and assist any public official, Commonwealth
28
agency or other person (on the request of the official, agency
29
or person) on changes in laws, practices or procedures
30
compatible with the effective exercise of their functions
31
which the National Integrity Commissioner thinks necessary
32
to reduce the likelihood of the occurrence of corrupt conduct;
33
The National Integrity Commission Part 2
Functions and powers of the integrity officers Division 3
Section 13
No. , 2013
National Integrity Commission Bill 2013
15
(f) to educate and disseminate information to public officials,
1
Commonwealth agencies and the community on strategies to
2
combat corrupt conduct;
3
(g) any other function conferred by this Act or another Act (or an
4
instrument under this Act or another Act) on the National
5
Integrity Commissioner.
6
(2) An arrangement referred to in paragraph (1)(d) may include
7
provision for payment by the other party to the arrangement for the
8
performance of functions by the National Integrity Commissioner
9
in accordance with the arrangement.
10
13 Definition of law enforcement integrity commissioner functions
11
The law enforcement integrity commissioner functions are as
12
follows:
13
(a) the functions conferred on the Law Enforcement Integrity
14
Commissioner under section 15 of the Law Enforcement
15
Integrity Commissioner Act 2006;
16
(b) any other function conferred by this Act or another Act (or an
17
instrument under this Act or another Act) on the Law
18
Enforcement Integrity Commissioner.
19
14 Definition of independent parliamentary advisor functions
20
The independent parliamentary advisor functions are as follows:
21
(a) at the request of a minister, to provide independent
22
confidential written advice to that minister about his or her
23
compliance with the Standards of Ministerial Ethics, dated
24
September 2010 and as revised from time to time, any
25
replacement document issued in relation to ministerial
26
conduct or any another applicable code of conduct, whether
27
the request for advice relates to an issue that arose before or
28
after the commencement of this Act in relation to the
29
minister;
30
(b) at the request of a parliamentarian or a former
31
parliamentarian, to provide independent confidential written
32
Part 2 The National Integrity Commission
Division 3 Functions and powers of the integrity officers
Section 15
16
National Integrity Commission Bill 2013
No. , 2013
advice to that parliamentarian or former parliamentarian
1
about:
2
(i) an applicable code of conduct; or
3
(ii) parliamentary allowances; or
4
(iii) an interest, including a potential conflict of interest; or
5
(iv) an ethical issue; or
6
(v) a matter of propriety, including the receipt of a gift; or
7
(vi) any similar issue;
8
whether the request for advice relates to an issue that arose
9
before or after the commencement of this Act in relation to
10
the parliamentarian, the former parliamentarian or a person
11
employed under the Members of Parliament (Staff) Act 1984;
12
(c) at the request of a presiding officer or a committee of a
13
House of the Parliament, to provide independent confidential
14
written advice in relation to any matter, including the
15
development of a code of conduct for parliamentarians of that
16
House;
17
(d) to prepare better practice guides and fact sheets, in relation to
18
matters of conduct, propriety and ethics, for ministers,
19
parliamentarians, former parliamentarians and persons
20
employed under the Members of Parliament (Staff) Act 1984;
21
(e) to provide an annual report to the Parliament outlining the
22
nature of all matters considered under paragraphs (a) and (b),
23
without identifying any of the parties involved;
24
(f) any other function conferred by this Act or another Act (or an
25
instrument under this Act or another Act) on the Independent
26
Parliamentary Advisor.
27
15 Functions and powers of the National Integrity Commissioner
28
(1) The National Integrity Commissioner has the national integrity
29
commissioner functions.
30
(2) The National Integrity Commissioner has power to do all things
31
necessary or convenient to be done for or in connection with the
32
performance of the national integrity commissioner functions
33
conferred by this section.
34
The National Integrity Commission Part 2
Functions and powers of the integrity officers Division 3
Section 16
No. , 2013
National Integrity Commission Bill 2013
17
16 Functions and powers of the Law Enforcement Integrity
1
Commissioner
2
(1) The Law Enforcement Integrity Commissioner has the law
3
enforcement integrity commissioner functions.
4
(2) The Law Enforcement Integrity Commissioner has the powers
5
conferred under Parts 9 and 12 of the Law Enforcement Integrity
6
Commissioner Act 2006 to do things necessary or convenient to be
7
done for or in connection with the performance of the law
8
enforcement integrity commissioner functions conferred by this
9
section.
10
17 Functions and powers of the Independent Parliamentary Advisor
11
(1) The Independent Parliamentary Advisor has the independent
12
parliamentary advisor functions.
13
(2) The Independent Parliamentary Advisor has power to do all things
14
necessary or convenient to be done for or in connection with the
15
performance of the independent parliamentary advisor functions
16
conferred by this section.
17
Part 3 Dealing with corruption issues
Division 1 Introduction
Section 18
18
National Integrity Commission Bill 2013
No. , 2013
Part 3--Dealing with corruption issues
1
Division 1--Introduction
2
18 Guide to this Part
3
This Division is about:
4
(a)
the referral of corruption issues to the National
5
Integrity Commissioner; and
6
(b)
how the National Integrity Commissioner deals
7
with referred corruption issues; and
8
(c)
how the National Integrity Commissioner deals
9
with corruption issues on his or her own initiative;
10
and
11
(d)
reconsideration by the National Integrity
12
Commissioner of how to deal with a corruption
13
issue.
14
Dealing with corruption issues Part 3
Referring corruption issues to National Integrity Commissioner Division 2
Section 19
No. , 2013
National Integrity Commission Bill 2013
19
Division 2--Referring corruption issues to National
1
Integrity Commissioner
2
19 Referral of corruption issues
3
(1) A person may refer to the National Integrity Commissioner under
4
this section an allegation, or information, that raises a corruption
5
issue.
6
(2) Without limiting subsection (1):
7
(a) the person may refer the allegation or information on behalf
8
of:
9
(i) another person; or
10
(ii) a Commonwealth agency; or
11
(iii) a body or association of persons; and
12
(b) the person may refer the allegation or information
13
anonymously; and
14
(c) the person may refer the allegation or information either
15
orally or in writing.
16
(3) If the person refers the allegation or information orally, the
17
National Integrity Commissioner may require the person to put the
18
allegation or the information in writing.
19
(4) If the person is asked to put the allegation or information in writing
20
under subsection (3), the National Integrity Commissioner may
21
refuse to investigate the corruption issue that the allegation or
22
information raises, or to investigate the corruption issue further,
23
until the allegation or information is put in writing.
24
(5) If an authorised officer allocates the handling of a disclosure to the
25
National Integrity Commissioner under Part 3 of the Public
26
Interest Disclosure Act 2013, the person who made the disclosure
27
is taken to have referred the allegation or information to the
28
National Integrity Commissioner under this section.
29
(6) If the Ombudsman:
30
Part 3 Dealing with corruption issues
Division 2 Referring corruption issues to National Integrity Commissioner
Section 20
20
National Integrity Commission Bill 2013
No. , 2013
(a) decides, under subsection 6(15A) of the Ombudsman Act
1
1976, to refer an allegation or information to the National
2
Integrity Commissioner; or
3
(b) is required, under subsection 6(15B) of that Act, to refer an
4
allegation or information to the National Integrity
5
Commissioner;
6
the person who referred the allegation or information to the
7
Ombudsman is taken to have referred the allegation or information
8
to the National Integrity Commissioner under this section.
9
20 Person making referral under section 19 may elect to be kept
10
informed
11
(1) If a person refers an allegation or information to the National
12
Integrity Commissioner under section 19, the National Integrity
13
Commissioner must ask the person to elect whether or not to be
14
kept informed of the action taken in relation to the corruption issue
15
raised by the allegation or information.
16
(2) Subsection (1) does not apply if the person refers the allegation or
17
information anonymously.
18
(3) If the person fails to make an election when asked to do so, the
19
person is taken to have elected not to be kept informed of the
20
action taken in relation to the corruption issue.
21
(4) If the person elects to be kept informed of the action taken in
22
relation to the corruption issue, the person may revoke the election
23
at any time by notice to the National Integrity Commissioner.
24
Dealing with corruption issues Part 3
How National Integrity Commissioner deals with referred corruption issues Division 3
Section 21
No. , 2013
National Integrity Commission Bill 2013
21
Division 3--How National Integrity Commissioner deals
1
with referred corruption issues
2
21 How National Integrity Commissioner may deal with referred
3
corruption issues
4
(1) The National Integrity Commissioner may deal with a referred
5
corruption issue by deciding:
6
(a) to investigate the corruption issue; or
7
(b) not to investigate the corruption issue.
8
(2) The National Integrity Commissioner may make a decision under
9
paragraph (1)(b) only if he or she is satisfied that:
10
(a) the corruption issue is already being, or will be, investigated
11
by another Commonwealth agency; or
12
(b) the referral of the allegation, or information, that raises the
13
corruption issue is frivolous or vexatious or was not made in
14
good faith; or
15
(c) the corrupt conduct to which the corruption issue relates has
16
been, is or will be, the subject of proceedings before a court;
17
or
18
(d) investigation of the corruption issue is not warranted having
19
regard to all the circumstances.
20
22 Advising person who refers corruption issue of decision about
21
how to deal with corruption issue
22
National Integrity Commissioner to advise person who refers
23
corruption issue
24
(1) If a person:
25
(a) refers an allegation, or information, that raises a corruption
26
issue to the National Integrity Commissioner under
27
section 19; and
28
(b) elects under section 20 to be kept informed of the action
29
taken in relation to the corruption issue;
30
Part 3 Dealing with corruption issues
Division 3 How National Integrity Commissioner deals with referred corruption issues
Section 22
22
National Integrity Commission Bill 2013
No. , 2013
the National Integrity Commissioner must advise the person of:
1
(c) the National Integrity Commissioner's decision under
2
section 21 in relation to the corruption issue; and
3
(d) any decision the National Integrity Commissioner makes
4
under section 27 on a reconsideration of how the corruption
5
issue should be dealt with.
6
Form and timing of advice
7
(2) The National Integrity Commissioner must advise the person of the
8
decision:
9
(a) in writing; and
10
(b) as soon as reasonably practicable after the decision is made.
11
Exception
12
(3) However, the National Integrity Commissioner need not advise the
13
person if the National Integrity Commissioner is satisfied that
14
doing so is likely to prejudice:
15
(a) the investigation of the corruption issue or another corruption
16
investigation; or
17
(b) any action taken as a result of an investigation referred to in
18
paragraph (a).
19
Advice to nominated person or office holder
20
(4) If:
21
(a) a person refers an allegation, or information, that raises the
22
corruption issue to the National Integrity Commissioner on
23
behalf of:
24
(i) another person; or
25
(ii) a Commonwealth agency; or
26
(iii) a body or association of persons; and
27
(b) the other person, the agency, the body or the association
28
nominates:
29
(i) another person; or
30
Dealing with corruption issues Part 3
How National Integrity Commissioner deals with referred corruption issues Division 3
Section 23
No. , 2013
National Integrity Commission Bill 2013
23
(ii) the holder of a particular office in the agency, body or
1
association;
2
by notice in writing to the National Integrity Commissioner
3
to receive communications from the National Integrity
4
Commissioner;
5
the National Integrity Commissioner must give the advice required
6
by subsection (1) to the person nominated or the person for the
7
time being holding the office nominated.
8
23 Advising person to whom referred corruption issue relates of
9
decision about how to deal with corruption issue
10
If the National Integrity Commissioner makes a decision under
11
section 21 or 27 in relation to a referred corruption issue that
12
relates to a person, the National Integrity Commissioner may
13
advise the person of the National Integrity Commissioner's
14
decision.
15
Part 3 Dealing with corruption issues
Division 4 National Integrity Commissioner dealing with corruption issues on own
initiative
Section 24
24
National Integrity Commission Bill 2013
No. , 2013
Division 4--National Integrity Commissioner dealing with
1
corruption issues on own initiative
2
24 National Integrity Commissioner may deal with corruption issues
3
on own initiative
4
(1) If the National Integrity Commissioner becomes aware of an
5
allegation, or information, that raises a corruption issue, the
6
National Integrity Commissioner may, on his or her own initiative,
7
investigate, or inquire into, the corruption issue.
8
(2) Subsection (1) does not apply if the National Integrity
9
Commissioner becomes aware of the allegation or information
10
because of action taken under Division 2 of this Part.
11
(3) Without limiting subsection (1), if the National Integrity
12
Commissioner:
13
(a) is investigating, or inquiring into, a particular corruption
14
issue; and
15
(b) in the course of doing so, becomes aware of an allegation, or
16
information, that raises another corruption issue;
17
the National Integrity Commissioner may also investigate, or
18
inquire into, that other corruption issue.
19
25 Advising head of Commonwealth agency of decision to deal with
20
corruption issue on own initiative
21
Application of section
22
(1) This section applies if:
23
(a) the National Integrity Commissioner decides, on his or her
24
own initiative, to investigate, or inquire into, a corruption
25
issue in accordance with subsection 24(1); and
26
(b) the corruption issue relates to the conduct of a person who is
27
an employee of a Commonwealth agency (other than the
28
head of the agency).
29
Dealing with corruption issues Part 3
National Integrity Commissioner dealing with corruption issues on own initiative
Division 4
Section 26
No. , 2013
National Integrity Commission Bill 2013
25
Advising head of Commonwealth agency
1
(2) The National Integrity Commissioner must advise the head of that
2
Commonwealth agency of:
3
(a) the National Integrity Commissioner's decision investigate,
4
or inquire into, the corruption issue; and
5
(b) any decision the National Integrity Commissioner makes
6
under section 27 on a reconsideration of how the corruption
7
issue should be dealt with.
8
Form and timing of advice
9
(3) The National Integrity Commissioner must advise the head of the
10
Commonwealth agency of the decision:
11
(a) in writing; and
12
(b) as soon as reasonably practicable after the decision is made.
13
Exception
14
(4) However, the National Integrity Commissioner need not advise the
15
head of the Commonwealth agency if doing so would be likely to
16
prejudice:
17
(a) the investigation of the corruption issue or another corruption
18
investigation; or
19
(b) any action taken as a result of an investigation referred to in
20
paragraph (a).
21
26 Advising person of decision to deal with corruption issue on own
22
initiative
23
If:
24
(a) the National Integrity Commissioner decides, on his or her
25
own initiative, to investigate, or inquire into, a corruption
26
issue in accordance with subsection 24(1); and
27
(b) the corruption issue relates to a person who is, or has been, a
28
public official;
29
the National Integrity Commissioner may advise the person of:
30
Part 3 Dealing with corruption issues
Division 4 National Integrity Commissioner dealing with corruption issues on own
initiative
Section 26
26
National Integrity Commission Bill 2013
No. , 2013
(c) the National Integrity Commissioner's decision to
1
investigate, or inquire into, the corruption issue; and
2
(d) any decision the National Integrity Commissioner makes
3
under section 27 on a reconsideration of how the corruption
4
issue should be dealt with.
5
Dealing with corruption issues Part 3
Reconsidering how to deal with a corruption issue Division 5
Section 27
No. , 2013
National Integrity Commission Bill 2013
27
Division 5--Reconsidering how to deal with a corruption
1
issue
2
27 Reconsidering how to deal with a corruption issue
3
(1) The National Integrity Commissioner may, at any time, reconsider
4
how a particular corruption issue should be dealt with.
5
(2) On that reconsideration, the National Integrity Commissioner may:
6
(a) if the corruption issue is not being dealt with under
7
paragraph 21(1)(a) or subsection 24(1)--decide to deal with
8
the corruption issue in accordance with one of those
9
provisions; or
10
(b) if the corruption issue is being dealt with under
11
paragraph 21(1)(a) or subsection 24(1)--decide to
12
discontinue the investigation of, or inquiry into, the
13
corruption issue.
14
(3) The National Integrity Commissioner may make a decision under
15
paragraph (2)(b) only if he or she is satisfied that:
16
(a) the corruption issue is already being, or will be, investigated
17
by another Commonwealth agency; or
18
(b) the referral of the allegation, or information, that raises the
19
corruption issue is frivolous or vexatious or was not made in
20
good faith; or
21
(c) the corrupt conduct to which the corruption issue relates has
22
been, is or will be, the subject of proceedings before a court;
23
or
24
(d) further investigation of the corruption issue is not warranted
25
having regard to all the circumstances.
26
Part 4 Investigations by the National Integrity Commissioner
Division 1 Introduction
Section 28
28
National Integrity Commission Bill 2013
No. , 2013
Part 4--Investigations by the National Integrity
1
Commissioner
2
Division 1--Introduction
3
28 Guide to this Part
4
This Division is about:
5
(a)
how the National Integrity Commissioner conducts
6
an investigation; and
7
(b)
the National Integrity Commissioner giving
8
persons an opportunity to be heard; and
9
(c)
the reporting required in relation to an
10
investigation.
11
Investigations by the National Integrity Commissioner Part 4
Investigation Division 2
Section 29
No. , 2013
National Integrity Commission Bill 2013
29
Division 2--Investigation
1
29 Application of Division
2
This Division applies if the National Integrity Commissioner
3
investigates a corruption issue.
4
30 National Integrity Commissioner to determine manner of
5
conducting investigation
6
The National Integrity Commissioner may conduct the
7
investigation in such manner as the National Integrity
8
Commissioner thinks fit.
9
Note:
Part 6 provides for particular powers that are available to the National
10
Integrity Commissioner for the purposes of the investigation.
11
31 Opportunity to be heard
12
Opinion or finding critical
13
(1) Subject to subsection (2), the National Integrity Commissioner
14
must not include in a report under section 33 in relation to an
15
investigation of a corruption issue an opinion or finding that is
16
critical of a Commonwealth agency or a person (either expressly or
17
impliedly) unless the National Integrity Commissioner has taken
18
the action required by subsection (3) or (4) before completing the
19
investigation.
20
(2) Subsection (1) does not apply if the National Integrity
21
Commissioner is satisfied that:
22
(a) a person may have:
23
(i) committed a criminal offence; or
24
(ii) contravened a civil penalty provision; or
25
(iii) engaged in conduct that could be the subject of
26
disciplinary proceedings; or
27
Part 4 Investigations by the National Integrity Commissioner
Division 2 Investigation
Section 31
30
National Integrity Commission Bill 2013
No. , 2013
(iv) engaged in conduct that could be grounds for
1
terminating the person's appointment or employment;
2
and
3
(b) taking action under subsection (3) or (4) would compromise
4
the effectiveness of:
5
(i) the investigation of the corruption issue or another
6
corruption investigation; or
7
(ii) any action taken as a result of an investigation referred
8
to in subparagraph (i).
9
Opportunity to appear and make submissions
10
(3) If the opinion or finding is critical of a Commonwealth agency, the
11
National Integrity Commissioner must give the head of the
12
Commonwealth agency:
13
(a) a statement setting out the opinion or finding; and
14
(b) a reasonable opportunity to appear before him or her and to
15
make submissions in relation to the opinion or finding.
16
(4) If the opinion or finding is critical of a person, the National
17
Integrity Commissioner must give the person:
18
(a) a statement setting out the opinion or finding; and
19
(b) a reasonable opportunity to appear before him or her and to
20
make submissions in relation to the opinion or finding.
21
(5) Submissions under subsection (3) or (4) may be made orally or in
22
writing.
23
Representation
24
(6) The head of a Commonwealth agency may:
25
(a) appear before the National Integrity Commissioner
26
personally; or
27
(b) authorise another person to appear before the National
28
Integrity Commissioner on his or her behalf.
29
(7) A person referred to in subsection (4):
30
Investigations by the National Integrity Commissioner Part 4
Investigation Division 2
Section 31
No. , 2013
National Integrity Commission Bill 2013
31
(a) may appear before the National Integrity Commissioner
1
personally; or
2
(b) may, with the National Integrity Commissioner's approval,
3
be represented by another person.
4
Part 4 Investigations by the National Integrity Commissioner
Division 3 Reporting
Section 32
32
National Integrity Commission Bill 2013
No. , 2013
Division 3--Reporting
1
Subdivision A--Reporting during investigation
2
32 National Integrity Commissioner to keep person who referred
3
corruption issue informed of progress of investigation
4
Person who refers issue under section 19
5
If:
6
(a) a person refers an allegation, or information, that raises a
7
corruption issue to the National Integrity Commissioner
8
under section 19; and
9
(b) the National Integrity Commissioner investigates the
10
corruption issue; and
11
(c) the person elects under section 20 to be kept informed of the
12
action taken in relation to the corruption issue and has not
13
revoked the election;
14
the National Integrity Commissioner must take such steps as the
15
National Integrity Commissioner considers reasonable to keep the
16
person informed of the progress of the investigation of that
17
corruption issue.
18
Subdivision B--Reporting at the end of investigation
19
33 Report on investigation
20
Report and its contents
21
(1) After completing an investigation of a corruption issue, the
22
National Integrity Commissioner must prepare a report on the
23
investigation.
24
(2) The report must set out:
25
(a) the National Integrity Commissioner's findings on the
26
corruption issue; and
27
Investigations by the National Integrity Commissioner Part 4
Reporting Division 3
Section 33
No. , 2013
National Integrity Commission Bill 2013
33
(b) the evidence and other material on which those findings are
1
based; and
2
(c) any action that the National Integrity Commissioner has
3
taken, or proposes to take, under Part 7 in relation to the
4
investigation; and
5
(d) any recommendations that the National Integrity
6
Commissioner thinks fit to make and, if recommendations
7
are made, the reasons for those recommendations.
8
This subsection has effect subject to subsections (4) and (5).
9
Note 1:
See section 31 for the need for the National Integrity Commissioner to
10
give certain people an opportunity to be heard before including critical
11
statements in a report.
12
Note 2:
Under section 157, the report must be tabled in each House of the
13
Parliament.
14
(3) Without limiting paragraph (2)(d), the National Integrity
15
Commissioner may recommend:
16
(b) the termination of the employment of a person in accordance
17
with the relevant procedures; or
18
(d) the adoption of measures to remedy deficiencies in the
19
policy, procedures or practices that facilitated:
20
(i) a person engaging in corrupt conduct; or
21
(ii) the failure to detect corrupt conduct engaged in by a
22
person.
23
(4) The National Integrity Commissioner may exclude information
24
from the report if the National Integrity Commissioner is satisfied
25
that:
26
(a) the information is sensitive information; and
27
(b) it is desirable in the circumstances to exclude the information
28
from the report.
29
(5) In deciding whether to exclude information from the report
30
prepared under subsection (4), the National Integrity
31
Commissioner must seek to achieve an appropriate balance
32
between:
33
(a) the public interest that would be served by including the
34
information in the report; and
35
Part 4 Investigations by the National Integrity Commissioner
Division 3 Reporting
Section 34
34
National Integrity Commission Bill 2013
No. , 2013
(b) the prejudicial consequences that might result from including
1
the information in the report.
2
Supplementary report
3
(6) If the National Integrity Commissioner excludes information from
4
a report prepared under subsection (4), the National Integrity
5
Commissioner must prepare a supplementary report that sets out:
6
(a) the information; and
7
(b) the reasons for excluding the information from the report
8
prepared under subsection (4).
9
34 National Integrity Commissioner to give report to Prime Minister
10
The National Integrity Commissioner must give the Prime
11
Minister:
12
(a) the report prepared under subsection 33(1); and
13
(b) if a supplementary report is prepared under subsection 33(6)
14
in relation to the investigation--the supplementary report.
15
Note:
Section 157 provides that the Prime Minister must table a copy of the
16
report prepared under subsection 33(1) in each House of the
17
Parliament if a public hearing has been held in the course of the
18
investigation to which the report relates. The Prime Minister is not
19
required, however, to table a copy of a supplementary report under
20
subsection 33(6) in each House of the Parliament.
21
35 Advising person who referred corruption issue of outcome of the
22
investigation
23
Advice to person who referred issue under section 19
24
(1) If a person:
25
(a) refers an allegation, or information, that raises a corruption
26
issue to the National Integrity Commissioner under
27
section 19; and
28
(b) elects under section 20 to be kept informed of the action
29
taken in relation to the corruption issue and has not revoked
30
the election;
31
Investigations by the National Integrity Commissioner Part 4
Reporting Division 3
Section 35
No. , 2013
National Integrity Commission Bill 2013
35
the National Integrity Commissioner must advise the person of the
1
outcome of the investigation of the corruption issue.
2
Exception
3
(2) However, the National Integrity Commissioner need not advise the
4
person if the National Integrity Commissioner is satisfied that
5
doing so is likely to prejudice:
6
(a) the investigation of the corruption issue or another corruption
7
investigation; or
8
(b) any action taken as a result of an investigation referred to in
9
paragraph (a).
10
Manner of giving advice
11
(3) The National Integrity Commissioner may advise the person of the
12
outcome of the investigation by giving the person a copy of the
13
whole or a part of the report prepared in relation to the
14
investigation under subsection 33(1).
15
(4) In advising the person of the outcome of the investigation, the
16
National Integrity Commissioner may exclude information from
17
the advice if the National Integrity Commissioner is satisfied that:
18
(a) the information is sensitive information; and
19
(b) it is desirable in the circumstances to exclude the information
20
from the advice.
21
(5) In deciding whether to exclude information from the advice under
22
subsection (4), the National Integrity Commissioner must seek to
23
achieve an appropriate balance between:
24
(a) the person's interest in having the information included in the
25
advice; and
26
(b) the prejudicial consequences that might result from including
27
the information in the advice.
28
Advice to nominated person
29
(6) If:
30
Part 4 Investigations by the National Integrity Commissioner
Division 3 Reporting
Section 36
36
National Integrity Commission Bill 2013
No. , 2013
(a) a person refers an allegation, or information, that raises the
1
corruption issue to the National Integrity Commissioner on
2
behalf of:
3
(i) another person; or
4
(ii) a Commonwealth agency; or
5
(iii) a body or association of persons; and
6
(b) the other person, the agency, the body or the association
7
nominates:
8
(i) another person; or
9
(ii) the holder of a particular office in the agency, body or
10
association;
11
by notice in writing to the National Integrity Commissioner
12
to receive communications from the National Integrity
13
Commissioner;
14
the National Integrity Commissioner must give the advice required
15
by subsection (1) to the person nominated or the person for the
16
time being holding the office nominated.
17
36 Advising person whose conduct is investigated of outcome of the
18
investigation
19
(1) If the National Integrity Commissioner investigates a corruption
20
issue that relates to a person, the National Integrity Commissioner
21
may advise the person of the outcome of the investigation.
22
(2) Without limiting subsection (1), the National Integrity
23
Commissioner may advise the person of the outcome of the
24
investigation by giving the person a copy of the whole or a part of
25
the report prepared in relation to the investigation under
26
subsection 33(1).
27
(3) In advising the person under subsection (1), the National Integrity
28
Commissioner may exclude information from the advice if the
29
National Integrity Commissioner is satisfied that:
30
(a) the information is sensitive information; and
31
(b) it is desirable in the circumstances to exclude the information
32
from the advice.
33
Investigations by the National Integrity Commissioner Part 4
Reporting Division 3
Section 36
No. , 2013
National Integrity Commission Bill 2013
37
(4) In deciding whether to exclude information from the advice under
1
subsection (3), the National Integrity Commissioner must seek to
2
achieve an appropriate balance between:
3
(a) the person's interest in having the information included in the
4
advice; and
5
(b) the prejudicial consequences that might result from including
6
the information in the advice.
7
Part 5 Public inquiries into corruption issues
Division 1 Introduction
Section 37
38
National Integrity Commission Bill 2013
No. , 2013
Part 5--Public inquiries into corruption issues
1
Division 1--Introduction
2
37 Guide to this Part
3
This Division is about:
4
(a)
how the National Integrity Commissioner conducts
5
public inquiries into corruption issues; and
6
(b)
the reporting required in relation to the conduct of
7
a public inquiry.
8
Public inquiries into corruption issues Part 5
Conducting a public inquiry Division 2
Section 38
No. , 2013
National Integrity Commission Bill 2013
39
Division 2--Conducting a public inquiry
1
38 National Integrity Commissioner may conduct public inquiry
2
The National Integrity Commissioner may, if he or she is satisfied
3
that it is in the public interest to do so, conduct a public inquiry in
4
relation to a corruption issue or issues.
5
Note:
Part 6 provides for particular powers that are available to the National
6
Integrity Commissioner for the purposes of the public inquiry.
7
39 Publicising inquiry
8
(1) The National Integrity Commissioner must invite submissions on
9
the corruption issue that is to be the subject of the public inquiry.
10
Note:
Subsection 76(1) provides certain protections for people who make
11
submissions.
12
(2) The invitation must specify the closing date for submissions.
13
(3) If the National Integrity Commissioner receives a submission, he
14
or she may, if satisfied that it is in the public interest to do so,
15
authorise it to be published on the National Integrity Commission's
16
website.
17
Part 5 Public inquiries into corruption issues
Division 3 Reporting
Section 40
40
National Integrity Commission Bill 2013
No. , 2013
Division 3--Reporting
1
40 Report on public inquiry
2
Report and its contents
3
(1) After conducting a public inquiry, the National Integrity
4
Commissioner must prepare a report on the inquiry.
5
(2) The report must set out:
6
(a) the National Integrity Commissioner's findings as a result of
7
the public inquiry; and
8
(b) the evidence and other material on which those findings are
9
based; and
10
(c) any action that the National Integrity Commissioner has
11
taken, or proposes to take, under Part 7 in relation to the
12
inquiry; and
13
(d) any recommendations that the National Integrity
14
Commissioner thinks fit to make and, if recommendations
15
are made, the reasons for those recommendations.
16
Note:
Under section 157, the report must be tabled in each House of the
17
Parliament.
18
Sensitive information
19
(3) The National Integrity Commissioner may exclude information
20
from the report if the National Integrity Commissioner is satisfied
21
that:
22
(a) the information is sensitive information; and
23
(b) it is desirable in the circumstances to exclude the information
24
from the report.
25
(4) In deciding whether to exclude information from the report
26
prepared under subsection (3), the National Integrity
27
Commissioner must seek to achieve an appropriate balance
28
between:
29
Public inquiries into corruption issues Part 5
Reporting Division 3
Section 41
No. , 2013
National Integrity Commission Bill 2013
41
(a) the public interest that would be served by including the
1
information in the report; and
2
(b) the prejudicial consequences that might result from including
3
the information in the report.
4
Supplementary report
5
(5) If, under subsection (4), the National Integrity Commissioner
6
excludes information from a report prepared under subsection (1),
7
the National Integrity Commissioner must prepare a supplementary
8
report that sets out:
9
(a) the information; and
10
(b) the reasons for excluding the information from the report
11
prepared under subsection (1).
12
41 Giving report to Prime Minister
13
The National Integrity Commissioner must give the Prime
14
Minister:
15
(a) the report prepared under subsection 40(1); and
16
(b) if a supplementary report is prepared under
17
subsection 40(5)--the supplementary report.
18
Note:
Section 157 provides that the Prime Minister must table a copy of the
19
report prepared under subsection 40(1) in each House of the
20
Parliament if a public hearing has been held in the course of the
21
investigation to which the report relates. The Prime Minister is not
22
required, however, to table a copy of a supplementary report under
23
subsection 40(5) in each House of the Parliament.
24
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Introduction
Section 42
42
National Integrity Commission Bill 2013
No. , 2013
Part 6--National Integrity Commissioner's powers
1
in conducting investigations and public
2
inquiries
3
Division 1--Introduction
4
42 Guide to this Part
5
This Division is about the powers of the National Integrity
6
Commissioner in conducting investigations and public inquiries.
7
The National Integrity Commissioner may:
8
(a)
require persons to provide information or produce
9
documents or things; or
10
(b)
conduct hearings; or
11
(c)
apply for and execute search warrants; or
12
(d)
exercise powers of arrest; or
13
(e)
appoint authorised officers.
14
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 43
No. , 2013
National Integrity Commission Bill 2013
43
Division 2--Requiring people to give information or
1
produce documents or things
2
Subdivision A--Requests by National Integrity Commissioner
3
43 Request to person to give information or produce documents or
4
things
5
(1) For the purposes of investigating a corruption issue, the National
6
Integrity Commissioner may request a person:
7
(a) to give the National Integrity Commissioner the information
8
specified in the request; or
9
(b) to produce to the National Integrity Commissioner the
10
documents or things specified in the request.
11
(2) The National Integrity Commissioner's request must:
12
(a) be served on the person; and
13
(b) be in writing and signed by the National Integrity
14
Commissioner; and
15
(c) specify the period within which the person must comply with
16
the request.
17
The period specified under paragraph (c) must be at least 14 days
18
starting on the day on which the request is served on the person.
19
(3) The National Integrity Commissioner may make the request
20
without holding a public hearing.
21
(4) The person must:
22
(a) give the information in writing; or
23
(b) produce the documents or things;
24
within the time specified in the request, or within such further time
25
as the National Integrity Commissioner allows.
26
Note:
Failure to comply with a request is an offence (see section 45).
27
(5) For the purposes of sections 45 to 48, the power of the National
28
Integrity Commissioner under this section to request a person to
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 44
44
National Integrity Commission Bill 2013
No. , 2013
give information or to produce a document or thing includes the
1
power to request or require the person to provide information or
2
produce a document or thing that is subject to legal professional
3
privilege.
4
Note:
Under sections 46 and 47, legal professional privilege may still extend
5
to the information, document or thing.
6
44 National Integrity Commissioner may retain documents and
7
things
8
(1) If a document or thing is produced to the National Integrity
9
Commissioner in accordance with a request under section 43, the
10
National Integrity Commissioner:
11
(a) may take possession of, and may make copies of, the
12
document or thing, or take extracts from the document; and
13
(b) may retain possession of the document or thing for such
14
period as is necessary for the purposes of the investigation to
15
which the document or thing relates.
16
(2) While the National Integrity Commissioner retains the document or
17
thing, he or she must allow a person who would otherwise be
18
entitled to inspect the document or view the thing to do so at the
19
times that the person would ordinarily be able to do so.
20
Subdivision B--Offence and related provisions
21
45 Failure to comply with National Integrity Commissioner's
22
request
23
A person commits an offence if:
24
(a) the person is given a request under section 43; and
25
(b) the person fails to comply with the request.
26
Penalty: Imprisonment for 2 years.
27
Note 1:
A person may refuse to give information or produce a document or
28
thing on the ground of legal professional privilege (see sections 46
29
and 47).
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 46
No. , 2013
National Integrity Commission Bill 2013
45
Note 2:
This section is not subject to the privilege against self-incrimination
1
but there are limits on the uses to which the evidence the person gives
2
may be put (see section 49).
3
46 Legal professional privilege--information
4
(1) A person must not refuse or fail to provide information to the
5
National Integrity Commissioner when requested to do so under
6
section 43 on the ground that the information (or the relevant part
7
of the information) would disclose a communication that is subject
8
to legal professional privilege, unless a claim to that effect has
9
been made to the National Integrity Commissioner:
10
(a) within the time that the National Integrity Commissioner, in
11
requiring the information to be provided, allowed for its
12
provision; or
13
(b) within such further time as the National Integrity
14
Commissioner allows for the information to be provided.
15
Note:
See also paragraph 49(5)(c).
16
(2) If such a claim is made, the National Integrity Commissioner may
17
decide whether to accept or reject the claim.
18
(3) The National Integrity Commissioner may, by written notice
19
served (as prescribed) on the person, require the person to provide
20
the information for consideration (by the National Integrity
21
Commissioner or a person authorised by the National Integrity
22
Commissioner) for the purpose of deciding whether to accept or
23
reject the claim.
24
(4) If the information has been provided for consideration and the
25
National Integrity Commissioner decides to accept the claim, the
26
National Integrity Commissioner must:
27
(a) return the information to the person; and
28
(b) disregard, for the purposes of any report or decision that the
29
National Integrity Commissioner makes:
30
(i) if the claim is accepted in relation to the all of the
31
information--all of the information; or
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 47
46
National Integrity Commission Bill 2013
No. , 2013
(ii) if the claim is accepted in relation to a part of the
1
information--that part of the information.
2
(5) If the information has been provided for consideration and the
3
National Integrity Commissioner decides to reject the claim, the
4
National Integrity Commissioner may use the information for the
5
purposes of the inquiry.
6
(6) Without limiting subsections (3) and (5), the powers of the
7
National Integrity Commissioner include, by force of this
8
subsection, the power to decide whether to accept or reject the
9
claim.
10
47 Legal professional privilege--documents or things
11
(1) A person must not refuse or fail to produce a document or thing to
12
the National Integrity Commissioner when requested to do so
13
under section 43 on the ground that the document or thing is
14
subject to legal professional privilege, unless:
15
(a) a court has found the document or thing (or the relevant part
16
of the document or thing) to be subject to legal professional
17
privilege; or
18
(b) a claim that the document or thing (or the relevant part of the
19
document or thing) is subject to legal professional privilege
20
has been made to the National Integrity Commissioner:
21
(i) within the time that the National Integrity
22
Commissioner, in requiring production of the document
23
or thing, allowed for its production; or
24
(ii) within such further time as the National Integrity
25
Commissioner allows for production of the document or
26
thing.
27
Note:
See also paragraph 49(5)(c).
28
(2) If such a claim is made, the National Integrity Commissioner may
29
decide whether to accept or reject the claim.
30
(3) The National Integrity Commissioner may, by written notice
31
served (as prescribed) on the person, require the person to produce
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 48
No. , 2013
National Integrity Commission Bill 2013
47
the document or thing for inspection (by the National Integrity
1
Commissioner or a person authorised by the National Integrity
2
Commissioner) for the purpose of deciding whether to accept or
3
reject the claim.
4
(4) If the document or thing has been produced for inspection and the
5
National Integrity Commissioner decides to accept the claim, the
6
National Integrity Commissioner must:
7
(a) return the document or thing to the person; and
8
(b) disregard, for the purposes of any report or decision that the
9
National Integrity Commissioner makes:
10
(i) if the claim is accepted in relation to the whole
11
document or thing--the whole document or thing; or
12
(ii) if the claim is accepted in relation to a part of the
13
document or thing--that part of the document or thing.
14
(5) If the document or thing has been produced for inspection and the
15
National Integrity Commissioner decides to reject the claim, the
16
National Integrity Commissioner may use the document or thing
17
for the purposes of the inquiry.
18
(6) Without limiting subsections (3) and (5), the powers of the
19
National Integrity Commissioner include, by force of this
20
subsection, the power to decide whether to accept or reject the
21
claim.
22
48 Offences relating to claims for legal professional privilege
23
(1) A person commits an offence if:
24
(a) the person had refused or failed to comply with a request
25
under section 43; and
26
(b) the National Integrity Commissioner has decided under
27
subsection 46(2) or 47(2) to reject a claim that the
28
information, document or thing (or the relevant part of the
29
information, document or thing) is subject to legal
30
professional privilege; and
31
(c) the person refuses or fails to provide the information or
32
produce the document or thing as the National Integrity
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 49
48
National Integrity Commission Bill 2013
No. , 2013
Commissioner requires, after that decision, under
1
subsection 43(5).
2
Penalty: Imprisonment for 6 months.
3
(2) A person commits an offence if the person refuses or fails:
4
(a) to provide information that the person was required under
5
subsection 46(3) to provide; or
6
(b) to produce a document or thing that the person was required
7
under subsection 47(3) to produce for inspection.
8
Penalty: Imprisonment for 6 months.
9
(3) Subsections (1) and (2) are offences of strict liability.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
(4) Subsections (1) and (2) do not apply if the person has a reasonable
12
excuse.
13
(5) It is not a reasonable excuse for the purposes of subsection (4) for a
14
person to refuse or fail to produce a document or thing that the
15
document or thing is subject to legal professional privilege, unless
16
a court has found the document or thing to be subject to legal
17
professional privilege.
18
(6) It is a defence to a prosecution for an offence against this section
19
constituted by a refusal or failure to provide information or to
20
produce a document or thing if the information, document or thing
21
was not relevant to the request under section 43 by the National
22
Integrity Commissioner.
23
Note:
A defendant bears an evidential burden in relation to the matters in
24
subsections (4) and (6) (see subsection 13.3(3) of the Criminal Code).
25
49 Self-incrimination etc.
26
Self-incrimination
27
(1) A person is not excused from:
28
(a) giving information; or
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 49
No. , 2013
National Integrity Commission Bill 2013
49
(b) producing a document or thing;
1
when requested to do so under section 43 on the ground that doing
2
so would tend to incriminate the person or expose the person to a
3
penalty.
4
Use indemnity
5
(2) Subsection (4) applies if:
6
(a) the person:
7
(i) gives the information (whether orally or in writing); or
8
(ii) produces the document or thing;
9
and, before doing so, claims that giving the information or
10
producing the document or thing, might tend to incriminate
11
the person or expose the person to a penalty; or
12
(b) the person gives the information in writing and claims, in a
13
written statement accompanying the information, that giving
14
the information might tend to incriminate the person or
15
expose the person to a penalty; or
16
(c) the person produces the document or thing and claims, in a
17
written statement accompanying the document or thing, that
18
producing the document or thing might tend to incriminate
19
the person or expose the person to a penalty.
20
(3) Subsection (4) does not apply to the production of a document that
21
is, or forms part of, a record of an existing or past business.
22
(4) None of the following:
23
(a) the information given;
24
(b) the document or thing produced;
25
is admissible in evidence against the person in criminal
26
proceedings, or any other proceedings for the imposition or
27
recovery of a penalty, other than:
28
(c) proceedings for an offence against section 45; or
29
(d) confiscation proceedings; or
30
(e) proceedings for an offence against section 137.1 or 137.2 of
31
the Criminal Code (which deals with false or misleading
32
information or documents) that relates to this Act; or
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Requiring people to give information or produce documents or things
Section 49
50
National Integrity Commission Bill 2013
No. , 2013
(f) proceedings for an offence against section 149.1 of the
1
Criminal Code (which deals with obstruction of
2
Commonwealth public officials) that relates to this Act; or
3
(g) disciplinary proceedings against the person if the person is an
4
employee of a Commonwealth agency.
5
Public interest grounds
6
(5) A person is not excused from:
7
(a) giving information; or
8
(b) producing a document or thing;
9
when requested to do so under section 43 on the ground that doing
10
so:
11
(c) would disclose one of the following:
12
(i) legal advice given to a minister or a Commonwealth
13
agency;
14
(ii) a communication between an officer of a
15
Commonwealth agency and another person or body,
16
being a communication protected against disclosure by
17
legal professional privilege; or
18
(d) would breach a secrecy provision other than:
19
(i) a taxation secrecy provision; or
20
(ii) a law enforcement secrecy provision; or
21
(e) would be otherwise contrary to the public interest.
22
(6) The fact that a person is not excused under subsection (5) from:
23
(a) giving information; or
24
(b) producing a document or thing;
25
does not otherwise affect a claim of legal professional privilege
26
that anyone may make in relation to that information, document or
27
thing.
28
(7) A person does not commit an offence, and is not liable to any
29
penalty, under the provisions of any other enactment (other than a
30
taxation secrecy provision or a law enforcement secrecy provision)
31
because the person gives information, or produces a document or
32
thing, when required to do so under section 43.
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 2
Section 50
No. , 2013
National Integrity Commission Bill 2013
51
50 Protection of person required to give information or produce
1
documents or things
2
(1) A person who gives information, or produces a document or thing,
3
to the National Integrity Commissioner in response to a request
4
under section 43 has the same protection as a witness in
5
proceedings in the High Court.
6
(2) Subsection (3) applies if it appears to the National Integrity
7
Commissioner that, because a person:
8
(a) is to give information, or produce a document or thing; or
9
(b) has given information, or produced a document or thing;
10
to the National Integrity Commissioner in response to a request
11
under section 43, either:
12
(c) the safety of the person or any other person may be
13
prejudiced; or
14
(d) the person or any other person may be subjected to
15
intimidation or harassment.
16
(3) The National Integrity Commissioner may make such
17
arrangements as are necessary:
18
(a) to protect the safety of any person mentioned in
19
paragraph (2)(c); or
20
(b) to protect any person mentioned in paragraph (2)(d) from
21
intimidation or harassment.
22
(4) For the purpose of subsection (3), the arrangements that the
23
National Integrity Commissioner may make include arrangements
24
with:
25
(a) members of the Australian Federal Police; or
26
(b) members of the police force of a State or Territory.
27
(5) This section does not affect the Witness Protection Act 1994.
28
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 51
52
National Integrity Commission Bill 2013
No. , 2013
Division 3--Conducting hearings
1
Subdivision A--General provisions
2
51 National
Integrity Commissioner may hold hearings
3
National Integrity Commissioner may hold hearings for
4
investigations or public inquiries
5
(1) The National Integrity Commissioner may hold a hearing for the
6
purpose of:
7
(a) investigating a corruption issue; or
8
(b) conducting a public inquiry.
9
(2) Subject to subsections (3), (4) and (5), a hearing may be conducted
10
in such manner as the National Integrity Commissioner thinks fit.
11
Hearing in relation to an investigation of a corruption issue
12
(3) The National Integrity Commissioner may decide to hold the
13
whole (or a part) of a hearing in relation to an investigation of
14
corruption issue either in public or in private.
15
(4) In deciding under subsection (3) whether a hearing (or a part of a
16
hearing) is to be held in public or in private, the National Integrity
17
Commissioner must have regard to the following:
18
(a) whether evidence that may be given, or a matter that may
19
arise, during the hearing (or that part of the hearing) is of a
20
confidential nature or relates to the commission, or to the
21
alleged or suspected commission, of an offence;
22
(b) the seriousness of the corruption issue or issues to which the
23
public inquiry relates;
24
(c) any unfair prejudice to a person's reputation that would be
25
likely to be caused if the hearing (or that part of the hearing)
26
took place in public;
27
(d) whether it is in the public interest that the hearing (or that
28
part of the hearing) take place in public;
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 52
No. , 2013
National Integrity Commission Bill 2013
53
(e) any other relevant matter.
1
Note:
If the hearing is to be held in public, a witness may request that his or
2
her evidence be taken in private (see section 58).
3
Hearing in relation to a public inquiry
4
(5) A hearing in relation to a public inquiry must be held in public.
5
However, a part of a hearing in relation to a public inquiry may be
6
held in private if the National Integrity Commissioner so directs.
7
Note:
Certain evidence must be given in private, and a witness may request
8
that his or her evidence be taken in private (see section 58).
9
Record of hearing
10
(6) The National Integrity Commissioner must make a record of a
11
hearing.
12
Note:
This subsection is subject to subsection 64(4).
13
(7) If the National Integrity Commissioner is conducting a public
14
inquiry, the record of the hearing must include:
15
(a) any document produced to the National Integrity
16
Commissioner at the hearing; or
17
(b) a description of any thing (other than a document) produced
18
to the National Integrity Commissioner at the hearing;
19
unless the National Integrity Commissioner directs otherwise.
20
Direction is not a legislative instrument
21
(8) A direction given under this section is not a legislative instrument.
22
52 National Integrity Commissioner may summon person
23
(1) The National Integrity Commissioner may summon a person to
24
attend a hearing at a time and place specified in the summons:
25
(a) to give evidence; or
26
(b) to produce documents or things specified in the summons.
27
Note 1:
In certain cases, disclosing the existence of a summons, or any
28
information about it, is an offence (see section 61).
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 52
54
National Integrity Commission Bill 2013
No. , 2013
Note 2:
Failure to comply with a summons is an offence (see section 62).
1
Note 3:
A person may apply for legal and financial assistance in respect of his
2
or her attendance (see section 74).
3
(2) A summons must:
4
(a) be in writing and signed by the National Integrity
5
Commissioner; and
6
(b) be served on the person required to attend a hearing.
7
(3) If the hearing is held for the purpose of investigating a corruption
8
issue, a summons requiring a person to give evidence must set out,
9
so far as is reasonably practicable, the general nature of the matters
10
in relation to which the National Integrity Commissioner intends to
11
question the person.
12
(4) Subsection (3) does not prevent the National Integrity
13
Commissioner from questioning the person in relation to:
14
(a) any aspect of the corruption issue to which the hearing
15
relates; or
16
(b) another corruption issue.
17
(5) Subsection (3) does not apply if the National Integrity
18
Commissioner is satisfied that complying with that subsection is
19
likely to prejudice:
20
(a) the investigation to which the hearing relates or another
21
corruption investigation; or
22
(b) any action taken as a result of an investigation referred to in
23
paragraph (a).
24
(6) A person summoned to appear as a witness at a hearing is entitled
25
to be paid by the Commonwealth any allowances for travelling and
26
other expenses that are prescribed by the regulations.
27
(7) For the purposes of sections 62 and 64 to 66, the power of the
28
National Integrity Commissioner under this section to summon a
29
person to give evidence or to produce a document or thing includes
30
the power to require or summon the person to give evidence
31
(including answering a question) or produce a document or thing
32
that is subject to legal professional privilege.
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 53
No. , 2013
National Integrity Commission Bill 2013
55
Note:
Under sections 64 and 65, legal professional privilege may still extend
1
to the information, document or thing.
2
53 National Integrity Commissioner may take evidence outside
3
Australia
4
If arrangements have been made between Australia and another
5
country in relation to the taking of evidence in that country by the
6
National Integrity Commissioner for a hearing held under this
7
Division, the National Integrity Commissioner may:
8
(a) take evidence on oath or by affirmation; and
9
(b) use any evidence taken in that country in accordance with
10
those arrangements;
11
for the purpose of performing any function, or exercising any
12
power, under this Act.
13
Subdivision B--Procedure at hearing
14
54 Who may be represented at a hearing
15
(1) A person giving evidence at a hearing may be represented by a
16
legal practitioner.
17
(2) A person who is not giving evidence may be represented at a
18
hearing by a legal practitioner if:
19
(a) special circumstances exist; and
20
(b) the National Integrity Commissioner consents to the person
21
being so represented.
22
55 Who may be present at a hearing
23
Who may be present
24
(1) The National Integrity Commissioner may determine who may be
25
present during all or part of a hearing held in private.
26
(2) The National Integrity Commissioner must allow the following
27
persons to be present when evidence is being given:
28
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 55
56
National Integrity Commission Bill 2013
No. , 2013
(a) a legal practitioner representing the person giving evidence;
1
(b) a legal practitioner representing a person who:
2
(i) is not giving evidence; but
3
(ii) has the National Integrity Commissioner's consent to
4
being present at that time.
5
Opportunity to comment on a person's presence
6
(3) If:
7
(a) a person (the witness) is giving evidence at a hearing; and
8
(b) another person is present at the hearing at that time; and
9
(c) the other person is not:
10
(i) a staff member of the National Integrity Commission; or
11
(ii) a legal practitioner representing a person at the hearing;
12
the National Integrity Commissioner must:
13
(d) inform the witness that the person is present; and
14
(e) give the witness an opportunity to comment on the person's
15
presence.
16
(4) To avoid doubt, a person is still entitled to be present during all or
17
part of the hearing even if:
18
(a) the National Integrity Commissioner fails to comply with
19
subsection (3); or
20
(b) a witness comments adversely on the person's presence
21
under paragraph (3)(e).
22
Offence
23
(5) A person commits an offence if:
24
(a) the person is present while evidence is being given in private
25
at a hearing; and
26
(b) the person is none of the following:
27
(i) the person giving evidence;
28
(ii) a person whom the National Integrity Commissioner
29
must, under subsection (2), allow to be present while the
30
evidence is being given;
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 56
No. , 2013
National Integrity Commission Bill 2013
57
(iii) a person who may be present at the hearing in
1
accordance with a determination under subsection (1).
2
Penalty: Imprisonment for 12 months.
3
Determination of who may be present not a legislative instrument
4
(6) If the determination of who may be present at a hearing is made in
5
writing, the determination is not a legislative instrument.
6
Subdivision C--Taking evidence at hearing
7
56 Evidence on oath or by affirmation
8
(1) At a hearing, the National Integrity Commissioner may:
9
(a) require a witness to either take an oath or make an
10
affirmation; and
11
(b) administer an oath or affirmation to the witness.
12
Note 1:
Failure to take an oath or make an affirmation is an offence (see
13
section 62).
14
Note 2:
This means that a hearing is a judicial proceeding for the purposes of
15
Part III of the Crimes Act 1914, which creates various offences in
16
relation to judicial proceedings.
17
(2) The National Integrity Commissioner may administer an oath or
18
affirmation to a person appearing as a witness in another country,
19
but must do so in accordance with:
20
(a) any provision of the arrangements made between Australia
21
and that other country, as referred to in section 53; and
22
(b) the laws of that other country.
23
(3) The oath or affirmation is an oath or affirmation that the evidence
24
the person will give will be true.
25
(4) The National Integrity Commissioner may allow a person attending
26
a hearing who has been sworn, or who has made an affirmation, to
27
give evidence by tendering a written statement and verifying it by
28
oath or affirmation.
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 57
58
National Integrity Commission Bill 2013
No. , 2013
57 Examination and cross-examination of witnesses
1
At a hearing, the following persons may, so far as the National
2
Integrity Commissioner thinks appropriate, examine or
3
cross-examine any witness on any matter that the National
4
Integrity Commissioner considers relevant:
5
(a) counsel assisting the National Integrity Commissioner
6
generally or in relation to the investigation or public inquiry
7
to which the hearing relates;
8
(b) a person summoned, or otherwise authorised, to appear
9
before the National Integrity Commissioner;
10
(c) any legal practitioner representing a person at the hearing.
11
58 Giving evidence in private
12
Certain evidence must be given in private
13
(1) A person giving evidence at a hearing held in public must give
14
particular evidence in private if the evidence:
15
(a) would disclose one of the following:
16
(i) legal advice given to a minister or a Commonwealth
17
agency;
18
(ii) a communication between an officer of a
19
Commonwealth agency and another person or body,
20
being a communication protected against disclosure by
21
legal professional privilege; or
22
(b) would breach a secrecy provision other than:
23
(i) a taxation secrecy provision; or
24
(ii) a law enforcement secrecy provision.
25
Person may request that certain evidence be given in private
26
(2) A person giving evidence at a hearing held in public may request
27
that he or she give particular evidence in private on the grounds
28
that:
29
(a) the evidence relates to the profits or financial position of any
30
person; and
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 59
No. , 2013
National Integrity Commission Bill 2013
59
(b) the taking of evidence in public would be unfairly prejudicial
1
to the interests of the person referred to in paragraph (a).
2
(3) The National Integrity Commissioner may, if he or she considers it
3
appropriate, allow the evidence to be given in private.
4
59 Directions in relation to confidentiality
5
Prohibition or limitation on publication
6
(1) The National Integrity Commissioner may direct that:
7
(a) particular evidence given at a hearing; or
8
(b) the contents of a particular document, or a description of any
9
thing, produced to the National Integrity Commissioner at the
10
hearing; or
11
(c) particular information that might enable a person who has
12
given evidence at the hearing to be identified; or
13
(d) the fact that a particular person has given or may be about to
14
give evidence at the hearing;
15
must not be published, or must not be published except in such
16
manner, and to such persons, as the National Integrity
17
Commissioner specifies.
18
Note:
Failure to comply with a direction is an offence (see subsection (6)).
19
(2) If the hearing is held in private, the National Integrity
20
Commissioner must give a direction under subsection (1) if the
21
National Integrity Commissioner is satisfied that the failure to give
22
such a direction might prejudice:
23
(a) a person's safety or reputation; or
24
(b) the fair trial of a person who has been, or may be, charged
25
with an offence.
26
(3) The National Integrity Commissioner may vary or revoke a
27
direction in writing. However, the National Integrity
28
Commissioner must not vary or revoke a direction if the National
29
Integrity Commissioner is satisfied that doing so might prejudice:
30
(a) a person's safety or reputation; or
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 59
60
National Integrity Commission Bill 2013
No. , 2013
(b) the fair trial of a person who has been, or may be, charged
1
with an offence.
2
Court certificate in relation to evidence in respect of which a
3
direction has been given
4
(4) If:
5
(a) a person has been charged with an offence before a federal
6
court or a court of a State or Territory; and
7
(b) the court considers that it may be desirable in the interests of
8
justice that particular evidence given at a hearing, in respect
9
of which the National Integrity Commissioner has given a
10
direction under subsection (1), be made available to the
11
person or to a legal practitioner representing the person;
12
the court may give to the National Integrity Commissioner a
13
certificate to that effect. If the court does so, the National Integrity
14
Commissioner must make the evidence available to the court.
15
(5) If:
16
(a) the National Integrity Commissioner makes evidence
17
available to a court under subsection (4); and
18
(b) the court, after examining the evidence, is satisfied that the
19
interests of justice so require;
20
the court may make the evidence available to the person charged
21
with the offence concerned or to a legal practitioner representing
22
the person.
23
Offence
24
(6) A person commits an offence if:
25
(a) the person is given a direction by the National Integrity
26
Commissioner under subsection (1); and
27
(b) the person contravenes the direction.
28
Penalty: Imprisonment for 12 months.
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 60
No. , 2013
National Integrity Commission Bill 2013
61
Direction is not a legislative instrument
1
(7) A direction given to a person under subsection (1) is not a
2
legislative instrument.
3
Subdivision D--Prohibitions against disclosing information
4
about a summons
5
60 Disclosure of summons may be prohibited
6
Application
7
(1) This section applies if:
8
(a) a summons is served on a person (the person served) under
9
section 52 to attend a hearing; and
10
(b) the hearing is to be held in private.
11
Notation prohibiting disclosure of information about summons
12
(2) The National Integrity Commissioner may include a notation in the
13
summons to the effect that disclosure of information about:
14
(a) the summons; or
15
(b) any official matter connected with the summons;
16
is prohibited except in the circumstances (if any) specified in the
17
notation.
18
(3) The National Integrity Commissioner must include a notation in
19
the summons if the National Integrity Commissioner is satisfied
20
that failure to do so would reasonably be expected to prejudice:
21
(a) a person's safety or reputation; or
22
(b) the fair trial of a person who has been, or may be, charged
23
with an offence; or
24
(c) the investigation to which the hearing relates or another
25
corruption investigation; or
26
(d) any action taken as a result of an investigation referred to in
27
paragraph (c).
28
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 60
62
National Integrity Commission Bill 2013
No. , 2013
(4) The National Integrity Commissioner may include a notation in the
1
summons if the National Integrity Commissioner is satisfied that:
2
(a) failure to do so might prejudice:
3
(i) a person's safety or reputation; or
4
(ii) the fair trial of a person who has been, or may be,
5
charged with an offence; or
6
(iii) the investigation to which the hearing relates or another
7
corruption investigation; or
8
(iv) any action taken as a result of an investigation referred
9
to in subparagraph (iii); or
10
(b) failure to do so might otherwise be contrary to the public
11
interest.
12
(5) The National Integrity Commissioner must not include a notation
13
in the summons in any other case.
14
Written statement to accompany notation
15
(6) If a notation is included in the summons, it must be accompanied
16
by a written statement setting out the rights and obligations
17
conferred or imposed by section 61 on the person served.
18
Cancellation of notation
19
(7) A notation included in the summons is cancelled by this subsection
20
if:
21
(a) the National Integrity Commissioner concludes the
22
investigation to which the hearing relates; and
23
(b) any criminal proceedings or civil penalty proceedings
24
resulting from the investigation are commenced.
25
(8) If a notation is cancelled by subsection (7), the National Integrity
26
Commissioner must advise the person served, in writing, of the
27
cancellation.
28
Relationship of notation with Privacy Act 1988
29
(9) If:
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 61
No. , 2013
National Integrity Commission Bill 2013
63
(a) a notation has been included in the summons in relation to
1
the disclosure of information about the summons or any
2
official matter connected with the summons; and
3
(b) the notation has not been cancelled; and
4
(c) apart from this subsection, a credit reporting agency (within
5
the meaning of section 11A of the Privacy Act 1988) would
6
be required, under subsection 18K(5) of the Privacy Act
7
1988, to make a note about the disclosure of the information;
8
such a note must not be made until the notation is cancelled.
9
61 Offences of disclosure
10
(1) A person commits an offence if:
11
(a) the person is served with a summons under section 52; and
12
(b) the summons includes a notation under section 60; and
13
(c) the person discloses the existence of, or any information
14
about:
15
(i) the summons; or
16
(ii) any official matter connected with the summons; and
17
(d) when the disclosure is made:
18
(i) the notation has not been cancelled by subsection 60(7);
19
and
20
(ii) the period of 5 years after the summons is served under
21
section 52 has not ended.
22
Penalty: Imprisonment for 12 months.
23
(2) In proceedings for an offence against subsection (1), it is a defence
24
if the person makes the disclosure:
25
(a) in the circumstances, if any, permitted by the terms of the
26
notation; or
27
(b) to a legal practitioner for the purpose of obtaining legal
28
advice or representation in relation to the summons; or
29
(c) to a legal aid officer for the purpose of obtaining assistance
30
under section 74 in relation to the summons; or
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 61
64
National Integrity Commission Bill 2013
No. , 2013
(d) if the person is a body corporate--to an officer or agent of
1
the body corporate for the purpose of ensuring compliance
2
with the summons.
3
Note:
A defendant bears an evidential burden in relation to the matters in
4
subsection (2) (see subsection 13.3(3) of the Criminal Code).
5
(3) A person commits an offence if:
6
(a) a disclosure is made to the person about:
7
(i) a summons under section 52 that includes a notation
8
under section 60; or
9
(ii) any official matter connected with a summons under
10
section 52 that includes a notation under section 60; and
11
(b) the disclosure is permitted under subsection (2) or (4)
12
because the person is a person of a particular kind; and
13
(c) while the person is a person of that kind, the person discloses
14
the existence of, or any information about:
15
(i) the summons; or
16
(ii) any official matter connected with the summons; and
17
(d) when the disclosure by the person is made:
18
(i) the notation has not been cancelled by subsection 60(7);
19
and
20
(ii) the period of 5 years after the summons is served under
21
section 52 has not ended.
22
Penalty: Imprisonment for 12 months.
23
(4) In proceedings for an offence against subsection (3), it is a defence
24
if the person discloses the information:
25
(a) if the person is an officer or agent of a body corporate
26
referred to in paragraph (2)(d):
27
(i) to another officer or agent of the body corporate for the
28
purpose of ensuring compliance with the summons; or
29
(ii) to a legal practitioner for the purpose of obtaining legal
30
advice or representation in relation to the summons; or
31
(iii) to a legal aid officer for the purpose of obtaining
32
assistance under section 74 in relation to the summons;
33
or
34
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 61
No. , 2013
National Integrity Commission Bill 2013
65
(b) if the person is a legal practitioner--for the purpose of giving
1
legal advice, making representations, or obtaining assistance
2
under section 74, in relation to the summons; or
3
(c) if the person is a legal aid officer--for the purpose of
4
obtaining legal advice or representation in relation to the
5
summons.
6
Note:
A defendant bears an evidential burden in relation to the matters in
7
subsection (4) (see subsection 13.3(3) of the Criminal Code).
8
(5) A person commits an offence if:
9
(a) a disclosure is made to the person about:
10
(i) a summons under section 52 that includes a notation
11
under section 60; or
12
(ii) any official matter connected with a summons under
13
section 52 that includes a notation under section 60; and
14
(b) the disclosure is permitted under subsection (2) or (4)
15
because the person is a person of a particular kind; and
16
(c) when the person is no longer a person of that kind, the
17
person:
18
(i) makes a record of the summons; or
19
(ii) discloses the existence of the summons; or
20
(iii) discloses any information about the summons or the
21
existence of it; and
22
(d) when the record, or disclosure, is made by the person:
23
(i) the notation has not been cancelled by subsection 60(7);
24
and
25
(ii) the period of 5 years after the summons is served under
26
section 52 has not ended.
27
Penalty: Imprisonment for 12 months.
28
(6) A reference in this section to disclosing something's existence
29
includes disclosing information from which a person could
30
reasonably be expected to infer its existence.
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 62
66
National Integrity Commission Bill 2013
No. , 2013
Subdivision E--Offences in relation to hearings
1
62 Offences
2
Failure to attend hearing
3
(1) A person commits an offence if:
4
(a) the person is served with a summons to attend a hearing; and
5
(b) the person:
6
(i) fails to attend as required by the summons; or
7
(ii) fails to appear and report from day to day unless
8
excused or released from further attendance by the
9
National Integrity Commissioner.
10
Penalty: Imprisonment for 12 months.
11
Note:
A defendant bears an evidential burden in relation to the excuse or
12
release from further attendance referred to in subparagraph (b)(ii) (see
13
subsection 13.3(3) of the Criminal Code).
14
Failure to swear an oath, make an affirmation or answer a
15
question
16
(2) A person commits an offence if:
17
(a) the person is served with a summons to attend a hearing; and
18
(b) the person fails:
19
(i) to be sworn or to make an affirmation at the hearing; or
20
(ii) to answer a question at the hearing that the National
21
Integrity Commissioner requires the person to answer.
22
Penalty: Imprisonment for 2 years.
23
Note 1:
A person may refuse to answer a question on the ground of legal
24
professional privilege (see section 64).
25
Note 2:
This subsection is not subject to the privilege against
26
self-incrimination but there are limits on the uses to which the
27
evidence the person gives may be put (see section 67).
28
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 63
No. , 2013
National Integrity Commission Bill 2013
67
Failure to produce a document or thing
1
(3) A person commits an offence if:
2
(a) the person is served with a summons to produce a document
3
or thing specified in the summons; and
4
(b) the person fails to produce the document or thing that the
5
person was required to produce.
6
Penalty for a contravention of this subsection: Imprisonment for 2
7
years.
8
Note 1:
A person may refuse to produce a document or thing on the ground of
9
legal professional privilege (see section 65).
10
Note 2:
This subsection is not subject to the privilege against
11
self-incrimination but there are limits on the uses to which the
12
evidence the person gives may be put (see section 67).
13
63 Contempt
14
(1) A person commits an offence if:
15
(a) the person insults, disturbs or uses insulting language
16
towards another person; and
17
(b) the person knows that:
18
(i) the other person is the National Integrity Commissioner;
19
and
20
(ii) the other person is holding a hearing in the performance
21
of his or her functions, or the exercise of his or her
22
powers, as National Integrity Commissioner.
23
Penalty: Imprisonment for 6 months.
24
(2) A person commits an offence if:
25
(a) the person creates a disturbance, or takes part in creating or
26
continuing a disturbance, in or near a place; and
27
(b) the person knows that the place is a place where a hearing is
28
being held for the purpose of:
29
(i) investigating a corruption issue; or
30
(ii) conducting a public inquiry.
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 64
68
National Integrity Commission Bill 2013
No. , 2013
Penalty: Imprisonment for 6 months.
1
(3) A person commits an offence if:
2
(a) the person interrupts a hearing that is being held for the
3
purpose of:
4
(i) investigating a corruption issue; or
5
(ii) conducting a public inquiry; or
6
(b) the person does any other act or thing that would, if the
7
hearing were held in a court of record, constitute a contempt
8
of that court.
9
Penalty for a contravention of this subsection: Imprisonment for 6
10
months.
11
64 Legal professional privilege--answer to question
12
(1) A person must not refuse or fail to answer a question at a hearing
13
that the National Integrity Commissioner requires the person to
14
answer on the ground that the answer (or the relevant part of the
15
answer) would disclose a communication that is subject to legal
16
professional privilege, unless a claim to that effect is made at the
17
hearing to the National Integrity Commissioner.
18
Note:
See also paragraph 67(5)(c).
19
(2) If such a claim is made, the National Integrity Commissioner may
20
decide whether to accept or reject the claim.
21
(3) The National Integrity Commissioner may, by written notice
22
served (as prescribed) on the person, require the person to answer
23
the question for consideration (by the National Integrity
24
Commissioner or a person authorised by the National Integrity
25
Commissioner) for the purpose of deciding whether to accept or
26
reject the claim.
27
(4) If the answer has been provided for consideration and the National
28
Integrity Commissioner decides to accept the claim, the National
29
Integrity Commissioner must:
30
(a) expunge the answer from any record of the hearing made
31
under subsection 51(6); and
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 65
No. , 2013
National Integrity Commission Bill 2013
69
(b) disregard, for the purposes of any report or decision that the
1
National Integrity Commissioner makes:
2
(i) if the claim is accepted in relation to the all of the
3
answer--all of the answer; or
4
(ii) if the claim is accepted in relation to a part of the
5
answer--that part of the answer.
6
(5) If the answer has been provided for consideration and the National
7
Integrity Commissioner decides to reject the claim, the National
8
Integrity Commissioner may use the answer for the purposes of the
9
hearing.
10
(6) Without limiting subsections (3) and (5), the powers of the
11
National Integrity Commissioner include, by force of this
12
subsection, the power to decide whether to accept or reject the
13
claim.
14
65 Legal professional privilege--documents or things
15
(1) A person must not refuse or fail to produce a document or thing to
16
the National Integrity Commissioner at a hearing on the ground
17
that the document or thing is subject to legal professional privilege,
18
unless:
19
(a) a court has found the document or thing (or the relevant part
20
of the document or thing) to be subject to legal professional
21
privilege; or
22
(b) a claim that the document or thing (or the relevant part of the
23
document or thing) is subject to legal professional privilege
24
is made to the National Integrity Commissioner:
25
(i) within the time that, in the summons, the National
26
Integrity Commissioner allowed for its production; or
27
(ii) within such further time as the National Integrity
28
Commissioner allows for production of the document or
29
thing.
30
Note:
See also paragraph 67(5)(c).
31
(2) If such a claim is made, the National Integrity Commissioner may
32
decide whether to accept or reject the claim.
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 66
70
National Integrity Commission Bill 2013
No. , 2013
(3) The National Integrity Commissioner may, by written notice
1
served (as prescribed) on the person, require the person to produce
2
the document or thing for inspection (by the National Integrity
3
Commissioner or a person authorised by the National Integrity
4
Commissioner) for the purpose of deciding whether to accept or
5
reject the claim.
6
(4) If the document or thing has been produced for inspection and the
7
National Integrity Commissioner decides to accept the claim, the
8
National Integrity Commissioner must:
9
(a) return the document or thing to the person; and
10
(b) disregard, for the purposes of any report or decision that the
11
National Integrity Commissioner makes:
12
(i) if the claim is accepted in relation to the whole
13
document or thing--the whole document or thing; or
14
(ii) if the claim is accepted in relation to a part of the
15
document or thing--that part of the document or thing.
16
(5) If the document or thing has been produced for inspection and the
17
National Integrity Commissioner decides to reject the claim, the
18
National Integrity Commissioner may use the document or thing
19
for the purposes of the hearing.
20
(6) Without limiting subsections (3) and (5), the powers of the
21
National Integrity Commissioner include, by force of this
22
subsection, the power to decide whether to accept or reject the
23
claim.
24
66 Offences relating to claims for legal professional privilege
25
(1) A person commits an offence if:
26
(a) the person had been served with a summons:
27
(i) to attend a hearing and the person fails to answer a
28
question at the hearing that the National Integrity
29
Commissioner requires the person to answer; or
30
(ii) to produce a document or thing specified in the
31
summons and the person fails to produce the document
32
or thing that the person was required to produce; and
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 66
No. , 2013
National Integrity Commission Bill 2013
71
(b) the National Integrity Commissioner has decided under
1
subsection 64(2) or 65(2) to reject a claim that the answer,
2
document or thing (or the relevant part of the answer,
3
document or thing) is subject to legal professional privilege;
4
and
5
(c) the person refuses or fails to answer the question or produce
6
the document or thing as the National Integrity
7
Commissioner requires, after that decision, under
8
subsection 52(7).
9
Penalty: Imprisonment for 6 months.
10
(2) A person commits an offence if the person refuses or fails:
11
(a) to answer a question that the person was required under
12
subsection 64(3) to answer; or
13
(b) to produce a document or thing that the person was required
14
under subsection 65(3) to produce for inspection.
15
Penalty: Imprisonment for 6 months.
16
(3) Subsections (1) and (2) are offences of strict liability.
17
Note:
For strict liability, see section 6.1 of the Criminal Code.
18
(4) Subsections (1) and (2) do not apply if the person has a reasonable
19
excuse.
20
(5) It is not a reasonable excuse for the purposes of subsection (4) for a
21
person to refuse or fail to produce a document or thing that the
22
document or thing is subject to legal professional privilege, unless
23
a court has found the document or thing to be subject to legal
24
professional privilege.
25
(6) It is a defence to a prosecution for an offence against this section
26
constituted by a refusal or failure to answer a question or to
27
produce a document or thing if the answer, document or thing was
28
not relevant to the corruption issue or public inquiry to which the
29
hearing related.
30
Note:
A defendant bears an evidential burden in relation to the matters in
31
subsections (4) and (6) (see subsection 13.3(3) of the Criminal Code).
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 67
72
National Integrity Commission Bill 2013
No. , 2013
67 Self-incrimination etc.
1
Self-incrimination
2
(1) A person is not excused from:
3
(a) answering a question; or
4
(b) producing a document or thing;
5
when summoned, under section 52, to attend a hearing to do so on
6
the ground that doing so would tend to incriminate the person or
7
expose the person to a penalty.
8
Use indemnity
9
(2) Subsection (4) applies if:
10
(a) the person:
11
(i) answers the question (whether orally or in writing); or
12
(ii) produces the document or thing;
13
and, before doing so, claims that answering the question, or
14
producing the document or thing, might tend to incriminate
15
the person or expose the person to a penalty; or
16
(b) the person answers the question in writing and claims, in a
17
written statement accompanying the answer, that answering
18
the question might tend to incriminate the person or expose
19
the person to a penalty; or
20
(c) the person produces the document or thing and claims, in a
21
written statement accompanying the document or thing, that
22
producing the document or thing might tend to incriminate
23
the person or expose the person to a penalty.
24
(3) Subsection (4) does not apply to the production of a document that
25
is, or forms part of, a record of an existing or past business.
26
(4) Neither of the following:
27
(a) the answer given;
28
(b) the document or thing produced;
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 67
No. , 2013
National Integrity Commission Bill 2013
73
is admissible in evidence against the person in criminal
1
proceedings, or any other proceedings for the imposition or
2
recovery of a penalty, other than:
3
(c) proceedings for an offence against section 62; or
4
(d) confiscation proceedings; or
5
(e) proceedings for an offence against section 137.1 or 137.2 of
6
the Criminal Code (which deals with false or misleading
7
information or documents) that relates to this Act; or
8
(f) proceedings for an offence against section 149.1 of the
9
Criminal Code (which deals with obstruction of
10
Commonwealth public officials) that relates to this Act; or
11
(g) disciplinary proceedings against the person if the person is an
12
employee of a Commonwealth agency.
13
Public interest grounds
14
(5) A person is not excused from:
15
(a) answering a question; or
16
(b) producing a document or thing;
17
when summoned, under section 52, to attend a hearing to do so on
18
the ground that doing so:
19
(c) would disclose one of the following:
20
(i) legal advice given to a minister or a Commonwealth
21
agency;
22
(ii) a communication between an officer of a
23
Commonwealth agency and another person or body,
24
being a communication protected against disclosure by
25
legal professional privilege; or
26
(d) would breach a secrecy provision other than:
27
(i) a taxation secrecy provision; or
28
(ii) a law enforcement secrecy provision; or
29
(e) would be otherwise contrary to the public interest.
30
(6) The fact that a person is not excused under subsection (5) from:
31
(a) answering a question; or
32
(b) producing a document or thing;
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 68
74
National Integrity Commission Bill 2013
No. , 2013
does not otherwise affect a claim of legal professional privilege
1
that anyone may make in relation to that answer, document or
2
thing.
3
(7) A person who is served with a summons under section 52 does not
4
commit an offence, and is not liable to any penalty, under the
5
provisions of any other enactment (other than a taxation secrecy
6
provision or a law enforcement secrecy provision) because the
7
person:
8
(a) answers a question at a hearing that the National Integrity
9
Commissioner requires the person to answer; or
10
(b) produces a document or thing that the person is required to
11
produce in accordance with the summons.
12
Subdivision F--Court orders for delivery of witness's passport
13
and witness's arrest
14
68 National Integrity Commissioner may apply for order that
15
witness deliver his or her passport
16
(1) The National Integrity Commissioner may apply to a Judge of the
17
Federal Court for an order that a person deliver his or her passport
18
to the National Integrity Commissioner if:
19
(a) either of the following apply:
20
(i) a summons under section 52 has been issued requiring
21
the person to attend a hearing (whether or not the
22
summons has been served) in relation to a corruption
23
investigation or public inquiry;
24
(ii) the person has appeared at a hearing in relation to a
25
corruption investigation or public inquiry to give
26
evidence or to produce documents or things; and
27
(b) there are reasonable grounds for believing that the person
28
may be able:
29
(i) to give evidence, or further evidence, that is relevant to
30
the investigation or public inquiry; or
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 69
No. , 2013
National Integrity Commission Bill 2013
75
(ii) to produce documents or things, or further documents or
1
things, that are relevant to the investigation or public
2
inquiry; and
3
(c) there are reasonable grounds for suspecting that the person:
4
(i) intends to leave Australia; and
5
(ii) has in his or her possession, custody or control a
6
passport issued to him or her.
7
(2) The National Integrity Commissioner must give the Judge
8
information on oath, or by affirmation, in support of the grounds
9
for the application.
10
69 Court orders
11
Court order for witness to appear before the Court
12
(1) If a Judge of the Federal Court, sitting in Chambers, is satisfied, on
13
the evidence, that the requirements of paragraphs 68(1)(a), (b) and
14
(c) are met, the Judge may make an order:
15
(a) requiring the person to appear before the Federal Court on a
16
date, and at a time and place, specified in the order; and
17
(b) requesting the person to show cause why he or she should not
18
be ordered to deliver the passport to the National Integrity
19
Commissioner.
20
Offence
21
(2) A person commits an offence if:
22
(a) the person leaves Australia; and
23
(b) an order has been made in relation to the person under
24
subsection (1); and
25
(c) a copy of the order has been served on the person.
26
Penalty: Imprisonment for 2 years.
27
(3) In proceedings for an offence against subsection (2), it is a defence
28
if:
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 69
76
National Integrity Commission Bill 2013
No. , 2013
(a) the person has appeared before the Federal Court as required
1
by the order referred to in paragraph (2)(b); and
2
(b) if the Court makes an order in relation to the person under
3
paragraph (4)(a)--the person has complied with the terms of
4
the order and any passport delivered to the National Integrity
5
Commissioner in accordance with the order has been
6
returned to the person.
7
Court order that witness deliver passport to National Integrity
8
Commissioner
9
(4) If the person appears before the Federal Court as required by the
10
order made under subsection (1), the Court may, if it thinks fit,
11
make an order:
12
(a) requiring the person to deliver to the National Integrity
13
Commissioner any passport:
14
(i) issued to him or her; and
15
(ii) in his or her possession, custody or control; and
16
(b) authorising the National Integrity Commissioner to retain the
17
passport until the end of the period (not exceeding one
18
month) that is specified in the order.
19
Extension of period that National Integrity Commissioner may
20
retain passport
21
(5) The Federal Court may, upon application by the National Integrity
22
Commissioner, extend for a further period (of not more than one
23
month), or further periods (of not more than one month in each
24
case), the period for which the National Integrity Commissioner is
25
authorised to retain a passport. However, the total period for which
26
the National Integrity Commissioner is authorised to retain the
27
passport must not exceed 3 months.
28
Revocation of court order
29
(6) If the Federal Court makes an order authorising the National
30
Integrity Commissioner to retain a passport issued to a person, the
31
person may apply to the Federal Court for the order to be revoked.
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 70
No. , 2013
National Integrity Commission Bill 2013
77
(7) If the Federal Court revokes the order, the National Integrity
1
Commissioner must return the passport to the person immediately.
2
Jurisdiction of the Federal Court
3
(8) The Federal Court has jurisdiction with respect to matters arising
4
under this section.
5
Definition
6
(9) In this section:
7
Australia includes the external Territories.
8
70 Applying for a warrant to arrest witness
9
(1) An authorised officer may apply to a Judge of the Federal Court of
10
Australia, or of the Supreme Court of a State or Territory, for a
11
warrant to arrest a person if the authorised officer has reasonable
12
grounds to believe that:
13
(a) the person:
14
(i) has been ordered to deliver his or her passport to the
15
National Integrity Commissioner (whether or not the
16
person has complied with the order); and
17
(ii) is likely to leave Australia for the purpose of avoiding
18
giving evidence at a hearing before the National
19
Integrity Commissioner; or
20
(b) the person has been served with a summons under section 52
21
and:
22
(i) has absconded or is likely to abscond; or
23
(ii) is otherwise attempting, or likely to attempt, to evade
24
service of the summons; or
25
(c) the person has committed an offence under subsection 62(1)
26
or is likely to do so.
27
(2) The authorised officer must give the Judge information on oath, or
28
by affirmation, in support of the grounds for the application.
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 71
78
National Integrity Commission Bill 2013
No. , 2013
71 Warrant for arrest
1
Issue of warrant
2
(1) If a Judge, sitting in Chambers, is satisfied, on the evidence, that
3
there are reasonable grounds for believing that paragraph 70(1)(a),
4
(b) or (c) is met, the Judge may issue a warrant authorising the
5
authorised officer to arrest the person.
6
Execution of warrant
7
(2) For the purpose of executing a warrant, if the authorised officer
8
executing the warrant (or an assisting officer) believes on
9
reasonable grounds that the person is on any premises, the
10
authorised officer (or the assisting officer) may break into and
11
enter those premises.
12
(3) However, the authorised officer executing the warrant (or an
13
assisting officer) must not enter a dwelling house at any time
14
during the period commencing at 9 pm on a day and ending at 6 am
15
on the following day unless the authorised officer (or the assisting
16
officer) believes on reasonable grounds that it would not be
17
practicable to arrest the person, either at the dwelling house or
18
elsewhere, at another time.
19
(4) The authorised officer executing the warrant (or an assisting
20
officer) must not, in the course of arresting the person, use more
21
force, or subject the other person to greater indignity, than is
22
necessary and reasonable:
23
(a) to make the arrest; or
24
(b) to prevent the escape of the person after the arrest.
25
(5) The warrant may be executed even if the authorised officer does
26
not have a copy of the warrant in his or her possession at the time it
27
is executed.
28
(6) The authorised officer executing the warrant (or an assisting officer
29
who arrests the person) must inform the person, at the time of the
30
arrest, of the reason for which he or she is being arrested.
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 72
No. , 2013
National Integrity Commission Bill 2013
79
(7) It is sufficient if the person is informed of the substance of the
1
reason and it is not necessary that this be done in language of a
2
precise or technical nature.
3
(8) Subsection (6) does not apply to the arrest of the person if:
4
(a) the person should, in the circumstances, know the substance
5
of the reason for which he or she is being arrested; or
6
(b) the person's actions make it impracticable for the authorised
7
officer executing the warrant (or an assisting officer making
8
the arrest) to inform the person of the reason for which he or
9
she is being arrested.
10
(9) Nothing in this section prevents the arrest of a person in
11
accordance with any other law.
12
Definitions
13
(10) In this section:
14
dwelling house includes a conveyance, and a room in a hotel,
15
motel, boarding house or club, in which people ordinarily retire for
16
the night.
17
Judge means:
18
(a) a Judge of the Federal Court of Australia; or
19
(b) a Judge of the Supreme Court of a State or Territory.
20
72 Powers of Judge in relation to person arrested
21
(1) A person arrested under a warrant issued under section 71 must be
22
brought, as soon as practicable, before a Judge.
23
(2) The Judge may:
24
(a) grant the person bail:
25
(i) on such security as the Judge thinks fit; and
26
(ii) on such conditions as the Judge thinks are necessary to
27
ensure that the person appears as a witness at a hearing
28
before the National Integrity Commissioner; or
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Conducting hearings
Section 73
80
National Integrity Commission Bill 2013
No. , 2013
(b) order that the person continue to be detained for the purpose
1
of ensuring that the person appears as a witness at a hearing
2
before the National Integrity Commissioner; or
3
(c) order that the person be released.
4
(3) A person who is detained under paragraph (2)(b) must be brought
5
before a Judge:
6
(a) within 14 days after he or she was brought, or last brought,
7
before a Judge; or
8
(b) within such shorter or longer time as a Judge fixed on the
9
person's last previous appearance before a Judge;
10
and the Judge may exercise any of the powers under subsection (2).
11
(4) In this section:
12
Judge means:
13
(a) a Judge of the Federal Court of Australia; or
14
(b) a Judge of the Supreme Court of a State or Territory.
15
Subdivision G--Miscellaneous
16
73 National Integrity Commissioner may retain documents or things
17
(1) If a document or thing is produced to the National Integrity
18
Commissioner in accordance with a summons under section 52, the
19
National Integrity Commissioner:
20
(a) may take possession of, and may make copies of, the
21
document or thing, or take extracts from the document; and
22
(b) may retain possession of the document or thing for such
23
period as is necessary for the purposes of the investigation or
24
public inquiry to which the document or thing relates.
25
(2) While the National Integrity Commissioner retains the document or
26
thing, he or she must allow a person who would otherwise be
27
entitled to inspect the document or view the thing to do so at the
28
times that the person would ordinarily be able to do so.
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 74
No. , 2013
National Integrity Commission Bill 2013
81
74 Person may apply for legal and financial assistance
1
(1) A person who is summoned under section 52 to attend a hearing
2
before the National Integrity Commissioner may apply to the
3
Attorney-General for assistance in respect of:
4
(a) his or her attendance at the hearing; or
5
(b) his or her representation at the hearing by a legal practitioner.
6
Note 1:
A person summoned to appear as a witness at a hearing is entitled to
7
be paid allowances for travelling and other expenses prescribed by
8
regulations (see subsection 52(5)).
9
Note 2:
A person may also apply for assistance in respect of an application to
10
the Federal Court or the Federal Magistrates Court under the
11
Administrative Decisions (Judicial Review) Act 1977 for an order of
12
review in respect of a matter arising under this Act (see section 175).
13
(2) A person who:
14
(a) is not giving evidence at a hearing before the National
15
Integrity Commissioner; and
16
(b) is being represented at the hearing by a legal practitioner with
17
the consent of the National Integrity Commissioner;
18
may apply to the Attorney-General for assistance in respect of that
19
representation.
20
Note:
A person may also apply for assistance in respect of an application to
21
the Federal Court or the Federal Magistrates Court under the
22
Administrative Decisions (Judicial Review) Act 1977 for an order of
23
review in respect of a matter arising under this Act (see section 175).
24
(3) If a person applies under subsection (1) or (2), the
25
Attorney-General may, if he or she is satisfied that:
26
(a) it would involve substantial hardship to the person to refuse
27
the application; or
28
(b) the circumstances of the case are of such a special nature that
29
the application should be granted;
30
authorise the Commonwealth to provide the person with legal or
31
financial assistance, determined by the Attorney-General, in
32
respect of:
33
(c) the person's attendance at the hearing; or
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Conducting hearings
Section 75
82
National Integrity Commission Bill 2013
No. , 2013
(d) the person's representation at the hearing by a legal
1
practitioner.
2
(4) Legal or financial assistance may be given:
3
(a) unconditionally; or
4
(b) subject to such conditions as the Attorney-General
5
determines.
6
(5) An instrument that determines the conditions on which legal or
7
financial assistance may be given is not a legislative instrument.
8
75 Protection of National Integrity Commissioner etc.
9
(1) The National Integrity Commissioner has, in exercising his or her
10
power to hold a hearing, the same protection and immunity as a
11
Justice of the High Court.
12
(2) A legal practitioner assisting the National Integrity Commissioner,
13
or representing a person at a hearing, has the same protection and
14
immunity as a barrister appearing for a party in proceedings in the
15
High Court.
16
(3) To avoid doubt, this section does not limit the powers of the
17
Ombudsman under the Ombudsman Act 1976 to investigate issues
18
of administrative practice in relation to a hearing under this
19
Division.
20
(4) A reference in this section to the National Integrity Commissioner
21
includes a reference to an Assistant National Integrity
22
Commissioner who exercises the power to hold a hearing in
23
relation to a corruption issue under an authorisation under
24
section 155.
25
76 Protection of witnesses etc.
26
(1) A person who:
27
(a) gives evidence at a hearing conducted under this Act; or
28
(b) produces a document or thing at a hearing conducted under
29
this Act; or
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 3
Section 76
No. , 2013
National Integrity Commission Bill 2013
83
(c) makes a submission to the National Integrity Commissioner
1
in relation to a public inquiry;
2
has the same protection as a witness in proceedings in the High
3
Court.
4
(2) Subsection (3) applies if it appears to the National Integrity
5
Commissioner that, because a person:
6
(a) is to give evidence, or produce a document or thing, at a
7
hearing under this Act; or
8
(b) has given evidence, or produced a document or thing, at a
9
hearing under this Act; or
10
(c) is to make, or has made, a submission to the National
11
Integrity Commissioner in relation to a public inquiry;
12
either:
13
(d) the safety of the person or any other person may be
14
prejudiced; or
15
(e) the person or any other person may be subjected to
16
intimidation or harassment.
17
(3) The National Integrity Commissioner may make such
18
arrangements as are necessary:
19
(a) to protect the safety of any person mentioned in
20
paragraph (2)(d); or
21
(b) to protect any person mentioned in paragraph (2)(e) from
22
intimidation or harassment.
23
(4) For the purpose of subsection (3), the arrangements that the
24
National Integrity Commissioner may make include arrangements
25
with:
26
(a) members of the Australian Federal Police; or
27
(b) members of the police force of a State or Territory.
28
(5) This section does not affect the Witness Protection Act 1994.
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 77
84
National Integrity Commission Bill 2013
No. , 2013
Division 4--Search warrants
1
Subdivision A--Preliminary
2
77 Application to things under the control of a person
3
This Division applies to a person (the possessor) who has a thing
4
under his or her control in any place (whether for the use or benefit
5
of the possessor or another person), even if another person has the
6
actual possession or custody of the thing, as if the possessor has
7
possession of the thing.
8
Subdivision B--Applying for a search warrant
9
78 Authorised officer may apply for a search warrant
10
Application for warrant to search premises (investigation warrant)
11
(1) An authorised officer may apply to an issuing officer for an
12
investigation warrant to search premises if the authorised officer:
13
(a) has reasonable grounds for suspecting that there is, or there
14
will be within the next 72 hours, any evidential material on
15
the premises; and
16
(b) has reasonable grounds for believing that, if a person was
17
served with a summons to produce the evidential material,
18
the material might be concealed, lost, mutilated or destroyed.
19
Note:
In special circumstances and urgent cases, an application may be
20
made by telephone, fax, email or other electronic means (see
21
section 81).
22
Application for warrant to search premises (offence warrant)
23
(2) An authorised officer may apply to an issuing officer for an
24
offence warrant to search premises if the authorised officer has
25
reasonable grounds for suspecting that there is, or there will be
26
within the next 72 hours, any evidential material on the premises.
27
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 78
No. , 2013
National Integrity Commission Bill 2013
85
Note:
In special circumstances and urgent cases, an application may be
1
made by telephone, fax, email or other electronic means (see
2
section 81).
3
Application for a warrant to search person (investigation warrant)
4
(3) An authorised officer may apply to an issuing officer for an
5
investigation warrant to carry out an ordinary search or a frisk
6
search of a person if the authorised officer:
7
(a) has reasonable grounds for suspecting that the person has in
8
his or her possession, or will within the next 72 hours have in
9
his or her possession, any evidential material; and
10
(b) has reasonable grounds for believing that, if the person was
11
served with a summons to produce the evidential material,
12
the material might be concealed, lost, mutilated or destroyed.
13
Note:
In special circumstances and urgent cases, an application may be
14
made by telephone, fax, email or other electronic means (see
15
section 81).
16
Application for a warrant to search person (offence warrant)
17
(4) An authorised officer may apply to an issuing officer for an
18
offence warrant to carry out an ordinary search or a frisk search of
19
a person if the authorised officer has reasonable grounds for
20
suspecting that the person has in his or her possession, or will
21
within the next 72 hours have in his or her possession, any
22
evidential material.
23
Note:
In special circumstances and urgent cases, an application may be
24
made by telephone, fax, email or other electronic means (see
25
section 81).
26
Information in support of application
27
(5) An authorised officer must give the issuing officer information on
28
oath or by affirmation to support the grounds for an application
29
under subsection (1), (2), (3) or (4).
30
(6) If an authorised officer applying for a search warrant suspects that,
31
in executing the warrant, it will be necessary to use firearms, the
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 4 Search warrants
Section 79
86
National Integrity Commission Bill 2013
No. , 2013
authorised officer must state that suspicion, and the grounds for it,
1
in the information given under subsection (5).
2
(7) If the authorised officer applying for a search warrant (or another
3
authorised officer who will be an assisting officer in relation to the
4
search warrant) has, at any time previously, applied for a search
5
warrant under this Act or another Act in relation to the same person
6
or premises, the authorised officer must state particulars of those
7
applications, and their outcome, in the information given under
8
subsection (5).
9
Subdivision C--Issue of a search warrant
10
79 When search warrants may be issued
11
Issue of a warrant to search premises (investigation warrant)
12
(1) If:
13
(a) an authorised officer makes an application to an issuing
14
officer under subsection 78(1); and
15
(b) the issuing officer is satisfied, on the information given under
16
subsection 78(5), that:
17
(i) there are reasonable grounds for suspecting that there is,
18
or there will be within the next 72 hours, evidential
19
material on the premises in relation to which the
20
application is made; and
21
(ii) there are reasonable grounds for believing that, if a
22
person was served with a summons to produce the
23
evidential material, the material might be concealed,
24
lost, mutilated or destroyed;
25
the issuing officer may issue an investigation warrant authorising
26
the authorised officer to search the premises.
27
Issue of a warrant to search premises (offence warrant)
28
(2) If:
29
(a) an authorised officer makes an application to an issuing
30
officer under subsection 78(2); and
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 79
No. , 2013
National Integrity Commission Bill 2013
87
(b) the issuing officer is satisfied, on the information given under
1
subsection 78(5), that there are reasonable grounds for
2
suspecting that there is, or there will be within the next 72
3
hours, evidential material on the premises in relation to
4
which the application is made;
5
the issuing officer may issue an offence warrant authorising the
6
authorised officer to search the premises.
7
Issue of a warrant to search a person (investigation warrant)
8
(3) If:
9
(a) an authorised officer makes an application to an issuing
10
officer under subsection 78(3); and
11
(b) the issuing officer is satisfied, on the information given under
12
subsection 78(5), that:
13
(i) there are reasonable grounds for suspecting that the
14
person in relation to whom the application is made has
15
in his or her possession, or will within the next 72 hours
16
have in his or her possession, evidential material; and
17
(ii) there are reasonable grounds for believing that, if the
18
person was served with a summons to produce the
19
evidential material, the material might be concealed,
20
lost, mutilated or destroyed;
21
the issuing officer may issue an investigation warrant authorising
22
the authorised officer to carry out an ordinary search or a frisk
23
search of the person.
24
Issue of a warrant to search a person (offence warrant)
25
(4) If:
26
(a) an authorised officer makes an application to an issuing
27
officer under subsection 78(4); and
28
(b) the issuing officer is satisfied, on the information given under
29
subsection 78(5), that there are reasonable grounds for
30
suspecting that the person in relation to whom the application
31
is made has in his or her possession, or will within the next
32
72 hours have in his or her possession, evidential material;
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 4 Search warrants
Section 79
88
National Integrity Commission Bill 2013
No. , 2013
the issuing officer may issue an offence warrant authorising the
1
authorised officer to carry out an ordinary search or a frisk search
2
of the person.
3
Issue of a warrant by State/Territory issuing officers
4
(5) An issuing officer in a State or internal Territory may:
5
(a) issue a search warrant in relation to premises or a person in
6
that State or Territory; or
7
(b) issue a search warrant in relation to premises or a person in
8
an external Territory; or
9
(c) issue a search warrant in relation to premises or a person in
10
another State or internal Territory (including the Jervis Bay
11
Territory) if he or she is satisfied that there are special
12
circumstances that make the issue of the warrant appropriate;
13
or
14
(d) issue a search warrant in relation to a person wherever the
15
person is in Australia or in an external Territory if he or she
16
is satisfied that it is not possible to predict where the person
17
may be.
18
(6) An issuing officer in New South Wales or the Australian Capital
19
Territory may issue a search warrant in relation to premises or a
20
person in the Jervis Bay Territory.
21
(7) Subsections (5) and (6) do not apply if the issuing officer is:
22
(a) a Judge of the Federal Court of Australia; or
23
(b) a Federal Magistrate.
24
Issue of a warrant by issuing officers
25
(8) The function of issuing a search warrant is conferred on an issuing
26
officer in a personal capacity and not as a court or a member of a
27
court. The issuing officer need not accept the function conferred.
28
(9) An issuing officer performing a function of, or connected with,
29
issuing a search warrant has the same protection and immunity as
30
if he or she were performing that function as, or as a member of,
31
the court of which the issuing officer is a member.
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 80
No. , 2013
National Integrity Commission Bill 2013
89
80 Content of warrants
1
General contents of warrant
2
(1) If an issuing officer issues a search warrant under section 79, the
3
issuing officer is to state in the warrant:
4
(a) either:
5
(i) if the warrant is an investigation warrant--the
6
corruption issue or public inquiry to which the warrant
7
relates; or
8
(ii) if the warrant is an offence warrant--the offence to
9
which the warrant relates; and
10
(b) a description of the premises to which the warrant relates or
11
the name or a description of a person to whom it relates; and
12
(c) the kinds of evidential material that are to be searched for
13
under the warrant; and
14
(d) the name of the authorised officer who, unless he or she
15
inserts the name of another authorised officer in the warrant,
16
is to be responsible for executing the warrant; and
17
(e) the time at which the warrant expires; and
18
(f) whether the warrant may be executed at any time or only
19
during particular hours.
20
(2) The time stated in the warrant as the time at which the warrant
21
expires must be a time that is not later than the end of the seventh
22
day after the day on which the warrant is issued.
23
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
24
in the warrant must not be later than midnight on Monday in the
25
following week.
26
Additional matters for warrant in relation to premises
27
(3) If the search warrant relates to premises, the issuing officer is also
28
to state:
29
(a) that the warrant authorises the seizure of a thing (other than
30
evidential material of the kind referred to in paragraph (1)(c))
31
found at the premises in the course of the search that the
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 80
90
National Integrity Commission Bill 2013
No. , 2013
authorised officer or an assisting officer believes on
1
reasonable grounds to be:
2
(i) if the warrant is an investigation warrant--evidential
3
material in relation to the corruption issue or public
4
inquiry to which the warrant relates; or
5
(ii) if the warrant is an offence warrant--a thing relevant to
6
the offence to which the warrant relates; or
7
(iii) in any case--evidential material (within the meaning of
8
the Proceeds of Crime Act 2002) or tainted property
9
(within the meaning of that Act); or
10
(iv) in any case--a thing relevant to an indictable offence;
11
if the authorised officer or the assisting officer believes on
12
reasonable grounds that seizure of the thing is necessary to
13
prevent its concealment, loss or destruction or its use in
14
committing an offence; and
15
(b) whether the warrant authorises an ordinary search or a frisk
16
search of a person who is at or near the premises when the
17
warrant is executed if the authorised officer or an assisting
18
officer suspects on reasonable grounds that the person has in
19
his or her possession:
20
(i) in the case of an investigation warrant--any evidential
21
material in relation to the corruption issue or public
22
inquiry to which the warrant relates; or
23
(ii) in the case of an offence warrant--a thing relevant to
24
the offence to which the warrant relates; or
25
(iii) in any case--evidential material (within the meaning of
26
the Proceeds of Crime Act 2002) or tainted property
27
(within the meaning of that Act); or
28
(iv) in any case--a thing relevant to an indictable offence;
29
or
30
(v) in any case--any eligible seizable items.
31
Additional matters for warrant in relation to person
32
(4) If the search warrant relates to a person, the issuing officer is also
33
to state:
34
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 81
No. , 2013
National Integrity Commission Bill 2013
91
(a) the kind of search (ordinary or frisk) of the person that the
1
warrant authorises; and
2
(b) that the warrant authorises the seizure of a thing (other than
3
evidential material of the kind referred to in paragraph (1)(c))
4
found, in the course of the search, in the possession of the
5
person or in, or on, an aircraft, vehicle or vessel that the
6
person had operated or occupied at any time within 24 hours
7
before the search began, being a thing that the authorised
8
officer or an assisting officer believes on reasonable grounds
9
to be:
10
(i) in the case of an investigation warrant--evidential
11
material in relation to the corruption issue or public
12
inquiry to which the warrant relates; or
13
(ii) in the case of an offence warrant--a thing relevant to
14
the offence to which the warrant relates; or
15
(iii) in any case--evidential material (within the meaning of
16
the Proceeds of Crime Act 2002) or tainted property
17
(within the meaning of that Act); or
18
(iv) in any case--a thing relevant to an indictable offence;
19
if the authorised officer or the assisting officer believes on
20
reasonable grounds that seizure of the thing is necessary to
21
prevent its concealment, loss or destruction or its use in
22
committing an offence.
23
Successive warrants
24
(5) Paragraph (1)(e) does not prevent the issue of successive warrants
25
in relation to the same premises or person.
26
81 Application by telephone etc. and issue of warrant
27
(1) An authorised officer may apply to an issuing officer for a search
28
warrant by telephone, fax, email or other electronic means:
29
(a) in an urgent case; or
30
(b) if the delay that would occur if an application were made in
31
person would frustrate the effective execution of the warrant.
32
(2) The issuing officer:
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 81
92
National Integrity Commission Bill 2013
No. , 2013
(a) may require communication by voice to the extent that is
1
practicable in the circumstances; and
2
(b) may make a recording of the whole or any part of any such
3
communication by voice.
4
(3) An application under this section must include all information that
5
is required in an ordinary application for a search warrant, but the
6
application may, if necessary, be made before the information is
7
sworn or affirmed.
8
(4) If an application is made under this section:
9
(a) sections 79 and 79 apply as if subsections 78(1), (2), (3) and
10
(4) and 79(1), (2), (3) and (4) referred to 48 hours rather than
11
72 hours; and
12
(b) section 80 applies as if subsection 80(2) referred to the end of
13
the 48th hour rather than the end of the seventh day.
14
(5) If an application is made to an issuing officer under this section
15
and the issuing officer, after considering the information and
16
having received and considered such further information (if any) as
17
the issuing officer required, is satisfied that:
18
(a) a search warrant in the terms of the application should be
19
issued urgently; or
20
(b) the delay that would occur if an application were made in
21
person would frustrate the effective execution of the warrant;
22
the issuing officer may complete and sign the same form of search
23
warrant that would be issued under section 79.
24
(6) If the issuing officer decides to issue the search warrant, the issuing
25
officer is to inform the applicant, by telephone, fax, email or other
26
electronic means, of the terms of the warrant and the day on which
27
and the time at which it was signed.
28
(7) The applicant must then complete a form of search warrant in
29
terms substantially corresponding to those given by the issuing
30
officer, stating on the form the name of the issuing officer and the
31
day on which and the time at which the warrant was signed.
32
(8) The applicant must give or transmit to the issuing officer:
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 82
No. , 2013
National Integrity Commission Bill 2013
93
(a) the form of search warrant completed by the applicant; and
1
(b) if the information referred to in subsection (3) was not sworn
2
or affirmed--that information duly sworn or affirmed.
3
(9) The applicant must do so not later than the day after the warrant
4
expires or the day after the day on which the search warrant was
5
executed, whichever is the earlier.
6
(10) The issuing officer is to attach to the documents provided under
7
subsection (8) the form of search warrant he or she has completed.
8
(11) If:
9
(a) it is material, in any proceedings, for a court to be satisfied
10
that the exercise of a power under a search warrant issued
11
under this section was duly authorised; and
12
(b) the form of search warrant signed by the issuing officer is not
13
produced in evidence;
14
the court is to assume, unless the contrary is proved, that the
15
exercise of the power was not duly authorised.
16
(12) In this section:
17
applicant means the authorised officer who applied for the search
18
warrant.
19
82 The things authorised by a search warrant in relation to premises
20
A search warrant in force in relation to premises authorises the
21
authorised officer executing the warrant or an assisting officer to
22
do any of the following:
23
(a) to enter the premises;
24
(b) to search for and record fingerprints found at the premises
25
and to take samples of things found at the premises for
26
forensic purposes;
27
(c) to search the premises for the kinds of evidential material
28
specified in the warrant, and to seize things of that kind
29
found on the premises;
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 4 Search warrants
Section 82
94
National Integrity Commission Bill 2013
No. , 2013
(d) to seize other things found on the premises in the course of
1
the search that the authorised officer or the assisting officer
2
believes on reasonable grounds to be:
3
(i) in the case of an investigation warrant--evidential
4
material in relation to the corruption issue or public
5
inquiry to which the warrant relates; or
6
(ii) in the case of an offence warrant--a thing relevant to
7
the offence to which the warrant relates; or
8
(iii) in any case--evidential material (within the meaning of
9
the Proceeds of Crime Act 2002) or tainted property
10
(within the meaning of that Act); or
11
(iv) in any case--a thing relevant to an indictable offence;
12
if the authorised officer or the assisting officer believes on
13
reasonable grounds that seizure of the thing is necessary to
14
prevent its concealment, loss or destruction or its use in
15
committing an offence;
16
(e) to seize other things found at the premises in the course of
17
the search that the authorised officer or the assisting officer
18
believes on reasonable grounds to be eligible seizable items;
19
(f) if the warrant so allows--to conduct an ordinary search or a
20
frisk search of a person at or near the premises if the
21
authorised officer or the assisting officer suspects on
22
reasonable grounds that the person has in his or her
23
possession:
24
(i) in the case of an investigation warrant--any evidential
25
material in relation to the corruption issue or public
26
inquiry to which the warrant relates; or
27
(ii) in the case of an offence warrant--a thing relevant to
28
the offence to which the warrant relates; or
29
(iii) in any case--evidential material (within the meaning of
30
the Proceeds of Crime Act 2002) or tainted property
31
(within the meaning of that Act); or
32
(iv) in any case--a thing relevant to an indictable offence;
33
or
34
(v) in any case--any eligible seizable items.
35
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 83
No. , 2013
National Integrity Commission Bill 2013
95
83 The things authorised by a search warrant in relation to a person
1
(1) A search warrant in force in relation to a person authorises the
2
authorised officer executing the warrant or an assisting officer to
3
do any of the following:
4
(a) to search:
5
(i) the person as specified in the warrant and things found
6
in the possession of the person; and
7
(ii) any aircraft, vehicle or vessel that the person had
8
operated or occupied at any time within 24 hours before
9
the search began, for things specified in the warrant;
10
(b) to:
11
(i) seize things of that kind; or
12
(ii) record fingerprints from things; or
13
(iii) take forensic samples from things;
14
found in the course of the search;
15
(c) to seize other things found on, or in, the possession of the
16
person or in the aircraft, vehicle or vessel referred to in
17
subparagraph (a)(ii) in the course of the search that the
18
authorised officer or the assisting officer believes on
19
reasonable grounds to be:
20
(i) in the case of an investigation warrant--evidential
21
material in relation to the corruption issue or public
22
inquiry to which the warrant relates; or
23
(ii) in the case of an offence warrant--a thing relevant to
24
the offence to which the warrant relates; or
25
(iii) in any case--evidential material (within the meaning of
26
the Proceeds of Crime Act 2002) or tainted property
27
(within the meaning of that Act); or
28
(iv) in any case--a thing relevant to an indictable offence;
29
if the authorised officer or the assisting officer believes on
30
reasonable grounds that seizure of the thing is necessary to
31
prevent its concealment, loss or destruction or its use in
32
committing an offence;
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 84
96
National Integrity Commission Bill 2013
No. , 2013
(d) to seize other things found in the course of the search that the
1
authorised officer or the assisting officer believes on
2
reasonable grounds to be eligible seizable items.
3
(2) If the search warrant authorises an ordinary search or a frisk search
4
of a person, a search of the person different from that authorised by
5
the warrant must not be done under the warrant.
6
84 Restrictions on personal searches
7
A search warrant may not authorise a strip search or a search of a
8
person's body cavities.
9
85 When warrant may be executed etc.
10
(1) If a search warrant states that it may be executed only during
11
particular hours, the warrant must not be executed outside those
12
hours.
13
(2) If things are seized under a search warrant, the warrant authorises
14
the authorised officer executing the warrant to make the things
15
available to officers of other government agencies if it is necessary
16
to do so for the purpose of investigating or prosecuting an offence
17
to which the things relate.
18
Subdivision D--General provisions about executing a search
19
warrant
20
86 Announcement before entry
21
(1) An authorised officer executing the search warrant must, before
22
any person enters premises under the warrant:
23
(a) announce that he or she is authorised to enter the premises;
24
and
25
(b) give any person at the premises an opportunity to allow entry
26
to the premises.
27
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 87
No. , 2013
National Integrity Commission Bill 2013
97
(2) An authorised officer is not required to comply with subsection (1)
1
if he or she believes on reasonable grounds that immediate entry to
2
the premises is required:
3
(a) to ensure the safety of a person (including an authorised
4
officer or assisting officer); or
5
(b) to ensure that the effective execution of the warrant is not
6
frustrated.
7
87 Availability of assistance and use of force in executing a warrant
8
(1) In executing a search warrant, the authorised officer executing the
9
warrant may:
10
(a) obtain the assistance that is necessary and reasonable in the
11
circumstances; and
12
(b) use the force against persons and things that is necessary and
13
reasonable in the circumstances.
14
(2) In executing a search warrant:
15
(a) if an assisting officer is also an authorised officer--the
16
assisting officer may use the force against persons and things
17
that is necessary and reasonable in the circumstances; and
18
(b) if an assisting officer is not an authorised officer--the
19
assisting officer may use the force against things that is
20
necessary and reasonable in the circumstances.
21
(3) A person who is not an authorised officer must not take part in
22
searching a person.
23
Subdivision E--Specific provisions about executing a warrant
24
in relation to premises
25
88 Application
26
This Subdivision applies if a search warrant in relation to premises
27
is being executed.
28
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 89
98
National Integrity Commission Bill 2013
No. , 2013
89 Copy of warrant to be shown to occupier etc.
1
(1) If the occupier of the premises, or another person who apparently
2
represents the occupier, is present at the premises, the authorised
3
officer executing the search warrant or an assisting officer must
4
make a copy of the warrant available to the person.
5
(2) If a person is searched under a search warrant in relation to
6
premises, the authorised officer executing the warrant or an
7
assisting officer must show the person a copy of the warrant.
8
(3) The authorised officer must identify himself or herself to the
9
person at the premises.
10
(4) The copy of the search warrant need not include the signature of
11
the issuing officer who issued it.
12
90 Occupier entitled to watch search
13
(1) The occupier of the premises, or another person who apparently
14
represents the occupier, who is present at the premises, is entitled
15
to watch the search.
16
(2) Subsection (1) is subject to Part IC of the Crimes Act 1914.
17
(3) The right to watch the search being conducted ceases if the person
18
impedes the search.
19
(4) This section does not prevent 2 or more areas of the premises being
20
searched at the same time.
21
91 Specific powers available to person executing a warrant
22
(1) The authorised officer executing the search warrant or an assisting
23
officer may take photographs or video recordings of the premises
24
or things on the premises:
25
(a) for a purpose incidental to the execution of the warrant; or
26
(b) with the written consent of the occupier of the premises.
27
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 92
No. , 2013
National Integrity Commission Bill 2013
99
(2) The authorised officer executing the search warrant and all
1
assisting officers may, if the warrant is still in force, finish
2
executing the warrant after all of them temporarily stop executing
3
it and leave the premises:
4
(a) for not more than one hour; or
5
(b) for a longer period with the written consent of the occupier of
6
the premises.
7
(3) The execution of a search warrant that is stopped by an order of a
8
court may be completed if:
9
(a) the order is later revoked or reversed on appeal; and
10
(b) the warrant is still in force.
11
92 Use of equipment to examine or process things
12
(1) The authorised officer executing the search warrant or an assisting
13
officer may bring to the premises any equipment (including
14
electronic equipment) reasonably necessary to examine or process
15
things found at the premises in order to determine whether they are
16
things that may be seized under the warrant.
17
(2) A thing found at the premises may be moved to another place for
18
examination or processing in order to determine whether it may be
19
seized under a warrant if:
20
(a) both of the following apply:
21
(i) it is significantly more practicable to do so having
22
regard to the timeliness and cost of examining or
23
processing the thing at another place and the availability
24
of expert assistance;
25
(ii) there are reasonable grounds to believe that the thing
26
contains or constitutes evidential material; or
27
(b) the occupier of the premises consents in writing.
28
(3) If things are moved to another place for the purpose of examination
29
or processing, the authorised officer must, if it is practicable to do
30
so:
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 93
100
National Integrity Commission Bill 2013
No. , 2013
(a) inform the occupier of the address of the place and the time
1
at which the examination or processing will be carried out;
2
and
3
(b) allow the occupier or his or her representative to be present
4
during the examination or processing.
5
(4) The thing may be moved to another place for examination or
6
processing for no longer than 72 hours.
7
(5) An authorised officer may apply to an issuing officer for one or
8
more extensions of that time if the authorised officer believes on
9
reasonable grounds that the thing cannot be examined or processed
10
within 72 hours or that time as previously extended.
11
(6) The authorised officer must give notice of the application for an
12
extension to the occupier of the premises, and the occupier is
13
entitled to be heard in relation to the application.
14
(7) The provisions of this Division in relation to the issuing of search
15
warrants apply, with such modifications as are necessary, to the
16
issuing of an extension.
17
(8) The authorised officer executing the search warrant or an assisting
18
officer may operate equipment (including electronic equipment)
19
already on the premises to examine or process a thing found on the
20
premises in order to determine whether it may be seized under the
21
warrant, if the authorised officer or the assisting officer believes on
22
reasonable grounds that:
23
(a) the equipment is suitable for the examination or processing;
24
and
25
(b) the examination or processing can be carried out without
26
damaging the equipment or thing.
27
(9) A notice of the application for an extension given to the occupier
28
of the premises under this section is not a legislative instrument.
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 93
No. , 2013
National Integrity Commission Bill 2013
101
93 Use of electronic equipment at premises without expert assistance
1
(1) The authorised officer executing the search warrant or an assisting
2
officer may operate electronic equipment on the premises to access
3
data (including data not held at the premises) if he or she believes
4
on reasonable grounds that:
5
(a) the data might constitute evidential material; and
6
(b) the equipment can be operated without damaging it.
7
Note:
An authorised officer can obtain an order requiring a person with
8
knowledge of a computer or computer system to provide assistance
9
(see section 95).
10
(2) If the authorised officer or the assisting officer believes on
11
reasonable grounds that any data accessed by operating the
12
electronic equipment might constitute evidential material, he or she
13
may:
14
(a) copy the data to a disk, tape or other associated device
15
brought to the premises; or
16
(b) if the occupier of the premises agrees in writing--copy the
17
data to a disk, tape or other associated device at the premises;
18
and take the device from the premises.
19
(3) If:
20
(a) the authorised officer or the assisting officer takes the device
21
from the premises; and
22
(b) the National Integrity Commissioner is satisfied that the data
23
is not required (or is no longer required) for:
24
(i) investigating a corruption issue; or
25
(ii) conducting a public inquiry; or
26
(iii) judicial proceedings or administrative review
27
proceedings;
28
the National Integrity Commissioner must arrange for:
29
(c) the removal of the data from any device in the control of the
30
National Integrity Commission; and
31
(d) the destruction of any other reproduction of the data in the
32
control of the National Integrity Commission.
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 94
102
National Integrity Commission Bill 2013
No. , 2013
(4) However, the National Integrity Commissioner must not do so if
1
the data is evidence that he or she must deal with in accordance
2
with Part 7.
3
(5) If the authorised officer or the assisting officer, after operating the
4
equipment, finds that evidential material is accessible by doing so,
5
he or she may:
6
(a) seize the equipment and any disk, tape or other associated
7
device; or
8
(b) if the material can, by using facilities at the premises, be put
9
in documentary form--operate the facilities to put the
10
material in that form and seize the documents so produced.
11
(6) A person may seize equipment under paragraph (5)(a) only if:
12
(a) it is not practicable to put the material in documentary form
13
as referred to in paragraph (5)(b); or
14
(b) possession of the equipment by the occupier could constitute
15
an offence.
16
94 Use of electronic equipment at premises with expert assistance
17
(1) If the authorised officer executing the search warrant or an
18
assisting officer believes on reasonable grounds that:
19
(a) evidential material may be accessible by operating electronic
20
equipment at the premises; and
21
(b) expert assistance is required to operate the equipment; and
22
(c) if he or she does not take action under this subsection, the
23
material may be destroyed, altered or otherwise interfered
24
with;
25
he or she may do whatever is necessary to secure the equipment,
26
whether by locking it up, placing a guard or otherwise.
27
(2) The authorised officer or the assisting officer must notify the
28
occupier of the premises, in writing, of:
29
(a) his or her intention to secure the equipment; and
30
(b) the fact that the equipment may be secured for up to 24
31
hours.
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 95
No. , 2013
National Integrity Commission Bill 2013
103
(3) The equipment may be secured for up to 24 hours to allow the
1
equipment to be operated by an expert.
2
(4) If the authorised officer or the assisting officer believes on
3
reasonable grounds that expert assistance will not be available
4
within 24 hours, he or she may apply to an issuing officer for an
5
extension of that period.
6
(5) The authorised officer or the assisting officer must give notice of
7
the application for an extension to the occupier of the premises,
8
and the occupier is entitled to be heard in relation to the
9
application.
10
(6) The provisions of this Division in relation to the issuing of search
11
warrants apply, with such modifications as are necessary, to the
12
issuing of an extension.
13
(7) A notice of the application for an extension given to the occupier
14
of the premises under this section is not a legislative instrument.
15
95 Person with knowledge of a computer or a computer system to
16
assist access etc.
17
(1) The authorised officer executing the search warrant may apply to
18
an issuing officer for an order requiring a specified person to
19
provide any information or assistance that is reasonable and
20
necessary to allow the officer or an assisting officer or to do one or
21
more of the following:
22
(a) access data held in a computer, or accessible from a
23
computer, that is on premises in relation to which the warrant
24
is in force;
25
(b) copy the data to a data storage device;
26
(c) convert the data into documentary form.
27
(2) The issuing officer may grant the order if he or she is satisfied that:
28
(a) there are reasonable grounds for suspecting that evidential
29
material is held in, or is accessible from, the computer; and
30
(b) the specified person is:
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 96
104
National Integrity Commission Bill 2013
No. , 2013
(i) in the case of an investigation warrant--reasonably
1
suspected of having, or having access to, data that may
2
be relevant to the corruption issue or public inquiry to
3
which the warrant relates; or
4
(ii) in the case of an offence warrant--reasonably suspected
5
of having committed the offence stated in the warrant;
6
or
7
(iii) the owner or lessee of the computer; or
8
(iv) an employee of the owner or lessee of the computer; and
9
(c) the specified person has relevant knowledge of:
10
(i) the computer or a computer network of which the
11
computer forms a part; or
12
(ii) measures applied to protect data held in, or accessible
13
from, the computer.
14
(3) A person commits an offence if the person fails to comply with the
15
order.
16
Penalty for a contravention of this subsection: Imprisonment for 6
17
months.
18
96 Accessing data held on other premises--notification to occupier
19
of those premises
20
(1) If:
21
(a) data that is held on premises (other than the premises in
22
relation to which the warrant is in force) is accessed under
23
subsection 93(1); and
24
(b) it is practicable to notify the occupier of the other premises
25
that the data has been accessed under a warrant;
26
the authorised officer executing the search warrant must:
27
(c) do so as soon as practicable; and
28
(d) if the authorised officer has arranged, or intends to arrange,
29
for continued access to the data under subsection 93(2) or
30
(5)--include that information in the notification.
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 97
No. , 2013
National Integrity Commission Bill 2013
105
(2) A notification under subsection (1) must include sufficient
1
information to allow the occupier of the other premises to contact
2
the authorised officer.
3
97 Compensation for damage to electronic equipment
4
(1) This section applies if:
5
(a) as a result of equipment being operated as mentioned in
6
section 92, 93 or 94:
7
(i) damage is caused to the equipment; or
8
(ii) the data recorded on the equipment is damaged; or
9
(iii) programs associated with the use of the equipment, or
10
with the use of the data, are damaged or corrupted; and
11
(b) the damage or corruption occurs because:
12
(i) insufficient care was exercised in selecting the person
13
who was to operate the equipment; or
14
(ii) insufficient care was exercised by the person operating
15
the equipment.
16
(2) The Commonwealth must pay the owner of the equipment, or the
17
user of the data or programs, such reasonable compensation for the
18
damage or corruption as the Commonwealth and the owner or user
19
agree on.
20
(3) However, if the owner or user and the Commonwealth fail to
21
agree, the owner or user may institute proceedings in the Federal
22
Court of Australia for such reasonable amount of compensation as
23
the Court determines.
24
(4) In determining the amount of compensation payable, regard is to
25
be had to whether the occupier of the premises, or the occupier's
26
employees or agents, if they were available at the time, had
27
provided any appropriate warning or guidance on the operation of
28
the equipment.
29
(5) Compensation is payable out of money appropriated by the
30
Parliament.
31
(6) For the purpose of subsection (1):
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 98
106
National Integrity Commission Bill 2013
No. , 2013
damage, in relation to data, includes damages by erasure of data or
1
addition of other data.
2
98 Copies of seized things to be provided
3
(1) If the authorised officer executing the search warrant or an
4
assisting officer seizes:
5
(a) a document, film, computer file or other thing that can be
6
readily copied; or
7
(b) a device storing information that can be readily copied;
8
the authorised officer or the assisting officer must, if requested to
9
do so by the occupier of the premises or another person who
10
apparently represents the occupier and who is present when the
11
warrant is executed, give a copy of the thing or the information to
12
that person as soon as practicable after the seizure.
13
(2) However, subsection (1) does not apply if:
14
(a) the thing that has been seized was seized under
15
subsection 93(2) or paragraph 93(5)(a); or
16
(b) possession of the document, film, computer file, thing or
17
information by the occupier could constitute an offence.
18
99 Receipts of things seized under warrant
19
(1) If a thing is seized under a search warrant or moved under
20
subsection 92(2), the authorised officer executing the warrant or an
21
assisting officer must provide a receipt for the thing.
22
(2) If 2 or more things are seized or moved, they may be covered by
23
the one receipt.
24
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 100
No. , 2013
National Integrity Commission Bill 2013
107
Subdivision F--Specific provisions about executing a warrant
1
in relation to a person
2
100 Copy of warrant to be shown to person
3
(1) If a search warrant in relation to a person is being executed, the
4
authorised officer executing the warrant or an assisting officer
5
must make a copy of the warrant available to that person.
6
(2) The authorised officer must identify himself or herself to the
7
person being searched.
8
(3) The copy of the warrant need not include the signature of the
9
issuing officer who issued it.
10
101 Conduct of an ordinary search or a frisk search
11
An ordinary search or a frisk search of a person must, if
12
practicable, be conducted by a person of the same sex as the person
13
being searched.
14
Subdivision G--Offences
15
102 Making false statements in warrants
16
A person commits an offence if:
17
(a) the person makes a statement in applying for a search
18
warrant; and
19
(b) the person knows that the statement is false or misleading in
20
a material particular.
21
Penalty: Imprisonment for 2 years.
22
103 Offence for stating incorrect names in telephone warrants
23
A person commits an offence if:
24
(a) the person states a name of an issuing officer in a document;
25
and
26
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 4 Search warrants
Section 104
108
National Integrity Commission Bill 2013
No. , 2013
(b) the document purports to be a form of search warrant under
1
section 81; and
2
(c) the name is not the name of the issuing officer who issued the
3
search warrant.
4
Penalty: Imprisonment for 2 years.
5
104 Offence for unauthorised form of warrant
6
A person commits an offence if:
7
(a) the person states a matter in a form of search warrant under
8
section 81; and
9
(b) the person knows that the matter departs in a material
10
particular from the form authorised by the issuing officer.
11
Penalty: Imprisonment for 2 years.
12
105 Offence for executing etc. an unauthorised form of warrant
13
A person commits an offence if:
14
(a) the person executes or presents a document to another
15
person; and
16
(b) the document purports to be a form of search warrant under
17
section 81; and
18
(c) the person knows that the document:
19
(i) has not been approved by an issuing officer under that
20
section; or
21
(ii) departs in a material particular from the terms
22
authorised by an issuing officer under that section.
23
Penalty: Imprisonment for 2 years.
24
106 Offence for giving unexecuted form of warrant
25
A person commits an offence if:
26
(a) the person gives an issuing officer a form of search warrant
27
under section 81; and
28
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 4
Section 107
No. , 2013
National Integrity Commission Bill 2013
109
(b) the document is not the form of search warrant that the
1
person executed.
2
Penalty: Imprisonment for 2 years.
3
Subdivision H--Miscellaneous
4
107 Other laws about search, arrest etc. not affected
5
(1) This Division is not intended to limit or exclude the operation of
6
another law of the Commonwealth relating to:
7
(a) the search of persons or premises; or
8
(b) arrest and related matters; or
9
(c) the seizure of things.
10
(2) To avoid doubt, even though another law of the Commonwealth
11
provides power to do one or more of the things referred to in
12
subsection (1), a similar power conferred by this Division may be
13
used despite the existence of the power under the other law.
14
108 Law relating to legal professional privilege not affected
15
This Division does not affect the law relating to legal professional
16
privilege.
17
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 5 Powers of arrest
Section 109
110
National Integrity Commission Bill 2013
No. , 2013
Division 5--Powers of arrest
1
109 Authorised officers may exercise powers of arrest
2
For the purposes of investigating a corruption issue, an authorised
3
officer who is not a constable (within the meaning of the Crimes
4
Act 1914) has the same powers and duties under Divisions 4 and 5
5
of Part IAA of the Crimes Act 1914 as a constable as if the
6
authorised officer were a constable.
7
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Authorised officers Division 6
Section 110
No. , 2013
National Integrity Commission Bill 2013
111
Division 6--Authorised officers
1
110 Appointment of authorised officers
2
(1) The National Integrity Commissioner may, in writing, authorise a
3
person to be an authorised officer for the purposes of this Part.
4
(2) The person must be:
5
(a) a staff member of the National Integrity Commission whom
6
the National Integrity Commissioner considers has suitable
7
qualifications or experience; or
8
(b) a member of the Australian Federal Police.
9
(3) The National Integrity Commissioner may authorise a person
10
referred to in paragraph (2)(b) only if the Commissioner of the
11
Australian Federal Police agrees to the appointment.
12
(4) In exercising powers as an authorised officer, an authorised officer
13
must comply with any directions given by the National Integrity
14
Commissioner.
15
(5) If the National Integrity Commissioner gives a direction under
16
subsection (4) in writing, the direction is not a legislative
17
instrument.
18
111 Identity cards
19
Issue of identity card
20
(1) The National Integrity Commissioner must issue an identity card to
21
a person who is an authorised officer for the purposes of this Part.
22
Form of identity card
23
(2) An identity card:
24
(a) must be in the form prescribed by the regulations; and
25
(b) must contain a recent photograph of the authorised officer.
26
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 6 Authorised officers
Section 111
112
National Integrity Commission Bill 2013
No. , 2013
Identity card to be carried and produced on request
1
(3) An authorised officer must carry the identity card at all times when
2
exercising powers as an authorised officer in accordance with this
3
Part.
4
(4) An authorised officer is not entitled to exercise any powers under
5
this Part in relation to premises if:
6
(a) the occupier of the premises requires the authorised officer to
7
produce his or her identity card for inspection by the
8
occupier; and
9
(b) the authorised officer fails to comply with the requirement.
10
(5) An authorised officer is not entitled to exercise any powers under
11
this Part in relation to a person if:
12
(a) the person requires the authorised officer to produce his or
13
her identity card for inspection by the person; and
14
(b) the authorised officer fails to comply with the requirement.
15
Offence
16
(6) A person commits an offence if:
17
(a) the person has been issued with an identity card; and
18
(b) the person ceases to be an authorised officer; and
19
(c) the person does not return the identity card to the National
20
Integrity Commissioner immediately after ceasing to be an
21
authorised officer.
22
Penalty for a contravention of this subsection: 1 penalty unit.
23
Dealing with evidence and information obtained in investigation or public inquiry Part
7
Introduction Division 1
Section 112
No. , 2013
National Integrity Commission Bill 2013
113
Part 7--Dealing with evidence and information
1
obtained in investigation or public inquiry
2
Division 1--Introduction
3
112 Guide to this Part
4
This Division is about how the National Integrity Commissioner is
5
to deal with evidence and information obtained in investigating a
6
corruption issue or conducting a public inquiry.
7
The National Integrity Commissioner must give evidence of an
8
offence or liability to civil penalty to:
9
(a)
the Commissioner of the Australian Federal Police;
10
or
11
(b)
the head (however described) of the police force of
12
the relevant State or Territory; or
13
(c)
another person or authority who is authorised by or
14
under a law of the Commonwealth or the relevant
15
State or Territory to prosecute the offence or bring
16
the civil penalty proceedings;
17
as appropriate in the circumstances.
18
The National Integrity Commissioner must bring to the attention of
19
the Prime Minister evidence of, or information suggesting,
20
wrongful conviction of a person and must advise the person that
21
the National Integrity Commissioner has brought the evidence to
22
the attention of the Prime Minister.
23
Part 7 Dealing with evidence and information obtained in investigation or public
inquiry
Division 2 Dealing with evidence and information obtained in investigation or public
inquiry
Section 113
114
National Integrity Commission Bill 2013
No. , 2013
Division 2--Dealing with evidence and information
1
obtained in investigation or public inquiry
2
113 Evidence of offence or liability to civil penalty
3
Commonwealth offence or civil penalty
4
(1) If, in investigating a corruption issue or conducting a public
5
inquiry, the National Integrity Commissioner obtains:
6
(a) evidence of an offence against a law of the Commonwealth
7
that would be admissible in a prosecution for the offence; or
8
(b) evidence of the contravention of a law of the
9
Commonwealth:
10
(i) in relation to which civil penalty proceedings may be
11
brought; and
12
(ii) that would be admissible in civil penalty proceedings
13
for the contravention;
14
the National Integrity Commissioner must:
15
(c) assemble the evidence; and
16
(d) give the evidence to:
17
(i) the Commissioner of the Australian Federal Police; or
18
(ii) another person or authority who is authorised by or
19
under a law of the Commonwealth to prosecute the
20
offence or bring the civil penalty proceedings.
21
State or Territory offence or civil penalty
22
(2) If, in investigating a corruption issue or conducting a public
23
inquiry, the National Integrity Commissioner obtains:
24
(a) evidence of an offence against a law of a State or Territory
25
that would be admissible in a prosecution for the offence; or
26
(b) evidence of the contravention of a law of a State or Territory:
27
(i) in relation to which civil penalty proceedings may be
28
brought; and
29
Dealing with evidence and information obtained in investigation or public inquiry Part
7
Dealing with evidence and information obtained in investigation or public inquiry
Division 2
Section 114
No. , 2013
National Integrity Commission Bill 2013
115
(ii) that would be admissible in civil penalty proceedings
1
for the contravention;
2
the National Integrity Commissioner must:
3
(c) assemble the evidence; and
4
(d) give the evidence to:
5
(i) the head (however described) of the police force of the
6
State or Territory; or
7
(ii) another person or authority who is authorised by or
8
under a law of the State or Territory to prosecute the
9
offence or bring the civil penalty proceedings.
10
114 Evidence that could be used in confiscation proceedings
11
Commonwealth proceedings
12
(1) If, in investigating a corruption issue or conducting a public
13
inquiry, the National Integrity Commissioner obtains evidence that
14
would be admissible in a proceeding under the Proceeds of Crime
15
Act 1987 or the Proceeds of Crime Act 2002 (other than a criminal
16
prosecution for an offence under that Act), the National Integrity
17
Commissioner must:
18
(a) assemble the evidence; and
19
(b) give the evidence to:
20
(i) the Commissioner of the Australian Federal Police; or
21
(ii) another person or authority who is authorised by or
22
under a law of the Commonwealth to bring the
23
proceeding.
24
State or Territory proceedings
25
(2) If, in investigating a corruption issue or conducting a public
26
inquiry, the National Integrity Commissioner obtains evidence that
27
would be admissible in a proceeding under a corresponding law
28
within the meaning of the Proceeds of Crime Act 1987 or the
29
Proceeds of Crime Act 2002 (other than a criminal prosecution for
30
Part 7 Dealing with evidence and information obtained in investigation or public
inquiry
Division 2 Dealing with evidence and information obtained in investigation or public
inquiry
Section 115
116
National Integrity Commission Bill 2013
No. , 2013
an offence under the corresponding law), the National Integrity
1
Commissioner must:
2
(a) assemble the evidence; and
3
(b) give the evidence to:
4
(i) the head (however described) of the police force of the
5
State or Territory; or
6
(ii) another person or authority who is authorised by or
7
under a law of the State or Territory to bring the
8
proceeding.
9
115 Evidence of, or information suggesting, wrongful conviction
10
Commonwealth offence
11
(1) If the National Integrity Commissioner:
12
(a) in investigating a corruption issue or conducting a public
13
inquiry, obtains evidence that a person was wrongly
14
convicted of an offence against a law of the Commonwealth;
15
and
16
(b) is satisfied that the evidence is, in all the circumstances, of
17
sufficient force to justify his or her doing so;
18
the National Integrity Commissioner must:
19
(c) bring the evidence to the notice of the Prime Minister; and
20
(d) advise the person that the National Integrity Commissioner
21
has brought the evidence to the notice of the Prime Minister.
22
State or Territory offence
23
(2) If the National Integrity Commissioner:
24
(a) in investigating a corruption issue or conducting a public
25
inquiry, obtains evidence that a person was wrongly
26
convicted of an offence against a law of a State or Territory;
27
and
28
(b) is satisfied that the evidence is, in all the circumstances, of
29
sufficient force to justify his or her doing so;
30
the National Integrity Commissioner must:
31
Dealing with evidence and information obtained in investigation or public inquiry Part
7
Dealing with evidence and information obtained in investigation or public inquiry
Division 2
Section 115
No. , 2013
National Integrity Commission Bill 2013
117
(c) bring the evidence to the notice of the Prime Minister; and
1
(d) advise the person that the National Integrity Commissioner
2
has brought the evidence to the notice of the Prime Minister.
3
Part 8 Independent Parliamentary Advisor
Division 1 Introduction
Section 116
118
National Integrity Commission Bill 2013
No. , 2013
Part 8--Independent Parliamentary Advisor
1
Division 1--Introduction
2
116 Guide to this Part
3
This Division is about the role of the Independent Parliamentary
4
Advisor in providing advice about compliance with applicable
5
codes of conduct and other matters to ministers, parliamentarians,
6
former parliamentarians, committees and presiding officers.
7
Independent Parliamentary Advisor Part 8
Requests for advice Division 2
Section 117
No. , 2013
National Integrity Commission Bill 2013
119
Division 2--Requests for advice
1
117 Minister may request advice
2
(1) A minister may request advice from the Independent Parliamentary
3
Advisor about his or her compliance with an applicable code of
4
conduct, whether the request for advice relates to an issue that
5
arose before or after the commencement of this Act.
6
(2) A request for advice must be in writing.
7
(3) A request for advice must be about a matter relating to the minister
8
requesting the advice or a family member of the minister.
9
118 Presiding officer or chair of committee may request advice
10
(1) A presiding officer or a chair of a committee of a House of the
11
Parliament may request advice from the Independent Parliamentary
12
Advisor about any relevant matter, including the development of a
13
code of conduct for parliamentarians of that House.
14
(2) A request for advice must be in writing.
15
119 Parliamentarian or former parliamentarian may request advice
16
(1) A parliamentarian or a former parliamentarian may request advice
17
from the Independent Parliamentary Advisor about:
18
(a) an applicable code of conduct; or
19
(b) parliamentary allowances; or
20
(c) an interest, including a potential conflict of interest; or
21
(d) an ethical issue; or
22
(e) a matter of propriety, including the receipt of a gift; or
23
(f) any similar issue;
24
whether the request for advice relates to an issue that arose before
25
or after the commencement of this Act
26
(2) A request for advice must be in writing.
27
Part 8 Independent Parliamentary Advisor
Division 2 Requests for advice
Section 120
120
National Integrity Commission Bill 2013
No. , 2013
(3) A request for advice must be about a matter relating to:
1
(a) the parliamentarian or the former parliamentarian requesting
2
the advice; or
3
(b) a family member of the parliamentarian or the former
4
parliamentarian requesting the advice; or
5
(c) a person employed or formerly employed under the Members
6
of Parliament (Staff) Act 1984 by the parliamentarian or the
7
former parliamentarian.
8
120 Independent Parliamentary Advisor to provide advice in writing
9
The Independent Parliamentary Advisor may only provide written
10
advice in response to a request under section 117, 118 or 119.
11
121 Independent Parliamentary Advisor may request additional
12
information
13
(1) Before providing written advice in response to a request under
14
section 117, 118 or 119, the Independent Parliamentary Advisor
15
may request additional information from the person who made the
16
request.
17
(2) A request made under subsection (1) must explain how the
18
additional information relates to the original request for written
19
advice.
20
(3) If:
21
(a) a request is made under subsection (1); and
22
(b) the Independent Parliamentary Advisor:
23
(i) does not receive the additional information; or
24
(ii) is unable to provide the written advice because the
25
additional information is insufficient for the
26
Independent Parliamentary Advisor to form an opinion
27
on the matter;
28
then, in lieu of the written advice, the Independent Parliamentary
29
Advisor must provide a written statement to the person who
30
requested the advice that Independent Parliamentary Advisor was
31
unable to prepare the advice because of insufficient information.
32
Independent Parliamentary Advisor Part 8
Reporting Division 3
Section 122
No. , 2013
National Integrity Commission Bill 2013
121
Division 3--Reporting
1
122 Annual report
2
(1) The Independent Parliamentary Advisor must give:
3
(a) the President of the Senate for presentation to the Senate; and
4
(b) the Speaker of the House of Representatives for presentation
5
to the House of Representatives;
6
a report (the annual report) on the performance of the independent
7
parliamentary advisor functions during each financial year.
8
Note:
See also section 34C of the Acts Interpretation Act 1901, which
9
contains extra rules about annual reports.
10
(2) A report under subsection (1) must include:
11
(a) information about the number of times written advice was
12
prepared by the Independent Parliamentary Advisor,
13
including information about the number of times written
14
advice related to:
15
(i) an applicable code of conduct or a part thereof; or
16
(ii) a particular type of gift; or
17
(iii) a particular type of interest; and
18
(b) the general nature of the written advice that was prepared by
19
the Independent Parliamentary Advisor.
20
(3) Information under subsection (2) must not be included in a report
21
under subsection (1) if including that information might identify
22
the person who made a request for advice.
23
Part 8 Independent Parliamentary Advisor
Division 4 Better practices guides and fact sheets
Section 123
122
National Integrity Commission Bill 2013
No. , 2013
Division 4--Better practices guides and fact sheets
1
123 Better practices guides and fact sheets
2
In accordance with the independent parliamentary advisor
3
functions, the Independent Parliamentary Advisor may promote
4
better practice in relation to matters of conduct, propriety and
5
ethics for ministers, parliamentarians, former parliamentarians and
6
persons employed under the Members of Parliament (Staff) Act
7
1984 by preparing and disseminating better practice guides and
8
fact sheets those persons.
9
Administrative provisions Part 9
Introduction Division 1
Section 124
No. , 2013
National Integrity Commission Bill 2013
123
Part 9--Administrative provisions
1
Division 1--Introduction
2
124 Guide to this Part
3
This Division is about:
4
(a)
the appointment of the integrity officers; and
5
(b)
the staff of the National Integrity Commission,
6
who are engaged under the Public Service Act
7
1999.
8
The National Integrity Commissioner may engage consultants.
9
The National Integrity Commissioner may delegate all or any of
10
his or her functions or powers, other than the power to hold a
11
hearing for the purpose of conducting a public inquiry, to an
12
Assistant National Integrity Commissioner.
13
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 125
124
National Integrity Commission Bill 2013
No. , 2013
Division 2--Appointment etc. of the integrity officers
1
Subdivision A--National Integrity Commissioner
2
125 Appointment of National Integrity Commissioner
3
(1) The National Integrity Commissioner is to be appointed by the
4
Governor-General by written instrument.
5
Note:
The National Integrity Commissioner is eligible for reappointment
6
(see section 33AA of the Acts Interpretation Act 1901).
7
(2) Before the Prime Minister makes a recommendation to the
8
Governor-General for the appointment of a person as the National
9
Integrity Commissioner:
10
(a) the Prime Minister must refer the proposed recommendation
11
for the appointment to the Parliamentary Joint Committee on
12
the National Integrity Commission under section 169; and
13
(b) either:
14
(i) the period that the committee has under that section to
15
consider the proposed recommendation has ended
16
without the committee rejecting the proposed
17
recommendation; or
18
(ii) the committee notifies the Prime Minister that it has
19
decided to approve the proposed recommendation.
20
(3) Subject to section 126, a person may be proposed for appointment
21
on more than one occasion.
22
(4) In this section and sections 168 and 169, appointment includes
23
re-appointment.
24
126 General terms and conditions of appointment
25
(1) The National Integrity Commissioner holds office for the period
26
specified in his or her instrument of appointment. The period must
27
not exceed 5 years. The sum of the periods for which the National
28
Integrity Commissioner holds office must not exceed 5 years.
29
Administrative provisions Part 9
Appointment etc. of the integrity officers Division 2
Section 127
No. , 2013
National Integrity Commission Bill 2013
125
(2) The National Integrity Commissioner holds office on a full-time
1
basis.
2
(3) The National Integrity Commissioner holds office on the terms and
3
conditions (if any), in relation to matters not covered by this Act,
4
that are determined by the Governor-General.
5
127 Restriction on outside employment
6
The National Integrity Commissioner must not engage in paid
7
employment outside the duties of his or her office without the
8
Prime Minister's approval.
9
128 Remuneration
10
(1) The National Integrity Commissioner is to be paid the
11
remuneration that is determined by the Remuneration Tribunal. If
12
no determination of remuneration by the Tribunal is in operation,
13
the National Integrity Commissioner is to be paid the remuneration
14
that is prescribed by the regulations.
15
(2) The National Integrity Commissioner is to be paid the allowances
16
that are prescribed by the regulations.
17
(3) This section has effect subject to the Remuneration Tribunal Act
18
1973.
19
129 Leave of absence
20
(1) The National Integrity Commissioner has the recreation leave
21
entitlements that are determined by the Remuneration Tribunal.
22
(2) The Prime Minister may grant the National Integrity Commissioner
23
leave of absence, other than recreation leave, on the terms and
24
conditions as to remuneration or otherwise that the Prime Minister
25
determines.
26
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 130
126
National Integrity Commission Bill 2013
No. , 2013
130 Resignation
1
(1) The National Integrity Commissioner may resign his or her
2
appointment by giving the Governor-General a written resignation.
3
(2) The resignation takes effect on the day it is received by the
4
Governor-General or, if a later day is specified in the resignation,
5
on that later day.
6
131 Termination of appointment
7
(1) The Governor-General may terminate the appointment of the
8
National Integrity Commissioner for misbehaviour or physical or
9
mental incapacity.
10
(2) The Governor-General must terminate the appointment of the
11
National Integrity Commissioner if any of the following apply:
12
(a) the National Integrity Commissioner:
13
(i) becomes bankrupt; or
14
(ii) applies to take the benefit of any law for the relief of
15
bankrupt or insolvent debtors; or
16
(iii) compounds with his or her creditors; or
17
(iv) makes an assignment of his or her remuneration for the
18
benefit of his or her creditors;
19
(b) the National Integrity Commissioner is absent, except on
20
leave of absence, for 14 consecutive days or for 28 days in
21
any 12 months;
22
(c) the National Integrity Commissioner engages, except with
23
the Prime Minister's approval, in paid employment outside
24
the duties of his or her office;
25
(d) the National Integrity Commissioner fails, without
26
reasonable excuse, to comply with section 133 (disclosure of
27
interests).
28
132 Acting appointments
29
(1) The Prime Minister may, by written instrument, appoint a person to
30
act as the National Integrity Commissioner:
31
Administrative provisions Part 9
Appointment etc. of the integrity officers Division 2
Section 133
No. , 2013
National Integrity Commission Bill 2013
127
(a) during a vacancy in the office of the National Integrity
1
Commissioner (whether or not an appointment has
2
previously been made to the office); or
3
(b) during any period, or during all periods, when National
4
Integrity Commissioner:
5
(i) is absent from duty or from Australia; or
6
(ii) is, for any reason, unable to perform the duties of the
7
office.
8
(2) The Prime Minister may appoint the Law Enforcement Integrity
9
Commissioner to act as the National Integrity Commissioner for
10
the purposes of paragraph (1)(a) or (b).
11
(3) A person appointed to act during a vacancy mentioned in
12
paragraph (1)(a) must not act for more than 12 months.
13
(4) Anything done by or in relation to a person purporting to act under
14
an appointment is not invalid merely because of any of the
15
following:
16
(a) the occasion for the appointment had not arisen;
17
(b) there was a defect or irregularity in connection with the
18
appointment;
19
(c) the appointment had ceased to have effect;
20
(d) the occasion to act had not arisen or had ceased.
21
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
22
133 Disclosure of interests
23
The National Integrity Commissioner must give written notice to
24
the Prime Minister of all interests, pecuniary or otherwise, that the
25
National Integrity Commissioner has or acquires and that conflict
26
or could conflict with the proper performance of the national
27
integrity commissioner functions.
28
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 134
128
National Integrity Commission Bill 2013
No. , 2013
Subdivision B--Law Enforcement Integrity Commissioner
1
134 Appointment etc. of Law Enforcement Integrity Commissioner
2
Division 1 of Part 13 of the Law Enforcement Integrity
3
Commissioner Act 2006 provides for the appointment and
4
conditions of appointment of the Law Enforcement Integrity
5
Commissioner.
6
Subdivision C--Independent Parliamentary Advisor
7
135 Appointment of Independent Parliamentary Advisor
8
(1) The Independent Parliamentary Advisor is to be appointed by the
9
Governor-General by written instrument.
10
Note:
The Independent Parliamentary Advisor is eligible for reappointment
11
(see section 33AA of the Acts Interpretation Act 1901).
12
(2) To be appointed as the Independent Parliamentary Advisor, a
13
person must have a high level of knowledge and experience in
14
parliamentary law and parliamentary privilege.
15
(3) Before the Prime Minister makes a recommendation to the
16
Governor-General for the appointment of a person as the
17
Independent Parliamentary Advisor, the Prime Minister must:
18
(a) consult with the Senate Committee of Privileges and the
19
House of Representatives Committee of Privileges and
20
Members' Interests by referring the proposed appointment to
21
each committee for consideration; and
22
(b) allow each committee at least 10 sitting days of the relevant
23
House from the date of the referral for the committees to
24
comment on the proposed appointment; and
25
(c) take into account any comments the committees make in his
26
or her decision whether to continue with the proposed
27
recommendation or not.
28
Administrative provisions Part 9
Appointment etc. of the integrity officers Division 2
Section 136
No. , 2013
National Integrity Commission Bill 2013
129
136 General terms and conditions of appointment
1
(1) The Independent Parliamentary Advisor holds office for the period
2
specified in his or her instrument of appointment. The period must
3
not exceed 5 years. The sum of the periods for which the
4
Independent Parliamentary Advisor holds office must not exceed 5
5
years.
6
(2) The Independent Parliamentary Advisor may be appointed on a
7
full-time or part-time basis.
8
(3) The Independent Parliamentary Advisor holds office on the terms
9
and conditions (if any), in relation to matters not covered by this
10
Act, that are determined by the Governor-General.
11
137 Engaging in other paid employment
12
If the Independent Parliamentary Advisor is appointed on a
13
full-time basis, the Independent Parliamentary Advisor must not
14
engage in paid employment outside the duties of his or her office
15
without the Prime Minister's approval.
16
138 Remuneration
17
(1) The Independent Parliamentary Advisor is to be paid the
18
remuneration that is determined by the Remuneration Tribunal. If
19
no determination of remuneration by the Tribunal is in operation,
20
the Independent Parliamentary Advisor is to be paid the
21
remuneration that is prescribed by the regulations.
22
(2) The Independent Parliamentary Advisor is to be paid the
23
allowances that are prescribed by the regulations.
24
(3) This section has effect subject to the Remuneration Tribunal Act
25
1973.
26
139 Leave of absence
27
(1) The Independent Parliamentary Advisor has the recreation leave
28
entitlements that are determined by the Remuneration Tribunal.
29
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 140
130
National Integrity Commission Bill 2013
No. , 2013
(2) The Prime Minister may grant the Independent Parliamentary
1
Advisor leave of absence, other than recreation leave, on the terms
2
and conditions as to remuneration or otherwise that the Prime
3
Minister determines.
4
140 Resignation
5
(1) The Independent Parliamentary Advisor may resign his or her
6
appointment by giving the Governor-General a written resignation.
7
(2) The resignation takes effect on the day it is received by the
8
Governor-General or, if a later day is specified in the resignation,
9
on that later day.
10
141 Termination of appointment
11
(1) The Governor-General may terminate the appointment of the
12
Independent Parliamentary Advisor for misbehaviour or physical
13
or mental incapacity.
14
(2) The Governor-General must terminate the appointment of the
15
Independent Parliamentary Advisor if any of the following apply:
16
(a) the Independent Parliamentary Advisor:
17
(i) becomes bankrupt; or
18
(ii) applies to take the benefit of any law for the relief of
19
bankrupt or insolvent debtors; or
20
(iii) compounds with his or her creditors; or
21
(iv) makes an assignment of his or her remuneration for the
22
benefit of his or her creditors;
23
(b) if the Independent Parliamentary Advisor is appointed on a
24
full-time basis:
25
(i) the Independent Parliamentary Advisor engages, except
26
with the Prime Minister's approval, in paid employment
27
outside the duties of his or her office; or
28
(ii) the Independent Parliamentary Advisor is absent, except
29
on leave of absence, for 14 consecutive days or for 28
30
days in any 12 months;
31
Administrative provisions Part 9
Appointment etc. of the integrity officers Division 2
Section 142
No. , 2013
National Integrity Commission Bill 2013
131
(c) if the Independent Parliamentary Advisor is appointed on a
1
part-time basis--the Independent Parliamentary Advisor is
2
absent, except on leave of absence, to an extent that the
3
Prime Minister considers excessive;
4
(d) the Independent Parliamentary Advisor fails, without
5
reasonable excuse, to comply with section 143 (disclosure of
6
interests).
7
142 Acting appointments
8
(1) The Prime Minister may, by written instrument, appoint a person to
9
act as the Independent Parliamentary Advisor:
10
(a) during a vacancy in the office of the Independent
11
Parliamentary Advisor (whether or not an appointment has
12
previously been made to the office); or
13
(b) during any period, or during all periods, when the
14
Independent Parliamentary Advisor:
15
(i) is absent from duty or from Australia; or
16
(ii) is, for any reason, unable to perform the duties of the
17
office.
18
(2) The Prime Minister must not appoint the National Integrity
19
Commissioner, an Assistant National Integrity Commissioner, the
20
Law Enforcement Integrity Commissioner or an Assistant Law
21
Enforcement Integrity Commissioner to act as the Independent
22
Parliamentary Advisor for the purposes of paragraph (1)(a) or (b).
23
(3) A person appointed to act during a vacancy mentioned in
24
paragraph (1)(a) must not act for more than 12 months.
25
(4) Anything done by or in relation to a person purporting to act under
26
an appointment is not invalid merely because of any of the
27
following:
28
(a) the occasion for the appointment had not arisen;
29
(b) there was a defect or irregularity in connection with the
30
appointment;
31
(c) the appointment had ceased to have effect;
32
(d) the occasion to act had not arisen or had ceased.
33
Part 9 Administrative provisions
Division 2 Appointment etc. of the integrity officers
Section 143
132
National Integrity Commission Bill 2013
No. , 2013
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
1
143 Disclosure of interests
2
The Independent Parliamentary Advisor must give written notice to
3
the Prime Minister of all interests, pecuniary or otherwise, that the
4
Independent Parliamentary Advisor has or acquires and that
5
conflict or could conflict with the proper performance of the
6
independent parliamentary advisor functions.
7
Administrative provisions Part 9
Appointment etc. of Assistant National Integrity Commissioners Division 3
Section 144
No. , 2013
National Integrity Commission Bill 2013
133
Division 3--Appointment etc. of Assistant National
1
Integrity Commissioners
2
144 Appointment of Assistant National Integrity Commissioners
3
Appointment by Governor-General
4
An Assistant National Integrity Commissioner is to be appointed
5
by the Governor-General by written instrument.
6
Note:
An Assistant National Integrity Commissioner is eligible for
7
reappointment (see section 33AA of the Acts Interpretation Act 1901).
8
145 General terms and conditions of appointment
9
(1) An Assistant National Integrity Commissioner holds office for the
10
period specified in his or her instrument of appointment. The
11
period must not exceed 5 years. The sum of the periods for which a
12
person holds office as an Assistant National Integrity
13
Commissioner holds office must not exceed 5 years.
14
(2) An Assistant National Integrity Commissioner may be appointed
15
on either a full-time or part-time basis.
16
(3) A person holding office as an Assistant National Integrity
17
Commissioner holds office on the terms and conditions (if any), in
18
relation to matters not covered by this Act, that are determined by
19
the Governor-General.
20
146 Engaging in other paid employment
21
(1) An Assistant National Integrity Commissioner appointed on a
22
full-time basis must not engage in paid employment outside the
23
duties of his or her office without the Prime Minister's approval.
24
(2) An Assistant National Integrity Commissioner appointed on a
25
part-time basis must not engage in paid employment that, in the
26
Prime Minister's opinion, conflicts or could conflict with the
27
Part 9 Administrative provisions
Division 3 Appointment etc. of Assistant National Integrity Commissioners
Section 147
134
National Integrity Commission Bill 2013
No. , 2013
proper performance of the Assistant National Integrity
1
Commissioner's duties.
2
147 Remuneration
3
(1) An Assistant National Integrity Commissioner is to be paid the
4
remuneration that is determined by the Remuneration Tribunal. If
5
no determination of that remuneration by the Tribunal is in
6
operation, an Assistant National Integrity Commissioner is to be
7
paid the remuneration that is prescribed by the regulations.
8
(2) An Assistant National Integrity Commissioner is to be paid the
9
allowances that are prescribed by the regulations.
10
(3) Subsections (1) and (2) have effect subject to the Remuneration
11
Tribunal Act 1973.
12
148 Leave of absence
13
(1) A full-time Assistant National Integrity Commissioner has the
14
recreation leave entitlements that are determined by the
15
Remuneration Tribunal.
16
(2) The Prime Minister may grant a full-time Assistant National
17
Integrity Commissioner leave of absence, other than recreation
18
leave, on the terms and conditions as to remuneration or otherwise
19
that the Prime Minister determines.
20
(3) The National Integrity Commissioner may grant leave of absence
21
to any part-time Assistant National Integrity Commissioner on the
22
terms and conditions that the National Integrity Commissioner
23
determines.
24
149 Resignation
25
(1) An Assistant National Integrity Commissioner may resign his or
26
her appointment by giving the Governor-General a written
27
resignation.
28
Administrative provisions Part 9
Appointment etc. of Assistant National Integrity Commissioners Division 3
Section 150
No. , 2013
National Integrity Commission Bill 2013
135
(2) The resignation takes effect on the day it is received by the
1
Governor-General or, if a later day is specified in the resignation,
2
on that later day.
3
150 Termination of employment
4
(1) The Governor-General may terminate the appointment of an
5
Assistant National Integrity Commissioner for misbehaviour or
6
physical or mental incapacity.
7
(2) The Governor-General must terminate the appointment of an
8
Assistant National Integrity Commissioner if any of the following
9
apply:
10
(a) the Assistant National Integrity Commissioner:
11
(i) becomes bankrupt; or
12
(ii) applies to take the benefit of any law for the relief of
13
bankrupt or insolvent debtors; or
14
(iii) compounds with his or her creditors; or
15
(iv) makes an assignment of his or her remuneration for the
16
benefit of his or her creditors;
17
(b) if the Assistant National Integrity Commissioner is appointed
18
on a full-time basis--the Assistant National Integrity
19
Commissioner is absent, except on leave of absence, for 14
20
consecutive days or for 28 days in any 12 months;
21
(c) if the Assistant National Integrity Commissioner is appointed
22
on a part-time basis--the Assistant National Integrity
23
Commissioner is absent, except on leave of absence, to an
24
extent that the Prime Minister considers excessive;
25
(d) the Assistant National Integrity Commissioner engages,
26
except with the Prime Minister's approval, in paid
27
employment outside the duties of his or her office;
28
(e) the Assistant National Integrity Commissioner fails, without
29
reasonable excuse, to comply with section 152 (disclosure of
30
interests).
31
Part 9 Administrative provisions
Division 3 Appointment etc. of Assistant National Integrity Commissioners
Section 151
136
National Integrity Commission Bill 2013
No. , 2013
151 Acting appointments
1
(1) The Prime Minister may appoint a person to act as an Assistant
2
National Integrity Commissioner:
3
(a) during a vacancy in the office of the Assistant National
4
Integrity Commissioner (whether or not an appointment has
5
previously been made to the office); or
6
(b) during any period, or during all periods, when the Assistant
7
National Integrity Commissioner is absent from duty or from
8
Australia, or is, for any reason, unable to perform the duties
9
of the office.
10
Note:
See also section 33A of the Acts Interpretation Act 1901, which
11
contains extra rules about acting appointments.
12
(2) A person appointed to act during a vacancy mentioned in
13
paragraph (1)(a) must not act for more than 12 months.
14
(3) Anything done by or in relation to a person purporting to act under
15
an appointment is not invalid merely because:
16
(a) the occasion for the appointment had not arisen; or
17
(b) there was a defect or irregularity in connection with the
18
appointment; or
19
(c) the appointment had ceased to have effect; or
20
(d) the occasion to act had not arisen or had ceased.
21
152 Disclosure of interests
22
An Assistant National Integrity Commissioner must give written
23
notice to the Prime Minister of all interests (pecuniary or
24
otherwise) that the Assistant National Integrity Commissioner has
25
or acquires and that conflict or could conflict with the proper
26
performance of the Assistant National Integrity Commissioner's
27
duties.
28
Administrative provisions Part 9
Staff, consultants and delegations Division 4
Section 153
No. , 2013
National Integrity Commission Bill 2013
137
Division 4--Staff, consultants and delegations
1
153 Staff
2
(1) The staff of the National Integrity Commission must be persons
3
appointed or engaged under the Public Service Act 1999.
4
(2) The National Integrity Commissioner must, by writing, designate
5
positions in Commission as positions assisting the Independent
6
Parliamentary Advisor in the performance of the independent
7
parliamentary advisor functions.
8
Note:
For creation of positions, see section 77 of the Public Service Act
9
1999.
10
(3) A person in a position designated under subsection (2) must not be
11
involved in assisting:
12
(a) the National Integrity Commissioner in the performance of
13
the national integrity commissioner functions; or
14
(b) the Law Enforcement Integrity Commissioner in the
15
performance of the law enforcement integrity commissioner
16
functions.
17
154 Consultants
18
(1) The National Integrity Commissioner may engage persons having
19
suitable qualifications and experience as consultants to the
20
National Integrity Commission.
21
(2) A person may only be engaged for a period of up to 2 years.
22
However, a person's contract may be extended beyond 2 years for
23
the sole purpose of completing a particular task or project begun in
24
the initial 2-year period.
25
(3) Other terms and conditions of appointment are to be determined by
26
the National Integrity Commissioner.
27
Part 9 Administrative provisions
Division 4 Staff, consultants and delegations
Section 155
138
National Integrity Commission Bill 2013
No. , 2013
155 Delegation--National Integrity Commissioner
1
Delegation to an Assistant National Integrity Commissioner
2
(1) The National Integrity Commissioner may delegate all or any of
3
his or her functions or powers to an Assistant National Integrity
4
Commissioner.
5
(2) Subsection (1) does not apply to the power to hold a hearing for the
6
purpose of conducting a public inquiry.
7
Delegation to certain staff members
8
(3) The National Integrity Commissioner may delegate all or any of
9
his or her functions or powers to a staff member of the National
10
Integrity Commission who is an SES employee or an acting SES
11
employee.
12
(4) Subsection (3) does not apply to:
13
(a) the power to hold a hearing for the purpose of conducting a
14
public inquiry; or
15
(b) a power under Division 2 or 3 of Part 6.
16
Form of delegation
17
(5) A delegation under this section must be in writing and signed by
18
the National Integrity Commissioner.
19
Administrative provisions Part 9
Public reporting Division 5
Section 156
No. , 2013
National Integrity Commission Bill 2013
139
Division 5--Public reporting
1
156 Annual report
2
(1) The National Integrity Commissioner must give the Prime
3
Minister, for presentation to each House of the Parliament, a report
4
(the annual report) on the performance of the national integrity
5
commissioner functions during each financial year.
6
Note:
See also section 34C of the Acts Interpretation Act 1901, which
7
contains extra rules about annual reports.
8
(2) The annual report for the financial year must include the following:
9
(a) the prescribed particulars of:
10
(i) corruption issues raised by allegations or information
11
referred to the National Integrity Commissioner under
12
section 19 during that year; and
13
(ii) corruption issues dealt with by the National Integrity
14
Commissioner on his or her own initiative during that
15
year; and
16
(iii) corruption issues investigated by the National Integrity
17
Commissioner during that year;
18
(b) a description of investigations conducted by the National
19
Integrity Commissioner during the financial year that the
20
National Integrity Commissioner considers raise significant
21
issues or developments in law enforcement;
22
(c) a description, which may include statistics, of any patterns or
23
trends, and the nature and scope, of corruption:
24
(i) in Commonwealth agencies; or
25
(ii) by public officials;
26
that have come to the National Integrity Commissioner's
27
attention during that year in the performance of the national
28
integrity commissioner functions;
29
(d) any recommendations for changes to:
30
(i) the laws of the Commonwealth; or
31
(ii) administrative practices of Commonwealth agencies;
32
Part 9 Administrative provisions
Division 5 Public reporting
Section 157
140
National Integrity Commission Bill 2013
No. , 2013
that the National Integrity Commissioner, as a result of
1
performing the national integrity commissioner functions
2
during that year, considers should be made;
3
(e) the extent to which investigations by the National Integrity
4
Commissioner have resulted in the prosecution in that year of
5
persons for offences;
6
(f) the extent to which investigations by the National Integrity
7
Commissioner have resulted in confiscation proceedings in
8
that year;
9
(g) details of the number and results of:
10
(i) applications made to the Federal Court or the Federal
11
Magistrates Court under the Administrative Decisions
12
(Judicial Review) Act 1977 for orders of review in
13
respect of matters arising under this Act; and
14
(ii) other court proceedings involving the National Integrity
15
Commissioner;
16
being applications and proceedings that were determined, or
17
otherwise disposed of, during that year.
18
157 Reports on investigations and public inquiries
19
(1) If:
20
(a) both:
21
(i) the National Integrity Commissioner gives the Prime
22
Minister a report prepared under subsection 33(1); and
23
(ii) one or more public hearings were held in the course of
24
the investigation to which the report relates; or
25
(b) the National Integrity Commissioner gives the Prime
26
Minister a report prepared under subsection 40(1);
27
the Prime Minister must table the report in each House of the
28
Parliament within 15 sitting days of that House after its receipt by
29
the Prime Minister.
30
(2) Before the report is tabled in each House of the Parliament, the
31
Prime Minister must remove information from the report if the
32
Prime Minister is of the view that its inclusion may:
33
(a) endanger a person's life or physical safety; or
34
Administrative provisions Part 9
Public reporting Division 5
Section 158
No. , 2013
National Integrity Commission Bill 2013
141
(b) prejudice proceedings brought as a result of a corruption
1
investigation or public inquiry; or
2
(c) compromise operational activities, or methodologies, of the
3
National Integrity Commission.
4
(3) To avoid doubt, the Prime Minister is not required by
5
subsection (1) to cause a supplementary report prepared under
6
subsection 33(6) or 40(5) to be tabled in either House of the
7
Parliament.
8
158 Special reports
9
National Integrity Commissioner may give Prime Minister special
10
reports
11
(1) The National Integrity Commissioner may, from time to time, give
12
the Prime Minister, for presentation to the Parliament, a special
13
report:
14
(a) on the operations of the National Integrity Commission for a
15
part of a financial year; or
16
(b) on any matter relating to, or arising in connection with, the
17
performance of the national integrity commissioner
18
functions, or the exercise of the National Integrity
19
Commissioner's powers, under this Act; or
20
(c) in accordance with subsection (2).
21
(2) The Prime Minister or a House of the Parliament may request the
22
National Integrity Commissioner to, or the National Integrity
23
Commissioner may, on his or her own initiative, prepare reports
24
about the need for or the desirability of legislative or administrative
25
action on issues in relation to:
26
(a) corruption generally in Commonwealth agencies; or
27
(b) the integrity of public officials;
28
whether those issues arose before or after the commencement of
29
this Act.
30
(3) If the National Integrity Commissioner gives a special report to the
31
Prime Minister under subsection (1), the Prime Minister must table
32
Part 9 Administrative provisions
Division 5 Public reporting
Section 158
142
National Integrity Commission Bill 2013
No. , 2013
the report in each House of the Parliament within 15 sitting days of
1
that House after its receipt by the Prime Minister.
2
Opinion or finding critical of a government agency or person
3
(4) The National Integrity Commissioner must not disclose
4
information in a special report prepared under subsection (1) that
5
includes an opinion or finding that is critical of a government
6
agency or person (either expressly or impliedly) unless the
7
National Integrity Commissioner has taken the action required by
8
subsection (5) or (6) before disclosing the information.
9
(5) If the opinion or finding is critical of a government agency, the
10
National Integrity Commissioner must give the head of the agency:
11
(a) a statement setting out the opinion or finding; and
12
(b) a reasonable opportunity to appear before him or her and to
13
make submissions in relation to the opinion or finding.
14
(6) If the opinion or finding is critical of a person, the National
15
Integrity Commissioner must give the person:
16
(a) a statement setting out the opinion or finding; and
17
(b) a reasonable opportunity to appear before him or her and to
18
make submissions in relation to the opinion or finding.
19
(7) The submissions may be made orally or in writing.
20
(8) The head of a government agency may:
21
(a) appear before the National Integrity Commissioner
22
personally; or
23
(b) authorise another person to appear before the National
24
Integrity Commissioner on his or her behalf.
25
(9) A person referred to in subsection (6):
26
(a) may appear before the National Integrity Commissioner
27
personally; or
28
(b) may, with the National Integrity Commissioner's approval,
29
be represented by another person.
30
Administrative provisions Part 9
Public reporting Division 5
Section 159
No. , 2013
National Integrity Commission Bill 2013
143
159 Contents of annual or special report
1
(1) The National Integrity Commissioner may exclude information
2
from an annual report under section 156, or a special report under
3
section 158, if the National Integrity Commissioner is satisfied
4
that:
5
(a) the information is sensitive information; and
6
(b) it is desirable in the circumstances to exclude the information
7
from the report.
8
(2) In deciding whether to exclude information under subsection (1),
9
the National Integrity Commissioner must seek to achieve an
10
appropriate balance between:
11
(a) the public interest that would be served by including the
12
information in the report; and
13
(b) the prejudicial consequences that might result from including
14
the information in the report.
15
Part 9 Administrative provisions
Division 6 Confidentiality requirements
Section 160
144
National Integrity Commission Bill 2013
No. , 2013
Division 6--Confidentiality requirements
1
160 Confidentiality requirements for National Integrity Commission
2
staff
3
(1) A person who is, or has been, a staff member of the National
4
Integrity Commission commits an offence if:
5
(a) the person (either directly or indirectly and either while he or
6
she is, or after he or she ceases to be, a staff member of the
7
National Integrity Commission):
8
(i) makes a record of any information; or
9
(ii) divulges or communicates any information; and
10
(b) the person acquired the information:
11
(i) because of his or her being a staff member of the
12
National Integrity Commission; or
13
(ii) in the course of the carrying out his or her duties as a
14
staff member of the National Integrity Commission; and
15
(c) the information was disclosed or obtained under the
16
provisions of, or for the purposes of, this Act.
17
Penalty: Imprisonment for 12 months.
18
(2) Subsection (1) has effect subject to sections 161 and 162.
19
161 Exceptions to confidentiality requirements
20
Purposes connected with National Integrity Commissioner's
21
functions and powers
22
(1) Subsection 160(1) does not prevent a person from making a record
23
of information, or divulging or communicating information, if the
24
person:
25
(a) acquired the information in the performance of his or her
26
duties as a staff member of the National Integrity
27
Commission; and
28
(b) makes the record, or divulges or communicates the
29
information:
30
Administrative provisions Part 9
Confidentiality requirements Division 6
Section 161
No. , 2013
National Integrity Commission Bill 2013
145
(i) for the purposes of a corruption investigation; or
1
(ii) for purposes otherwise connected with the exercise of
2
the powers, or the performance of the national integrity
3
commissioner functions, under this Act.
4
Note:
A defendant bears an evidential burden in relation to the matter in
5
subsection (1) (see subsection 13.3(3) of the Criminal Code).
6
(2) Without limiting subsection (1), subsection 160(1) does not
7
prevent a person from communicating information to another
8
person if:
9
(a) the person acquired the information in the performance of his
10
or her duties as a staff member of the National Integrity
11
Commission; and
12
(b) a provision of this Act requires or permits the National
13
Integrity Commissioner to communicate that information to
14
the other person.
15
Note:
A defendant bears an evidential burden in relation to the matter in
16
subsection (2) (see subsection 13.3(3) of the Criminal Code).
17
Giving information to relevant agency
18
(3) Subsection 160(1) does not prevent the National Integrity
19
Commissioner from disclosing information to the following heads
20
of agencies:
21
(a) the Commonwealth Ombudsman;
22
(b) an Ombudsman of a State or Territory;
23
(c) the head of a law enforcement agency;
24
(d) the head of a police force of a State or Territory;
25
(e) the head of an integrity agency for a State or Territory;
26
(f) the head of another government agency;
27
if the National Integrity Commissioner is satisfied that, having
28
regard to the functions of the agency concerned, it is appropriate to
29
do so.
30
Note:
A defendant bears an evidential burden in relation to the matter in
31
subsection (3) (see subsection 13.3(3) of the Criminal Code).
32
Part 9 Administrative provisions
Division 6 Confidentiality requirements
Section 162
146
National Integrity Commission Bill 2013
No. , 2013
National Integrity Commissioner to be satisfied that confidentiality
1
regime in place
2
(4) If the National Integrity Commissioner proposes to disclose
3
information to a person under subsection (3), the National Integrity
4
Commissioner must satisfy himself or herself that a law of the
5
Commonwealth, a State or Territory makes provision
6
corresponding to the provision made by section 160 and this
7
section with respect to the confidentiality of information acquired
8
by that person.
9
Disclosure required by another Commonwealth law
10
(5) Subsection 160(1) does not prevent a person from disclosing
11
information if the disclosure is required under another law of the
12
Commonwealth.
13
Note:
A defendant bears an evidential burden in relation to the matter in
14
subsection (5) (see subsection 13.3(3) of the Criminal Code).
15
Disclosure to particular person
16
(6) The National Integrity Commissioner may disclose information to
17
a particular person if the National Integrity Commissioner is
18
satisfied that it is necessary to do so in order to protect the person's
19
life or physical safety.
20
162 Disclosure by National Integrity Commissioner in public
21
interest etc.
22
(1) If the National Integrity Commissioner is satisfied that it is in the
23
public interest to do so, the National Integrity Commissioner may
24
disclose information to the public, or a section of the public, about:
25
(a) the performance of the national integrity commissioner
26
functions; or
27
(b) the exercise of the National Integrity Commissioner's
28
powers; or
29
(c) an investigation of a corruption issue conducted by the
30
National Integrity Commissioner; or
31
Administrative provisions Part 9
Confidentiality requirements Division 6
Section 163
No. , 2013
National Integrity Commission Bill 2013
147
(d) a public inquiry conducted by the National Integrity
1
Commissioner.
2
(2) Subsection (1) has effect:
3
(a) subject to subsection (3) and section 163; and
4
(b) despite any other provision of this Act.
5
(3) In deciding whether to disclose under subsection (1) information
6
that the National Integrity Commissioner is satisfied is sensitive
7
information, the National Integrity Commissioner must seek to
8
achieve an appropriate balance between:
9
(a) the public interest that would be served by disclosing the
10
information; and
11
(b) the prejudicial consequences that might result from
12
disclosing the information.
13
163 Opportunity to be heard
14
Opinion or finding critical of a government agency or person
15
(1) The National Integrity Commissioner must not disclose
16
information under section 162 in relation to an investigation of a
17
corruption issue under this Act that includes an opinion or finding
18
that is critical of a government agency or person (either expressly
19
or impliedly) unless the National Integrity Commissioner has taken
20
the action required by subsection (2) or (3) before disclosing the
21
information.
22
Opportunity to appear and make submissions
23
(2) If the opinion or finding is critical of a government agency, the
24
National Integrity Commissioner must give the head of the agency:
25
(a) a statement setting out the opinion or finding; and
26
(b) a reasonable opportunity to appear before him or her and to
27
make submissions in relation to the opinion or finding.
28
(3) If the opinion or finding is critical of a person, the National
29
Integrity Commissioner must give the person:
30
(a) a statement setting out the opinion or finding; and
31
Part 9 Administrative provisions
Division 6 Confidentiality requirements
Section 164
148
National Integrity Commission Bill 2013
No. , 2013
(b) a reasonable opportunity to appear before him or her and to
1
make submissions in relation to the opinion or finding.
2
(4) The submissions may be made orally or in writing.
3
(5) The head of a government agency may:
4
(a) appear before the National Integrity Commissioner
5
personally; or
6
(b) authorise another person to appear before the National
7
Integrity Commissioner on his or her behalf.
8
(6) A person referred to in subsection (3):
9
(a) may appear before the National Integrity Commissioner
10
personally; or
11
(b) may, with the National Integrity Commissioner's approval,
12
be represented by another person.
13
164 National Integrity Commission staff generally not compellable
14
in court proceedings
15
(1) This section applies to:
16
(a) proceedings before a court (whether exercising federal
17
jurisdiction or not); and
18
(b) proceedings before any tribunal, authority or person having
19
power to require the production of documents or the
20
answering of questions.
21
(2) A person who is, or has been, a staff member of the National
22
Integrity Commission is not compellable in any proceedings to
23
which this section applies:
24
(a) to disclose any information that:
25
(i) he or she acquired because of his or her being or having
26
been a staff member of the National Integrity
27
Commission; and
28
(ii) was disclosed or obtained under the provisions of, or for
29
the purposes of, this Act; or
30
(b) to produce any document that:
31
Administrative provisions Part 9
Confidentiality requirements Division 6
Section 164
No. , 2013
National Integrity Commission Bill 2013
149
(i) has come into his or her custody or control in the course
1
of, or because of, the performance of his or her duties
2
under this Act; and
3
(ii) was produced under the provisions of, or for the
4
purposes of, this Act.
5
(3) Subsection (1) does not apply to a proceeding if:
6
(a) any of the following is a party to the proceedings in his or her
7
official capacity:
8
(i) the National Integrity Commissioner;
9
(ii) a delegate of the National Integrity Commissioner;
10
(iii) a person authorised by the National Integrity
11
Commissioner to exercise a power or perform a function
12
under this Act; or
13
(b) the proceeding is brought for the purposes of carrying into
14
effect a provision of this Act; or
15
(c) the proceeding is a prosecution, civil penalty proceeding or
16
confiscation proceeding brought as a result of a corruption
17
investigation or public inquiry.
18
(4) In this section:
19
produce includes permit access to, and production has a
20
corresponding meaning.
21
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 165
150
National Integrity Commission Bill 2013
No. , 2013
Part 10--Parliamentary Joint Committee on the
1
National Integrity Commission
2
3
165 Definitions
4
In this Part:
5
ACLEI corruption issue has the meaning given by section 8 of the
6
Law Enforcement Integrity Commissioner Act 2006.
7
Australian Commission for Law Enforcement Integrity or ACLEI
8
means the Australian Commission for Law Enforcement Integrity
9
established by section 195 of the Law Enforcement Integrity
10
Commissioner Act 2006.
11
committee means the Parliamentary Joint Committee on the
12
National Integrity Commission for the time being constituted under
13
this Part.
14
member means a member of the committee.
15
section 149 certified information has the same meaning as in the
16
Law Enforcement Integrity Commissioner Act 2006.
17
special investigator means a person conducting a special
18
investigation of an ACLEI corruption issue under Division 4 of
19
Part 12 of the Law Enforcement Integrity Commissioner Act 2006.
20
166 Parliamentary Joint Committee on the National Integrity
21
Commission
22
(1) As soon as practicable after the commencement of the first session
23
of each Parliament, a joint committee of members of the
24
Parliament to be known as the Parliamentary Joint Committee on
25
the National Integrity Commission is to be appointed according to
26
the practice of the Parliament with reference to the appointment of
27
members to serve on joint select committees of both Houses of the
28
Parliament.
29
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 167
No. , 2013
National Integrity Commission Bill 2013
151
(2) The committee is to consist of 10 members, 5 of whom must be
1
members of the Senate appointed by the Senate, and 5 of whom
2
must be members of the House of Representatives appointed by
3
that House.
4
(3) A member of the Parliament is not eligible for appointment as a
5
member of the committee if he or she is:
6
(a) a minister; or
7
(b) the President of the Senate; or
8
(c) the Speaker of the House of Representatives; or
9
(d) the Deputy President and Chair of Committees of the Senate
10
or the Chair of Committees of the House of Representatives.
11
(4) A member ceases to hold office:
12
(a) when the House of Representatives expires by the passing of
13
time or is dissolved; or
14
(b) if he or she becomes the holder of an office specified in any
15
of the paragraphs of subsection (3); or
16
(c) if he or she ceases to be a member of the House of the
17
Parliament by which he or she was appointed; or
18
(d) if he or she resigns his or her office as provided by
19
subsection (5) or (6).
20
(5) A member appointed by the Senate may resign his or her office by
21
writing signed by him or her and delivered to the President of the
22
Senate.
23
(6) A member appointed by the House of Representatives may resign
24
his or her office by writing signed by him or her and delivered to
25
the Speaker of that House.
26
(7) Either House of the Parliament may appoint one of its members to
27
fill a vacancy amongst the members of the committee appointed by
28
that House.
29
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 167
152
National Integrity Commission Bill 2013
No. , 2013
167 Powers and proceedings of the committee
1
All matters relating to the powers and proceedings of the
2
committee are to be determined by resolution of both Houses of the
3
Parliament.
4
168 Duties of the committee
5
National Integrity Commissioner
6
(1) The committee has the following duties in relation to the National
7
Integrity Commissioner:
8
(a) to consider the proposed recommendation for an appointment
9
of the National Integrity Commissioner in accordance with
10
section 169;
11
(b) to monitor and review the National Integrity Commissioner's
12
performance of national integrity commissioner functions;
13
(c) to report to both Houses of the Parliament, with such
14
comments as it thinks fit, on any matter:
15
(i) connected with the performance of the national integrity
16
commissioner functions; or
17
(ii) relating to the National Integrity Commission;
18
that the committee considers should be directed to the
19
attention of Parliament;
20
(d) to examine:
21
(i) each annual report prepared by the National Integrity
22
Commissioner under section 156; and
23
(ii) any special report prepared by the National Integrity
24
Commissioner under section 158;
25
and report to the Parliament on any matter appearing in, or
26
arising out of, any such annual report or special report;
27
(e) to examine trends and changes in law enforcement in so far
28
as they relate to corruption and report to both Houses of the
29
Parliament on any change that the committee thinks
30
desirable:
31
(i) to the national integrity commissioner functions or the
32
powers of the National Integrity Commissioner; or
33
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 168
No. , 2013
National Integrity Commission Bill 2013
153
(ii) to the procedures followed by the National Integrity
1
Commissioner; or
2
(iii) to the structure of the National Integrity Commission;
3
(f) to inquire into any question in connection with the
4
committee's duties that is referred to it by either House of the
5
Parliament, and to report to that House on that question.
6
(2) Subsection (1) does not authorise the committee:
7
(a) to investigate a corruption issue; or
8
(b) to reconsider the National Integrity Commissioner's
9
decisions or recommendations in relation to a particular
10
corruption issue.
11
Law Enforcement Integrity Commissioner
12
(3) The committee has the following duties in relation to the Law
13
Enforcement Integrity Commissioner:
14
(a) to monitor and review the Law Enforcement Integrity
15
Commissioner's performance of law enforcement integrity
16
commissioner functions;
17
(b) to report to both Houses of the Parliament, with such
18
comments as it thinks fit, on any matter:
19
(i) connected with the performance of the law enforcement
20
integrity commissioner functions; or
21
(ii) relating to the Australian Commission for Law
22
Enforcement Integrity;
23
that the committee considers should be directed to the
24
attention of Parliament;
25
(c) to examine:
26
(i) each annual report prepared by the Law Enforcement
27
Integrity Commissioner under section 201 of the Law
28
Enforcement Integrity Commissioner Act 2006; and
29
(ii) any special report prepared by the Law Enforcement
30
Integrity Commissioner under section 204 of the Law
31
Enforcement Integrity Commissioner Act 2006;
32
and report to the Parliament on any matter appearing in, or
33
arising out of, any such annual report or special report;
34
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 169
154
National Integrity Commission Bill 2013
No. , 2013
(d) to examine trends and changes in:
1
(i) law enforcement in so far as they relate to corruption;
2
and
3
(ii) corruption generally in, or the integrity of staff members
4
of, Commonwealth agencies with a law enforcement
5
function;
6
and report to both Houses of the Parliament on any change
7
that the committee thinks desirable:
8
(iii) to the law enforcement integrity commissioner functions
9
or the powers of the Law Enforcement Integrity
10
Commissioner; or
11
(iv) to the procedures followed by the Law Enforcement
12
Integrity Commissioner; or
13
(v) to the structure of the Australian Commission for Law
14
Enforcement Integrity;
15
(e) to inquire into any question in connection with the
16
committee's duties that is referred to it by either House of the
17
Parliament, and to report to that House upon that question.
18
(4) Subsection (3) does not authorise the committee:
19
(a) to investigate a corruption issue (as defined in section 7 of
20
the Law Enforcement Integrity Commissioner Act 2006) or an
21
ACLEI corruption issue; or
22
(b) to reconsider the Law Enforcement Integrity Commissioner's
23
decisions or recommendations in relation to a particular
24
corruption issue (as defined in section 7 of the Law
25
Enforcement Integrity Commissioner Act 2006) or an ACLEI
26
corruption issue; or
27
(c) to reconsider a special investigator's decisions or
28
recommendations in relation to an ACLEI corruption issue.
29
169 Committee may approve or reject recommendation for
30
appointment of National Integrity Commissioner
31
(1) If the Prime Minister refers a proposed recommendation for an
32
appointment of the National Integrity Commissioner to the
33
committee for approval, the committee must:
34
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 170
No. , 2013
National Integrity Commission Bill 2013
155
(a) approve or reject the proposed recommendation within 10
1
sitting days after receiving it; or
2
(b) notify the Prime Minister in accordance with subsection (2).
3
Note:
Section 125 requires a proposed recommendation to be referred to the
4
committee for approval.
5
(2) The committee may notify the Prime Minister within 10 sitting
6
days after receiving a proposed recommendation that it needs more
7
time to consider the proposed recommendation. If the committee
8
does so, the committee must approve or reject the proposed
9
recommendation within 20 sitting days after receiving it.
10
(3) The decision to approve or reject a proposed recommendation is to
11
be by majority of the members of the committee for the time being
12
holding office.
13
(4) If the committee does not make a decision on a proposed
14
recommendation by the required time, the committee is taken, at
15
that time, to have approved the proposal.
16
(5) The committee must notify the Prime Minister of its decision in
17
relation to a proposed recommendation as soon as practicable after
18
making the decision.
19
(6) A notification under this section must be in writing.
20
(7) The committee must report to both Houses of the Parliament on its
21
decision in relation to a proposed recommendation.
22
170 Disclosure to committee by National Integrity Commissioner
23
(1) Subject to subsection (2), the National Integrity Commissioner:
24
(a) must comply with a request by the committee to give the
25
committee information in relation to:
26
(i) an investigation of a corruption issue; or
27
(ii) a public inquiry;
28
that the National Integrity Commissioner has conducted or is
29
conducting; and
30
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 170
156
National Integrity Commission Bill 2013
No. , 2013
(b) must when requested by the committee, and may at such
1
other times as the National Integrity Commissioner thinks
2
appropriate, inform the committee concerning the general
3
performance of the national integrity commissioner
4
functions.
5
(2) The National Integrity Commissioner may decide not to comply
6
with the request if the National Integrity Commissioner is satisfied
7
that:
8
(a) the information is sensitive information; and
9
(b) the public interest that would be served by giving the
10
information to the committee is outweighed by the
11
prejudicial consequences that might result from giving the
12
information to the committee.
13
(3) If the National Integrity Commissioner does not give information
14
to the committee because of subsection (2), the committee may
15
refer the request to the Prime Minister.
16
(4) If the committee refers the request to the Prime Minister, the Prime
17
Minister:
18
(a) must determine in writing whether:
19
(i) the information is sensitive information; and
20
(ii) if it is, whether the public interest that would be served
21
by giving the information to the committee is
22
outweighed by the prejudicial consequences that might
23
result from giving the information to the committee; and
24
(b) must provide copies of that determination to the National
25
Integrity Commissioner and the committee; and
26
(c) must not disclose his or her reasons for determining the
27
question referred to in subparagraph (a)(ii) in the way stated
28
in the determination.
29
(5) A determination made by the Prime Minister under subsection (4)
30
is not a legislative instrument.
31
(6) If the Prime Minister determines that:
32
(a) the information is not sensitive information; or
33
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 171
No. , 2013
National Integrity Commission Bill 2013
157
(b) the information is sensitive information but the prejudicial
1
consequences that might result from giving the information
2
to the committee do not outweigh the public interest that
3
would be served by giving the information to the committee;
4
the National Integrity Commissioner must give the information to
5
the committee.
6
171 Disclosure to committee by Law Enforcement Integrity
7
Commissioner
8
(1) Subject to subsections (2) and (3), the Law Enforcement Integrity
9
Commissioner:
10
(a) must comply with a request by the committee to give the
11
committee information in relation to:
12
(i) an investigation of a corruption issue (as defined in
13
section 7 of the Law Enforcement Integrity
14
Commissioner Act 2006); or
15
(ii) a public inquiry under Part 8 of the Law Enforcement
16
Integrity Commissioner Act 2006;
17
that the Law Enforcement Integrity Commissioner has
18
conducted or is conducting; and
19
(b) must when requested by the committee, and may at such
20
other times as the Law Enforcement Integrity Commissioner
21
thinks appropriate, inform the committee concerning the
22
general performance of the law enforcement integrity
23
commissioner functions.
24
(2) The Law Enforcement Integrity Commissioner must not comply
25
with the request if:
26
(a) the information is section 149 certified information; and
27
(b) the disclosure of the information to the committee would
28
contravene the certificate issued under section 149 of the
29
Law Enforcement Integrity Commissioner Act 2006.
30
(3) The Law Enforcement Integrity Commissioner may decide not to
31
comply with the request if the Law Enforcement Integrity
32
Commissioner is satisfied that:
33
(a) the information is sensitive information; and
34
Part 10 Parliamentary Joint Committee on the National Integrity Commission
Section 172
158
National Integrity Commission Bill 2013
No. , 2013
(b) the public interest that would be served by giving the
1
information to the committee is outweighed by the
2
prejudicial consequences that might result from giving the
3
information to the committee.
4
(4) If the Law Enforcement Integrity Commissioner does not give
5
information to the committee because of subsection (3), the
6
committee may refer the request to the Minister.
7
(5) If the committee refers the request to the Minister, the Minister:
8
(a) must determine in writing whether:
9
(i) the information is sensitive information; and
10
(ii) if it is, whether the public interest that would be served
11
by giving the information to the committee is
12
outweighed by the prejudicial consequences that might
13
result from giving the information to the committee; and
14
(b) must provide copies of that determination to the Law
15
Enforcement Integrity Commissioner and the committee; and
16
(c) must not disclose his or her reasons for determining the
17
question referred to in subparagraph (a)(ii) in the way stated
18
in the determination.
19
(6) A determination made by the Minister under subsection (5) is not a
20
legislative instrument.
21
(7) If the Minister determines that:
22
(a) the information is not sensitive information; or
23
(b) the information is sensitive information but the prejudicial
24
consequences that might result from giving the information
25
to the committee do not outweigh the public interest that
26
would be served by giving the information to the committee;
27
the Law Enforcement Integrity Commissioner must give the
28
information to the committee.
29
172 Disclosure to committee by Minister
30
(1) Subject to subsections (2) and (3), the Minister must comply with a
31
request by the committee to give the committee information in
32
Parliamentary Joint Committee on the National Integrity Commission Part 10
Section 173
No. , 2013
National Integrity Commission Bill 2013
159
relation to an investigation of an ACLEI corruption issue that a
1
special investigator has conducted or is conducting.
2
(2) The Minister must not comply with the request if:
3
(a) the information is section 149 certified information; and
4
(b) the disclosure of the information to the committee would
5
contravene the certificate issued under section 149 of the
6
Law Enforcement Integrity Commissioner Act 2006.
7
(3) The Minister may decide not to comply with the request if the
8
Minister is satisfied that:
9
(a) the information is sensitive information; and
10
(b) the public interest that would be served by giving the
11
information to the committee is outweighed by the
12
prejudicial consequences that might result from giving the
13
information to the committee.
14
173 Ombudsman to brief committee about controlled operations
15
(1) At least once in each year the Ombudsman must provide a briefing
16
to the committee about the Law Enforcement Integrity
17
Commissioner's involvement in controlled operations under
18
Part IAB of the Crimes Act 1914 during the preceding 12 months.
19
(2) For the purposes of receiving a briefing from the Ombudsman
20
under subsection (1), the committee must meet in private.
21
Part 11 Miscellaneous
Section 174
160
National Integrity Commission Bill 2013
No. , 2013
Part 11--Miscellaneous
1
2
174 Offence of victimisation
3
(1) A person commits an offence if the person causes, or threatens to
4
cause, detriment to another person (the victim) on the ground that
5
the victim, or any other person:
6
(a) has referred, or may refer, to the National Integrity
7
Commissioner an allegation, or information, that raises a
8
corruption issue; or
9
(b) has given, or may give, information to the National Integrity
10
Commissioner; or
11
(c) has produced, or may produce, a document or thing to the
12
National Integrity Commissioner.
13
Penalty: Imprisonment for 2 years.
14
(2) For the purpose of subsection (1), a threat may be:
15
(a) express or implied; or
16
(b) conditional or unconditional.
17
(3) In a prosecution for an offence against subsection (1), it is not
18
necessary to prove that the person threatened actually feared that
19
the threat would be carried out.
20
175 Legal and financial assistance in relation to applications for
21
administrative review
22
(1) A person may apply to the Attorney-General for assistance in
23
respect of the person's application, or proposed application, to the
24
Federal Court or the Federal Magistrates Court under the
25
Administrative Decisions (Judicial Review) Act 1977 for an order
26
of review in respect of a matter arising under this Act.
27
(2) The Attorney-General may, if he or she is satisfied that:
28
(a) it would involve substantial hardship to the person to refuse
29
the application; or
30
Miscellaneous Part 11
Section 176
No. , 2013
National Integrity Commission Bill 2013
161
(b) the circumstances of the case are of such a special nature that
1
the application should be granted;
2
authorise the Commonwealth to provide the person with legal or
3
financial assistance, determined by the Attorney-General, in
4
respect of the person's application to the Federal Court or the
5
Federal Magistrates Court, as the case may be.
6
(3) Legal or financial assistance may be given:
7
(a) unconditionally; or
8
(b) subject to such conditions as the Attorney-General
9
determines.
10
(4) An instrument that determines the conditions on which legal or
11
financial assistance may be given is not a legislative instrument.
12
176 Immunity from civil proceedings
13
(1) A staff member of the National Integrity Commission is not liable
14
to civil proceedings in relation to an act done, or omitted to be
15
done, in good faith, in the performance or purported performance,
16
or exercise or purported exercise, of the staff member's functions,
17
powers or duties under, or in relation to, this Act.
18
(2) A person whom the National Integrity Commissioner requests, in
19
writing, to assist a staff member of the National Integrity
20
Commission is not liable to civil proceedings in relation to an act
21
done, or omitted to be done, in good faith for the purpose of
22
assisting the staff member.
23
(3) If:
24
(a) information or evidence has been given to the National
25
Integrity Commissioner; or
26
(b) a document or thing has been produced to the National
27
Integrity Commissioner;
28
a person is not liable to an action, suit or proceeding in respect of
29
loss, damage or injury of any kind suffered by another person by
30
reason only that the information or evidence was given or the
31
document or thing was produced.
32
Part 11 Miscellaneous
Section 177
162
National Integrity Commission Bill 2013
No. , 2013
177 Immunities from certain State and Territory laws
1
The National Integrity Commissioner, an Assistant National
2
Integrity Commissioner or a staff member of the National Integrity
3
Commission is not required under, or by reason of, a law of a State
4
or Territory:
5
(a) to obtain or have a licence or permission for doing any act or
6
thing in the exercise of his or her powers or the performance
7
of his or her duties as the National Integrity Commissioner,
8
an Assistant National Integrity Commissioner or a staff
9
member of the National Integrity Commission; or
10
(b) to register any vehicle, vessel, animal or article belonging to
11
the Commonwealth.
12
178 Review of operation of Act
13
Undertaking the review
14
(1) The Prime Minister must cause an independent review to be
15
undertaken of the first 3 years of the operation of this Act.
16
Report to Prime Minister
17
(2) The persons undertaking the review must give the Prime Minister a
18
written report of the review within 6 months after the end of the
19
3-year period.
20
Submissions
21
(3) The review must include an opportunity for:
22
(a) persons who are, or have been, staff members of the National
23
Integrity Commission; and
24
(b) members of the public;
25
to make written submissions on the operation of this Act.
26
Miscellaneous Part 11
Section 179
No. , 2013
National Integrity Commission Bill 2013
163
Assistance
1
(4) The National Integrity Commissioner and staff members of the
2
National Integrity Commission must, if requested to do so by the
3
persons undertaking the review, assist them in:
4
(a) conducting the review; and
5
(b) preparing the written report.
6
Tabling of report
7
(5) The Prime Minister must cause a copy of the report of the review
8
to be tabled in each House of the Parliament within 15 sitting days
9
of that House after he or she receives the report.
10
Section not to apply if review conducted by Parliamentary
11
committee
12
(6) However, this section does not apply if a committee of one or both
13
Houses of the Parliament (including the Parliamentary Joint
14
Committee on the National Integrity Commission) has reviewed
15
the operation of this Act, or started such a review, before the end of
16
the 3-year period.
17
Definition
18
(7) In this section:
19
independent review means a review undertaken by a person or
20
persons who, in the Prime Minister's opinion, possess appropriate
21
qualifications to undertake the review.
22
179 Schedule(s)
23
Each Act that is specified in a Schedule to this Act is amended or
24
repealed as set out in the applicable items in the Schedule
25
concerned, and any other item in a Schedule to this Act has effect
26
according to its terms.
27
Part 11 Miscellaneous
Section 180
164
National Integrity Commission Bill 2013
No. , 2013
180 Regulations
1
(1) The Governor-General may make regulations prescribing matters:
2
(a) required or permitted by this Act to be prescribed; or
3
(b) necessary or convenient to be prescribed for carrying out or
4
giving effect to this Act.
5
(2) The regulations may require that information or reports that are
6
required to be given under prescribed provisions are also to be
7
given to prescribed persons in specified circumstances.
8
9
Amendments Schedule 1
No. , 2013
National Integrity Commission Bill 2013
165
Schedule 1
--
Amendments
1
2
Law Enforcement Integrity Commissioner Act 2006
3
1 After subsection 177(2)
4
Insert:
5
(2A) Subject to subsection (2), the Minister may appoint the National
6
Integrity Commissioner to act as the Integrity Commissioner for
7
the purposes of paragraph (1)(a) or (b).
8
(2B) A person appointed to act during a vacancy mentioned in
9
paragraph (1)(a) must not act for more than 12 months.
10
2 After subsection 187(2)
11
Insert:
12
(2A) A person appointed to act during a vacancy mentioned in
13
paragraph (1)(a) must not act for more than 12 months.
14
3 Section 197
15
Repeal the section, substitute:
16
197 Staff
17
The staff of ACLEI are to be persons appointed or employed under
18
the Public Service Act 1999.
19
4 Part 14
20
Repeal the Part.
21
Ombudsman Act 1976
22
5 After subsection 6(15)
23
Insert:
24
(15A) If the Ombudsman forms the opinion:
25
Schedule 1 Amendments
166
National Integrity Commission Bill 2013
No. , 2013
(a) that a complaint involves an allegation, or information, that
1
raises a corruption issue; and
2
(b) that the allegation or information could have been referred to
3
the National Integrity Commissioner under Part 3 of the
4
National Integrity Commission Act 2013 and could be more
5
conveniently or effectively dealt with by the National
6
Integrity Commissioner;
7
the Ombudsman may decide not to investigate the complaint, or
8
not to investigate the complaint further, as the case may be, and to
9
refer the allegation or information to the National Integrity
10
Commissioner.
11
(15B) If the Ombudsman makes a decision under subsection (15A), the
12
Ombudsman must:
13
(a) refer the allegation, or information, that raises the corruption
14
issue to the National Integrity Commissioner as soon as is
15
reasonably practicable; and
16
(b) give the National Integrity Commissioner any information or
17
documents relating to the complaint that are in the
18
possession, or under the control, of the Ombudsman; and
19
(c) as soon as is reasonably practicable, give the complainant
20
written notice that the complaint has been transferred to the
21
National Integrity Commissioner.
22
(15C) In subsections (15A) and (15B):
23
corruption issue has the same meaning as in the National Integrity
24
Commission Act 2013.
25
National Integrity Commissioner has the same meaning as in the
26
National Integrity Commission Act 2013.
27
Privacy Act 1988
28
6 Subsection 18K(5) (note)
29
Repeal the note, substitute:
30
Note:
A credit reporting agency must not include a note about the disclosure
31
of information in a file if a notation has been made on a summons, or
32
a notice, relating to the disclosure of the information and the notation
33
has not been cancelled (see section 29A of the Australian Crime
34
Commission Act 2002, section 91 of the Law Enforcement Integrity
35
Amendments Schedule 1
No. , 2013
National Integrity Commission Bill 2013
167
Commissioner Act 2006 and section 60 of the National Integrity
1
Commission Act 2013).
2
Public Interest Disclosure Act 2013
3
7 Section 8 (after paragraph (b) of the definition of
4
investigative agency)
5
Insert:
6
(ba) the National Integrity Commissioner; or
7
8 Paragraph 50A(1)(b)
8
After "the IGIS", insert ", the National Integrity Commissioner".
9
9 Subsection 69(1) (after table item 13)
10
Insert:
11
13A
An Assistant National Integrity
Commissioner.
The National Integrity
Commissioner.
10 After paragraph 69(3)(b)
12
Insert:
13
(ba) a person who is a member of the staff referred to in
14
subsection 153(1) of the National Integrity Commission Act
15
2013 is taken to be a member of the staff of the National
16
Integrity Commissioner; and
17
11 After paragraph 72(1)(o)
18
Insert:
19
(oa) the National Integrity Commissioner; or
20
12 Subsection 73(1) (after table item 8)
21
Insert:
22
8A
The National Integrity
Commissioner.
The National Integrity Commissioner.
23
No. , 2013
National Integrity Commission Bill 2013
1
1
2
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