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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Integrity Commission Bill 2019
No. , 2019
(Mr Bandt)
A Bill for an Act to establish the National Integrity
Commission, and for related purposes
No. , 2019
National Integrity Commission Bill 2019
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Simplified outline of this Act ............................................................ 2
4
Objects of Act .................................................................................... 4
5
Saving of powers, privileges and immunities .................................... 6
6
Act binds the Crown .......................................................................... 6
7
Application of Act ............................................................................. 6
8
Definitions ......................................................................................... 6
9
Meaning of corrupt conduct ............................................................ 19
10
Meaning of corruption issue ............................................................ 21
Part 2--The Australian National Integrity Commission
23
Division 1--Establishment
23
11
Establishment .................................................................................. 23
Division 2--Functions and powers of the National Integrity
Commissioner and Commissioners
25
12
Definition of national integrity commissioner functions ................. 25
13
Definition of law enforcement integrity commissioner
functions .......................................................................................... 27
14
Definition of whistleblower protection commissioner
functions .......................................................................................... 27
15
Functions and powers of the National Integrity
Commissioner .................................................................................. 29
16
Functions and powers of the Law Enforcement Integrity
Commissioner .................................................................................. 30
17
Functions and powers of the Whistleblower Protection
Commissioner .................................................................................. 30
Part 3--Corruption prevention, research and coordination
31
Division 1--Promoting integrity in public administration and
Australia
31
18
Role of the National Integrity Commissioner .................................. 31
19
Role of the Commission .................................................................. 32
Division 2--Commonwealth integrity and anti-corruption plans
33
20
Preparation of integrity and anti-corruption plans ........................... 33
21
Audit Committee to monitor plans .................................................. 33
22
National Integrity Commissioner to receive plans on request ......... 34
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National Integrity Commission Bill 2019
No. , 2019
23
Consideration of adequacy of plans ................................................. 34
Division 3--Corruption prevention inquiries
36
24
National Integrity Commissioner may conduct inquiries ................ 36
25
Scope and powers of inquiries ......................................................... 36
26
Reports of inquiries ......................................................................... 37
Division 4--Education, training and advice
38
27
Agency heads to provide training .................................................... 38
28
Role of National Integrity Commissioner ........................................ 38
Division 5--Research and intelligence
39
29
Research functions........................................................................... 39
30
Research strategy--consultation and implementation ..................... 39
31
Relationship between research and operations ................................ 40
Division 6--Commonwealth cooperation and coordination
41
32
Principles of operation of National Integrity Commission .............. 41
33
Cooperation and coordination with other Commonwealth
agencies ........................................................................................... 41
34
Commonwealth Integrity Coordination Committee......................... 42
35
Functions of the Commonwealth Integrity Coordination
Committee ....................................................................................... 43
Division 7--National cooperation and coordination
45
36
Role of the National Integrity Commissioner .................................. 45
37
National Integrity and Anti-corruption Plan .................................... 46
38
Preparation of plan .......................................................................... 47
39
Examination of plan ........................................................................ 47
40
National Integrity and Anti-Corruption Advisory Committee ......... 48
41
Functions of the advisory committee ............................................... 49
Part 4--Dealing with corruption issues
50
Division 1--Referring corruption issues to National Integrity
Commissioner
50
42
Referral of corruption issues ............................................................ 50
43
Referral under section 42 by person in custody ............................... 51
44
Public officials must refer corruption issues .................................... 52
45
National Integrity Commissioner may enter into agreements
etc. with head of Commonwealth agency ........................................ 53
Division 2--How National Integrity Commissioner deals with
corruption issues
54
Subdivision A--General
54
No. , 2019
National Integrity Commission Bill 2019
iii
46
How National Integrity Commissioner may deal with
corruption issues .............................................................................. 54
47
Alleged contraventions of the National Integrity
(Parliamentary Standards) Act 2019 ............................................... 55
48
Criteria for deciding how to deal with a corruption issue ................ 56
49
Dealing with multiple corruption issues .......................................... 57
Subdivision B--National Integrity Commissioner dealing with
referred corruption issues
57
50
National Integrity Commissioner must make a decision ................. 57
51
Advising person who refers corruption issue of decision
about how to deal with corruption issue .......................................... 59
52
Advising person to whom referred corruption issue relates of
decision about how to deal with corruption issue ............................ 59
Subdivision C--National Integrity Commissioner dealing with
corruption issues on own initiative
60
53
National Integrity Commissioner may deal with corruption
issues on own initiative.................................................................... 60
54
Advising head of Commonwealth agency of decision to deal
with corruption issue on own initiative ............................................ 61
55
Advising person of decision to deal with corruption issue on
own initiative ................................................................................... 62
Subdivision D--Reconsidering how to deal with a corruption issue
63
56
Reconsidering how to deal with a corruption issue ......................... 63
Division 3--Information sharing when decision made on how to
deal with corruption issue
64
57
If Commonwealth agency to conduct, or continue
conducting, investigation of corruption issue .................................. 64
58
If Commonwealth agency has already commenced
investigating corruption issue .......................................................... 65
Part 5--Investigations and public inquiries by the National
Integrity Commissioner
66
Division 1--Investigations
66
59
Application of Division ................................................................... 66
60
National Integrity Commissioner to determine manner of
conducting investigation .................................................................. 66
61
Information sharing for joint investigation ...................................... 66
62
Opportunity to be heard ................................................................... 67
Division 2--Reporting in relation to investigations
69
Subdivision A--Reporting during investigation
69
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National Integrity Commission Bill 2019
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63
National Integrity Commissioner may keep person who
referred corruption issue informed of progress of
investigation .................................................................................... 69
Subdivision B--Reporting at the end of investigation
69
64
Report on investigation .................................................................... 69
65
National Integrity Commissioner to give report to Minister ............ 71
66
Advising person who referred corruption issue of outcome of
the investigation .............................................................................. 71
67
Advising person whose conduct is investigated of outcome
of the investigation .......................................................................... 72
Division 3--Conducting a public inquiry
74
68
National Integrity Commissioner may conduct public inquiry ........ 74
69
Publicising inquiry........................................................................... 74
Division 4--Reporting in relation to public inquiries
75
70
Report on public inquiry .................................................................. 75
71
Giving report to Minister ................................................................. 76
Part 6--National Integrity Commissioner's powers in
conducting investigations and public inquiries
77
Division 1--Requiring people to give information or produce
documents or things
77
Subdivision A--Requirement by National Integrity Commissioner
77
72
Notice to give information or to produce document or thing ........... 77
73
Compliance with notice ................................................................... 78
74
National Integrity Commissioner may retain documents and
things ............................................................................................... 79
Subdivision B--Prohibitions against disclosing information about
notices
79
75
Disclosure of notice may be prohibited ........................................... 79
76
Offences of disclosure ..................................................................... 81
Subdivision C--Offence and related provisions
84
77
Failure to comply with notice .......................................................... 84
78
Legal practitioner not required to disclose privileged
communications ............................................................................... 85
79
Self-incrimination etc. ..................................................................... 86
80
Protection of person required to give information or produce
documents or things ......................................................................... 87
Division 2--Conducting hearings
89
Subdivision A--General provisions
89
No. , 2019
National Integrity Commission Bill 2019
v
81
National Integrity Commissioner may hold hearings ...................... 89
82
National Integrity Commissioner may summon person ................... 90
83
National Integrity Commissioner may take evidence outside
Australia .......................................................................................... 92
Subdivision B--Procedure at hearing
93
84
Who may be represented at a hearing .............................................. 93
85
Who may be present at a hearing ..................................................... 93
Subdivision C--Taking evidence at hearing
94
86
Evidence on oath or by affirmation ................................................. 94
87
Examination and cross-examination of witnesses............................ 95
88
Person may request that particular evidence be given in
private .............................................................................................. 95
89
Directions in relation to confidentiality ........................................... 96
Subdivision D--Prohibitions against disclosing information about
a summons
98
90
Disclosure of summons may be prohibited ...................................... 98
91
Offences of disclosure ................................................................... 100
Subdivision E--Offences in relation to hearings
102
92
Offences ........................................................................................ 102
93
Contempt of the Commission ........................................................ 104
94
Federal Court or Supreme Court to deal with contempt ................ 105
95
Conduct of contempt proceedings ................................................. 107
96
Person in contempt may be detained ............................................. 107
97
National Integrity Commissioner may withdraw contempt
application ..................................................................................... 108
98
Double jeopardy ............................................................................ 109
99
Legal professional privilege--answer to question ......................... 109
100
Legal professional privilege--documents or things ...................... 110
101
Offences relating to claims for legal professional privilege........... 110
102
Self-incrimination etc. ................................................................... 111
Subdivision F--Court orders for delivery of witness's passport
and witness's arrest
114
103
National Integrity Commissioner may apply for order that
witness deliver passport ................................................................. 114
104
Court orders ................................................................................... 115
105
Applying for a warrant to arrest witness ........................................ 117
106
Warrant for arrest .......................................................................... 117
107
Powers of Judge in relation to person arrested .............................. 119
Subdivision G--Miscellaneous
120
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National Integrity Commission Bill 2019
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108
National Integrity Commissioner may retain documents or
things ............................................................................................. 120
109
Person may apply for legal and financial assistance ...................... 120
110
Protection of National Integrity Commissioner etc. ...................... 121
111
Protection of witnesses etc. ........................................................... 122
Division 3--Search warrants
124
Subdivision A--Preliminary
124
112
Application to things under the control of a person ....................... 124
Subdivision B--Applying for a search warrant
124
113
Authorised officer may apply for a search warrant ........................ 124
Subdivision C--Issue of a search warrant
126
114
When search warrants may be issued ............................................ 126
115
Content of warrants ....................................................................... 128
116
Application by telephone etc. and issue of warrant ....................... 131
117
The things authorised by a search warrant in relation to
premises ......................................................................................... 133
118
The things authorised by a search warrant in relation to a
person ............................................................................................ 134
119
Restrictions on personal searches .................................................. 135
120
When warrant may be executed etc. .............................................. 136
Subdivision D--General provisions about executing a search
warrant
136
121
Announcement before entry .......................................................... 136
122
Availability of assistance and use of force in executing a
warrant ........................................................................................... 136
Subdivision E--Specific provisions about executing a warrant in
relation to premises
137
123
Application .................................................................................... 137
124
Copy of warrant to be shown to occupier etc................................. 137
125
Occupier entitled to watch search .................................................. 138
126
Specific powers available to person executing a warrant .............. 138
127
Use of equipment to examine or process things ............................ 138
128
Use of electronic equipment at premises without expert
assistance ....................................................................................... 140
129
Use of electronic equipment at premises with expert
assistance ....................................................................................... 141
130
Person with knowledge of a computer or a computer system
to assist access etc. ........................................................................ 143
131
Accessing data held on other premises--notification to
occupier of those premises ............................................................ 144
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National Integrity Commission Bill 2019
vii
132
Compensation for damage to electronic equipment ....................... 144
133
Copies of seized things to be provided .......................................... 145
134
Receipts of things seized under warrant ........................................ 146
Subdivision F--Specific provisions about executing a warrant in
relation to a person
146
135
Copy of warrant to be shown to person ......................................... 146
136
Conduct of an ordinary search or a frisk search ............................. 146
Subdivision G--Offences
146
137
Making false statements in warrants .............................................. 146
138
Offence for stating incorrect names in telephone warrants ............ 147
139
Offence for unauthorised form of warrant ..................................... 147
140
Offence for executing etc. an unauthorised form of warrant ......... 147
141
Offence for giving unexecuted form of warrant ............................ 148
Subdivision H--Miscellaneous
148
142
Other laws about search, arrest etc. not affected ............................ 148
143
Law relating to legal professional privilege not affected ............... 148
Division 4--Powers of arrest
149
144
Authorised officers may exercise powers of arrest ........................ 149
Division 5--Authorised officers
150
145
Appointment of authorised officers ............................................... 150
146
Identity cards ................................................................................. 150
Part 7--Dealing with evidence and information obtained in
investigation or public inquiry
152
147
Evidence of offence or liability to civil penalty ............................. 152
148
Evidence that could be used in confiscation proceedings .............. 153
149
Evidence of, or information suggesting, wrongful conviction ....... 154
Part 8--Investigations by other Commonwealth agencies
156
Division 1--Nominated contact for investigations by
Commonwealth agencies
156
150
Nominating contact for investigation ............................................ 156
Division 2--Managing or overseeing investigations by
Commonwealth agencies
157
151
Managing an investigation ............................................................. 157
152
Overseeing an investigation ........................................................... 157
Division 3--Reporting
158
Subdivision A--Reporting by Commonwealth agencies during
investigations
158
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153
National Integrity Commissioner may request individual
progress report ............................................................................... 158
154
National Integrity Commissioner may request periodic
progress reports ............................................................................. 158
Subdivision B--Reporting by Commonwealth agencies at end of
investigations
159
155
Final report on investigation .......................................................... 159
156
National Integrity Commissioner may comment on final
report ............................................................................................. 160
157
Advising person who referred corruption issue of outcome of
the investigation ............................................................................ 162
158
Advising person whose conduct is investigated of outcome
of the investigation ........................................................................ 163
Division 4--National Integrity Commissioner to pass on
information relevant to agency
164
159
National Integrity Commissioner to pass on information
relevant to agency investigation .................................................... 164
Part 9--Whistleblower Protection
165
Division 1--Disclosures, information or requests
165
160
Receipt of disclosures, information or requests ............................. 165
161
Person making disclosure or request under section 160 may
elect to be kept informed ............................................................... 166
162
Public officials must refer whistleblower protection issues ........... 167
163
Whistleblower Protection Commissioner may enter into
agreements etc. with head of Commonwealth agency ................... 167
164
General information, advice, guidance and assistance ................... 168
Division 2--How Whistleblower Protection Commissioner deals
with disclosures of wrongdoing and whistleblower
protection issues
171
Subdivision A--General
171
165
How Whistleblower Protection Commissioner may deal with
disclosures of wrongdoing ............................................................. 171
166
How Whistleblower Protection Commissioner may deal with
whistleblower protection issues ..................................................... 172
167
Criteria for deciding how to deal with a disclosure of
wrongdoing or whistleblower protection issue .............................. 173
168
Dealing with multiple whistleblower protection issues ................. 174
Subdivision B--Whistleblower Protection Commissioner dealing
with referred whistleblower protection issues
175
No. , 2019
National Integrity Commission Bill 2019
ix
169
Whistleblower Protection Commissioner must make a
decision.......................................................................................... 175
170
Advising person who raises whistleblower protection issue
of decision about how to deal with issue ....................................... 176
171
Advising person to whom referred whistleblower protection
issue relates of decision about how to deal with issue ................... 178
Subdivision C--Whistleblower Protection Commissioner dealing
with whistleblower protection issues on own
initiative
179
172
Whistleblower Protection Commissioner may deal with
whistleblower protection issues on own initiative ......................... 179
173
Advising head of Commonwealth agency of decision to deal
with whistleblower protection issue on own initiative ................... 180
174
Advising person of decision to deal with whistleblower
protection issue on own initiative .................................................. 181
Subdivision D--Reconsidering how to deal with a whistleblower
protection issue
182
175
Reconsidering how to deal with a whistleblower protection
issue ............................................................................................... 182
Division 3--Information sharing when decision made on how to
deal with whistleblower protection issue
183
176
If Commonwealth agency to conduct, or continue
conducting, investigation of whistleblower protection issue ......... 183
177
If Commonwealth agency has already commenced
investigating whistleblower protection issue ................................. 184
Division 4--Investigations and public inquiries by the
Whistleblower Protection Commissioner
185
178
Manner and powers of investigation .............................................. 185
Division 5--Investigations by other Commonwealth agencies
186
179
Dealing with, managing or overseeing investigations ................... 186
Division 6--Remedial functions and powers
187
180
Additional recommendations ......................................................... 187
181
Proceedings and applications ......................................................... 188
182
Mediation and arbitration .............................................................. 189
183
Enforceable undertakings relating to contraventions of civil
remedy provisions ......................................................................... 190
Division 7--Special Account
192
184
Whistleblower Protection Special Account ................................... 192
185
Credits to the Account ................................................................... 192
186
Purposes of the Account ................................................................ 192
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National Integrity Commission Bill 2019
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Part 10--Administrative provisions relating to the Commission
194
Division 1--National Integrity Commissioner
194
187
Appointment of National Integrity Commissioner ........................ 194
188
General terms and conditions of appointment ............................... 195
189
Other paid work ............................................................................. 195
190
Remuneration ................................................................................ 195
191
Leave of absence ........................................................................... 196
192
Resignation .................................................................................... 196
193
Removal from office ...................................................................... 196
194
Acting appointments ...................................................................... 197
195
Disclosure of interests ................................................................... 198
Division 2--Law Enforcement Integrity Commissioner
199
196
Appointment etc. of Law Enforcement Integrity
Commissioner ................................................................................ 199
Division 3--Whistleblower Protection Commissioner
200
197
Appointment of Whistleblower Protection Commissioner ............ 200
198
General terms and conditions of appointment ............................... 201
199
Other paid work ............................................................................. 201
200
Remuneration ................................................................................ 201
201
Leave of absence ........................................................................... 202
202
Resignation .................................................................................... 202
203
Removal from office ...................................................................... 202
204
Acting appointments ...................................................................... 203
205
Disclosure of interests ................................................................... 204
Division 4--Assistant National Integrity Commissioners
205
206
Appointment of Assistant National Integrity Commissioners ....... 205
207
General terms and conditions of appointment ............................... 206
208
Other paid work ............................................................................. 206
209
Remuneration ................................................................................ 206
210
Leave of absence ........................................................................... 207
211
Resignation .................................................................................... 207
212
Removal from office ...................................................................... 207
213
Acting appointments ...................................................................... 209
214
Disclosure of interests ................................................................... 209
Division 5--Chief Executive Officer
210
215
CEO ............................................................................................... 210
216
Functions of the CEO .................................................................... 210
217
Powers of the CEO ........................................................................ 210
218
Commission may give directions to CEO ...................................... 210
No. , 2019
National Integrity Commission Bill 2019
xi
219
Appointment of CEO ..................................................................... 211
220
Appointment of acting CEO .......................................................... 211
221
Remuneration of the CEO ............................................................. 212
222
Leave of absence of the CEO ........................................................ 212
223
Other paid work of the CEO .......................................................... 213
224
Resignation of the CEO ................................................................. 213
225
Termination of appointment of the CEO ....................................... 213
226
Other terms and conditions of the CEO ......................................... 214
Division 6--Staff, consultants and delegations
215
227
Staff ............................................................................................... 215
228
Consultants .................................................................................... 215
229
Delegation--National Integrity Commissioner ............................. 216
230
Delegation--Whistleblower Protection Commissioner ................. 216
231
Delegation--CEO.......................................................................... 217
Division 7--Public reporting
218
232
Annual report ................................................................................. 218
233
Reports on investigations and public inquiries .............................. 219
234
Special reports ............................................................................... 220
235
Contents of annual or special report .............................................. 221
236
Public reporting--Whistleblower Protection Commissioner ......... 222
Division 8--Confidentiality requirements
223
237
Confidentiality requirements for National Integrity
Commission staff ........................................................................... 223
238
Exceptions to confidentiality requirements ................................... 224
239
Disclosure by National Integrity Commissioner in public
interest etc. .................................................................................... 225
240
Opportunity to be heard ................................................................. 226
241
National Integrity Commission staff generally not
compellable in court proceedings .................................................. 227
242
Confidentiality requirements--Whistleblower Protection
Commissioner ................................................................................ 228
Part 11--Parliamentary Joint Committee on the Australian
National Integrity Commission
230
243
Definitions ..................................................................................... 230
244
Parliamentary Joint Committee on the Australian National
Integrity Commission .................................................................... 230
245
Powers and proceedings of the committee ..................................... 232
246
Duties of the committee ................................................................. 232
247
Committee may approve or reject recommendation for
appointment ................................................................................... 235
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248
Disclosure to committee by National Integrity Commissioner ...... 237
249
Parliamentary Joint Committee--Whistleblower Protection
Commissioner ................................................................................ 238
250
Disclosure to committee by Law Enforcement Integrity
Commissioner ................................................................................ 238
251
Disclosure to committee by Minister ............................................. 240
252
Ombudsman to brief committee about controlled operations ........ 241
Part 12--Parliamentary Inspector of the Australian National
Integrity Commission
242
Division 1--Establishment and functions and powers of the
Parliamentary Inspector of the Australian National
Integrity Commission
242
253
Parliamentary Inspector of the Australian National Integrity
Commission ................................................................................... 242
254
Functions of the Parliamentary Inspector ...................................... 242
255
Matters arising from a conduct investigation ................................. 243
256
Report on conduct investigations conducted by
Parliamentary Inspector ................................................................. 244
257
Parliamentary Inspector cannot be required to disclose
particular information .................................................................... 245
Division 2--Audits, investigations, reviews and reports
246
258
Process for conducting an audit, investigation or review............... 246
259
Contents of reports on results of performance of functions ........... 246
260
Parliamentary Inspector may require information etc. ................... 246
261
Privilege against self-incrimination ............................................... 246
Division 3--Administrative provisions relating to the
Parliamentary Inspector
247
262
Appointment of Parliamentary Inspector ....................................... 247
263
General terms and conditions of appointment ............................... 248
264
Other paid work ............................................................................. 248
265
Remuneration ................................................................................ 248
266
Leave of absence ........................................................................... 249
267
Resignation .................................................................................... 249
268
Termination of appointment .......................................................... 249
269
Acting appointments ...................................................................... 250
270
Disclosure of interests ................................................................... 251
271
Assistance to Parliamentary Inspector ........................................... 251
Part 13--Miscellaneous
252
272
Offence of victimisation ................................................................ 252
No. , 2019
National Integrity Commission Bill 2019
xiii
273
Legal and financial assistance in relation to applications for
administrative review .................................................................... 252
274
Immunity from civil proceedings .................................................. 253
275
Immunities from certain State and Territory laws ......................... 254
276
Miscellaneous--Whistleblower Protection Commissioner ........... 254
277
Review relating to the Law Enforcement Integrity
Commissioner etc. ......................................................................... 254
278
Review relating to judicial integrity .............................................. 255
279
Review of operation of Act ........................................................... 256
280
Schedules ....................................................................................... 257
281
Regulations .................................................................................... 257
Schedule 1--Amendments
258
Law Enforcement Integrity Commissioner Act 2006
258
Ombudsman Act 1976
259
Public Interest Disclosure Act 2013
260
No. , 2019
National Integrity Commission Bill 2019
1
A Bill for an Act to establish the National Integrity
1
Commission, and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
5
1 Short title
6
This Act is the National Integrity Commission Act 2019.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
Part 1 Preliminary
Section 3
2
National Integrity Commission Bill 2019
No. , 2019
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
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
281
The day after the day on which the
Consolidated Revenue Fund is appropriated
under an Act to the Department in which this
Act is administered for payment for the
purposes of the National Integrity
Commission.
3 Schedule 1
At the same time as the provisions covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Simplified outline of this Act
10
This Act establishes the Australian National Integrity Commission.
11
The Commission consists of:
12
(a)
the National Integrity Commissioner; and
13
(b)
the Law Enforcement Integrity Commissioner; and
14
(c)
the Whistleblower Protection Commissioner; and
15
(d)
Assistant National Integrity Commissioners; and
16
(e)
Assistant Law Enforcement Integrity Commissioners.
17
Preliminary Part 1
Section 3
No. , 2019
National Integrity Commission Bill 2019
3
The National Integrity Commissioner has functions relating to:
1
(a)
promoting and improving the integrity and
2
accountability of Commonwealth public administration;
3
and
4
(b)
preventing, investigating, exposing and addressing
5
corruption issues involving or affecting Commonwealth
6
public administration.
7
Those functions include the following:
8
(a)
giving advice and assistance in relation to promoting
9
integrity and reduce the likelihood of the occurrence of
10
corrupt conduct;
11
(b)
educating and disseminating information to combat
12
corrupt conduct;
13
(c)
leading and supporting the preparation of strategies for
14
corruption prevention, national and international
15
coordination of anti-corruption efforts, and the
16
development and implementation of a National Integrity
17
and Anti-Corruption Plan;
18
(d)
investigating and conducting public inquiries into
19
corruption issues;
20
(e)
referring certain corruption issues to other agencies for
21
investigation, or managing, overseeing or reviewing
22
such investigations;
23
(f)
preparing reports and making recommendations about
24
legislative or other action relating to integrity and
25
corruption.
26
The Whistleblower Protection Commissioner has functions
27
including:
28
(a)
receiving and investigating disclosures of wrongdoing;
29
and
30
(b)
providing advice, assistance, guidance and support to
31
persons and agencies relating to the making of
32
disclosures of wrongdoing.
33
The Commission has a CEO who is responsible for its
34
administration and for assisting it to perform its functions.
35
Part 1 Preliminary
Section 4
4
National Integrity Commission Bill 2019
No. , 2019
This Act also provides for the appointment of the Parliamentary
1
Joint Committee on the Australian National Integrity Commission.
2
The Committee's duties include:
3
(a)
considering proposed recommendations for certain
4
appointments under this Act; and
5
(b)
monitoring and reviewing the performance of certain
6
functions under this Act;
7
(c)
reporting to Parliament about matters relating to the
8
Commission or about trends and changes in law
9
enforcement relating to corruption.
10
The Parliamentary Inspector of the Australian National Integrity
11
Commission is established by this Act as an independent officer of
12
the Parliament. The functions of the Parliamentary Inspector
13
include:
14
(a)
inspecting records of the Commission for purposes
15
including reviewing whether the Commission has
16
exercised power in an appropriate way; and
17
(b)
investigating complaints about the conduct or activities
18
of the Commission or staff of the Commission; and
19
(c)
functions in relation to the protection of information by
20
the Commission and alleged incidences of possible
21
unauthorised disclosures; and
22
(d)
reviewing information given by the Commission to the
23
Parliamentary Joint Committee on the Australian
24
National Integrity Commission.
25
4 Objects of Act
26
(1) The objects of this Act are:
27
(a) to promote and improve the integrity and accountability of
28
Commonwealth public administration; and
29
(b) to prevent, investigate, expose and address corruption issues
30
involving or affecting Commonwealth public administration;
31
and
32
(c) to enable criminal offences to be prosecuted, civil and
33
disciplinary proceedings to be brought, and other remedies to
34
Preliminary Part 1
Section 4
No. , 2019
National Integrity Commission Bill 2019
5
be obtained as a result of the investigation of corruption
1
issues; and
2
(d) to educate government agencies, public officials and
3
members of the public about corruption and its detrimental
4
effects on public administration and the community, and
5
about actions that should be or have been taken, or are being
6
taken, to address corruption; and
7
(e) to ensure a comprehensive, efficient, nationally coordinated
8
approach to the prevention, detection, reduction and
9
remediation of corruption in:
10
(i) Commonwealth public administration;
11
(ii) Australia generally; and
12
(iii) Australia's relations with other countries; and
13
(f) to assist in the cooperative implementation of Australia's
14
international anti-corruption responsibilities, including under
15
the United Nations Convention Against Corruption (2005);
16
and
17
(g) to provide information, advice, guidance and support to:
18
(i) persons who, in the public interest, disclose corruption
19
or other wrongdoing in Australia or involving
20
Australian institutions; and
21
(ii) government agencies and other bodies dealing with
22
disclosures of corruption or other wrongdoing; and
23
(h) to ensure support and protection is provided to persons who
24
disclose corruption or other wrongdoing under the Public
25
Interest Disclosure Act 2013 or Part 9.4AAA of the
26
Corporations Act 2001 or related Commonwealth legislation.
27
(2) To assist in achieving the objects in paragraphs (1)(a) to (f), this
28
Act establishes the office of the National Integrity Commissioner.
29
(3) To assist in achieving the objects in paragraphs (1)(g) and (h), this
30
Act establishes the office of the Whistleblower Protection
31
Commissioner.
32
Part 1 Preliminary
Section 5
6
National Integrity Commission Bill 2019
No. , 2019
5 Saving of powers, privileges and immunities
1
Except as expressly provided otherwise in this Act, this Act does
2
not affect the powers, privileges and immunities of each House of
3
the Parliament, and of the members and committees of each House.
4
6 Act binds the Crown
5
This Act binds the Crown in right of the Commonwealth.
6
7 Application of Act
7
This Act applies both within and outside Australia and extends to
8
every external Territory.
9
8 Definitions
10
(1) In this Act:
11
AFP means the Australian Federal Police.
12
applicable code of conduct means:
13
(a) in the case of a Minister:
14
(i) a Ministerial code of conduct imposed by the Prime
15
Minister on the Prime Minister's Ministers; or
16
(ii) a Ministerial code of conduct:
17
(A) prescribed by the regulations; or
18
(B) adopted by resolution of the House of which the
19
Minister is or was a member;
20
for the purposes of this definition; or
21
(b) in the case of a parliamentarian (including a Minister):
22
(i) the code of conduct in the National Integrity
23
(Parliamentary Standards) Act 2019; or
24
(ii) a code of conduct for parliamentarians adopted by
25
resolution of the House of which the parliamentarian is
26
or was a member.
27
Assistant Commissioner means an Assistant National Integrity
28
Commissioner appointed under section 206.
29
Preliminary Part 1
Section 8
No. , 2019
National Integrity Commission Bill 2019
7
Assistant Law Enforcement Integrity Commissioner means a
1
person appointed under section 185 of the Law Enforcement
2
Integrity Commissioner Act 2006 as an Assistant Integrity
3
Commissioner.
4
assisting officer, in relation to a warrant for a person's arrest or a
5
search warrant, means:
6
(a) a person who:
7
(i) is an authorised officer or a member or special member
8
of the AFP; and
9
(ii) is assisting in executing the warrant; or
10
(b) a person who:
11
(i) is not an authorised officer; and
12
(ii) is not a member or special member of the AFP; and
13
(ii) has been authorised by the authorised officer who is
14
executing the warrant to assist in executing the warrant.
15
authorised officer means:
16
(a) the National Integrity Commissioner; or
17
(b) a person authorised under section 145.
18
CEO means the Chief Executive Officer of the Commission.
19
charged: a person is charged with an offence if a process for
20
prosecuting the person for the offence commences.
21
civil penalty proceeding means a proceeding for a civil penalty in
22
relation to a contravention of a law of the Commonwealth or of a
23
State or Territory.
24
civil penalty provision means a provision of a law of the
25
Commonwealth or of a State or Territory in relation to a
26
contravention of which a civil penalty may be imposed.
27
Commission means the Australian National Integrity Commission
28
established under section 11.
29
Commissioner means:
30
(a) the Whistleblower Protection Commissioner; or
31
(b) the Law Enforcement Integrity Commissioner.
32
Part 1 Preliminary
Section 8
8
National Integrity Commission Bill 2019
No. , 2019
Commonwealth agency means:
1
(a) an Agency within the meaning of the Public Service Act
2
1999; or
3
(b) a Department of the Parliament that is established under the
4
Parliamentary Service Act 1999; or
5
(c) a person or body holding office, or exercising power, under
6
or because of the Constitution or a law of the
7
Commonwealth; or
8
(d) a body or organisation, whether incorporated or
9
unincorporated, established for a public purpose:
10
(i) by or under a law of the Commonwealth or of a
11
Territory (other than the Australian Capital Territory or
12
the Northern Territory); or
13
(ii) by the Governor-General; or
14
(iii) by a Minister;
15
but does not include a Commonwealth judicial officer.
16
Commonwealth entity has the same meaning as in the Public
17
Governance, Performance and Accountability Act 2013.
18
Commonwealth judicial officer has the same meaning as in the
19
Criminal Code.
20
confiscation proceeding means a proceeding under:
21
(a) the Proceeds of Crime Act 1987 or the Proceeds of Crime Act
22
2002; or
23
(b) a corresponding law within the meaning of either of those
24
Acts;
25
but does not include a criminal prosecution for an offence under
26
either of those Acts or a corresponding law.
27
constable means:
28
(a) a member or special member of the AFP; or
29
(b) a member of the police force or police service of a State or
30
Territory.
31
corrupt conduct has the meaning given by section 9.
32
Preliminary Part 1
Section 8
No. , 2019
National Integrity Commission Bill 2019
9
corruption investigation means an investigation of a corruption
1
issue under this Act.
2
corruption issue has the meaning given by section 10.
3
criminal offence means an offence against a law of the
4
Commonwealth or of a State or Territory.
5
criminal proceeding means:
6
(a) a prosecution for an offence against a law of the
7
Commonwealth or of a State or Territory; or
8
(b) a confiscation proceeding.
9
data has the same meaning as in Part IAA of the Crimes Act 1914.
10
data held in a computer has the same meaning as in Part IAA of
11
the Crimes Act 1914.
12
data storage device has the same meaning as in Part IAA of the
13
Crimes Act 1914.
14
disciplinary offence includes any misconduct, irregularity, neglect
15
of duty, breach of discipline or other matter that constitutes or may
16
constitute grounds for disciplinary action under any law.
17
disciplinary proceeding:
18
(a) means a proceeding of a disciplinary nature under a law of
19
the Commonwealth or of a State or Territory; and
20
(b) includes action taken under Subdivision D of Division 3 of
21
Part V of the Australian Federal Police Act 1979.
22
disclosure of wrongdoing means:
23
(a) a public interest disclosure within the meaning of the Public
24
Interest Disclosure Act 2013; or
25
(b) a disclosure of information qualifying for protection under
26
Part 9.4AAA of the Corporations Act 2001; or
27
(c) a referral of an allegation, or information, that raises a
28
corruption issue under Part 4 of this Act, where made by a
29
current or former employee, volunteer or contractor of an
30
organisation to whom the corruption issue also relates; or
31
Part 1 Preliminary
Section 8
10
National Integrity Commission Bill 2019
No. , 2019
(d) an alleged or suspected contravention of the National
1
Integrity (Parliamentary Standards) Act 2019, where made
2
by a current or former employee, volunteer or contractor of
3
an organisation to whom the contravention also relates; or
4
(e) a disclosure of wrongdoing of a type prescribed by the
5
regulations for the purposes of this paragraph.
6
eligible seizable item means anything that:
7
(a) would present a danger to a person; or
8
(b) could be used to assist a person to escape from lawful
9
custody.
10
employee of a Commonwealth agency includes:
11
(a) the head of the agency; and
12
(b) a temporary employee of the agency; and
13
(c) an independent contractor providing a service to or on behalf
14
of the agency.
15
engage in conduct means:
16
(a) do an act; or
17
(b) omit to do an act.
18
evidential material means:
19
(a) in relation to an investigation warrant--a thing that may be
20
relevant to:
21
(i) a corruption investigation; or
22
(ii) a public inquiry; or
23
(b) in relation to an offence warrant--a thing relevant to an
24
offence against a law of the Commonwealth.
25
Federal Circuit Court means the Federal Circuit Court of
26
Australia.
27
Federal Court means the Federal Court of Australia.
28
former parliamentarian means a former member of either House
29
of the Parliament.
30
frisk search has the same meaning as in Part IAA of the Crimes
31
Act 1914.
32
Preliminary Part 1
Section 8
No. , 2019
National Integrity Commission Bill 2019
11
gift means a gift whether it is or is not registrable in accordance
1
with a resolution or resolutions of a House of the Parliament.
2
government agency means:
3
(a) a Commonwealth agency; or
4
(b) a Department of a State or Territory; or
5
(b) a body (whether incorporated or not) established for a public
6
purpose by or under a law of a State or Territory.
7
head of a government agency means:
8
(a) the person holding, or performing the duties of, the principal
9
office in respect of the agency; or
10
(b) if the government agency is a person--that person.
11
in contempt of the Commission has the meaning given by
12
section 93.
13
industrial, civil or administrative body means:
14
(a) Fair Work Australia; or
15
(b) a court or commission (however described) performing or
16
exercising, under an industrial law within the meaning of the
17
Fair Work Act 2009, functions and powers corresponding to
18
those conferred on Fair Work Australia by the Fair Work Act
19
2009; or
20
(c) a court or commission (however described) performing or
21
exercising, under a workplace law (within the meaning of the
22
Fair Work Act 2009), functions and powers corresponding to
23
those conferred on Fair Work Australia by the Fair Work
24
(Registered Organisations) Act 2009; or
25
(d) a civil or administrative appeals tribunal of the
26
Commonwealth or of a State or Territory; or
27
(e) an anti-discrimination, equal opportunity or human rights
28
protection body, commission or tribunal of the
29
Commonwealth or of a State or Territory.
30
interest means an interest whether it is or is not registrable in
31
accordance with a resolution or resolutions of a House of the
32
Parliament.
33
Part 1 Preliminary
Section 8
12
National Integrity Commission Bill 2019
No. , 2019
investigation warrant means a warrant to search for a thing that
1
may be relevant to:
2
(a) a corruption investigation; or
3
(b) a public inquiry.
4
issuing officer means:
5
(a) for an investigation warrant:
6
(i) a Judge of the Federal Court of Australia sitting in
7
Chambers; or
8
(ii) a Judge of the Federal Circuit Court of Australia sitting
9
in Chambers; or
10
(iii) a Judge of a court of a State or Territory; or
11
(b) for an offence warrant--a magistrate.
12
law enforcement agency has the same meaning as in the Law
13
Enforcement Integrity Commissioner Act 2006.
14
law enforcement function means any of the following functions:
15
(a) investigating whether:
16
(i) an offence has been committed against a law of the
17
Commonwealth; or
18
(ii) there has been a contravention of a law of the
19
Commonwealth in relation to which civil penalty
20
proceedings may be brought;
21
(b) preparing the material necessary to prosecute a person for an
22
offence against a law of the Commonwealth;
23
(c) preparing the material necessary to bring civil penalty
24
proceedings against a person for a contravention of a law of
25
the Commonwealth;
26
(d) collecting, maintaining, correlating, analysing, accessing or
27
distributing information for the purpose of assisting the
28
enforcement of laws of the Commonwealth;
29
(e) assisting in carrying out a function referred to in
30
paragraphs (a) to (d).
31
Law Enforcement Integrity Commissioner means the person
32
appointed under section 175 of the Law Enforcement Integrity
33
Commissioner Act 2006 as the Integrity Commissioner.
34
Preliminary Part 1
Section 8
No. , 2019
National Integrity Commission Bill 2019
13
law enforcement integrity commissioner functions has the
1
meaning given by section 13.
2
law enforcement secrecy provision means:
3
(a) Part 11 of the Anti-Money Laundering and
4
Counter-Terrorism Financing Act 2006; or
5
(b) section 45 of the Surveillance Devices Act 2004; or
6
(c) sections 63 and 133 of the Telecommunications (Interception
7
and Access) Act 1979; or
8
(d) anything done under a provision referred to in paragraphs (a)
9
to (c).
10
legal aid officer means:
11
(a) a member, or member of staff, of an authority established by
12
or under a law of a State or Territory for purposes that
13
include providing legal assistance; or
14
(b) a person to whom the Attorney-General has delegated his or
15
her powers and functions under section 109.
16
legal practitioner means a barrister, a solicitor, a barrister and
17
solicitor or a legal practitioner, of the High Court or of the
18
Supreme Court of a State or Territory.
19
manage an investigation of a corruption issue by a Commonwealth
20
agency has the meaning given by section 151.
21
National Integrity Commissioner means the National Integrity
22
Commissioner appointed under section 187.
23
national integrity commissioner functions has the meaning given
24
by section 12.
25
national law enforcement agencies means:
26
(a) the AFP; or
27
(b) the Australian Crime Commission; or
28
(c) any other Commonwealth agency that:
29
(i) has a law enforcement function; and
30
(ii) is prescribed by the regulations for the purposes of this
31
paragraph.
32
Part 1 Preliminary
Section 8
14
National Integrity Commission Bill 2019
No. , 2019
nominated contact of a Commonwealth agency for an
1
investigation of a corruption issue means:
2
(a) a representative of the agency nominated under section 150
3
as the nominated contact for the investigation; or
4
(b) if representative is not nominated--the head of the agency.
5
occupier of premises means the person apparently in charge of the
6
premises.
7
offence warrant means a warrant to search for a thing relevant to
8
an offence against a law of the Commonwealth.
9
official matter means any of the following (whether past, present
10
or contingent):
11
(a) a corruption investigation;
12
(b) a hearing held by the National Integrity Commissioner or a
13
special investigator in relation to a corruption investigation;
14
(c) court proceedings.
15
ordinary search means a search of a person or of articles in the
16
possession of a person that may include:
17
(a) requiring the person to remove his or her overcoat, coat or
18
jacket or any gloves, shoes or hat; and
19
(b) an examination of those items.
20
oversee an investigation of a corruption issue by a Commonwealth
21
agency has the meaning given by section 152.
22
paid work means work for financial gain or reward (whether as an
23
employee, a self-employed person or otherwise).
24
parliamentarian means:
25
(a) a senator; or
26
(b) a member of the House of Representatives; or
27
(c) a Minister of State who is not a senator or member of the
28
House of Representatives; or
29
(d) a person who is taken to be the President of the Senate under
30
the Parliamentary Presiding Officers Act 1965 and who is
31
not a senator or member of the House of Representatives; or
32
Preliminary Part 1
Section 8
No. , 2019
National Integrity Commission Bill 2019
15
(e) a person who is taken to be the Speaker of the House of
1
Representatives under the Parliamentary Presiding Officers
2
Act 1965 and who is not a senator or member of the House of
3
Representatives.
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
Parliamentary Inspector means the Parliamentary Inspector of the
9
Australian National Integrity Commission referred to in
10
section 253.
11
Parliamentary Joint Committee means the Parliamentary Joint
12
Committee on the Australian National Integrity Commission for
13
the time being constituted under Part 11.
14
premises includes a place, vehicle, vessel and aircraft.
15
presiding officer means:
16
(a) in relation to the Senate--the President of the Senate; or
17
(b) in relation to the House of Representatives--the Speaker of
18
the House of Representatives.
19
presiding officers means the President of the Senate and the
20
Speaker of the House of Representatives acting jointly.
21
public inquiry means a public inquiry conducted by the National
22
Integrity Commissioner under Part 5.
23
public official means a person having Commonwealth public
24
official functions or acting in a Commonwealth public official
25
capacity, and includes but is not limited to any of the following:
26
(a) the Governor-General (whether or not acting with the advice
27
of the Federal Executive Council);
28
(b) a Minister;
29
(c) a parliamentarian;
30
(d) a person employed under the Members of Parliament (Staff)
31
Act 1984;
32
Part 1 Preliminary
Section 8
16
National Integrity Commission Bill 2019
No. , 2019
(e) an employee or a temporary employee of a Commonwealth
1
agency, including:
2
(i) the head of a Commonwealth agency; and
3
(ii) an independent contractor providing a service to or on
4
behalf of a Commonwealth agency;
5
(f) a person declared by the regulations to be a public official for
6
the purposes of this definition;
7
(g) an employee of or any person otherwise engaged by or acting
8
for or on behalf of, or in the place of, or as deputy or delegate
9
of, any person or body described in any of paragraphs (a) to
10
(f);
11
but does not include a Commonwealth judicial officer.
12
refer, in relation to an allegation or information, has the meaning
13
given by subsections (2) and (3).
14
referred corruption issue means a corruption issue referred under
15
section 42.
16
search warrant means an investigation warrant, or an offence
17
warrant, that is issued under section 114:
18
(a) to search premises; or
19
(b) to carry out an ordinary search, or frisk search, of a person.
20
secrecy provision means:
21
(a) a provision of a law of the Commonwealth that purports to
22
prohibit; or
23
(b) anything done, under a provision of a law of the
24
Commonwealth, to prohibit;
25
the communication, divulging or publication of information, the
26
production of, or the publication of the contents of, a document, or
27
the production of a thing.
28
sensitive information means information the disclosure of which:
29
(a) could prejudice:
30
(i) the security, defence or international relations of
31
Australia; or
32
Preliminary Part 1
Section 8
No. , 2019
National Integrity Commission Bill 2019
17
(ii) relations between the Commonwealth Government and
1
the Government of a State or between the Government
2
of a State and the Government of another State; or
3
(b) would involve disclosing:
4
(i) deliberations or decisions of the Cabinet, or of a
5
Committee of the Cabinet, of the Commonwealth or of a
6
State; or
7
(ii) deliberations or advice of the Federal Executive Council
8
or the Executive Council of a State or the Northern
9
Territory; or
10
(iii) deliberations or decisions of the Australian Capital
11
Territory Executive or of a committee of that Executive;
12
or
13
(c) could reveal, or enable a person to ascertain, the existence or
14
identity of a confidential source of information in relation to:
15
(i) the enforcement of the criminal law of the
16
Commonwealth, a State or Territory or a foreign
17
country; or
18
(ii) a corruption investigation; or
19
(iii) a public inquiry under this Act; or
20
(d) could endanger a person's life or physical safety; or
21
(e) could prejudice the protection of public safety; or
22
(f) could prejudice the fair trial of a person or the impartial
23
adjudication of a matter; or
24
(g) could prejudice the proper enforcement of the law (including
25
through corruption investigations); or
26
(h) would involve disclosing information whose disclosure is
27
prohibited (absolutely or subject to qualifications) by or
28
under another law of the Commonwealth; or
29
(i) would involve unreasonably disclosing a person's personal
30
affairs; or
31
(j) would involve unreasonably disclosing confidential
32
commercial information.
33
staff member of the Commission means:
34
(a) the National Integrity Commissioner; or
35
(b) the Law Enforcement Integrity Commissioner; or
36
Part 1 Preliminary
Section 8
18
National Integrity Commission Bill 2019
No. , 2019
(c) the Whistleblower Protection Commissioner; or
1
(d) any Assistant Commissioners; or
2
(e) any Assistant Law Enforcement Integrity Commissioners; or
3
(f) the CEO; or
4
(g) the staff referred to in section 227; or
5
(h) consultants engaged under section 228.
6
strip search has the same meaning as in Part IAA of the Crimes
7
Act 1914.
8
taxation secrecy provision means a secrecy provision that is a
9
provision of a taxation law within the meaning of the Taxation
10
Administration Act 1953.
11
thing relevant to an indictable offence has the same meaning as in
12
the Crimes Act 1914.
13
Whistleblower Protection Commissioner means the Whistleblower
14
Protection Commissioner appointed under section 197.
15
whistleblower protection commissioner functions has the meaning
16
given by section 14.
17
whistleblower protection issue means:
18
(a) an act or omission constituting reprisal or victimisation or
19
which causes detriment to any person, as a result of that
20
person or any other person making a disclosure of
21
wrongdoing; or
22
(b) a failure of by any person or body to fulfil whistleblower
23
protection responsibilities in respect of a disclosure of
24
wrongdoing, in circumstances where the failure has led, will
25
lead or is likely to lead to detriment or harm to any person;
26
and includes an allegation, reasonable suspicion, or information
27
relating to such an act, omission or failure.
28
whistleblower protection responsibilities means, in relation to a
29
person who made, may have made or may make a disclosure of
30
wrongdoing, or to any related person, a duty under any law or
31
applicable code of conduct or policy to:
32
Preliminary Part 1
Section 9
No. , 2019
National Integrity Commission Bill 2019
19
(a) support, protect, or prevent detriment from being caused to,
1
the person; or
2
(b) deal with a disclosure of wrongdoing in any particular way
3
prescribed by law for the purpose of protecting the rights,
4
interests and welfare of the person; or
5
(c) not cause detriment, by act or omission, to the person; or
6
(d) not victimise or engage in reprisal against the person.
7
(2) A reference in this Act to a person referring an allegation includes
8
a reference to the person making the allegation.
9
(3) A reference in this Act to a person referring information includes a
10
reference to the person giving information.
11
9 Meaning of corrupt conduct
12
(1) Subject to subsection (4), for the purposes of this Act, corrupt
13
conduct is:
14
(a) any conduct of any person that adversely affects, or that
15
could adversely affect, either directly or indirectly, the honest
16
or impartial exercise of official functions by the Parliament, a
17
Commonwealth agency, any public official or any group or
18
body of public officials; or
19
(b) any conduct of a public official that constitutes or involves
20
the dishonest or partial exercise of any of his or her official
21
functions; or
22
(c) any conduct of a public official that constitutes or involves,
23
or of a former public official that constituted or involved, a
24
breach of public trust; or
25
(d) any conduct of a public official that involves, or that is
26
engaged in for the purpose of, the public official abusing his
27
or her office as a public official; or
28
(e) any conduct of a public official that involves, or of a former
29
public official that involved, the misuse of information or
30
material that he or she acquired in the course of his or her
31
official functions, whether or not for his or her benefit or for
32
the benefit of any other person.
33
Part 1 Preliminary
Section 9
20
National Integrity Commission Bill 2019
No. , 2019
(2) Without limiting subsection (1), and subject to subsection (4),
1
conduct that involves any of the following is capable of being
2
corrupt conduct:
3
(a) official misconduct (including breach of trust, fraud in office,
4
nonfeasance, misfeasance, malfeasance, oppression, extortion
5
or imposition); or
6
(b) bribery; or
7
(c) blackmail; or
8
(d) obtaining or offering secret commissions; or
9
(e) theft; or
10
(f) perverting the course of justice; or
11
(g) embezzlement; or
12
(h) election bribery; or
13
(i) breaches of lobbying codes of conduct or electoral funding
14
laws; or
15
(j) election fraud; or
16
(k) tax evasion; or
17
(l) revenue evasion; or
18
(m) illegal drug dealings; or
19
(n) illegal gambling; or
20
(o) obtaining financial benefit by vice engaged in by others; or
21
(p) bankruptcy and company violations; or
22
(q) collusive tendering; or
23
(r) impropriety in government procurement and tender processes
24
(s) fraud in relation to applications for licences, permits or other
25
authorities under legislation designed to protect health and
26
safety or the environment or designed to facilitate the
27
management and commercial exploitation of resources; or
28
(t) dishonestly obtaining or assisting in obtaining, or dishonestly
29
benefiting from, the payment or application of public funds
30
for private advantage or the disposition of public assets for
31
private advantage; or
32
(u) defrauding the public revenue; or
33
(v) fraudulently obtaining or retaining employment or
34
appointment as a public official.
35
Preliminary Part 1
Section 10
No. , 2019
National Integrity Commission Bill 2019
21
(3) Conduct may amount to corrupt conduct under this section even
1
though it occurred before the commencement of this subsection,
2
and it does not matter that some or all of the effects or other
3
ingredients necessary to establish such corrupt conduct occurred
4
before that commencement and that any person or persons
5
involved are no longer public officials.
6
Note:
Subsection 12(3) provides that the national integrity commissioner
7
functions do not include the investigation of corruption issues that
8
arose more than 10 years before the day section 12 commences.
9
(4) Despite subsections (1) to (3), conduct does not amount to corrupt
10
conduct unless it could constitute or involve:
11
(a) a criminal offence or conduct giving rise to a civil liability; or
12
(b) a disciplinary offence; or
13
(c) reasonable grounds for dismissing, dispensing with the
14
services of or otherwise terminating the services of a public
15
official; or
16
(d) in the case of conduct of a Minister or a parliamentarian--a
17
substantial breach of an applicable code of conduct.
18
(5) In this section:
19
impartial means conduct of a person that causes, or could cause,
20
any public official or group or body of public officials to place the
21
private or personal interests of any person (including their own)
22
over the public good, in the exercise of any of their official
23
functions; including conduct of which the public official or
24
officials may have no knowledge.
25
partial means conduct of a public official that involves the placing
26
by the public official of the private or personal interests of any
27
person (including their own) over the public good, in the exercise
28
of any of their official functions.
29
10 Meaning of corruption issue
30
(1) For the purposes of this Act, a corruption issue is an issue whether
31
a person:
32
(a) has, or may have, engaged in corrupt conduct; or
33
(b) is, or may be, engaging in corrupt conduct; or
34
Part 1 Preliminary
Section 10
22
National Integrity Commission Bill 2019
No. , 2019
(c) will, or may at any time in the future, engage in corrupt
1
conduct.
2
(2) To avoid doubt, an allegation, or information, may raise a
3
corruption issue even if the identity of the person is unknown, is
4
uncertain or is not disclosed in the allegation or information.
5
The Australian National Integrity Commission Part 2
Establishment Division 1
Section 11
No. , 2019
National Integrity Commission Bill 2019
23
Part 2--The Australian National Integrity
1
Commission
2
Division 1--Establishment
3
11 Establishment
4
(1) The Australian National Integrity Commission is established by
5
this section.
6
(2) The Commission consists of:
7
(a) the National Integrity Commissioner; and
8
(b) the Law Enforcement Integrity Commissioner; and
9
(c) the Whistleblower Protection Commissioner; and
10
(d) any Assistant Commissioners; and
11
(e) any Assistant Law Enforcement Integrity Commissioners.
12
(3) For the purposes of the finance law (within the meaning of the
13
Public Governance, Performance and Accountability Act 2013):
14
(a) the Commission is a listed entity; and
15
(b) the CEO is the accountable authority of the Commission; and
16
(c) the following persons are officials of the Commission:
17
(i) the National Integrity Commissioner;
18
(ii) the Commissioners;
19
(iii) any Assistant Commissioners;
20
(iv) any Assistant Law Enforcement Integrity
21
Commissioners;
22
(v) the CEO;
23
(vi) the staff referred to in section 227;
24
(vii) consultants engaged under section 228; and
25
(d) the purposes of the Commission include:
26
(i) the functions of the Commissioner conferred by this
27
Act; and
28
(ii) the national integrity commissioner functions; and
29
Part 2 The Australian National Integrity Commission
Division 1 Establishment
Section 11
24
National Integrity Commission Bill 2019
No. , 2019
(iii) the law enforcement integrity commissioner functions;
1
and
2
(iv) the whistleblower protection commissioner functions;
3
and
4
(v) the functions of the CEO referred to in section 216.
5
The Australian National Integrity Commission Part 2
Functions and powers of the National Integrity Commissioner and Commissioners
Division 2
Section 12
No. , 2019
National Integrity Commission Bill 2019
25
Division 2--Functions and powers of the National Integrity
1
Commissioner and Commissioners
2
12 Definition of national integrity commissioner functions
3
(1) The national integrity commissioner functions are as follows:
4
(a) to advise and assist any public official, Commonwealth
5
agency or other person on changes in laws, practices or
6
procedures compatible with the effective exercise of their
7
functions which the National Integrity Commissioner thinks
8
necessary to promote integrity and reduce the likelihood of
9
the occurrence of corrupt conduct;
10
(b) to educate and disseminate information to public officials,
11
Commonwealth agencies and the community on strategies to
12
combat corrupt conduct;
13
(c) to lead and support Commonwealth and national strategies
14
for corruption prevention, national and international
15
coordination of anti-corruption efforts, and development and
16
implementation of a National Integrity and Anti-Corruption
17
Plan;
18
(d) on the National Integrity Commissioner's own initiative, or at
19
the request of the Minister or either House of the Parliament,
20
to make reports and recommendations to the Parliament
21
about the need for or the desirability of legislative or
22
administrative action on issues in relation to:
23
(i) the integrity of public officials; or
24
(ii) corruption generally in Commonwealth agencies; or
25
(iii) corruption generally in or affecting Australia;
26
whether those issues arose before or after the commencement
27
of this section;
28
(e) to investigate and conduct public inquiries into corruption
29
issues involving:
30
(i) a public official; or
31
(ii) a Commonwealth agency;
32
Part 2 The Australian National Integrity Commission
Division 2 Functions and powers of the National Integrity Commissioner and
Commissioners
Section 12
26
National Integrity Commission Bill 2019
No. , 2019
and report on the results of those investigations and inquiries,
1
whether those corruption issues arose before or after the
2
commencement of this section;
3
(f) to refer corruption issues, in appropriate circumstances, to
4
appropriate government agencies for investigation;
5
(g) to manage, oversee or review, in appropriate circumstances,
6
the investigation of corruption issues by Commonwealth
7
agencies;
8
(h) to communicate to appropriate authorities and to the public
9
the results of investigations and inquiries, including
10
recommendations for action that should be or have been
11
taken, or are being taken, in relation to those results;
12
(i) with the consent of the Minister, to enter into an arrangement
13
to perform the functions of a Territory integrity
14
commissioner under a scheme established in accordance with
15
the conditions of licences or authorities granted under an Act
16
of a Territory;
17
(j) to support the Whistleblower Protection Commissioner in the
18
discharge of their functions;
19
(k) to chair meetings of the Commission and of committees
20
established under Part 3 of this Act;
21
(l) any other function conferred on the National Integrity
22
Commissioner by this Act or another law of the
23
Commonwealth;
24
(m) to do anything incidental or conducive to the performance of
25
the above functions.
26
(2) An arrangement referred to in paragraph (1)(i) may include
27
provision for payment by the other party to the arrangement for the
28
performance of functions by the National Integrity Commissioner
29
in accordance with the arrangement.
30
(3) Despite anything else in this Act or the regulations, the national
31
integrity commissioner functions do not include the investigation
32
of corruption issues that arose more than 10 years before the day
33
this section commences.
34
The Australian National Integrity Commission Part 2
Functions and powers of the National Integrity Commissioner and Commissioners
Division 2
Section 13
No. , 2019
National Integrity Commission Bill 2019
27
13 Definition of law enforcement integrity commissioner functions
1
The law enforcement integrity commissioner functions are as
2
follows:
3
(a) the functions conferred on the Law Enforcement Integrity
4
Commissioner under section 15 of the Law Enforcement
5
Integrity Commissioner Act 2006;
6
(b) any other function conferred by this Act or another Act (or an
7
instrument under this Act or another Act) on the Law
8
Enforcement Integrity Commissioner.
9
14 Definition of whistleblower protection commissioner functions
10
(1) The whistleblower protection commissioner functions are as
11
follows:
12
(a) to provide advice, assistance, guidance and support to any
13
public official, Commonwealth agency or other person on
14
rights, obligations and processes relating to the making of
15
disclosures of wrongdoing as defined by this Act;
16
(b) to receive disclosures of wrongdoing from any person;
17
(c) to safeguard the identity and confidentiality of persons who
18
make disclosures of wrongdoing, to the maximum extent
19
possible by law and appropriate to the circumstances;
20
(d) to assess and, where appropriate, refer disclosures of
21
wrongdoing to appropriate Commonwealth agencies, other
22
government agencies, or other bodies, with functions and
23
powers to deal with those disclosures;
24
(e) to monitor and, where appropriate, provide advice or
25
assistance to agencies or bodies to whom disclosures of
26
wrongdoing have been referred, in respect of whistleblower
27
protection issues;
28
(f) to manage, oversee or review, in appropriate circumstances,
29
the manner in which Commonwealth agencies investigate or
30
deal with disclosures of wrongdoing, in respect of
31
whistleblower protection issues;
32
(g) to ensure appropriate support and protection is provided to
33
persons who make disclosures of wrongdoing;
34
Part 2 The Australian National Integrity Commission
Division 2 Functions and powers of the National Integrity Commissioner and
Commissioners
Section 14
28
National Integrity Commission Bill 2019
No. , 2019
(h) to advise and assist any public official, Commonwealth
1
agency or other person on changes in laws, practices or
2
procedures compatible with the effective exercise of their
3
functions which the Whistleblower Protection Commissioner
4
thinks necessary to promote the appropriate support and
5
protection for persons who make disclosures of wrongdoing;
6
(i) on the Whistleblower Protection Commissioner's own
7
initiative, or at the request of the Minister or either House of
8
the Parliament, to make reports and recommendations to the
9
Parliament about the need for or the desirability of legislative
10
or administrative action on issues in relation to whistleblower
11
protection, whether those issues arose before or after the
12
commencement of this section;
13
(j) to investigate and conduct public inquiries into issues of
14
reprisal, detrimental action, or failures to prevent detrimental
15
action, arising or resulting from disclosures of wrongdoing;
16
(k) to report on the results of those investigations and inquiries,
17
whether the issues of reprisal, detrimental action, or failures
18
to prevent detrimental action arose before or after the
19
commencement of this section;
20
(l) to manage, oversee or review, in appropriate circumstances,
21
the investigation by Commonwealth agencies of issues of
22
reprisal, detrimental action, or failures to prevent detrimental
23
action, arising or resulting from disclosures of wrongdoing;
24
(m) to communicate to appropriate authorities and to the public
25
the results of investigations, including reports or
26
recommendations on actions that should be or have been
27
taken, or are being taken, in relation to whistleblower
28
protection--including criminal prosecution, disciplinary
29
action, civil penalty enforcement, or the seeking or
30
provisions of remedies or rewards in favour of persons who
31
make disclosures of wrongdoing;
32
(n) to provide legal advice, representation or other practical
33
support, as appropriate, to persons who make disclosures of
34
wrongdoing and who are, or may become, a party to
35
proceedings in a court or to a matter before an industrial,
36
civil or administrative body, under any law, if the
37
Whistleblower Protection Commissioner considers that
38
The Australian National Integrity Commission Part 2
Functions and powers of the National Integrity Commissioner and Commissioners
Division 2
Section 15
No. , 2019
National Integrity Commission Bill 2019
29
representing the person will promote compliance with
1
whistleblower protection responsibilities;
2
(o) to commence proceedings in a court, or to make applications
3
to an industrial, civil or administrative body, to enforce this
4
Act or any Commonwealth law containing whistleblower
5
protection responsibilities;
6
(p) to support the National Integrity Commissioner, the Law
7
Enforcement Integrity Commissioner, other Commonwealth
8
agencies and other government agencies in the discharge of
9
their functions;
10
(q) such other functions as are delegated by the National
11
Integrity Commissioner under this Act or another Act;
12
(r) any other function conferred on the Whistleblower Protection
13
Commissioner by this Act or another law of the
14
Commonwealth;
15
(s) to do anything incidental or conducive to the performance of
16
the above functions.
17
(2) The Whistleblower Protection Commissioner must consult with the
18
National Integrity Commissioner in exercising any function
19
relating to the functions of the National Integrity Commissioner.
20
15 Functions and powers of the National Integrity Commissioner
21
(1) The National Integrity Commissioner has the national integrity
22
commissioner functions.
23
(2) The National Integrity Commissioner has power to do all things
24
necessary or convenient to be done for or in connection with the
25
performance of the national integrity commissioner functions
26
conferred by this section.
27
(3) In performing functions or exercising powers conferred on the
28
National Integrity Commissioner, the National Integrity
29
Commissioner must:
30
(a) as far as practicable, direct attention to serious corrupt
31
conduct and systemic corrupt conduct; and
32
Part 2 The Australian National Integrity Commission
Division 2 Functions and powers of the National Integrity Commissioner and
Commissioners
Section 16
30
National Integrity Commission Bill 2019
No. , 2019
(b) take into account the responsibility and role other public
1
authorities and public officials have in the prevention of
2
corrupt conduct.
3
16 Functions and powers of the Law Enforcement Integrity
4
Commissioner
5
(1) The Law Enforcement Integrity Commissioner has the law
6
enforcement integrity commissioner functions.
7
(2) The Law Enforcement Integrity Commissioner has the powers
8
conferred under Parts 9 and 12 of the Law Enforcement Integrity
9
Commissioner Act 2006 to do things necessary or convenient to be
10
done for or in connection with the performance of the law
11
enforcement integrity commissioner functions.
12
Note:
The Law Enforcement Integrity Commissioner is subject to direction
13
by the National Integrity Commissioner in relation to the performance
14
of certain functions and the exercise of certain powers (see section 184
15
of the Law Enforcement Integrity Commissioner Act 2006).
16
17 Functions and powers of the Whistleblower Protection
17
Commissioner
18
(1) The Whistleblower Protection Commissioner has the
19
whistleblower protection commissioner functions.
20
(2) The Whistleblower Protection Commissioner has power to do all
21
things necessary or convenient to be done for or in connection with
22
the performance of the whistleblower protection commissioner
23
functions conferred by this section.
24
Corruption prevention, research and coordination Part 3
Promoting integrity in public administration and Australia Division 1
Section 18
No. , 2019
National Integrity Commission Bill 2019
31
Part 3--Corruption prevention, research and
1
coordination
2
Division 1--Promoting integrity in public administration
3
and Australia
4
18 Role of the National Integrity Commissioner
5
(1) The National Integrity Commissioner has the following duties for
6
the purpose of promoting integrity and preventing corruption in
7
Australia:
8
(a) to develop and implement a strategy for how the Commission
9
can best contribute to the promotion of integrity and
10
prevention of corruption;
11
(b) to develop and publish rules, guidance and standards for
12
Commonwealth agency integrity and anti-corruption plans
13
under Division 2; and to review, monitor and support such
14
plans;
15
(c) to lead and assist in improvement of the capacity of the
16
public sector to strengthen its integrity systems and prevent
17
corrupt conduct, including through corruption prevention
18
inquiries under Division 3;
19
(d) to lead and facilitate training, education of, and advice to, the
20
public sector and the community about consequences and
21
prevention of corruption, including under Division 4;
22
(e) to undertake research into the incidence of corruption, its
23
causes and antecedents, and methods of prevention, as
24
provided for in Division 5;
25
(f) to lead and support cooperation and coordination among
26
Commonwealth agencies responsible for promoting integrity
27
and preventing or dealing with corruption or related issues, in
28
the public sector, as provided for in Division 6; and
29
(g) to lead and support cooperation and coordination among
30
government agencies, including State, Territory and
31
international agencies, and other stakeholders, in strategies
32
for combatting corruption in Australia, including the
33
Part 3 Corruption prevention, research and coordination
Division 1 Promoting integrity in public administration and Australia
Section 19
32
National Integrity Commission Bill 2019
No. , 2019
development and implementation of the National Integrity
1
and Anti-Corruption Plan under Division 7.
2
19 Role of the Commission
3
(1) In determining how to fulfil the duties under this Part, and in
4
fulfilling the duties, the National Integrity Commissioner will
5
consult with the Whistleblower Protection Commissioner and the
6
Law Enforcement Integrity Commissioner.
7
(2) The National Integrity Commissioner may enter into an agreement
8
with the head of a Commonwealth agency for the purpose of
9
assisting the agency with fulfilment of any duty or obligation under
10
this Part.
11
(3) The CEO must, by writing, designate positions in the Commission
12
as positions assisting the National Integrity Commissioner with the
13
fulfilment of duties under this Part.
14
Note:
For creation of positions, see section 77 of the Public Service Act
15
1999.
16
(4) A person in a position designated under subsection (3) may be
17
located in any Commonwealth agency with whom the CEO enters
18
into an agreement under subsection (3).
19
Corruption prevention, research and coordination Part 3
Commonwealth integrity and anti-corruption plans Division 2
Section 20
No. , 2019
National Integrity Commission Bill 2019
33
Division 2--Commonwealth integrity and anti-corruption
1
plans
2
20 Preparation of integrity and anti-corruption plans
3
(1) The head of each Commonwealth agency is to prepare, every 2
4
years, a plan to protect and enhance integrity in the performance of
5
the agency's functions (including the prevention of corruption in
6
its program delivery, use of financial assets and information,
7
decision-making, and the conduct of its staff) covering at least the
8
next 4-year period.
9
Note:
The first integrity and anti-corruption plan is to be prepared within 2
10
years of the commencement of this Act.
11
(2) Each agency's integrity and anti-corruption plan must be consistent
12
with any relevant rule, guidance or standard made under this Act.
13
(3) Nothing in this Act prevents a Commonwealth agency that is a
14
Commonwealth entity from combining its integrity and
15
anti-corruption plan with a fraud control plan, or corporate plan,
16
for the entity under the Public Governance, Performance and
17
Accountability Act 2013.
18
(4) However, despite subsection (3), an integrity and anti-corruption
19
plan must not be wholly contained within an agency's fraud control
20
plan and must deal with topics of integrity and anti-corruption
21
beyond simply fraud.
22
(5) An agency head may elect to not publish the agency's integrity and
23
anti-corruption plan, or may choose to redact it for publication, but
24
only in circumstances where publication of some or all of the plan
25
would be counter to the interests of preventing or dealing with
26
corruption in or by the agency.
27
21 Audit Committee to monitor plans
28
If a Commonwealth agency is a Commonwealth entity, the audit
29
committee for the agency must review the integrity and
30
anti-corruption plan, monitor its implementation and assess its
31
Part 3 Corruption prevention, research and coordination
Division 2 Commonwealth integrity and anti-corruption plans
Section 22
34
National Integrity Commission Bill 2019
No. , 2019
effectiveness, having regard to the level of corruption risk
1
applicable to the agency and its programs.
2
Note 1:
See section 45 of the Public Governance, Performance and
3
Accountability Act 2013 (which deals with audit committees for
4
Commonwealth entities).
5
Note 2:
The responsibility for preparing and implementing the entity's plan
6
remains with the accountable authority for the entity.
7
22 National Integrity Commissioner to receive plans on request
8
(1) A copy of a Commonwealth agency's integrity and anti-corruption
9
plan, together with (for a Commonwealth entity) any audit
10
committee comments or reports relating to its preparation or
11
monitoring, is to be provided by the head of the agency on request
12
by the National Integrity Commissioner.
13
(2) The head of a Commonwealth agency, including at the
14
recommendation of an audit committee, may request the National
15
Integrity Commissioner to review the agency's integrity and
16
anti-corruption plan or advise on its preparation.
17
(3) The National Integrity Commissioner may provide comments to
18
the head of the Commonwealth agency, designed to strengthen the
19
agency's integrity and anti-corruption plan.
20
(4) Despite any other provision of this Act, the National Integrity
21
Commissioner may publish a Commonwealth agency's integrity
22
and anti-corruption plan, in part or whole, together with any
23
comments, if satisfied it is in the public interest to do so.
24
23 Consideration of adequacy of plans
25
(1) This section applies to any report of an investigation or public
26
inquiry under section 56 or section 70, or any special report under
27
section 234, which identifies that a corruption issue arose in
28
respect of any particular Commonwealth agency or agencies.
29
(2) In preparing the report, the National Integrity Commissioner must
30
consider, address and, where relevant, report upon:
31
(a) whether the agency had in place an integrity and
32
anti-corruption plan;
33
Corruption prevention, research and coordination Part 3
Commonwealth integrity and anti-corruption plans Division 2
Section 23
No. , 2019
National Integrity Commission Bill 2019
35
(b) the adequacy of the integrity and anti-corruption plan;
1
(c) recommendations for the improvement of the agency's
2
integrity and anti-corruption plan, or the integrity and
3
anti-corruption plans of other agencies or in general; and
4
(d) whether there were any failures to implement the integrity
5
and anti-corruption plan, or to prevent corrupt conduct, and,
6
if so, the nature of and reasons for those failures.
7
Part 3 Corruption prevention, research and coordination
Division 3 Corruption prevention inquiries
Section 24
36
National Integrity Commission Bill 2019
No. , 2019
Division 3--Corruption prevention inquiries
1
24 National Integrity Commissioner may conduct inquiries
2
(1) The National Integrity Commissioner may conduct a public inquiry
3
for the purposes of identifying changes in laws, practices or
4
procedures which the National Integrity Commissioner thinks
5
necessary to promote integrity and reduce the likelihood of the
6
occurrence of corrupt conduct.
7
(2) An inquiry under this Division may be undertaken on the National
8
Integrity Commissioner's own initiative, or at the request of the
9
Minister or either House of the Parliament.
10
25 Scope and powers of inquiries
11
(1) An inquiry under this Division may concern laws, practices or
12
procedures relating to any of the following:
13
(a) the integrity of public officials;
14
(b) corruption or prevention of corruption generally in
15
Commonwealth agencies;
16
(c) corruption generally, or the prevention of corruption, in or
17
affecting Australia.
18
(2) An inquiry under this Division may concern such issues as the
19
National Integrity Commissioner deems relevant for the purposes
20
of subsection (1), whether those issues arose before or after the
21
commencement of this section.
22
(3) An inquiry under this Division may review and make general
23
recommendations about practices, procedures and standards in
24
relation to integrity, propriety, ethics, and the prevention of
25
corruption, in any of the following:
26
(a) Commonwealth agencies;
27
(b) government generally;
28
(c) other institutions or bodies in Australia;
29
(d) the community at large.
30
Corruption prevention, research and coordination Part 3
Corruption prevention inquiries Division 3
Section 26
No. , 2019
National Integrity Commission Bill 2019
37
(4) An inquiry under this Division is to be conducted as a public
1
inquiry under Division 3 of Part 5 of this Act.
2
26 Reports of inquiries
3
(1) A report of an inquiry under this Division is to be prepared in
4
accordance with Division 4 of Part 5 of this Act.
5
(2) A report may include such recommendations, to any person, as the
6
National Integrity Commissioner sees fit.
7
(3) Without limiting subsection (2), a report may include
8
recommendations to the Parliament about the need for or the
9
desirability of legislative or administrative action on any issues in
10
relation to:
11
(a) the integrity of public officials; or
12
(b) corruption generally in Commonwealth agencies; or
13
(c) corruption generally in or affecting Australia;
14
whether those issues arose before or after the commencement of
15
this section;
16
Part 3 Corruption prevention, research and coordination
Division 4 Education, training and advice
Section 27
38
National Integrity Commission Bill 2019
No. , 2019
Division 4--Education, training and advice
1
27 Agency heads to provide training
2
The head of each Commonwealth agency is to ensure that officers
3
of the agency are given appropriate education and training relating
4
to ethical conduct, corruption risk and the prevention of corrupt
5
conduct, including any obligations arising under this Act.
6
28 Role of National Integrity Commissioner
7
(1) The National Integrity Commissioner will develop and implement
8
a strategy for how the Commission can best lead, facilitate and
9
support the training and education of, and provision of advice to,
10
the public sector and the community about the consequences and
11
prevention of corruption.
12
(2) The National Integrity Commissioner will assist the heads of
13
Commonwealth agencies in ensuring that officers are given
14
appropriate education and training under section 27.
15
(3) The National Integrity Commissioner may enter into contracts,
16
agreements and partnerships with other entities to support the
17
Commission's training, education and advice functions.
18
(4) In developing and implementing the strategy under subsection (1),
19
the National Integrity Commissioner will consult with:
20
(a) the Australian Public Service Commission;
21
(b) the Merit Protection Commissioner;
22
(c) the Commonwealth Ombudsman; and
23
(d) such other agencies or bodies as the National Integrity
24
Commissioner sees fit.
25
Corruption prevention, research and coordination Part 3
Research and intelligence Division 5
Section 29
No. , 2019
National Integrity Commission Bill 2019
39
Division 5--Research and intelligence
1
29 Research functions
2
(1) The National Integrity Commissioner will develop and implement
3
a strategy for research to support the performance of the
4
Commission's functions.
5
(2) The research strategy may include research into any of the
6
following:
7
(a) the promotion of integrity and ethical conduct;
8
(b) individual and organisational behaviour related to integrity
9
and ethical conduct;
10
(c) the incidence and prevention of corruption;
11
(d) detection and investigatory processes relating to corruption;
12
(e) factors giving rise, and factors influencing responses, to
13
corruption issues among Commonwealth agencies;
14
(f) continuous improvement in responses to corruption;
15
(g) any other matter relating to the promotion of integrity or the
16
prevention and eradication of corruption.
17
30 Research strategy--consultation and implementation
18
(1) In developing and implementing the research strategy under
19
section 29, the National Integrity Commissioner will consult with:
20
(a) the Australian Institute of Criminology;
21
(b) the Australian Crime Commission;
22
(c) such other agencies or bodies as the National Integrity
23
Commissioner sees fit.
24
(2) The Minister may make suggestions to the National Integrity
25
Commissioner regarding issues suitable for inclusion in the
26
Commission's research strategy.
27
(3) The National Integrity Commissioner may enter into contracts,
28
agreements and partnerships with other entities to support the
29
Commission's research functions.
30
Part 3 Corruption prevention, research and coordination
Division 5 Research and intelligence
Section 31
40
National Integrity Commission Bill 2019
No. , 2019
31 Relationship between research and operations
1
In developing and implementing the research strategy under
2
section 29, the National Integrity Commissioner will give priority
3
to research which:
4
(a) assists the Commission in identifying and dealing with
5
specific corruption issues among Commonwealth agencies,
6
including areas of corruption risk to be addressed by the
7
Commission; and
8
(b) applies, includes and makes use of the Commission's
9
experience in dealing with specific corruption issues among
10
Commonwealth agencies, including information (including
11
records and statistics) arising from enquiries, referrals or
12
investigations relating to corruption issues.
13
Corruption prevention, research and coordination Part 3
Commonwealth cooperation and coordination Division 6
Section 32
No. , 2019
National Integrity Commission Bill 2019
41
Division 6--Commonwealth cooperation and coordination
1
32 Principles of operation of National Integrity Commission
2
The National Integrity Commissioner, Whistleblower Protection
3
Commissioner and Law Enforcement Integrity Commissioner will
4
exercise their functions and powers in such a way as to:
5
(a) work cooperatively with other Commonwealth agencies
6
responsible for integrity, ethics and the prevention of or
7
responses to corruption, including parliamentary officers and
8
agencies; and
9
(b) improve the capacity of Commonwealth agencies to prevent
10
and respond to corruption issues; and
11
(c) not duplicate or interfere with work that it considers has been
12
undertaken or is being undertaken appropriately by a
13
Commonwealth agency.
14
33 Cooperation and coordination with other Commonwealth
15
agencies
16
(1) This section applies to any Commonwealth agency with
17
responsibility for integrity, ethics or the prevention of, or responses
18
to, corruption in Commonwealth public administration, including
19
the agencies listed in subsection 34(2).
20
(2) The National Integrity Commissioner will facilitate cooperation
21
and coordination among agencies to whom this section applies, and
22
between any and all of those agencies and the Commission.
23
(3) In facilitating cooperation and coordination under subsection (2), it
24
will be the objective of the National Integrity Commissioner to
25
ensure a comprehensive, efficient, nationally coordinated approach
26
to the prevention, detection, reduction and remediation of
27
corruption in Commonwealth public administration.
28
(4) Despite any other Act, any agency to which this section applies
29
may:
30
Part 3 Corruption prevention, research and coordination
Division 6 Commonwealth cooperation and coordination
Section 34
42
National Integrity Commission Bill 2019
No. , 2019
(a) exchange any information relating to the promotion of
1
integrity, or to preventing or responding to corruption, with
2
any other agency to whom this section applies; and
3
(b) engage in joint activities, projects or operations relating to
4
the promotion of integrity, or to preventing or responding to
5
corruption, with any other agency to which this section
6
applies.
7
34 Commonwealth Integrity Coordination Committee
8
(1) The Commonwealth Integrity Coordination Committee is
9
established by this section.
10
(2) The Commonwealth Integrity Coordination Committee consists of
11
the persons who, from time to time, hold the following offices:
12
(a) Commonwealth Ombudsman;
13
(b) Australian Information Commissioner;
14
(c) Auditor-General;
15
(d) Australian Public Service Commissioner;
16
(e) Merit Protection Commissioner;
17
(f) Australian Electoral Commissioner;
18
(g) Inspector-General of Taxation;
19
(h) Inspector-General of Intelligence and Security;
20
(i) Australian Federal Police Commissioner;
21
(j) CEO of the Australian Crime Commission;
22
(k) CEO of the Independent Parliamentary Expenses Authority;
23
(l) Parliamentary Standards Commissioner;
24
(m) Secretary of the Attorney-General's Department;
25
(n) Law Enforcement Integrity Commissioner;
26
(o) Whistleblower Protection Commissioner;
27
(p) National Integrity Commissioner;
28
(q) any other office that, in the opinion of the National Integrity
29
Commissioner, has significant responsibility for integrity,
30
ethics or the prevention of, or responses to, corruption in
31
Commonwealth public administration.
32
(3) The Committee will be chaired by:
33
Corruption prevention, research and coordination Part 3
Commonwealth cooperation and coordination Division 6
Section 35
No. , 2019
National Integrity Commission Bill 2019
43
(a) a member of the Committee as agreed by the members of the
1
Committee from time to time; or
2
(b) if, no other member is agreed under paragraph (a), the
3
National Integrity Commissioner.
4
(3) The Committee will meet no less than twice in any calendar year.
5
35 Functions of the Commonwealth Integrity Coordination
6
Committee
7
The Commonwealth Integrity Coordination Committee has the
8
following functions:
9
(a) to foster cooperation and coordination between the members
10
of the Committee and their respective agencies;
11
(b) to facilitate the exchange of information between agencies in
12
performance of their functions;
13
(c) to develop common and consistent definitions, language and
14
promotional and educational materials relating to integrity
15
and anti-corruption in Commonwealth administration;
16
(d) to provide a forum for consultation on the development of
17
Rules, standards or guidance to be developed by the National
18
Integrity Commissioner, Whistleblower Protection
19
Commissioner or any other member agency;
20
(e) to provide a forum for consultation on the research,
21
education, training or advice strategies of the National
22
Integrity Commissioner or any other member agency;
23
(f) to identify priority areas of corruption risk for the
24
Commonwealth, or priority areas or opportunities for the
25
promotion of integrity and prevention of corruption;
26
(g) to identify and support joint activities, projects, initiatives or
27
operations relating to integrity and anti-corruption in
28
Commonwealth administration;
29
(h) to develop common strategies for engaging and
30
communicating with Commonwealth agencies and the wider
31
community on issues relating to integrity and anti-corruption
32
in Commonwealth administration;
33
(i) to consult and provide advice to Government or the
34
Parliament on issues of law, practice or procedure relating to
35
Part 3 Corruption prevention, research and coordination
Division 6 Commonwealth cooperation and coordination
Section 35
44
National Integrity Commission Bill 2019
No. , 2019
integrity and anti-corruption in Commonwealth
1
administration;
2
(j) to do anything incidental to or conducive to the performance
3
of the above functions.
4
Corruption prevention, research and coordination Part 3
National cooperation and coordination Division 7
Section 36
No. , 2019
National Integrity Commission Bill 2019
45
Division 7--National cooperation and coordination
1
36 Role of the National Integrity Commissioner
2
(1) It is the duty of the National Integrity Commissioner to:
3
(a) promote and assist in a comprehensive, efficient, nationally
4
coordinated approach to the prevention, detection, reduction
5
and remediation of corruption in:
6
(i) Australia generally; and
7
(ii) Australia's relations with other countries; and
8
(b) assist in the cooperative implementation of Australia's
9
international anti-corruption responsibilities, including under
10
the United Nations Convention Against Corruption (2005).
11
(2) In fulfilling their duty under subsection (1), the National Integrity
12
Commissioner may undertake research or initiatives about, or have
13
regard, express opinions, provide advice or make recommendations
14
relating to:
15
(a) corruption and its prevention in Commonwealth public
16
administration; or
17
(b) corruption and its prevention in government generally in
18
Australia; or
19
(c) issues relating to corruption and its prevention in business or
20
the wider community in Australia; or
21
(d) issues among other countries relating to corruption and
22
prevention, that affect, or may affect, Australia.
23
(3) In fulfilling their duty under subsection (1), the National Integrity
24
Commissioner will give priority to:
25
(a) their role in preparation of the National Integrity and
26
Anti-Corruption Plan under section 37; and
27
(b) their role in assisting the implementation of the National
28
Integrity and Anti-Corruption Plan.
29
Part 3 Corruption prevention, research and coordination
Division 7 National cooperation and coordination
Section 37
46
National Integrity Commission Bill 2019
No. , 2019
37 National Integrity and Anti-corruption Plan
1
(1) The Minister is to publish a National Integrity and Anti-corruption
2
Plan no less frequently than every 4 years, covering at least the
3
next 4-year period.
4
Note:
The first National Integrity and Anti-corruption Plan is to be published
5
within 2 years of the commencement of this Part.
6
(2) The National Integrity and Anti-corruption Plan must include the
7
following:
8
(a) identification of key corruption threats and related risks to
9
integrity affecting, or likely to affect, Commonwealth public
10
administration;
11
Note:
Threats and risk factors may include, but is not limited to: organised
12
crime; influence peddling; political lobbying; internal fraud, external
13
collusion, solicitation and bribery; maladministration, malfeasance
14
and misconduct.
15
(b) identification of key corruption threats and related risks to
16
integrity affecting, or likely to affect, Australia generally;
17
(c) key mechanisms in place and any additional measures
18
planned to mitigate corruption threats and risks to integrity;
19
(d) the role of business and the wider community in promoting
20
integrity and combatting corruption in Australia;
21
(e) the role of the States and Territories in promoting integrity
22
and combatting corruption in Australia;
23
(f) priority areas for Commonwealth reform or action to promote
24
integrity and combat corruption;
25
(g) key actions to be undertaken or recommended to be
26
undertaken to promote integrity and combat corruption,
27
including a timetable and parties responsible for those
28
actions;
29
(h) any other items specified in the Rules.
30
(3) The National Integrity and Anti-corruption Plan must include an
31
assessment and recommendations regarding the adequacy of
32
strategies to counter risks to integrity in high-risk areas of
33
Commonwealth public administration, including the following:
34
(a) major procurement and capital works;
35
(b) the allocation of grants and subsidies;
36
Corruption prevention, research and coordination Part 3
National cooperation and coordination Division 7
Section 38
No. , 2019
National Integrity Commission Bill 2019
47
(c) enforcement of the criminal law;
1
(d) regulatory enforcement of industry and commerce;
2
(e) border crime and transboundary corruption;
3
(f) elections;
4
(g) any other item specified in the Rules;
5
(h) any other area considered relevant for inclusion by the
6
Minister.
7
(4) The National Integrity and Anti-corruption Plan must also consider
8
appropriate measures to ensure continual improvement in the
9
facilitation and protection of whistleblowers.
10
38 Preparation of plan
11
(1) In preparing the National Integrity and Anti-Corruption Plan, the
12
Minister is to consult and have regard to the views of the
13
following:
14
(a) the National Integrity Commissioner;
15
(b) the members of the Commonwealth Integrity Coordination
16
Committee established by section 34;
17
(c) the members of the National Integrity and Anti-Corruption
18
Advisory Committee established by section 40;
19
(d) such other persons as the Minister sees fit.
20
(2) In preparing the plan, the Minister will request the National
21
Integrity Commissioner to:
22
(a) comment on a first draft of the plan;
23
(b) contribute research to the development of the plan;
24
(c) comment on the final draft of the plan prior to its adoption by
25
the Minister.
26
(1) The Minister must not publish a plan unless it has been prepared
27
following a period of public consultation.
28
39 Examination of plan
29
The Parliamentary Joint Committee is to inquire into each National
30
Integrity and Anti-Corruption Plan, and report to both houses on
31
Part 3 Corruption prevention, research and coordination
Division 7 National cooperation and coordination
Section 40
48
National Integrity Commission Bill 2019
No. , 2019
any matters it sees fit within 18 months of publication of the
1
National Integrity and Anti-Corruption Plan by the Minister.
2
40 National Integrity and Anti-Corruption Advisory Committee
3
(1) The National Integrity and Anti-Corruption Advisory Committee is
4
established by this section.
5
(2) The National Integrity and Anti-Corruption Advisory Committee
6
consists of the following:
7
(a) the persons who, from time to time, hold the following
8
offices:
9
(i) Secretary of the Department administered by the
10
Attorney-General;
11
(ii) National Integrity Commissioner;
12
(iii) Australian Federal Police Commissioner;
13
(iv) CEO of the Australian Crime Commission;
14
(v) Chairperson of the Australian Securities and
15
Investments Commission;
16
(vi) Chairperson of the Australian Competition and
17
Consumer Commission.
18
(b) at least 3 representatives of State or Territory agencies with
19
significant responsibility for integrity, ethics or the
20
prevention of, or responses to, corruption;
21
(c) at least 2 representatives of civil society organisations
22
concerned with integrity, ethics or the prevention of, or
23
responses to, corruption;
24
(d) at least 2 representatives of business organisations concerned
25
with integrity, ethics or the prevention of, or responses to,
26
corruption;
27
(e) at least 2 persons with independent specialist expertise in
28
integrity, ethics or the prevention of, or responses to,
29
corruption;
30
(f) such other persons that, in the opinion of the Minister, can
31
contribute to the development of the National Integrity and
32
Anti-Corruption Plan.
33
Corruption prevention, research and coordination Part 3
National cooperation and coordination Division 7
Section 41
No. , 2019
National Integrity Commission Bill 2019
49
(2) The Committee is to be chaired by the Secretary of the
1
Attorney-General's Department.
2
(3) The Committee will meet no less than twice in any calendar year.
3
41 Functions of the advisory committee
4
The National Integrity and Anti-corruption Advisory Committee
5
has the following functions:
6
(a) to foster cooperation and coordination between the members
7
of the Committee and their respective agencies and
8
organisations, and other organisations;
9
(b) to facilitate the exchange of information between agencies in
10
performance of their functions;
11
(c) to provide a forum for consultation on the research,
12
education, training or advice strategies of the National
13
Integrity Commissioner or any other member agency;
14
(d) to identify priority areas of corruption risk for Australia, or
15
priority areas or opportunities for the promotion of integrity
16
and prevention of corruption;
17
(e) to identify and support joint activities, projects, initiatives or
18
operations relating to integrity and anti-corruption in
19
Australia;
20
(f) to provide a forum for consultation on the development of the
21
National Integrity and Anti-Corruption Plan;
22
(g) to do anything incidental to or conducive to the performance
23
of the above functions.
24
Part 4 Dealing with corruption issues
Division 1 Referring corruption issues to National Integrity Commissioner
Section 42
50
National Integrity Commission Bill 2019
No. , 2019
Part 4--Dealing with corruption issues
1
Division 1--Referring corruption issues to National
2
Integrity Commissioner
3
42 Referral of corruption issues
4
(1) A person may refer to the National Integrity Commissioner under
5
this section an allegation, or information, that raises a corruption
6
issue.
7
(2) Without limiting subsection (1):
8
(a) the person may refer the allegation or information on behalf
9
of:
10
(i) another person; or
11
(ii) a Commonwealth agency; or
12
(iii) a body or association of persons; and
13
(b) the person may refer the allegation or information
14
anonymously; and
15
(c) the person may refer the allegation or information either
16
orally or in writing.
17
(3) If the person refers the allegation or information orally, the
18
National Integrity Commissioner may require the person to put the
19
allegation or the information in writing.
20
(4) If the person is asked to put the allegation or information in writing
21
under subsection (3), the National Integrity Commissioner may
22
refuse to investigate the corruption issue that the allegation or
23
information raises, or to investigate the corruption issue further,
24
until the allegation or information is put in writing.
25
(5) If the Ombudsman:
26
(a) decides, under subsection 6(15A) of the Ombudsman Act
27
1976, to refer an allegation or information to the National
28
Integrity Commissioner; or
29
Dealing with corruption issues Part 4
Referring corruption issues to National Integrity Commissioner Division 1
Section 43
No. , 2019
National Integrity Commission Bill 2019
51
(b) is required, under subsection 6(15B) of that Act, to refer an
1
allegation or information to the National Integrity
2
Commissioner;
3
the person who referred the allegation or information to the
4
Ombudsman is taken to have referred the allegation or information
5
to the National Integrity Commissioner under this section.
6
43 Referral under section 42 by person in custody
7
Application of section
8
(1) This section applies if a person who is detained in custody (the
9
prisoner) wishes to refer an allegation or information to the
10
National Integrity Commissioner under section 42.
11
(2) A reference in this section to a custodian is a reference to:
12
(a) the person in whose custody the prisoner is detained; or
13
(b) any other person performing duties in connection with the
14
prisoner's detention.
15
Facilities to be provided for communicating with Integrity
16
Commissioner
17
(3) The prisoner is entitled to be provided with facilities for:
18
(a) preparing a written record of the allegation or information;
19
and
20
(b) for enclosing that written record in a sealed envelope;
21
if the prisoner requests a custodian to have those facilities
22
provided.
23
(4) The prisoner is entitled to have sent to the National Integrity
24
Commissioner, without undue delay, a sealed envelope that is:
25
(a) delivered by the prisoner to a custodian; and
26
(b) addressed to the National Integrity Commissioner;
27
if the prisoner requests a custodian to have the envelope sent to the
28
National Integrity Commissioner.
29
(5) The prisoner is entitled to have delivered to the prisoner, without
30
undue delay, any sealed envelope that:
31
Part 4 Dealing with corruption issues
Division 1 Referring corruption issues to National Integrity Commissioner
Section 44
52
National Integrity Commission Bill 2019
No. , 2019
(a) is addressed to the prisoner; and
1
(b) is sent by the National Integrity Commissioner; and
2
(c) comes into the possession, or under the control, of a
3
custodian.
4
Dealing with communications between prisoner and Integrity
5
Commissioner
6
(6) If:
7
(a) the prisoner delivers to a custodian a sealed envelope
8
addressed to the National Integrity Commissioner for sending
9
to the National Integrity Commissioner; or
10
(b) a sealed envelope addressed to the prisoner and sent by the
11
National Integrity Commissioner comes into the possession,
12
or under the control, of a custodian;
13
neither that custodian, nor any other custodian, is entitled to open
14
the envelope or to inspect any document enclosed in the envelope.
15
Arrangements with State and Territory prison authorities
16
(7) For the purposes of this section, the National Integrity
17
Commissioner may make arrangements with the appropriate
18
authority of a State or a Territory for the identification and delivery
19
of sealed envelopes sent by the National Integrity Commissioner to
20
persons detained in custody in that State or Territory.
21
44 Public officials must refer corruption issues
22
(1) As soon as practicable after a public official becomes aware of an
23
allegation, or information, that raises a corruption issue, the public
24
official must:
25
(a) refer the allegation or information to the National Integrity
26
Commissioner under section 42; or
27
(b) if the public official is an employee of a Commonwealth
28
agency other than the head of the agency--notify the head of
29
the agency of the allegation or information.
30
Note:
The head of a Commonwealth agency is a public official.
31
(2) Subsection (1) does not apply if the public official:
32
Dealing with corruption issues Part 4
Referring corruption issues to National Integrity Commissioner Division 1
Section 45
No. , 2019
National Integrity Commission Bill 2019
53
(a) has already taken action referred to in subsection (1) in
1
relation to the allegation or information; or
2
(b) has reasonable grounds to believe that the National Integrity
3
Commissioner is already aware of the allegation or
4
information.
5
(3) Action taken under subsection (1) by the head of a Commonwealth
6
agency must be taken in accordance with any direction, guidance
7
or agreement under section 45 that applies to the agency.
8
45 National Integrity Commissioner may enter into agreements etc.
9
with head of Commonwealth agency
10
(1) The National Integrity Commissioner may issue directions or
11
guidance to, or enter into an agreement with, the head of a
12
Commonwealth agency in relation to either or both of the
13
following matters:
14
(a) the level of detail required to refer an allegation or
15
information to the National Integrity Commissioner;
16
(b) the way in which information or documents in relation to an
17
allegation or information may be given to the National
18
Integrity Commissioner (whether for the purpose of referring
19
an allegation or information to the National Integrity
20
Commissioner or otherwise).
21
(2) The National Integrity Commissioner may revoke the direction,
22
guidance or agreement by written notice given to the head of the
23
agency. The revocation takes effect on a day specified in the
24
notice, which must be at least 14 days after the day it is given.
25
(3) Without limiting subsection (1), the direction, guidance or
26
agreement may set out how it may be varied and other ways how it
27
may be revoked.
28
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 46
54
National Integrity Commission Bill 2019
No. , 2019
Division 2--How National Integrity Commissioner deals
1
with corruption issues
2
Subdivision A--General
3
46 How National Integrity Commissioner may deal with corruption
4
issues
5
(1) The National Integrity Commissioner may deal with a corruption
6
issue in any of the following ways:
7
(a) by investigating the corruption issue;
8
(b) if the corruption issue relates to a Commonwealth agency--
9
by referring the corruption issue to the agency for
10
investigation and:
11
(i) managing the investigation; or
12
(ii) overseeing the investigation; or
13
(iii) neither managing nor overseeing the investigation;
14
(c) if the corruption issue relates to a Commonwealth agency
15
that is not the AFP--by referring the corruption issue to the
16
AFP for investigation and:
17
(i) managing the investigation; or
18
(ii) overseeing the investigation; or
19
(iii) neither managing nor overseeing the investigation;
20
(d) by managing an investigation of the corruption issue that is
21
being conducted by a Commonwealth agency;
22
(e) by overseeing an investigation of the corruption issue that is
23
being conducted by a Commonwealth agency.
24
(2) The National Integrity Commissioner may investigate the
25
corruption issue under paragraph (1)(a) either alone or jointly with
26
another government agency with appropriate functions or powers
27
for the purpose.
28
(3) Subsections (1) and (2) have effect subject to section 47.
29
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 47
No. , 2019
National Integrity Commission Bill 2019
55
47 Alleged contraventions of the National Integrity (Parliamentary
1
Standards) Act 2019
2
(1) This section applies if:
3
(a) a corruption issue involves an alleged contravention of the
4
National Integrity (Parliamentary Standards) Act 2019; and
5
(b) the corruption issue was not referred to the National Integrity
6
Commissioner by the Parliamentary Standards
7
Commissioner.
8
(2) The National Integrity Commissioner must refer the corruption
9
issue to the Parliamentary Standards Commissioner in accordance
10
with paragraph 46(1)(b)(iii), unless the National Integrity
11
Commissioner considers that exceptional circumstances apply in
12
relation to the corruption issue.
13
(3) Without limiting subsection (2), the National Integrity
14
Commissioner may consider that exceptional circumstances apply
15
in relation to the corruption issue if the National Integrity
16
Commissioner is satisfied that:
17
(a) referring the corruption issue to the Parliamentary Standards
18
Commissioner is likely to prejudice:
19
(i) the investigation of the corruption issue or another
20
corruption investigation; or
21
(ii) protection of the identity or confidentiality of any
22
person who referred or provided information in relation
23
to the corruption issue, or protection of such a person
24
from reprisal or detrimental action; or
25
(iii) any action taken as a result of an investigation referred
26
to in paragraph (a); or
27
(b) the corruption issue involves serious corrupt conduct or
28
systemic corrupt conduct.
29
(4) In deciding whether exceptional circumstances apply in relation to
30
the corruption issue, the National Integrity Commissioner may
31
obtain advice from the Parliamentary Standards Commissioner.
32
(5) To avoid doubt, the National Integrity Commissioner must have
33
regard to the criteria in section 48:
34
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 48
56
National Integrity Commission Bill 2019
No. , 2019
(a) in deciding whether the corruption issue must be referred to
1
the Parliamentary Standards Commissioner in accordance
2
with this section; and
3
(b) if the National Integrity Commissioner decides that
4
exceptional circumstances apply in relation to the corruption
5
issue--in deciding to deal with the corruption issue in
6
accordance with another one of the ways referred to in
7
subsection 46(1).
8
48 Criteria for deciding how to deal with a corruption issue
9
(1) The National Integrity Commissioner must have regard to the
10
matters set out in subsection (2) in deciding:
11
(a) how to deal with a corruption issue; or
12
(b) whether to take no further action in relation to a corruption
13
issue.
14
(2) The matters to which the National Integrity Commissioner must
15
have regard are the following:
16
(a) the need to ensure that the corruption issue is fully
17
investigated;
18
(b) the rights and obligations of any other agency to investigate
19
the corruption issue;
20
(c) the rights and obligations of any person who refers or
21
provides information in relation to the corruption issue,
22
including any need to protect the person's identity or
23
confidentiality or to protect the person from reprisal or
24
detrimental action;
25
(d) if a joint investigation of the corruption issue by the National
26
Integrity Commissioner and another agency is being
27
considered--the extent to which the other agency is able to
28
cooperate in the investigation;
29
(e) the resources that are available to any other agency to
30
investigate the corruption issue;
31
(f) the need to ensure a balance between:
32
(i) the National Integrity Commissioner's role in dealing
33
with corruption issues (particularly in dealing with
34
significant corruption issues); and
35
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 49
No. , 2019
National Integrity Commission Bill 2019
57
(ii) ensuring that the heads of Commonwealth agencies take
1
responsibility for managing their agencies;
2
(g) the likely significance of the corruption issue for any agency
3
and for the Commonwealth.
4
(3) Subsection (2) does not limit the matters to which the National
5
Integrity Commissioner may have regard.
6
49 Dealing with multiple corruption issues
7
(1) The National Integrity Commissioner may, in the National
8
Integrity Commissioner's discretion, deal with a number of
9
corruption issues together (whether or not they are raised by the
10
same allegation or information).
11
(2) Without limiting subsection (1), if an allegation, or information,
12
raises a number of corruption issues, the National Integrity
13
Commissioner:
14
(a) may deal with some or all of those corruption issues together;
15
and
16
(b) may deal with some or all of those corruption issues
17
separately.
18
(3) Without limiting subsection (1), the National Integrity
19
Commissioner may prepare a single report in relation to a number
20
of corruption issues.
21
Subdivision B--National Integrity Commissioner dealing with
22
referred corruption issues
23
50 National Integrity Commissioner must make a decision
24
(1) If an allegation, or information, that raises a corruption issue is
25
referred to the National Integrity Commissioner under section 42,
26
the National Integrity Commissioner must decide:
27
(a) to deal with the corruption issue in one of the ways referred
28
to in subsection 46(1); or
29
(b) to take no further action in relation to the corruption issue.
30
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 50
58
National Integrity Commission Bill 2019
No. , 2019
Requesting information to assist in making the decision
1
(2) For the purposes of making a decision under subsection (1), the
2
National Integrity Commissioner may request the head of any
3
Commonwealth agency to give the National Integrity
4
Commissioner the information specified in the request.
5
(3) The head of the Commonwealth agency must comply with the
6
request.
7
(4) Subsection (3) does not limit the information to which the National
8
Integrity Commissioner may have regard in making a decision
9
under subsection (1).
10
Direction not to investigate
11
(5) If the corruption issue relates to a Commonwealth agency and the
12
National Integrity Commissioner decides to deal with the
13
corruption issue in one of the ways referred to in subsection 46(1),
14
the National Integrity Commissioner may direct the head of the
15
agency that the agency is not to investigate the corruption issue.
16
(6) If a direction under subsection (5) is given in writing, the direction
17
is not a legislative instrument.
18
Deciding to take no further action
19
(7) The National Integrity Commissioner may decide under
20
subsection (1) to take no further action in relation to the corruption
21
issue only if the National Integrity Commissioner is satisfied that:
22
(a) the corruption issue is already being, or will be, investigated
23
by another Commonwealth agency; or
24
(b) the referral of the allegation, or information, that raises the
25
corruption issue is frivolous or vexatious; or
26
(c) the corrupt conduct to which the corruption issue relates has
27
been, is or will be, the subject of proceedings before a court;
28
or
29
(d) investigation of the corruption issue is not warranted having
30
regard to all the circumstances.
31
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 51
No. , 2019
National Integrity Commission Bill 2019
59
(8) If the corruption issue relates to a Commonwealth agency, the
1
National Integrity Commissioner must advise the head of the
2
agency of a decision under subsection (1) to take no further action
3
in relation to the corruption issue. That advice must be given:
4
(a) in writing; and
5
(b) as soon as reasonably practicable after the decision is made.
6
(9) This Act continues to apply to the head of a Commonwealth
7
agency given advice under subsection (8), in relation to the
8
corruption issue unless the National Integrity Commissioner
9
advises otherwise:
10
(a) in the advice given under subsection (8); or
11
(b) in a later written advice given to the head of that agency.
12
51 Advising person who refers corruption issue of decision about
13
how to deal with corruption issue
14
The National Integrity Commissioner may advise a person (or a
15
representative nominated by the person) of:
16
(a) the National Integrity Commissioner's decision under
17
section 50 in relation to a corruption issue raised by the
18
person in a referral under section 46; and
19
(b) any decision the National Integrity Commissioner makes
20
under section 56 on a reconsideration of how the corruption
21
issue should be dealt with.
22
52 Advising person to whom referred corruption issue relates of
23
decision about how to deal with corruption issue
24
If the National Integrity Commissioner makes a decision under
25
section 50 in relation to a referred corruption issue that relates to a
26
person, the National Integrity Commissioner may advise the person
27
of the National Integrity Commissioner's decision.
28
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 53
60
National Integrity Commission Bill 2019
No. , 2019
Subdivision C--National Integrity Commissioner dealing with
1
corruption issues on own initiative
2
53 National Integrity Commissioner may deal with corruption issues
3
on own initiative
4
National Integrity Commissioner may decide to deal with a
5
corruption issue
6
(1) If the National Integrity Commissioner becomes aware of an
7
allegation, or information, that raises a corruption issue, the
8
National Integrity Commissioner may, on the National Integrity
9
Commissioner's own initiative, deal with the corruption issue in
10
one of the ways referred to in subsection 46(1).
11
(2) Subsection (1) does not apply if the National Integrity
12
Commissioner becomes aware of the allegation or information
13
because of action taken under Division 1 of this Part.
14
Requesting information to assist in making the decision
15
(3) For the purposes of making a decision under subsection (1), the
16
National Integrity Commissioner may request the head of any
17
Commonwealth agency to give the National Integrity
18
Commissioner the information specified in the request.
19
(4) The head of the Commonwealth agency must comply with the
20
request.
21
(5) Subsection (3) does not limit the information to which the National
22
Integrity Commissioner may have regard in making a decision
23
under subsection (1).
24
Direction not to investigate
25
(6) If the corruption issue relates to a Commonwealth agency and the
26
National Integrity Commissioner decides to deal with the
27
corruption issue in one of the ways referred to in subsection 46(1),
28
the National Integrity Commissioner may direct the head of the
29
agency that the agency is not to investigate the corruption issue.
30
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 54
No. , 2019
National Integrity Commission Bill 2019
61
(7) If a direction under subsection (6) is given in writing, the direction
1
is not a legislative instrument.
2
Becoming aware of another corruption issue
3
(8) Without limiting subsection (1), if the National Integrity
4
Commissioner:
5
(a) is investigating, or inquiring into, a particular corruption
6
issue; and
7
(b) in the course of doing so, becomes aware of an allegation, or
8
information, that raises another corruption issue;
9
the National Integrity Commissioner may deal with that other
10
corruption issue in one of the ways referred to in subsection 46(1).
11
54 Advising head of Commonwealth agency of decision to deal with
12
corruption issue on own initiative
13
Application of section
14
(1) This section applies if:
15
(a) the National Integrity Commissioner decides, on the National
16
Integrity Commissioner's own initiative, to deal with a
17
corruption issue in one of the ways referred to in
18
subsection 46(1); and
19
(b) the corruption issue relates to the conduct of a person who is
20
an employee of a Commonwealth agency (other than the
21
head of the agency).
22
Advising head of Commonwealth agency
23
(2) The National Integrity Commissioner must advise the head of that
24
Commonwealth agency of:
25
(a) the National Integrity Commissioner's decision to deal with
26
the corruption issue in that way; and
27
(b) any decision the National Integrity Commissioner makes
28
under section 56 on a reconsideration of how the corruption
29
issue should be dealt with.
30
Part 4 Dealing with corruption issues
Division 2 How National Integrity Commissioner deals with corruption issues
Section 55
62
National Integrity Commission Bill 2019
No. , 2019
Form and timing of advice
1
(3) The National Integrity Commissioner must advise the head of the
2
Commonwealth agency of the decision:
3
(a) in writing; and
4
(b) as soon as reasonably practicable after the decision is made.
5
Exception
6
(4) However, the National Integrity Commissioner need not advise the
7
head of the Commonwealth agency if doing so would be likely to
8
prejudice:
9
(a) the investigation of the corruption issue or another corruption
10
investigation; or
11
(b) any action taken as a result of an investigation referred to in
12
paragraph (a).
13
55 Advising person of decision to deal with corruption issue on own
14
initiative
15
If:
16
(a) the National Integrity Commissioner decides, on the National
17
Integrity Commissioner's own initiative, to deal with a
18
corruption issue in one of the ways referred to in
19
subsection 46(1); and
20
(b) the corruption issue relates to a person who is, or has been, a
21
public official;
22
the National Integrity Commissioner may advise the person of:
23
(c) the National Integrity Commissioner's decision to deal with
24
the corruption issue in that way; and
25
(d) any decision the National Integrity Commissioner makes
26
under section 56 on a reconsideration of how the corruption
27
issue should be dealt with.
28
Dealing with corruption issues Part 4
How National Integrity Commissioner deals with corruption issues Division 2
Section 56
No. , 2019
National Integrity Commission Bill 2019
63
Subdivision D--Reconsidering how to deal with a corruption
1
issue
2
56 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 in one of the
7
ways referred to in subsection 46(1)--decide to deal with the
8
corruption issue in accordance with one of the ways referred
9
to in that subsection; or
10
(b) if the corruption issue is being dealt with in one of the ways
11
referred to in subsection 46(1)--decide to deal with the
12
corruption issue in another of the ways referred to in that
13
subsection, or to take no further action in relation to the
14
corruption issue.
15
(3) The National Integrity Commissioner may decide under
16
subsection (2) to take no further action in relation to the corruption
17
issue only if the National Integrity Commissioner is satisfied that:
18
(a) the corruption issue is already being, or will be, investigated
19
by another Commonwealth agency; or
20
(b) the referral of the allegation, or information, that raises the
21
corruption issue is frivolous or vexatious; or
22
(c) the corrupt conduct to which the corruption issue relates has
23
been, is or will be, the subject of proceedings before a court;
24
or
25
(d) further investigation of the corruption issue is not warranted
26
having regard to all the circumstances.
27
Part 4 Dealing with corruption issues
Division 3 Information sharing when decision made on how to deal with corruption
issue
Section 57
64
National Integrity Commission Bill 2019
No. , 2019
Division 3--Information sharing when decision made on
1
how to deal with corruption issue
2
57 If Commonwealth agency to conduct, or continue conducting,
3
investigation of corruption issue
4
(1) This section applies if:
5
(a) the National Integrity Commissioner decides to deal with a
6
corruption issue that relates to a Commonwealth agency by
7
referring the corruption issue to:
8
(i) the agency; or
9
(ii) the AFP;
10
for investigation; or
11
(b) an allegation, or information, that raises a corruption issue is
12
referred to the National Integrity Commissioner under
13
section 42 by the head of a Commonwealth agency and the
14
Commonwealth agency is investigating the corruption issue.
15
(2) The National Integrity Commissioner must give the head of the
16
Commonwealth agency investigating the corruption issue
17
information or a document if:
18
(a) the information or document:
19
(i) relates to the corruption issue to the extent to which the
20
agency is investigating the issue; and
21
(ii) is in the possession, or under the control, of the National
22
Integrity Commissioner; and
23
(b) the head of the agency does not already have the information
24
or document.
25
Note:
Under section 159, the National Integrity Commissioner has a
26
continuing obligation to pass on information that the National
27
Integrity Commissioner becomes aware of and that is relevant to the
28
corruption issue.
29
(3) The National Integrity Commissioner may give the original or a
30
copy of a document.
31
Dealing with corruption issues Part 4
Information sharing when decision made on how to deal with corruption issue Division
3
Section 58
No. , 2019
National Integrity Commission Bill 2019
65
58 If Commonwealth agency has already commenced investigating
1
corruption issue
2
(1) This section applies if:
3
(a) the National Integrity Commissioner decides to deal with a
4
corruption issue that relates to a Commonwealth agency in
5
one of the ways referred to in subsection 46(1); and
6
(b) the agency has started or continued investigating the
7
corruption issue before the National Integrity Commissioner
8
makes that decision.
9
(2) The National Integrity Commissioner may direct the head of the
10
agency investigating the corruption issue to give the National
11
Integrity Commissioner, or the head of another government
12
agency, all information or documents that:
13
(a) relate to the corruption issue; and
14
(b) are in the possession, or under the control, of the head of the
15
agency.
16
(3) The direction must be in writing.
17
(4) A direction given under this section is not a legislative instrument.
18
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 1 Investigations
Section 59
66
National Integrity Commission Bill 2019
No. , 2019
Part 5--Investigations and public inquiries by the
1
National Integrity Commissioner
2
Division 1--Investigations
3
59 Application of Division
4
This Division applies if the National Integrity Commissioner
5
investigates a corruption issue (whether alone or jointly with
6
another person or persons).
7
60 National Integrity Commissioner to determine manner of
8
conducting investigation
9
The National Integrity Commissioner may conduct the
10
investigation in such manner as the National Integrity
11
Commissioner thinks fit.
12
Note:
Part 6 provides for particular powers that are available to the National
13
Integrity Commissioner for the purposes of the investigation.
14
61 Information sharing for joint investigation
15
(1) If:
16
(a) the National Integrity Commissioner is investigating a
17
corruption issue jointly with another government agency; and
18
(b) information or documents in relation to the investigation are
19
in the possession, or under the control, of the National
20
Integrity Commissioner; and
21
(c) the head of the agency does not already have the information
22
or documents;
23
the National Integrity Commissioner may give the head of the
24
agency the information or documents.
25
(2) The National Integrity Commissioner may give the head of the
26
agency the original or a copy of a document under subsection (1).
27
Investigations and public inquiries by the National Integrity Commissioner Part 5
Investigations Division 1
Section 62
No. , 2019
National Integrity Commission Bill 2019
67
62 Opportunity to be heard
1
Opinion or finding critical
2
(1) Subject to subsection (2), the National Integrity Commissioner
3
must not include in a report under section 64 in relation to an
4
investigation of a corruption issue an opinion or finding that is
5
critical of a Commonwealth agency or a person (either expressly or
6
impliedly) unless the National Integrity Commissioner has taken
7
the action required by subsection (3) or (4) before completing the
8
investigation.
9
(2) Subsection (1) does not apply if the National Integrity
10
Commissioner is satisfied that:
11
(a) a person may have:
12
(i) committed a criminal offence; or
13
(ii) contravened a civil penalty provision; or
14
(iii) engaged in conduct that could be the subject of
15
disciplinary proceedings; or
16
(iv) engaged in conduct that could be grounds for
17
terminating the person's appointment or employment;
18
and
19
(b) taking action under subsection (3) or (4) would compromise
20
the effectiveness of:
21
(i) the investigation of the corruption issue or another
22
corruption investigation; or
23
(ii) any action taken as a result of an investigation referred
24
to in subparagraph (i).
25
Opportunity to appear and make submissions
26
(3) If the opinion or finding is critical of a Commonwealth agency, the
27
National Integrity Commissioner must give the head of the
28
Commonwealth agency:
29
(a) a statement setting out the opinion or finding; and
30
(b) a reasonable opportunity to appear before him or her and to
31
make submissions in relation to the opinion or finding.
32
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 1 Investigations
Section 62
68
National Integrity Commission Bill 2019
No. , 2019
(4) If the opinion or finding is critical of a person, the National
1
Integrity Commissioner must give the person:
2
(a) a statement setting out the opinion or finding; and
3
(b) a reasonable opportunity to appear before him or her and to
4
make submissions in relation to the opinion or finding.
5
(5) Submissions under subsection (3) or (4) may be made orally or in
6
writing.
7
Representation
8
(6) The head of a Commonwealth agency may:
9
(a) appear before the National Integrity Commissioner
10
personally; or
11
(b) authorise another person to appear before the National
12
Integrity Commissioner on the head of the agency's behalf.
13
(7) A person referred to in subsection (4):
14
(a) may appear before the National Integrity Commissioner
15
personally; or
16
(b) may, with the National Integrity Commissioner's approval,
17
be represented by another person.
18
Investigations and public inquiries by the National Integrity Commissioner Part 5
Reporting in relation to investigations Division 2
Section 63
No. , 2019
National Integrity Commission Bill 2019
69
Division 2--Reporting in relation to investigations
1
Subdivision A--Reporting during investigation
2
63 National Integrity Commissioner may keep person who referred
3
corruption issue informed of progress of investigation
4
The National Integrity Commissioner may keep a person (or a
5
representative nominated by the person) informed of the progress
6
of an investigation of a corruption issue if the person raised the
7
corruption issue in a referral under section 42.
8
Subdivision B--Reporting at the end of investigation
9
64 Report on investigation
10
Report and its contents
11
(1) After completing an investigation of a corruption issue, the
12
National Integrity Commissioner must prepare a report on the
13
investigation.
14
(2) The report must set out:
15
(a) the National Integrity Commissioner's findings on the
16
corruption issue; and
17
(b) the evidence and other material on which those findings are
18
based; and
19
(c) any action that the National Integrity Commissioner has
20
taken, or proposes to take, under Part 7 in relation to the
21
investigation; and
22
(d) any recommendations that the National Integrity
23
Commissioner thinks fit to make and, if recommendations are
24
made, the reasons for those recommendations.
25
This subsection has effect subject to subsections (4) and (5).
26
Note 1:
See section 62 for the need for the National Integrity Commissioner to
27
give certain people an opportunity to be heard before including critical
28
statements in a report.
29
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 2 Reporting in relation to investigations
Section 64
70
National Integrity Commission Bill 2019
No. , 2019
Note 2:
The National Integrity Commissioner may publish the report if
1
satisfied that it is in the public interest to do so: see section 239. Under
2
section 233, the report must be tabled in each House of the Parliament
3
if a public hearing has been held in the course of the investigation to
4
which the report relates.
5
(3) Without limiting paragraph (2)(d), the National Integrity
6
Commissioner may recommend:
7
(a) taking action in relation to a person, in accordance with
8
relevant procedures, with a view to the person improving the
9
person's performances; or
10
(b) the termination of the employment of a person in accordance
11
with the relevant procedures; or
12
(c) taking action to rectify or mitigate the effects of the conduct
13
of a person; or
14
(d) the adoption of measures to remedy deficiencies in the
15
policy, procedures or practices that facilitated:
16
(i) a person engaging in corrupt conduct; or
17
(ii) the failure to detect corrupt conduct engaged in by a
18
person;
19
(e) taking appropriate action with a view to having a person
20
charged with a criminal offence; or
21
(f) taking appropriate action to initiate disciplinary proceedings
22
against a 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 or the inclusion of
27
the information may:
28
(i) endanger a person's life or physical safety; or
29
(ii) prejudice proceedings brought as a result of a corruption
30
investigation or public inquiry, or an investigation of a
31
corruption issue that the National Integrity
32
Commissioner manages or oversees; or
33
(iii) compromise operational activities, or methodologies, of
34
the Commission; and
35
(b) it is desirable in the circumstances to exclude the information
36
from the report.
37
Investigations and public inquiries by the National Integrity Commissioner Part 5
Reporting in relation to investigations Division 2
Section 65
No. , 2019
National Integrity Commission Bill 2019
71
(5) In deciding whether to exclude information from the report under
1
subsection (4), the National Integrity Commissioner must seek to
2
achieve an appropriate balance between:
3
(a) the public interest that would be served by including the
4
information in the report; and
5
(b) the prejudicial consequences that might result from including
6
the information in the report.
7
Supplementary report
8
(6) If the National Integrity Commissioner excludes information from
9
a report under subsection (4), the National Integrity Commissioner
10
must prepare a supplementary report that sets out:
11
(a) the information; and
12
(b) the reasons for excluding the information from the report
13
under subsection (4).
14
65 National Integrity Commissioner to give report to Minister
15
The National Integrity Commissioner must give the Minister:
16
(a) the report prepared under subsection 64(1); and
17
(b) if a supplementary report is prepared under subsection 64(6)
18
in relation to the investigation--the supplementary report.
19
Note:
Section 233 provides that the Minister must table a copy of the report
20
prepared under subsection 64(1) in each House of the Parliament if a
21
public hearing has been held in the course of the investigation to
22
which the report relates. The Minister is not required, however, to
23
table a copy of a supplementary report under subsection 64(6) in each
24
House of the Parliament.
25
66 Advising person who referred corruption issue of outcome of the
26
investigation
27
Advice to person who referred issue under section 42
28
(1) The National Integrity Commissioner may advise a person (or a
29
representative nominated by the person) of the outcome of an
30
investigation of a corruption issue raised by the person in a referral
31
under section 42.
32
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 2 Reporting in relation to investigations
Section 67
72
National Integrity Commission Bill 2019
No. , 2019
Manner of giving advice
1
(2) One way of advising the person (or the representative) is to give a
2
copy of all or part of any report prepared under subsection 64(1) in
3
relation to the investigation.
4
(3) In advising the person of the outcome of the investigation, the
5
National Integrity Commissioner may exclude information from
6
the advice if the National Integrity Commissioner is satisfied that:
7
(a) the information is sensitive information; and
8
(b) it is desirable in the circumstances to exclude the information
9
from the advice.
10
(4) In deciding whether to exclude information from the advice under
11
paragraph (3)(b), the National Integrity Commissioner must seek to
12
achieve an appropriate balance between:
13
(a) the person's interest in having the information included in the
14
advice; and
15
(b) the prejudicial consequences that might result from including
16
the information in the advice.
17
67 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 64(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 and public inquiries by the National Integrity Commissioner Part 5
Reporting in relation to investigations Division 2
Section 67
No. , 2019
National Integrity Commission Bill 2019
73
(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 Investigations and public inquiries by the National Integrity Commissioner
Division 3 Conducting a public inquiry
Section 68
74
National Integrity Commission Bill 2019
No. , 2019
Division 3--Conducting a public inquiry
1
68 National Integrity Commissioner may conduct public inquiry
2
The National Integrity Commissioner may, if the National Integrity
3
Commissioner is satisfied that it is in the public interest to do so,
4
conduct a public inquiry in 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
69 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 111(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, the
14
National Integrity Commissioner may, if satisfied that it is in the
15
public interest to do so, authorise it to be published on the
16
Commission's website.
17
Investigations and public inquiries by the National Integrity Commissioner Part 5
Reporting in relation to public inquiries Division 4
Section 70
No. , 2019
National Integrity Commission Bill 2019
75
Division 4--Reporting in relation to public inquiries
1
70 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 are
15
made, the reasons for those recommendations.
16
Note:
Under section 233, the report must be tabled in each House of the
17
Parliament.
18
Sensitive information etc.
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 or the inclusion of
23
the information may:
24
(i) endanger a person's life or physical safety; or
25
(ii) prejudice proceedings brought as a result of a corruption
26
investigation or public inquiry, or an investigation of a
27
corruption issue that the National Integrity
28
Commissioner manages or oversees; or
29
(iii) compromise operational activities, or methodologies, of
30
the Commission; and
31
Part 5 Investigations and public inquiries by the National Integrity Commissioner
Division 4 Reporting in relation to public inquiries
Section 71
76
National Integrity Commission Bill 2019
No. , 2019
(b) it is desirable in the circumstances to exclude the information
1
from the report.
2
(4) In deciding whether to exclude information from the report under
3
subsection (3), the National Integrity Commissioner must seek to
4
achieve an appropriate balance between:
5
(a) the public interest that would be served by including the
6
information in the report; and
7
(b) the prejudicial consequences that might result from including
8
the information in the report.
9
Supplementary report
10
(5) If, under subsection (4), the National Integrity Commissioner
11
excludes information from a report prepared under subsection (1),
12
the National Integrity Commissioner must prepare a supplementary
13
report that sets out:
14
(a) the information; and
15
(b) the reasons for excluding the information from the report
16
under subsection (3).
17
71 Giving report to Minister
18
The National Integrity Commissioner must give the Minister:
19
(a) the report prepared under subsection 70(1); and
20
(b) if a supplementary report is prepared under
21
subsection 70(5)--the supplementary report.
22
Note:
Section 233 provides that the Minister must table a copy of the report
23
prepared under subsection 70(1) in each House of the Parliament. The
24
Minister is not required, however, to table a copy of a supplementary
25
report under subsection 70(5) in each House of the Parliament.
26
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 1
Section 72
No. , 2019
National Integrity Commission Bill 2019
77
Part 6--National Integrity Commissioner's powers
1
in conducting investigations and public
2
inquiries
3
Division 1--Requiring people to give information or
4
produce documents or things
5
Subdivision A--Requirement by National Integrity
6
Commissioner
7
72 Notice to give information or to produce document or thing
8
Giving notice
9
(1) For the purpose of investigating a corruption issue, the National
10
Integrity Commissioner may, by notice in writing, require a person
11
to do either or both of the following:
12
(a) give the information specified in the notice;
13
(b) produce the documents or things specified in the notice;
14
if the National Integrity Commissioner has reasonable grounds to
15
suspect that the information, documents or things will be relevant
16
to the investigation.
17
Note:
In certain cases, disclosing the existence of a notice, or any
18
information about it, is an offence: see section 76.
19
(2) The National Integrity Commissioner may require that information
20
specified under paragraph (1)(a) is to be given in writing.
21
(3) The notice must:
22
(a) be served on the person; and
23
(b) be signed by the National Integrity Commissioner; and
24
(c) specify the period within which, and the manner in which,
25
the person must comply with the notice.
26
(4) The period specified under paragraph (3)(c) must be at least 14
27
days after the day the notice is served on the person, unless the
28
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 73
78
National Integrity Commission Bill 2019
No. , 2019
National Integrity Commissioner considers that allowing a 14-day
1
period would significantly prejudice a corruption investigation, in
2
which case a shorter period may be specified.
3
(5) If a shorter period is specified under paragraph (3)(c), the National
4
Integrity Commissioner must record, in writing:
5
(a) the name of the corruption investigation that would be
6
prejudiced; and
7
(b) why a 14-day period would significantly prejudice the
8
investigation.
9
(6) The National Integrity Commissioner may serve a notice on a
10
person without holding a hearing.
11
73 Compliance with notice
12
Compliance with notice
13
(1) A person served with a notice under section 72 must comply with
14
the notice:
15
(a) within the period specified in the notice; or
16
(b) within such further time as the National Integrity
17
Commissioner allows under subsection (3).
18
Note:
Failure to comply with a notice is an offence: see section 77.
19
Extension of time
20
(2) A person served with a notice under section 72 may apply to the
21
National Integrity Commissioner, in writing, for further time to
22
comply with the notice:
23
(a) before the period expires; or
24
(b) as soon as possible after the period expires.
25
(3) The National Integrity Commissioner may allow a person served
26
with a notice further time to comply with the notice whether or not
27
an application has been made.
28
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 1
Section 74
No. , 2019
National Integrity Commission Bill 2019
79
Acknowledgement
1
(4) If a person served with a notice has given the information and/or
2
produced the documents or things specified in the notice, the
3
National Integrity Commissioner must give the person a written
4
acknowledgement of that fact.
5
74 National Integrity Commissioner may retain documents and
6
things
7
(1) If a document or thing is produced in accordance with a notice
8
under section 72, the National Integrity Commissioner:
9
(a) may take possession of, and may make copies of, the
10
document or thing, or take extracts from the document; and
11
(b) may retain possession of the document or thing for such
12
period as is necessary for the purposes of the investigation to
13
which the document or thing relates.
14
(2) While the National Integrity Commissioner retains the document or
15
thing, the National Integrity Commissioner must allow a person
16
who would otherwise be entitled to inspect the document or view
17
the thing to do so at the times that the person would ordinarily be
18
able to do so.
19
Subdivision B--Prohibitions against disclosing information
20
about notices
21
75 Disclosure of notice may be prohibited
22
Application
23
(1) This section applies in respect of a notice served on a person under
24
section 72.
25
Notation prohibiting disclosure of information about notice
26
(2) The National Integrity Commissioner may include a notation in the
27
notice to the effect that disclosure of information about:
28
(a) the notice; or
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 75
80
National Integrity Commission Bill 2019
No. , 2019
(b) any official matter connected with the notice;
1
is prohibited except in the circumstances (if any) specified in the
2
notation.
3
(3) The National Integrity Commissioner must include a notation in
4
the notice if the National Integrity Commissioner is satisfied that
5
failure to do so would reasonably be expected to prejudice:
6
(a) a person's safety or reputation; or
7
(b) a person's fair trial, if the person has been charged with an
8
offence or such a charge is imminent; or
9
(c) the investigation to which the notice relates or another
10
corruption investigation; or
11
(d) any action taken as a result of an investigation referred to in
12
paragraph (c).
13
(4) The National Integrity Commissioner may include a notation in the
14
notice if the National Integrity Commissioner is satisfied that:
15
(a) failure to do so might prejudice:
16
(i) a person's safety or reputation; or
17
(ii) a person's fair trial, if the person has been charged with
18
an offence or such a charge is imminent; or
19
(iii) the investigation to which the notice relates or another
20
corruption investigation; or
21
(iv) any action taken as a result of an investigation referred
22
to in subparagraph (iii); or
23
(b) failure to do so might otherwise be contrary to the public
24
interest.
25
(5) The National Integrity Commissioner must not include a notation
26
in the notice in any other case.
27
Written statement to accompany notation
28
(6) If a notation is included in the notice, it must be accompanied by a
29
written statement setting out the rights and obligations conferred or
30
imposed by section 76 on the person on whom the notice is served.
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 1
Section 76
No. , 2019
National Integrity Commission Bill 2019
81
Cancellation of notation
1
(7) A notation included in the notice is cancelled by this subsection if:
2
(a) the National Integrity Commissioner concludes the
3
investigation to which the notice relates; and
4
(b) any criminal proceedings or civil penalty proceedings
5
resulting from the investigation are commenced.
6
(8) If a notation is cancelled by subsection (7), the National Integrity
7
Commissioner must advise the person who was served with the
8
notated notice, in writing, of the cancellation.
9
Relationship of notation with the Privacy Act 1988
10
(9) If:
11
(a) a notation has been included in the notice in relation to the
12
disclosure of information about the notice or any official
13
matter connected with the notice; and
14
(b) the notation has not been cancelled; and
15
(c) apart from this subsection, a credit reporting body (within the
16
meaning of the Privacy Act 1988) would be required, under
17
subsection 20E(5) of that Act, to make a note about the
18
disclosure of the information;
19
such a note must not be made until the notation is cancelled.
20
76 Offences of disclosure
21
(1) A person commits an offence if:
22
(a) the person is served with a notice under section 72; and
23
(b) the notice includes a notation under section 75; and
24
(c) the person discloses the existence of, or any information
25
about:
26
(i) the notice; or
27
(ii) any official matter connected with the notice; and
28
(d) when the disclosure is made:
29
(i) the notation has not been cancelled by subsection 75(7);
30
and
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 76
82
National Integrity Commission Bill 2019
No. , 2019
(ii) the period of 5 years after the notice is served under
1
section 72 has not ended.
2
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
3
(2) In proceedings for an offence against subsection (1), it is a defence
4
if the person makes the disclosure:
5
(a) in the circumstances, if any, permitted by the terms of the
6
notation; or
7
(b) to a legal practitioner for the purpose of obtaining legal
8
advice or representation in relation to the notice; or
9
(c) to a legal aid officer for the purpose of seeking assistance
10
under section 273 in relation to the notice; or
11
(d) if the person is a body corporate--to an officer or agent of
12
the body corporate for the purpose of ensuring compliance
13
with the notice; or
14
(e) if the person is a legal practitioner--for the purpose of
15
obtaining the agreement of another person under
16
subsection 78(3) to the legal practitioner answering a
17
question or producing a document or thing.
18
Note:
A defendant bears an evidential burden in relation to the matters in
19
subsection (2): see subsection 13.3(3) of the Criminal Code.
20
(3) A person commits an offence if:
21
(a) a disclosure is made to a person about:
22
(i) a notice under section 72 that includes a notation under
23
section 75; or
24
(ii) any official matter connected with a notice under
25
section 72 that includes a notation under section 75; and
26
(b) the disclosure is permitted under subsection (2) or (4)
27
because the person is a person of a particular kind; and
28
(c) while the person is a person of that kind, the person discloses
29
the existence of, or any information about:
30
(i) the notice; or
31
(ii) any official matter connected with the notice; and
32
(d) when the disclosure by the person is made:
33
(i) the notation has not been cancelled by subsection 75(7);
34
and
35
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 1
Section 76
No. , 2019
National Integrity Commission Bill 2019
83
(ii) the period of 5 years after the notice is served under
1
section 72 has not ended.
2
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
3
(4) In proceedings for an offence against subsection (3), it is a defence
4
if the person discloses the information:
5
(a) if the person is an officer or agent of a body corporate
6
referred to in paragraph (2)(d):
7
(i) to another officer or agent of the body corporate for the
8
purpose of ensuring compliance with the notice; or
9
(ii) to a legal practitioner for the purpose of obtaining legal
10
advice or representation in relation to the notice; or
11
(iii) to a legal aid officer for the purpose of seeking
12
assistance under section 221 in relation to the notice; or
13
(b) if the person is a legal practitioner--for the purpose of giving
14
legal advice, making representations, or seeking assistance
15
under section 273, in relation to the notice; or
16
(c) if the person is a legal aid officer--for the purpose of
17
obtaining legal advice or representation in relation to the
18
notice.
19
Note:
A defendant bears an evidential burden in relation to the matters in
20
subsection (4): see subsection 13.3(3) of the Criminal Code.
21
(5) A person commits an offence if:
22
(a) a disclosure is made to a person about:
23
(i) a notice under section 72 that includes a notation under
24
section 75; or
25
(ii) any official matter connected with a notice under
26
section 72 that includes a notation under section 75; and
27
(b) the disclosure is permitted under subsection (2) or (4)
28
because the person is a person of a particular kind; and
29
(c) when the person is no longer a person of that kind, the
30
person:
31
(i) makes a record of the notice; or
32
(ii) discloses the existence of the notice; or
33
(iii) discloses any information about the notice or the
34
existence of it; and
35
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 77
84
National Integrity Commission Bill 2019
No. , 2019
(d) when the record, or disclosure, is made by the person:
1
(i) the notation has not been cancelled by subsection 75(7);
2
and
3
(ii) the period of 5 years after the notice is served under
4
section 72 has not ended.
5
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
6
(6) A reference in this section to disclosing something's existence
7
includes disclosing information from which a person could
8
reasonably be expected to infer its existence.
9
Subdivision C--Offence and related provisions
10
77 Failure to comply with notice
11
(1) A person commits an offence if:
12
(a) the person is served with a notice under section 72; and
13
(b) the person fails to comply with the notice:
14
(i) within the period specified in the notice; or
15
(ii) if the National Integrity Commissioner has allowed the
16
person further time under subsection 73(3)--within
17
such further time.
18
Note 1:
If a notice requires a document or thing to be produced, a legal
19
practitioner may refuse to produce the document or thing in certain
20
circumstances: see section 78.
21
Note 2:
This section is not subject to the privilege against self-incrimination
22
but there are limits on the uses to which the evidence the person gives
23
may be put: see section 79.
24
Penalty: Imprisonment for 2 years.
25
(2) In proceedings for an offence against subsection (1), it is a defence
26
if it is not reasonably practicable for the person to comply with the
27
notice:
28
(a) within the period specified in the notice; or
29
(b) within such further time as allowed by the National Integrity
30
Commissioner under subsection 73(3).
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 1
Section 78
No. , 2019
National Integrity Commission Bill 2019
85
Note:
A defendant bears an evidential burden in relation to the matter in
1
subsection (2): see subsection 13.3(3) of the Criminal Code.
2
78 Legal practitioner not required to disclose privileged
3
communications
4
(1) A legal practitioner may refuse:
5
(a) to give information; or
6
(b) to produce a document or thing;
7
when served with a notice to do so under section 72 if the
8
information would disclose, or the document contains, a privileged
9
communication made by the legal practitioner (or to the legal
10
practitioner) in his or her capacity as a legal practitioner.
11
(2) Subsection (1) has effect subject to paragraph 79(4)(c).
12
(3) Subsection (1) does not apply if the person to whom the
13
communication was made (or by whom the communication was
14
made) agrees to the legal practitioner:
15
(a) giving the information; or
16
(b) producing the document or thing.
17
(4) If the legal practitioner refuses:
18
(a) to give the information; or
19
(b) to produce the document or thing;
20
he or she must, if required by the National Integrity Commissioner,
21
give the National Integrity Commissioner the name and address of
22
the person to whom the communication was made (or by whom the
23
communication was made).
24
(5) If a legal practitioner gets agreement, as mentioned in
25
subsection (3):
26
(a) the fact that he or she:
27
(i) gives information; or
28
(ii) produces a document or thing;
29
does not otherwise affect a claim of legal professional
30
privilege that anyone may make in relation to that
31
information, document or thing; and
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 79
86
National Integrity Commission Bill 2019
No. , 2019
(b) the information or document does not cease to be the subject
1
of legal professional privilege merely because it is given,
2
produced or referred to.
3
79 Self-incrimination etc.
4
Self-incrimination
5
(1) A person is not excused from:
6
(a) giving information; or
7
(b) producing a document or thing;
8
when served with a notice to do so under section 72 on the ground
9
that doing so would tend to incriminate the person or expose the
10
person to a penalty.
11
(2) Subsection (3) does not apply to the production of a document that
12
is, or forms part of, a record of an existing or past business.
13
(3) None of the following:
14
(a) the information given;
15
(b) the document or thing produced;
16
is admissible in evidence against the person in criminal
17
proceedings, or any other proceedings for the imposition or
18
recovery of a penalty, other than:
19
(c) proceedings for an offence against section 77; or
20
(d) confiscation proceedings; or
21
(e) proceedings for an offence against section 137.1 or 137.2 of
22
the Criminal Code (which deals with false or misleading
23
information or documents) that relates to this Act; or
24
(f) proceedings for an offence against section 149.1 of the
25
Criminal Code (which deals with obstruction of
26
Commonwealth public officials) that relates to this Act; or
27
(g) disciplinary proceedings against the person if the person is an
28
employee of a Commonwealth agency.
29
Public interest grounds
30
(4) A person is not excused from:
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Requiring people to give information or produce documents or things Division 1
Section 80
No. , 2019
National Integrity Commission Bill 2019
87
(a) giving information; or
1
(b) producing a document or thing;
2
when served with a notice to do so under section 72 on the ground
3
that doing so:
4
(c) would disclose one of the following:
5
(i) legal advice given to a Minister or a Commonwealth
6
agency;
7
(ii) a communication between an officer of a
8
Commonwealth agency and another person or body,
9
being a communication protected against disclosure by
10
legal professional privilege; or
11
(d) would breach a secrecy provision other than:
12
(i) a taxation secrecy provision; or
13
(ii) a law enforcement secrecy provision; or
14
(e) would be otherwise contrary to the public interest.
15
(5) The fact that a person is not excused under subsection (4) from:
16
(a) giving information; or
17
(b) producing a document or thing;
18
does not otherwise affect a claim of legal professional privilege
19
that anyone may make in relation to that information, document or
20
thing.
21
(6) A person does not commit an offence, and is not liable to any
22
penalty, under the provisions of any other enactment (other than a
23
taxation secrecy provision or a law enforcement secrecy provision)
24
because the person gives information, or produces a document or
25
thing, when required to do so under section 72.
26
80 Protection of person required to give information or produce
27
documents or things
28
(1) A person who gives information, or produces a document or thing,
29
to the National Integrity Commissioner in response to a notice
30
under section 72 has the same protection as a witness in
31
proceedings in the High Court.
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 1 Requiring people to give information or produce documents or things
Section 80
88
National Integrity Commission Bill 2019
No. , 2019
(2) Subsection (3) applies if it appears to the National Integrity
1
Commissioner that, because a person:
2
(a) is to give information, or produce a document or thing; or
3
(b) has given information, or produced a document or thing;
4
to the National Integrity Commissioner in response to a notice
5
under section 72, either:
6
(c) the safety of the person or any other person may be
7
prejudiced; or
8
(d) the person or any other person may be subjected to
9
intimidation or harassment.
10
(3) The National Integrity Commissioner may make such
11
arrangements as are necessary:
12
(a) to protect the safety of any person mentioned in
13
paragraph (2)(c); or
14
(b) to protect any person mentioned in paragraph (2)(d) from
15
intimidation or harassment.
16
(4) For the purpose of subsection (3), the arrangements that the
17
National Integrity Commissioner may make include arrangements
18
with:
19
(a) members of the AFP; or
20
(b) members of the police force of a State or Territory.
21
(5) This section does not affect the Witness Protection Act 1994.
22
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 81
No. , 2019
National Integrity Commission Bill 2019
89
Division 2--Conducting hearings
1
Subdivision A--General provisions
2
81 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) to (5), a hearing may be conducted in
10
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) any unfair prejudice to a person's reputation that would be
23
likely to be caused if the hearing (or that part of the hearing)
24
took place in public;
25
(c) whether it is in the public interest that the hearing (or that
26
part of the hearing) take place in public;
27
(d) the seriousness of the corruption issue or issues to which the
28
investigation or public inquiry relates;
29
(e) any other relevant matter.
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 82
90
National Integrity Commission Bill 2019
No. , 2019
Note:
If the hearing is to be held in public, a witness may request that the
1
witness's evidence be taken in private: see section 88.
2
Hearing in relation to a public inquiry
3
(5) A hearing in relation to a public inquiry must be held in public.
4
However, a part of a hearing in relation to a public inquiry may be
5
held in private if the National Integrity Commissioner so directs.
6
Note:
A witness may request that the witness's evidence be taken in private:
7
see section 88.
8
Record of hearing
9
(6) The National Integrity Commissioner must make a record of a
10
hearing.
11
(7) If the National Integrity Commissioner is conducting a public
12
inquiry, the record of the hearing must include:
13
(a) any document produced to the National Integrity
14
Commissioner at the hearing; or
15
(b) a description of any thing (other than a document) produced
16
to the National Integrity Commissioner at the hearing;
17
unless the National Integrity Commissioner directs otherwise.
18
Direction is not a legislative instrument
19
(8) If a direction under this section is given in writing, the direction is
20
not a legislative instrument.
21
82 National Integrity Commissioner may summon person
22
(1) The National Integrity Commissioner may summon a person to
23
attend a hearing at a time and place specified in the summons to do
24
either or both of the following:
25
(a) give evidence;
26
(b) produce any documents or other things referred to in the
27
summons;
28
if the National Integrity Commissioner has reasonable grounds to
29
suspect that the evidence, documents or things will be relevant to
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 82
No. , 2019
National Integrity Commission Bill 2019
91
the investigation of a corruption issue or the conduct of a public
1
inquiry.
2
Note 1:
Disclosing the existence of a summons, or any information about it,
3
may be an offence: see section 76.
4
Note 2:
Failure to comply with a summons is an offence: see section 92.
5
Note 3:
A person may apply for legal and financial assistance in respect of his
6
or her attendance: see section 109.
7
(2) A summons must:
8
(a) be in writing and signed by the National Integrity
9
Commissioner; and
10
(b) be served on the person required to attend a hearing.
11
The National Integrity Commissioner must record in writing the
12
reasons for the summons. The record must be made at or before the
13
time the summons is issued.
14
(3) The matters in relation to which the National Integrity
15
Commissioner may require the person to give evidence, or produce
16
documents or things, at the hearing may include:
17
(a) the subject matter of any charge, or imminent charge, against
18
the person; and
19
(b) the subject matter of any confiscation proceeding, or
20
imminent confiscation proceeding, against the person.
21
(4) If the hearing is held for the purpose of investigating a corruption
22
issue, a summons requiring a person to give evidence must set out,
23
so far as is reasonably practicable, the general nature of the matters
24
in relation to which the National Integrity Commissioner intends to
25
question the person.
26
(5) Subsection (4) does not prevent the National Integrity
27
Commissioner from questioning the person in relation to:
28
(a) any aspect of the corruption issue to which the hearing
29
relates; or
30
(b) another corruption issue.
31
(6) Subsection (4) does not apply if the National Integrity
32
Commissioner is satisfied that complying with that subsection is
33
likely to prejudice:
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 83
92
National Integrity Commission Bill 2019
No. , 2019
(a) the investigation to which the hearing relates or another
1
corruption investigation; or
2
(b) any action taken as a result of an investigation referred to in
3
paragraph (a).
4
(7) The National Integrity Commissioner may, at the hearing, require
5
the witness to produce a document or other thing.
6
(8) A witness appearing at a hearing is entitled to be paid by the
7
Commonwealth any allowances for travelling and other expenses
8
that are prescribed by the regulations.
9
(9) Without limiting its effect apart from this subsection, this Act also
10
has the effect it would have if:
11
(a) subsection (3) had not been enacted; or
12
(b) subsection (3) were, by express provision, confined to
13
dealing with a charge against the person or such a charge that
14
is imminent; or
15
(c) subsection (3) were, by express provision, confined to
16
dealing with a confiscation proceeding against the person that
17
has commenced or is imminent.
18
83 National Integrity Commissioner may take evidence outside
19
Australia
20
If arrangements have been made between Australia and another
21
country in relation to the taking of evidence in that country by the
22
National Integrity Commissioner for a hearing held under this
23
Division, the National Integrity Commissioner may:
24
(a) take evidence on oath or by affirmation; and
25
(b) use any evidence taken in that country in accordance with
26
those arrangements;
27
for the purpose of performing any function, or exercising any
28
power, under this Act.
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 84
No. , 2019
National Integrity Commission Bill 2019
93
Subdivision B--Procedure at hearing
1
84 Who may be represented at a hearing
2
(1) A person giving evidence at a hearing may be represented by a
3
legal practitioner.
4
(2) A person who is not giving evidence may be represented at a
5
hearing by a legal practitioner if:
6
(a) special circumstances exist; and
7
(b) the National Integrity Commissioner consents to the person
8
being so represented.
9
85 Who may be present at a hearing
10
Who may be present
11
(1) The National Integrity Commissioner may determine who may be
12
present during all or part of a hearing held in private.
13
(2) The National Integrity Commissioner must allow the following
14
persons to be present when evidence is being given:
15
(a) a legal practitioner representing the person giving evidence;
16
(b) a legal practitioner representing a person who:
17
(i) is not giving evidence; but
18
(ii) has the National Integrity Commissioner's consent to
19
being present at that time.
20
Opportunity to comment on a person's presence
21
(3) If:
22
(a) a person (the witness) is giving evidence at a hearing; and
23
(b) another person is present at the hearing at that time; and
24
(c) the other person is not:
25
(i) a staff member of the Commission; or
26
(ii) a legal practitioner representing a person at the hearing;
27
the National Integrity Commissioner must:
28
(d) inform the witness that the person is present; and
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 86
94
National Integrity Commission Bill 2019
No. , 2019
(e) give the witness an opportunity to comment on the person's
1
presence.
2
(4) To avoid doubt, a person is still entitled to be present during all or
3
part of the hearing even if:
4
(a) the National Integrity Commissioner fails to comply with
5
subsection (3); or
6
(b) a witness comments adversely on the person's presence
7
under paragraph (3)(e).
8
Offence
9
(5) A person commits an offence if:
10
(a) the person is present while evidence is being given in private
11
at a hearing; and
12
(b) the person is none of the following:
13
(i) the person giving evidence;
14
(ii) a person whom the National Integrity Commissioner
15
must, under subsection (2), allow to be present while the
16
evidence is being given;
17
(iii) a person who may be present at the hearing in
18
accordance with a determination under subsection (1).
19
Penalty: Imprisonment for 12 months.
20
Determination of who may be present not a legislative instrument
21
(6) If the determination of who may be present at a hearing is made in
22
writing, the determination is not a legislative instrument.
23
Subdivision C--Taking evidence at hearing
24
86 Evidence on oath or by affirmation
25
(1) At a hearing, the National Integrity Commissioner may:
26
(a) require a witness to either take an oath or make an
27
affirmation; and
28
(b) administer an oath or affirmation to the witness.
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 87
No. , 2019
National Integrity Commission Bill 2019
95
Note 1:
Failure to take an oath or make an affirmation is an offence: see
1
section 92.
2
Note 2:
This means that a hearing is a judicial proceeding for the purposes of
3
Part III of the Crimes Act 1914, which creates various offences in
4
relation to judicial proceedings.
5
(2) The National Integrity Commissioner may administer an oath or
6
affirmation to a person appearing as a witness in another country,
7
but must do so in accordance with:
8
(a) any provision of the arrangements made between Australia
9
and that other country, as referred to in section 83; and
10
(b) the laws of that other country.
11
(3) The oath or affirmation is an oath or affirmation that the evidence
12
the person will give will be true.
13
(4) The National Integrity Commissioner may allow a person attending
14
a hearing who has been sworn, or who has made an affirmation, to
15
give evidence by tendering a written statement and verifying it by
16
oath or affirmation.
17
87 Examination and cross-examination of witnesses
18
At a hearing, the following persons may, so far as the National
19
Integrity Commissioner thinks appropriate, examine or
20
cross-examine any witness on any matter that the National
21
Integrity Commissioner considers relevant:
22
(a) counsel assisting the National Integrity Commissioner
23
generally or in relation to the investigation or public inquiry
24
to which the hearing relates;
25
(b) a person summoned, or otherwise authorised, to appear
26
before the National Integrity Commissioner;
27
(c) any legal practitioner representing a person at the hearing.
28
88 Person may request that particular evidence be given in private
29
(1) A person giving evidence at a hearing held in public may request to
30
give particular evidence in private.
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 89
96
National Integrity Commission Bill 2019
No. , 2019
(2) The National Integrity Commissioner may, if the National Integrity
1
Commissioner considers it appropriate, allow the evidence to be
2
given in private.
3
89 Directions in relation to confidentiality
4
Prohibition or limitation on publication
5
(1) The National Integrity Commissioner may direct that:
6
(a) particular evidence given at a hearing; or
7
(b) the contents of a particular document, or a description of any
8
thing, produced to the National Integrity Commissioner at the
9
hearing; or
10
(c) particular information that might enable a person who has
11
given evidence at the hearing to be identified; or
12
(d) the fact that a particular person has given or may be about to
13
give evidence at the hearing;
14
must not be published, or must not be published except in such
15
manner, and to such persons, as the National Integrity
16
Commissioner specifies.
17
Note:
Failure to comply with a direction is an offence: see subsection (6).
18
(2) If the hearing is held in private, the National Integrity
19
Commissioner must give a direction under subsection (1) if the
20
National Integrity Commissioner is satisfied that the failure to give
21
such a direction might prejudice:
22
(a) a person's safety or reputation; or
23
(b) the fair trial of a person who has been, or may be, charged
24
with an offence.
25
(3) The National Integrity Commissioner may vary or revoke a
26
direction in writing. However, the National Integrity
27
Commissioner must not vary or revoke a direction if the National
28
Integrity Commissioner is satisfied that doing so might prejudice:
29
(a) a person's safety or reputation; or
30
(b) the fair trial of a person who has been, or may be, charged
31
with an offence.
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 89
No. , 2019
National Integrity Commission Bill 2019
97
Court certificate in relation to evidence in respect of which a
1
direction has been given
2
(4) If:
3
(a) a person has been charged with an offence before a federal
4
court or a court of a State or Territory; and
5
(b) the court considers that it may be desirable in the interests of
6
justice that particular evidence given at a hearing, in respect
7
of which the National Integrity Commissioner has given a
8
direction under subsection (1), be made available to the
9
person or to a legal practitioner representing the person;
10
the court may give to the National Integrity Commissioner a
11
certificate to that effect. If the court does so, the National Integrity
12
Commissioner must make the evidence available to the court.
13
(5) If:
14
(a) the National Integrity Commissioner makes evidence
15
available to a court under subsection (4); and
16
(b) the court, after examining the evidence, is satisfied that the
17
interests of justice so require;
18
the court may make the evidence available to the person charged
19
with the offence concerned or to a legal practitioner representing
20
the person.
21
Offence
22
(6) A person commits an offence if:
23
(a) the person is given a direction by the National Integrity
24
Commissioner under subsection (1); and
25
(b) the person contravenes the direction.
26
Penalty: Imprisonment for 12 months.
27
Direction is not a legislative instrument
28
(7) If direction given to a person under subsection (1) is given in
29
writing, the direction is not a legislative instrument.
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 90
98
National Integrity Commission Bill 2019
No. , 2019
Subdivision D--Prohibitions against disclosing information
1
about a summons
2
90 Disclosure of summons may be prohibited
3
Application
4
(1) This section applies if:
5
(a) a summons is served on a person (the person served) under
6
section 82 to attend a hearing; and
7
(b) the hearing is to be held in private.
8
Notation prohibiting disclosure of information about summons
9
(2) The National Integrity Commissioner may include a notation in the
10
summons to the effect that disclosure of information about:
11
(a) the summons; or
12
(b) any official matter connected with the summons;
13
is prohibited except in the circumstances (if any) specified in the
14
notation.
15
(3) The National Integrity Commissioner must include a notation in
16
the summons if the National Integrity Commissioner is satisfied
17
that failure to do so would reasonably be expected to prejudice:
18
(a) a person's safety or reputation; or
19
(b) the fair trial of a person who has been, or may be, charged
20
with an offence; or
21
(c) the investigation to which the hearing relates or another
22
corruption investigation; or
23
(d) any action taken as a result of an investigation referred to in
24
paragraph (c).
25
(4) The National Integrity Commissioner may include a notation in the
26
summons if the National Integrity Commissioner is satisfied that:
27
(a) failure to do so might prejudice:
28
(i) a person's safety or reputation; or
29
(ii) the fair trial of a person who has been, or may be,
30
charged with an offence; or
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 90
No. , 2019
National Integrity Commission Bill 2019
99
(iii) the investigation to which the hearing relates or another
1
corruption investigation; or
2
(iv) any action taken as a result of an investigation referred
3
to in subparagraph (iii); or
4
(b) failure to do so might otherwise be contrary to the public
5
interest.
6
(5) The National Integrity Commissioner must not include a notation
7
in the summons in any other case.
8
Written statement to accompany notation
9
(6) If a notation is included in the summons, it must be accompanied
10
by a written statement setting out the rights and obligations
11
conferred or imposed by section 91 on the person served.
12
Cancellation of notation
13
(7) A notation included in the summons is cancelled by this subsection
14
if:
15
(a) the National Integrity Commissioner concludes the
16
investigation to which the hearing relates; and
17
(b) any criminal proceedings or civil penalty proceedings
18
resulting from the investigation are commenced.
19
(8) If a notation is cancelled by subsection (7), the National Integrity
20
Commissioner must advise the person served, in writing, of the
21
cancellation.
22
Relationship of notation with Privacy Act 1988
23
(9) If:
24
(a) a notation has been included in the summons in relation to
25
the disclosure of information about the summons or any
26
official matter connected with the summons; and
27
(b) the notation has not been cancelled; and
28
(c) apart from this subsection, a credit reporting body (within the
29
meaning of the Privacy Act 1988) would be required, under
30
subsection 20E(5) of that Act, to make a note about the
31
disclosure of the information;
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 91
100
National Integrity Commission Bill 2019
No. , 2019
such a note must not be made until the notation is cancelled.
1
91 Offences of disclosure
2
(1) A person commits an offence if:
3
(a) the person is served with a summons under section 82; and
4
(b) the summons includes a notation under section 90; and
5
(c) the person discloses the existence of, or any information
6
about:
7
(i) the summons; or
8
(ii) any official matter connected with the summons; and
9
(d) when the disclosure is made:
10
(i) the notation has not been cancelled by subsection 90(7);
11
and
12
(ii) the period of 5 years after the summons is served under
13
section 82 has not ended.
14
Penalty: Imprisonment for 12 months.
15
(2) In proceedings for an offence against subsection (1), it is a defence
16
if the person makes the disclosure:
17
(a) in the circumstances, if any, permitted by the terms of the
18
notation; or
19
(b) to a legal practitioner for the purpose of obtaining legal
20
advice or representation in relation to the summons; or
21
(c) to a legal aid officer for the purpose of obtaining assistance
22
under section 109 in relation to the summons; or
23
(d) if the person is a body corporate--to an officer or agent of
24
the body corporate for the purpose of ensuring compliance
25
with the summons.
26
Note:
A defendant bears an evidential burden in relation to the matters in
27
subsection (2): see subsection 13.3(3) of the Criminal Code.
28
(3) A person commits an offence if:
29
(a) a disclosure is made to the person about:
30
(i) a summons under section 82 that includes a notation
31
under section 90; or
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 91
No. , 2019
National Integrity Commission Bill 2019
101
(ii) any official matter connected with a summons under
1
section 82 that includes a notation under section 90; and
2
(b) the disclosure is permitted under subsection (2) or (4)
3
because the person is a person of a particular kind; and
4
(c) while the person is a person of that kind, the person discloses
5
the existence of, or any information about:
6
(i) the summons; or
7
(ii) any official matter connected with the summons; and
8
(d) when the disclosure by the person is made:
9
(i) the notation has not been cancelled by subsection 90(7);
10
and
11
(ii) the period of 5 years after the summons is served under
12
section 82 has not ended.
13
Penalty: Imprisonment for 12 months.
14
(4) In proceedings for an offence against subsection (3), it is a defence
15
if the person discloses the information:
16
(a) if the person is an officer or agent of a body corporate
17
referred to in paragraph (2)(d):
18
(i) to another officer or agent of the body corporate for the
19
purpose of ensuring compliance with the summons; or
20
(ii) to a legal practitioner for the purpose of obtaining legal
21
advice or representation in relation to the summons; or
22
(iii) to a legal aid officer for the purpose of obtaining
23
assistance under section 109 in relation to the summons;
24
or
25
(b) if the person is a legal practitioner--for the purpose of giving
26
legal advice, making representations, or obtaining assistance
27
under section 109, in relation to the summons; or
28
(c) if the person is a legal aid officer--for the purpose of
29
obtaining legal advice or representation in relation to the
30
summons.
31
Note:
A defendant bears an evidential burden in relation to the matters in
32
subsection (4): see subsection 13.3(3) of the Criminal Code.
33
(5) A person commits an offence if:
34
(a) a disclosure is made to the person about:
35
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 92
102
National Integrity Commission Bill 2019
No. , 2019
(i) a summons under section 82 that includes a notation
1
under section 90; or
2
(ii) any official matter connected with a summons under
3
section 82 that includes a notation under section 90; and
4
(b) the disclosure is permitted under subsection (2) or (4)
5
because the person is a person of a particular kind; and
6
(c) when the person is no longer a person of that kind, the
7
person:
8
(i) makes a record of the summons; or
9
(ii) discloses the existence of the summons; or
10
(iii) discloses any information about the summons or the
11
existence of it; and
12
(d) when the record, or disclosure, is made by the person:
13
(i) the notation has not been cancelled by subsection 90(7);
14
and
15
(ii) the period of 5 years after the summons is served under
16
section 82 has not ended.
17
Penalty: Imprisonment for 12 months.
18
(6) A reference in this section to disclosing something's existence
19
includes disclosing information from which a person could
20
reasonably be expected to infer its existence.
21
Subdivision E--Offences in relation to hearings
22
92 Offences
23
Failure to attend hearing
24
(1) A person commits an offence if:
25
(a) the person is served with a summons to attend a hearing; and
26
(b) the person:
27
(i) fails to attend as required by the summons; or
28
(ii) fails to appear and report from day to day unless
29
excused or released from further attendance by the
30
National Integrity Commissioner.
31
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 93
No. , 2019
National Integrity Commission Bill 2019
103
Note:
A defendant bears an evidential burden in relation to the excuse or
1
release from further attendance referred to in subparagraph (b)(ii): see
2
subsection 13.3(3) of the Criminal Code.
3
Penalty: Imprisonment for 12 months.
4
Failure to swear an oath, make an affirmation or answer a
5
question
6
(2) A person commits an offence if:
7
(a) the person is served with a summons to attend a hearing; and
8
(b) the person fails:
9
(i) to be sworn or to make an affirmation at the hearing; or
10
(ii) to answer a question at the hearing that the National
11
Integrity Commissioner requires the person to answer.
12
Note 1:
A person may refuse to answer a question on the ground of legal
13
professional privilege: see section 99.
14
Note 2:
This subsection is not subject to the privilege against
15
self-incrimination but there are limits on the uses to which the
16
evidence the person gives may be put: see section 102.
17
Penalty: Imprisonment for 2 years.
18
Failure to produce a document or thing
19
(3) A person commits an offence if:
20
(a) the person is served with a summons to produce a document
21
or thing specified in the summons; and
22
(b) the person fails to produce the document or thing that the
23
person was required to produce.
24
Note 1:
A person may refuse to produce a document or thing on the ground of
25
legal professional privilege: see section 100.
26
Note 2:
This subsection is not subject to the privilege against
27
self-incrimination but there are limits on the uses to which the
28
evidence the person gives may be put: see section 102.
29
Penalty: Imprisonment for 2 years.
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 93
104
National Integrity Commission Bill 2019
No. , 2019
93 Contempt of the Commission
1
(1) A person is in contempt of the Commission if the person:
2
(a) when served with a summons to attend a hearing:
3
(i) fails to attend as required by the summons; or
4
(ii) fails to appear and report from day to day unless
5
excused or released from further attendance by the
6
National Integrity Commissioner; or
7
(iii) refuses or fails to be sworn or make an affirmation at
8
the hearing; or
9
(iv) subject to subsection (2), refuses or fails to answer a
10
question at the hearing that the National Integrity
11
Commissioner requires the person to answer; or
12
(v) subject to subsection (3), refuses or fails to produce a
13
document or thing that the person was required to
14
produce by a summons or notice under this Act that was
15
served on him or her as prescribed; or
16
(vi) subject to subsection (3), refuses or fails to produce a
17
document or thing that the person was required to
18
produce under subsection 82(7); or
19
(b) is a legal practitioner who is required to answer a question or
20
produce a document or thing at a hearing and both of the
21
following apply:
22
(i) the answer to the question would disclose, or the
23
document or thing contains, a privileged communication
24
made by or to the legal practitioner in his or her capacity
25
as a legal practitioner;
26
(ii) he or she refuses to comply with the requirement and
27
does not, when required by the National Integrity
28
Commissioner, give the National Integrity
29
Commissioner the name and address of the person to
30
whom or by whom the communication was made; or
31
(c) gives evidence at a hearing that he or she knows is false or
32
misleading in a material particular; or
33
(d) insults, disturbs or uses insulting language towards someone
34
who the person knows:
35
(i) is the National Integrity Commissioner; and
36
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 94
No. , 2019
National Integrity Commission Bill 2019
105
(ii) is holding a hearing in the performance of his or her
1
functions, or the exercise of his or her powers, as
2
Integrity Commissioner; or
3
(e) creates a disturbance, or takes part in creating or continuing a
4
disturbance, in or near a place that the person knows is being
5
used to hold a hearing for the purpose of:
6
(i) investigating a corruption issue; or
7
(ii) conducting a public inquiry; or
8
(f) obstructs or hinders the National Integrity Commissioner in
9
the performance of his or her functions or the exercise of his
10
or her powers; or
11
(g) disrupts a hearing that is being held for the purpose of:
12
(i) investigating a corruption issue; or
13
(ii) conducting a public inquiry; or
14
(h) threatens a person present at a hearing that is being held for
15
the purpose of:
16
(i) investigating a corruption issue; or
17
(ii) conducting a public inquiry.
18
(2) Subparagraph (1)(a)(iv) does not apply in the case of a legal
19
practitioner who refuses or fails to answer a question at a hearing
20
on the ground that the answer to the question would disclose a
21
privileged communication made by or to the legal practitioner in
22
his or her capacity as a legal practitioner.
23
(3) Subparagraph (1)(a)(v) does not apply in the case of a legal
24
practitioner who refuses or fails to produce a document or thing at
25
a hearing on the ground that the document or thing contains a
26
privileged communication made by or to the legal practitioner in
27
his or her capacity as a legal practitioner.
28
94 Federal Court or Supreme Court to deal with contempt
29
Application
30
(1) If, in respect of a hearing, the National Integrity Commissioner is
31
of the opinion that a person is in contempt of the Commission, the
32
National Integrity Commissioner may apply to either of the
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 94
106
National Integrity Commission Bill 2019
No. , 2019
following courts for the person to be dealt with in relation to the
1
contempt:
2
(a) the Federal Court;
3
(b) the Supreme Court of the State or Territory in which the
4
hearing is held.
5
(2) Before making the application, the National Integrity
6
Commissioner must inform the person that the National Integrity
7
Commissioner proposes to make the application.
8
(3) The application must be accompanied by a certificate that states:
9
(a) the grounds for making the application; and
10
(b) evidence in support of the application.
11
(4) A copy of the certificate must be given to the person before, or at
12
the same time as, the application is made.
13
(5) To avoid doubt, if the National Integrity Commissioner makes an
14
application under this section, the National Integrity Commissioner
15
need not give the evidence to the relevant person or authority under
16
section 147.
17
How court may deal with application
18
(6) If, after:
19
(a) considering the matters specified in the certificate; and
20
(b) hearing or receiving any evidence or statements by or in
21
support of Commission; and
22
(c) hearing or receiving any evidence or statements by or in
23
support of the person;
24
the court to which the application was made finds that the person
25
was in contempt of the Commission, the court may deal with the
26
person as if the acts or omissions involved constituted a contempt
27
of that court.
28
(7) For the purposes of determining whether a person is in contempt of
29
the Commission under subsection (1), Chapter 2 of the Criminal
30
Code applies as if:
31
(a) being in contempt of the Commission were an offence; and
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 95
No. , 2019
National Integrity Commission Bill 2019
107
(b) references to a person being criminally responsible for an
1
offence were references to a person being responsible for
2
being in contempt of the Commission.
3
95 Conduct of contempt proceedings
4
(1) This section applies if an application is made to the Federal Court
5
or to the Supreme Court of a State or Territory under section 94.
6
(2) Proceedings in relation to the application are, subject to this Act, to
7
be instituted, carried on, heard and determined in accordance with
8
the laws (including any Rules of Court) that apply in relation to the
9
punishment of a contempt of the court to which the application was
10
made.
11
(3) In proceedings relating to the application, a certificate under
12
subsection 94(3) is prima facie evidence of the matters specified in
13
the certificate.
14
96 Person in contempt may be detained
15
(1) If the National Integrity Commissioner proposes to make an
16
application under subsection 94(1) in respect of a person, the
17
National Integrity Commissioner may, during the hearing
18
concerned, direct a constable or an authorised officer to detain the
19
person for the purpose of bringing the person before the relevant
20
court for the hearing of the application.
21
(2) If the person is so detained:
22
(a) the National Integrity Commissioner must apply to the court
23
as soon as practicable under subsection 94(1) in respect of
24
the person; and
25
(b) the person must, subject to subsection (3) of this section, be
26
brought before the court as soon as practicable.
27
(3) The court may:
28
(a) direct that the person be released from detention on condition
29
that he or she will appear before the court in relation to the
30
application; or
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 2 Conducting hearings
Section 97
108
National Integrity Commission Bill 2019
No. , 2019
(b) order that the person continue to be detained until the
1
application is determined.
2
(4) The court may also impose any other condition on the release, for
3
example:
4
(a) that the person surrenders the following documents:
5
(i) any Australian travel document that has been issued to
6
him or her;
7
(ii) any passport or other travel document that has been
8
issued to him or her by or on behalf of the government
9
of a foreign country; or
10
(b) that the person give an undertaking as to his or her living
11
arrangements; or
12
(c) that the person report as required to:
13
(i) the AFP; or
14
(ii) a police force or police service of a State; or
15
(iii) any other authority or person responsible for the
16
enforcement of the laws of the Commonwealth or of the
17
States.
18
(5) The court may at any time vary or revoke a condition imposed
19
under subsection (4).
20
97 National Integrity Commissioner may withdraw contempt
21
application
22
(1) The National Integrity Commissioner may, at any time, withdraw
23
an application under subsection 94(1).
24
(2) If:
25
(a) the National Integrity Commissioner does so; and
26
(b) the person to whom the application relates is in detention
27
under section 96;
28
the person must be released from detention immediately.
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 98
No. , 2019
National Integrity Commission Bill 2019
109
98 Double jeopardy
1
(1) If an act or omission by a person is an offence against this Act and
2
is also an offence against a law of a State, the person may be
3
prosecuted and convicted under this Act or under that law of that
4
State in respect of the act or omission, but nothing in this Act
5
renders a person liable to be punished twice in respect of the same
6
act or omission.
7
(2) If:
8
(a) an application is made to the Federal Court or a Supreme
9
Court under subsection 94(1) in respect of an act or omission
10
by a person; and
11
(b) the person is dealt with by the court under that section in
12
respect of the act or omission;
13
the person is not liable to be prosecuted for an offence in respect of
14
that act or omission.
15
(3) If a person is prosecuted for an offence in respect of an act or
16
omission referred to in subsection 93(1) without an application
17
being made to the Federal Court or a Supreme Court under
18
subsection 94(1) in respect of the act or omission, an application
19
must not be made under subsection 94(1) in respect of the act or
20
omission.
21
99 Legal professional privilege--answer to question
22
(1) A person must not refuse or fail to answer a question at a hearing
23
that the National Integrity Commissioner requires the person to
24
answer on the ground that the answer (or the relevant part of the
25
answer) would disclose a communication that is subject to legal
26
professional privilege, unless a claim to that effect is made at the
27
hearing to the National Integrity Commissioner.
28
Note:
See also paragraph 102(5)(c).
29
(2) If such a claim is made, the National Integrity Commissioner may
30
decide whether to accept or reject the claim.
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 2 Conducting hearings
Section 100
110
National Integrity Commission Bill 2019
No. , 2019
100 Legal professional privilege--documents or things
1
(1) A person must not refuse or fail to produce a document or thing to
2
the National Integrity Commissioner at a hearing on the ground
3
that the document or thing is subject to legal professional privilege,
4
unless:
5
(a) a court has found the document or thing (or the relevant part
6
of the document or thing) to be subject to legal professional
7
privilege; or
8
(b) a claim that the document or thing (or the relevant part of the
9
document or thing) is subject to legal professional privilege is
10
made to the National Integrity Commissioner:
11
(i) within the time that, in the summons, the National
12
Integrity Commissioner allowed for its production; or
13
(ii) within such further time as the National Integrity
14
Commissioner allows for production of the document or
15
thing.
16
Note:
See also paragraph 102(5)(c).
17
(2) If such a claim is made, the National Integrity Commissioner may
18
decide whether to accept or reject the claim.
19
101 Offences relating to claims for legal professional privilege
20
(1) A person commits an offence if:
21
(a) the person had been served with a summons:
22
(i) to attend a hearing and the person fails to answer a
23
question at the hearing that the National Integrity
24
Commissioner requires the person to answer; or
25
(ii) to produce a document or thing specified in the
26
summons and the person fails to produce the document
27
or thing that the person was required to produce; and
28
(b) the National Integrity Commissioner has decided under
29
subsection 99(2) or 100(2) to reject a claim that the answer,
30
document or thing (or the relevant part of the answer,
31
document or thing) is subject to legal professional privilege;
32
and
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 102
No. , 2019
National Integrity Commission Bill 2019
111
(c) the person refuses or fails to answer the question or produce
1
the document or thing as the National Integrity
2
Commissioner requires, after that decision.
3
Penalty: Imprisonment for 6 months or 10 penalty units.
4
(2) Subsection (1) is an offence of strict liability.
5
(3) Subsection (1) does not apply if the person has a reasonable
6
excuse.
7
(4) It is not a reasonable excuse for the purposes of subsection (3) for a
8
person to refuse or fail to produce a document or thing that the
9
document or thing is subject to legal professional privilege, unless
10
a court has found the document or thing to be subject to legal
11
professional privilege.
12
(5) It is a defence to a prosecution for an offence against this section
13
constituted by a refusal or failure to answer a question or to
14
produce a document or thing if the answer, document or thing was
15
not relevant to the corruption issue or public inquiry to which the
16
hearing related.
17
Note:
A defendant bears an evidential burden in relation to the matters in
18
subsections (3) and (5) (see subsection 13.3(3) of the Criminal Code).
19
102 Self-incrimination etc.
20
Self-incrimination
21
(1) A person is not excused from:
22
(a) answering a question; or
23
(b) producing a document or thing;
24
when summoned, under section 82, to attend a hearing to do so on
25
the ground that doing so would tend to incriminate the person or
26
expose the person to a penalty.
27
Use indemnity
28
(2) Subsection (4) applies if:
29
(a) the person:
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 2 Conducting hearings
Section 102
112
National Integrity Commission Bill 2019
No. , 2019
(i) answers the question (whether orally or in writing); or
1
(ii) produces the document or thing;
2
and, before doing so, claims that answering the question, or
3
producing the document or thing, might tend to incriminate
4
the person or expose the person to a penalty; or
5
(b) the person answers the question in writing and claims, in a
6
written statement accompanying the answer, that answering
7
the question might tend to incriminate the person or expose
8
the person to a penalty; or
9
(c) the person produces the document or thing and claims, in a
10
written statement accompanying the document or thing, that
11
producing the document or thing might tend to incriminate
12
the person or expose the person to a penalty.
13
(3) Subsection (4) does not apply to the production of a document that
14
is, or forms part of, a record of an existing or past business.
15
(4) Neither of the following:
16
(a) the answer given;
17
(b) the document or thing produced;
18
is admissible in evidence against the person in criminal
19
proceedings, or any other proceedings for the imposition or
20
recovery of a penalty, other than:
21
(c) proceedings for an offence against section 92; or
22
(d) confiscation proceedings; or
23
(e) proceedings for an offence against section 137.1 or 137.2 of
24
the Criminal Code (which deals with false or misleading
25
information or documents) that relates to this Act; or
26
(f) proceedings for an offence against section 149.1 of the
27
Criminal Code (which deals with obstruction of
28
Commonwealth public officials) that relates to this Act; or
29
(g) disciplinary proceedings against the person if the person is an
30
employee of a Commonwealth agency.
31
Public interest grounds
32
(5) A person is not excused from:
33
(a) answering a question; or
34
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 102
No. , 2019
National Integrity Commission Bill 2019
113
(b) producing a document or thing;
1
when summoned, under section 82, to attend a hearing to do so on
2
the ground that doing so:
3
(c) would disclose one of the following:
4
(i) legal advice given to a Minister or a Commonwealth
5
agency;
6
(ii) a communication between an officer of a
7
Commonwealth agency and another person or body,
8
being a communication protected against disclosure by
9
legal professional privilege; or
10
(d) would breach a secrecy provision other than:
11
(i) a taxation secrecy provision; or
12
(ii) a law enforcement secrecy provision; or
13
(e) would be otherwise contrary to the public interest.
14
(6) The fact that a person is not excused under subsection (5) from:
15
(a) answering a question; or
16
(b) producing a document or thing;
17
does not otherwise affect a claim of legal professional privilege
18
that anyone may make in relation to that answer, document or
19
thing.
20
(7) A person who is served with a summons under section 82 does not
21
commit an offence, and is not liable to any penalty, under the
22
provisions of any other enactment (other than a taxation secrecy
23
provision or a law enforcement secrecy provision) because the
24
person:
25
(a) answers a question at a hearing that the National Integrity
26
Commissioner requires the person to answer; or
27
(b) produces a document or thing that the person is required to
28
produce in accordance with the summons.
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 103
114
National Integrity Commission Bill 2019
No. , 2019
Subdivision F--Court orders for delivery of witness's passport
1
and witness's arrest
2
103 National Integrity Commissioner may apply for order that
3
witness deliver passport
4
(1) The National Integrity Commissioner may apply to a Judge of the
5
Federal Court for an order that a person deliver the person's
6
passport to the National Integrity Commissioner if:
7
(a) either of the following apply:
8
(i) a summons under section 82 has been issued requiring
9
the person to attend a hearing (whether or not the
10
summons has been served) in relation to a corruption
11
investigation or public inquiry;
12
(ii) the person has appeared at a hearing in relation to a
13
corruption investigation or public inquiry to give
14
evidence or to produce documents or things; and
15
(b) there are reasonable grounds for believing that the person
16
may be able:
17
(i) to give evidence, or further evidence, that is relevant to
18
the investigation or public inquiry; or
19
(ii) to produce documents or things, or further documents or
20
things, that are relevant to the investigation or public
21
inquiry; and
22
(c) there are reasonable grounds for suspecting that the person:
23
(i) intends to leave Australia; and
24
(ii) has in the person's possession, custody or control a
25
passport issued to him or her.
26
(2) The National Integrity Commissioner must give the Judge
27
information on oath, or by affirmation, in support of the grounds
28
for the application.
29
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 104
No. , 2019
National Integrity Commission Bill 2019
115
104 Court orders
1
Court order for witness to appear before the Court
2
(1) If a Judge of the Federal Court, sitting in Chambers, is satisfied, on
3
the evidence, that the requirements of paragraphs 103(1)(a), (b)
4
and (c) are met, the Judge may make an order:
5
(a) requiring the person to appear before the Federal Court on a
6
date, and at a time and place, specified in the order; and
7
(b) requesting the person to show cause why the person should
8
not be ordered to deliver the passport to the National
9
Integrity Commissioner.
10
Offence
11
(2) A person commits an offence if:
12
(a) the person leaves Australia; and
13
(b) an order has been made in relation to the person under
14
subsection (1); and
15
(c) a copy of the order has been served on the person.
16
Penalty: Imprisonment for 2 years.
17
(3) In proceedings for an offence against subsection (2), it is a defence
18
if:
19
(a) the person has appeared before the Federal Court as required
20
by the order referred to in paragraph (2)(b); and
21
(b) if the Court makes an order in relation to the person under
22
paragraph (4)(a)--the person has complied with the terms of
23
the order and any passport delivered to the National Integrity
24
Commissioner in accordance with the order has been
25
returned to the person.
26
Court order that witness deliver passport to National Integrity
27
Commissioner
28
(4) If the person appears before the Federal Court as required by the
29
order made under subsection (1), the Court may, if it thinks fit,
30
make an order:
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Section 104
116
National Integrity Commission Bill 2019
No. , 2019
(a) requiring the person to deliver to the National Integrity
1
Commissioner any passport:
2
(i) issued to him or her; and
3
(ii) in the person's possession, custody or control; and
4
(b) authorising the National Integrity Commissioner to retain the
5
passport until the end of the period (not exceeding one
6
month) that is specified in the order.
7
Extension of period that National Integrity Commissioner may
8
retain passport
9
(5) The Federal Court may, upon application by the National Integrity
10
Commissioner, extend for a further period (of not more than one
11
month), or further periods (of not more than one month in each
12
case), the period for which the National Integrity Commissioner is
13
authorised to retain a passport. However, the total period for which
14
the National Integrity Commissioner is authorised to retain the
15
passport must not exceed 3 months.
16
Revocation of court order
17
(6) If the Federal Court makes an order authorising the National
18
Integrity Commissioner to retain a passport issued to a person, the
19
person may apply to the Federal Court for the order to be revoked.
20
(7) If the Federal Court revokes the order, the National Integrity
21
Commissioner must return the passport to the person immediately.
22
Jurisdiction of the Federal Court
23
(8) The Federal Court has jurisdiction with respect to matters arising
24
under this section.
25
Definition
26
(9) In this section:
27
Australia includes the external Territories.
28
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 105
No. , 2019
National Integrity Commission Bill 2019
117
105 Applying for a warrant to arrest witness
1
(1) An authorised officer may apply to a Judge of the Federal Court, or
2
of the Supreme Court of a State or Territory, for a warrant to arrest
3
a person if the authorised officer has reasonable grounds to believe
4
that:
5
(a) the person:
6
(i) has been ordered to deliver the person's passport to the
7
National Integrity Commissioner (whether or not the
8
person has complied with the order); and
9
(ii) is likely to leave Australia for the purpose of avoiding
10
giving evidence at a hearing before the National
11
Integrity Commissioner; or
12
(b) the person has been served with a summons under section 82
13
and:
14
(i) has absconded or is likely to abscond; or
15
(ii) is otherwise attempting, or likely to attempt, to evade
16
service of the summons; or
17
(c) the person has committed an offence under subsection 92(1)
18
or is likely to do so.
19
(2) The authorised officer must give the Judge information on oath, or
20
by affirmation, in support of the grounds for the application.
21
106 Warrant for arrest
22
Issue of warrant
23
(1) If a Judge, sitting in Chambers, is satisfied, on the evidence, that
24
there are reasonable grounds for believing that
25
paragraph 105(1)(a), (b) or (c) is met, the Judge may issue a
26
warrant authorising the authorised officer to arrest the person.
27
Execution of warrant
28
(2) For the purpose of executing a warrant, if the authorised officer
29
executing the warrant (or an assisting officer) believes on
30
reasonable grounds that the person is on any premises, the
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 2 Conducting hearings
Section 106
118
National Integrity Commission Bill 2019
No. , 2019
authorised officer (or the assisting officer) may break into and
1
enter those premises.
2
(3) However, the authorised officer executing the warrant (or an
3
assisting officer) must not enter a dwelling house at any time
4
during the period commencing at 9 pm on a day and ending at 6 am
5
on the following day unless the authorised officer (or the assisting
6
officer) believes on reasonable grounds that it would not be
7
practicable to arrest the person, either at the dwelling house or
8
elsewhere, at another time.
9
(4) The authorised officer executing the warrant (or an assisting
10
officer) must not, in the course of arresting the person, use more
11
force, or subject the other person to greater indignity, than is
12
necessary and reasonable:
13
(a) to make the arrest; or
14
(b) to prevent the escape of the person after the arrest.
15
(5) The warrant may be executed even if the authorised officer does
16
not have a copy of the warrant in the authorised officer's
17
possession at the time it is executed.
18
(6) The authorised officer executing the warrant (or an assisting officer
19
who arrests the person) must inform the person, at the time of the
20
arrest, of the reason for which the person is being arrested.
21
(7) It is sufficient if the person is informed of the substance of the
22
reason and it is not necessary that this be done in language of a
23
precise or technical nature.
24
(8) Subsection (6) does not apply to the arrest of the person if:
25
(a) the person should, in the circumstances, know the substance
26
of the reason for which the person is being arrested; or
27
(b) the person's actions make it impracticable for the authorised
28
officer executing the warrant (or an assisting officer making
29
the arrest) to inform the person of the reason for which the
30
person is being arrested.
31
(9) Nothing in this section prevents the arrest of a person in
32
accordance with any other law.
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 107
No. , 2019
National Integrity Commission Bill 2019
119
Definitions
1
(10) In this section:
2
dwelling house includes a conveyance, and a room in a hotel,
3
motel, boarding house or club, in which people ordinarily retire for
4
the night.
5
Judge means:
6
(a) a Judge of the Federal Court; or
7
(b) a Judge of the Supreme Court of a State or Territory.
8
107 Powers of Judge in relation to person arrested
9
(1) A person arrested under a warrant issued under section 106 must
10
be brought, as soon as practicable, before a Judge.
11
(2) The Judge may:
12
(a) grant the person bail:
13
(i) on such security as the Judge thinks fit; and
14
(ii) on such conditions as the Judge thinks are necessary to
15
ensure that the person appears as a witness at a hearing
16
before the National Integrity Commissioner; or
17
(b) order that the person continue to be detained for the purpose
18
of ensuring that the person appears as a witness at a hearing
19
before the National Integrity Commissioner; or
20
(c) order that the person be released.
21
(3) A person who is detained under paragraph (2)(b) must be brought
22
before a Judge:
23
(a) within 14 days after the person was brought, or last brought,
24
before a Judge; or
25
(b) within such shorter or longer time as a Judge fixed on the
26
person's last previous appearance before a Judge;
27
and the Judge may exercise any of the powers under subsection (2).
28
(4) In this section:
29
Judge means:
30
(a) a Judge of the Federal Court; or
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Section 108
120
National Integrity Commission Bill 2019
No. , 2019
(b) a Judge of the Supreme Court of a State or Territory.
1
Subdivision G--Miscellaneous
2
108 National Integrity Commissioner may retain documents or
3
things
4
(1) If a document or thing is produced to the National Integrity
5
Commissioner in accordance with a summons under section 82, the
6
National Integrity Commissioner:
7
(a) may take possession of, and may make copies of, the
8
document or thing, or take extracts from the document; and
9
(b) may retain possession of the document or thing for such
10
period as is necessary for the purposes of the investigation or
11
public inquiry to which the document or thing relates.
12
(2) While the National Integrity Commissioner retains the document or
13
thing, the National Integrity Commissioner must allow a person
14
who would otherwise be entitled to inspect the document or view
15
the thing to do so at the times that the person would ordinarily be
16
able to do so.
17
109 Person may apply for legal and financial assistance
18
(1) A person who is summoned under section 82 to attend a hearing
19
before the National Integrity Commissioner may apply to the
20
Attorney-General for assistance in respect of:
21
(a) the person's attendance at the hearing; or
22
(b) the person's representation at the hearing by a legal
23
practitioner.
24
Note 1:
A person summoned to appear as a witness at a hearing is entitled to
25
be paid allowances for travelling and other expenses prescribed by
26
regulations: see subsection 82(8).
27
Note 2:
A person may also apply for assistance in respect of an application to
28
the Federal Court or the Federal Circuit Court under the
29
Administrative Decisions (Judicial Review) Act 1977 for an order of
30
review in respect of a matter arising under this Act: see section 273.
31
(2) A person who:
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 110
No. , 2019
National Integrity Commission Bill 2019
121
(a) is not giving evidence at a hearing before the National
1
Integrity Commissioner; and
2
(b) is being represented at the hearing by a legal practitioner with
3
the consent of the National Integrity Commissioner;
4
may apply to the Attorney-General for assistance in respect of that
5
representation.
6
Note:
A person may also apply for assistance in respect of an application to
7
the Federal Court or the Federal Circuit Court under the
8
Administrative Decisions (Judicial Review) Act 1977 for an order of
9
review in respect of a matter arising under this Act: see section 273.
10
(3) If a person applies under subsection (1) or (2), the
11
Attorney-General may, if the Attorney-General is satisfied that:
12
(a) it would involve substantial hardship to the person to refuse
13
the application; or
14
(b) the circumstances of the case are of such a special nature that
15
the application should be granted;
16
authorise the Commonwealth to provide the person with legal or
17
financial assistance, determined by the Attorney-General, in
18
respect of:
19
(c) the person's attendance at the hearing; or
20
(d) the person's representation at the hearing by a legal
21
practitioner.
22
(4) Legal or financial assistance may be given:
23
(a) unconditionally; or
24
(b) subject to such conditions as the Attorney-General
25
determines.
26
(5) An instrument that determines the conditions on which legal or
27
financial assistance may be given is not a legislative instrument.
28
110 Protection of National Integrity Commissioner etc.
29
(1) The National Integrity Commissioner has, in exercising the
30
National Integrity Commissioner's power to hold a hearing, the
31
same protection and immunity as a Justice of the High Court.
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 2 Conducting hearings
Section 111
122
National Integrity Commission Bill 2019
No. , 2019
(2) A legal practitioner assisting the National Integrity Commissioner,
1
or representing a person at a hearing, has the same protection and
2
immunity as a barrister appearing for a party in proceedings in the
3
High Court.
4
(3) To avoid doubt, this section does not limit the powers of the
5
Ombudsman under the Ombudsman Act 1976 to investigate issues
6
of administrative practice in relation to a hearing under this
7
Division.
8
(4) A reference in this section to the National Integrity Commissioner
9
includes a reference to an Assistant Commissioner who exercises
10
the power to hold a hearing in relation to a corruption issue under
11
an authorisation under section 229.
12
111 Protection of witnesses etc.
13
(1) A person who:
14
(a) gives evidence at a hearing conducted under this Act; or
15
(b) produces a document or thing at a hearing conducted under
16
this Act; or
17
(c) makes a submission to the National Integrity Commissioner
18
in relation to a public inquiry;
19
has the same protection as a witness in proceedings in the High
20
Court.
21
(2) Subsection (3) applies if it appears to the National Integrity
22
Commissioner that, because a person:
23
(a) is to give evidence, or produce a document or thing, at a
24
hearing under this Act; or
25
(b) has given evidence, or produced a document or thing, at a
26
hearing under this Act; or
27
(c) is to make, or has made, a submission to the National
28
Integrity Commissioner in relation to a public inquiry;
29
either:
30
(d) the safety of the person or any other person may be
31
prejudiced; or
32
(e) the person or any other person may be subjected to
33
intimidation or harassment.
34
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Conducting hearings Division 2
Section 111
No. , 2019
National Integrity Commission Bill 2019
123
(3) The National Integrity Commissioner may make such
1
arrangements as are necessary:
2
(a) to protect the safety of any person mentioned in
3
paragraph (2)(d); or
4
(b) to protect any person mentioned in paragraph (2)(e) from
5
intimidation or harassment.
6
(4) For the purpose of subsection (3), the arrangements that the
7
National Integrity Commissioner may make include arrangements
8
with:
9
(a) members of the AFP; or
10
(b) members of the police force of a State or Territory.
11
(5) This section does not affect the Witness Protection Act 1994.
12
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 112
124
National Integrity Commission Bill 2019
No. , 2019
Division 3--Search warrants
1
Subdivision A--Preliminary
2
112 Application to things under the control of a person
3
This Division applies to a person (the possessor) who has a thing
4
under the possessor's control in any place (whether for the use or
5
benefit of the possessor or another person), even if another person
6
has the actual possession or custody of the thing, as if the possessor
7
has possession of the thing.
8
Subdivision B--Applying for a search warrant
9
113 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 made
20
by telephone, fax, email or other electronic means: see section 116.
21
Application for warrant to search premises (offence warrant)
22
(2) An authorised officer may apply to an issuing officer for an
23
offence warrant to search premises if the authorised officer has
24
reasonable grounds for suspecting that there is, or there will be
25
within the next 72 hours, any evidential material on the premises.
26
Note:
In special circumstances and urgent cases, an application may be made
27
by telephone, fax, email or other electronic means: see section 116.
28
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 113
No. , 2019
National Integrity Commission Bill 2019
125
Application for a warrant to search person (investigation warrant)
1
(3) An authorised officer may apply to an issuing officer for an
2
investigation warrant to carry out an ordinary search or a frisk
3
search of a person if the authorised officer:
4
(a) has reasonable grounds for suspecting that the person has in
5
the person's possession, or will within the next 72 hours have
6
in the person's possession, any evidential material; and
7
(b) has reasonable grounds for believing that, if the person was
8
served with a summons to produce the evidential material,
9
the material might be concealed, lost, mutilated or destroyed.
10
Note:
In special circumstances and urgent cases, an application may be made
11
by telephone, fax, email or other electronic means: see section 116.
12
Application for a warrant to search person (offence warrant)
13
(4) An authorised officer may apply to an issuing officer for an
14
offence warrant to carry out an ordinary search or a frisk search of
15
a person if the authorised officer has reasonable grounds for
16
suspecting that the person has in the person's possession, or will
17
within the next 72 hours have in the person's possession, any
18
evidential material.
19
Note:
In special circumstances and urgent cases, an application may be made
20
by telephone, fax, email or other electronic means: see section 116.
21
Information in support of application
22
(5) An authorised officer must give the issuing officer information on
23
oath or by affirmation to support the grounds for an application
24
under subsection (1), (2), (3) or (4).
25
(6) If an authorised officer applying for a search warrant suspects that,
26
in executing the warrant, it will be necessary to use firearms, the
27
authorised officer must state that suspicion, and the grounds for it,
28
in the information given under subsection (5).
29
(7) If the authorised officer applying for a search warrant (or another
30
authorised officer who will be an assisting officer in relation to the
31
search warrant) has, at any time previously, applied for a search
32
warrant under this Act or another Act in relation to the same person
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 114
126
National Integrity Commission Bill 2019
No. , 2019
or premises, the authorised officer must state particulars of those
1
applications, and their outcome, in the information given under
2
subsection (5).
3
Subdivision C--Issue of a search warrant
4
114 When search warrants may be issued
5
Issue of a warrant to search premises (investigation warrant)
6
(1) If:
7
(a) an authorised officer makes an application to an issuing
8
officer under subsection 113(1); and
9
(b) the issuing officer is satisfied, on the information given under
10
subsection 113(5), that:
11
(i) there are reasonable grounds for suspecting that there is,
12
or there will be within the next 72 hours, evidential
13
material on the premises in relation to which the
14
application is made; and
15
(ii) there are reasonable grounds for believing that, if a
16
person was served with a summons to produce the
17
evidential material, the material might be concealed,
18
lost, mutilated or destroyed;
19
the issuing officer may issue an investigation warrant authorising
20
the authorised officer to search the premises.
21
Issue of a warrant to search premises (offence warrant)
22
(2) If:
23
(a) an authorised officer makes an application to an issuing
24
officer under subsection 113(2); and
25
(b) the issuing officer is satisfied, on the information given under
26
subsection 113(5), that there are reasonable grounds for
27
suspecting that there is, or there will be within the next 72
28
hours, evidential material on the premises in relation to
29
which the application is made;
30
the issuing officer may issue an offence warrant authorising the
31
authorised officer to search the premises.
32
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 114
No. , 2019
National Integrity Commission Bill 2019
127
Issue of a warrant to search a person (investigation warrant)
1
(3) If:
2
(a) an authorised officer makes an application to an issuing
3
officer under subsection 113(3); and
4
(b) the issuing officer is satisfied, on the information given under
5
subsection 113(5), that:
6
(i) there are reasonable grounds for suspecting that the
7
person in relation to whom the application is made has
8
in the person's possession, or will within the next 72
9
hours have in the person's possession, evidential
10
material; and
11
(ii) there are reasonable grounds for believing that, if the
12
person was served with a summons to produce the
13
evidential material, the material might be concealed,
14
lost, mutilated or destroyed;
15
the issuing officer may issue an investigation warrant authorising
16
the authorised officer to carry out an ordinary search or a frisk
17
search of the person.
18
Issue of a warrant to search a person (offence warrant)
19
(4) If:
20
(a) an authorised officer makes an application to an issuing
21
officer under subsection 113(4); and
22
(b) the issuing officer is satisfied, on the information given under
23
subsection 113(5), that there are reasonable grounds for
24
suspecting that the person in relation to whom the application
25
is made has in the person's possession, or will within the next
26
72 hours have in the person's possession, evidential material;
27
the issuing officer may issue an offence warrant authorising the
28
authorised officer to carry out an ordinary search or a frisk search
29
of the person.
30
Issue of a warrant by State/Territory issuing officers
31
(5) An issuing officer in a State or internal Territory may:
32
(a) issue a search warrant in relation to premises or a person in
33
that State or Territory; or
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 115
128
National Integrity Commission Bill 2019
No. , 2019
(b) issue a search warrant in relation to premises or a person in
1
an external Territory; or
2
(c) issue a search warrant in relation to premises or a person in
3
another State or internal Territory (including the Jervis Bay
4
Territory) if the issuing officer is satisfied that there are
5
special circumstances that make the issue of the warrant
6
appropriate; or
7
(d) issue a search warrant in relation to a person wherever the
8
person is in Australia or in an external Territory if the issuing
9
officer is satisfied that it is not possible to predict where the
10
person may be.
11
(6) An issuing officer in New South Wales or the Australian Capital
12
Territory may issue a search warrant in relation to premises or a
13
person in the Jervis Bay Territory.
14
(7) Subsections (5) and (6) do not apply if the issuing officer is:
15
(a) a Judge of the Federal Court; or
16
(b) a Judge of the Federal Circuit Court.
17
Issue of a warrant by issuing officers
18
(8) The function of issuing a search warrant is conferred on an issuing
19
officer in a personal capacity and not as a court or a member of a
20
court. The issuing officer need not accept the function conferred.
21
(9) An issuing officer performing a function of, or connected with,
22
issuing a search warrant has the same protection and immunity as
23
if the issuing officer were performing that function as, or as a
24
member of, the court of which the issuing officer is a member.
25
115 Content of warrants
26
General contents of warrant
27
(1) If an issuing officer issues a search warrant under section 114, the
28
issuing officer is to state in the warrant:
29
(a) either:
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 115
No. , 2019
National Integrity Commission Bill 2019
129
(i) if the warrant is an investigation warrant--the
1
corruption issue or public inquiry to which the warrant
2
relates; or
3
(ii) if the warrant is an offence warrant--the offence to
4
which the warrant relates; and
5
(b) a description of the premises to which the warrant relates or
6
the name or a description of a person to whom it relates; and
7
(c) the kinds of evidential material that are to be searched for
8
under the warrant; and
9
(d) the name of the authorised officer who, unless the authorised
10
officer inserts the name of another authorised officer in the
11
warrant, is to be responsible for executing the warrant; and
12
(e) the time at which the warrant expires; and
13
(f) whether the warrant may be executed at any time or only
14
during particular hours.
15
(2) The time stated in the warrant as the time at which the warrant
16
expires must be a time that is not later than the end of the seventh
17
day after the day on which the warrant is issued.
18
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
19
in the warrant must not be later than midnight on Monday in the
20
following week.
21
Additional matters for warrant in relation to premises
22
(3) If the search warrant relates to premises, the issuing officer is also
23
to state:
24
(a) that the warrant authorises the seizure of a thing (other than
25
evidential material of the kind referred to in paragraph (1)(c))
26
found at the premises in the course of the search that the
27
authorised officer or an assisting officer believes on
28
reasonable grounds to be:
29
(i) if the warrant is an investigation warrant--evidential
30
material in relation to the corruption issue or public
31
inquiry to which the warrant relates; or
32
(ii) if the warrant is an offence warrant--a thing relevant to
33
the offence to which the warrant relates; or
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 115
130
National Integrity Commission Bill 2019
No. , 2019
(iii) in any case--evidential material (within the meaning of
1
the Proceeds of Crime Act 2002) or tainted property
2
(within the meaning of that Act); or
3
(iv) in any case--a thing relevant to an indictable offence;
4
if the authorised officer or the assisting officer believes on
5
reasonable grounds that seizure of the thing is necessary to
6
prevent its concealment, loss or destruction or its use in
7
committing an offence; and
8
(b) whether the warrant authorises an ordinary search or a frisk
9
search of a person who is at or near the premises when the
10
warrant is executed if the authorised officer or an assisting
11
officer suspects on reasonable grounds that the person has in
12
the person's possession:
13
(i) in the case of an investigation warrant--any evidential
14
material in relation to the corruption issue or public
15
inquiry to which the warrant relates; or
16
(ii) in the case of an offence warrant--a thing relevant to
17
the offence to which the warrant relates; or
18
(iii) in any case--evidential material (within the meaning of
19
the Proceeds of Crime Act 2002) or tainted property
20
(within the meaning of that Act); or
21
(iv) in any case--a thing relevant to an indictable offence; or
22
(v) in any case--any eligible seizable items.
23
Additional matters for warrant in relation to person
24
(4) If the search warrant relates to a person, the issuing officer is also
25
to state:
26
(a) the kind of search (ordinary or frisk) of the person that the
27
warrant authorises; and
28
(b) that the warrant authorises the seizure of a thing (other than
29
evidential material of the kind referred to in paragraph (1)(c))
30
found, in the course of the search, in the possession of the
31
person or in, or on, an aircraft, vehicle or vessel that the
32
person had operated or occupied at any time within 24 hours
33
before the search began, being a thing that the authorised
34
officer or an assisting officer believes on reasonable grounds
35
to be:
36
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 116
No. , 2019
National Integrity Commission Bill 2019
131
(i) in the case of an investigation warrant--evidential
1
material in relation to the corruption issue or public
2
inquiry to which the warrant relates; or
3
(ii) in the case of an offence warrant--a thing relevant to
4
the offence to which the warrant relates; or
5
(iii) in any case--evidential material (within the meaning of
6
the Proceeds of Crime Act 2002) or tainted property
7
(within the meaning of that Act); or
8
(iv) in any case--a thing relevant to an indictable offence;
9
if the authorised officer or the assisting officer believes on
10
reasonable grounds that seizure of the thing is necessary to
11
prevent its concealment, loss or destruction or its use in
12
committing an offence.
13
Successive warrants
14
(5) Paragraph (1)(e) does not prevent the issue of successive warrants
15
in relation to the same premises or person.
16
116 Application by telephone etc. and issue of warrant
17
(1) An authorised officer may apply to an issuing officer for a search
18
warrant by telephone, fax, email or other electronic means:
19
(a) in an urgent case; or
20
(b) if the delay that would occur if an application were made in
21
person would frustrate the effective execution of the warrant.
22
(2) The issuing officer:
23
(a) may require communication by voice to the extent that is
24
practicable in the circumstances; and
25
(b) may make a recording of the whole or any part of any such
26
communication by voice.
27
(3) An application under this section must include all information that
28
is required in an ordinary application for a search warrant, but the
29
application may, if necessary, be made before the information is
30
sworn or affirmed.
31
(4) If an application is made under this section:
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 116
132
National Integrity Commission Bill 2019
No. , 2019
(a) sections 113 and 114 apply as if subsections 113(1), (2), (3)
1
and (4) and 114(1), (2), (3) and (4) referred to 48 hours rather
2
than 72 hours; and
3
(b) section 115 applies as if subsection 115(2) referred to the end
4
of the 48th hour rather than the end of the seventh day.
5
(5) If an application is made to an issuing officer under this section
6
and the issuing officer, after considering the information and
7
having received and considered such further information (if any) as
8
the issuing officer required, is satisfied that:
9
(a) a search warrant in the terms of the application should be
10
issued urgently; or
11
(b) the delay that would occur if an application were made in
12
person would frustrate the effective execution of the warrant;
13
the issuing officer may complete and sign the same form of search
14
warrant that would be issued under section 114.
15
(6) If the issuing officer decides to issue the search warrant, the issuing
16
officer is to inform the applicant, by telephone, fax, email or other
17
electronic means, of the terms of the warrant and the day on which
18
and the time at which it was signed.
19
(7) The applicant must then complete a form of search warrant in
20
terms substantially corresponding to those given by the issuing
21
officer, stating on the form the name of the issuing officer and the
22
day on which and the time at which the warrant was signed.
23
(8) The applicant must give or transmit to the issuing officer:
24
(a) the form of search warrant completed by the applicant; and
25
(b) if the information referred to in subsection (3) was not sworn
26
or affirmed--that information duly sworn or affirmed.
27
(9) The applicant must do so not later than the day after the warrant
28
expires or the day after the day on which the search warrant was
29
executed, whichever is the earlier.
30
(10) The issuing officer is to attach to the documents provided under
31
subsection (8) the form of search warrant the issuing officer has
32
completed.
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 117
No. , 2019
National Integrity Commission Bill 2019
133
(11) If:
1
(a) it is material, in any proceedings, for a court to be satisfied
2
that the exercise of a power under a search warrant issued
3
under this section was duly authorised; and
4
(b) the form of search warrant signed by the issuing officer is not
5
produced in evidence;
6
the court is to assume, unless the contrary is proved, that the
7
exercise of the power was not duly authorised.
8
(12) In this section:
9
applicant means the authorised officer who applied for the search
10
warrant.
11
117 The things authorised by a search warrant in relation to
12
premises
13
A search warrant in force in relation to premises authorises the
14
authorised officer executing the warrant or an assisting officer to
15
do any of the following:
16
(a) to enter the premises;
17
(b) to search for and record fingerprints found at the premises
18
and to take samples of things found at the premises for
19
forensic purposes;
20
(c) to search the premises for the kinds of evidential material
21
specified in the warrant, and to seize things of that kind
22
found on the premises;
23
(d) to seize other things found on the premises in the course of
24
the search that the authorised officer or the assisting officer
25
believes on reasonable grounds to be:
26
(i) in the case of an investigation warrant--evidential
27
material in relation to the corruption issue or public
28
inquiry to which the warrant relates; or
29
(ii) in the case of an offence warrant--a thing relevant to
30
the offence to which the warrant relates; or
31
(iii) in any case--evidential material (within the meaning of
32
the Proceeds of Crime Act 2002) or tainted property
33
(within the meaning of that Act); or
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
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Division 3 Search warrants
Section 118
134
National Integrity Commission Bill 2019
No. , 2019
(iv) in any case--a thing relevant to an indictable offence;
1
if the authorised officer or the assisting officer believes on
2
reasonable grounds that seizure of the thing is necessary to
3
prevent its concealment, loss or destruction or its use in
4
committing an offence;
5
(e) to seize other things found at the premises in the course of
6
the search that the authorised officer or the assisting officer
7
believes on reasonable grounds to be eligible seizable items;
8
(f) if the warrant so allows--to conduct an ordinary search or a
9
frisk search of a person at or near the premises if the
10
authorised officer or the assisting officer suspects on
11
reasonable grounds that the person has in the person's
12
possession:
13
(i) in the case of an investigation warrant--any evidential
14
material in relation to the corruption issue or public
15
inquiry to which the warrant relates; or
16
(ii) in the case of an offence warrant--a thing relevant to
17
the offence to which the warrant relates; or
18
(iii) in any case--evidential material (within the meaning of
19
the Proceeds of Crime Act 2002) or tainted property
20
(within the meaning of that Act); or
21
(iv) in any case--a thing relevant to an indictable offence; or
22
(v) in any case--any eligible seizable items.
23
118 The things authorised by a search warrant in relation to a
24
person
25
(1) A search warrant in force in relation to a person authorises the
26
authorised officer executing the warrant or an assisting officer to
27
do any of the following:
28
(a) to search:
29
(i) the person as specified in the warrant and things found
30
in the possession of the person; and
31
(ii) any aircraft, vehicle or vessel that the person had
32
operated or occupied at any time within 24 hours before
33
the search began, for things specified in the warrant;
34
(b) to:
35
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 119
No. , 2019
National Integrity Commission Bill 2019
135
(i) seize things of that kind; or
1
(ii) record fingerprints from things; or
2
(iii) take forensic samples from things;
3
found in the course of the search;
4
(c) to seize other things found on, or in, the possession of the
5
person or in the aircraft, vehicle or vessel referred to in
6
subparagraph (a)(ii) in the course of the search that the
7
authorised officer or the assisting officer believes on
8
reasonable grounds to be:
9
(i) in the case of an investigation warrant--evidential
10
material in relation to the corruption issue or public
11
inquiry to which the warrant relates; or
12
(ii) in the case of an offence warrant--a thing relevant to
13
the offence to which the warrant relates; or
14
(iii) in any case--evidential material (within the meaning of
15
the Proceeds of Crime Act 2002) or tainted property
16
(within the meaning of that Act); or
17
(iv) in any case--a thing relevant to an indictable offence;
18
if the authorised officer or the assisting officer believes on
19
reasonable grounds that seizure of the thing is necessary to
20
prevent its concealment, loss or destruction or its use in
21
committing an offence;
22
(d) to seize other things found in the course of the search that the
23
authorised officer or the assisting officer believes on
24
reasonable grounds to be eligible seizable items.
25
(2) If the search warrant authorises an ordinary search or a frisk search
26
of a person, a search of the person different from that authorised by
27
the warrant must not be done under the warrant.
28
119 Restrictions on personal searches
29
A search warrant may not authorise a strip search or a search of a
30
person's body cavities.
31
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 120
136
National Integrity Commission Bill 2019
No. , 2019
120 When warrant may be executed etc.
1
(1) If a search warrant states that it may be executed only during
2
particular hours, the warrant must not be executed outside those
3
hours.
4
(2) If things are seized under a search warrant, the warrant authorises
5
the authorised officer executing the warrant to make the things
6
available to officers of other government agencies if it is necessary
7
to do so for the purpose of investigating or prosecuting an offence
8
to which the things relate.
9
Subdivision D--General provisions about executing a search
10
warrant
11
121 Announcement before entry
12
(1) An authorised officer executing the search warrant must, before
13
any person enters premises under the warrant:
14
(a) announce that the authorised officer is authorised to enter the
15
premises; and
16
(b) give any person at the premises an opportunity to allow entry
17
to the premises.
18
(2) An authorised officer is not required to comply with subsection (1)
19
if the authorised officer believes on reasonable grounds that
20
immediate entry to the premises is required:
21
(a) to ensure the safety of a person (including an authorised
22
officer or assisting officer); or
23
(b) to ensure that the effective execution of the warrant is not
24
frustrated.
25
122 Availability of assistance and use of force in executing a warrant
26
(1) In executing a search warrant, the authorised officer executing the
27
warrant may:
28
(a) obtain the assistance that is necessary and reasonable in the
29
circumstances; and
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 123
No. , 2019
National Integrity Commission Bill 2019
137
(b) use the force against persons and things that is necessary and
1
reasonable in the circumstances.
2
(2) In executing a search warrant:
3
(a) if an assisting officer is also an authorised officer or a
4
constable--the assisting officer may use the force against
5
persons and things that is necessary and reasonable in the
6
circumstances; and
7
(b) if an assisting officer is not an authorised officer or a
8
constable--the assisting officer may use the force against
9
things that is necessary and reasonable in the circumstances.
10
(3) Only an authorised officer or a constable may take part in
11
searching a person.
12
Subdivision E--Specific provisions about executing a warrant
13
in relation to premises
14
123 Application
15
This Subdivision applies if a search warrant in relation to premises
16
is being executed.
17
124 Copy of warrant to be shown to occupier etc.
18
(1) If the occupier of the premises, or another person who apparently
19
represents the occupier, is present at the premises, the authorised
20
officer executing the search warrant or an assisting officer must
21
make a copy of the warrant available to the person.
22
(2) If a person is searched under a search warrant in relation to
23
premises, the authorised officer executing the warrant or an
24
assisting officer must show the person a copy of the warrant.
25
(3) The authorised officer must identify himself or herself to the
26
person at the premises.
27
(4) The copy of the search warrant need not include the signature of
28
the issuing officer who issued it.
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 125
138
National Integrity Commission Bill 2019
No. , 2019
125 Occupier entitled to watch search
1
(1) The occupier of the premises, or another person who apparently
2
represents the occupier, who is present at the premises, is entitled
3
to watch the search.
4
(2) Subsection (1) is subject to Part IC of the Crimes Act 1914.
5
(3) The right to watch the search being conducted ceases if the person
6
impedes the search.
7
(4) This section does not prevent 2 or more areas of the premises being
8
searched at the same time.
9
126 Specific powers available to person executing a warrant
10
(1) The authorised officer executing the search warrant or an assisting
11
officer may take photographs or video recordings of the premises
12
or things on the premises:
13
(a) for a purpose incidental to the execution of the warrant; or
14
(b) with the written consent of the occupier of the premises.
15
(2) The authorised officer executing the search warrant and all
16
assisting officers may, if the warrant is still in force, finish
17
executing the warrant after all of them temporarily stop executing
18
it and leave the premises:
19
(a) for not more than one hour; or
20
(b) for a longer period with the written consent of the occupier of
21
the premises.
22
(3) The execution of a search warrant that is stopped by an order of a
23
court may be completed if:
24
(a) the order is later revoked or reversed on appeal; and
25
(b) the warrant is still in force.
26
127 Use of equipment to examine or process things
27
(1) The authorised officer executing the search warrant or an assisting
28
officer may bring to the premises any equipment (including
29
electronic equipment) reasonably necessary to examine or process
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 127
No. , 2019
National Integrity Commission Bill 2019
139
things found at the premises in order to determine whether they are
1
things that may be seized under the warrant.
2
(2) A thing found at the premises may be moved to another place for
3
examination or processing in order to determine whether it may be
4
seized under a warrant if:
5
(a) both of the following apply:
6
(i) it is significantly more practicable to do so having
7
regard to the timeliness and cost of examining or
8
processing the thing at another place and the availability
9
of expert assistance;
10
(ii) there are reasonable grounds to believe that the thing
11
contains or constitutes evidential material; or
12
(b) the occupier of the premises consents in writing.
13
(3) If things are moved to another place for the purpose of examination
14
or processing, the authorised officer must, if it is practicable to do
15
so:
16
(a) inform the occupier of the address of the place and the time
17
at which the examination or processing will be carried out;
18
and
19
(b) allow the occupier or the occupier's representative to be
20
present during the examination or processing.
21
(4) The thing may be moved to another place for examination or
22
processing for no longer than 72 hours.
23
(5) An authorised officer may apply to an issuing officer for one or
24
more extensions of that time if the authorised officer believes on
25
reasonable grounds that the thing cannot be examined or processed
26
within 72 hours or that time as previously extended.
27
(6) The authorised officer must give notice of the application for an
28
extension to the occupier of the premises, and the occupier is
29
entitled to be heard in relation to the application.
30
(7) The provisions of this Division in relation to the issuing of search
31
warrants apply, with such modifications as are necessary, to the
32
issuing of an extension.
33
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 128
140
National Integrity Commission Bill 2019
No. , 2019
(8) The authorised officer executing the search warrant or an assisting
1
officer may operate equipment (including electronic equipment)
2
already on the premises to examine or process a thing found on the
3
premises in order to determine whether it may be seized under the
4
warrant, if the authorised officer or the assisting officer believes on
5
reasonable grounds that:
6
(a) the equipment is suitable for the examination or processing;
7
and
8
(b) the examination or processing can be carried out without
9
damaging the equipment or thing.
10
(9) A notice of the application for an extension given to the occupier
11
of the premises under this section is not a legislative instrument.
12
128 Use of electronic equipment at premises without expert
13
assistance
14
(1) The authorised officer executing the search warrant or an assisting
15
officer may operate electronic equipment on the premises to access
16
data (including data not held at the premises) if the authorised
17
officer or assisting officer believes on reasonable grounds that:
18
(a) the data might constitute evidential material; and
19
(b) the equipment can be operated without damaging it.
20
Note:
An authorised officer can obtain an order requiring a person with
21
knowledge of a computer or computer system to provide assistance:
22
see section 130.
23
(2) If the authorised officer or the assisting officer believes on
24
reasonable grounds that any data accessed by operating the
25
electronic equipment might constitute evidential material, the
26
authorised officer or assisting officer may:
27
(a) copy the data to a disk, tape or other associated device
28
brought to the premises; or
29
(b) if the occupier of the premises agrees in writing--copy the
30
data to a disk, tape or other associated device at the premises;
31
and take the device from the premises.
32
(3) If:
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 129
No. , 2019
National Integrity Commission Bill 2019
141
(a) the authorised officer or the assisting officer takes the device
1
from the premises; and
2
(b) the National Integrity Commissioner is satisfied that the data
3
is not required (or is no longer required) for:
4
(i) investigating a corruption issue; or
5
(ii) conducting a public inquiry; or
6
(iii) judicial proceedings or administrative review
7
proceedings;
8
the National Integrity Commissioner must arrange for:
9
(c) the removal of the data from any device in the control of the
10
Commission; and
11
(d) the destruction of any other reproduction of the data in the
12
control of the Commission.
13
(4) However, the National Integrity Commissioner must not do so if
14
the data is evidence that the National Integrity Commissioner must
15
deal with in accordance with Part 7.
16
(5) If the authorised officer or the assisting officer, after operating the
17
equipment, finds that evidential material is accessible by doing so,
18
the authorised officer or assisting officer may:
19
(a) seize the equipment and any disk, tape or other associated
20
device; or
21
(b) if the material can, by using facilities at the premises, be put
22
in documentary form--operate the facilities to put the
23
material in that form and seize the documents so produced.
24
(6) A person may seize equipment under paragraph (5)(a) only if:
25
(a) it is not practicable to put the material in documentary form
26
as referred to in paragraph (5)(b); or
27
(b) possession of the equipment by the occupier could constitute
28
an offence.
29
129 Use of electronic equipment at premises with expert assistance
30
(1) If the authorised officer executing the search warrant or an
31
assisting officer believes on reasonable grounds that:
32
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 129
142
National Integrity Commission Bill 2019
No. , 2019
(a) evidential material may be accessible by operating electronic
1
equipment at the premises; and
2
(b) expert assistance is required to operate the equipment; and
3
(c) if the authorised officer or assisting officer does not take
4
action under this subsection, the material may be destroyed,
5
altered or otherwise interfered with;
6
the authorised officer or assisting officer may do whatever is
7
necessary to secure the equipment, whether by locking it up,
8
placing a guard or otherwise.
9
(2) The authorised officer or the assisting officer must notify the
10
occupier of the premises, in writing, of:
11
(a) the authorised officer's or assisting officer's intention to
12
secure the equipment; and
13
(b) the fact that the equipment may be secured for up to 24
14
hours.
15
(3) The equipment may be secured for up to 24 hours to allow the
16
equipment to be operated by an expert.
17
(4) If the authorised officer or the assisting officer believes on
18
reasonable grounds that expert assistance will not be available
19
within 24 hours, the authorised officer or assisting officer may
20
apply to an issuing officer for an extension of that period.
21
(5) The authorised officer or the assisting officer must give notice of
22
the application for an extension to the occupier of the premises,
23
and the occupier is entitled to be heard in relation to the
24
application.
25
(6) The provisions of this Division in relation to the issuing of search
26
warrants apply, with such modifications as are necessary, to the
27
issuing of an extension.
28
(7) A notice of the application for an extension given to the occupier
29
of the premises under this section is not a legislative instrument.
30
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 130
No. , 2019
National Integrity Commission Bill 2019
143
130 Person with knowledge of a computer or a computer system to
1
assist access etc.
2
(1) The authorised officer executing the search warrant may apply to
3
an issuing officer for an order requiring a specified person to
4
provide any information or assistance that is reasonable and
5
necessary to allow the officer or an assisting officer or to do one or
6
more of the following:
7
(a) access data held in a computer, or accessible from a
8
computer, that is on premises in relation to which the warrant
9
is in force;
10
(b) copy the data to a data storage device;
11
(c) convert the data into documentary form.
12
(2) The issuing officer may grant the order if the issuing officer is
13
satisfied that:
14
(a) there are reasonable grounds for suspecting that evidential
15
material is held in, or is accessible from, the computer; and
16
(b) the specified person is:
17
(i) in the case of an investigation warrant--reasonably
18
suspected of having, or having access to, data that may
19
be relevant to the corruption issue or public inquiry to
20
which the warrant relates; or
21
(ii) in the case of an offence warrant--reasonably suspected
22
of having committed the offence stated in the warrant;
23
or
24
(iii) the owner or lessee of the computer; or
25
(iv) an employee of the owner or lessee of the computer; and
26
(c) the specified person has relevant knowledge of:
27
(i) the computer or a computer network of which the
28
computer forms a part; or
29
(ii) measures applied to protect data held in, or accessible
30
from, the computer.
31
(3) A person commits an offence if the person fails to comply with the
32
order.
33
Penalty: Imprisonment for 6 months.
34
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 131
144
National Integrity Commission Bill 2019
No. , 2019
131 Accessing data held on other premises--notification to occupier
1
of those premises
2
(1) If:
3
(a) data that is held on premises (other than the premises in
4
relation to which the warrant is in force) is accessed under
5
subsection 128(1); and
6
(b) it is practicable to notify the occupier of the other premises
7
that the data has been accessed under a warrant;
8
the authorised officer executing the search warrant must:
9
(c) do so as soon as practicable; and
10
(d) if the authorised officer has arranged, or intends to arrange,
11
for continued access to the data under subsection 128(2) or
12
(5)--include that information in the notification.
13
(2) A notification under subsection (1) must include sufficient
14
information to allow the occupier of the other premises to contact
15
the authorised officer.
16
132 Compensation for damage to electronic equipment
17
(1) This section applies if:
18
(a) as a result of equipment being operated as mentioned in
19
section 127, 128 or 129:
20
(i) damage is caused to the equipment; or
21
(ii) the data recorded on the equipment is damaged; or
22
(iii) programs associated with the use of the equipment, or
23
with the use of the data, are damaged or corrupted; and
24
(b) the damage or corruption occurs because:
25
(i) insufficient care was exercised in selecting the person
26
who was to operate the equipment; or
27
(ii) insufficient care was exercised by the person operating
28
the equipment.
29
(2) The Commonwealth must pay the owner of the equipment, or the
30
user of the data or programs, such reasonable compensation for the
31
damage or corruption as the Commonwealth and the owner or user
32
agree on.
33
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 133
No. , 2019
National Integrity Commission Bill 2019
145
(3) However, if the owner or user and the Commonwealth fail to
1
agree, the owner or user may institute proceedings in the Federal
2
Court for such reasonable amount of compensation as the Court
3
determines.
4
(4) In determining the amount of compensation payable, regard is to
5
be had to whether the occupier of the premises, or the occupier's
6
employees or agents, if they were available at the time, had
7
provided any appropriate warning or guidance on the operation of
8
the equipment.
9
(5) Compensation is payable out of money appropriated by the
10
Parliament by another Act.
11
(6) For the purpose of subsection (1):
12
damage, in relation to data, includes damages by erasure of data or
13
addition of other data.
14
133 Copies of seized things to be provided
15
(1) If the authorised officer executing the search warrant or an
16
assisting officer seizes:
17
(a) a document, film, computer file or other thing that can be
18
readily copied; or
19
(b) a device storing information that can be readily copied;
20
the authorised officer or the assisting officer must, if requested to
21
do so by the occupier of the premises or another person who
22
apparently represents the occupier and who is present when the
23
warrant is executed, give a copy of the thing or the information to
24
that person as soon as practicable after the seizure.
25
(2) However, subsection (1) does not apply if:
26
(a) the thing that has been seized was seized under
27
subsection 128(2) or paragraph 128(5)(a); or
28
(b) possession of the document, film, computer file, thing or
29
information by the occupier could constitute an offence.
30
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 134
146
National Integrity Commission Bill 2019
No. , 2019
134 Receipts of things seized under warrant
1
(1) If a thing is seized under a search warrant or moved under
2
subsection 127(2), the authorised officer executing the warrant or
3
an assisting officer must provide a receipt for the thing.
4
(2) If 2 or more things are seized or moved, they may be covered by
5
the one receipt.
6
Subdivision F--Specific provisions about executing a warrant
7
in relation to a person
8
135 Copy of warrant to be shown to person
9
(1) If a search warrant in relation to a person is being executed, the
10
authorised officer executing the warrant or an assisting officer
11
must make a copy of the warrant available to that person.
12
(2) The authorised officer must identify himself or herself to the
13
person being searched.
14
(3) The copy of the warrant need not include the signature of the
15
issuing officer who issued it.
16
136 Conduct of an ordinary search or a frisk search
17
An ordinary search or a frisk search of a person must, if
18
practicable, be conducted by a person of the same sex as the person
19
being searched.
20
Subdivision G--Offences
21
137 Making false statements in warrants
22
A person commits an offence if:
23
(a) the person makes a statement in applying for a search
24
warrant; and
25
(b) the person knows that the statement is false or misleading in
26
a material particular.
27
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Search warrants Division 3
Section 138
No. , 2019
National Integrity Commission Bill 2019
147
Penalty: Imprisonment for 2 years.
1
138 Offence for stating incorrect names in telephone warrants
2
A person commits an offence if:
3
(a) the person states a name of an issuing officer in a document;
4
and
5
(b) the document purports to be a form of search warrant under
6
section 116; and
7
(c) the name is not the name of the issuing officer who issued the
8
search warrant.
9
Penalty: Imprisonment for 2 years.
10
139 Offence for unauthorised form of warrant
11
A person commits an offence if:
12
(a) the person states a matter in a form of search warrant under
13
section 116; and
14
(b) the person knows that the matter departs in a material
15
particular from the form authorised by the issuing officer.
16
Penalty: Imprisonment for 2 years.
17
140 Offence for executing etc. an unauthorised form of warrant
18
A person commits an offence if:
19
(a) the person executes or presents a document to another
20
person; and
21
(b) the document purports to be a form of search warrant under
22
section 116; and
23
(c) the person knows that the document:
24
(i) has not been approved by an issuing officer under that
25
section; or
26
(ii) departs in a material particular from the terms
27
authorised by an issuing officer under that section.
28
Penalty: Imprisonment for 2 years.
29
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 3 Search warrants
Section 141
148
National Integrity Commission Bill 2019
No. , 2019
141 Offence for giving unexecuted form of warrant
1
A person commits an offence if:
2
(a) the person gives an issuing officer a form of search warrant
3
under section 116; and
4
(b) the document is not the form of search warrant that the
5
person executed.
6
Penalty: Imprisonment for 2 years.
7
Subdivision H--Miscellaneous
8
142 Other laws about search, arrest etc. not affected
9
(1) This Division is not intended to limit or exclude the operation of
10
another law of the Commonwealth relating to:
11
(a) the search of persons or premises; or
12
(b) arrest and related matters; or
13
(c) the seizure of things.
14
(2) To avoid doubt, even though another law of the Commonwealth
15
provides power to do one or more of the things referred to in
16
subsection (1), a similar power conferred by this Division may be
17
used despite the existence of the power under the other law.
18
143 Law relating to legal professional privilege not affected
19
This Division does not affect the law relating to legal professional
20
privilege.
21
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Powers of arrest Division 4
Section 144
No. , 2019
National Integrity Commission Bill 2019
149
Division 4--Powers of arrest
1
144 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
Part 6 National Integrity Commissioner's powers in conducting investigations and
public inquiries
Division 5 Authorised officers
Section 145
150
National Integrity Commission Bill 2019
No. , 2019
Division 5--Authorised officers
1
145 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 Commission whom the National
6
Integrity Commissioner considers has suitable qualifications
7
or experience; or
8
(b) a member of the AFP.
9
(3) The National Integrity Commissioner may authorise a person
10
referred to in paragraph (2)(b) only if the Commissioner of the
11
AFP 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
146 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
National Integrity Commissioner's powers in conducting investigations and public
inquiries Part 6
Authorised officers Division 5
Section 146
No. , 2019
National Integrity Commission Bill 2019
151
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 the authorised officer's identity card for inspection
8
by the 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 the
13
authorised officer's identity card for inspection by the
14
person; and
15
(b) the authorised officer fails to comply with the requirement.
16
Offence
17
(6) A person commits an offence if:
18
(a) the person has been issued with an identity card; and
19
(b) the person ceases to be an authorised officer; and
20
(c) the person does not return the identity card to the National
21
Integrity Commissioner immediately after ceasing to be an
22
authorised officer.
23
Penalty: 1 penalty unit.
24
Part 7 Dealing with evidence and information obtained in investigation or public
inquiry
Section 147
152
National Integrity Commission Bill 2019
No. , 2019
Part 7--Dealing with evidence and information
1
obtained in investigation or public inquiry
2
3
147 Evidence of offence or liability to civil penalty
4
Commonwealth offence or civil penalty
5
(1) If, in investigating a corruption issue or conducting a public
6
inquiry, the National Integrity Commissioner obtains:
7
(a) evidence of an offence against a law of the Commonwealth
8
that would be admissible in a prosecution for the offence; or
9
(b) evidence of the contravention of a law of the
10
Commonwealth:
11
(i) in relation to which civil penalty proceedings may be
12
brought; and
13
(ii) that would be admissible in civil penalty proceedings
14
for the contravention;
15
the National Integrity Commissioner must:
16
(c) assemble the evidence; and
17
(d) give the evidence to:
18
(i) the Commonwealth Director of Public Prosecutions; or
19
(ii) another person or authority who is authorised by or
20
under a law of the Commonwealth to prosecute the
21
offence or bring the civil penalty proceedings.
22
State or Territory offence or civil penalty
23
(2) If, in investigating a corruption issue or conducting a public
24
inquiry, the National Integrity Commissioner obtains:
25
(a) evidence of an offence against a law of a State or Territory
26
that would be admissible in a prosecution for the offence; or
27
(b) evidence of the contravention of a law of a State or Territory:
28
(i) in relation to which civil penalty proceedings may be
29
brought; and
30
Dealing with evidence and information obtained in investigation or public inquiry Part
7
Section 148
No. , 2019
National Integrity Commission Bill 2019
153
(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
Note:
See also subsection 94(5).
11
148 Evidence that could be used in confiscation proceedings
12
Commonwealth proceedings
13
(1) If, in investigating a corruption issue or conducting a public
14
inquiry, the National Integrity Commissioner obtains evidence that
15
would be admissible in a proceeding under the Proceeds of Crime
16
Act 1987 or the Proceeds of Crime Act 2002 (other than a criminal
17
prosecution for an offence under that Act), the National Integrity
18
Commissioner must:
19
(a) assemble the evidence; and
20
(b) give the evidence to:
21
(i) the Commissioner of the AFP; or
22
(ii) another person or authority who is authorised by or
23
under a law of the Commonwealth to bring the
24
proceeding.
25
State or Territory proceedings
26
(2) If, in investigating a corruption issue or conducting a public
27
inquiry, the National Integrity Commissioner obtains evidence that
28
would be admissible in a proceeding under a corresponding law
29
within the meaning of the Proceeds of Crime Act 1987 or the
30
Proceeds of Crime Act 2002 (other than a criminal prosecution for
31
an offence under the corresponding law), the National Integrity
32
Commissioner must:
33
Part 7 Dealing with evidence and information obtained in investigation or public
inquiry
Section 149
154
National Integrity Commission Bill 2019
No. , 2019
(a) assemble the evidence; and
1
(b) give the evidence to:
2
(i) the head (however described) of the police force of the
3
State or Territory; or
4
(ii) another person or authority who is authorised by or
5
under a law of the State or Territory to bring the
6
proceeding.
7
149 Evidence of, or information suggesting, wrongful conviction
8
Commonwealth offence
9
(1) If the National Integrity Commissioner:
10
(a) in investigating a corruption issue or conducting a public
11
inquiry, obtains evidence that a person was wrongly
12
convicted of an offence against a law of the Commonwealth;
13
and
14
(b) is satisfied that the evidence is, in all the circumstances, of
15
sufficient force to justify the National Integrity
16
Commissioner's doing so;
17
the National Integrity Commissioner must:
18
(c) bring the evidence to the notice of the Minister; and
19
(d) advise the person that the National Integrity Commissioner
20
has brought the evidence to the notice of the Minister.
21
State or Territory offence
22
(2) If the National Integrity Commissioner:
23
(a) in investigating a corruption issue or conducting a public
24
inquiry, obtains evidence that a person was wrongly
25
convicted of an offence against a law of a State or Territory;
26
and
27
(b) is satisfied that the evidence is, in all the circumstances, of
28
sufficient force to justify the National Integrity
29
Commissioner's doing so;
30
the National Integrity Commissioner must:
31
(c) bring the evidence to the notice of the Minister; and
32
Dealing with evidence and information obtained in investigation or public inquiry Part
7
Section 149
No. , 2019
National Integrity Commission Bill 2019
155
(d) advise the person that the National Integrity Commissioner
1
has brought the evidence to the notice of the Minister.
2
Part 8 Investigations by other Commonwealth agencies
Division 1 Nominated contact for investigations by Commonwealth agencies
Section 150
156
National Integrity Commission Bill 2019
No. , 2019
Part 8--Investigations by other Commonwealth
1
agencies
2
Division 1--Nominated contact for investigations by
3
Commonwealth agencies
4
150 Nominating contact for investigation
5
(1) If the National Integrity Commissioner decides to deal with a
6
corruption issue by:
7
(a) referring the corruption issue to a Commonwealth agency for
8
investigation; or
9
(b) managing or overseeing an investigation of the corruption
10
issue by a Commonwealth agency;
11
the head of the agency may nominate a representative of the
12
agency as the contact for the investigation.
13
Note:
If the head of the agency does not nominate someone under this
14
subsection, the head of the agency is the nominated contact for the
15
investigation (see the definition of nominated contact in section 8).
16
(2) The nomination must be made by notice in writing to the National
17
Integrity Commissioner.
18
Investigations by other Commonwealth agencies Part 8
Managing or overseeing investigations by Commonwealth agencies Division 2
Section 151
No. , 2019
National Integrity Commission Bill 2019
157
Division 2--Managing or overseeing investigations by
1
Commonwealth agencies
2
151 Managing an investigation
3
(1) The National Integrity Commissioner manages an investigation of
4
a corruption issue by a Commonwealth agency by giving the
5
agency's nominated contact for the investigation detailed guidance
6
about the planning, and carrying out, of the investigation.
7
Note:
The National Integrity Commissioner can request the agency to
8
provide information about the investigation under sections 153 and
9
154.
10
(2) The head of the agency must ensure that:
11
(a) the agency adheres to the National Integrity Commissioner's
12
detailed guidance in planning and carrying out the
13
investigation; and
14
(b) the agency cooperates with the National Integrity
15
Commissioner in relation to the planning and carrying out of
16
the investigation.
17
152 Overseeing an investigation
18
(1) The National Integrity Commissioner oversees an investigation of
19
a corruption issue by a Commonwealth agency by giving the
20
agency's nominated contact for the investigation general guidance
21
about the planning, and carrying out, of the investigation.
22
(2) The head of the agency must ensure that the agency follows the
23
National Integrity Commissioner's general guidance in relation to
24
the planning and carrying out of the investigation.
25
Part 8 Investigations by other Commonwealth agencies
Division 3 Reporting
Section 153
158
National Integrity Commission Bill 2019
No. , 2019
Division 3--Reporting
1
Subdivision A--Reporting by Commonwealth agencies during
2
investigations
3
153 National Integrity Commissioner may request individual
4
progress report
5
(1) If a Commonwealth agency is investigating a corruption issue, the
6
National Integrity Commissioner may request:
7
(a) if the National Integrity Commissioner referred the
8
corruption issue to the agency for investigation or is
9
managing or overseeing the investigation--the nominated
10
contact for the investigation; or
11
(b) in any other case--the head of the agency;
12
to give him or her a progress report on the investigation.
13
(2) The request:
14
(a) must be in writing; and
15
(b) must specify the date by which the progress report must be
16
given to the National Integrity Commissioner; and
17
(c) may specify particular matters in relation to the investigation
18
that the report is to address.
19
The date specified under paragraph (b) must be at least 7 days after
20
the request is made.
21
(3) The nominated contact, or the head of the agency, must comply
22
with the request.
23
154 National Integrity Commissioner may request periodic progress
24
reports
25
(1) If a Commonwealth agency is investigating a corruption issue, the
26
National Integrity Commissioner may request:
27
(a) if the National Integrity Commissioner referred the
28
corruption issue to the agency for investigation or is
29
Investigations by other Commonwealth agencies Part 8
Reporting Division 3
Section 155
No. , 2019
National Integrity Commission Bill 2019
159
managing or overseeing the investigation--the nominated
1
contact for the investigation; or
2
(b) in any other case--the head of the agency;
3
to give him or her periodic progress reports on the investigation.
4
(2) The request:
5
(a) must be in writing; and
6
(b) must specify the frequency with which the reports are to be
7
given and the periods to which they are to relate; and
8
(c) may specify particular matters in relation to the investigation
9
that the reports are to address.
10
(3) The nominated contact, or the head of the agency, must comply
11
with the request.
12
Subdivision B--Reporting by Commonwealth agencies at end
13
of investigations
14
155 Final report on investigation
15
(1) After a Commonwealth agency completes:
16
(a) an investigation of a corruption issue; or
17
(b) a further investigation of a corruption issue recommended by
18
the National Integrity Commissioner under section 156;
19
the head of the agency must cause a report on the investigation to
20
be prepared.
21
(2) The report:
22
(a) must set out:
23
(i) the agency's findings on the corruption issue; and
24
(ii) the evidence and other material on which those findings
25
are based; and
26
(iii) what action (if any) the head of the agency has taken, or
27
proposes to take, to address those findings; and
28
(iv) if action is to be taken--the reasons for the proposed
29
action; and
30
Part 8 Investigations by other Commonwealth agencies
Division 3 Reporting
Section 156
160
National Integrity Commission Bill 2019
No. , 2019
(b) if the agency is the AFP and the corruption issue relates to
1
another Commonwealth agency--may also set out
2
recommendations relating to the other agency.
3
(3) The head of the agency must give a copy of the report to the
4
National Integrity Commissioner as soon as reasonably practicable
5
after the investigation or further investigation is completed.
6
156 National Integrity Commissioner may comment on final report
7
National Integrity Commissioner may make comments or
8
recommendations
9
(1) The National Integrity Commissioner may, if he or she thinks fit,
10
make comments or recommendations on any matter relating to or
11
arising out of:
12
(a) a report given to the National Integrity Commissioner by the
13
head of a Commonwealth agency under section 155; or
14
(b) the investigation to which the report relates.
15
Note:
Under section 56, the National Integrity Commissioner could, after
16
receiving the report, reconsider how the corruption issue should be
17
dealt with.
18
(2) The National Integrity Commissioner must put any such comments
19
or recommendations in writing and give them to the head of the
20
Commonwealth agency.
21
(3) If:
22
(a) the Commonwealth agency that gives the report to the
23
National Integrity Commissioner is the AFP; and
24
(b) the corruption issue relates to another Commonwealth
25
agency;
26
the National Integrity Commissioner must also give the comments
27
or recommendations to the head of that other agency.
28
(4) Without limiting subsection (1), the National Integrity
29
Commissioner may recommend that:
30
(a) the head of a Commonwealth agency take appropriate action
31
with a view to having a person charged with a criminal
32
offence; or
33
Investigations by other Commonwealth agencies Part 8
Reporting Division 3
Section 156
No. , 2019
National Integrity Commission Bill 2019
161
(b) the head of a Commonwealth agency take appropriate action:
1
(i) to initiate disciplinary proceedings against a person; or
2
(ii) to determine whether a person's employment or
3
appointment should be terminated; or
4
(c) the head of a Commonwealth agency that gave the report to
5
the National Integrity Commissioner investigate the
6
corruption issue further.
7
Note:
Under section 56, the National Integrity Commissioner could, instead
8
of recommending that the agency investigate the corruption issue
9
further, decide that the corruption issue should be dealt with in another
10
way.
11
Request for details of action to be taken
12
(5) The National Integrity Commissioner may request the head of the
13
Commonwealth agency to which the National Integrity
14
Commissioner's recommendations are directed to give the National
15
Integrity Commissioner, within a specified time, details of any
16
action that the head of the agency proposes to take with respect to
17
the recommendations.
18
(6) The head of the agency must comply with the request.
19
(7) If the National Integrity Commissioner is not satisfied with the
20
response of the head of the agency to the request, the National
21
Integrity Commissioner may refer to the relevant Minister for the
22
agency:
23
(a) the National Integrity Commissioner's recommendation and
24
the reasons for that recommendation; and
25
(b) the response of the head of the agency to the
26
recommendation; and
27
(c) the National Integrity Commissioner's reasons for not being
28
satisfied with that response.
29
(8) If the National Integrity Commissioner refers material to a Minister
30
under subsection (7), the National Integrity Commissioner may
31
also send a copy of that material to:
32
(a) the President of the Senate for presentation to the Senate; and
33
(b) the Speaker of the House of Representatives for presentation
34
to the House of Representatives.
35
Part 8 Investigations by other Commonwealth agencies
Division 3 Reporting
Section 157
162
National Integrity Commission Bill 2019
No. , 2019
Sensitive information
1
(9) The National Integrity Commissioner may exclude information
2
from the copy of the material sent under subsection (8) if the
3
National Integrity Commissioner is satisfied that:
4
(a) the information is sensitive information; and
5
(b) it is desirable in the circumstances to exclude the information
6
from the material sent.
7
(10) In deciding whether to exclude information from the copy of the
8
material sent under subsection (8), the National Integrity
9
Commissioner must seek to achieve an appropriate balance
10
between:
11
(a) the public interest that would be served by including the
12
information in the material sent; and
13
(b) the prejudicial consequences that might result from including
14
the information in the material sent.
15
(11) After the material is presented to the Parliament, the National
16
Integrity Commissioner may discuss any matter to which the
17
material relates with the head of the agency for the purpose of
18
resolving the matter.
19
157 Advising person who referred corruption issue of outcome of the
20
investigation
21
(1) The head of a Commonwealth agency may advise a person (or a
22
representative nominated by the person) of the outcome of the
23
agency's investigation of a corruption issue:
24
(a) raised by the person in a referral under section 42; and
25
(b) referred to the agency under paragraph 46(1)(b) or (c).
26
(2) One way of advising the person (or the representative) is to give a
27
copy of all or part of any report prepared under section 155 in
28
relation to the investigation.
29
Investigations by other Commonwealth agencies Part 8
Reporting Division 3
Section 158
No. , 2019
National Integrity Commission Bill 2019
163
158 Advising person whose conduct is investigated of outcome of the
1
investigation
2
(1) If a Commonwealth agency investigates a corruption issue that
3
relates to a person who is, or has been, an employee or officer of
4
the agency, the head of the agency may advise the person of the
5
outcome of the investigation.
6
(2) Without limiting subsection (1), the head of the agency may advise
7
the person by giving the person a copy of the whole or a part of the
8
report prepared in relation to the investigation under section 155.
9
Part 8 Investigations by other Commonwealth agencies
Division 4 National Integrity Commissioner to pass on information relevant to agency
Section 159
164
National Integrity Commission Bill 2019
No. , 2019
Division 4--National Integrity Commissioner to pass on
1
information relevant to agency
2
159 National Integrity Commissioner to pass on information
3
relevant to agency investigation
4
If:
5
(a) a Commonwealth agency is investigating a corruption issue;
6
and
7
(b) either:
8
(i) the National Integrity Commissioner referred the
9
corruption issue to the agency for investigation; or
10
(ii) the head of the agency referred corruption issue to the
11
National Integrity Commissioner under section 42; and
12
(c) the National Integrity Commissioner becomes aware of
13
information that is relevant to the corruption issue; and
14
(d) the head of the agency does not already have the information;
15
the National Integrity Commissioner must give the information to
16
the head of the agency.
17
Whistleblower Protection Part 9
Disclosures, information or requests Division 1
Section 160
No. , 2019
National Integrity Commission Bill 2019
165
Part 9--Whistleblower Protection
1
Division 1--Disclosures, information or requests
2
160 Receipt of disclosures, information or requests
3
(1) A person may:
4
(a) make, or provide information about, a disclosure of
5
wrongdoing, to; or
6
(b) request information, advice, guidance or assistance in relation
7
to a disclosure of wrongdoing or a whistleblower protection
8
issue, from;
9
the Whistleblower Protection Commissioner.
10
(2) Without limiting subsection (1):
11
(a) the person may make the disclosure or request, or provide the
12
information on behalf of:
13
(i) another person; or
14
(ii) a Commonwealth agency; or
15
(iii) a body or association of persons; and
16
(b) the person may make the disclosure or request, or provide the
17
information anonymously; and
18
(c) the person may make the disclosure or request, or provide the
19
information either orally or in writing.
20
(3) If the person who makes the disclosure or request, or provides the
21
information, orally, the Whistleblower Protection Commissioner
22
may require the person to put the disclosure, request, or
23
information in writing.
24
(4) If the person is asked to put the disclosure, request, or information
25
in writing under subsection (3), the Whistleblower Protection
26
Commissioner may refuse to deal further with the disclosure,
27
request or information until it is put in writing.
28
(5) If a government agency:
29
Part 9 Whistleblower Protection
Division 1 Disclosures, information or requests
Section 161
166
National Integrity Commission Bill 2019
No. , 2019
(a) decides, under relevant legislation, to refer a disclosure,
1
request, or information to the Whistleblower Protection
2
Commissioner; or
3
(b) is required, under relevant legislation, to refer a disclosure,
4
request, or information to the Whistleblower Protection
5
Commissioner;
6
the person who made the disclosure or request, or provided the
7
information, to the agency is taken to have made the disclosure or
8
request, or provided the information to the Whistleblower
9
Protection Commissioner under this section.
10
(6) To avoid doubt, a disclosure of wrongdoing may include or consist
11
of an allegation, or information, that raises a corruption issue, and
12
to which the definition of disclosure of wrongdoing in this Act
13
also applies.
14
161 Person making disclosure or request under section 160 may
15
elect to be kept informed
16
(1) If a person makes a disclosure or request, or provides information
17
to the Whistleblower Protection Commissioner under section 160,
18
the Whistleblower Protection Commissioner must ask the person to
19
elect whether or not to be kept informed of the action taken in
20
relation to the disclosure, request or information.
21
(2) Subsection (1) does not apply if the person makes the disclosure or
22
request, or provides the information, anonymously.
23
(3) If the person fails to make an election when asked to do so, the
24
person is taken to have elected not to be kept informed of the
25
action taken in relation to the disclosure, request or information.
26
(4) If the person elects to be kept informed of the action taken in
27
relation to the disclosure, request or information, the person may
28
revoke the election at any time by notice to the Whistleblower
29
Protection Commissioner.
30
Whistleblower Protection Part 9
Disclosures, information or requests Division 1
Section 162
No. , 2019
National Integrity Commission Bill 2019
167
162 Public officials must refer whistleblower protection issues
1
(1) As soon as practicable after a public official becomes aware of an
2
allegation, or information, that raises a whistleblower protection
3
issue, the public official must:
4
(a) refer the allegation or information to the Whistleblower
5
Protection Commissioner under section 160; or
6
(b) if the public official is an employee of a Commonwealth
7
agency other than the head of the agency--notify the head of
8
the agency of the allegation or information.
9
Note:
The head of a Commonwealth agency is a public official.
10
(2) Subsection (1) does not apply if the public official:
11
(a) has already taken action referred to in subsection (1) in
12
relation to the allegation or information; or
13
(b) has reasonable grounds to believe that the Whistleblower
14
Protection Commissioner is already aware of the allegation
15
or information.
16
(3) Action taken under subsection (3) by the head of a Commonwealth
17
agency must be taken in accordance with any direction, guidance
18
or agreement under section 163 that applies to the agency.
19
163 Whistleblower Protection Commissioner may enter into
20
agreements etc. with head of Commonwealth agency
21
(1) The Whistleblower Protection Commissioner may issue directions
22
or guidance to, or enter into an agreement with, the head of a
23
Commonwealth agency in relation to either or both of the
24
following matters:
25
(a) the level of detail required to refer an allegation or
26
information to the Whistleblower Protection Commissioner;
27
(b) the way in which information or documents in relation to an
28
allegation or information may be given to the Whistleblower
29
Protection Commissioner (whether for the purpose of
30
referring an allegation or information to the Whistleblower
31
Protection Commissioner or otherwise).
32
Part 9 Whistleblower Protection
Division 1 Disclosures, information or requests
Section 164
168
National Integrity Commission Bill 2019
No. , 2019
(2) The Whistleblower Protection Commissioner may revoke the
1
direction, guidance or agreement by written notice given to the
2
head of the agency. The revocation takes effect on a day specified
3
in the notice, which must be at least 14 days after the day it is
4
given.
5
(3) Without limiting subsection (1), the direction, guidance or
6
agreement may set out how it may be varied and other ways how it
7
may be revoked.
8
(4) Before issuing directions or guidance to, or entering into an
9
agreement with, the head of a Commonwealth agency for the
10
purposes of this section, the Whistleblower Protection
11
Commissioner must consult with:
12
(a) the National Integrity Commissioner; and
13
(b) the Commonwealth Ombudsman; and
14
(c) the Australian Public Service Commission; and
15
(d) the Australian Securities and Investments Commission; and
16
(e) any other Commonwealth agency with responsibility for
17
issuing directions or guidance, or entering into agreements
18
with, the heads of Commonwealth agencies with respect to
19
the receipt, referral or investigation of disclosures of
20
wrongdoing or whistleblower protection issues.
21
(5) Directions, guidance or agreements for the purposes of this section
22
may be included in directions, guidance or agreements issued or
23
entered into by the National Integrity Commissioner for the
24
purposes of section 45.
25
164 General information, advice, guidance and assistance
26
(1) The Whistleblower Protection Commissioner is to provide general
27
information, advice, guidance and assistance to persons who:
28
(a) make, or provide information about, disclosures of
29
wrongdoing; or
30
(b) request information, advice, guidance or assistance in relation
31
to a disclosure of wrongdoing or a whistleblower protection
32
issue; or
33
Whistleblower Protection Part 9
Disclosures, information or requests Division 1
Section 164
No. , 2019
National Integrity Commission Bill 2019
169
(c) are responsible for whistleblower protection responsibilities
1
in any Commonwealth agency or any other body in relation
2
to whom a disclosure of wrongdoing has been made or can be
3
made; or
4
(d) are responsible for investigating or otherwise dealing with
5
disclosures of wrongdoing.
6
(2) In determining the nature of general information, advice, guidance
7
and assistance to be provided under this Part, the Whistleblower
8
Protection Commissioner must consult with:
9
(a) the National Integrity Commissioner; and
10
(b) the Commonwealth Ombudsman; and
11
(c) the Australian Public Service Commission; and
12
(d) the Australian Securities and Investments Commission; and
13
(e) a body or bodies representing the interests of employers in
14
the public and private sectors; and
15
(f) a body or bodies representing the interests of employees or
16
workers in the public and private sectors; and
17
(g) one or more civil society organisations representing persons
18
with experience of making disclosures of wrongdoing or with
19
expertise in whistleblower protection; and
20
(h) any other government agencies with responsibility for issuing
21
directions or guidance to other agencies or organisations with
22
respect to whistleblower protection issues; and
23
(i) any other person or body that the Whistleblower Protection
24
Commissioner deems fit.
25
(3) In making arrangements and giving direction for the provision of
26
general information, advice, guidance and assistance to persons
27
who:
28
(a) make, or provide information about, disclosures of
29
wrongdoing; or
30
(b) request information, advice, guidance or assistance in relation
31
to a disclosure of wrongdoing or a whistleblower protection
32
issue;
33
the Whistleblower Protection Commissioner must ensure that the
34
relevant staff members of the Commission have appropriate
35
specialist training and experience in the provision of legal,
36
Part 9 Whistleblower Protection
Division 1 Disclosures, information or requests
Section 164
170
National Integrity Commission Bill 2019
No. , 2019
administrative, investigative, psychological and workplace-related
1
advice, guidance and support.
2
Whistleblower Protection Part 9
How Whistleblower Protection Commissioner deals with disclosures of wrongdoing and
whistleblower protection issues Division 2
Section 165
No. , 2019
National Integrity Commission Bill 2019
171
Division 2--How Whistleblower Protection Commissioner
1
deals with disclosures of wrongdoing and
2
whistleblower protection issues
3
Subdivision A--General
4
165 How Whistleblower Protection Commissioner may deal with
5
disclosures of wrongdoing
6
(1) The Whistleblower Protection Commissioner may deal with a
7
disclosure of wrongdoing, or information about a disclosure of
8
wrongdoing, in any of the following ways:
9
(a) if the disclosure of wrongdoing relates to a Commonwealth
10
agency--by referring the disclosure or information to the
11
agency for investigation;
12
(b) if the disclosure of wrongdoing relates to a matter that is
13
within the functions and powers of a government agency to
14
investigate or otherwise deal with--by referring the
15
disclosure or information to the agency for investigation or to
16
be otherwise dealt with.
17
(2) If a disclosure of wrongdoing includes an allegation or information
18
that raises a corruption issue, that allegation or information must,
19
unless it concerns the National Integrity Commissioner, be referred
20
to the National Integrity Commissioner under section 42.
21
(3) If the Whistleblower Protection Commissioner refers a disclosure
22
of wrongdoing, or information about a disclosure to another
23
government agency, the Whistleblower Protection Commissioner
24
may, for the purpose of ensuring that whistleblower protection
25
responsibilities are fulfilled:
26
(a) monitor the way in which the agency investigates or deals
27
with the disclosure or information; and
28
(b) provide advice, guidance or assistance to the person who
29
made the disclosure or provided the information, or any
30
related person; and
31
Part 9 Whistleblower Protection
Division 2 How Whistleblower Protection Commissioner deals with disclosures of
wrongdoing and whistleblower protection issues
Section 166
172
National Integrity Commission Bill 2019
No. , 2019
(c) provide advice, guidance or assistance to the agency or any
1
other person with respect to the way in which the agency
2
investigates or deals with the disclosure or information.
3
Requesting information to assist in monitoring and guidance
4
(4) For the purposes of subsection (1), the Whistleblower Protection
5
Commissioner may request the head of any government agency to
6
give the Whistleblower Protection Commissioner any information
7
specified in the request.
8
(5) The head of a Commonwealth agency must comply with the
9
request.
10
166 How Whistleblower Protection Commissioner may deal with
11
whistleblower protection issues
12
(1) The Whistleblower Protection Commissioner may deal with an
13
allegation, or information that raises a whistleblower protection
14
issue in any of the following ways:
15
(a) by investigating the whistleblower protection issue;
16
(b) if the whistleblower protection issue relates to a
17
Commonwealth agency--by referring the whistleblower
18
protection issue to the agency for investigation and:
19
(i) managing the investigation; or
20
(ii) overseeing the investigation; or
21
(iii) neither managing nor overseeing the investigation;
22
(c) if the whistleblower protection issue relates to a matter that is
23
within the functions and powers of a government agency to
24
investigate or otherwise deal with--by referring the
25
whistleblower protection issue to the agency for investigation
26
or to be otherwise dealt with and:
27
(i) managing the investigation; or
28
(ii) overseeing the investigation; or
29
(iii) neither managing nor overseeing the investigation;
30
(d) by managing an investigation of the whistleblower protection
31
issue that is being conducted by a Commonwealth agency;
32
Whistleblower Protection Part 9
How Whistleblower Protection Commissioner deals with disclosures of wrongdoing and
whistleblower protection issues Division 2
Section 167
No. , 2019
National Integrity Commission Bill 2019
173
(e) by overseeing an investigation of the whistleblower
1
protection issue that is being conducted by a Commonwealth
2
agency.
3
(2) The Whistleblower Protection Commissioner may investigate the
4
whistleblower protection issue under paragraph (1)(a) either alone
5
or jointly with another government agency with appropriate
6
functions or powers for the purpose.
7
(3) The Whistleblower Protection Commissioner may not deal with a
8
disclosure of wrongdoing or information relating to a disclosure in
9
any of the ways provided for in this section, unless the disclosure
10
or information involves a whistleblower protection issue.
11
167 Criteria for deciding how to deal with a disclosure of
12
wrongdoing or whistleblower protection issue
13
(1) The Whistleblower Protection Commissioner must have regard to
14
the matters set out in subsection (2) in deciding:
15
(a) how to deal with a disclosure of wrongdoing, or
16
whistleblower protection issue; or
17
(b) whether to take no further action in relation to a disclosure of
18
wrongdoing, or whistleblower protection issue.
19
(2) The matters to which the Whistleblower Protection Commissioner
20
must have regard are the following:
21
(a) the need to ensure that disclosures of wrongdoing and
22
whistleblower protection issues are fully investigated;
23
(b) the rights and obligations of any other agency to investigate a
24
the disclosure of wrongdoing or the whistleblower protection
25
issue;
26
(c) the rights and obligations of any person who makes or
27
provides information in relation to the disclosure of
28
wrongdoing or raises the whistleblower protection issue,
29
including any need to protect the person's identity or
30
confidentiality or to protect the person from reprisal or
31
detrimental action;
32
(d) if a joint investigation of the whistleblower protection issue
33
by the Whistleblower Protection Commissioner and another
34
Part 9 Whistleblower Protection
Division 2 How Whistleblower Protection Commissioner deals with disclosures of
wrongdoing and whistleblower protection issues
Section 168
174
National Integrity Commission Bill 2019
No. , 2019
agency is being considered--the extent to which the other
1
agency is able to cooperate in the investigation;
2
(e) the resources that are available to any other agency to
3
investigate the whistleblower protection issue;
4
(f) the need to ensure a balance between:
5
(i) the Whistleblower Protection Commissioner's role in
6
dealing with whistleblower protection issues
7
(particularly in dealing with significant whistleblower
8
protection issues); and
9
(ii) ensuring that the heads of Commonwealth agencies take
10
responsibility for managing their agencies, or for
11
investigating and dealing with whistleblower protection
12
issues;
13
(g) the likely significance of the whistleblower protection issue
14
for any person to whom it relates, for any agency and for the
15
Commonwealth.
16
(3) Subsection (2) does not limit the matters to which the
17
Whistleblower Protection Commissioner may have regard.
18
168 Dealing with multiple whistleblower protection issues
19
(1) The Whistleblower Protection Commissioner may, in the
20
Whistleblower Protection Commissioner's discretion, deal with a
21
number of whistleblower protection issues together (whether or not
22
they are raised by the same allegation or information).
23
(2) Without limiting subsection (1), if an allegation, or information,
24
raises a number of whistleblower protection issues, the
25
Whistleblower Protection Commissioner:
26
(a) may deal with some or all of those whistleblower protection
27
issues together; and
28
(b) may deal with some or all of those whistleblower protection
29
issues separately.
30
(3) Without limiting subsection (1), the Whistleblower Protection
31
Commissioner may prepare a single report in relation to a number
32
of whistleblower protection issues.
33
Whistleblower Protection Part 9
How Whistleblower Protection Commissioner deals with disclosures of wrongdoing and
whistleblower protection issues Division 2
Section 169
No. , 2019
National Integrity Commission Bill 2019
175
Subdivision B--Whistleblower Protection Commissioner
1
dealing with referred whistleblower protection issues
2
169 Whistleblower Protection Commissioner must make a decision
3
(1) If an allegation, or information, that raises a whistleblower
4
protection issue is referred to the Whistleblower Protection
5
Commissioner under subsection 160(5), the Whistleblower
6
Protection Commissioner must decide:
7
(a) to deal with the whistleblower protection issue in one of the
8
ways referred to in subsection 166(1); or
9
(b) to take no further action in relation to the whistleblower
10
protection issue.
11
Requesting information to assist in making the decision
12
(2) For the purposes of making a decision under subsection (1), the
13
Whistleblower Protection Commissioner may request the head of
14
any government agency to give the Whistleblower Protection
15
Commissioner the information specified in the request.
16
(3) The head of a Commonwealth agency must comply with the
17
request.
18
(4) Subsections (2) and (3) do not limit the information to which the
19
Whistleblower Protection Commissioner may have regard in
20
making a decision under subsection (1).
21
Direction not to investigate
22
(5) If the whistleblower protection issue relates to a Commonwealth
23
agency and the Whistleblower Protection Commissioner decides to
24
deal with the whistleblower protection issue in one of the ways
25
referred to in subsection 166(1), the Whistleblower Protection
26
Commissioner may direct the head of the agency that the agency is
27
not to investigate the whistleblower protection issue.
28
(6) If a direction under subsection (5) is given in writing, the direction
29
is not a legislative instrument.
30
Part 9 Whistleblower Protection
Division 2 How Whistleblower Protection Commissioner deals with disclosures of
wrongdoing and whistleblower protection issues
Section 170
176
National Integrity Commission Bill 2019
No. , 2019
Deciding to take no further action
1
(7) The Whistleblower Protection Commissioner may decide under
2
subsection (1) to take no further action in relation to the
3
whistleblower protection issue only if the Whistleblower
4
Protection Commissioner is satisfied that:
5
(a) the whistleblower protection issue is already being, or will
6
be, investigated by another government agency; or
7
(b) the referral of the allegation, or information, that raises the
8
whistleblower protection issue is frivolous or vexatious; or
9
(c) the whistleblower protection issue has been, is or will be, the
10
subject of proceedings before a court or an application to an
11
industrial, civil or administrative body; or
12
(d) investigation of the whistleblower protection issue is not
13
warranted having regard to all the circumstances.
14
(8) If the whistleblower protection issue relates to a Commonwealth
15
agency, the Whistleblower Protection Commissioner must advise
16
the head of the agency of a decision under subsection (1) to take no
17
further action in relation to the whistleblower protection issue. That
18
advice must be given:
19
(a) in writing; and
20
(b) as soon as reasonably practicable after the decision is made.
21
(9) This Act continues to apply to the head of a Commonwealth
22
agency given advice under subsection (8), in relation to the
23
whistleblower protection issue unless the Whistleblower Protection
24
Commissioner advises otherwise:
25
(a) in the advice given under subsection (8); or
26
(b) in a later written advice given to the head of that agency.
27
170 Advising person who raises whistleblower protection issue of
28
decision about how to deal with issue
29
Whistleblower Protection Commissioner to advise person who
30
raises whistleblower protection issue
31
(1) If a person:
32
Whistleblower Protection Part 9
How Whistleblower Protection Commissioner deals with disclosures of wrongdoing and
whistleblower protection issues Division 2
Section 170
No. , 2019
National Integrity Commission Bill 2019
177
(a) makes an allegation, or provides information, that raises a
1
whistleblower protection issue to the Whistleblower
2
Protection Commissioner under section 160; and
3
(b) elects under section 161 to be kept informed of the action
4
taken in relation to the whistleblower protection issue;
5
the Whistleblower Protection Commissioner must advise the
6
person of:
7
(c) the Whistleblower Protection Commissioner's decision under
8
section 169 in relation to the whistleblower protection issue;
9
and
10
(d) any decision the Whistleblower Protection Commissioner
11
makes under section 175 on a reconsideration of how the
12
whistleblower protection issue should be dealt with.
13
Form and timing of advice
14
(2) The Whistleblower Protection Commissioner must advise the
15
person of the decision:
16
(a) in writing; and
17
(b) as soon as reasonably practicable after the decision is made.
18
Exception
19
(3) However, the Whistleblower Protection Commissioner need not
20
advise the person if the Whistleblower Protection Commissioner is
21
satisfied that doing so is likely to prejudice:
22
(a) the investigation of the whistleblower protection issue or any
23
other investigation; or
24
(b) protection of the identity or confidentiality of any person who
25
referred or provided information in relation to the
26
whistleblower protection issue, or protection of such a person
27
from reprisal or detrimental action; or
28
(c) any action taken as a result of an investigation referred to in
29
paragraph (a).
30
Advice to nominated person or office holder
31
(4) If:
32
Part 9 Whistleblower Protection
Division 2 How Whistleblower Protection Commissioner deals with disclosures of
wrongdoing and whistleblower protection issues
Section 171
178
National Integrity Commission Bill 2019
No. , 2019
(a) a person refers an allegation, or information, that raises a
1
whistleblower protection issue to the Whistleblower
2
Protection Commissioner on 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 Whistleblower Protection
12
Commissioner to receive communications from the
13
Whistleblower Protection Commissioner;
14
the Whistleblower Protection Commissioner must give the advice
15
required by subsection (1) to the person nominated or the person
16
for the time being holding the office nominated.
17
171 Advising person to whom referred whistleblower protection
18
issue relates of decision about how to deal with issue
19
If the Whistleblower Protection Commissioner makes a decision
20
under section 169 in relation to a referred whistleblower protection
21
issue that relates to a person, the Whistleblower Protection
22
Commissioner may advise the person of the Whistleblower
23
Protection Commissioner's decision.
24
Whistleblower Protection Part 9
How Whistleblower Protection Commissioner deals with disclosures of wrongdoing and
whistleblower protection issues Division 2
Section 172
No. , 2019
National Integrity Commission Bill 2019
179
Subdivision C--Whistleblower Protection Commissioner
1
dealing with whistleblower protection issues on own
2
initiative
3
172 Whistleblower Protection Commissioner may deal with
4
whistleblower protection issues on own initiative
5
Whistleblower Protection Commissioner may decide to deal with a
6
whistleblower protection issue
7
(1) If the Whistleblower Protection Commissioner becomes aware of
8
an allegation, or information, that raises a whistleblower protection
9
issue, the Whistleblower Protection Commissioner may, on the
10
Whistleblower Protection Commissioner's own initiative, deal with
11
the whistleblower protection issue in one of the ways referred to in
12
subsection 166(1).
13
(2) Subsection (1) does not apply if the Whistleblower Protection
14
Commissioner becomes aware of the allegation or information
15
because of action taken under Division 1 of this Part.
16
Requesting information to assist in making the decision
17
(3) For the purposes of making a decision under subsection (1), the
18
Whistleblower Protection Commissioner may request the head of
19
any Commonwealth agency to give the Whistleblower Protection
20
Commissioner the information specified in the request.
21
(4) The head of the Commonwealth agency must comply with the
22
request.
23
(5) Subsection (3) does not limit the information to which the
24
Whistleblower Protection Commissioner may have regard in
25
making a decision under subsection (1).
26
Direction not to investigate
27
(6) If the whistleblower protection issue relates to a Commonwealth
28
agency and the Whistleblower Protection Commissioner decides to
29
deal with the whistleblower protection issue in one of the ways
30
Part 9 Whistleblower Protection
Division 2 How Whistleblower Protection Commissioner deals with disclosures of
wrongdoing and whistleblower protection issues
Section 173
180
National Integrity Commission Bill 2019
No. , 2019
referred to in subsection 166(1), the Whistleblower Protection
1
Commissioner may direct the head of the agency that the agency is
2
not to investigate the whistleblower protection issue.
3
(7) If a direction under subsection (6) is given in writing, the direction
4
is not a legislative instrument.
5
Becoming aware of another whistleblower protection issue
6
(8) Without limiting subsection (1), if the Whistleblower Protection
7
Commissioner:
8
(a) is investigating, or inquiring into, a particular whistleblower
9
protection issue; and
10
(b) in the course of doing so, becomes aware of an allegation, or
11
information, that raises another whistleblower protection
12
issue;
13
the Whistleblower Protection Commissioner may deal with that
14
other whistleblower protection issue in one of the ways referred to
15
in subsection 166(1).
16
173 Advising head of Commonwealth agency of decision to deal with
17
whistleblower protection issue on own initiative
18
Application of section
19
(1) This section applies if:
20
(a) the Whistleblower Protection Commissioner decides, on the
21
Whistleblower Protection Commissioner's own initiative, to
22
deal with a whistleblower protection issue in one of the ways
23
referred to in subsection 166(1); and
24
(b) the whistleblower protection issue relates to the conduct of a
25
person who is an employee of a Commonwealth agency
26
(other than the head of the agency).
27
Advising head of Commonwealth agency
28
(2) The Whistleblower Protection Commissioner must advise the head
29
of that Commonwealth agency of:
30
Whistleblower Protection Part 9
How Whistleblower Protection Commissioner deals with disclosures of wrongdoing and
whistleblower protection issues Division 2
Section 174
No. , 2019
National Integrity Commission Bill 2019
181
(a) the Whistleblower Protection Commissioner's decision to
1
deal with the whistleblower protection issue in that way; and
2
(b) any decision the Whistleblower Protection Commissioner
3
makes under section 175 on a reconsideration of how the
4
whistleblower protection issue should be dealt with.
5
Form and timing of advice
6
(3) The Whistleblower Protection Commissioner must advise the head
7
of the Commonwealth agency of the decision:
8
(a) in writing; and
9
(b) as soon as reasonably practicable after the decision is made.
10
Exception
11
(4) However, the Whistleblower Protection Commissioner need not
12
advise the head of the Commonwealth agency if doing so would be
13
likely to prejudice:
14
(a) the investigation of the whistleblower protection issue or
15
another corruption investigation; or
16
(b) any action taken as a result of an investigation referred to in
17
paragraph (a).
18
174 Advising person of decision to deal with whistleblower
19
protection issue on own initiative
20
If:
21
(a) the Whistleblower Protection Commissioner decides, on the
22
Whistleblower Protection Commissioner's own initiative, to
23
deal with a whistleblower protection issue in one of the ways
24
referred to in subsection 166(1); and
25
(b) the whistleblower protection issue relates to a person who is,
26
or has been, a public official;
27
the Whistleblower Protection Commissioner may advise the person
28
of:
29
(c) the Whistleblower Protection Commissioner's decision to
30
deal with the whistleblower protection issue in that way; and
31
Part 9 Whistleblower Protection
Division 2 How Whistleblower Protection Commissioner deals with disclosures of
wrongdoing and whistleblower protection issues
Section 175
182
National Integrity Commission Bill 2019
No. , 2019
(d) any decision the Whistleblower Protection Commissioner
1
makes under section 175 on a reconsideration of how the
2
whistleblower protection issue should be dealt with.
3
Subdivision D--Reconsidering how to deal with a
4
whistleblower protection issue
5
175 Reconsidering how to deal with a whistleblower protection issue
6
(1) The Whistleblower Protection Commissioner may, at any time,
7
reconsider how a particular whistleblower protection issue should
8
be dealt with.
9
(2) On that reconsideration, the Whistleblower Protection
10
Commissioner may:
11
(a) if the whistleblower protection issue is not being dealt with in
12
one of the ways referred to in subsection 166(1)--decide to
13
deal with the whistleblower protection issue in accordance
14
with one of the ways referred to in that subsection; or
15
(b) if the whistleblower protection issue is being dealt with in
16
one of the ways referred to in subsection 166(1)--decide to
17
deal with the whistleblower protection issue in another of the
18
ways referred to in that subsection, or to take no further
19
action in relation to the whistleblower protection issue.
20
(3) The Whistleblower Protection Commissioner may decide under
21
subsection (2) to take no further action in relation to the
22
whistleblower protection issue only if the Whistleblower
23
Protection Commissioner is satisfied that:
24
(a) the whistleblower protection issue is already being, or will
25
be, investigated by another government agency; or
26
(b) the allegation, or information, that raises the whistleblower
27
protection issue is frivolous or vexatious; or
28
(c) the whistleblower protection issue relates has been, is or will
29
be, the subject of proceedings before a court or an application
30
to an industrial, civil or administrative body; or
31
(d) further investigation of the whistleblower protection issue is
32
not warranted having regard to all the circumstances.
33
Whistleblower Protection Part 9
Information sharing when decision made on how to deal with whistleblower protection
issue Division 3
Section 176
No. , 2019
National Integrity Commission Bill 2019
183
Division 3--Information sharing when decision made on
1
how to deal with whistleblower protection issue
2
176 If Commonwealth agency to conduct, or continue conducting,
3
investigation of whistleblower protection issue
4
(1) This section applies if:
5
(a) the Whistleblower Protection Commissioner decides to deal
6
with a whistleblower protection issue that relates to a
7
Commonwealth agency by referring the whistleblower
8
protection issue to that or another Commonwealth agency for
9
investigation; or
10
(b) an allegation, or information, that raises a whistleblower
11
protection issue is referred to the Whistleblower Protection
12
Commissioner under subsection 160(5) by the head of a
13
Commonwealth agency and the Commonwealth agency is
14
investigating the whistleblower protection issue.
15
(2) The Whistleblower Protection Commissioner must give the head of
16
the Commonwealth agency investigating the whistleblower
17
protection issue information or a document if:
18
(a) the information or document:
19
(i) relates to the whistleblower protection issue to the
20
extent to which the agency is investigating the issue;
21
and
22
(ii) is in the possession, or under the control, of the
23
Whistleblower Protection Commissioner; and
24
(b) the head of the agency does not already have the information
25
or document.
26
Note:
Under section 159, the Whistleblower Protection Commissioner has a
27
continuing obligation to pass on information that the Whistleblower
28
Protection Commissioner becomes aware of and that is relevant to the
29
whistleblower protection issue.
30
(3) The Whistleblower Protection Commissioner may give the original
31
or a copy of a document.
32
Part 9 Whistleblower Protection
Division 3 Information sharing when decision made on how to deal with whistleblower
protection issue
Section 177
184
National Integrity Commission Bill 2019
No. , 2019
177 If Commonwealth agency has already commenced investigating
1
whistleblower protection issue
2
(1) This section applies if:
3
(a) the Whistleblower Protection Commissioner decides to deal
4
with a whistleblower protection issue that relates to a
5
Commonwealth agency in one of the ways referred to in
6
subsection 166(1); and
7
(b) the agency has started or continued investigating the
8
whistleblower protection issue before the Whistleblower
9
Protection Commissioner makes that decision.
10
(2) The Whistleblower Protection Commissioner may direct the head
11
of the agency investigating the whistleblower protection issue to
12
give the Whistleblower Protection Commissioner, or the head of
13
another government agency, all information or documents that:
14
(a) relate to the whistleblower protection issue; and
15
(b) are in the possession, or under the control, of the head of the
16
agency.
17
(3) The direction must be in writing.
18
(4) A direction given under this section is not a legislative instrument.
19
Whistleblower Protection Part 9
Investigations and public inquiries by the Whistleblower Protection Commissioner
Division 4
Section 178
No. , 2019
National Integrity Commission Bill 2019
185
Division 4--Investigations and public inquiries by the
1
Whistleblower Protection Commissioner
2
178 Manner and powers of investigation
3
(1) This Division applies if the Whistleblower Protection
4
Commissioner investigates or conducts a public inquiry in relation
5
to a whistleblower protection issue (whether alone or jointly with
6
another person or persons).
7
(2) Parts 5, 6 and 7 of this Act apply to an investigation or public
8
inquiry by the Whistleblower Protection Commissioner as if a
9
reference to the National Integrity Commissioner were a reference
10
to the Whistleblower Protection Commissioner, and a reference to
11
a corruption issue were a reference to a whistleblower protection
12
issue.
13
Part 9 Whistleblower Protection
Division 5 Investigations by other Commonwealth agencies
Section 179
186
National Integrity Commission Bill 2019
No. , 2019
Division 5--Investigations by other Commonwealth
1
agencies
2
179 Dealing with, managing or overseeing investigations
3
(1) This Division applies if the Whistleblower Protection
4
Commissioner decides to deal with a corruption issue by:
5
(a) referring the corruption issue to a Commonwealth agency for
6
investigation; or
7
(b) managing or overseeing an investigation of the corruption
8
issue by a Commonwealth agency.
9
(2) Part 8 of this Act applies to the investigation by the
10
Commonwealth agency as if a reference to the National Integrity
11
Commissioner were a reference to the Whistleblower Protection
12
Commissioner, and a reference to a corruption issue were a
13
reference to a whistleblower protection issue.
14
Whistleblower Protection Part 9
Remedial functions and powers Division 6
Section 180
No. , 2019
National Integrity Commission Bill 2019
187
Division 6--Remedial functions and powers
1
180 Additional recommendations
2
(1) This section applies to a report of an investigation or public inquiry
3
or a special report made by the Whistleblower Protection
4
Commissioner under section 64, 70, 233 or 234 of the Act.
5
(2) Without limiting any recommendations that the Whistleblower
6
Protection Commissioner thinks fit to make, the Whistleblower
7
Protection Commissioner may also recommend:
8
(a) the adoption of measures to remedy deficiencies in the
9
policy, procedures or practices that facilitated:
10
(i) a person or body engaging in reprisal, victimisation,
11
detrimental acts or omissions in relation to a person as a
12
result of the disclosure of wrongdoing; or
13
(ii) a failure to support and protect, or prevent detrimental
14
acts or omissions from occurring in relation to, a person
15
as a result of the disclosure of wrongdoing; or
16
(b) the adoption of measures to prevent detriment from being
17
suffered, or further detriment from being suffered, by a
18
person as a result of the disclosure of wrongdoing; or
19
(c) a decision to reinstate a person's employment or duties or
20
otherwise deal with a person's employment to remedy or
21
compensate for detriment suffered; or
22
(d) the payment of compensation or giving of a reward or other
23
remedies to a person, including payment of legal and other
24
costs;
25
(e) the taking of appropriate action to enforce a civil penalty or
26
obtain a civil, industrial, workplace or administrative remedy
27
for a person; or
28
(f) such other action as the Whistleblower Protection
29
Commissioner considers necessary to protect a person from,
30
or compensate a person for, detrimental actions or omissions
31
a result of the disclosure of wrongdoing.
32
Part 9 Whistleblower Protection
Division 6 Remedial functions and powers
Section 181
188
National Integrity Commission Bill 2019
No. , 2019
181 Proceedings and applications
1
(1) This section applies to a whistleblower protection issue that the
2
Whistleblower Protection Commissioner is investigating or has
3
investigated, or in relation to which the Whistleblower Protection
4
Commissioner has made a report under sections 64, 70, 233 or 234
5
of the Act.
6
(2) Where the Whistleblower Protection Commissioner is satisfied it is
7
in the public interest to do so, the Commissioner may, in respect of
8
the whistleblower protection issue:
9
(a) commence proceedings in a court; or
10
(b) make applications to an industrial, civil or administrative
11
body;
12
seeking such orders as may be available under any Commonwealth
13
law for remedies for a breach or apprehended breach of
14
whistleblower protection responsibilities.
15
(3) The Whistleblower Protection Commissioner may provide legal
16
advice, representation or other practical support, as appropriate, to
17
a person who:
18
(a) experienced a whistleblower protection issue as a result of a
19
disclosure of wrongdoing; and
20
(b) is, or may become, a party to proceedings in a court or to a
21
matter before an industrial, civil or administrative body,
22
under any law for enforcement or remedies in relation to a
23
whistleblower protection responsibility;
24
if the Whistleblower Protection Commissioner considers that
25
representing or providing advice or support to the person will
26
promote compliance with whistleblower protection responsibilities,
27
and is appropriate in all the circumstances.
28
(4) Practical support under subsection (3) may include payments for
29
non-legal costs, services, living support, or a reward.
30
(5) The Whistleblower Protection Commissioner must establish a fund
31
to support the provision of legal advice, representation or other
32
practical support to persons under subsection (3).
33
Whistleblower Protection Part 9
Remedial functions and powers Division 6
Section 182
No. , 2019
National Integrity Commission Bill 2019
189
(6) The fund described in subsection (5) is to be supported by the
1
Whistleblower Protection Special Account created by section 184.
2
(7) Where the orders that may be sought by the Whistleblower
3
Protection Commissioner under subsection (2) include exemplary
4
damages for a breach or apprehended breach of a whistleblower
5
protection responsibility, the Whistleblower Protection
6
Commissioner:
7
(a) may seek such damages; and
8
(b) must, if such damages are awarded and the court of tribunal
9
so agrees, have the damages paid into the Whistleblower
10
Protection Special Account created by section 184.
11
182 Mediation and arbitration
12
(1) This section applies to a whistleblower protection issue:
13
(a) that the Whistleblower Protection Commissioner is
14
investigating or has investigated; or
15
(b) in relation to which the Whistleblower Protection
16
Commissioner has made a report under sections 64, 70, 233
17
or 234 of the Act;
18
and which involves a dispute between 2 or more parties in respect
19
of the whistleblower protection issue and its resolution.
20
(2) Where the Whistleblower Protection Commissioner is satisfied it is
21
in the public interest and the interests of all parties to do so, the
22
Commissioner may, with the consent of all parties:
23
(a) mediate the dispute; or
24
(b) arbitrate in respect of the dispute.
25
(3) The Whistleblower Protection Commissioner may provide legal
26
advice, representation or other practical support, as appropriate, to
27
any person involved in a mediation or arbitration under
28
subsection (2).
29
Part 9 Whistleblower Protection
Division 6 Remedial functions and powers
Section 183
190
National Integrity Commission Bill 2019
No. , 2019
183 Enforceable undertakings relating to contraventions of civil
1
remedy provisions
2
Application of this section
3
(1) This section applies if the Whistleblower Protection Commissioner
4
reasonably believes that a person has contravened a civil remedy
5
provision in respect of a whistleblowing protection responsibility.
6
Accepting an undertaking
7
(2) The Whistleblower Protection Commissioner may accept a written
8
undertaking given by the person in relation to the contravention.
9
Withdrawing or varying an undertaking
10
(3) The person may withdraw or vary the undertaking at any time, but
11
only with the Whistleblower Protection Commissioner's consent.
12
Relationship with orders in relation to contraventions of civil
13
remedy provisions
14
(4) The Whistleblower Protection Commissioner must not apply for an
15
order under subsection 181(2) in relation to a contravention of a
16
civil remedy provision by a person if an undertaking given by the
17
person under this section in relation to the contravention has not
18
been withdrawn.
19
Note:
A person other than the Whistleblower Protection Commissioner who
20
is otherwise entitled to apply for an order in relation to the
21
contravention may do so.
22
Enforcement of undertakings
23
(5) If the Whistleblower Protection Commissioner considers that the
24
person who gave the undertaking has contravened any of its terms,
25
the Whistleblower Protection Commissioner may apply to the
26
Federal Court, the Federal Magistrates Court or a State or Territory
27
Court for an order under subsection (6).
28
Whistleblower Protection Part 9
Remedial functions and powers Division 6
Section 183
No. , 2019
National Integrity Commission Bill 2019
191
(6) If the court is satisfied that the person has contravened a term of
1
the undertaking, the court may make one or more of the following
2
orders:
3
(a) an order directing the person to comply with the term of the
4
undertaking;
5
(b) an order awarding compensation for loss that a person has
6
suffered because of the contravention;
7
(c) an order that a civil penalty be paid into the Whistleblower
8
Protection Special Account created by section 184;
9
(d) any other order that the court considers appropriate.
10
Part 9 Whistleblower Protection
Division 7 Special Account
Section 184
192
National Integrity Commission Bill 2019
No. , 2019
Division 7--Special Account
1
184 Whistleblower Protection Special Account
2
(1) The Whistleblower Protection Special Account (the Account) is
3
established by this section.
4
(2) The Account is a special account for the purposes of the Public
5
Governance, Performance and Accountability Act 2013.
6
185 Credits to the Account
7
There may be credited to the Account amounts equal to the
8
following:
9
(a) amounts received by the Commonwealth in connection with
10
the performance of the Whistleblower Protection
11
Commissioner's functions under this Act, including awards
12
of exemplary damages or civil penalties under Division 6;
13
(b) interest received by the Commonwealth from the investment
14
of amounts debited from the Account;
15
(c) amounts received by the Commonwealth in relation to
16
property paid for with amounts debited from the Account;
17
(d) amounts of any gifts given or bequests made for the purposes
18
of the Account;
19
(e) such amounts as the Minister may approve for the
20
expenditure of money standing to the credit of the
21
Confiscated Assets Account, for the purpose of crime
22
prevention or law enforcement measures, under section 298
23
of the Proceeds of Crime Act 2002.
24
Note:
An Appropriation Act provides for amounts to be credited to a special
25
account if any of the purposes of the special account is a purpose that
26
is covered by an item in the Appropriation Act.
27
186 Purposes of the Account
28
The purposes of the Account are as follows:
29
(a) paying or discharging the costs, expenses and other
30
obligations incurred by the Commonwealth in the
31
Whistleblower Protection Part 9
Special Account Division 7
Section 186
No. , 2019
National Integrity Commission Bill 2019
193
performance of the Whistleblower Protection
1
Commissioner's functions;
2
(b) paying any remuneration and allowances payable to any staff
3
of the Commission assisting the Whistleblower Protection
4
Commission under this Act (including staff mentioned in
5
subsection 227(3));
6
(c) meeting the expenses of administering the Account.
7
Note:
See section 80 of the Public Governance, Performance and
8
Accountability Act 2013 (which deals with special accounts).
9
Part 10 Administrative provisions relating to the Commission
Division 1 National Integrity Commissioner
Section 187
194
National Integrity Commission Bill 2019
No. , 2019
Part 10--Administrative provisions relating to the
1
Commission
2
Division 1--National Integrity Commissioner
3
187 Appointment of National Integrity Commissioner
4
(1) The National Integrity Commissioner is to be appointed by the
5
Governor-General by written instrument.
6
(2) A person must not be appointed as the National Integrity
7
Commissioner unless the person:
8
(a) is or has been a Judge of the Federal Court or the Supreme
9
Court of a State or Territory; or
10
(b) is qualified for appointment as such a Judge.
11
(3) Before the Minister makes a recommendation to the
12
Governor-General for the appointment of a person as the National
13
Integrity Commissioner:
14
(a) the Minister must refer the proposed recommendation for the
15
appointment to the Parliamentary Joint Committee under
16
section 247; and
17
(b) either:
18
(i) the period that the committee has under that section to
19
consider the proposed recommendation has ended
20
without the committee rejecting the proposed
21
recommendation; or
22
(ii) the committee notifies the Minister that it has decided to
23
approve the proposed recommendation.
24
(4) Subject to section 188, a person may be proposed for appointment
25
on more than one occasion.
26
(5) In this section and sections 246 and 247, appointment includes
27
re-appointment.
28
(6) The Governor-General may, for the purpose of appointing to the
29
office of the National Integrity Commissioner a person who is the
30
Administrative provisions relating to the Commission Part 10
National Integrity Commissioner Division 1
Section 188
No. , 2019
National Integrity Commission Bill 2019
195
holder of a judicial office of a State or Territory, enter into such
1
arrangement with the Governor of that State or the Administrator
2
of that Territory, as the case may be, as is necessary to secure that
3
person's services.
4
(7) An arrangement under subsection (6) may provide for the
5
Commonwealth to reimburse a State or Territory with respect to
6
the services of the person to whom the arrangement relates.
7
188 General terms and conditions of appointment
8
(1) The National Integrity Commissioner holds office for the period
9
specified in the instrument of appointment. The period must not
10
exceed 5 years. The sum of the periods for which the National
11
Integrity Commissioner holds office must not exceed 10 years.
12
(2) The National Integrity Commissioner holds office on a full-time
13
basis.
14
(3) A person holding office as the National Integrity Commissioner
15
holds office on the terms and conditions (if any), in relation to
16
matters not covered by this Act, that are determined by the
17
Governor-General.
18
189 Other paid work
19
The National Integrity Commissioner must not engage in paid
20
work outside the duties of the National Integrity Commissioner's
21
office without the Minister's approval.
22
190 Remuneration
23
(1) The National Integrity Commissioner is to be paid the
24
remuneration that is determined by the Remuneration Tribunal. If
25
no determination of that remuneration by the Tribunal is in
26
operation, the National Integrity Commissioner is to be paid the
27
remuneration that is prescribed by the regulations.
28
(2) The National Integrity Commissioner is to be paid the allowances
29
that are prescribed by the regulations.
30
Part 10 Administrative provisions relating to the Commission
Division 1 National Integrity Commissioner
Section 191
196
National Integrity Commission Bill 2019
No. , 2019
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973
1
do not apply in relation to the office of the National Integrity
2
Commissioner.
3
Note:
The effect of this subsection is that remuneration or allowances of the
4
National Integrity Commissioner will be paid out of money
5
appropriated by an Act other than the Remuneration Tribunal Act
6
1973.
7
(4) This section has effect subject to the Remuneration Tribunal Act
8
1973 (except as provided by subsection (3)).
9
191 Leave of absence
10
(1) The National Integrity Commissioner has the recreation leave
11
entitlements that are determined by the Remuneration Tribunal.
12
(2) The Minister may grant the National Integrity Commissioner leave
13
of absence, other than recreation leave, on the terms and conditions
14
as to remuneration or otherwise that the Minister determines.
15
192 Resignation
16
(1) The National Integrity Commissioner may resign the National
17
Integrity Commissioner's appointment by giving the
18
Governor-General a written resignation.
19
(2) The resignation takes effect on the day it is received by the
20
Governor-General or, if a later day is specified in the resignation,
21
on that later day.
22
193 Removal from office
23
(1) The Governor-General may remove the National Integrity
24
Commissioner from office if each House of the Parliament, in the
25
same session of the Parliament, presents an address to the
26
Governor-General praying for the removal of the National Integrity
27
Commissioner on the ground:
28
(a) of misbehaviour; or
29
(b) that the National Integrity Commissioner is unable to
30
perform the duties of the National Integrity Commissioner's
31
office because of physical or mental incapacity.
32
Administrative provisions relating to the Commission Part 10
National Integrity Commissioner Division 1
Section 194
No. , 2019
National Integrity Commission Bill 2019
197
(2) The Governor-General must remove the National Integrity
1
Commissioner from office if any of the following apply:
2
(a) the National Integrity Commissioner:
3
(i) becomes bankrupt; or
4
(ii) applies to take the benefit of any law for the relief of
5
bankrupt or insolvent debtors; or
6
(iii) compounds with the National Integrity Commissioner's
7
creditors; or
8
(iv) makes an assignment of the National Integrity
9
Commissioner's remuneration for the benefit of the
10
National Integrity Commissioner's creditors;
11
(b) the National Integrity Commissioner is absent, except on
12
leave of absence, for 14 consecutive days or for 28 days in
13
any 12 months;
14
(c) the National Integrity Commissioner engages, except with
15
the Minister's approval, in paid work outside the duties of the
16
National Integrity Commissioner's office;
17
(d) the National Integrity Commissioner fails, without reasonable
18
excuse, to comply with:
19
(i) section 195 of this Act (disclosure of interests); or
20
(ii) section 29 of the Public Governance, Performance and
21
Accountability Act 2013 (which deals with the duty to
22
disclose interests) or rules made for the purposes of that
23
section.
24
194 Acting appointments
25
(1) The Minister may, by written instrument, appoint a person to act as
26
the National Integrity Commissioner:
27
(a) during a vacancy in the office of the National Integrity
28
Commissioner (whether or not an appointment has previously
29
been made to the office); or
30
(b) during any period, or during all periods, when the National
31
Integrity Commissioner:
32
(i) is absent from duty or from Australia; or
33
(ii) is, for any reason, unable to perform the duties of the
34
office.
35
Part 10 Administrative provisions relating to the Commission
Division 1 National Integrity Commissioner
Section 195
198
National Integrity Commission Bill 2019
No. , 2019
Note:
For rules that apply to acting appointments, see sections 33AB and
1
33A of the Acts Interpretation Act 1901.
2
(2) The Minister may appoint the Law Enforcement Integrity
3
Commissioner to act as the National Integrity Commissioner for
4
the purposes of paragraph (1)(a) or (b).
5
195 Disclosure of interests
6
(1) The National Integrity Commissioner must give a written notice to
7
the Minister of all direct or indirect pecuniary interests that the
8
National Integrity Commissioner has or acquires in any business or
9
in any body corporate carrying on any business.
10
(2) Subsection (1) applies in addition to any rules made for the
11
purposes of section 29 of the Public Governance, Performance and
12
Accountability Act 2013.
13
Administrative provisions relating to the Commission Part 10
Law Enforcement Integrity Commissioner Division 2
Section 196
No. , 2019
National Integrity Commission Bill 2019
199
Division 2--Law Enforcement Integrity Commissioner
1
196 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
Part 10 Administrative provisions relating to the Commission
Division 3 Whistleblower Protection Commissioner
Section 197
200
National Integrity Commission Bill 2019
No. , 2019
Division 3--Whistleblower Protection Commissioner
1
197 Appointment of Whistleblower Protection Commissioner
2
(1) The Whistleblower Protection Commissioner is to be appointed by
3
the Governor-General by written instrument.
4
Note:
Subject to subsection 188(1), the Whistleblower Protection
5
Commissioner may be reappointed: see section 33AA of the Acts
6
Interpretation Act 1901.
7
(2) Before the Governor-General appoints a person as the
8
Whistleblower Protection Commissioner, the Minister must be
9
satisfied that the person:
10
(a) has suitable qualifications or experience; and
11
(b) is of good character.
12
(3) Before the Minister makes a recommendation to the
13
Governor-General for the appointment of a person as the
14
Whistleblower Protection Commissioner:
15
(a) the Minister must refer the proposed recommendation for the
16
appointment to the Parliamentary Joint Committee under
17
section 247; and
18
(b) either:
19
(i) the period that the committee has under that section to
20
consider the proposed recommendation has ended
21
without the committee rejecting the proposed
22
recommendation; or
23
(ii) the committee notifies the Minister that it has decided to
24
approve the proposed recommendation.
25
(4) Subject to section subsection 198(1), a person may be proposed for
26
appointment on more than one occasion.
27
(5) In this section and sections 246 and 247, appointment includes
28
re-appointment.
29
(6) The Governor-General may, for the purpose of appointing to the
30
office of the Whistleblower Protection Commissioner a person who
31
is the holder of a judicial office of a State or Territory, enter into
32
Administrative provisions relating to the Commission Part 10
Whistleblower Protection Commissioner Division 3
Section 198
No. , 2019
National Integrity Commission Bill 2019
201
such arrangement with the Governor of that State or the
1
Administrator of that Territory, as the case may be, as is necessary
2
to secure that person's services.
3
(7) An arrangement under subsection (6) may provide for the
4
Commonwealth to reimburse a State or Territory with respect to
5
the services of the person to whom the arrangement relates.
6
198 General terms and conditions of appointment
7
(1) The Whistleblower Protection Commissioner holds office for the
8
period specified in the instrument of appointment. The period must
9
not exceed 5 years. The sum of the periods for which the
10
Whistleblower Protection Commissioner holds office must not
11
exceed 10 years.
12
(2) The Whistleblower Protection Commissioner holds office on a
13
full-time basis.
14
(3) A person holding office as the Whistleblower Protection
15
Commissioner holds office on the terms and conditions (if any), in
16
relation to matters not covered by this Act, that are determined by
17
the Governor-General.
18
199 Other paid work
19
The Whistleblower Protection Commissioner must not engage in
20
paid work outside the duties of the National Integrity
21
Commissioner's office without the Minister's approval.
22
200 Remuneration
23
(1) The Whistleblower Protection Commissioner is to be paid the
24
remuneration that is determined by the Remuneration Tribunal. If
25
no determination of that remuneration by the Tribunal is in
26
operation, the Whistleblower Protection Commissioner is to be
27
paid the remuneration that is prescribed by the regulations.
28
(2) The Whistleblower Protection Commissioner is to be paid the
29
allowances that are prescribed by the regulations.
30
Part 10 Administrative provisions relating to the Commission
Division 3 Whistleblower Protection Commissioner
Section 201
202
National Integrity Commission Bill 2019
No. , 2019
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973
1
do not apply in relation to the office of the Whistleblower
2
Protection Commissioner.
3
Note:
The effect of this subsection is that remuneration or allowances of the
4
Whistleblower Protection Commissioner will be paid out of money
5
appropriated by an Act other than the Remuneration Tribunal Act
6
1973.
7
(4) This section has effect subject to the Remuneration Tribunal Act
8
1973 (except as provided by subsection (3)).
9
201 Leave of absence
10
(1) The Whistleblower Protection Commissioner has the recreation
11
leave entitlements that are determined by the Remuneration
12
Tribunal.
13
(2) The Minister may grant the Whistleblower Protection
14
Commissioner leave of absence, other than recreation leave, on the
15
terms and conditions as to remuneration or otherwise that the
16
Minister determines.
17
202 Resignation
18
(1) The Whistleblower Protection Commissioner may resign the
19
Whistleblower Protection Commissioner's appointment by giving
20
the Governor-General a written resignation.
21
(2) The resignation takes effect on the day it is received by the
22
Governor-General or, if a later day is specified in the resignation,
23
on that later day.
24
203 Removal from office
25
(1) The Governor-General may remove the Whistleblower Protection
26
Commissioner from office if each House of the Parliament, in the
27
same session of the Parliament, presents an address to the
28
Governor-General praying for the removal of the Whistleblower
29
Protection Commissioner on the ground:
30
(a) of misbehaviour; or
31
Administrative provisions relating to the Commission Part 10
Whistleblower Protection Commissioner Division 3
Section 204
No. , 2019
National Integrity Commission Bill 2019
203
(b) that the Whistleblower Protection Commissioner is unable to
1
perform the duties of the Whistleblower Protection
2
Commissioner's office because of physical or mental
3
incapacity
4
(2) The Governor-General must remove the Whistleblower Protection
5
Commissioner from office if any of the following apply:
6
(a) the Whistleblower Protection Commissioner:
7
(i) becomes bankrupt; or
8
(ii) applies to take the benefit of any law for the relief of
9
bankrupt or insolvent debtors; or
10
(iii) compounds with the Whistleblower Protection
11
Commissioner's creditors; or
12
(iv) makes an assignment of the Whistleblower Protection
13
Commissioner's remuneration for the benefit of the
14
National Integrity Commissioner's creditors;
15
(b) the Whistleblower Protection Commissioner is absent, except
16
on leave of absence, for 14 consecutive days or for 28 days in
17
any 12 months;
18
(c) the Whistleblower Protection Commissioner engages, except
19
with the Minister's approval, in paid work outside the duties
20
of the National Integrity Commissioner's office;
21
(d) the Whistleblower Protection Commissioner fails, without
22
reasonable excuse, to comply with:
23
(i) section 195 of this Act (disclosure of interests); or
24
(ii) section 29 of the Public Governance, Performance and
25
Accountability Act 2013 (which deals with the duty to
26
disclose interests) or rules made for the purposes of that
27
section.
28
204 Acting appointments
29
(1) The Minister may, by written instrument, appoint a person to act as
30
the Whistleblower Protection Commissioner:
31
(a) during a vacancy in the office of the Whistleblower
32
Protection Commissioner (whether or not an appointment has
33
previously been made to the office); or
34
Part 10 Administrative provisions relating to the Commission
Division 3 Whistleblower Protection Commissioner
Section 205
204
National Integrity Commission Bill 2019
No. , 2019
(b) during any period, or during all periods, when the
1
Whistleblower Protection Commissioner:
2
(i) is absent from duty or from Australia; or
3
(ii) is, for any reason, unable to perform the duties of the
4
office.
5
Note:
For rules that apply to acting appointments, see sections 33AB and
6
33A of the Acts Interpretation Act 1901.
7
(2) The Minister may appoint the National Integrity Commissioner to
8
act as the Whistleblower Protection Commissioner for the purposes
9
of paragraph (1)(a) or (b).
10
205 Disclosure of interests
11
(1) The Whistleblower Protection Commissioner must give a written
12
notice to the Minister of all direct or indirect pecuniary interests
13
that the Whistleblower Protection Commissioner has or acquires in
14
any business or in any body corporate carrying on any business.
15
(2) Subsection (1) applies in addition to any rules made for the
16
purposes of section 29 of the Public Governance, Performance and
17
Accountability Act 2013.
18
Administrative provisions relating to the Commission Part 10
Assistant National Integrity Commissioners Division 4
Section 206
No. , 2019
National Integrity Commission Bill 2019
205
Division 4--Assistant National Integrity Commissioners
1
206 Appointment of Assistant National Integrity Commissioners
2
(1) An Assistant National Integrity Commissioner is to be appointed
3
by the Governor-General by written instrument.
4
Note:
Subject to subsection 207(1), the Assistant National Integrity
5
Commissioner may be reappointed: see section 33AA of the Acts
6
Interpretation Act 1901.
7
(2) A person must not be appointed as an Assistant Commissioner
8
unless the person:
9
(a) is or has been a Judge of the Federal Court or the Supreme
10
Court of a State or Territory; or
11
(b) is qualified for appointment as such a Judge.
12
(3) Before the Minister makes a recommendation to the
13
Governor-General for the appointment of a person as an Assistant
14
Commissioner:
15
(a) the Minister must consult the National Integrity
16
Commissioner; and
17
(b) the Minister must refer the proposed recommendation for the
18
appointment to the Parliamentary Joint Committee under
19
section 247; and
20
(c) either:
21
(i) the period that the committee has under that section to
22
consider the proposed recommendation has ended
23
without the committee rejecting the proposed
24
recommendation; or
25
(ii) the committee notifies the Minister that it has decided to
26
approve the proposed recommendation.
27
(4) Subject to section 188, a person may be proposed for appointment
28
on more than one occasion.
29
(5) In this section and sections 246 and 247, appointment includes
30
re-appointment.
31
Part 10 Administrative provisions relating to the Commission
Division 4 Assistant National Integrity Commissioners
Section 207
206
National Integrity Commission Bill 2019
No. , 2019
(6) The Governor-General may, for the purpose of appointing to the
1
office of the an Assistant Commissioner a person who is the holder
2
of a judicial office of a State or Territory, enter into such
3
arrangement with the Governor of that State or the Administrator
4
of that Territory, as the case may be, as is necessary to secure that
5
person's services.
6
(7) An arrangement under subsection (6) may provide for the
7
Commonwealth to reimburse a State or Territory with respect to
8
the services of the person to whom the arrangement relates.
9
207 General terms and conditions of appointment
10
(1) An Assistant Commissioner holds office for the period specified in
11
the instrument of appointment. The period must not exceed 5 years.
12
The sum of the periods for which a person holds office as an
13
Assistant Commissioner holds office must not exceed 10 years.
14
(2) An Assistant Commissioner may be appointed on either a full-time
15
or part-time basis.
16
(3) A person holding office as an Assistant Commissioner holds office
17
on the terms and conditions (if any), in relation to matters not
18
covered by this Act, that are determined by the Governor-General.
19
208 Other paid work
20
(1) An Assistant Commissioner appointed on a full-time basis must
21
not engage in paid work outside the duties of the Assistant
22
Commissioner's office without the Minister's approval.
23
(2) An Assistant Commissioner appointed on a part-time basis must
24
not engage in any paid work that, in the Minister's opinion,
25
conflicts or could conflict with the proper performance of the
26
Assistant Commissioner's duties.
27
209 Remuneration
28
(1) An Assistant Commissioner is to be paid the remuneration that is
29
determined by the Remuneration Tribunal. If no determination of
30
that remuneration by the Tribunal is in operation, an Assistant
31
Administrative provisions relating to the Commission Part 10
Assistant National Integrity Commissioners Division 4
Section 210
No. , 2019
National Integrity Commission Bill 2019
207
Commissioner is to be paid the remuneration that is prescribed by
1
the regulations.
2
(2) An Assistant Commissioner is to be paid the allowances that are
3
prescribed by the regulations.
4
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973
5
do not apply in relation to the office of an Assistant Commissioner
6
Note:
The effect of this subsection is that remuneration or allowances of an
7
Assistant Commissioner will be paid out of money appropriated by an
8
Act other than the Remuneration Tribunal Act 1973.
9
(4) This section has effect subject to the Remuneration Tribunal Act
10
1973 (except as provided by subsection (3)).
11
210 Leave of absence
12
(1) A full-time Assistant Commissioner has the recreation leave
13
entitlements that are determined by the Remuneration Tribunal.
14
(2) The Minister may grant a full-time Assistant Commissioner leave
15
of absence, other than recreation leave, on the terms and conditions
16
as to remuneration or otherwise that the Minister determines.
17
(3) The National Integrity Commissioner may grant leave of absence
18
to any part-time Assistant Commissioner on the terms and
19
conditions that the National Integrity Commissioner determines.
20
211 Resignation
21
(1) An Assistant Commissioner may resign the Assistant
22
Commissioner's appointment by giving the Governor-General a
23
written resignation.
24
(2) The resignation takes effect on the day it is received by the
25
Governor-General or, if a later day is specified in the resignation,
26
on that later day.
27
212 Removal from office
28
(1) The Governor-General may remove an Assistant Commissioner
29
from office if each House of the Parliament, in the same session of
30
Part 10 Administrative provisions relating to the Commission
Division 4 Assistant National Integrity Commissioners
Section 212
208
National Integrity Commission Bill 2019
No. , 2019
the Parliament, presents an address to the Governor-General
1
praying for the removal of the Assistant Commissioner on the
2
ground:
3
(a) of misbehaviour; or
4
(b) that the Assistant Commissioner is unable to perform the
5
duties of the Assistant Commissioner's office because of
6
physical or mental incapacity
7
(2) The Governor-General must remove the Assistant Commissioner
8
from office if any of the following apply:
9
(a) the Assistant Commissioner:
10
(i) becomes bankrupt; or
11
(ii) applies to take the benefit of any law for the relief of
12
bankrupt or insolvent debtors; or
13
(iii) compounds with the Assistant Commissioner's
14
creditors; or
15
(iv) makes an assignment of the Assistant Commissioner's
16
remuneration for the benefit of the Assistant
17
Commissioner's creditors;
18
(b) if the Assistant Commissioner is appointed on a full-time
19
basis--the Assistant Commissioner is absent, except on leave
20
of absence, for 14 consecutive days or for 28 days in any 12
21
months;
22
(c) if the Assistant Commissioner is appointed on a part-time
23
basis--the Assistant Commissioner is absent, except on leave
24
of absence, to an extent that the Minister considers excessive;
25
(d) the Assistant Commissioner engages, except with the
26
Minister's approval, in paid work outside the duties of the
27
Assistant Commissioner's office;
28
(e) the Assistant Commissioner fails, without reasonable excuse,
29
to comply with:
30
(i) section 214 of this Act (disclosure of interests); or
31
(ii) section 29 of the Public Governance, Performance and
32
Accountability Act 2013 (which deals with the duty to
33
disclose interests) or rules made for the purposes of that
34
section.
35
Administrative provisions relating to the Commission Part 10
Assistant National Integrity Commissioners Division 4
Section 213
No. , 2019
National Integrity Commission Bill 2019
209
213 Acting appointments
1
The Minister may appoint a person to act as an Assistant
2
Commissioner:
3
(a) during a vacancy in the office of the Assistant Commissioner
4
(whether or not an appointment has previously been made to
5
the office); or
6
(b) during any period, or during all periods, when the Assistant
7
Commissioner is absent from duty or from Australia, or is,
8
for any reason, unable to perform the duties of the office.
9
Note:
For rules that apply to acting appointments, see sections 33AB and
10
33A of the Acts Interpretation Act 1901.
11
214 Disclosure of interests
12
(1) An Assistant Commissioner must give written notice to the
13
Minister of all direct or indirect pecuniary interests that the
14
Assistant Commissioner has or acquires in any business or in any
15
body corporate carrying on any business.
16
(2) Subsection (1) applies in addition to any rules made for the
17
purposes of section 29 of the Public Governance, Performance and
18
Accountability Act 2013.
19
Part 10 Administrative provisions relating to the Commission
Division 5 Chief Executive Officer
Section 215
210
National Integrity Commission Bill 2019
No. , 2019
Division 5--Chief Executive Officer
1
215 CEO
2
There is to be a Chief Executive Officer of the Commission.
3
Note:
In this Act, CEO means the Chief Executive Officer of the
4
Commission: see section 8.
5
216 Functions of the CEO
6
The CEO's functions are:
7
(a) to manage the administration of the Commission; and
8
(b) to assist the National Integrity Commissioner, the Law
9
Enforcement Integrity Commissioner, the Whistleblower
10
Protection Commissioner, an Assistant Commissioner, an
11
Assistant Law Enforcement Integrity Commissioner or the
12
Commission in the performance of its functions.
13
217 Powers of the CEO
14
The CEO has power to do all things necessary or convenient to be
15
done for or in connection with the performance of the CEO's
16
functions.
17
218 Commission may give directions to CEO
18
(1) The Commission may give written directions to the CEO about the
19
performance of the CEO's functions.
20
(2) The CEO must comply with a direction under subsection (1).
21
(3) Subsection (2) does not apply to the extent that:
22
(a) compliance with the direction would be inconsistent with the
23
CEO's performance of functions or exercise of powers under
24
the Public Governance, Performance and Accountability Act
25
2013 in relation to the Commission; or
26
Administrative provisions relating to the Commission Part 10
Chief Executive Officer Division 5
Section 219
No. , 2019
National Integrity Commission Bill 2019
211
(b) the direction relates to the CEO's performance of functions
1
or exercise of powers under the Public Service Act 1999 in
2
relation to the Commission.
3
(4) A direction under subsection (1) is not a legislative instrument.
4
219 Appointment of CEO
5
(1) The CEO is to be appointed by the Commission by written
6
instrument.
7
(2) A person must not be appointed as the CEO unless the
8
Commission is satisfied that the person has appropriate
9
qualifications, knowledge or experience.
10
(3) Before the Commission appoints a person as the CEO:
11
(a) the Commission must refer the proposed recommendation for
12
the appointment to the Parliamentary Joint Committee under
13
section 247; and
14
(b) either:
15
(i) the period that the committee has under that section to
16
consider the proposed recommendation has ended
17
without the committee rejecting the proposed
18
recommendation; or
19
(ii) the committee notifies the Commission that it has
20
decided to approve the proposed recommendation.
21
(4) The CEO holds office on a full-time basis.
22
(5) The CEO holds office for the period specified in the instrument of
23
appointment. The period must not exceed 5 years.
24
Note:
The CEO may be reappointed: see section 33AA of the Acts
25
Interpretation Act 1901.
26
220 Appointment of acting CEO
27
(1) The Commission may, by written instrument, appoint a person to
28
act as the CEO:
29
(a) during a vacancy in the office of the CEO (whether or not an
30
appointment has previously been made to the office); or
31
Part 10 Administrative provisions relating to the Commission
Division 5 Chief Executive Officer
Section 221
212
National Integrity Commission Bill 2019
No. , 2019
(b) during any period, or during all periods, when the CEO:
1
(i) is absent from duty or Australia; or
2
(ii) is, for any reason, unable to perform the duties of the
3
office.
4
Note:
For rules that apply to acting appointments, see section 33A of the
5
Acts Interpretation Act 1901.
6
(2) A person must not be appointed to act as the CEO unless the
7
Commission is satisfied that the person has appropriate
8
qualifications, knowledge or experience.
9
221 Remuneration of the CEO
10
(1) The CEO is to be paid the remuneration that is determined by the
11
Remuneration Tribunal. If no determination of that remuneration
12
by the Tribunal is in operation, the CEO is to be paid the
13
remuneration that is prescribed by the regulations.
14
(2) The CEO is to be paid the allowances that are prescribed by the
15
regulations.
16
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973
17
do not apply in relation to the office of the CEO.
18
Note:
The effect of this subsection is that remuneration or allowances of the
19
CCEO will be paid out of money appropriated by an Act other than
20
the Remuneration Tribunal Act 1973.
21
(4) This section has effect subject to the Remuneration Tribunal Act
22
1973 (except as provided by subsection (3)).
23
222 Leave of absence of the CEO
24
(1) The CEO has the recreation leave entitlements that are determined
25
by the Remuneration Tribunal.
26
(2) The Commission may grant the CEO leave of absence, other than
27
recreation leave, on the terms and conditions as to remuneration or
28
otherwise that the Commission determines.
29
Administrative provisions relating to the Commission Part 10
Chief Executive Officer Division 5
Section 223
No. , 2019
National Integrity Commission Bill 2019
213
223 Other paid work of the CEO
1
The CEO must not engage in paid work outside the duties of the
2
CEO's office without the Commission's approval.
3
224 Resignation of the CEO
4
(1) The CEO may resign the CEO's appointment by giving the
5
Commission a written resignation.
6
(2) The resignation takes effect on the day it is received by the
7
Commission or, if a later day is specified in the resignation, on that
8
later day.
9
225 Termination of appointment of the CEO
10
Misbehaviour or incapacity
11
(1) The Commission may terminate the appointment of the CEO:
12
(a) for misbehaviour; or
13
(b) if the CEO is unable to perform the duties of the CEO's
14
office because of physical or mental incapacity.
15
Bankruptcy etc.
16
(2) The Commission may terminate the appointment of the CEO if:
17
(a) the CEO:
18
(i) becomes bankrupt; or
19
(ii) applies to take the benefit of any law for the relief of
20
bankrupt or insolvent debtors; or
21
(iii) compounds with the CEO's creditors; or
22
(iv) makes an assignment of the CEO's remuneration for the
23
benefit of the CEO's creditors; or
24
(b) the CEO is absent, except on leave of absence, for 14
25
consecutive days or for 28 days in any 12 months; or
26
(c) the CEO engages, except with the Commission's approval, in
27
paid work outside the duties of the CEO's office (see
28
section 223); or
29
Part 10 Administrative provisions relating to the Commission
Division 5 Chief Executive Officer
Section 226
214
National Integrity Commission Bill 2019
No. , 2019
(d) the CEO fails, without reasonable excuse, to comply with
1
section 29 of the Public Governance, Performance and
2
Accountability Act 2013 (which deals with the duty to
3
disclose interests) or rules made for the purposes of that
4
section.
5
226 Other terms and conditions of the CEO
6
The CEO holds office on the terms and conditions (if any) in
7
relation to matters not covered by this Act that are determined by
8
the Commission.
9
Administrative provisions relating to the Commission Part 10
Staff, consultants and delegations Division 6
Section 227
No. , 2019
National Integrity Commission Bill 2019
215
Division 6--Staff, consultants and delegations
1
227 Staff
2
(1) The staff of the Commission must be persons appointed or engaged
3
under the Public Service Act 1999.
4
(2) For the purposes of the Public Service Act 1999:
5
(a) the CEO and the staff of the Commission together constitute
6
a Statutory Agency; and
7
(b) the CEO is the Head of that Statutory Agency.
8
(3) The CEO must, by writing, designate positions in the Commission
9
as positions assisting the Whistleblower Protection Commissioner
10
in the performance of the whistleblower protection commissioner
11
functions.
12
Note:
For creation of positions, see section 77 of the Public Service Act
13
1999.
14
(4) A person in a position designated under subsection (3) must not be
15
involved in assisting:
16
(a) the National Integrity Commissioner in the performance of
17
the national integrity commissioner functions; or
18
(b) the Law Enforcement Integrity Commissioner in the
19
performance of the law enforcement integrity commissioner
20
functions;
21
other than in respect of the whistleblower protection commissioner
22
functions of receiving and referring disclosures of wrongdoing
23
under Division 1 of Part 9 and section 165.
24
228 Consultants
25
The CEO may, on behalf of the Commonwealth, engage
26
consultants to assist in the performance of the CEO's functions.
27
Part 10 Administrative provisions relating to the Commission
Division 6 Staff, consultants and delegations
Section 229
216
National Integrity Commission Bill 2019
No. , 2019
229 Delegation--National Integrity Commissioner
1
Delegation to Whistleblower Protection Commissioner or an
2
Assistant Commissioner
3
(1) The National Integrity Commissioner may, in writing, delegate all
4
or any of the National Integrity Commissioner's functions or
5
powers under this Act to the Whistleblower Protection
6
Commissioner or an Assistant Commissioner.
7
Note:
Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
8
provisions relating to delegations.
9
(2) Subsection (1) does not apply to the power to hold a public
10
hearing.
11
Delegation to certain staff members
12
(3) The National Integrity Commissioner may, in writing, delegate all
13
or any of the National Integrity Commissioner's functions or
14
powers to a staff member of the Commission who is an SES
15
employee or an acting SES employee.
16
Note:
Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
17
provisions relating to delegations.
18
(4) Subsection (3) does not apply to:
19
(a) the power to hold a public hearing; or
20
(b) a power under Division 1 or 2 of Part 6.
21
Delegate must comply with directions
22
(5) In performing a function or exercising a power delegated under
23
subsection (1) or (3), the delegate must comply with any written
24
directions of the National Integrity Commissioner.
25
230 Delegation--Whistleblower Protection Commissioner
26
(1) Section 229 applies to the Whistleblower Protection Commissioner
27
as if a reference to the National Integrity Commissioner were a
28
reference to the Whistleblower Protection Commissioner.
29
Administrative provisions relating to the Commission Part 10
Staff, consultants and delegations Division 6
Section 231
No. , 2019
National Integrity Commission Bill 2019
217
(2) However, a function or power of the Whistleblower Protection
1
Commissioner must not be delegated to the same person to whom
2
the National Integrity Commissioner has delegated any function or
3
power, other than in respect of the whistleblower protection
4
commissioner functions of receiving and referring disclosures of
5
wrongdoing under Division 1 of Part 9 and section 165.
6
231 Delegation--CEO
7
(1) The CEO may, in writing, delegate all or any of the CEO's
8
functions or powers to a staff member of the Commission who is
9
an SES employee or an acting SES employee.
10
Note:
Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
11
provisions relating to delegations.
12
(2) In performing a function or exercising a power delegated under
13
subsection (1), the delegate must comply with any written
14
directions of the CEO.
15
Part 10 Administrative provisions relating to the Commission
Division 7 Public reporting
Section 232
218
National Integrity Commission Bill 2019
No. , 2019
Division 7--Public reporting
1
232 Annual report
2
(1) The National Integrity Commissioner must give the Minister, for
3
presentation to each House of the Parliament, a report (the annual
4
report) on the performance of the national integrity commissioner
5
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 the following:
10
(i) corruption issues raised by allegations or information
11
referred to the National Integrity Commissioner under
12
section 42 during that year;
13
(ii) corruption issues dealt with by the National Integrity
14
Commissioner on the National Integrity
15
Commissioner's own initiative during that year;
16
(iii) corruption issues investigated by the National Integrity
17
Commissioner during that year;
18
(iv) corruption issues that the National Integrity
19
Commissioner referred to a Commonwealth agency for
20
investigation during that year;
21
(b) a description of investigations conducted by the National
22
Integrity Commissioner during the financial year that the
23
National Integrity Commissioner considers raise significant
24
issues or developments in law enforcement;
25
(c) a description, which may include statistics, of any patterns or
26
trends, and the nature and scope, of corruption:
27
(i) in Commonwealth agencies; or
28
(ii) by public officials;
29
that have come to the National Integrity Commissioner's
30
attention during that year in the performance of the national
31
integrity commissioner functions;
32
(d) any recommendations for changes to:
33
(i) the laws of the Commonwealth; or
34
Administrative provisions relating to the Commission Part 10
Public reporting Division 7
Section 233
No. , 2019
National Integrity Commission Bill 2019
219
(ii) administrative practices of Commonwealth agencies;
1
that the National Integrity Commissioner, as a result of
2
performing the national integrity commissioner functions
3
during that year, considers should be made;
4
(e) the extent to which investigations by the National Integrity
5
Commissioner have resulted in the prosecution in that year of
6
persons for offences;
7
(f) the extent to which investigations by the National Integrity
8
Commissioner have resulted in confiscation proceedings in
9
that year;
10
(g) details of the number and results of:
11
(i) applications made to the Federal Court or the Federal
12
Circuit Court under the Administrative Decisions
13
(Judicial Review) Act 1977 for orders of review in
14
respect of matters arising under this Act; and
15
(ii) other court proceedings involving the National Integrity
16
Commissioner;
17
being applications and proceedings that were determined, or
18
otherwise disposed of, during that year.
19
233 Reports on investigations and public inquiries
20
(1) If:
21
(a) both:
22
(i) the National Integrity Commissioner gives the Minister
23
a report prepared under subsection 64(1); and
24
(ii) one or more public hearings were held in the course of
25
the investigation to which the report relates; or
26
(b) the National Integrity Commissioner gives the Minister a
27
report prepared under subsection 70(1);
28
the Minister must table the report in each House of the Parliament
29
within 5 sitting days of that House after its receipt by the Minister.
30
(2) To avoid doubt, the Minister is not required by subsection (1) to
31
cause a supplementary report prepared under subsection 64(6) or
32
70(5) to be tabled in either House of the Parliament.
33
Part 10 Administrative provisions relating to the Commission
Division 7 Public reporting
Section 234
220
National Integrity Commission Bill 2019
No. , 2019
234 Special reports
1
National Integrity Commissioner may give Minister special reports
2
(1) The National Integrity Commissioner may, from time to time, give
3
the Minister, for presentation to the Parliament, a special report:
4
(a) on the operations of the Commission for a part of a financial
5
year; or
6
(b) on any matter relating to, or arising in connection with, the
7
performance of the national integrity commissioner
8
functions, or the exercise of the National Integrity
9
Commissioner's powers, under this Act; or
10
(c) in accordance with subsection (2).
11
(2) The Minister or a House of the Parliament may request the
12
National Integrity Commissioner to, or the National Integrity
13
Commissioner may, on the National Integrity Commissioner's own
14
initiative, prepare reports about the need for or the desirability of
15
legislative or administrative action on issues in relation to:
16
(a) corruption generally in Commonwealth agencies; or
17
(b) the integrity of public officials;
18
whether those issues arose before or after the commencement of
19
this section.
20
(3) If the National Integrity Commissioner gives a special report to the
21
Minister under subsection (1), the Minister must table the report in
22
each House of the Parliament within 5 sitting days of that House
23
after its receipt by the Minister.
24
Opinion or finding critical of a government agency or person
25
(4) The National Integrity Commissioner must not disclose
26
information in a special report prepared under subsection (1) that
27
includes an opinion or finding that is critical of a government
28
agency or person (either expressly or impliedly) unless the
29
National Integrity Commissioner has taken the action required by
30
subsection (5) or (6) before disclosing the information.
31
(5) If the opinion or finding is critical of a government agency, the
32
National Integrity Commissioner must give the head of the agency:
33
Administrative provisions relating to the Commission Part 10
Public reporting Division 7
Section 235
No. , 2019
National Integrity Commission Bill 2019
221
(a) a statement setting out the opinion or finding; and
1
(b) a reasonable opportunity to appear before him or her and to
2
make submissions in relation to the opinion or finding.
3
(6) If the opinion or finding is critical of a person, the National
4
Integrity Commissioner must give the person:
5
(a) a statement setting out the opinion or finding; and
6
(b) a reasonable opportunity to appear before him or her and to
7
make submissions in relation to the opinion or finding.
8
(7) The submissions may be made orally or in writing.
9
(8) The head of a government agency may:
10
(a) appear before the National Integrity Commissioner
11
personally; or
12
(b) authorise another person to appear before the National
13
Integrity Commissioner on the head of the agency's behalf.
14
(9) A person referred to in subsection (6):
15
(a) may appear before the National Integrity Commissioner
16
personally; or
17
(b) may, with the National Integrity Commissioner's approval,
18
be represented by another person.
19
235 Contents of annual or special report
20
(1) The National Integrity Commissioner may exclude information
21
from an annual report under section 232, or a special report under
22
section 234, if the National Integrity Commissioner is satisfied
23
that:
24
(a) the information is sensitive information or the inclusion of
25
the information may:
26
(i) endanger a person's life or physical safety; or
27
(ii) prejudice proceedings brought as a result of a corruption
28
investigation or public inquiry, or an investigation of a
29
corruption issue that the National Integrity
30
Commissioner manages or oversees; or
31
(iii) compromise operational activities, or methodologies, of
32
the Commission; and
33
Part 10 Administrative provisions relating to the Commission
Division 7 Public reporting
Section 236
222
National Integrity Commission Bill 2019
No. , 2019
(b) it is desirable in the circumstances to exclude the information
1
from the report.
2
(2) In deciding whether to exclude information under subsection (1),
3
the National Integrity Commissioner must seek to achieve an
4
appropriate balance between:
5
(a) the public interest that would be served by including the
6
information in the report; and
7
(b) the prejudicial consequences that might result from including
8
the information in the report.
9
236 Public reporting--Whistleblower Protection Commissioner
10
(1) Sections 220 to 235 apply to the Whistleblower Protection
11
Commissioner as if a reference to the National Integrity
12
Commissioner were a reference to the Whistleblower Protection
13
Commissioner, a reference to a national integrity commissioner
14
function were a reference to a whistleblower protection
15
commissioner function, and a reference to corruption or corruption
16
issues were a reference to whistleblower protection issues.
17
(2) A report by the Whistleblower Protection Commissioner referred
18
to in this Division may, by arrangement with National Integrity
19
Commissioner, be published together with or as part of a report of
20
the same type by the National Integrity Commissioner.
21
Administrative provisions relating to the Commission Part 10
Confidentiality requirements Division 8
Section 237
No. , 2019
National Integrity Commission Bill 2019
223
Division 8--Confidentiality requirements
1
237 Confidentiality requirements for National Integrity Commission
2
staff
3
(1) A person who is, or has been, a staff member of the Commission
4
commits an offence if:
5
(a) the person (either directly or indirectly and either while the
6
person is, or after the person ceases to be, a staff member of
7
the 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 the person being a staff member of the
12
Commission; or
13
(ii) in the course of the carrying out the person's duties as a
14
staff member of the 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 or 60 penalty units, or both.
18
(2) Subsection (1) has effect subject to sections 238 and 239.
19
(3) To avoid doubt, if a corruption issue is investigated jointly by the
20
National Integrity Commissioner and a government agency, any
21
information that a staff member of the Commission acquires in the
22
course of participating the joint investigation is taken:
23
(a) to have been acquired by the staff member because of his or
24
her being a staff member of the Commission; and
25
(b) to have been disclosed or obtained under the provisions of, or
26
for the purposes of, this Act.
27
(4) In this Division, staff member of the Commission includes:
28
(a) the National Integrity Commissioner; and
29
(b) the Law Enforcement Integrity Commissioner; and
30
(c) the Whistleblower Protection Commissioner; and
31
Part 10 Administrative provisions relating to the Commission
Division 8 Confidentiality requirements
Section 238
224
National Integrity Commission Bill 2019
No. , 2019
(d) any Assistant Commissioner; and
1
(e) any Assistant Law Enforcement Integrity Commissioners.
2
238 Exceptions to confidentiality requirements
3
Purposes connected with Commission's functions and powers
4
(1) Subsection 237(1) does not prevent a person from making a record
5
of information, or divulging or communicating information, if the
6
person:
7
(a) acquired the information in the performance of the person's
8
duties as a staff member of the Commission; and
9
(b) makes the record, or divulges or communicates the
10
information:
11
(i) for the purposes of a corruption investigation; or
12
(ii) for purposes otherwise connected with the exercise of
13
the powers, or the performance of the national integrity
14
commissioner functions, under this Act.
15
Note:
A defendant bears an evidential burden in relation to the matter in
16
subsection (1): see subsection 13.3(3) of the Criminal Code.
17
(2) Without limiting subsection (1), subsection 237(1) does not
18
prevent a person from communicating information to another
19
person if:
20
(a) the person acquired the information in the performance of the
21
person's duties as a staff member of the Commission; and
22
(b) a provision of this Act requires or permits the staff member
23
to communicate that information to the other person.
24
Note:
A defendant bears an evidential burden in relation to the matter in
25
subsection (2): see subsection 13.3(3) of the Criminal Code.
26
Giving information to relevant agency
27
(3) Subsection 237(1) does not prevent the National Integrity
28
Commissioner or a Commissioner from disclosing information to
29
the following heads of agencies:
30
(a) the Commonwealth Ombudsman;
31
(b) an Ombudsman of a State or Territory;
32
Administrative provisions relating to the Commission Part 10
Confidentiality requirements Division 8
Section 239
No. , 2019
National Integrity Commission Bill 2019
225
(c) the head of a law enforcement agency;
1
(d) the head of a police force of a State or Territory;
2
(e) the head of another government agency;
3
if the National Integrity Commissioner or Commissioner is
4
satisfied that, having regard to the functions of the agency
5
concerned, it is appropriate to do so.
6
Note:
A defendant bears an evidential burden in relation to the matter in
7
subsection (3): see subsection 13.3(3) of the Criminal Code.
8
National Integrity Commissioner or Commissioner to be satisfied
9
that confidentiality regime in place
10
(4) If the National Integrity Commissioner or Commissioner proposes
11
to disclose information to a person under subsection (3), the
12
National Integrity Commissioner or Commissioner must satisfy
13
himself or herself that a law of the Commonwealth, a State or
14
Territory makes provision corresponding to the provision made by
15
section 237 and this section with respect to the confidentiality of
16
information acquired by that person.
17
Disclosure required by another Commonwealth law
18
(5) Subsection 237(1) does not prevent a person from disclosing
19
information if the disclosure is required under another law of the
20
Commonwealth.
21
Note:
A defendant bears an evidential burden in relation to the matter in
22
subsection (5): see subsection 13.3(3) of the Criminal Code.
23
Disclosure to particular person
24
(6) A staff member of the Commission may disclose information to a
25
particular person if the staff member is satisfied that it is necessary
26
to do so in order to protect the person's life or physical safety.
27
239 Disclosure by National Integrity Commissioner in public
28
interest etc.
29
(1) If the National Integrity Commissioner is satisfied that it is in the
30
public interest to do so, the National Integrity Commissioner may
31
disclose information to the public, or a section of the public, about:
32
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Division 8 Confidentiality requirements
Section 240
226
National Integrity Commission Bill 2019
No. , 2019
(a) the performance of the national integrity commissioner
1
functions; or
2
(b) the exercise of the National Integrity Commissioner's
3
powers; or
4
(c) an investigation of a corruption issue conducted by the
5
National Integrity Commissioner; or
6
(d) a public inquiry conducted by the National Integrity
7
Commissioner.
8
(2) Subsection (1) has effect:
9
(a) subject to subsection (3) and section 240; and
10
(b) despite any other provision of this Act.
11
(3) In deciding whether to disclose under subsection (1) information
12
that the National Integrity Commissioner is satisfied is sensitive
13
information, the National Integrity Commissioner must seek to
14
achieve an appropriate balance between:
15
(a) the public interest that would be served by disclosing the
16
information; and
17
(b) the prejudicial consequences that might result from
18
disclosing the information.
19
240 Opportunity to be heard
20
Opinion or finding critical of a government agency or person
21
(1) The National Integrity Commissioner must not disclose
22
information under section 239 in relation to an investigation of a
23
corruption issue under this Act that includes an opinion or finding
24
that is critical of a government agency or person (either expressly
25
or impliedly) unless the National Integrity Commissioner has taken
26
the action required by subsection (2) or (3) before disclosing the
27
information.
28
Opportunity to appear and make submissions
29
(2) If the opinion or finding is critical of a government agency, the
30
National Integrity Commissioner must give the head of the agency:
31
(a) a statement setting out the opinion or finding; and
32
Administrative provisions relating to the Commission Part 10
Confidentiality requirements Division 8
Section 241
No. , 2019
National Integrity Commission Bill 2019
227
(b) a reasonable opportunity to appear before him or her and to
1
make submissions in relation to the opinion or finding.
2
(3) If the opinion or finding is critical of a person, the National
3
Integrity Commissioner must give the person:
4
(a) a statement setting out the opinion or finding; and
5
(b) a reasonable opportunity to appear before him or her and to
6
make submissions in relation to the opinion or finding.
7
(4) The submissions may be made orally or in writing.
8
(5) The head of a government agency may:
9
(a) appear before the National Integrity Commissioner
10
personally; or
11
(b) authorise another person to appear before the National
12
Integrity Commissioner on head of the agency's behalf.
13
(6) A person referred to in subsection (3):
14
(a) may appear before the National Integrity Commissioner
15
personally; or
16
(b) may, with the National Integrity Commissioner's approval,
17
be represented by another person.
18
241 National Integrity Commission staff generally not compellable
19
in court proceedings
20
(1) This section applies to:
21
(a) proceedings before a court (whether exercising federal
22
jurisdiction or not); and
23
(b) proceedings before any tribunal, authority or person having
24
power to require the production of documents or the
25
answering of questions.
26
(2) A person who is, or has been, a staff member of the Commission is
27
not compellable in any proceedings to which this section applies:
28
(a) to disclose any information that:
29
(i) the person acquired because of the person being or
30
having been a staff member of the Commission; and
31
Part 10 Administrative provisions relating to the Commission
Division 8 Confidentiality requirements
Section 242
228
National Integrity Commission Bill 2019
No. , 2019
(ii) was disclosed or obtained under the provisions of, or for
1
the purposes of, this Act; or
2
(b) to produce any document that:
3
(i) has come into the person's custody or control in the
4
course of, or because of, the performance of the
5
person's duties under this Act; and
6
(ii) was produced under the provisions of, or for the
7
purposes of, this Act.
8
(3) Subsection (1) does not apply to a proceeding if:
9
(a) any of the following persons is a party to the proceedings in
10
the person's official capacity:
11
(i) the National Integrity Commissioner;
12
(ii) a delegate of the National Integrity Commissioner;
13
(iii) a person authorised by the National Integrity
14
Commissioner to exercise a power or perform a function
15
under this Act; or
16
(b) the proceeding is brought for the purposes of carrying into
17
effect a provision of this Act; or
18
(c) the proceeding is a prosecution, civil penalty proceeding or
19
confiscation proceeding brought as a result of:
20
(i) a corruption investigation or public inquiry; or
21
(ii) an investigation of a corruption issue that the National
22
Integrity Commissioner manages or oversees.
23
(4) In this section:
24
produce includes permit access to, and production has a
25
corresponding meaning.
26
242 Confidentiality requirements--Whistleblower Protection
27
Commissioner
28
Sections 237 to 241 apply to the Whistleblower Protection
29
Commissioner as if a reference to the National Integrity
30
Commissioner were a reference to the Whistleblower Protection
31
Commissioner, a reference to a national integrity commissioner
32
function were a reference to a whistleblower protection
33
Administrative provisions relating to the Commission Part 10
Confidentiality requirements Division 8
Section 242
No. , 2019
National Integrity Commission Bill 2019
229
commissioner function, and a reference to corruption or corruption
1
issues were a reference to whistleblower protection issues.
2
Part 11 Parliamentary Joint Committee on the Australian National Integrity
Commission
Section 243
230
National Integrity Commission Bill 2019
No. , 2019
Part 11--Parliamentary Joint Committee on the
1
Australian National Integrity Commission
2
3
243 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
Australian National Integrity Commission for the time being
13
constituted under 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
244 Parliamentary Joint Committee on the Australian National
21
Integrity 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 Australian National Integrity Commission is to be appointed
26
according to the practice of the Parliament with reference to the
27
appointment of members to serve on joint select committees of
28
both Houses of the Parliament.
29
Parliamentary Joint Committee on the Australian National Integrity Commission Part
11
Section 244
No. , 2019
National Integrity Commission Bill 2019
231
(2) The committee is to consist of 12 members:
1
(a) 6 of whom must be members of the Senate appointed by the
2
Senate, and 6 of whom must be members of the House of
3
Representatives appointed by that House; and
4
(b) 5 of whom must be members of the Government; and
5
(c) 5 of whom must be members of the Opposition; and
6
(d) 2 of whom must be members of the Parliament other than
7
members of the Government or Opposition.
8
(3) The co-Chairs of the committee are to be:
9
(a) the member nominated as co-Chair by the Prime Minister;
10
and
11
(b) the member nominated as co-Chair by the leader of the
12
Opposition.
13
(4) A member of the Parliament is not eligible for appointment as a
14
member of the committee if the member is:
15
(a) a Minister; or
16
(b) the President of the Senate; or
17
(c) the Speaker of the House of Representatives; or
18
(d) the Deputy President and Chair of Committees of the Senate
19
or the Deputy Speaker of the House of Representatives.
20
(5) A member ceases to hold office:
21
(a) when the House of Representatives expires by the passing of
22
time or is dissolved; or
23
(b) if the member becomes the holder of an office specified in
24
any of the paragraphs of subsection (4); or
25
(c) if the member ceases to be a member of the House of the
26
Parliament by which the member was appointed; or
27
(d) if the member resigns the member's office as provided by
28
subsection (6) or (7).
29
(6) A member appointed by the Senate may resign the member's office
30
by writing signed by him or her and delivered to the President of
31
the Senate.
32
Part 11 Parliamentary Joint Committee on the Australian National Integrity
Commission
Section 245
232
National Integrity Commission Bill 2019
No. , 2019
(7) A member appointed by the House of Representatives may resign
1
the member's office by writing signed by him or her and delivered
2
to the Speaker of that House.
3
(8) Either House of the Parliament may appoint one of its members to
4
fill a vacancy amongst the members of the committee appointed by
5
that House.
6
245 Powers and proceedings of the committee
7
All matters relating to the powers and proceedings of the
8
committee are to be determined by resolution of both Houses of the
9
Parliament.
10
246 Duties of the committee
11
National Integrity Commissioner
12
(1) The committee has the following duties in relation to the National
13
Integrity Commissioner:
14
(a) to consider the proposed recommendation for an appointment
15
of the National Integrity Commissioner in accordance with
16
section 247;
17
(b) to monitor and review the National Integrity Commissioner's
18
performance of national integrity commissioner functions;
19
(c) to report to both Houses of the Parliament, with such
20
comments as it thinks fit, on any matter:
21
(i) connected with the performance of the national integrity
22
commissioner functions; or
23
(ii) relating to the Commission;
24
that the committee considers should be directed to the
25
attention of Parliament;
26
(d) to examine:
27
(i) each annual report prepared by the National Integrity
28
Commissioner under section 232; and
29
(ii) any special report prepared by the National Integrity
30
Commissioner under section 234;
31
Parliamentary Joint Committee on the Australian National Integrity Commission Part
11
Section 246
No. , 2019
National Integrity Commission Bill 2019
233
and report to the Parliament on any matter appearing in, or
1
arising out of, any such annual report or special report;
2
(e) to examine trends and changes in law enforcement in so far
3
as they relate to corruption and report to both Houses of the
4
Parliament on any change that the committee thinks
5
desirable:
6
(i) to the national integrity commissioner functions or the
7
powers of the National Integrity Commissioner; or
8
(ii) to the procedures followed by the National Integrity
9
Commissioner; or
10
(iii) to the structure of the Commission;
11
(f) to inquire into any question in connection with the
12
committee's duties that is referred to it by either House of the
13
Parliament, and to report to that House on that question.
14
(2) Subsection (1) does not authorise the committee:
15
(a) to investigate a corruption issue; or
16
(b) to reconsider the National Integrity Commissioner's
17
decisions or recommendations in relation to a particular
18
corruption issue.
19
Law Enforcement Integrity Commissioner
20
(3) The committee has the following duties in relation to the Law
21
Enforcement Integrity Commissioner:
22
(a) to monitor and review the Law Enforcement Integrity
23
Commissioner's performance of law enforcement integrity
24
commissioner functions;
25
(b) to report to both Houses of the Parliament, with such
26
comments as it thinks fit, on any matter:
27
(i) connected with the performance of the law enforcement
28
integrity commissioner functions; or
29
(ii) relating to the Australian Commission for Law
30
Enforcement Integrity;
31
that the committee considers should be directed to the
32
attention of Parliament;
33
(c) to examine:
34
Part 11 Parliamentary Joint Committee on the Australian National Integrity
Commission
Section 246
234
National Integrity Commission Bill 2019
No. , 2019
(i) each annual report prepared by the Law Enforcement
1
Integrity Commissioner under section 201 of the Law
2
Enforcement Integrity Commissioner Act 2006; and
3
(ii) any special report prepared by the Law Enforcement
4
Integrity Commissioner under section 204 of the Law
5
Enforcement Integrity Commissioner Act 2006;
6
and report to the Parliament on any matter appearing in, or
7
arising out of, any such annual report or special report;
8
(d) to examine trends and changes in:
9
(i) law enforcement in so far as they relate to corruption;
10
and
11
(ii) corruption generally in, or the integrity of staff members
12
of, Commonwealth agencies with a law enforcement
13
function;
14
and report to both Houses of the Parliament on any change
15
that the committee thinks desirable:
16
(iii) to the law enforcement integrity commissioner functions
17
or the powers of the Law Enforcement Integrity
18
Commissioner; or
19
(iv) to the procedures followed by the Law Enforcement
20
Integrity Commissioner; or
21
(v) to the structure of the Australian Commission for Law
22
Enforcement Integrity;
23
(e) to inquire into any question in connection with the
24
committee's duties that is referred to it by either House of the
25
Parliament, and to report to that House upon that question.
26
(4) Subsection (3) does not authorise the committee:
27
(a) to investigate a corruption issue (as defined in section 7 of
28
the Law Enforcement Integrity Commissioner Act 2006) or an
29
ACLEI corruption issue; or
30
(b) to reconsider the Law Enforcement Integrity Commissioner's
31
decisions or recommendations in relation to a particular
32
corruption issue (as defined in section 7 of the Law
33
Enforcement Integrity Commissioner Act 2006) or an ACLEI
34
corruption issue; or
35
Parliamentary Joint Committee on the Australian National Integrity Commission Part
11
Section 247
No. , 2019
National Integrity Commission Bill 2019
235
(c) to reconsider a special investigator's decisions or
1
recommendations in relation to an ACLEI corruption issue.
2
Assistant Commissioners, CEO and Parliamentary Inspector
3
(5) The committee has the duty to consider the proposed
4
recommendation for an appointment of an Assistant
5
Commissioner, the CEO or the Parliamentary Inspector, in
6
accordance with section 247.
7
247 Committee may approve or reject recommendation for
8
appointment
9
National Integrity Commissioner and Assistant Commissioners
10
(1) If the Minister refers a proposed recommendation for an
11
appointment of the National Integrity Commissioner or an
12
Assistant Commissioner to the committee for approval, the
13
committee must:
14
(a) approve or reject the proposed recommendation within 10
15
sitting days after receiving it; or
16
(b) notify the Minister in accordance with subsection (2).
17
Note:
See sections 187 and 206.
18
(2) The committee may notify the Minister within 10 sitting days after
19
receiving a proposed recommendation that it needs more time to
20
consider the proposed recommendation. If the committee does so,
21
the committee must approve or reject the proposed
22
recommendation within 20 sitting days after receiving it.
23
CEO
24
(3) If the Commission refers a proposed recommendation for an
25
appointment of the CEO to the committee for approval, the
26
committee must:
27
(a) approve or reject the proposed recommendation within 10
28
sitting days after receiving it; or
29
(b) notify the Commission in accordance with subsection (4).
30
Note:
See section 215.
31
Part 11 Parliamentary Joint Committee on the Australian National Integrity
Commission
Section 247
236
National Integrity Commission Bill 2019
No. , 2019
(4) The committee may notify the Commission within 10 sitting days
1
after receiving a proposed recommendation that it needs more time
2
to consider the proposed recommendation. If the committee does
3
so, the committee must approve or reject the proposed
4
recommendation within 20 sitting days after receiving it.
5
Parliamentary Inspector
6
(5) If the Presiding Officers refers a proposed recommendation for an
7
appointment of the Parliamentary Inspector to the committee for
8
approval, the committee must:
9
(a) approve or reject the proposed recommendation within 10
10
sitting days after receiving it; or
11
(b) notify the Presiding Officers in accordance with
12
subsection (6).
13
Note:
See section 262.
14
(6) The committee may notify the Presiding Officers within 10 sitting
15
days after receiving a proposed recommendation that it needs more
16
time to consider the proposed recommendation. If the committee
17
does so, the committee must approve or reject the proposed
18
recommendation within 20 sitting days after receiving it.
19
Making of decision
20
(7) The decision to approve or reject a proposed recommendation must
21
be:
22
(a) by majority of the members of the committee for the time
23
being holding office; and
24
(b) the majority must include at least 2 members of each of the
25
Government and the Opposition.
26
(8) If the committee does not make a decision on a proposed
27
recommendation by the required time, the committee is taken, at
28
that time, to have approved the proposal.
29
(9) The committee must notify the Minister, the Commission of the
30
Presiding Officers (as the case may be) of its decision in relation to
31
a proposed recommendation as soon as practicable after making
32
the decision.
33
Parliamentary Joint Committee on the Australian National Integrity Commission Part
11
Section 248
No. , 2019
National Integrity Commission Bill 2019
237
(10) A notification under this section must be in writing.
1
(11) The committee must report to both Houses of the Parliament on its
2
decision in relation to a proposed recommendation.
3
248 Disclosure to committee by National Integrity Commissioner
4
(1) Subject to subsection (2), the National Integrity Commissioner:
5
(a) must comply with a request by the committee to give the
6
committee information in relation to:
7
(i) an investigation of a corruption issue; or
8
(ii) a public inquiry;
9
that the National Integrity Commissioner has conducted or is
10
conducting; and
11
(b) must when requested by the committee, and may at such
12
other times as the National Integrity Commissioner thinks
13
appropriate, inform the committee concerning the general
14
performance of the national integrity commissioner
15
functions.
16
(2) The National Integrity Commissioner may decide not to comply
17
with the request if the National Integrity Commissioner is satisfied
18
that:
19
(a) the information is sensitive information; and
20
(b) the public interest that would be served by giving the
21
information to the committee is outweighed by the
22
prejudicial consequences that might result from giving the
23
information to the committee.
24
(3) If the National Integrity Commissioner does not give information
25
to the committee because of subsection (2), the committee may
26
refer the request to the Minister.
27
(4) If the committee refers the request to the Minister, the Minister:
28
(a) must determine in writing whether:
29
(i) the information is sensitive information; and
30
(ii) if it is, whether the public interest that would be served
31
by giving the information to the committee is
32
Part 11 Parliamentary Joint Committee on the Australian National Integrity
Commission
Section 249
238
National Integrity Commission Bill 2019
No. , 2019
outweighed by the prejudicial consequences that might
1
result from giving the information to the committee; and
2
(b) must provide copies of that determination to the National
3
Integrity Commissioner and the committee; and
4
(c) must not disclose the Minister's reasons for determining the
5
question referred to in subparagraph (a)(ii) in the way stated
6
in the determination.
7
(5) A determination made by the Minister under subsection (4) is not a
8
legislative instrument.
9
(6) If the Minister determines that:
10
(a) the information is not sensitive information; or
11
(b) the information is sensitive information but the prejudicial
12
consequences that might result from giving the information
13
to the committee do not outweigh the public interest that
14
would be served by giving the information to the committee;
15
the National Integrity Commissioner must give the information to
16
the committee.
17
249 Parliamentary Joint Committee--Whistleblower Protection
18
Commissioner
19
Sections 246 to 248 apply to the duties and powers of the
20
Parliamentary Joint Committee as if a reference to the National
21
Integrity Commissioner were a reference to the Whistleblower
22
Protection Commissioner, a reference to a national integrity
23
commissioner function were a reference to a whistleblower
24
protection commissioner function, and a reference to corruption or
25
corruption issues were a reference to whistleblower protection
26
issues.
27
250 Disclosure to committee by Law Enforcement Integrity
28
Commissioner
29
(1) Subject to subsections (2) and (3), the Law Enforcement Integrity
30
Commissioner:
31
(a) must comply with a request by the committee to give the
32
committee information in relation to:
33
Parliamentary Joint Committee on the Australian National Integrity Commission Part
11
Section 250
No. , 2019
National Integrity Commission Bill 2019
239
(i) an investigation of a corruption issue (as defined in
1
section 7 of the Law Enforcement Integrity
2
Commissioner Act 2006); or
3
(ii) a public inquiry under Part 8 of the Law Enforcement
4
Integrity Commissioner Act 2006;
5
that the Law Enforcement Integrity Commissioner has
6
conducted or is conducting; and
7
(b) must when requested by the committee, and may at such
8
other times as the Law Enforcement Integrity Commissioner
9
thinks appropriate, inform the committee concerning the
10
general performance of the law enforcement integrity
11
commissioner functions.
12
(2) The Law Enforcement Integrity Commissioner must not comply
13
with the request if:
14
(a) the information is section 149 certified information; and
15
(b) the disclosure of the information to the committee would
16
contravene the certificate issued under section 149 of the Law
17
Enforcement Integrity Commissioner Act 2006.
18
(3) The Law Enforcement Integrity Commissioner may decide not to
19
comply with the request if the Law Enforcement Integrity
20
Commissioner is satisfied that:
21
(a) the information is sensitive information; and
22
(b) the public interest that would be served by giving the
23
information to the committee is outweighed by the
24
prejudicial consequences that might result from giving the
25
information to the committee.
26
(4) If the Law Enforcement Integrity Commissioner does not give
27
information to the committee because of subsection (3), the
28
committee may refer the request to the Minister.
29
(5) If the committee refers the request to the Minister, the Minister:
30
(a) must determine in writing whether:
31
(i) the information is sensitive information; and
32
(ii) if it is, whether the public interest that would be served
33
by giving the information to the committee is
34
Part 11 Parliamentary Joint Committee on the Australian National Integrity
Commission
Section 251
240
National Integrity Commission Bill 2019
No. , 2019
outweighed by the prejudicial consequences that might
1
result from giving the information to the committee; and
2
(b) must provide copies of that determination to the Law
3
Enforcement Integrity Commissioner and the committee; and
4
(c) must not disclose the Minister's reasons for determining the
5
question referred to in subparagraph (a)(ii) in the way stated
6
in the determination.
7
(6) A determination made by the Minister under subsection (5) is not a
8
legislative instrument.
9
(7) If the Minister determines that:
10
(a) the information is not sensitive information; or
11
(b) the information is sensitive information but the prejudicial
12
consequences that might result from giving the information
13
to the committee do not outweigh the public interest that
14
would be served by giving the information to the committee;
15
the Law Enforcement Integrity Commissioner must give the
16
information to the committee.
17
251 Disclosure to committee by Minister
18
(1) Subject to subsections (2) and (3), the Minister must comply with a
19
request by the committee to give the committee information in
20
relation to an investigation of an ACLEI corruption issue that a
21
special investigator has conducted or is conducting.
22
(2) The Minister must not comply with the request if:
23
(a) the information is section 149 certified information; and
24
(b) the disclosure of the information to the committee would
25
contravene the certificate issued under section 149 of the Law
26
Enforcement Integrity Commissioner Act 2006.
27
(3) The Minister may decide not to comply with the request if the
28
Minister is satisfied that:
29
(a) the information is sensitive information; and
30
(b) the public interest that would be served by giving the
31
information to the committee is outweighed by the
32
Parliamentary Joint Committee on the Australian National Integrity Commission Part
11
Section 252
No. , 2019
National Integrity Commission Bill 2019
241
prejudicial consequences that might result from giving the
1
information to the committee.
2
252 Ombudsman to brief committee about controlled operations
3
(1) At least once in each year the Ombudsman must provide a briefing
4
to the committee about the Law Enforcement Integrity
5
Commissioner's involvement in controlled operations under
6
Part IAB of the Crimes Act 1914 during the preceding 12 months.
7
(2) For the purposes of receiving a briefing from the Ombudsman
8
under subsection (1), the committee must meet in private.
9
Part 12 Parliamentary Inspector of the Australian National Integrity Commission
Division 1 Establishment and functions and powers of the Parliamentary Inspector of
the Australian National Integrity Commission
Section 253
242
National Integrity Commission Bill 2019
No. , 2019
Part 12--Parliamentary Inspector of the Australian
1
National Integrity Commission
2
Division 1--Establishment and functions and powers of the
3
Parliamentary Inspector of the Australian
4
National Integrity Commission
5
253 Parliamentary Inspector of the Australian National Integrity
6
Commission
7
(1) There is to be a Parliamentary Inspector of the Australian National
8
Integrity Commission.
9
(2) The Parliamentary Inspector of the Australian National Integrity
10
Commission is an independent officer of the Parliament.
11
254 Functions of the Parliamentary Inspector
12
(1) The functions of the Parliamentary Inspector are, as required by the
13
Parliamentary Joint Committee, to do the following:
14
(a) inspect records kept by the Commission, including
15
operational files and accompanying documentary material,
16
for the purpose of forming an opinion as to whether:
17
(i) the Commission has exercised power in an appropriate
18
way;
19
(ii) required authorisations for the exercise of power have
20
been obtained;
21
(iii) any practice or procedural guidelines set by the
22
Commission are adequate, having regard to risk;
23
(iv) any practice or procedural guidelines set by the
24
Commission have been strictly complied with;
25
(b) investigate complaints made against, or concerns expressed
26
about, the conduct or activities of the Commission or its staff;
27
(c) audit the Commission's systems of governance and risk
28
management relating to control of information, including
29
Parliamentary Inspector of the Australian National Integrity Commission Part 12
Establishment and functions and powers of the Parliamentary Inspector of the
Australian National Integrity Commission Division 1
Section 255
No. , 2019
National Integrity Commission Bill 2019
243
relating to the protection of whistleblowers and human
1
sources;
2
(d) review alleged incidences of possible unauthorised disclosure
3
of information or other material that, under an enactment, is
4
confidential;
5
(e) review information given by the Commission to the
6
Parliamentary Joint Committee to verify its accuracy and
7
completeness, particularly in relation to an operational
8
matter;
9
(f) report, and make recommendations, to the Parliamentary
10
Joint Committee on the results of performing the functions
11
mentioned in paragraphs (a) to (e).
12
(2) A requirement under subsection (1) is effective only if it is
13
requested or authorised in terms of reference jointly issued by the
14
co-Chairs of the Parliamentary Joint Committee.
15
(3) The Parliamentary Inspector also has such other functions as are
16
conferred on the Parliamentary Inspector by this Act or any other
17
law of the Commonwealth.
18
255 Matters arising from a conduct investigation
19
(1) This section applies if the Parliamentary Inspector investigates a
20
matter relating to the conduct of a person.
21
(2) The Parliamentary Inspector may seek the assistance of the AFP or
22
a police service of a State of Territory to assist in the investigation
23
of a criminal offence.
24
(3) If, from information obtained in conducting the investigation, the
25
Parliamentary Inspector decides that prosecution proceedings for
26
an offence should be considered, the Parliamentary Inspector may
27
give information or evidence gathered about the matter to the
28
Director of Public Prosecutions, or other appropriate prosecuting
29
authority, for the purposes of any prosecution proceedings the
30
director or other authority considers warranted.
31
Part 12 Parliamentary Inspector of the Australian National Integrity Commission
Division 1 Establishment and functions and powers of the Parliamentary Inspector of
the Australian National Integrity Commission
Section 256
244
National Integrity Commission Bill 2019
No. , 2019
256 Report on conduct investigations conducted by Parliamentary
1
Inspector
2
(1) If the matter involved conduct of a staff member of the
3
Commission, the Parliamentary Inspector may produce a report
4
relating to the information or evidence gathered, and may include:
5
(a) for conduct of the National Integrity Commissioner, a
6
Commissioner, an Assistant Commissioner or the CEO--a
7
recommendation to the Minister or the Parliamentary Joint
8
Committee that the Minister or Parliamentary Joint
9
Committee consider whether disciplinary action should be
10
taken against that staff member; or
11
(b) for conduct of another staff member of the Commission--a
12
recommendation to the CEO that the CEO consider whether
13
disciplinary action should be taken against the staff member.
14
(2) The Parliamentary Inspector must not include in a report under
15
subsection (1):
16
(a) any statement that a person has engaged, is engaging or is
17
about to engage in conduct that constitutes a criminal offence
18
or disciplinary breach; or
19
(b) any opinion or recommendation that a person should be
20
prosecuted for a criminal offence or be the subject of
21
disciplinary action or further disciplinary action.
22
(3) The Parliamentary Joint Committee or the Minister, as the case
23
may be, may table the report, or an extract from the report if, and
24
only if:
25
(a) the Parliamentary Joint Committee or Minister is satisfied of
26
the following:
27
(i) the report relates to a case of serious corrupt conduct or
28
systemic corrupt conduct;
29
(ii) tabling the report or extract is in the public interest; and
30
(b) if the tabling of the report or extract would disclose
31
information adverse to a person, the person has been afforded
32
procedural fairness for the disclosure.
33
Parliamentary Inspector of the Australian National Integrity Commission Part 12
Establishment and functions and powers of the Parliamentary Inspector of the
Australian National Integrity Commission Division 1
Section 257
No. , 2019
National Integrity Commission Bill 2019
245
257 Parliamentary Inspector cannot be required to disclose
1
particular information
2
The Parliamentary Inspector cannot be required by the
3
Parliamentary Joint Committee to disclose to the Committee
4
information relating to a conduct investigation conducted by the
5
Parliamentary Inspector.
6
Part 12 Parliamentary Inspector of the Australian National Integrity Commission
Division 2 Audits, investigations, reviews and reports
Section 258
246
National Integrity Commission Bill 2019
No. , 2019
Division 2--Audits, investigations, reviews and reports
1
258 Process for conducting an audit, investigation or review
2
An audit, inspection, investigation or review conducted by the
3
Parliamentary Inspector is to be conducted in accordance with the
4
process prescribed by the regulations.
5
259 Contents of reports on results of performance of functions
6
A report by the Parliamentary Inspector on the performance of a
7
function referred to in subsection 254(1) must be prepared in
8
accordance with the requirements prescribed by the regulations.
9
260 Parliamentary Inspector may require information etc.
10
For the purposes of performing his or her functions, the
11
Parliamentary Inspector may exercise any of the powers of the
12
National Integrity Commissioner, as prescribed by the regulations.
13
261 Privilege against self-incrimination
14
A person required by notice or summons to produce information to
15
the Parliamentary Inspector enjoys the same privileges and
16
immunities, and holds the dame obligations and responsibilities, as
17
if the person were subject to a notice or summons issued by the
18
National Integrity Commissioner.
19
Parliamentary Inspector of the Australian National Integrity Commission Part 12
Administrative provisions relating to the Parliamentary Inspector Division 3
Section 262
No. , 2019
National Integrity Commission Bill 2019
247
Division 3--Administrative provisions relating to the
1
Parliamentary Inspector
2
262 Appointment of Parliamentary Inspector
3
(1) The Parliamentary Inspector is to be appointed by the Presiding
4
Officers by written instrument.
5
(2) A person must not be appointed as the Parliamentary Inspector
6
unless the person:
7
(a) is or has been a Judge of the Federal Court or the Supreme
8
Court of a State or Territory; or
9
(b) is qualified for appointment as such a Judge.
10
(3) Before the Presiding Officers appoint a person as the Parliamentary
11
Inspector:
12
(a) the Presiding Officers must refer the proposed
13
recommendation for the appointment to the Parliamentary
14
Joint Committee under section 247; and
15
(b) either:
16
(i) the period that the committee has under that section to
17
consider the proposed recommendation has ended
18
without the committee rejecting the proposed
19
recommendation; or
20
(ii) the committee notifies the Presiding Officers that it has
21
decided to approve the proposed recommendation.
22
(4) Subject to section 263, a person may be proposed for appointment
23
on more than one occasion.
24
(5) In this section and sections 246 and 247, appointment includes
25
re-appointment.
26
(6) The Presiding Officers may, for the purpose of appointing to the
27
office of the National Integrity Commissioner a person who is the
28
holder of a judicial office of a State or Territory, enter into such
29
arrangement with the Governor of that State or the Administrator
30
of that Territory, as the case may be, as is necessary to secure that
31
person's services.
32
Part 12 Parliamentary Inspector of the Australian National Integrity Commission
Division 3 Administrative provisions relating to the Parliamentary Inspector
Section 263
248
National Integrity Commission Bill 2019
No. , 2019
(7) An arrangement under subsection (6) may provide for the
1
Commonwealth to reimburse a State or Territory with respect to
2
the services of the person to whom the arrangement relates.
3
263 General terms and conditions of appointment
4
(1) The Parliamentary Inspector holds office for the period specified in
5
the instrument of appointment. The period must not exceed 5 years.
6
The sum of the periods for which the Parliamentary Inspector holds
7
office must not exceed 10 years.
8
(2) The Parliamentary Inspector may be appointed on a full-time or
9
part-time basis.
10
(3) The Parliamentary Inspector holds office on the terms and
11
conditions (if any), in relation to matters not covered by this Act,
12
that are determined by the Presiding Officers.
13
264 Other paid work
14
(1) If the Parliamentary Inspector is appointed on a full-time basis, the
15
Parliamentary Inspector must not engage in paid work outside the
16
duties of the Parliamentary Inspector office without the Presiding
17
Officers' approval.
18
(2) If the Parliamentary Inspector is appointed on a part-time basis, the
19
Parliamentary Inspector must not engage in any paid work that
20
conflicts or may conflict with the proper performance of the
21
Parliamentary Inspector's duties.
22
265 Remuneration
23
(1) The Parliamentary Inspector is to be paid the remuneration that is
24
determined by the Remuneration Tribunal. If no determination of
25
that remuneration by the Tribunal is in operation, the Parliamentary
26
Inspector is to be paid the remuneration that is prescribed by the
27
regulations.
28
(2) The Parliamentary Inspector is to be paid the allowances that are
29
prescribed by the regulations.
30
Parliamentary Inspector of the Australian National Integrity Commission Part 12
Administrative provisions relating to the Parliamentary Inspector Division 3
Section 266
No. , 2019
National Integrity Commission Bill 2019
249
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973
1
do not apply in relation to the office of the Parliamentary Inspector
2
Note:
The effect of this subsection is that remuneration or allowances of the
3
Parliamentary Inspector will be paid out of money appropriated by an
4
Act other than the Remuneration Tribunal Act 1973.
5
(4) This section has effect subject to the Remuneration Tribunal Act
6
1973 (except as provided by subsection (3)).
7
266 Leave of absence
8
(1) If the Parliamentary Inspector is appointed on a full-time basis, the
9
Parliamentary Inspector has the recreation leave entitlements that
10
are determined by the Remuneration Tribunal.
11
(2) If the Parliamentary Inspector is appointed on a full-time basis, the
12
Presiding Officers may grant the Parliamentary Inspector leave of
13
absence, other than recreation leave, on the terms and conditions as
14
to remuneration or otherwise that the Presiding Officers determine.
15
267 Resignation
16
(1) The Parliamentary Inspector may resign the Parliamentary
17
Inspector's appointment by giving the Presiding Officers a written
18
resignation.
19
(2) The resignation takes effect on the day it is received by the
20
Presiding Officers or, if a later day is specified in the resignation,
21
on that later day.
22
268 Termination of appointment
23
(1) The Presiding Officers may terminate the appointment of the
24
Parliamentary Inspector:
25
(a) for misbehaviour; or
26
(b) if the Parliamentary Inspector is unable to perform the duties
27
of the Parliamentary Inspector's office because of physical or
28
mental incapacity.
29
(2) The Presiding Officers may terminate the appointment of the
30
Parliamentary Inspector if any of the following apply:
31
Part 12 Parliamentary Inspector of the Australian National Integrity Commission
Division 3 Administrative provisions relating to the Parliamentary Inspector
Section 269
250
National Integrity Commission Bill 2019
No. , 2019
(a) the Parliamentary Inspector:
1
(i) becomes bankrupt; or
2
(ii) applies to take the benefit of any law for the relief of
3
bankrupt or insolvent debtors; or
4
(iii) compounds with the Parliamentary Inspector's
5
creditors; or
6
(iv) makes an assignment of the Parliamentary Inspector's
7
remuneration for the benefit of the Parliamentary
8
Inspector's creditors;
9
(b) if the Parliamentary Inspector is appointed on a full-time
10
basis:
11
(i) the Parliamentary Inspector engages, except with
12
Presiding Officers' approval, in paid work outside the
13
duties of the Parliamentary Inspector's office; or
14
(ii) the Parliamentary Inspector is absent, except on leave of
15
absence, for 14 consecutive days or for 28 days in any
16
12 months;
17
(c) if the Parliamentary Inspector is appointed on a part-time
18
basis--the Parliamentary Inspector engages in paid work that
19
conflicts or may conflict with the proper performance of the
20
Parliamentary Inspector's duties;
21
(d) the Parliamentary Inspector Adviser fails, without reasonable
22
excuse, to comply with section 270.
23
269 Acting appointments
24
(1) The Presiding Officers may, by written instrument, appoint a
25
person to act as the Parliamentary Inspector:
26
(a) during a vacancy in the office of the Parliamentary Inspector
27
(whether or not an appointment has previously been made to
28
the office); or
29
(b) during any period, or during all periods, when the
30
Parliamentary Inspector:
31
(i) is absent from duty or from Australia; or
32
(ii) is, for any reason, unable to perform the duties of the
33
office.
34
Parliamentary Inspector of the Australian National Integrity Commission Part 12
Administrative provisions relating to the Parliamentary Inspector Division 3
Section 270
No. , 2019
National Integrity Commission Bill 2019
251
(2) The Presiding Officers must not appoint the National Integrity
1
Commissioner, the Law Enforcement Integrity Commissioner, the
2
Whistleblowing Protection Commissioner, an Assistant
3
Commissioner, an Assistant Law Enforcement Integrity
4
Commissioner, the Parliamentary Standards Commissioner, the
5
Parliamentary Integrity Adviser or another staff member of the
6
Commission to act as the Parliamentary Inspector.
7
270 Disclosure of interests
8
The Parliamentary Inspector must give written notice to the
9
Presiding Officers of all interests, pecuniary or otherwise, that the
10
Parliamentary Inspector has or acquires and that conflict or could
11
conflict with the proper performance of the Parliamentary
12
Inspector's functions.
13
271 Assistance to Parliamentary Inspector
14
(1) The Parliamentary Inspector may seek assistance from the
15
Presiding Officers to support the performance of the Parliamentary
16
Inspector's functions.
17
(2) The assistance may include the following:
18
(a) the provision of information;
19
(b) the provision of advice;
20
(c) the making available of resources, staff, consulting services
21
and facilities.
22
(3) Any other Department, agency or authority of the Commonwealth
23
(other than the National Integrity Commission) may also assist the
24
Parliamentary Inspector in the performance of the Parliamentary
25
Inspector's functions.
26
Part 13 Miscellaneous
Section 272
252
National Integrity Commission Bill 2019
No. , 2019
Part 13--Miscellaneous
1
2
272 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
273 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 Circuit Court under the Administrative
25
Decisions (Judicial Review) Act 1977 for an order of review in
26
respect of a matter arising under this Act.
27
(2) The Attorney-General may, if the Attorney-General is satisfied
28
that:
29
(a) it would involve substantial hardship to the person to refuse
30
the application; or
31
Miscellaneous Part 13
Section 274
No. , 2019
National Integrity Commission Bill 2019
253
(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 Circuit 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
274 Immunity from civil proceedings
13
(1) A staff member of the Commission is not liable to civil
14
proceedings in relation to an act done, or omitted to be done, in
15
good faith, in the performance or purported performance, or
16
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 Commission is not liable to
20
civil proceedings in relation to an act done, or omitted to be done,
21
in good faith for the purpose of assisting the staff member.
22
(3) If:
23
(a) information or evidence has been given to the National
24
Integrity Commissioner; or
25
(b) a document or thing has been produced to the National
26
Integrity Commissioner;
27
a person is not liable to an action, suit or proceeding in respect of
28
loss, damage or injury of any kind suffered by another person by
29
reason only that the information or evidence was given or the
30
document or thing was produced.
31
Part 13 Miscellaneous
Section 275
254
National Integrity Commission Bill 2019
No. , 2019
275 Immunities from certain State and Territory laws
1
The National Integrity Commissioner, an Assistant Commissioner
2
or any other staff member of the Commission is not required under,
3
or by reason of, a law of a State or Territory:
4
(a) to obtain or have a licence or permission for doing any act or
5
thing in the exercise of the person's powers or the
6
performance of the person's duties as the National Integrity
7
Commissioner, an Assistant Commissioner or the other staff
8
member of the Commission; or
9
(b) to register any vehicle, vessel, animal or article belonging to
10
the Commonwealth.
11
276 Miscellaneous--Whistleblower Protection Commissioner
12
Sections 272 to 275 apply to the Whistleblower Protection
13
Commissioner as if a reference to the National Integrity
14
Commissioner were a reference to the Whistleblower Protection
15
Commissioner, and a reference to corruption or corruption issues
16
were a reference to whistleblower protection issues.
17
277 Review relating to the Law Enforcement Integrity
18
Commissioner etc.
19
(1) It is the intention of Parliament that the functions conferred on the
20
Law Enforcement Integrity Commissioner under section 15 of the
21
Law Enforcement Integrity Commissioner Act 2006 are transferred
22
to the Commission.
23
(2) The Minister must cause to be undertaken a review of the preferred
24
legislative options to:
25
(a) transfer the functions conferred on the Law Enforcement
26
Integrity Commissioner under section 15 of the Law
27
Enforcement Integrity Commissioner Act 2006 to the
28
Commission; and
29
(b) update the provisions of this Act (whether included in this
30
Act before the review or to be included as recommended by
31
the review) relating to search warrants, to align with
32
Miscellaneous Part 13
Section 278
No. , 2019
National Integrity Commission Bill 2019
255
contemporary legislative approaches relating to search
1
warrants; and
2
(c) ensure alignment between the treatment of matters relating to
3
whistleblowers in this Act and the Public Interest Disclosure
4
Act 2013.
5
(3) The Minister must ensure that public consultation is undertaken in
6
connection with the undertaking of the review.
7
(4) The Minister must cause to be prepared a written report of the
8
review.
9
(5) The report must be completed within 6 months after the
10
commencement of this section.
11
(6) The Minister must cause a copy of the report to be laid before each
12
House of the Parliament within 15 sitting days of that House after
13
the day on which the Minister receives the report.
14
278 Review relating to judicial integrity
15
(1) It is the intention of Parliament that there be a robust system of
16
integrity oversight for Commonwealth judicial officers consistent
17
with section 72 of the Constitution.
18
(2) The Minister must cause to be undertaken a review of the preferred
19
legislative options for establishing a body or bodies to ensure such
20
oversight.
21
(3) The Minister must ensure that public consultation is undertaken in
22
connection with the undertaking of the review.
23
(4) The review must take into account the advice of the Chief Justice
24
or Chief Judge of each federal court.
25
(5) The Minister must cause to be prepared a written report of the
26
review.
27
(6) The report must be completed within 6 months after the
28
commencement of this section.
29
Part 13 Miscellaneous
Section 279
256
National Integrity Commission Bill 2019
No. , 2019
(7) The Minister must cause a copy of the report to be laid before each
1
House of the Parliament within 15 sitting days of that House after
2
the day on which the Minister receives the report.
3
279 Review of operation of Act
4
Undertaking the review
5
(1) The Minister must cause an independent review to be undertaken
6
of the first 3 years of the operation of this Act.
7
Report to Minister
8
(2) The persons undertaking the review must give the Minister a
9
written report of the review within 6 months after the end of the
10
3-year period.
11
Submissions
12
(3) The review must include an opportunity for:
13
(a) persons who are, or have been, staff members of the
14
Commission; and
15
(b) members of the public;
16
to make written submissions on the operation of this Act.
17
Assistance
18
(4) The National Integrity Commissioner and staff members of the
19
Commission must, if requested to do so by the persons undertaking
20
the review, assist them in:
21
(a) conducting the review; and
22
(b) preparing the written report.
23
Tabling of report
24
(5) The Minister must cause a copy of the report of the review to be
25
tabled in each House of the Parliament within 15 sitting days of
26
that House after the Minister receives the report.
27
Miscellaneous Part 13
Section 280
No. , 2019
National Integrity Commission Bill 2019
257
Section not to apply if review conducted by Parliamentary
1
committee
2
(6) However, this section does not apply if a committee of one or both
3
Houses of the Parliament (including the Parliamentary Joint
4
Committee) has reviewed the operation of this Act, or started such
5
a review, before the end of the 3-year period.
6
Definition
7
(7) In this section:
8
independent review means a review undertaken by a person or
9
persons who, in the Minister's opinion, possess appropriate
10
qualifications to undertake the review.
11
280 Schedules
12
Legislation that is specified in a Schedule to this Act is amended or
13
repealed as set out in the applicable items in the Schedule
14
concerned, and any other item in a Schedule to this Act has effect
15
according to its terms.
16
281 Regulations
17
(1) The Governor-General may make regulations prescribing matters:
18
(a) required or permitted by this Act to be prescribed; or
19
(b) necessary or convenient to be prescribed for carrying out or
20
giving effect to this Act.
21
(2) The regulations may require that information or reports that are
22
required to be given under prescribed provisions are also to be
23
given to prescribed persons in specified circumstances.
24
Schedule 1 Amendments
258
National Integrity Commission Bill 2019
No. , 2019
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
2 At the end of Division 1 of Part 13
9
Add:
10
184 National Integrity Commissioner may give directions to the
11
Integrity Commissioner
12
(1) The National Integrity Commissioner may give written directions
13
to the Integrity Commissioner about the performance of Integrity
14
Commissioner's functions or the exercise of the Integrity
15
Commissioner's powers.
16
(2) The Integrity Commissioner must comply with a direction under
17
subsection (1).
18
(3) Subsection (2) does not apply to the extent that:
19
(a) compliance with the direction would be inconsistent with the
20
Integrity Commissioner's performance of functions or
21
exercise of powers under the Public Governance,
22
Performance and Accountability Act 2013 in relation to the
23
ACLEI; or
24
(b) the direction relates to the Integrity Commissioner's
25
performance of functions or exercise of powers under the
26
Public Service Act 1999 in relation to ACLEI.
27
(3) A direction under subsection (1) is not a legislative instrument.
28
3 Subsection 197(1)
29
Omit "(1)".
30
Amendments Schedule 1
No. , 2019
National Integrity Commission Bill 2019
259
4 Subsection 197(2)
1
Repeal the subsection.
2
5 Part 14
3
Repeal the Part.
4
Ombudsman Act 1976
5
6 After subsection 6(15)
6
Insert:
7
(15A) If the Ombudsman forms the opinion:
8
(a) that a complaint involves an allegation, or information, that
9
raises a corruption issue; and
10
(b) that the allegation or information could have been referred to
11
the National Integrity Commissioner under Part 4 of the
12
National Integrity Commission Act 2019 and could be more
13
conveniently or effectively dealt with by the National
14
Integrity Commissioner;
15
the Ombudsman may decide not to investigate the complaint, or
16
not to investigate the complaint further, as the case may be, and to
17
refer the allegation or information to the National Integrity
18
Commissioner.
19
(15B) If the Ombudsman makes a decision under subsection (15A), the
20
Ombudsman must:
21
(a) refer the allegation, or information, that raises the corruption
22
issue to the National Integrity Commissioner as soon as is
23
reasonably practicable; and
24
(b) give the National Integrity Commissioner any information or
25
documents relating to the complaint that are in the
26
possession, or under the control, of the Ombudsman; and
27
(c) as soon as is reasonably practicable, give the complainant
28
written notice that the complaint has been transferred to the
29
National Integrity Commissioner.
30
(15C) In subsections (15A) and (15B):
31
corruption issue has the same meaning as in the National Integrity
32
Commission Act 2019.
33
Schedule 1 Amendments
260
National Integrity Commission Bill 2019
No. , 2019
National Integrity Commissioner has the same meaning as in the
1
National Integrity Commission Act 2019.
2
Public Interest Disclosure Act 2013
3
7 Subsection 29(1) (table item 3)
4
Repeal the item, substitute:
5
6
3
Conduct that:
(a) raises a corruption issue (in the meaning of the National Integrity
Commission Act 2019); or
(b) involves, or is engaged in for the purpose of, corruption of any other
kind; or
(c) perverts, or is engaged in for the purpose of perverting, or attempting to
pervert, the course of justice.
3A
Conduct that constitutes a substantial breach of the code of conduct in the
National Integrity (Parliamentary Standards) Act 2019.
7