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A Bill for an Act to establish the office of the National Integrity Commissioner, and for related purposes
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Registered 05 Oct 2010
Introduced Senate 30 Sep 2010

 

2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Presented and read a first time

 

 

 

 

 

National Integrity Commissioner Bill 2010

 

No.      , 2010

 

(Senator Bob Brown)

 

 

 

A Bill for an Act to establish the office of the National Integrity Commissioner, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Objects of Act.................................................................................... 2

4............ Saving of powers, privileges and immunities...................................... 3

5............ Application of Act............................................................................. 3

6............ Definitions.......................................................................................... 3

7............ Meaning of corrupt conduct............................................................... 7

8............ Meaning of corruption issue............................................................. 10

Part 2—The National Integrity Commission                                                         11

Division 1—Introduction                                                                                          11

9............ Guide to this Part............................................................................. 11

Division 2—Establishment                                                                                      13

10.......... Establishment................................................................................... 13

11.......... Definition of integrity officers........................................................... 13

Division 3—Functions and powers of the integrity officers                   14

12.......... Definition of national integrity commissioner functions................... 14

13.......... Definition of law enforcement integrity commissioner functions...... 15

14.......... Definition of independent parliamentary advisor functions............. 15

15.......... Functions and powers of the National Integrity Commissioner...... 16

16.......... Functions and powers of the Law Enforcement Integrity Commissioner               17

17.......... Functions and powers of the Independent Parliamentary Advisor.. 17

Part 3—Dealing with corruption issues                                                                    18

Division 1—Introduction                                                                                          18

18.......... Guide to this Part............................................................................. 18

Division 2—Referring corruption issues to National Integrity Commissioner 19

19.......... Referral of corruption issues............................................................ 19

20.......... Person making referral under section 19 may elect to be kept informed 20

Division 3—How National Integrity Commissioner deals with referred corruption issues        21

21.......... How National Integrity Commissioner may deal with referred corruption issues  21

22.......... Advising person who refers corruption issue of decision about how to deal with corruption issue       21

23.......... Advising person to whom referred corruption issue relates of decision about how to deal with corruption issue 23

Division 4—National Integrity Commissioner dealing with corruption issues on own initiative             24

24.......... National Integrity Commissioner may deal with corruption issues on own initiative            24

25.......... Advising head of Commonwealth agency of decision to deal with corruption issue on own initiative   24

26.......... Advising person of decision to deal with corruption issue on own initiative          25

Division 5—Reconsidering how to deal with a corruption issue         27

27.......... Reconsidering how to deal with a corruption issue.......................... 27

Part 4—Investigations by the National Integrity Commissioner               28

Division 1—Introduction                                                                                          28

28.......... Guide to this Part............................................................................. 28

Division 2—Investigation                                                                                         29

29.......... Application of Division.................................................................... 29

30.......... National Integrity Commissioner to determine manner of conducting investigation               29

31.......... Opportunity to be heard.................................................................. 29

Division 3—Reporting                                                                                               31

Subdivision A—Reporting during investigation                                                 31

32.......... National Integrity Commissioner to keep person who referred corruption issue informed of progress of investigation.......................................................................................................... 31

Subdivision B—Reporting at the end of investigation                                        31

33.......... Report on investigation.................................................................... 31

34.......... National Integrity Commissioner to give report to Prime Minister. 33

35.......... Advising person who referred corruption issue of outcome of the investigation    33

36.......... Advising person whose conduct is investigated of outcome of the investigation    35

Part 5—Public inquiries into corruption issues                                                     37

Division 1—Introduction                                                                                          37

37.......... Guide to this Part............................................................................. 37

Division 2—Conducting a public inquiry                                                          38

38.......... National Integrity Commissioner may conduct public inquiry........ 38

39.......... Publicising inquiry............................................................................ 38

Division 3—Reporting                                                                                               39

40.......... Report on public inquiry.................................................................. 39

41.......... Giving report to Prime Minister....................................................... 40

Part 6—National Integrity Commissioner’s powers in conducting investigations and public inquiries     41

Division 1—Introduction                                                                                          41

42.......... Guide to this Part............................................................................. 41

Division 2—Requiring people to give information or produce documents or things     42

Subdivision A—Requests by National Integrity Commissioner                       42

43.......... Request to person to give information or produce documents or things 42

44.......... National Integrity Commissioner may retain documents and things 43

Subdivision B—Offence and related provisions                                                  43

45.......... Failure to comply with National Integrity Commissioner’s request 43

46.......... Legal professional privilege—information........................................ 44

47.......... Legal professional privilege—documents or things.......................... 45

48.......... Offences relating to claims for legal professional privilege............... 46

49.......... Self‑incrimination etc........................................................................ 47

50.......... Protection of person required to give information or produce documents or things               49

Division 3—Conducting hearings                                                                        51

Subdivision A—General provisions                                                                       51

51.......... National Integrity Commissioner may hold hearings....................... 51

52.......... National Integrity Commissioner may summon person................... 52

53.......... National Integrity Commissioner may take evidence outside Australia  54

Subdivision B—Procedure at hearing                                                                   54

54.......... Who may be represented at a hearing............................................... 54

55.......... Who may be present at a hearing...................................................... 54

Subdivision C—Taking evidence at hearing                                                        56

56.......... Evidence on oath or by affirmation.................................................. 56

57.......... Examination and cross‑examination of witnesses............................. 56

58.......... Giving evidence in private................................................................ 57

59.......... Directions in relation to confidentiality............................................ 58

Subdivision D—Prohibitions against disclosing information about a summons 60

60.......... Disclosure of summons may be prohibited...................................... 60

61.......... Offences of disclosure...................................................................... 62

Subdivision E—Offences in relation to hearings                                                64

62.......... Offences............................................................................................ 64

63.......... Contempt.......................................................................................... 65

64.......... Legal professional privilege—answer to question............................ 66

65.......... Legal professional privilege—documents or things.......................... 67

66.......... Offences relating to claims for legal professional privilege............... 69

67.......... Self‑incrimination etc........................................................................ 70

Subdivision F—Court orders for delivery of witness’s passport and witness’s arrest       72

68.......... National Integrity Commissioner may apply for order that witness deliver his or her passport           72

69.......... Court orders...................................................................................... 73

70.......... Applying for a warrant to arrest witness......................................... 75

71.......... Warrant for arrest............................................................................. 76

72.......... Powers of Judge in relation to person arrested................................. 77

Subdivision G—Miscellaneous                                                                               78

73.......... National Integrity Commissioner may retain documents or things.. 78

74.......... Person may apply for legal and financial assistance......................... 79

75.......... Protection of National Integrity Commissioner etc.......................... 80

76.......... Protection of witnesses etc............................................................... 80

Division 4—Search warrants                                                                                   82

Subdivision A—Preliminary                                                                                   82

77.......... Application to things under the control of a person........................ 82

Subdivision B—Applying for a search warrant                                                   82

78.......... Authorised officer may apply for a search warrant......................... 82

Subdivision C—Issue of a search warrant                                                            84

79.......... When search warrants may be issued............................................... 84

80.......... Content of warrants.......................................................................... 86

81.......... Application by telephone etc. and issue of warrant......................... 89

82.......... The things authorised by a search warrant in relation to premises.. 91

83.......... The things authorised by a search warrant in relation to a person... 92

84.......... Restrictions on personal searches..................................................... 93

85.......... When warrant may be executed etc.................................................. 93

Subdivision D—General provisions about executing a search warrant          94

86.......... Announcement before entry............................................................. 94

87.......... Availability of assistance and use of force in executing a warrant.... 94

Subdivision E—Specific provisions about executing a warrant in relation to premises    95

88.......... Application....................................................................................... 95

89.......... Copy of warrant to be shown to occupier etc.................................. 95

90.......... Occupier entitled to watch search.................................................... 95

91.......... Specific powers available to person executing a warrant.................. 96

92.......... Use of equipment to examine or process things............................... 96

93.......... Use of electronic equipment at premises without expert assistance 98

94.......... Use of electronic equipment at premises with expert assistance..... 99

95.......... Person with knowledge of a computer or a computer system to assist access etc. 100

96.......... Accessing data held on other premises—notification to occupier of those premises              101

97.......... Compensation for damage to electronic equipment........................ 101

98.......... Copies of seized things to be provided.......................................... 102

99.......... Receipts of things seized under warrant......................................... 103

Subdivision F—Specific provisions about executing a warrant in relation to a person      103

100........ Copy of warrant to be shown to person........................................ 103

101........ Conduct of an ordinary search or a frisk search............................. 104

Subdivision G—Offences                                                                                       104

102........ Making false statements in warrants.............................................. 104

103........ Offence for stating incorrect names in telephone warrants............ 104

104........ Offence for unauthorised form of warrant...................................... 104

105........ Offence for executing etc. an unauthorised form of warrant........... 105

106........ Offence for giving unexecuted form of warrant.............................. 105

Subdivision H—Miscellaneous                                                                             105

107........ Other laws about search, arrest etc. not affected............................ 105

108........ Law relating to legal professional privilege not affected................. 106

Division 5—Powers of arrest                                                                                107

109........ Authorised officers may exercise powers of arrest........................ 107

Division 6—Authorised officers                                                                          108

110........ Appointment of authorised officers............................................... 108

111........ Identity cards.................................................................................. 108

Part 7—Dealing with evidence and information obtained in investigation or public inquiry            110

Division 1—Introduction                                                                                        110

112........ Guide to this Part........................................................................... 110

Division 2—Dealing with evidence and information obtained in investigation or public inquiry             111

113........ Evidence of offence or liability to civil penalty.............................. 111

114........ Evidence that could be used in confiscation proceedings............... 112

115........ Evidence of, or information suggesting, wrongful conviction......... 113

Part 8—Independent Parliamentary Advisor                                                      114

Division 1—Introduction                                                                                        114

116........ Guide to this Part........................................................................... 114

Division 2—Requests for advice                                                                        115

117........ Minister may request advice.......................................................... 115

118........ Presiding officer or chair of committee may request advice........... 115

119........ Parliamentarian or former parliamentarian may request advice...... 115

120........ Independent Parliamentary Advisor to provide advice in writing.. 116

121........ Independent Parliamentary Advisor may request additional information               116

Division 3—Reporting                                                                                             117

122........ Annual report................................................................................. 117

Division 4—Better practices guides and fact sheets                               118

123........ Better practices guides and fact sheets........................................... 118

Part 9—Administrative provisions                                                                            119

Division 1—Introduction                                                                                        119

124........ Guide to this Part........................................................................... 119

Division 2—Appointment etc. of the integrity officers                           120

Subdivision A—National Integrity Commissioner                                           120

125........ Appointment of National Integrity Commissioner........................ 120

126........ General terms and conditions of appointment............................... 120

127........ Restriction on outside employment............................................... 121

128........ Remuneration.................................................................................. 121

129........ Leave of absence............................................................................. 121

130........ Resignation..................................................................................... 121

131........ Termination of appointment.......................................................... 122

132........ Acting appointments...................................................................... 122

133........ Disclosure of interests.................................................................... 123

Subdivision B—Law Enforcement Integrity Commissioner                           123

134........ Appointment etc. of Law Enforcement Integrity Commissioner... 123

Subdivision C—Independent Parliamentary Advisor                                       124

135........ Appointment of Independent Parliamentary Advisor................... 124

136........ General terms and conditions of appointment............................... 124

137........ Engaging in other paid employment............................................... 125

138........ Remuneration.................................................................................. 125

139........ Leave of absence............................................................................. 125

140........ Resignation..................................................................................... 125

141........ Termination of appointment.......................................................... 126

142........ Acting appointments...................................................................... 126

143........ Disclosure of interests.................................................................... 127

Division 3—Appointment etc. of Assistant National Integrity Commissioners                128

144........ Appointment of Assistant National Integrity Commissioners...... 128

145........ General terms and conditions of appointment............................... 128

146........ Engaging in other paid employment............................................... 128

147........ Remuneration.................................................................................. 129

148........ Leave of absence............................................................................. 129

149........ Resignation..................................................................................... 129

150........ Termination of employment........................................................... 130

151........ Acting appointments...................................................................... 130

152........ Disclosure of interests.................................................................... 131

Division 4—Staff, consultants and delegations                                           132

153........ Staff................................................................................................ 132

154........ Consultants..................................................................................... 132

155........ Delegation—National Integrity Commissioner.............................. 133

Division 5—Public reporting                                                                                134

156........ Annual report................................................................................. 134

157........ Reports on investigations and public inquiries............................... 135

158........ Special reports................................................................................ 136

159........ Contents of annual or special report.............................................. 137

Division 6—Confidentiality requirements                                                     139

160........ Confidentiality requirements for National Integrity Commission staff.. 139

161........ Exceptions to confidentiality requirements.................................... 139

162........ Disclosure by National Integrity Commissioner in public interest etc... 141

163........ Opportunity to be heard................................................................ 142

164........ National Integrity Commission staff generally not compellable in court proceedings            143

Part 10—Parliamentary Joint Committee on the National Integrity Commission 145

165........ Definitions...................................................................................... 145

166........ Parliamentary Joint Committee on the National Integrity Commission  145

167........ Powers and proceedings of the committee..................................... 146

168........ Duties of the committee................................................................. 147

169........ Committee may approve or reject recommendation for appointment of National Integrity Commissioner           149

170........ Disclosure to committee by National Integrity Commissioner...... 150

171........ Disclosure to committee by Law Enforcement Integrity Commissioner 151

172........ Disclosure to committee by Minister............................................. 153

173........ Ombudsman to brief committee about controlled operations........ 154

Part 11—Miscellaneous                                                                                                  155

174........ Offence of victimisation................................................................. 155

175........ Legal and financial assistance in relation to applications for administrative review                155

176........ Immunity from civil proceedings.................................................... 156

177........ Immunities from certain State and Territory laws.......................... 157

178........ Review of operation of Act............................................................ 157

179........ Schedule(s)...................................................................................... 158

180........ Regulations..................................................................................... 158

Schedule 1—Amendments                                                                                             160

Law Enforcement Integrity Commissioner Act 2006                                         160

Ombudsman Act 1976                                                                                             160

Privacy Act 1988                                                                                                     161

 


A Bill for an Act to establish the office of the National Integrity Commissioner, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the National Integrity Commissioner Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 180

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

3  Schedule 1

At the same time as the provisions covered by table item 2.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Objects of Act

             (1)  The objects of this Act are:

                     (a)  to facilitate the investigation of corruption issues that relate to a minister, a parliamentarian, a former parliamentarian, a Commonwealth agency, an employee of a Commonwealth agency or a person employed under the Members of Parliament (Staff) Act 1984 or any other public official; and

                     (b)  to facilitate the investigation of alleged corrupt conduct involving a minister, a parliamentarian, a former parliamentarian, a Commonwealth agency, an employee of a Commonwealth agency or a person employed under the Members of Parliament (Staff) Act 1984 or any other public official; and

                     (c)  to enable criminal offences to be prosecuted, and civil penalty proceedings to be brought, following those investigations; and

                     (d)  to maintain and improve the integrity of employees of Commonwealth agencies and persons employed under the Members of Parliament (Staff) Act 1984; and

                     (e)  to enhance the integrity of ministers, parliamentarians and former parliamentarians.

             (2)  To assist in achieving the objects in paragraphs (1)(a) to (d), this Act establishes the office of the National Integrity Commissioner.

             (3)  To assist in achieving the objects in paragraphs (1)(d) and (e), this Act establishes the office of the Independent Parliamentary Advisor.

4  Saving of powers, privileges and immunities

                   This Act does not affect the powers, privileges and immunities of each House of the Parliament, and of the members and committees of each House.

5  Application of Act

                   This Act applies both within and outside Australia and extends to every external Territory.

6  Definitions

                   In this Act:

                   applicable code of conduct means:

                     (a)  in the case of a minister:

                              (i)  a ministerial code of conduct imposed by the Prime Minister on his or her ministers; or

                             (ii)  a ministerial code of conduct:

                                        (A)  prescribed by the regulations; or

                                        (B)  adopted by resolution of the House of which the minister is or was a member;

                                   for the purposes of this definition;

                     (b)  in the case of a parliamentarian (including a minister)—a code of conduct for parliamentarians:

                              (i)  prescribed by the regulations; or

                             (ii)  adopted by resolution of the House of which the parliamentarian is or was a member;

                            for the purposes of this definition.

Assistant Law Enforcement Integrity Commissioner means a person appointed under section 185 of the Law Enforcement Integrity Commissioner Act 2006 as an Assistant Integrity Commissioner.

Assistant National Integrity Commissioner means a person appointed under section 144 as an Assistant National Integrity Commissioner.

Commission means the National Integrity Commission established under section 10.

Commonwealth agency means:

                     (a)  an Agency within the meaning of the Public Service Act 1999; or

                     (b)  a department of the Parliament; or

                     (c)  a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or

                     (d)  a body or organisation, whether incorporated or unincorporated, established for a public purpose:

                              (i)  by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or

                             (ii)  by the Governor‑General; or

                            (iii)  by a minister.

confiscation proceeding means a proceeding under:

                     (a)  the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; or

                     (b)  a corresponding law within the meaning of either of those Acts;

but does not include a criminal prosecution for an offence under either of those Acts or a corresponding law.

corrupt conduct has the meaning given by section 7.

corruption issue has the meaning given by section 8.

criminal offence means an offence against a law of the Commonwealth or of a State or Territory.

disciplinary offence includes any misconduct, irregularity, neglect of duty, breach of discipline or other matter that constitutes or may constitute grounds for disciplinary action under any law.

employee of a Commonwealth agency includes:

                     (a)  the head of the agency;

                     (b)  a temporary employee of the agency;

                     (c)  an independent contractor providing a service to or on behalf of the agency.

former parliamentarian means a former member of either House of the Parliament.

gift means a gift whether it is or is not registrable in accordance with a resolution or resolutions of a House of the Parliament.

government agency means:

                     (a)  a Commonwealth agency; or

                     (b)  a department of a State or Territory; or

                     (b)  a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory.

Independent Parliamentary Advisor means the person appointed under section 135 as the Independent Parliamentary Advisor.

independent parliamentary advisor functions has the meaning given by section 14.

Law Enforcement Integrity Commissioner means the person appointed under section 175 of the Law Enforcement Integrity Commissioner Act 2006 as the Integrity Commissioner.

law enforcement integrity commissioner functions has the meaning given by section 13.

integrity officer has the meaning given by section 11.

interest means an interest whether it is or is not registrable in accordance with a resolution or resolutions of a House of the Parliament.

minister means a minister of state and includes a parliamentary secretary.

National Integrity Commission means the National Integrity Commission established under section 10.

National Integrity Commissioner means the person appointed under section 125 as the National Integrity Commissioner.

national integrity commissioner functions has the meaning given by section 12.

national law enforcement agencies means:

                     (a)  the Australian Federal Police; and

                     (b)  the Australian Crime Commission; and

                     (c)  any other Commonwealth agency that:

                              (i)  has a law enforcement function; and

                             (ii)  is prescribed by the regulations for the purposes of this paragraph.

parliamentarian means a member of either House of the Parliament.

parliamentary allowances means allowances (including allowances by way of salary) and entitlements (including superannuation entitlements) of parliamentarians under a law of the Commonwealth.

presiding officer means:

                     (a)  in relation to the Senate—the President of the Senate;

                     (b)  in relation to the House of Representatives—the Speaker of the House of Representatives.

public official means a person having public official functions or acting in a public official capacity, and includes but is not limited to any of the following:

                     (a)  the Governor‑General (whether or not acting with the advice of the Federal Executive Council);

                     (b)  a minister;

                     (c)  a parliamentarian;

                     (d)  a justice or judge of a court created by the Parliament or a person who, by virtue of a law of the Commonwealth, has the same status as a justice or judge of a court created by the Parliament;

                     (e)  a person employed under the Members of Parliament (Staff) Act 1984;

                      (f)  an employee or a temporary employee of a Commonwealth agency, including:

                              (i)  the head of a Commonwealth agency; and

                             (ii)  an independent contractor providing a service to or on behalf of a Commonwealth agency;

                     (g)  a person declared by the regulations to be a public official for the purposes of this definition;

                     (h)  an employee of or any person otherwise engaged by or acting for or on behalf of, or in the place of, or as deputy or delegate of, any person or body described in any of paragraphs (a) to (g).

referred corruption issue means a corruption issue referred under section 19.

7  Meaning of corrupt conduct

             (1)  For the purposes of this Act, corrupt conduct is:

                     (a)  any conduct of any person that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by the Parliament, a Commonwealth agency, any public official or any group or body of public officials;

                     (b)  any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions;

                     (c)  any conduct of a public official that constitutes or involves, or of a former public official that constituted or involved, a breach of public trust;

                     (d)  any conduct that perverts, or that is engaged in for the purpose of perverting, the course of justice;

                     (e)  any conduct of a public official that involves, or of a former public official that involved, the misuse of information or material that he or she acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.

             (2)  For the purposes of paragraph (1)(a), corrupt conduct that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by the Parliament, a Commonwealth agency, any public official or any group or body of public officials includes any of the following conduct:

                     (a)  official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition);

                     (b)  bribery;

                     (c)  blackmail;

                     (d)  obtaining or offering secret commissions;

                     (e)  fraud;

                      (f)  theft;

                     (g)  perverting the course of justice;

                     (h)  embezzlement;

                      (i)  election bribery;

                      (j)  election funding offences;

                     (k)  election fraud;

                      (l)  treating;

                    (m)  tax evasion;

                     (n)  revenue evasion;

                     (o)  currency violations;

                     (p)  illegal drug dealings;

                     (q)  illegal gambling;

                      (r)  obtaining financial benefit by vice engaged in by others;

                      (s)  bankruptcy and company violations;

                      (t)  harbouring criminals;

                     (u)  forgery;

                     (v)  treason or other offences against the Sovereign;

                    (w)  homicide or violence;

                     (x)  matters of the same or a similar nature to any listed above;

                     (y)  any conspiracy or attempt in relation to any of the above.

             (3)  Conduct may amount to corrupt conduct under this section even though it occurred before the commencement of this subsection, and it does not matter that some or all of the effects or other ingredients necessary to establish such corrupt conduct occurred before that commencement and that any person or persons involved are no longer public officials.

             (4)  Conduct committed by or in relation to a person who was not or is not a public official may amount to corrupt conduct under this section with respect to the exercise of his or her official functions after becoming a public official.

             (5)  Conduct may amount to corrupt conduct under this section even though it occurred outside Australia.

             (6)  The specific mention of a kind of conduct in a provision of this section must not be regarded as limiting the scope of any other provision of this section.

             (7)  Despite subsections (1) to (6), conduct does not amount to corrupt conduct unless it could constitute or involve:

                     (a)  a criminal offence; or

                     (b)  a disciplinary offence; or

                     (c)  reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official; or

                     (d)  in the case of conduct of a minister or a parliamentarian—a substantial breach of an applicable code of conduct.

             (8)  For the purposes of paragraphs (7)(a), (b) and (c), it does not matter that proceedings or action for such an offence can no longer be brought or continued, or that action for such dismissal, dispensing or other termination can no longer be taken.

8  Meaning of corruption issue

             (1)  For the purposes of this Act, a corruption issue is an issue whether a person who is, or has been, a public official:

                     (a)  has, or may have, engaged in corrupt conduct; or

                     (b)  is, or may be, engaging in corrupt conduct; or

                     (c)  will, or may at any time in the future, engage in corrupt conduct.

             (2)  To avoid doubt, an allegation, or information, may raise a corruption issue even if the identity of the person is unknown, is uncertain or is not disclosed in the allegation or information.


 

Part 2The National Integrity Commission

Division 1Introduction

9  Guide to this Part

This Part establishes the National Integrity Commission.

The National Integrity Commission consists of the integrity officers and the staff of the Commission.

The integrity officers are the National Integrity Commissioner, the Law Enforcement Integrity Commissioner and the Independent Parliamentary Advisor. The National Integrity Commissioner is the head of the Commission (for the purposes of the Public Service Act 1999).

The functions of the Commission are as follows:

               (a)     the national integrity functions, which are about the investigation of corruption in relation to public officials and Commonwealth agencies in accordance with this Act;

               (b)     the law enforcement integrity functions, which are about the investigation of corruption in relation to national law enforcement agencies in accordance with the Law Enforcement Integrity Commissioner Act 2006;

               (c)     the independent parliamentary advisor functions, which are about providing independent confidential advice to ministers, parliamentarians and former parliamentarians in relation to conflict of interest, ethics, propriety and similar matters and providing advice on the development of codes of conduct.

Only the National Integrity Commissioner can perform the national integrity commissioner functions.

Only the Law Enforcement Integrity Commissioner can perform the law enforcement integrity commissioner functions.

Only the Independent Parliamentary Advisor can perform the independent parliamentary advisor functions.


 

Division 2Establishment

10  Establishment

             (1)  The National Integrity Commission is established by this section.

             (2)  The Commission consists of:

                     (a)  the integrity officers; and

                     (b)  any Assistant National Integrity Commissioner appointed under Division 3 of Part 9 and the staff mentioned in section 153; and

                     (c)  any Assistant Law Enforcement Integrity Commissioner appointed under Division 2 of Part 13 of the Law Enforcement Integrity Commissioner Act 2006 and the staff mentioned in section 197 of that Act.

             (3)  For the purposes of the Public Service Act 1999:

                     (a)  the Commission constitutes a Statutory Agency; and

                     (b)  the National Integrity Commissioner is the Head of that Statutory Agency.

Note:          The National Integrity Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).

11  Definition of integrity officers

                   Each of the following is an integrity officer:

                     (a)  the National Integrity Commissioner;

                     (b)  the Law Enforcement Integrity Commissioner;

                     (c)  the Independent Parliamentary Advisor.


 

Division 3Functions and powers of the integrity officers

12  Definition of national integrity commissioner functions

             (1)  The national integrity commissioner functions are as follows:

                     (a)  to investigate and conduct public inquiries into corruption issues involving:

                              (i)  a public official; or

                             (ii)  a Commonwealth agency;

                            and report on the results of those investigations and inquiries, whether those corruption issues arose before or after the commencement of this Act; and

                     (b)  to communicate to appropriate authorities the results of investigations and inquiries, including recommendations for action that should be taken in relation to those results ; and

                     (c)  on the National Integrity Commissioner’s own initiative, or at the request of the Prime Minister or either House of the Parliament, to make reports and recommendations to the Parliament about the need for or the desirability of legislative or administrative action on issues in relation to:

                              (i)  corruption generally in Commonwealth agencies; or

                             (ii)  the integrity of public officials;

                            whether those issues arose before or after the commencement of this Act; and

                     (d)  with the consent of the Prime Minister, to enter into an arrangement to perform the functions of a territory integrity commissioner under an scheme established in accordance with the conditions of licences or authorities granted under an Act of a Territory; and

                     (e)  to advise and assist any public official, Commonwealth agency or other person (on the request of the official, agency or person) on changes in laws, practices or procedures compatible with the effective exercise of their functions which the National Integrity Commissioner thinks necessary to reduce the likelihood of the occurrence of corrupt conduct; and

                      (f)  to educate and disseminate information to public officials, Commonwealth agencies and the community on strategies to combat corrupt conduct; and

                     (g)  any other function conferred by this Act or another Act (or an instrument under this Act or another Act) on the National Integrity Commissioner.

             (2)  An arrangement referred to in paragraph (1)(d) may include provision for payment by the other party to the arrangement for the performance of functions by the National Integrity Commissioner in accordance with the arrangement.

13  Definition of law enforcement integrity commissioner functions

                   The law enforcement integrity commissioner functions are as follows:

                     (a)  the functions conferred on the Law Enforcement Integrity Commissioner under section 15 of the Law Enforcement Integrity Commissioner Act 2006; and

                     (b)  any other function conferred by this Act or another Act (or an instrument under this Act or another Act) on the Law Enforcement Integrity Commissioner.

14  Definition of independent parliamentary advisor functions

                   The independent parliamentary advisor functions are as follows:

                     (a)  at the request of a minister, to provide independent confidential written advice to that minister about his or her compliance with the Standards of Ministerial Ethics, dated December 2007 and as revised from time to time, any replacement document issued in relation to ministerial conduct or any another applicable code of conduct, whether the request for advice relates to an issue that arose before or after the commencement of this Act in relation to the minister; and

                     (b)  at the request of a parliamentarian or a former parliamentarian, to provide independent confidential written advice to that parliamentarian or former parliamentarian about:

                              (i)  an applicable code of conduct; or

                             (ii)  parliamentary allowances; or

                            (iii)  an interest, including a potential conflict of interest; or

                            (iv)  an ethical issue; or

                             (v)  a matter of propriety, including the receipt of a gift; or

                            (vi)  any similar issue;

                            whether the request for advice relates to an issue that arose before or after the commencement of this Act in relation to the parliamentarian, the former parliamentarian or a person employed under the Members of Parliament (Staff) Act 1984; and

                     (c)  at the request of a presiding officer or a committee of a House of the Parliament, to provide independent confidential written advice in relation to any matter, including the development of a code of conduct for parliamentarians of that House; and

                     (d)  to prepare better practice guides and fact sheets, in relation to matters of conduct, propriety and ethics, for ministers, parliamentarians, former parliamentarians and persons employed under the Members of Parliament (Staff) Act 1984; and

                     (e)  to provide an annual report to the Parliament outlining the nature of all matters considered under paragraphs (a) and (b), without identifying any of the parties involved; and

                      (f)  any other function conferred by this Act or another Act (or an instrument under this Act or another Act) on the Independent Parliamentary Advisor.

15  Functions and powers of the National Integrity Commissioner

             (1)  The National Integrity Commissioner has the national integrity commissioner functions.

             (2)  The National Integrity Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of the national integrity commissioner functions conferred by this section.

16  Functions and powers of the Law Enforcement Integrity Commissioner

             (1)  The Law Enforcement Integrity Commissioner has the law enforcement integrity commissioner functions.

             (2)  The Law Enforcement Integrity Commissioner has the powers conferred under Parts 9 and 12 of the Law Enforcement Integrity Commissioner Act 2006 to do things necessary or convenient to be done for or in connection with the performance of the law enforcement integrity commissioner functions conferred by this section.

17  Functions and powers of the Independent Parliamentary Advisor

             (1)  The Independent Parliamentary Advisor has the independent parliamentary advisor functions.

             (2)  The Independent Parliamentary Advisor has power to do all things necessary or convenient to be done for or in connection with the performance of the independent parliamentary advisor functions conferred by this section.


 

Part 3Dealing with corruption issues

Division 1Introduction

18  Guide to this Part

This Division is about:

               (a)     the referral of corruption issues to the National Integrity Commissioner; and

               (b)     how the National Integrity Commissioner deals with referred corruption issues; and

               (c)     how the National Integrity Commissioner deals with corruption issues on his or her own initiative; and

               (d)     reconsideration by the National Integrity Commissioner of how to deal with a corruption issue.


 

Division 2Referring corruption issues to National Integrity Commissioner

19  Referral of corruption issues

             (1)  A person may refer to the National Integrity Commissioner under this section an allegation, or information, that raises a corruption issue.

             (2)  Without limiting subsection (1):

                     (a)  the person may refer the allegation or information on behalf of:

                              (i)  another person; or

                             (ii)  a Commonwealth agency; or

                            (iii)  a body or association of persons; and

                     (b)  the person may refer the allegation or information anonymously; and

                     (c)  the person may refer the allegation or information either orally or in writing.

             (3)  If the person refers the allegation or information orally, the National Integrity Commissioner may require the person to put the allegation or the information in writing.

             (4)  If the person is asked to put the allegation or information in writing under subsection (3), the National Integrity Commissioner may refuse to investigate the corruption issue that the allegation or information raises, or to investigate the corruption issue further, until the allegation or information is put in writing.

             (5)  If the Ombudsman:

                     (a)  decides, under subsection 6(15A) of the Ombudsman Act 1976, to refer an allegation or information to the National Integrity Commissioner; or

                     (b)  is required, under subsection 6(15B) of that Act, to refer an allegation or information to the National Integrity Commissioner;

the person who referred the allegation or information to the Ombudsman is taken to have referred the allegation or information to the National Integrity Commissioner under this section.

20  Person making referral under section 19 may elect to be kept informed

             (1)  If a person refers an allegation or information to the National Integrity Commissioner under section 19, the National Integrity Commissioner must ask the person to elect whether or not to be kept informed of the action taken in relation to the corruption issue raised by the allegation or information.

             (2)  Subsection (1) does not apply if the person refers the allegation or information anonymously.

             (3)  If the person fails to make an election when asked to do so, the person is taken to have elected not to be kept informed of the action taken in relation to the corruption issue.

             (4)  If the person elects to be kept informed of the action taken in relation to the corruption issue, the person may revoke the election at any time by notice to the National Integrity Commissioner.


 

Division 3How National Integrity Commissioner deals with referred corruption issues

21  How National Integrity Commissioner may deal with referred corruption issues

             (1)  The National Integrity Commissioner may deal with a referred corruption issue by deciding:

                     (a)  to investigate the corruption issue; or

                     (b)  not to investigate the corruption issue.

             (2)  The National Integrity Commissioner may make a decision under paragraph (1)(b) only if he or she is satisfied that:

                     (a)  the corruption issue is already being, or will be, investigated by another Commonwealth agency; or

                     (b)  the referral of the allegation, or information, that raises the corruption issue is frivolous or vexatious or was not made in good faith; or

                     (c)  the corrupt conduct to which the corruption issue relates has been, is or will be, the subject of proceedings before a court; or

                     (d)  investigation of the corruption issue is not warranted having regard to all the circumstances.

22  Advising person who refers corruption issue of decision about how to deal with corruption issue

National Integrity Commissioner to advise person who refers corruption issue

             (1)  If a person:

                     (a)  refers an allegation, or information, that raises a corruption issue to the National Integrity Commissioner under section 19; and

                     (b)  elects under section 20 to be kept informed of the action taken in relation to the corruption issue;

the National Integrity Commissioner must advise the person of:

                     (c)  the National Integrity Commissioner’s decision under section 21 in relation to the corruption issue; and

                     (d)  any decision the National Integrity Commissioner makes under section 27 on a reconsideration of how the corruption issue should be dealt with.

Form and timing of advice

             (2)  The National Integrity Commissioner must advise the person of the decision:

                     (a)  in writing; and

                     (b)  as soon as reasonably practicable after the decision is made.

Exception

             (3)  However, the National Integrity Commissioner need not advise the person if the National Integrity Commissioner is satisfied that doing so is likely to prejudice:

                     (a)  the investigation of the corruption issue or another corruption investigation; or

                     (b)  any action taken as a result of an investigation referred to in paragraph (a).

Advice to nominated person or office holder

             (4)  If:

                     (a)  a person refers an allegation, or information, that raises the corruption issue to the National Integrity Commissioner on behalf of:

                              (i)  another person; or

                             (ii)  a Commonwealth agency; or

                            (iii)  a body or association of persons; and

                     (b)  the other person, the agency, the body or the association nominates:

                              (i)  another person; or

                             (ii)  the holder of a particular office in the agency, body or association;

                            by notice in writing to the National Integrity Commissioner to receive communications from the National Integrity Commissioner;

the National Integrity Commissioner must give the advice required by subsection (1) to the person nominated or the person for the time being holding the office nominated.

23  Advising person to whom referred corruption issue relates of decision about how to deal with corruption issue

                   If the National Integrity Commissioner makes a decision under section 21 or 27 in relation to a referred corruption issue that relates to a person, the National Integrity Commissioner may advise the person of the National Integrity Commissioner’s decision.


 

Division 4National Integrity Commissioner dealing with corruption issues on own initiative

24  National Integrity Commissioner may deal with corruption issues on own initiative

             (1)  If the National Integrity Commissioner becomes aware of an allegation, or information, that raises a corruption issue, the National Integrity Commissioner may, on his or her own initiative, investigate, or inquire into, the corruption issue.

             (2)  Subsection (1) does not apply if the National Integrity Commissioner becomes aware of the allegation or information because of action taken under Division 2 of this Part.

             (3)  Without limiting subsection (1), if the National Integrity Commissioner:

                     (a)  is investigating, or inquiring into, a particular corruption issue; and

                     (b)  in the course of doing so, becomes aware of an allegation, or information, that raises another corruption issue;

the National Integrity Commissioner may also investigate, or inquire into, that other corruption issue.

25  Advising head of Commonwealth agency of decision to deal with corruption issue on own initiative

Application of section

             (1)  This section applies if:

                     (a)  the National Integrity Commissioner decides, on his or her own initiative, to investigate, or inquire into, a corruption issue in accordance with subsection 24(1); and

                     (b)  the corruption issue relates to the conduct of a person who is an employee of a Commonwealth agency (other than the head of the agency).

Advising head of Commonwealth agency

             (2)  The National Integrity Commissioner must advise the head of that Commonwealth agency of:

                     (a)  the National Integrity Commissioner’s decision investigate, or inquire into, the corruption issue; and

                     (b)  any decision the National Integrity Commissioner makes under section 27 on a reconsideration of how the corruption issue should be dealt with.

Form and timing of advice

             (3)  The National Integrity Commissioner must advise the head of the Commonwealth agency of the decision:

                     (a)  in writing; and

                     (b)  as soon as reasonably practicable after the decision is made.

Exception

             (4)  However, the National Integrity Commissioner need not advise the head of the Commonwealth agency if doing so would be likely to prejudice:

                     (a)  the investigation of the corruption issue or another corruption investigation; or

                     (b)  any action taken as a result of an investigation referred to in paragraph (a).

26  Advising person of decision to deal with corruption issue on own initiative

                   If:

                     (a)  the National Integrity Commissioner decides, on his or her own initiative, to investigate, or inquire into, a corruption issue in accordance with subsection 24(1); and

                     (b)  the corruption issue relates to a person who is, or has been, a public official;

the National Integrity Commissioner may advise the person of:

                     (c)  the National Integrity Commissioner’s decision to investigate, or inquire into, the corruption issue; and

                     (d)  any decision the National Integrity Commissioner makes under section 27 on a reconsideration of how the corruption issue should be dealt with.


 

Division 5Reconsidering how to deal with a corruption issue

27  Reconsidering how to deal with a corruption issue

             (1)  The National Integrity Commissioner may, at any time, reconsider how a particular corruption issue should be dealt with.

             (2)  On that reconsideration, the National Integrity Commissioner may:

                     (a)  if the corruption issue is not being dealt with under paragraph 21(1)(a) or subsection 24(1)—decide to deal with the corruption issue in accordance with one of those provisions; or

                     (b)  if the corruption issue is being dealt with under paragraph 21(1)(a) or subsection 24(1)—decide to discontinue the investigation of, or inquiry into, the corruption issue.

             (3)  The National Integrity Commissioner may make a decision under paragraph (2)(b) only if he or she is satisfied that:

                     (a)  the corruption issue is already being, or will be, investigated by another Commonwealth agency; or

                     (b)  the referral of the allegation, or information, that raises the corruption issue is frivolous or vexatious or was not made in good faith; or

                     (c)  the corrupt conduct to which the corruption issue relates has been, is or will be, the subject of proceedings before a court; or

                     (d)  further investigation of the corruption issue is not warranted having regard to all the circumstances.


 

Part 4Investigations by the National Integrity Commissioner

Division 1Introduction

28  Guide to this Part

This Division is about:

               (a)     how the National Integrity Commissioner conducts an investigation; and

               (b)     the National Integrity Commissioner giving persons an opportunity to be heard; and

               (c)     the reporting required in relation to an investigation.


 

Division 2Investigation

29  Application of Division

                   This Division applies if the National Integrity Commissioner investigates a corruption issue.

30  National Integrity Commissioner to determine manner of conducting investigation

                   The National Integrity Commissioner may conduct the investigation in such manner as the National Integrity Commissioner thinks fit.

Note:          Part 6 provides for particular powers that are available to the National Integrity Commissioner for the purposes of the investigation.

31  Opportunity to be heard

Opinion or finding critical

             (1)  Subject to subsection (2), the National Integrity Commissioner must not include in a report under section 33 in relation to an investigation of a corruption issue an opinion or finding that is critical of a Commonwealth agency or a person (either expressly or impliedly) unless the National Integrity Commissioner has taken the action required by subsection (3) or (4) before completing the investigation.

             (2)  Subsection (1) does not apply if the National Integrity Commissioner is satisfied that:

                     (a)  a person may have:

                              (i)  committed a criminal offence; or

                             (ii)  contravened a civil penalty provision; or

                            (iii)  engaged in conduct that could be the subject of disciplinary proceedings; or

                            (iv)  engaged in conduct that could be grounds for terminating the person’s appointment or employment; and

                     (b)  taking action under subsection (3) or (4) would compromise the effectiveness of:

                              (i)  the investigation of the corruption issue or another corruption investigation; or

                             (ii)  any action taken as a result of an investigation referred to in subparagraph (i).

Opportunity to appear and make submissions

             (3)  If the opinion or finding is critical of a Commonwealth agency, the National Integrity Commissioner must give the head of the Commonwealth agency:

                     (a)  a statement setting out the opinion or finding; and

                     (b)  a reasonable opportunity to appear before him or her and to make submissions in relation to the opinion or finding.

             (4)  If the opinion or finding is critical of a person, the National Integrity Commissioner must give the person:

                     (a)  a statement setting out the opinion or finding; and

                     (b)  a reasonable opportunity to appear before him or her and to make submissions in relation to the opinion or finding.

             (5)  Submissions under subsection (3) or (4) may be made orally or in writing.

Representation

             (6)  The head of a Commonwealth agency may:

                     (a)  appear before the National Integrity Commissioner personally; or

                     (b)  authorise another person to appear before the National Integrity Commissioner on his or her behalf.

             (7)  A person referred to in subsection (4):

                     (a)  may appear before the National Integrity Commissioner personally; or

                     (b)  may, with the National Integrity Commissioner’s approval, be represented by another person.


 

Division 3Reporting

Subdivision AReporting during investigation

32  National Integrity Commissioner to keep person who referred corruption issue informed of progress of investigation

Person who refers issue under section 19

                   If:

                     (a)  a person refers an allegation, or information, that raises a corruption issue to the National Integrity Commissioner under section 19; and

                     (b)  the National Integrity Commissioner investigates the corruption issue; and

                     (c)  the person elects under section 20 to be kept informed of the action taken in relation to the corruption issue and has not revoked the election;

the National Integrity Commissioner must take such steps as the National Integrity Commissioner considers reasonable to keep the person informed of the progress of the investigation of that corruption issue.

Subdivision BReporting at the end of investigation

33  Report on investigation

Report and its contents

             (1)  After completing an investigation of a corruption issue, the National Integrity Commissioner must prepare a report on the investigation.

             (2)  The report must set out:

                     (a)  the National Integrity Commissioner’s findings on the corruption issue; and

                     (b)  the evidence and other material on which those findings are based; and

                     (c)  any action that the National Integrity Commissioner has taken, or proposes to take, under Part 7 in relation to the investigation; and

                     (d)  any recommendations that the National Integrity Commissioner thinks fit to make and, if recommendations are made, the reasons for those recommendations.

This subsection has effect subject to subsections (4) and (5).

Note 1:       See section 31 for the need for the National Integrity Commissioner to give certain people an opportunity to be heard before including critical statements in a report.

Note 2:       Under section 157, the report must be tabled in each House of the Parliament.

             (3)  Without limiting paragraph (2)(d), the National Integrity Commissioner may recommend:

                     (b)  the termination of the employment of a person in accordance with the relevant procedures; or

                     (d)  the adoption of measures to remedy deficiencies in the policy, procedures or practices that facilitated:

                              (i)  a person engaging in corrupt conduct; or

                             (ii)  the failure to detect corrupt conduct engaged in by a person.

             (4)  The National Integrity Commissioner may exclude information from the report if the National Integrity Commissioner is satisfied that:

                     (a)  the information is sensitive information; and

                     (b)  it is desirable in the circumstances to exclude the information from the report.

             (5)  In deciding whether to exclude information from the report prepared under subsection (4), the National Integrity Commissioner must seek to achieve an appropriate balance between:

                     (a)  the public interest that would be served by including the information in the report; and

                     (b)  the prejudicial consequences that might result from including the information in the report.

Supplementary report

             (6)  If the National Integrity Commissioner excludes information from a report prepared under subsection (4), the National Integrity Commissioner must prepare a supplementary report that sets out:

                     (a)  the information; and

                     (b)  the reasons for excluding the information from the report prepared under subsection (4).

34  National Integrity Commissioner to give report to Prime Minister

                   The National Integrity Commissioner must give the Prime Minister:

                     (a)  the report prepared under subsection 33(1); and

                     (b)  if a supplementary report is prepared under subsection 33(6) in relation to the investigation—the supplementary report.

Note:          Section 157 provides that the Prime Minister must table a copy of the report prepared under subsection 33(1) in each House of the Parliament if a public hearing has been held in the course of the investigation to which the report relates. The Prime Minister is not required, however, to table a copy of a supplementary report under subsection 33(6) in each House of the Parliament.

35  Advising person who referred corruption issue of outcome of the investigation

Advice to person who referred issue under section 19

             (1)  If a person:

                     (a)  refers an allegation, or information, that raises a corruption issue to the National Integrity Commissioner under section 19; and

                     (b)  elects under section 20 to be kept informed of the action taken in relation to the corruption issue and has not revoked the election;

the National Integrity Commissioner must advise the person of the outcome of the investigation of the corruption issue.

Exception

             (2)  However, the National Integrity Commissioner need not advise the person if the National Integrity Commissioner is satisfied that doing so is likely to prejudice:

                     (a)  the investigation of the corruption issue or another corruption investigation; or

                     (b)  any action taken as a result of an investigation referred to in paragraph (a).

Manner of giving advice

             (3)  The National Integrity Commissioner may advise the person of the outcome of the investigation by giving the person a copy of the whole or a part of the report prepared in relation to the investigation under subsection 33(1).

             (4)  In advising the person of the outcome of the investigation, the National Integrity Commissioner may exclude information from the advice if the National Integrity Commissioner is satisfied that:

                     (a)  the information is sensitive information; and

                     (b)  it is desirable in the circumstances to exclude the information from the advice.

             (5)  In deciding whether to exclude information from the advice under subsection (4), the National Integrity Commissioner must seek to achieve an appropriate balance between:

                     (a)  the person’s interest in having the information included in the advice; and

                     (b)  the prejudicial consequences that might result from including the information in the advice.

Advice to nominated person

             (6)  If:

                     (a)  a person refers an allegation, or information, that raises the corruption issue to the National Integrity Commissioner on behalf of:

                              (i)  another person; or

                             (ii)  a Commonwealth agency; or

                            (iii)  a body or association of persons; and

                     (b)  the other person, the agency, the body or the association nominates:

                              (i)  another person; or

                             (ii)  the holder of a particular office in the agency, body or association;

                            by notice in writing to the National Integrity Commissioner to receive communications from the National Integrity Commissioner;

the National Integrity Commissioner must give the advice required by subsection (1) to the person nominated or the person for the time being holding the office nominated.

36  Advising person whose conduct is investigated of outcome of the investigation

             (1)  If the National Integrity Commissioner investigates a corruption issue that relates to a person, the National Integrity Commissioner may advise the person of the outcome of the investigation.

             (2)  Without limiting subsection (1), the National Integrity Commissioner may advise the person of the outcome of the investigation by giving the person a copy of the whole or a part of the report prepared in relation to the investigation under subsection 33(1).

             (3)  In advising the person under subsection (1), the National Integrity Commissioner may exclude information from the advice if the National Integrity Commissioner is satisfied that:

                     (a)  the information is sensitive information; and

                     (b)  it is desirable in the circumstances to exclude the information from the advice.

             (4)  In deciding whether to exclude information from the advice under subsection (3), the National Integrity Commissioner must seek to achieve an appropriate balance between:

                     (a)  the person’s interest in having the information included in the advice; and

                     (b)  the prejudicial consequences that might result from including the information in the advice.


 

Part 5Public inquiries into corruption issues

Division 1Introduction

37  Guide to this Part

This Division is about:

               (a)     how the National Integrity Commissioner conducts public inquiries into corruption issues; and

               (b)     the reporting required in relation to the conduct of a public inquiry.


 

Division 2Conducting a public inquiry

38  National Integrity Commissioner may conduct public inquiry

                   The National Integrity Commissioner may, if he or she is satisfied that it is in the public interest to do so, conduct a public inquiry in relation to a corruption issue or issues.

Note:          Part 6 provides for particular powers that are available to the National Integrity Commissioner for the purposes of the public inquiry.

39  Publicising inquiry

             (1)  The National Integrity Commissioner must invite submissions on the corruption issue that is to be the subject of the public inquiry.

Note:          Subsection 76(1) provides certain protections for people who make submissions.

             (2)  The invitation must specify the closing date for submissions.

             (3)  If the National Integrity Commissioner receives a submission, he or she may, if satisfied that it is in the public interest to do so, authorise it to be published on the National Integrity Commission’s website.


 

Division 3Reporting

40  Report on public inquiry

Report and its contents

             (1)  After conducting a public inquiry, the National Integrity Commissioner must prepare a report on the inquiry.

             (2)  The report must set out:

                     (a)  the National Integrity Commissioner’s findings as a result of the public inquiry; and

                     (b)  the evidence and other material on which those findings are based; and

                     (c)  any action that the National Integrity Commissioner has taken, or proposes to take, under Part 7 in relation to the inquiry; and

                     (d)  any recommendations that the National Integrity Commissioner thinks fit to make and, if recommendations are made, the reasons for those recommendations.

Note:          Under section 157, the report must be tabled in each House of the Parliament.

Sensitive information

             (3)  The National Integrity Commissioner may exclude information from the report if the National Integrity Commissioner is satisfied that:

                     (a)  the information is sensitive information; and

                     (b)  it is desirable in the circumstances to exclude the information from the report.

             (4)  In deciding whether to exclude information from the report prepared under subsection (3), the National Integrity Commissioner must seek to achieve an appropriate balance between:

                     (a)  the public interest that would be served by including the information in the report; and

                     (b)  the prejudicial consequences that might result from including the information in the report.

Supplementary report

             (5)  If, under subsection (4), the National Integrity Commissioner excludes information from a report prepared under subsection (1), the National Integrity Commissioner must prepare a supplementary report that sets out:

                     (a)  the information; and

                     (b)  the reasons for excluding the information from the report prepared under subsection (1).

41  Giving report to Prime Minister

                   The National Integrity Commissioner must give the Prime Minister:

                     (a)  the report prepared under subsection 40(1); and

                     (b)  if a supplementary report is prepared under subsection 40(5)—the supplementary report.

Note:          Section 157 provides that the Prime Minister must table a copy of the report prepared under subsection 40(1) in each House of the Parliament if a public hearing has been held in the course of the investigation to which the report relates. The Prime Minister is not required, however, to table a copy of a supplementary report under subsection 40(5) in each House of the Parliament.


 

Part 6National Integrity Commissioner’s powers in conducting investigations and public inquiries

Division 1Introduction

42  Guide to this Part

This Division is about the powers of the National Integrity Commissioner in conducting investigations and public inquiries.

The National Integrity Commissioner may:

               (a)     require persons to provide information or produce documents or things;

               (b)     conduct hearings;

               (c)     apply for and execute search warrants;

               (d)     exercise powers of arrest;

               (e)     appoint authorised officers.


 

Division 2Requiring people to give information or produce documents or things

Subdivision ARequests by National Integrity Commissioner

43  Request to person to give information or produce documents or things

             (1)  For the purposes of investigating a corruption issue, the National Integrity Commissioner may request a person:

                     (a)  to give the National Integrity Commissioner the information specified in the request; or

                     (b)  to produce to the National Integrity Commissioner the documents or things specified in the request.

             (2)  The National Integrity Commissioner’s request must:

                     (a)  be served on the person; and

                     (b)  be in writing and signed by the National Integrity Commissioner; and

                     (c)  specify the period within which the person must comply with the request.

The period specified under paragraph (c) must be at least 14 days starting on the day on which the request is served on the person.

             (3)  The National Integrity Commissioner may make the request without holding a public hearing.

             (4)  The person must:

                     (a)  give the information in writing; or

                     (b)  produce the documents or things;

within the time specified in the request, or within such further time as the National Integrity Commissioner allows.

Note:          Failure to comply with a request is an offence: see section 45.

             (5)  For the purposes of sections 45 to 48, the power of the National Integrity Commissioner under this section to request a person to give information or to produce a document or thing includes the power to request or require the person to provide information or produce a document or thing that is subject to legal professional privilege.

Note:          Under sections 46 and 47, legal professional privilege may still extend to the information, document or thing.

44  National Integrity Commissioner may retain documents and things

             (1)  If a document or thing is produced to the National Integrity Commissioner in accordance with a request under section 43, the National Integrity Commissioner:

                     (a)  may take possession of, and may make copies of, the document or thing, or take extracts from the document; and

                     (b)  may retain possession of the document or thing for such period as is necessary for the purposes of the investigation to which the document or thing relates.

             (2)  While the National Integrity Commissioner retains the document or thing, he or she must allow a person who would otherwise be entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.

Subdivision BOffence and related provisions

45  Failure to comply with National Integrity Commissioner’s request

                   A person commits an offence if:

                     (a)  the person is given a request under section 43; and

                     (b)  the person fails to comply with the request.

Penalty:  Imprisonment for 2 years.

Note 1:       A person may refuse to give information or produce a document or thing on the ground of legal professional privilege: see sections 46 and 47.

Note 2:       This section is not subject to the privilege against self‑incrimination but there are limits on the uses to which the evidence the person gives may be put: see section 49.

46  Legal professional privilege—information

             (1)  A person must not refuse or fail to provide information to the National Integrity Commissioner when requested to do so under section 43 on the ground that the information (or the relevant part of the information) would disclose a communication that is subject to legal professional privilege, unless a claim to that effect has been made to the National Integrity Commissioner:

                     (a)  within the time that the National Integrity Commissioner, in requiring the information to be provided, allowed for its provision; or

                     (b)  within such further time as the National Integrity Commissioner allows for the information to be provided.

Note:          See also paragraph 49(5)(c).

             (2)  If such a claim is made, the National Integrity Commissioner may decide whether to accept or reject the claim.

             (3)  The National Integrity Commissioner may, by written notice served (as prescribed) on the person, require the person to provide the information for consideration (by the National Integrity Commissioner or a person authorised by the National Integrity Commissioner) for the purpose of deciding whether to accept or reject the claim.

             (4)  If the information has been provided for consideration and the National Integrity Commissioner decides to accept the claim, the National Integrity Commissioner must:

                     (a)  return the information to the person; and

                     (b)  disregard, for the purposes of any report or decision that the National Integrity Commissioner makes:

                              (i)  if the claim is accepted in relation to the all of the information—all of the information; or

                             (ii)  if the claim is accepted in relation to a part of the information—that part of the information.

             (5)  If the information has been provided for consideration and the National Integrity Commissioner decides to reject the claim, the National Integrity Commissioner may use the information for the purposes of the inquiry.

             (6)  Without limiting subsections (3) and (5), the powers of the National Integrity Commissioner include, by force of this subsection, the power to decide whether to accept or reject the claim.

47  Legal professional privilege—documents or things

             (1)  A person must not refuse or fail to produce a document or thing to the National Integrity Commissioner when requested to do so under section 43 on the ground that the document or thing is subject to legal professional privilege, unless:

                     (a)  a court has found the document or thing (or the relevant part of the document or thing) to be subject to legal professional privilege; or

                     (b)  a claim that the document or thing (or the relevant part of the document or thing) is subject to legal professional privilege has been made to the National Integrity Commissioner:

                              (i)  within the time that the National Integrity Commissioner, in requiring production of the document or thing, allowed for its production; or

                             (ii)  within such further time as the National Integrity Commissioner allows for production of the document or thing.

Note:          See also paragraph 49(5)(c).

             (2)  If such a claim is made, the National Integrity Commissioner may decide whether to accept or reject the claim.

             (3)  The National Integrity Commissioner may, by written notice served (as prescribed) on the person, require the person to produce the document or thing for inspection (by the National Integrity Commissioner or a person authorised by the National Integrity Commissioner) for the purpose of deciding whether to accept or reject the claim.

             (4)  If the document or thing has been produced for inspection and the National Integrity Commissioner decides to accept the claim, the National Integrity Commissioner must:

                     (a)  return the document or thing to the person; and

                     (b)  disregard, for the purposes of any report or decision that the National Integrity Commissioner makes:

                              (i)  if the claim is accepted in relation to the whole document or thing—the whole document or thing; or

                             (ii)  if the claim is accepted in relation to a part of the document or thing—that part of the document or thing.

             (5)  If the document or thing has been produced for inspection and the National Integrity Commissioner decides to reject the claim, the National Integrity Commissioner may use the document or thing for the purposes of the inquiry.

             (6)  Without limiting subsections (3) and (5), the powers of the National Integrity Commissioner include, by force of this subsection, the power to decide whether to accept or reject the claim.

48  Offences relating to claims for legal professional privilege

             (1)  A person commits an offence if:

                     (a)  the person had refused or failed to comply with a request under section 43; and

                     (b)  the National Integrity Commissioner has decided under subsection 46(2) or 47(2) to reject a claim that the information, document or thing (or the relevant part of the information, document or thing) is subject to legal professional privilege; and

                     (c)  the person refuses or fails to provide the information or produce the document or thing as the National Integrity Commissioner requires, after that decision, under subsection 43(5).

Penalty:  $1,000 or imprisonment for 6 months.

             (2)  A person commits an offence if the person refuses or fails:

                     (a)  to provide information that the person was required under subsection 46(3) to provide; or

                     (b)  to produce a document or thing that the person was required under subsection 47(3) to produce for inspection.

Penalty:  $1,000 or imprisonment for 6 months.

             (3)  Subsections (1) and (2) are offences of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  Subsections (1) and (2) do not apply if the person has a reasonable excuse.

             (5)  It is not a reasonable excuse for the purposes of subsection (4) for a person to refuse or fail to produce a document or thing that the document or thing is subject to legal professional privilege, unless a court has found the document or thing to be subject to legal professional privilege.

             (6)  It is a defence to a prosecution for an offence against this section constituted by a refusal or failure to provide information or to produce a document or thing if the information, document or thing was not relevant to the request under section 43 by the National Integrity Commissioner.

Note:          A defendant bears an evidential burden in relation to the matters in subsections (4) and (6) (see subsection 13.3(3) of the Criminal Code).

49  Self‑incrimination etc.

Self‑incrimination

             (1)  A person is not excused from:

                     (a)  giving information; or

                     (b)  producing a document or thing;

when requested to do so under section 43 on the ground that doing so would tend to incriminate the person or expose the person to a penalty.

Use indemnity

             (2)  Subsection (4) applies if:

                     (a)  the person:

                              (i)  gives the information (whether orally or in writing); or

                             (ii)  produces the document or thing;

                            and, before doing so, claims that giving the information or producing the document or thing, might tend to incriminate the person or expose the person to a penalty; or

                     (b)  the person gives the information in writing and claims, in a written statement accompanying the information, that giving the information might tend to incriminate the person or expose the person to a penalty; or

                     (c)  the person produces the document or thing and claims, in a written statement accompanying the document or thing, that producing the document or thing might tend to incriminate the person or expose the person to a penalty.

             (3)  Subsection (4) does not apply to the production of a document that is, or forms part of, a record of an existing or past business.

             (4)  None of the following:

                     (a)  the information given;

                     (b)  the document or thing produced;

is admissible in evidence against the person in criminal proceedings, or any other proceedings for the imposition or recovery of a penalty, other than:

                     (c)  proceedings for an offence against section 45; or

                     (d)  confiscation proceedings; or

                     (e)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deals with false or misleading information or documents) that relates to this Act; or

                      (f)  proceedings for an offence against section 149.1 of the Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act; or

                     (g)  disciplinary proceedings against the person if the person is an employee of a Commonwealth agency.

Public interest grounds

             (5)  A person is not excused from:

                     (a)  giving information; or

                     (b)  producing a document or thing;

when requested to do so under section 43 on the ground that doing so:

                     (c)  would disclose one of the following:

                              (i)  legal advice given to a minister or a Commonwealth agency;

                             (ii)  a communication between an officer of a Commonwealth agency and another person or body, being a communication protected against disclosure by legal professional privilege; or

                     (d)  would breach a secrecy provision other than:

                              (i)  a taxation secrecy provision; or

                             (ii)  a law enforcement secrecy provision; or

                     (e)  would be otherwise contrary to the public interest.

             (6)  The fact that a person is not excused under subsection (5) from:

                     (a)  giving information; or

                     (b)  producing a document or thing;

does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or thing.

             (7)  A person does not commit an offence, and is not liable to any penalty, under the provisions of any other enactment (other than a taxation secrecy provision or a law enforcement secrecy provision) because the person gives information, or produces a document or thing, when required to do so under section 43.

50  Protection of person required to give information or produce documents or things

             (1)  A person who gives information, or produces a document or thing, to the National Integrity Commissioner in response to a request under section 43 has the same protection as a witness in proceedings in the High Court.

             (2)  Subsection (3) applies if it appears to the National Integrity Commissioner that, because a person:

                     (a)  is to give information, or produce a document or thing; or

                     (b)  has given information, or produced a document or thing;

to the National Integrity Commissioner in response to a request under section 43, either:

                     (c)  the safety of the person or any other person may be prejudiced; or

                     (d)  the person or any other person may be subjected to intimidation or harassment.

             (3)  The National Integrity Commissioner may make such arrangements as are necessary:

                     (a)  to protect the safety of any person mentioned in paragraph (2)(c); or

                     (b)  to protect any person mentioned in paragraph (2)(d) from intimidation or harassment.

             (4)  For the purpose of subsection (3), the arrangements that the National Integrity Commissioner may make include arrangements with:

                     (a)  members of the Australian Federal Police; or

                     (b)  members of the police force of a State or Territory.

             (5)  This section does not affect the Witness Protection Act 1994.


 

Division 3Conducting hearings

Subdivision AGeneral provisions

51  National Integrity Commissioner may hold hearings

National Integrity Commissioner may hold hearings for investigations or public inquiries

             (1)  The National Integrity Commissioner may hold a hearing for the purpose of:

                     (a)  investigating a corruption issue; or

                     (b)  conducting a public inquiry.

             (2)  Subject to subsections (3), (4) and (5), a hearing may be conducted in such manner as the National Integrity Commissioner thinks fit.

Hearing in relation to an investigation of a corruption issue

             (3)  The National Integrity Commissioner may decide to hold the whole (or a part) of a hearing in relation to an investigation of corruption issue either in public or in private.

             (4)  In deciding under subsection (3) whether a hearing (or a part of a hearing) is to be held in public or in private, the National Integrity Commissioner must have regard to the following:

                     (a)  whether evidence that may be given, or a matter that may arise, during the hearing (or that part of the hearing) is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence;

                     (b)  the seriousness of the corruption issue or issues to which the public inquiry relates;

                     (c)  any unfair prejudice to a person’s reputation that would be likely to be caused if the hearing (or that part of the hearing) took place in public;

                     (d)  whether it is in the public interest that the hearing (or that part of the hearing) take place in public;

                     (e)  any other relevant matter.

Note:          If the hearing is to be held in public, a witness may request that his or her evidence be taken in private: see section 58.

Hearing in relation to a public inquiry

             (5)  A hearing in relation to a public inquiry must be held in public. However, a part of a hearing in relation to a public inquiry may be held in private if the National Integrity Commissioner so directs.

Note:          Certain evidence must be given in private, and a witness may request that his or her evidence be taken in private: see section 58.

Record of hearing

             (6)  The National Integrity Commissioner must make a record of a hearing.

Note:          This subsection is subject to subsection 64(4).

             (7)  If the National Integrity Commissioner is conducting a public inquiry, the record of the hearing must include:

                     (a)  any document produced to the National Integrity Commissioner at the hearing; or

                     (b)  a description of any thing (other than a document) produced to the National Integrity Commissioner at the hearing;

unless the National Integrity Commissioner directs otherwise.

Direction is not a legislative instrument

             (8)  A direction given under this section is not a legislative instrument.

52  National Integrity Commissioner may summon person

             (1)  The National Integrity Commissioner may summon a person to attend a hearing at a time and place specified in the summons:

                     (a)  to give evidence; or

                     (b)  to produce documents or things specified in the summons.

Note 1:       In certain cases, disclosing the existence of a summons, or any information about it, is an offence: see section 61.

Note 2:       Failure to comply with a summons is an offence: see section 62.

Note 3:       A person may apply for legal and financial assistance in respect of his or her attendance: see section 74.

             (2)  A summons must:

                     (a)  be in writing and signed by the National Integrity Commissioner; and

                     (b)  be served on the person required to attend a hearing.

             (3)  If the hearing is held for the purpose of investigating a corruption issue, a summons requiring a person to give evidence must set out, so far as is reasonably practicable, the general nature of the matters in relation to which the National Integrity Commissioner intends to question the person.

             (4)  Subsection (3) does not prevent the National Integrity Commissioner from questioning the person in relation to:

                     (a)  any aspect of the corruption issue to which the hearing relates; or

                     (b)  another corruption issue.

             (5)  Subsection (3) does not apply if the National Integrity Commissioner is satisfied that complying with that subsection is likely to prejudice:

                     (a)  the investigation to which the hearing relates or another corruption investigation; or

                     (b)  any action taken as a result of an investigation referred to in paragraph (a).

             (6)  A person summoned to appear as a witness at a hearing is entitled to be paid by the Commonwealth any allowances for travelling and other expenses that are prescribed by the regulations.

             (7)  For the purposes of sections 62 and 64 to 66, the power of the National Integrity Commissioner under this section to summon a person to give evidence or to produce a document or thing includes the power to require or summon the person to give evidence (including answering a question) or produce a document or thing that is subject to legal professional privilege.

Note:          Under sections 64 and 65, legal professional privilege may still extend to the information, document or thing.

53  National Integrity Commissioner may take evidence outside Australia

                   If arrangements have been made between Australia and another country in relation to the taking of evidence in that country by the National Integrity Commissioner for a hearing held under this Division, the National Integrity Commissioner may:

                     (a)  take evidence on oath or by affirmation; and

                     (b)  use any evidence taken in that country in accordance with those arrangements;

for the purpose of performing any function, or exercising any power, under this Act.

Subdivision BProcedure at hearing

54  Who may be represented at a hearing

             (1)  A person giving evidence at a hearing may be represented by a legal practitioner.

             (2)  A person who is not giving evidence may be represented at a hearing by a legal practitioner if:

                     (a)  special circumstances exist; and

                     (b)  the National Integrity Commissioner consents to the person being so represented.

55  Who may be present at a hearing

Who may be present

             (1)  The National Integrity Commissioner may determine who may be present during all or part of a hearing held in private.

             (2)  The National Integrity Commissioner must allow the following persons to be present when evidence is being given:

                     (a)  a legal practitioner representing the person giving evidence;

                     (b)  a legal practitioner representing a person who:

                              (i)  is not giving evidence; but

                             (ii)  has the National Integrity Commissioner’s consent to being present at that time.

Opportunity to comment on a person’s presence

             (3)  If:

                     (a)  a person (the witness) is giving evidence at a hearing; and

                     (b)  another person is present at the hearing at that time; and

                     (c)  the other person is not:

                              (i)  a staff member of the National Integrity Commission; or

                             (ii)  a legal practitioner representing a person at the hearing;

the National Integrity Commissioner must:

                     (d)  inform the witness that the person is present; and

                     (e)  give the witness an opportunity to comment on the person’s presence.

             (4)  To avoid doubt, a person is still entitled to be present during all or part of the hearing even if:

                     (a)  the National Integrity Commissioner fails to comply with subsection (3); or

                     (b)  a witness comments adversely on the person’s presence under paragraph (3)(e).

Offence

             (5)  A person commits an offence if:

                     (a)  the person is present while evidence is being given in private at a hearing; and

                     (b)  the person is none of the following:

                              (i)  the person giving evidence;

                             (ii)  a person whom the National Integrity Commissioner must, under subsection (2), allow to be present while the evidence is being given;

                            (iii)  a person who may be present at the hearing in accordance with a determination under subsection (1).

Penalty:  Imprisonment for 12 months.

Determination of who may be present not a legislative instrument

             (6)  If the determination of who may be present at a hearing is made in writing, the determination is not a legislative instrument.

Subdivision CTaking evidence at hearing

56  Evidence on oath or by affirmation

             (1)  At a hearing, the National Integrity Commissioner may:

                     (a)  require a witness to either take an oath or make an affirmation; and

                     (b)  administer an oath or affirmation to the witness.

Note 1:       Failure to take an oath or make an affirmation is an offence: see section 62.

Note 2:       This means that a hearing is a judicial proceeding for the purposes of Part III of the Crimes Act 1914, which creates various offences in relation to judicial proceedings.

             (2)  The National Integrity Commissioner may administer an oath or affirmation to a person appearing as a witness in another country, but must do so in accordance with:

                     (a)  any provision of the arrangements made between Australia and that other country, as referred to in section 53; and

                     (b)  the laws of that other country.

             (3)  The oath or affirmation is an oath or affirmation that the evidence the person will give will be true.

             (4)  The National Integrity Commissioner may allow a person attending a hearing who has been sworn, or who has made an affirmation, to give evidence by tendering a written statement and verifying it by oath or affirmation.

57  Examination and cross‑examination of witnesses

                   At a hearing, the following persons may, so far as the National Integrity Commissioner thinks appropriate, examine or cross‑examine any witness on any matter that the National Integrity Commissioner considers relevant:

                     (a)  counsel assisting the National Integrity Commissioner generally or in relation to the investigation or public inquiry to which the hearing relates;

                     (b)  a person summoned, or otherwise authorised, to appear before the National Integrity Commissioner;

                     (c)  any legal practitioner representing a person at the hearing.

58  Giving evidence in private

Certain evidence must be given in private

             (1)  A person giving evidence at a hearing held in public must give particular evidence in private if the evidence:

                     (a)  would disclose one of the following:

                              (i)  legal advice given to a minister or a Commonwealth agency;

                             (ii)  a communication between an officer of a Commonwealth agency and another person or body, being a communication protected against disclosure by legal professional privilege; or

                     (b)  would breach a secrecy provision other than:

                              (i)  a taxation secrecy provision; or

                             (ii)  a law enforcement secrecy provision.

Person may request that certain evidence be given in private

             (2)  A person giving evidence at a hearing held in public may request that he or she give particular evidence in private on the grounds that:

                     (a)  the evidence relates to the profits or financial position of any person; and

                     (b)  the taking of evidence in public would be unfairly prejudicial to the interests of the person referred to in paragraph (a).

             (3)  The National Integrity Commissioner may, if he or she considers it appropriate, allow the evidence to be given in private.

59  Directions in relation to confidentiality

Prohibition or limitation on publication

             (1)  The National Integrity Commissioner may direct that:

                     (a)  particular evidence given at a hearing; or

                     (b)  the contents of a particular document, or a description of any thing, produced to the National Integrity Commissioner at the hearing; or

                     (c)  particular information that might enable a person who has given evidence at the hearing to be identified; or

                     (d)  the fact that a particular person has given or may be about to give evidence at the hearing;

must not be published, or must not be published except in such manner, and to such persons, as the National Integrity Commissioner specifies.

Note:          Failure to comply with a direction is an offence: see subsection (6).

             (2)  If the hearing is held in private, the National Integrity Commissioner must give a direction under subsection (1) if the National Integrity Commissioner is satisfied that the failure to give such a direction might prejudice:

                     (a)  a person’s safety or reputation; or

                     (b)  the fair trial of a person who has been, or may be, charged with an offence.

             (3)  The National Integrity Commissioner may vary or revoke a direction in writing. However, the National Integrity Commissioner must not vary or revoke a direction if the National Integrity Commissioner is satisfied that doing so might prejudice:

                     (a)  a person’s safety or reputation; or

                     (b)  the fair trial of a person who has been, or may be, charged with an offence.

Court certificate in relation to evidence in respect of which a direction has been given

             (4)  If:

                     (a)  a person has been charged with an offence before a federal court or a court of a State or Territory; and

                     (b)  the court considers that it may be desirable in the interests of justice that particular evidence given at a hearing, in respect of which the National Integrity Commissioner has given a direction under subsection (1), be made available to the person or to a legal practitioner representing the person;

the court may give to the National Integrity Commissioner a certificate to that effect. If the court does so, the National Integrity Commissioner must make the evidence available to the court.

             (5)  If:

                     (a)  the National Integrity Commissioner makes evidence available to a court under subsection (4); and

                     (b)  the court, after examining the evidence, is satisfied that the interests of justice so require;

the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.

Offence

             (6)  A person commits an offence if:

                     (a)  the person is given a direction by the National Integrity Commissioner under subsection (1); and

                     (b)  the person contravenes the direction.

Penalty:  Imprisonment for 12 months.

Direction is not a legislative instrument

             (7)  A direction given to a person under subsection (1) is not a legislative instrument.

Subdivision DProhibitions against disclosing information about a summons

60  Disclosure of summons may be prohibited

Application

             (1)  This section applies if:

                     (a)  a summons is served on a person (the person served) under section 52 to attend a hearing; and

                     (b)  the hearing is to be held in private.

Notation prohibiting disclosure of information about summons

             (2)  The National Integrity Commissioner may include a notation in the summons to the effect that disclosure of information about:

                     (a)  the summons; or

                     (b)  any official matter connected with the summons;

is prohibited except in the circumstances (if any) specified in the notation.

             (3)  The National Integrity Commissioner must include a notation in the summons if the National Integrity Commissioner is satisfied that failure to do so would reasonably be expected to prejudice:

                     (a)  a person’s safety or reputation; or

                     (b)  the fair trial of a person who has been, or may be, charged with an offence; or

                     (c)  the investigation to which the hearing relates or another corruption investigation; or

                     (d)  any action taken as a result of an investigation referred to in paragraph (c).

             (4)  The National Integrity Commissioner may include a notation in the summons if the National Integrity Commissioner is satisfied that:

                     (a)  failure to do so might prejudice:

                              (i)  a person’s safety or reputation; or

                             (ii)  the fair trial of a person who has been, or may be, charged with an offence; or

                            (iii)  the investigation to which the hearing relates or another corruption investigation; or

                            (iv)  any action taken as a result of an investigation referred to in subparagraph (iii); or

                     (b)  failure to do so might otherwise be contrary to the public interest.

             (5)  The National Integrity Commissioner must not include a notation in the summons in any other case.

Written statement to accompany notation

             (6)  If a notation is included in the summons, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 61 on the person served.

Cancellation of notation

             (7)  A notation included in the summons is cancelled by this subsection if:

                     (a)  the National Integrity Commissioner concludes the investigation to which the hearing relates; and

                     (b)  any criminal proceedings or civil penalty proceedings resulting from the investigation are commenced.

             (8)  If a notation is cancelled by subsection (7), the National Integrity Commissioner must advise the person served, in writing, of the cancellation.

Relationship of notation with Privacy Act 1988

             (9)  If:

                     (a)  a notation has been included in the summons in relation to the disclosure of information about the summons or any official matter connected with the summons; and

                     (b)  the notation has not been cancelled; and

                     (c)  apart from this subsection, a credit reporting agency (within the meaning of section 11A of the Privacy Act 1988) would be required, under subsection 18K(5) of the Privacy Act 1988, to make a note about the disclosure of the information;

such a note must not be made until the notation is cancelled.

61  Offences of disclosure

             (1)  A person commits an offence if:

                     (a)  the person is served with a summons under section 52; and

                     (b)  the summons includes a notation under section 60; and

                     (c)  the person discloses the existence of, or any information about:

                              (i)  the summons; or

                             (ii)  any official matter connected with the summons; and

                     (d)  when the disclosure is made:

                              (i)  the notation has not been cancelled by subsection 60(7); and

                             (ii)  the period of 5 years after the summons is served under section 52 has not ended.

Penalty:  Imprisonment for 12 months.

             (2)  In proceedings for an offence against subsection (1), it is a defence if the person makes the disclosure:

                     (a)  in the circumstances, if any, permitted by the terms of the notation; or

                     (b)  to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the summons; or

                     (c)  to a legal aid officer for the purpose of obtaining assistance under section 74 in relation to the summons; or

                     (d)  if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code.

             (3)  A person commits an offence if:

                     (a)  a disclosure is made to the person about:

                              (i)  a summons under section 52 that includes a notation under section 60; or

                             (ii)  any official matter connected with a summons under section 52 that includes a notation under section 60; and

                     (b)  the disclosure is permitted under subsection (2) or (4) because the person is a person of a particular kind; and

                     (c)  while the person is a person of that kind, the person discloses the existence of, or any information about:

                              (i)  the summons; or

                             (ii)  any official matter connected with the summons; and

                     (d)  when the disclosure by the person is made:

                              (i)  the notation has not been cancelled by subsection 60(7); and

                             (ii)  the period of 5 years after the summons is served under section 52 has not ended.

Penalty:  Imprisonment for 12 months.

             (4)  In proceedings for an offence against subsection (3), it is a defence if the person discloses the information:

                     (a)  if the person is an officer or agent of a body corporate referred to in paragraph (2)(d):

                              (i)  to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons; or

                             (ii)  to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the summons; or

                            (iii)  to a legal aid officer for the purpose of obtaining assistance under section 74 in relation to the summons; or

                     (b)  if the person is a legal practitioner—for the purpose of giving legal advice, making representations, or obtaining assistance under section 74, in relation to the summons; or

                     (c)  if the person is a legal aid officer—for the purpose of obtaining legal advice or representation in relation to the summons.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the Criminal Code.

             (5)  A person commits an offence if:

                     (a)  a disclosure is made to the person about:

                              (i)  a summons under section 52 that includes a notation under section 60; or

                             (ii)  any official matter connected with a summons under section 52 that includes a notation under section 60; and

                     (b)  the disclosure is permitted under subsection (2) or (4) because the person is a person of a particular kind; and

                     (c)  when the person is no longer a person of that kind, the person:

                              (i)  makes a record of the summons; or

                             (ii)  discloses the existence of the summons; or

                            (iii)  discloses any information about the summons or the existence of it; and

                     (d)  when the record, or disclosure, is made by the person:

                              (i)  the notation has not been cancelled by subsection 60(7); and

                             (ii)  the period of 5 years after the summons is served under section 52 has not ended.

Penalty:  Imprisonment for 12 months.

             (6)  A reference in this section to disclosing something’s existence includes disclosing information from which a person could reasonably be expected to infer its existence.

Subdivision EOffences in relation to hearings

62  Offences

Failure to attend hearing

             (1)  A person commits an offence if:

                     (a)  the person is served with a summons to attend a hearing; and

                     (b)  the person:

                              (i)  fails to attend as required by the summons; or

                             (ii)  fails to appear and report from day to day unless excused or released from further attendance by the National Integrity Commissioner.

Penalty:  Imprisonment for 12 months.

Note:          A defendant bears an evidential burden in relation to the excuse or release from further attendance referred to in subparagraph (b)(ii): see subsection 13.3(3) of the Criminal Code.

Failure to swear an oath, make an affirmation or answer a question

             (2)  A person commits an offence if:

                     (a)  the person is served with a summons to attend a hearing; and

                     (b)  the person fails:

                              (i)  to be sworn or to make an affirmation at the hearing; or

                             (ii)  to answer a question at the hearing that the National Integrity Commissioner requires the person to answer.

Penalty:  Imprisonment for 2 years.

Note 1:       A person may refuse to answer a question on the ground of legal professional privilege: see section 64.

Note 2:       This subsection is not subject to the privilege against self‑incrimination but there are limits on the uses to which the evidence the person gives may be put: see section 67.

Failure to produce a document or thing

             (3)  A person commits an offence if:

                     (a)  the person is served with a summons to produce a document or thing specified in the summons; and

                     (b)  the person fails to produce the document or thing that the person was required to produce.

Penalty:  Imprisonment for 2 years.

Note 1:       A person may refuse to produce a document or thing on the ground of legal professional privilege: see section 65.

Note 2:       This subsection is not subject to the privilege against self‑incrimination but there are limits on the uses to which the evidence the person gives may be put: see section 67.

63  Contempt

             (1)  A person commits an offence if:

                     (a)  the person insults, disturbs or uses insulting language towards another person; and

                     (b)  the person knows that:

                              (i)  the other person is the National Integrity Commissioner; and

                             (ii)  the other person is holding a hearing in the performance of his or her functions, or the exercise of his or her powers, as National Integrity Commissioner.

Penalty:  Imprisonment for 6 months.

             (2)  A person commits an offence if:

                     (a)  the person creates a disturbance, or takes part in creating or continuing a disturbance, in or near a place; and

                     (b)  the person knows that the place is a place where a hearing is being held for the purpose of:

                              (i)  investigating a corruption issue; or

                             (ii)  conducting a public inquiry.

Penalty:  Imprisonment for 6 months.

             (3)  A person commits an offence if:

                     (a)  the person interrupts a hearing that is being held for the purpose of:

                              (i)  investigating a corruption issue; or

                             (ii)  conducting a public inquiry; or

                     (b)  the person does any other act or thing that would, if the hearing were held in a court of record, constitute a contempt of that court.

Penalty:  Imprisonment for 6 months.

64  Legal professional privilege—answer to question

             (1)  A person must not refuse or fail to answer a question at a hearing that the National Integrity Commissioner requires the person to answer on the ground that the answer (or the relevant part of the answer) would disclose a communication that is subject to legal professional privilege, unless a claim to that effect is made at the hearing to the National Integrity Commissioner.

Note:          See also paragraph 67(5)(c).

             (2)  If such a claim is made, the National Integrity Commissioner may decide whether to accept or reject the claim.

             (3)  The National Integrity Commissioner may, by written notice served (as prescribed) on the person, require the person to answer the question for consideration (by the National Integrity Commissioner or a person authorised by the National Integrity Commissioner) for the purpose of deciding whether to accept or reject the claim.

             (4)  If the answer has been provided for consideration and the National Integrity Commissioner decides to accept the claim, the National Integrity Commissioner must:

                     (a)  expunge the answer from any record of the hearing made under subsection 51(6); and

                     (b)  disregard, for the purposes of any report or decision that the National Integrity Commissioner makes:

                              (i)  if the claim is accepted in relation to the all of the answer—all of the answer; or

                             (ii)  if the claim is accepted in relation to a part of the answer—that part of the answer.

             (5)  If the answer has been provided for consideration and the National Integrity Commissioner decides to reject the claim, the National Integrity Commissioner may use the answer for the purposes of the hearing.

             (6)  Without limiting subsections (3) and (5), the powers of the National Integrity Commissioner include, by force of this subsection, the power to decide whether to accept or reject the claim.

65  Legal professional privilege—documents or things

             (1)  A person must not refuse or fail to produce a document or thing to the National Integrity Commissioner at a hearing on the ground that the document or thing is subject to legal professional privilege, unless:

                     (a)  a court has found the document or thing (or the relevant part of the document or thing) to be subject to legal professional privilege; or

                     (b)  a claim that the document or thing (or the relevant part of the document or thing) is subject to legal professional privilege is made to the National Integrity Commissioner:

                              (i)  within the time that, in the summons, the National Integrity Commissioner allowed for its production; or

                             (ii)  within such further time as the National Integrity Commissioner allows for production of the document or thing.

Note:          See also paragraph 67(5)(c).

             (2)  If such a claim is made, the National Integrity Commissioner may decide whether to accept or reject the claim.

             (3)  The National Integrity Commissioner may, by written notice served (as prescribed) on the person, require the person to produce the document or thing for inspection (by the National Integrity Commissioner or a person authorised by the National Integrity Commissioner) for the purpose of deciding whether to accept or reject the claim.

             (4)  If the document or thing has been produced for inspection and the National Integrity Commissioner decides to accept the claim, the National Integrity Commissioner must:

                     (a)  return the document or thing to the person; and

                     (b)  disregard, for the purposes of any report or decision that the National Integrity Commissioner makes:

                              (i)  if the claim is accepted in relation to the whole document or thing—the whole document or thing; or

                             (ii)  if the claim is accepted in relation to a part of the document or thing—that part of the document or thing.

             (5)  If the document or thing has been produced for inspection and the National Integrity Commissioner decides to reject the claim, the National Integrity Commissioner may use the document or thing for the purposes of the hearing.

             (6)  Without limiting subsections (3) and (5), the powers of the National Integrity Commissioner include, by force of this subsection, the power to decide whether to accept or reject the claim.

66  Offences relating to claims for legal professional privilege

             (1)  A person commits an offence if:

                     (a)  the person had been served with a summons:

                              (i)  to attend a hearing and the person fails to answer a question at the hearing that the National Integrity Commissioner requires the person to answer; or

                             (ii)  to produce a document or thing specified in the summons and the person fails to produce the document or thing that the person was required to produce; and

                     (b)  the National Integrity Commissioner has decided under subsection 64(2) or 65(2) to reject a claim that the answer, document or thing (or the relevant part of the answer, document or thing) is subject to legal professional privilege; and

                     (c)  the person refuses or fails to answer the question or produce the document or thing as the National Integrity Commissioner requires, after that decision, under subsection 52(7).

Penalty:  $1,000 or imprisonment for 6 months.

             (2)  A person commits an offence if the person refuses or fails:

                     (a)  to answer a question that the person was required under subsection 64(3) to answer; or

                     (b)  to produce a document or thing that the person was required under subsection 65(3) to produce for inspection.

Penalty:  $1,000 or imprisonment for 6 months.

             (3)  Subsections (1) and (2) are offences of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  Subsections (1) and (2) do not apply if the person has a reasonable excuse.

             (5)  It is not a reasonable excuse for the purposes of subsection (4) for a person to refuse or fail to produce a document or thing that the document or thing is subject to legal professional privilege, unless a court has found the document or thing to be subject to legal professional privilege.

             (6)  It is a defence to a prosecution for an offence against this section constituted by a refusal or failure to answer a question or to produce a document or thing if the answer, document or thing was not relevant to the corruption issue or public inquiry to which the hearing related.

Note:          A defendant bears an evidential burden in relation to the matters in subsections (4) and (6) (see subsection 13.3(3) of the Criminal Code).

67  Self‑incrimination etc.

Self‑incrimination

             (1)  A person is not excused from:

                     (a)  answering a question; or

                     (b)  producing a document or thing;

when summoned, under section 52, to attend a hearing to do so on the ground that doing so would tend to incriminate the person or expose the person to a penalty.

Use indemnity

             (2)  Subsection (4) applies if:

                     (a)  the person:

                              (i)  answers the question (whether orally or in writing); or

                             (ii)  produces the document or thing;

                            and, before doing so, claims that answering the question, or producing the document or thing, might tend to incriminate the person or expose the person to a penalty; or

                     (b)  the person answers the question in writing and claims, in a written statement accompanying the answer, that answering the question might tend to incriminate the person or expose the person to a penalty; or

                     (c)  the person produces the document or thing and claims, in a written statement accompanying the document or thing, that producing the document or thing might tend to incriminate the person or expose the person to a penalty.

             (3)  Subsection (4) does not apply to the production of a document that is, or forms part of, a record of an existing or past business.

             (4)  Neither of the following:

                     (a)  the answer given;

                     (b)  the document or thing produced;

is admissible in evidence against the person in criminal proceedings, or any other proceedings for the imposition or recovery of a penalty, other than:

                     (c)  proceedings for an offence against section 62; or

                     (d)  confiscation proceedings; or

                     (e)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deals with false or misleading information or documents) that relates to this Act; or

                      (f)  proceedings for an offence against section 149.1 of the Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act; or

                     (g)  disciplinary proceedings against the person if the person is an employee of a Commonwealth agency.

Public interest grounds

             (5)  A person is not excused from:

                     (a)  answering a question; or

                     (b)  producing a document or thing;

when summoned, under section 52, to attend a hearing to do so on the ground that doing so:

                     (c)  would disclose one of the following:

                              (i)  legal advice given to a minister or a Commonwealth agency;

                             (ii)  a communication between an officer of a Commonwealth agency and another person or body, being a communication protected against disclosure by legal professional privilege; or

                     (d)  would breach a secrecy provision other than:

                              (i)  a taxation secrecy provision; or

                             (ii)  a law enforcement secrecy provision; or

                     (e)  would be otherwise contrary to the public interest.

             (6)  The fact that a person is not excused under subsection (5) from:

                     (a)  answering a question; or

                     (b)  producing a document or thing;

does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that answer, document or thing.

             (7)  A person who is served with a summons under section 52 does not commit an offence, and is not liable to any penalty, under the provisions of any other enactment (other than a taxation secrecy provision or a law enforcement secrecy provision) because the person:

                     (a)  answers a question at a hearing that the National Integrity Commissioner requires the person to answer; or

                     (b)  produces a document or thing that the person is required to produce in accordance with the summons.

Subdivision FCourt orders for delivery of witness’s passport and witness’s arrest

68  National Integrity Commissioner may apply for order that witness deliver his or her passport

             (1)  The National Integrity Commissioner may apply to a Judge of the Federal Court for an order that a person deliver his or her passport to the National Integrity Commissioner if:

                     (a)  either of the following apply:

                              (i)  a summons under section 52 has been issued requiring the person to attend a hearing (whether or not the summons has been served) in relation to a corruption investigation or public inquiry; or

                             (ii)  the person has appeared at a hearing in relation to a corruption investigation or public inquiry to give evidence or to produce documents or things; and

                     (b)  there are reasonable grounds for believing that the person may be able:

                              (i)  to give evidence, or further evidence, that is relevant to the investigation or public inquiry; or

                             (ii)  to produce documents or things, or further documents or things, that are relevant to the investigation or public inquiry; and

                     (c)  there are reasonable grounds for suspecting that the person:

                              (i)  intends to leave Australia; and

                             (ii)  has in his or her possession, custody or control a passport issued to him or her.

             (2)  The National Integrity Commissioner must give the Judge information on oath, or by affirmation, in support of the grounds for the application.

69  Court orders

Court order for witness to appear before the Court

             (1)  If a Judge of the Federal Court, sitting in Chambers, is satisfied, on the evidence, that the requirements of paragraphs 68(1)(a), (b) and (c) are met, the Judge may make an order:

                     (a)  requiring the person to appear before the Federal Court on a date, and at a time and place, specified in the order; and

                     (b)  requesting the person to show cause why he or she should not be ordered to deliver the passport to the National Integrity Commissioner.

Offence

             (2)  A person commits an offence if:

                     (a)  the person leaves Australia; and

                     (b)  an order has been made in relation to the person under subsection (1); and

                     (c)  a copy of the order has been served on the person.

Penalty:  Imprisonment for 2 years.

             (3)  In proceedings for an offence against subsection (2), it is a defence if:

                     (a)  the person has appeared before the Federal Court as required by the order referred to in paragraph (2)(b); and

                     (b)  if the Court makes an order in relation to the person under paragraph (4)(a)—the person has complied with the terms of the order and any passport delivered to the National Integrity Commissioner in accordance with the order has been returned to the person.

Court order that witness deliver passport to National Integrity Commissioner

             (4)  If the person appears before the Federal Court as required by the order made under subsection (1), the Court may, if it thinks fit, make an order:

                     (a)  requiring the person to deliver to the National Integrity Commissioner any passport:

                              (i)  issued to him or her; and

                             (ii)  in his or her possession, custody or control; and

                     (b)  authorising the National Integrity Commissioner to retain the passport until the end of the period (not exceeding one month) that is specified in the order.

Extension of period that National Integrity Commissioner may retain passport

             (5)  The Federal Court may, upon application by the National Integrity Commissioner, extend for a further period (of not more than one month), or further periods (of not more than one month in each case), the period for which the National Integrity Commissioner is authorised to retain a passport. However, the total period for which the National Integrity Commissioner is authorised to retain the passport must not exceed 3 months.

Revocation of court order

             (6)  If the Federal Court makes an order authorising the National Integrity Commissioner to retain a passport issued to a person, the person may apply to the Federal Court for the order to be revoked.

             (7)  If the Federal Court revokes the order, the National Integrity Commissioner must return the passport to the person immediately.

Jurisdiction of the Federal Court

             (8)  The Federal Court has jurisdiction with respect to matters arising under this section.

Definition

             (9)  In this section:

Australia includes the external Territories.

70  Applying for a warrant to arrest witness

             (1)  An authorised officer may apply to a Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, for a warrant to arrest a person if the authorised officer has reasonable grounds to believe that:

                     (a)  the person:

                              (i)  has been ordered to deliver his or her passport to the National Integrity Commissioner (whether or not the person has complied with the order); and

                             (ii)  is likely to leave Australia for the purpose of avoiding giving evidence at a hearing before the National Integrity Commissioner; or

                     (b)  the person has been served with a summons under section 52 and:

                              (i)  has absconded or is likely to abscond; or

                             (ii)  is otherwise attempting, or likely to attempt, to evade service of the summons; or

                     (c)  the person has committed an offence under subsection 62(1) or is likely to do so.

             (2)  The authorised officer must give the Judge information on oath, or by affirmation, in support of the grounds for the application.

71  Warrant for arrest

Issue of warrant

             (1)  If a Judge, sitting in Chambers, is satisfied, on the evidence, that there are reasonable grounds for believing that paragraph 70(1)(a), (b) or (c) is met, the Judge may issue a warrant authorising the authorised officer to arrest the person.

Execution of warrant

             (2)  For the purpose of executing a warrant, if the authorised officer executing the warrant (or an assisting officer) believes on reasonable grounds that the person is on any premises, the authorised officer (or the assisting officer) may break into and enter those premises.

             (3)  However, the authorised officer executing the warrant (or an assisting officer) must not enter a dwelling house at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the authorised officer (or the assisting officer) believes on reasonable grounds that it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time.

             (4)  The authorised officer executing the warrant (or an assisting officer) must not, in the course of arresting the person, use more force, or subject the other person to greater indignity, than is necessary and reasonable:

                     (a)  to make the arrest; or

                     (b)  to prevent the escape of the person after the arrest.

             (5)  The warrant may be executed even if the authorised officer does not have a copy of the warrant in his or her possession at the time it is executed.

             (6)  The authorised officer executing the warrant (or an assisting officer who arrests the person) must inform the person, at the time of the arrest, of the reason for which he or she is being arrested.

             (7)  It is sufficient if the person is informed of the substance of the reason and it is not necessary that this be done in language of a precise or technical nature.

             (8)  Subsection (6) does not apply to the arrest of the person if:

                     (a)  the person should, in the circumstances, know the substance of the reason for which he or she is being arrested; or

                     (b)  the person’s actions make it impracticable for the authorised officer executing the warrant (or an assisting officer making the arrest) to inform the person of the reason for which he or she is being arrested.

             (9)  Nothing in this section prevents the arrest of a person in accordance with any other law.

Definitions

           (10)  In this section:

dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.

Judge means:

                     (a)  a Judge of the Federal Court of Australia; or

                     (b)  a Judge of the Supreme Court of a State or Territory.

72  Powers of Judge in relation to person arrested

             (1)  A person arrested under a warrant issued under section 71 must be brought, as soon as practicable, before a Judge.

             (2)  The Judge may:

                     (a)  grant the person bail:

                              (i)  on such security as the Judge thinks fit; and

                             (ii)  on such conditions as the Judge thinks are necessary to ensure that the person appears as a witness at a hearing before the National Integrity Commissioner; or

                     (b)  order that the person continue to be detained for the purpose of ensuring that the person appears as a witness at a hearing before the National Integrity Commissioner; or

                     (c)  order that the person be released.

             (3)  A person who is detained under paragraph (2)(b) must be brought before a Judge:

                     (a)  within 14 days after he or she was brought, or last brought, before a Judge; or

                     (b)  within such shorter or longer time as a Judge fixed on the person’s last previous appearance before a Judge;

and the Judge may exercise any of the powers under subsection (2).

             (4)  In this section:

Judge means:

                     (a)  a Judge of the Federal Court of Australia; or

                     (b)  a Judge of the Supreme Court of a State or Territory.

Subdivision GMiscellaneous

73  National Integrity Commissioner may retain documents or things

             (1)  If a document or thing is produced to the National Integrity Commissioner in accordance with a summons under section 52, the National Integrity Commissioner:

                     (a)  may take possession of, and may make copies of, the document or thing, or take extracts from the document; and

                     (b)  may retain possession of the document or thing for such period as is necessary for the purposes of the investigation or public inquiry to which the document or thing relates.

             (2)  While the National Integrity Commissioner retains the document or thing, he or she must allow a person who would otherwise be entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.

74  Person may apply for legal and financial assistance

             (1)  A person who is summoned under section 52 to attend a hearing before the National Integrity Commissioner may apply to the Attorney‑General for assistance in respect of:

                     (a)  his or her attendance at the hearing; or

                     (b)  his or her representation at the hearing by a legal practitioner.

Note 1:       A person summoned to appear as a witness at a hearing is entitled to be paid allowances for travelling and other expenses prescribed by regulations: see subsection 52(5).

Note 2:       A person may also apply for assistance in respect of an application to the Federal Court or the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a matter arising under this Act: see section 175.

             (2)  A person who:

                     (a)  is not giving evidence at a hearing before the National Integrity Commissioner; and

                     (b)  is being represented at the hearing by a legal practitioner with the consent of the National Integrity Commissioner;

may apply to the Attorney‑General for assistance in respect of that representation.

Note:          A person may also apply for assistance in respect of an application to the Federal Court or the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a matter arising under this Act: see section 175.

             (3)  If a person applies under subsection (1) or (2), the Attorney‑General may, if he or she is satisfied that:

                     (a)  it would involve substantial hardship to the person to refuse the application; or

                     (b)  the circumstances of the case are of such a special nature that the application should be granted;

authorise the Commonwealth to provide the person with legal or financial assistance, determined by the Attorney‑General, in respect of:

                     (c)  the person’s attendance at the hearing; or

                     (d)  the person’s representation at the hearing by a legal practitioner.

             (4)  Legal or financial assistance may be given:

                     (a)  unconditionally; or

                     (b)  subject to such conditions as the Attorney‑General determines.

             (5)  An instrument that determines the conditions on which legal or financial assistance may be given is not a legislative instrument.

75  Protection of National Integrity Commissioner etc.

             (1)  The National Integrity Commissioner has, in exercising his or her power to hold a hearing, the same protection and immunity as a Justice of the High Court.

             (2)  A legal practitioner assisting the National Integrity Commissioner, or representing a person at a hearing, has the same protection and immunity as a barrister appearing for a party in proceedings in the High Court.

             (3)  To avoid doubt, this section does not limit the powers of the Ombudsman under the Ombudsman Act 1976 to investigate issues of administrative practice in relation to a hearing under this Division.

             (4)  A reference in this section to the National Integrity Commissioner includes a reference to an Assistant National Integrity Commissioner who exercises the power to hold a hearing in relation to a corruption issue under an authorisation under section 155.

76  Protection of witnesses etc.

             (1)  A person who:

                     (a)  gives evidence at a hearing conducted under this Act; or

                     (b)  produces a document or thing at a hearing conducted under this Act; or

                     (c)  makes a submission to the National Integrity Commissioner in relation to a public inquiry;

has the same protection as a witness in proceedings in the High Court.

             (2)  Subsection (3) applies if it appears to the National Integrity Commissioner that, because a person:

                     (a)  is to give evidence, or produce a document or thing, at a hearing under this Act; or

                     (b)  has given evidence, or produced a document or thing, at a hearing under this Act; or

                     (c)  is to make, or has made, a submission to the National Integrity Commissioner in relation to a public inquiry;

either:

                     (d)  the safety of the person or any other person may be prejudiced; or

                     (e)  the person or any other person may be subjected to intimidation or harassment.

             (3)  The National Integrity Commissioner may make such arrangements as are necessary:

                     (a)  to protect the safety of any person mentioned in paragraph (2)(d); or

                     (b)  to protect any person mentioned in paragraph (2)(e) from intimidation or harassment.

             (4)  For the purpose of subsection (3), the arrangements that the National Integrity Commissioner may make include arrangements with:

                     (a)  members of the Australian Federal Police; or

                     (b)  members of the police force of a State or Territory.

             (5)  This section does not affect the Witness Protection Act 1994.


 

Division 4Search warrants

Subdivision APreliminary

77  Application to things under the control of a person

                   This Division applies to a person (the possessor) who has a thing under his or her control in any place (whether for the use or benefit of the possessor or another person), even if another person has the actual possession or custody of the thing, as if the possessor has possession of the thing.

Subdivision BApplying for a search warrant

78  Authorised officer may apply for a search warrant

Application for warrant to search premises (investigation warrant)

             (1)  An authorised officer may apply to an issuing officer for an investigation warrant to search premises if the authorised officer:

                     (a)  has reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material on the premises; and

                     (b)  has reasonable grounds for believing that, if a person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed.

Note:          In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 81.

Application for warrant to search premises (offence warrant)

             (2)  An authorised officer may apply to an issuing officer for an offence warrant to search premises if the authorised officer has reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material on the premises.

Note:          In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 81.

Application for a warrant to search person (investigation warrant)

             (3)  An authorised officer may apply to an issuing officer for an investigation warrant to carry out an ordinary search or a frisk search of a person if the authorised officer:

                     (a)  has reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material; and

                     (b)  has reasonable grounds for believing that, if the person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed.

Note:          In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 81.

Application for a warrant to search person (offence warrant)

             (4)  An authorised officer may apply to an issuing officer for an offence warrant to carry out an ordinary search or a frisk search of a person if the authorised officer has reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

Note:          In special circumstances and urgent cases, an application may be made by telephone, fax, email or other electronic means: see section 81.

Information in support of application

             (5)  An authorised officer must give the issuing officer information on oath or by affirmation to support the grounds for an application under subsection (1), (2), (3) or (4).

             (6)  If an authorised officer applying for a search warrant suspects that, in executing the warrant, it will be necessary to use firearms, the authorised officer must state that suspicion, and the grounds for it, in the information given under subsection (5).

             (7)  If the authorised officer applying for a search warrant (or another authorised officer who will be an assisting officer in relation to the search warrant) has, at any time previously, applied for a search warrant under this Act or another Act in relation to the same person or premises, the authorised officer must state particulars of those applications, and their outcome, in the information given under subsection (5).

Subdivision CIssue of a search warrant

79  When search warrants may be issued

Issue of a warrant to search premises (investigation warrant)

             (1)  If:

                     (a)  an authorised officer makes an application to an issuing officer under subsection 78(1); and

                     (b)  the issuing officer is satisfied, on the information given under subsection 78(5), that:

                              (i)  there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, evidential material on the premises in relation to which the application is made; and

                             (ii)  there are reasonable grounds for believing that, if a person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed;

the issuing officer may issue an investigation warrant authorising the authorised officer to search the premises.

Issue of a warrant to search premises (offence warrant)

             (2)  If:

                     (a)  an authorised officer makes an application to an issuing officer under subsection 78(2); and

                     (b)  the issuing officer is satisfied, on the information given under subsection 78(5), that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, evidential material on the premises in relation to which the application is made;

the issuing officer may issue an offence warrant authorising the authorised officer to search the premises.

Issue of a warrant to search a person (investigation warrant)

             (3)  If:

                     (a)  an authorised officer makes an application to an issuing officer under subsection 78(3); and

                     (b)  the issuing officer is satisfied, on the information given under subsection 78(5), that:

                              (i)  there are reasonable grounds for suspecting that the person in relation to whom the application is made has in his or her possession, or will within the next 72 hours have in his or her possession, evidential material; and

                             (ii)  there are reasonable grounds for believing that, if the person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed;

the issuing officer may issue an investigation warrant authorising the authorised officer to carry out an ordinary search or a frisk search of the person.

Issue of a warrant to search a person (offence warrant)

             (4)  If:

                     (a)  an authorised officer makes an application to an issuing officer under subsection 78(4); and

                     (b)  the issuing officer is satisfied, on the information given under subsection 78(5), that there are reasonable grounds for suspecting that the person in relation to whom the application is made has in his or her possession, or will within the next 72 hours have in his or her possession, evidential material;

the issuing officer may issue an offence warrant authorising the authorised officer to carry out an ordinary search or a frisk search of the person.

Issue of a warrant by State/Territory issuing officers

             (5)  An issuing officer in a State or internal Territory may:

                     (a)  issue a search warrant in relation to premises or a person in that State or Territory; or

                     (b)  issue a search warrant in relation to premises or a person in an external Territory; or

                     (c)  issue a search warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

                     (d)  issue a search warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.

             (6)  An issuing officer in New South Wales or the Australian Capital Territory may issue a search warrant in relation to premises or a person in the Jervis Bay Territory.

             (7)  Subsections (5) and (6) do not apply if the issuing officer is:

                     (a)  a Judge of the Federal Court of Australia; or

                     (b)  a Federal Magistrate.

Issue of a warrant by issuing officers

             (8)  The function of issuing a search warrant is conferred on an issuing officer in a personal capacity and not as a court or a member of a court. The issuing officer need not accept the function conferred.

             (9)  An issuing officer performing a function of, or connected with, issuing a search warrant has the same protection and immunity as if he or she were performing that function as, or as a member of, the court of which the issuing officer is a member.

80  Content of warrants

General contents of warrant

             (1)  If an issuing officer issues a search warrant under section 79, the issuing officer is to state in the warrant:

                     (a)  either:

                              (i)  if the warrant is an investigation warrant—the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  if the warrant is an offence warrant—the offence to which the warrant relates; and

                     (b)  a description of the premises to which the warrant relates or the name or a description of a person to whom it relates; and

                     (c)  the kinds of evidential material that are to be searched for under the warrant; and

                     (d)  the name of the authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and

                     (e)  the time at which the warrant expires; and

                      (f)  whether the warrant may be executed at any time or only during particular hours.

             (2)  The time stated in the warrant as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified in the warrant must not be later than midnight on Monday in the following week.

Additional matters for warrant in relation to premises

             (3)  If the search warrant relates to premises, the issuing officer is also to state:

                     (a)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found at the premises in the course of the search that the authorised officer or an assisting officer believes on reasonable grounds to be:

                              (i)  if the warrant is an investigation warrant—evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  if the warrant is an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence;

                            if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

                     (b)  whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the authorised officer or an assisting officer suspects on reasonable grounds that the person has in his or her possession:

                              (i)  in the case of an investigation warrant—any evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence; or

                             (v)  in any case—any eligible seizable items.

Additional matters for warrant in relation to person

             (4)  If the search warrant relates to a person, the issuing officer is also to state:

                     (a)  the kind of search (ordinary or frisk) of the person that the warrant authorises; and

                     (b)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found, in the course of the search, in the possession of the person or in, or on, an aircraft, vehicle or vessel that the person had operated or occupied at any time within 24 hours before the search began, being a thing that the authorised officer or an assisting officer believes on reasonable grounds to be:

                              (i)  in the case of an investigation warrant—evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence;

                            if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Successive warrants

             (5)  Paragraph (1)(e) does not prevent the issue of successive warrants in relation to the same premises or person.

81  Application by telephone etc. and issue of warrant

             (1)  An authorised officer may apply to an issuing officer for a search warrant by telephone, fax, email or other electronic means:

                     (a)  in an urgent case; or

                     (b)  if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

             (2)  The issuing officer:

                     (a)  may require communication by voice to the extent that is practicable in the circumstances; and

                     (b)  may make a recording of the whole or any part of any such communication by voice.

             (3)  An application under this section must include all information that is required in an ordinary application for a search warrant, but the application may, if necessary, be made before the information is sworn or affirmed.

             (4)  If an application is made under this section:

                     (a)  sections 79 and 79 apply as if subsections 78(1), (2), (3) and (4) and 79(1), (2), (3) and (4) referred to 48 hours rather than 72 hours; and

                     (b)  section 80 applies as if subsection 80(2) referred to the end of the 48th hour rather than the end of the seventh day.

             (5)  If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:

                     (a)  a search warrant in the terms of the application should be issued urgently; or

                     (b)  the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;

the issuing officer may complete and sign the same form of search warrant that would be issued under section 79.

             (6)  If the issuing officer decides to issue the search warrant, the issuing officer is to inform the applicant, by telephone, fax, email or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

             (7)  The applicant must then complete a form of search warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which and the time at which the warrant was signed.

             (8)  The applicant must give or transmit to the issuing officer:

                     (a)  the form of search warrant completed by the applicant; and

                     (b)  if the information referred to in subsection (3) was not sworn or affirmed—that information duly sworn or affirmed.

             (9)  The applicant must do so not later than the day after the warrant expires or the day after the day on which the search warrant was executed, whichever is the earlier.

           (10)  The issuing officer is to attach to the documents provided under subsection (8) the form of search warrant he or she has completed.

           (11)  If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a search warrant issued under this section was duly authorised; and

                     (b)  the form of search warrant signed by the issuing officer is not produced in evidence;

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

           (12)  In this section:

applicant means the authorised officer who applied for the search warrant.

82  The things authorised by a search warrant in relation to premises

                   A search warrant in force in relation to premises authorises the authorised officer executing the warrant or an assisting officer to do any of the following:

                     (a)  to enter the premises;

                     (b)  to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;

                     (c)  to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found on the premises;

                     (d)  to seize other things found on the premises in the course of the search that the authorised officer or the assisting officer believes on reasonable grounds to be:

                              (i)  in the case of an investigation warrant—evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence;

                            if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence;

                     (e)  to seize other things found at the premises in the course of the search that the authorised officer or the assisting officer believes on reasonable grounds to be eligible seizable items;

                      (f)  if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the authorised officer or the assisting officer suspects on reasonable grounds that the person has in his or her possession:

                              (i)  in the case of an investigation warrant—any evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence; or

                             (v)  in any case—any eligible seizable items.

83  The things authorised by a search warrant in relation to a person

             (1)  A search warrant in force in relation to a person authorises the authorised officer executing the warrant or an assisting officer to do any of the following:

                     (a)  to search:

                              (i)  the person as specified in the warrant and things found in the possession of the person; and

                             (ii)  any aircraft, vehicle or vessel that the person had operated or occupied at any time within 24 hours before the search began, for things specified in the warrant;

                     (b)  to:

                              (i)  seize things of that kind; or

                             (ii)  record fingerprints from things; or

                            (iii)  take forensic samples from things;

                            found in the course of the search;

                     (c)  to seize other things found on, or in, the possession of the person or in the aircraft, vehicle or vessel referred to in subparagraph (a)(ii) in the course of the search that the authorised officer or the assisting officer believes on reasonable grounds to be:

                              (i)  in the case of an investigation warrant—evidential material in relation to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—a thing relevant to the offence to which the warrant relates; or

                            (iii)  in any case—evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); or

                            (iv)  in any case—a thing relevant to an indictable offence;

                            if the authorised officer or the assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence;

                     (d)  to seize other things found in the course of the search that the authorised officer or the assisting officer believes on reasonable grounds to be eligible seizable items.

             (2)  If the search warrant authorises an ordinary search or a frisk search of a person, a search of the person different from that authorised by the warrant must not be done under the warrant.

84  Restrictions on personal searches

                   A search warrant may not authorise a strip search or a search of a person’s body cavities.

85  When warrant may be executed etc.

             (1)  If a search warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

             (2)  If things are seized under a search warrant, the warrant authorises the authorised officer executing the warrant to make the things available to officers of other government agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.

Subdivision DGeneral provisions about executing a search warrant

86  Announcement before entry

             (1)  An authorised officer executing the search warrant must, before any person enters premises under the warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  An authorised officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:

                     (a)  to ensure the safety of a person (including an authorised officer or assisting officer); or

                     (b)  to ensure that the effective execution of the warrant is not frustrated.

87  Availability of assistance and use of force in executing a warrant

             (1)  In executing a search warrant, the authorised officer executing the warrant may:

                     (a)  obtain the assistance that is necessary and reasonable in the circumstances; and

                     (b)  use the force against persons and things that is necessary and reasonable in the circumstances.

             (2)  In executing a search warrant:

                     (a)  if an assisting officer is also an authorised officer—the assisting officer may use the force against persons and things that is necessary and reasonable in the circumstances; and

                     (b)  if an assisting officer is not an authorised officer—the assisting officer may use the force against things that is necessary and reasonable in the circumstances.

             (3)  A person who is not an authorised officer must not take part in searching a person.

Subdivision ESpecific provisions about executing a warrant in relation to premises

88  Application

                   This Subdivision applies if a search warrant in relation to premises is being executed.

89  Copy of warrant to be shown to occupier etc.

             (1)  If the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the authorised officer executing the search warrant or an assisting officer must make a copy of the warrant available to the person.

             (2)  If a person is searched under a search warrant in relation to premises, the authorised officer executing the warrant or an assisting officer must show the person a copy of the warrant.

             (3)  The authorised officer must identify himself or herself to the person at the premises.

             (4)  The copy of the search warrant need not include the signature of the issuing officer who issued it.

90  Occupier entitled to watch search

             (1)  The occupier of the premises, or another person who apparently represents the occupier, who is present at the premises, is entitled to watch the search.

             (2)  Subsection (1) is subject to Part IC of the Crimes Act 1914.

             (3)  The right to watch the search being conducted ceases if the person impedes the search.

             (4)  This section does not prevent 2 or more areas of the premises being searched at the same time.

91  Specific powers available to person executing a warrant

             (1)  The authorised officer executing the search warrant or an assisting officer may take photographs or video recordings of the premises or things on the premises:

                     (a)  for a purpose incidental to the execution of the warrant; or

                     (b)  with the written consent of the occupier of the premises.

             (2)  The authorised officer executing the search warrant and all assisting officers may, if the warrant is still in force, finish executing the warrant after all of them temporarily stop executing it and leave the premises:

                     (a)  for not more than one hour; or

                     (b)  for a longer period with the written consent of the occupier of the premises.

             (3)  The execution of a search warrant that is stopped by an order of a court may be completed if:

                     (a)  the order is later revoked or reversed on appeal; and

                     (b)  the warrant is still in force.

92  Use of equipment to examine or process things

             (1)  The authorised officer executing the search warrant or an assisting officer may bring to the premises any equipment (including electronic equipment) reasonably necessary to examine or process things found at the premises in order to determine whether they are things that may be seized under the warrant.

             (2)  A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:

                     (a)  both of the following apply:

                              (i)  it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;

                             (ii)  there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

                     (b)  the occupier of the premises consents in writing.

             (3)  If things are moved to another place for the purpose of examination or processing, the authorised officer must, if it is practicable to do so:

                     (a)  inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

                     (b)  allow the occupier or his or her representative to be present during the examination or processing.

             (4)  The thing may be moved to another place for examination or processing for no longer than 72 hours.

             (5)  An authorised officer may apply to an issuing officer for one or more extensions of that time if the authorised officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

             (6)  The authorised officer must give notice of the application for an extension to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

             (7)  The provisions of this Division in relation to the issuing of search warrants apply, with such modifications as are necessary, to the issuing of an extension.

             (8)  The authorised officer executing the search warrant or an assisting officer may operate equipment (including electronic equipment) already on the premises to examine or process a thing found on the premises in order to determine whether it may be seized under the warrant, if the authorised officer or the assisting officer believes on reasonable grounds that:

                     (a)  the equipment is suitable for the examination or processing; and

                     (b)  the examination or processing can be carried out without damaging the equipment or thing.

             (9)  A notice of the application for an extension given to the occupier of the premises under this section is not a legislative instrument.

93  Use of electronic equipment at premises without expert assistance

             (1)  The authorised officer executing the search warrant or an assisting officer may operate electronic equipment on the premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:

                     (a)  the data might constitute evidential material; and

                     (b)  the equipment can be operated without damaging it.

Note:          An authorised officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 95.

             (2)  If the authorised officer or the assisting officer believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:

                     (a)  copy the data to a disk, tape or other associated device brought to the premises; or

                     (b)  if the occupier of the premises agrees in writing—copy the data to a disk, tape or other associated device at the premises;

and take the device from the premises.

             (3)  If:

                     (a)  the authorised officer or the assisting officer takes the device from the premises; and

                     (b)  the National Integrity Commissioner is satisfied that the data is not required (or is no longer required) for:

                              (i)  investigating a corruption issue; or

                             (ii)  conducting a public inquiry; or

                            (iii)  judicial proceedings or administrative review proceedings;

the National Integrity Commissioner must arrange for:

                     (c)  the removal of the data from any device in the control of the National Integrity Commission; and

                     (d)  the destruction of any other reproduction of the data in the control of the National Integrity Commission.

             (4)  However, the National Integrity Commissioner must not do so if the data is evidence that he or she must deal with in accordance with Part 7.

             (5)  If the authorised officer or the assisting officer, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

                     (a)  seize the equipment and any disk, tape or other associated device; or

                     (b)  if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.

             (6)  A person may seize equipment under paragraph (5)(a) only if:

                     (a)  it is not practicable to put the material in documentary form as referred to in paragraph (5)(b); or

                     (b)  possession of the equipment by the occupier could constitute an offence.

94  Use of electronic equipment at premises with expert assistance

             (1)  If the authorised officer executing the search warrant or an assisting officer believes on reasonable grounds that:

                     (a)  evidential material may be accessible by operating electronic equipment at the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

             (2)  The authorised officer or the assisting officer must notify the occupier of the premises, in writing, of:

                     (a)  his or her intention to secure the equipment; and

                     (b)  the fact that the equipment may be secured for up to 24 hours.

             (3)  The equipment may be secured for up to 24 hours to allow the equipment to be operated by an expert.

             (4)  If the authorised officer or the assisting officer believes on reasonable grounds that expert assistance will not be available within 24 hours, he or she may apply to an issuing officer for an extension of that period.

             (5)  The authorised officer or the assisting officer must give notice of the application for an extension to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

             (6)  The provisions of this Division in relation to the issuing of search warrants apply, with such modifications as are necessary, to the issuing of an extension.

             (7)  A notice of the application for an extension given to the occupier of the premises under this section is not a legislative instrument.

95  Person with knowledge of a computer or a computer system to assist access etc.

             (1)  The authorised officer executing the search warrant may apply to an issuing officer for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer or an assisting officer or to do one or more of the following:

                     (a)  access data held in a computer, or accessible from a computer, that is on premises in relation to which the warrant is in force;

                     (b)  copy the data to a data storage device;

                     (c)  convert the data into documentary form.

             (2)  The issuing officer may grant the order if he or she is satisfied that:

                     (a)  there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

                     (b)  the specified person is:

                              (i)  in the case of an investigation warrant—reasonably suspected of having, or having access to, data that may be relevant to the corruption issue or public inquiry to which the warrant relates; or

                             (ii)  in the case of an offence warrant—reasonably suspected of having committed the offence stated in the warrant; or

                            (iii)  the owner or lessee of the computer; or

                            (iv)  an employee of the owner or lessee of the computer; and

                     (c)  the specified person has relevant knowledge of:

                              (i)  the computer or a computer network of which the computer forms a part; or

                             (ii)  measures applied to protect data held in, or accessible from, the computer.

             (3)  A person commits an offence if the person fails to comply with the order.

Penalty:  Imprisonment for 6 months.

96  Accessing data held on other premises—notification to occupier of those premises

             (1)  If:

                     (a)  data that is held on premises (other than the premises in relation to which the warrant is in force) is accessed under subsection 93(1); and

                     (b)  it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;

the authorised officer executing the search warrant must:

                     (c)  do so as soon as practicable; and

                     (d)  if the authorised officer has arranged, or intends to arrange, for continued access to the data under subsection 93(2) or (5)—include that information in the notification.

             (2)  A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the authorised officer.

97  Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of equipment being operated as mentioned in section 92, 93 or 94:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, had provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

             (6)  For the purpose of subsection (1):

damage, in relation to data, includes damages by erasure of data or addition of other data.

98  Copies of seized things to be provided

             (1)  If the authorised officer executing the search warrant or an assisting officer seizes:

                     (a)  a document, film, computer file or other thing that can be readily copied; or

                     (b)  a device storing information that can be readily copied;

the authorised officer or the assisting officer must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.

             (2)  However, subsection (1) does not apply if:

                     (a)  the thing that has been seized was seized under subsection 93(2) or paragraph 93(5)(a); or

                     (b)  possession of the document, film, computer file, thing or information by the occupier could constitute an offence.

99  Receipts of things seized under warrant

             (1)  If a thing is seized under a search warrant or moved under subsection 92(2), the authorised officer executing the warrant or an assisting officer must provide a receipt for the thing.

             (2)  If 2 or more things are seized or moved, they may be covered by the one receipt.

Subdivision FSpecific provisions about executing a warrant in relation to a person

100  Copy of warrant to be shown to person

             (1)  If a search warrant in relation to a person is being executed, the authorised officer executing the warrant or an assisting officer must make a copy of the warrant available to that person.

             (2)  The authorised officer must identify himself or herself to the person being searched.

             (3)  The copy of the warrant need not include the signature of the issuing officer who issued it.

101  Conduct of an ordinary search or a frisk search

                   An ordinary search or a frisk search of a person must, if practicable, be conducted by a person of the same sex as the person being searched.

Subdivision GOffences

102  Making false statements in warrants

                   A person commits an offence if:

                     (a)  the person makes a statement in applying for a search warrant; and

                     (b)  the person knows that the statement is false or misleading in a material particular.

Penalty:  Imprisonment for 2 years.

103  Offence for stating incorrect names in telephone warrants

                   A person commits an offence if:

                     (a)  the person states a name of an issuing officer in a document; and

                     (b)  the document purports to be a form of search warrant under section 81; and

                     (c)  the name is not the name of the issuing officer who issued the search warrant.

Penalty:  Imprisonment for 2 years.

104  Offence for unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person states a matter in a form of search warrant under section 81; and

                     (b)  the person knows that the matter departs in a material particular from the form authorised by the issuing officer.

Penalty:  Imprisonment for 2 years.

105  Offence for executing etc. an unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person executes or presents a document to another person; and

                     (b)  the document purports to be a form of search warrant under section 81; and

                     (c)  the person knows that the document:

                              (i)  has not been approved by an issuing officer under that section; or

                             (ii)  departs in a material particular from the terms authorised by an issuing officer under that section.

Penalty:  Imprisonment for 2 years.

106  Offence for giving unexecuted form of warrant

                   A person commits an offence if:

                     (a)  the person gives an issuing officer a form of search warrant under section 81; and

                     (b)  the document is not the form of search warrant that the person executed.

Penalty:  Imprisonment for 2 years.

Subdivision HMiscellaneous

107  Other laws about search, arrest etc. not affected

             (1)  This Division is not intended to limit or exclude the operation of another law of the Commonwealth relating to:

                     (a)  the search of persons or premises; or

                     (b)  arrest and related matters; or

                     (c)  the seizure of things.

             (2)  To avoid doubt, even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Division may be used despite the existence of the power under the other law.

108  Law relating to legal professional privilege not affected

                   This Division does not affect the law relating to legal professional privilege.


 

Division 5Powers of arrest

109  Authorised officers may exercise powers of arrest

                   For the purposes of investigating a corruption issue, an authorised officer who is not a constable (within the meaning of the Crimes Act 1914) has the same powers and duties under Divisions 4 and 5 of Part IAA of the Crimes Act 1914 as a constable as if the authorised officer were a constable.


 

Division 6Authorised officers

110  Appointment of authorised officers

             (1)  The National Integrity Commissioner may, in writing, authorise a person to be an authorised officer for the purposes of this Part.

             (2)  The person must be:

                     (a)  a staff member of the National Integrity Commission whom the National Integrity Commissioner considers has suitable qualifications or experience; or

                     (b)  a member of the Australian Federal Police.

             (3)  The National Integrity Commissioner may authorise a person referred to in paragraph (2)(b) only if the Commissioner of the Australian Federal Police agrees to the appointment.

             (4)  In exercising powers as an authorised officer, an authorised officer must comply with any directions given by the National Integrity Commissioner.

             (5)  If the National Integrity Commissioner gives a direction under subsection (4) in writing, the direction is not a legislative instrument.

111  Identity cards

Issue of identity card

             (1)  The National Integrity Commissioner must issue an identity card to a person who is an authorised officer for the purposes of this Part.

Form of identity card

             (2)  An identity card:

                     (a)  must be in the form prescribed by the regulations; and

                     (b)  must contain a recent photograph of the authorised officer.

Identity card to be carried and produced on request

             (3)  An authorised officer must carry the identity card at all times when exercising powers as an authorised officer in accordance with this Part.

             (4)  An authorised officer is not entitled to exercise any powers under this Part in relation to premises if:

                     (a)  the occupier of the premises requires the authorised officer to produce his or her identity card for inspection by the occupier; and

                     (b)  the authorised officer fails to comply with the requirement.

             (5)  An authorised officer is not entitled to exercise any powers under this Part in relation to a person if:

                     (a)  the person requires the authorised officer to produce his or her identity card for inspection by the person; and

                     (b)  the authorised officer fails to comply with the requirement.

Offence

             (6)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an authorised officer; and

                     (c)  the person does not return the identity card to the National Integrity Commissioner immediately after ceasing to be an authorised officer.

Penalty:  1 penalty unit.


 

Part 7Dealing with evidence and information obtained in investigation or public inquiry

Division 1Introduction

112  Guide to this Part

This Division is about how the National Integrity Commissioner is to deal with evidence and information obtained in investigating a corruption issue or conducting a public inquiry.

The National Integrity Commissioner must give evidence of an offence or liability to civil penalty to:

               (a)     the Commissioner of the Australian Federal Police; or

               (b)     the head (however described) of the police force of the relevant State or Territory; or

               (c)     another person or authority who is authorised by or under a law of the Commonwealth or the relevant State or Territory to prosecute the offence or bring the civil penalty proceedings;

as appropriate in the circumstances.

The National Integrity Commissioner must bring to the attention of the Prime Minister evidence of, or information suggesting, wrongful conviction of a person and must advise the person that the National Integrity Commissioner has brought the evidence to the attention of the Prime Minister.


 

Division 2Dealing with evidence and information obtained in investigation or public inquiry

113  Evidence of offence or liability to civil penalty

Commonwealth offence or civil penalty

             (1)  If, in investigating a corruption issue or conducting a public inquiry, the National Integrity Commissioner obtains:

                     (a)  evidence of an offence against a law of the Commonwealth that would be admissible in a prosecution for the offence; or

                     (b)  evidence of the contravention of a law of the Commonwealth:

                              (i)  in relation to which civil penalty proceedings may be brought; and

                             (ii)  that would be admissible in civil penalty proceedings for the contravention;

the National Integrity Commissioner must:

                     (c)  assemble the evidence; and

                     (d)  give the evidence to:

                              (i)  the Commissioner of the Australian Federal Police; or

                             (ii)  another person or authority who is authorised by or under a law of the Commonwealth to prosecute the offence or bring the civil penalty proceedings.

State or Territory offence or civil penalty

             (2)  If, in investigating a corruption issue or conducting a public inquiry, the National Integrity Commissioner obtains:

                     (a)  evidence of an offence against a law of a State or Territory that would be admissible in a prosecution for the offence; or

                     (b)  evidence of the contravention of a law of a State or Territory:

                              (i)  in relation to which civil penalty proceedings may be brought; and

                             (ii)  that would be admissible in civil penalty proceedings for the contravention;

the National Integrity Commissioner must:

                     (c)  assemble the evidence; and

                     (d)  give the evidence to:

                              (i)  the head (however described) of the police force of the State or Territory; or

                             (ii)  another person or authority who is authorised by or under a law of the State or Territory to prosecute the offence or bring the civil penalty proceedings.

114  Evidence that could be used in confiscation proceedings

Commonwealth proceedings

             (1)  If, in investigating a corruption issue or conducting a public inquiry, the National Integrity Commissioner obtains evidence that would be admissible in a proceeding under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 (other than a criminal prosecution for an offence under that Act), the National Integrity Commissioner must:

                     (a)  assemble the evidence; and

                     (b)  give the evidence to:

                              (i)  the Commissioner of the Australian Federal Police; or

                             (ii)  another person or authority who is authorised by or under a law of the Commonwealth to bring the proceeding.

State or Territory proceedings

             (2)  If, in investigating a corruption issue or conducting a public inquiry, the National Integrity Commissioner obtains evidence that would be admissible in a proceeding under a corresponding law within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 (other than a criminal prosecution for an offence under the corresponding law), the National Integrity Commissioner must:

                     (a)  assemble the evidence; and

                     (b)  give the evidence to:

                              (i)  the head (however described) of the police force of the State or Territory; or

                             (ii)  another person or authority who is authorised by or under a law of the State or Territory to bring the proceeding.

115  Evidence of, or information suggesting, wrongful conviction

Commonwealth offence

             (1)  If the National Integrity Commissioner:

                     (a)  in investigating a corruption issue or conducting a public inquiry, obtains evidence that a person was wrongly convicted of an offence against a law of the Commonwealth; and

                     (b)  is satisfied that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so;

the National Integrity Commissioner must:

                     (c)  bring the evidence to the notice of the Prime Minister; and

                     (d)  advise the person that the National Integrity Commissioner has brought the evidence to the notice of the Prime Minister.

State or Territory offence

             (2)  If the National Integrity Commissioner:

                     (a)  in investigating a corruption issue or conducting a public inquiry, obtains evidence that a person was wrongly convicted of an offence against a law of a State or Territory; and

                     (b)  is satisfied that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so;

the National Integrity Commissioner must:

                     (c)  bring the evidence to the notice of the Prime Minister; and

                     (d)  advise the person that the National Integrity Commissioner has brought the evidence to the notice of the Prime Minister.


 

Part 8Independent Parliamentary Advisor

Division 1Introduction

116  Guide to this Part

This Division is about the role of the Independent Parliamentary Advisor in providing advice about compliance with applicable codes of conduct and other matters to ministers, parliamentarians, former parliamentarians, committees and presiding officers.


 

Division 2Requests for advice

117  Minister may request advice

             (1)  A minister may request advice from the Independent Parliamentary Advisor about his or her compliance with an applicable code of conduct, whether the request for advice relates to an issue that arose before or after the commencement of this Act.

             (2)  A request for advice must be in writing.

             (3)  A request for advice must be about a matter relating to the minister requesting the advice or a family member of the minister.

118  Presiding officer or chair of committee may request advice

             (1)  A presiding officer or a chair of a committee of a House of the Parliament may request advice from the Independent Parliamentary Advisor about any relevant matter, including the development of a code of conduct for parliamentarians of that House.

             (2)  A request for advice must be in writing.

119  Parliamentarian or former parliamentarian may request advice

             (1)  A parliamentarian or a former parliamentarian may request advice from the Independent Parliamentary Advisor about:

                     (a)  an applicable code of conduct;

                     (b)  parliamentary allowances;

                     (c)  an interest, including a potential conflict of interest;

                     (d)  an ethical issue;

                     (e)  a matter of propriety, including the receipt of a gift;

                      (f)  any similar issue;

whether the request for advice relates to an issue that arose before or after the commencement of this Act

             (2)  A request for advice must be in writing.

             (3)  A request for advice must be about a matter relating to:

                     (a)  the parliamentarian or the former parliamentarian requesting the advice; or

                     (b)  a family member of the parliamentarian or the former parliamentarian requesting the advice; or

                     (c)  a person employed or formerly employed under the Members of Parliament (Staff) Act 1984 by the parliamentarian or the former parliamentarian.

120  Independent Parliamentary Advisor to provide advice in writing

                   The Independent Parliamentary Advisor may only provide written advice in response to a request under section 117, 118 or 119.

121  Independent Parliamentary Advisor may request additional information

             (1)  Before providing written advice in response to a request under section 117, 118 or 119, the Independent Parliamentary Advisor may request additional information from the person who made the request.

             (2)  A request made under subsection (1) must explain how the additional information relates to the original request for written advice.

             (3)  If:

                     (a)  a request is made under subsection (1); and

                     (b)  the Independent Parliamentary Advisor:

                              (i)  does not receive the additional information; or

                             (ii)  is unable to provide the written advice because the additional information is insufficient for the Independent Parliamentary Advisor to form an opinion on the matter;

then, in lieu of the written advice, the Independent Parliamentary Advisor must provide a written statement to the person who requested the advice that Independent Parliamentary Advisor was unable to prepare the advice because of insufficient information.


 

Division 3Reporting

122  Annual report

             (1)  The Independent Parliamentary Advisor must give:

                     (a)  the President of the Senate for presentation to the Senate; and

                     (b)  the Speaker of the House of Representatives for presentation to the House of Representatives;

a report (the annual report) on the performance of the independent parliamentary advisor functions during each financial year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

             (2)  A report under subsection (1) must include:

                     (a)  information about the number of times written advice was prepared by the Independent Parliamentary Advisor, including information about the number of times written advice related to:

                              (i)  an applicable code of conduct or a part thereof; or

                             (ii)  a particular type of gift; or

                            (iii)  a particular type of interest; and

                     (b)  the general nature of the written advice that was prepared by the Independent Parliamentary Advisor.

             (3)  Information under subsection (2) must not be included in a report under subsection (1) if including that information might identify the person who made a request for advice.


 

Division 4Better practices guides and fact sheets

123  Better practices guides and fact sheets

                   In accordance with the independent parliamentary advisor functions, the Independent Parliamentary Advisor may promote better practice in relation to matters of conduct, propriety and ethics for ministers, parliamentarians, former parliamentarians and persons employed under the Members of Parliament (Staff) Act 1984 by preparing and disseminating better practice guides and fact sheets those persons.


 

Part 9Administrative provisions

Division 1Introduction

124  Guide to this Part

This Division is about:

               (a)     the appointment of the integrity officers; and

               (b)     the staff of the National Integrity Commission, who are engaged under the Public Service Act 1999.

The National Integrity Commissioner may engage consultants.

The National Integrity Commissioner may delegate all or any of his or her functions or powers, other than the power to hold a hearing for the purpose of conducting a public inquiry, to an Assistant National Integrity Commissioner.


 

Division 2Appointment etc. of the integrity officers

Subdivision ANational Integrity Commissioner

125  Appointment of National Integrity Commissioner

             (1)  The National Integrity Commissioner is to be appointed by the Governor‑General by written instrument.

Note:          The National Integrity Commissioner is eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901.

             (2)  Before the Prime Minister makes a recommendation to the Governor‑General for the appointment of a person as the National Integrity Commissioner:

                     (a)  the Prime Minister must refer the proposed recommendation for the appointment to the Parliamentary Joint Committee on the National Integrity Commission under section 169; and

                     (b)  either:

                              (i)  the period that the committee has under that section to consider the proposed recommendation has ended without the committee rejecting the proposed recommendation; or

                             (ii)  the committee notifies the Prime Minister that it has decided to approve the proposed recommendation.

             (3)  Subject to section 126, a person may be proposed for appointment on more than one occasion.

             (4)  In this section and sections 168 and 169, appointment includes re‑appointment.

126  General terms and conditions of appointment

             (1)  The National Integrity Commissioner holds office for the period specified in his or her instrument of appointment. The period must not exceed 5 years. The sum of the periods for which the National Integrity Commissioner holds office must not exceed 5 years.

             (2)  The National Integrity Commissioner holds office on a full‑time basis.

             (3)  The National Integrity Commissioner holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor‑General.

127  Restriction on outside employment

                   The National Integrity Commissioner must not engage in paid employment outside the duties of his or her office without the Prime Minister’s approval.

128  Remuneration

             (1)  The National Integrity Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of remuneration by the Tribunal is in operation, the National Integrity Commissioner is to be paid the remuneration that is prescribed by the regulations.

             (2)  The National Integrity Commissioner is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

129  Leave of absence

             (1)  The National Integrity Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Prime Minister may grant the National Integrity Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Prime Minister determines.

130  Resignation

             (1)  The National Integrity Commissioner may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

131  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the National Integrity Commissioner for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of the National Integrity Commissioner if any of the following apply:

                     (a)  the National Integrity Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors;

                     (b)  the National Integrity Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

                     (c)  the National Integrity Commissioner engages, except with the Prime Minister’s approval, in paid employment outside the duties of his or her office;

                     (d)  the National Integrity Commissioner fails, without reasonable excuse, to comply with section 133 (disclosure of interests).

132  Acting appointments

             (1)  The Prime Minister may, by written instrument, appoint a person to act as the National Integrity Commissioner:

                     (a)  during a vacancy in the office of the National Integrity Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when National Integrity Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

             (2)  The Prime Minister may appoint the Law Enforcement Integrity Commissioner to act as the National Integrity Commissioner for the purposes of paragraph (1)(a) or (b).

             (3)  A person appointed to act during a vacancy mentioned in paragraph (1)(a) must not act for more than 12 months.

             (4)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because of any of the following:

                     (a)  the occasion for the appointment had not arisen;

                     (b)  there was a defect or irregularity in connection with the appointment;

                     (c)  the appointment had ceased to have effect;

                     (d)  the occasion to act had not arisen or had ceased.

Note:          See sections 20 and 33A of the Acts Interpretation Act 1901.

133  Disclosure of interests

                   The National Integrity Commissioner must give written notice to the Prime Minister of all interests, pecuniary or otherwise, that the National Integrity Commissioner has or acquires and that conflict or could conflict with the proper performance of the national integrity commissioner functions.

Subdivision BLaw Enforcement Integrity Commissioner

134  Appointment etc. of Law Enforcement Integrity Commissioner

                   Division 1 of Part 13 of the Law Enforcement Integrity Commissioner Act 2006 provides for the appointment and conditions of appointment of the Law Enforcement Integrity Commissioner.

Subdivision CIndependent Parliamentary Advisor

135  Appointment of Independent Parliamentary Advisor

             (1)  The Independent Parliamentary Advisor is to be appointed by the Governor‑General by written instrument.

Note:          The Independent Parliamentary Advisor is eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901.

             (2)  To be appointed as the Independent Parliamentary Advisor, a person must have a high level of knowledge and experience in parliamentary law and parliamentary privilege.

             (3)  Before the Prime Minister makes a recommendation to the Governor‑General for the appointment of a person as the Independent Parliamentary Advisor, the Prime Minister must:

                     (a)  consult with the Senate Committee of Privileges and the House of Representatives Committee of Privileges and Members’ Interests by referring the proposed appointment to each committee for consideration; and

                     (b)  allow each committee at least 10 sitting days of the relevant House from the date of the referral for the committees to comment on the proposed appointment; and

                     (c)  take into account any comments the committees make in his or her decision whether to continue with the proposed recommendation or not.

136  General terms and conditions of appointment

             (1)  The Independent Parliamentary Advisor holds office for the period specified in his or her instrument of appointment. The period must not exceed 5 years. The sum of the periods for which the Independent Parliamentary Advisor holds office must not exceed 5 years.

             (2)  The Independent Parliamentary Advisor may be appointed on a full‑time or part‑time basis.

             (3)  The Independent Parliamentary Advisor holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor‑General.

137  Engaging in other paid employment

                   If the Independent Parliamentary Advisor is appointed on a full‑time basis, the Independent Parliamentary Advisor must not engage in paid employment outside the duties of his or her office without the Prime Minister’s approval.

138  Remuneration

             (1)  The Independent Parliamentary Advisor is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of remuneration by the Tribunal is in operation, the Independent Parliamentary Advisor is to be paid the remuneration that is prescribed by the regulations.

             (2)  The Independent Parliamentary Advisor is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

139  Leave of absence

             (1)  The Independent Parliamentary Advisor has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Prime Minister may grant the Independent Parliamentary Advisor leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Prime Minister determines.

140  Resignation

             (1)  The Independent Parliamentary Advisor may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

141  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Independent Parliamentary Advisor for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of the Independent Parliamentary Advisor if any of the following apply:

                     (a)  the Independent Parliamentary Advisor:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors;

                     (b)  if the Independent Parliamentary Advisor is appointed on a full‑time basis:

                              (i)  the Independent Parliamentary Advisor engages, except with the Prime Minister’s approval, in paid employment outside the duties of his or her office; or

                             (ii)  the Independent Parliamentary Advisor is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

                     (c)  if the Independent Parliamentary Advisor is appointed on a part‑time basis— the Independent Parliamentary Advisor is absent, except on leave of absence, to an extent that the Prime Minister considers excessive;

                     (d)  the Independent Parliamentary Advisor fails, without reasonable excuse, to comply with section 143 (disclosure of interests).

142  Acting appointments

             (1)  The Prime Minister may, by written instrument, appoint a person to act as the Independent Parliamentary Advisor:

                     (a)  during a vacancy in the office of the Independent Parliamentary Advisor (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Independent Parliamentary Advisor:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

             (2)  The Prime Minister must not appoint the National Integrity Commissioner, an Assistant National Integrity Commissioner, the Law Enforcement Integrity Commissioner or an Assistant Law Enforcement Integrity Commissioner to act as the Independent Parliamentary Advisor for the purposes of paragraph (1)(a) or (b).

             (3)  A person appointed to act during a vacancy mentioned in paragraph (1)(a) must not act for more than 12 months.

             (4)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because of any of the following:

                     (a)  the occasion for the appointment had not arisen;

                     (b)  there was a defect or irregularity in connection with the appointment;

                     (c)  the appointment had ceased to have effect;

                     (d)  the occasion to act had not arisen or had ceased.

Note:          See sections 20 and 33A of the Acts Interpretation Act 1901.

143  Disclosure of interests

                   The Independent Parliamentary Advisor must give written notice to the Prime Minister of all interests, pecuniary or otherwise, that the Independent Parliamentary Advisor has or acquires and that conflict or could conflict with the proper performance of the independent parliamentary advisor functions.


 

Division 3Appointment etc. of Assistant National Integrity Commissioners

144  Appointment of Assistant National Integrity Commissioners

Appointment by Governor‑General

                   An Assistant National Integrity Commissioner is to be appointed by the Governor‑General by written instrument.

Note:          An Assistant National Integrity Commissioner is eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901.

145  General terms and conditions of appointment

             (1)  An Assistant National Integrity Commissioner holds office for the period specified in his or her instrument of appointment. The period must not exceed 5 years. The sum of the periods for which a person holds office as an Assistant National Integrity Commissioner holds office must not exceed 5 years.

             (2)  An Assistant National Integrity Commissioner may be appointed on either a full‑time or part‑time basis.

             (3)  A person holding office as an Assistant National Integrity Commissioner holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor‑General.

146  Engaging in other paid employment

             (1)  An Assistant National Integrity Commissioner appointed on a full‑time basis must not engage in paid employment outside the duties of his or her office without the Prime Minister’s approval.

             (2)  An Assistant National Integrity Commissioner appointed on a part‑time basis must not engage in paid employment that, in the Prime Minister’s opinion, conflicts or could conflict with the proper performance of the Assistant National Integrity Commissioner’s duties.

147  Remuneration

             (1)  An Assistant National Integrity Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, an Assistant National Integrity Commissioner is to be paid the remuneration that is prescribed by the regulations.

             (2)  An Assistant National Integrity Commissioner is to be paid the allowances that are prescribed by the regulations.

             (3)  Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

148  Leave of absence

             (1)  A full‑time Assistant National Integrity Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Prime Minister may grant a full‑time Assistant National Integrity Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Prime Minister determines.

             (3)  The National Integrity Commissioner may grant leave of absence to any part‑time Assistant National Integrity Commissioner on the terms and conditions that the National Integrity Commissioner determines.

149  Resignation

             (1)  An Assistant National Integrity Commissioner may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

150  Termination of employment

             (1)  The Governor‑General may terminate the appointment of an Assistant National Integrity Commissioner for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of an Assistant National Integrity Commissioner if any of the following apply:

                     (a)  the Assistant National Integrity Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors;

                     (b)  if the Assistant National Integrity Commissioner is appointed on a full‑time basis—the Assistant National Integrity Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

                     (c)  if the Assistant National Integrity Commissioner is appointed on a part‑time basis— the Assistant National Integrity Commissioner is absent, except on leave of absence, to an extent that the Prime Minister considers excessive;

                     (d)  the Assistant National Integrity Commissioner engages, except with the Prime Minister’s approval, in paid employment outside the duties of his or her office;

                     (e)  the Assistant National Integrity Commissioner fails, without reasonable excuse, to comply with section 152 (disclosure of interests).

151  Acting appointments

             (1)  The Prime Minister may appoint a person to act as an Assistant National Integrity Commissioner:

                     (a)  during a vacancy in the office of the Assistant National Integrity Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Assistant National Integrity Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note:          See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

             (2)  A person appointed to act during a vacancy mentioned in paragraph (1)(a) must not act for more than 12 months.

             (3)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

152  Disclosure of interests

                   An Assistant National Integrity Commissioner must give written notice to the Prime Minister of all interests (pecuniary or otherwise) that the Assistant National Integrity Commissioner has or acquires and that conflict or could conflict with the proper performance of the Assistant National Integrity Commissioner’s duties.


 

Division 4Staff, consultants and delegations

153  Staff

             (1)  The staff of the National Integrity Commission must be persons appointed or engaged under the Public Service Act 1999.

             (2)  The National Integrity Commissioner must, by writing, designate positions in Commission as positions assisting the Independent Parliamentary Advisor in the performance of the independent parliamentary advisor functions.

Note:          For creation of positions, see section 77 of the Public Service Act 1999.

             (3)  A person in a position designated under subsection (2) must not be involved in assisting:

                     (a)  the National Integrity Commissioner in the performance of the national integrity commissioner functions; or

                     (b)  the Law Enforcement Integrity Commissioner in the performance of the law enforcement integrity commissioner functions.

154  Consultants

             (1)  The National Integrity Commissioner may engage persons having suitable qualifications and experience as consultants to the National Integrity Commission.

             (2)  A person may only be engaged for a period of up to 2 years. However, a person’s contract may be extended beyond 2 years for the sole purpose of completing a particular task or project begun in the initial 2‑year period.

             (3)  Other terms and conditions of appointment are to be determined by the National Integrity Commissioner.

155  Delegation—National Integrity Commissioner

Delegation to an Assistant National Integrity Commissioner

             (1)  The National Integrity Commissioner may delegate all or any of his or her functions or powers to an Assistant National Integrity Commissioner.

             (2)  Subsection (1) does not apply to the power to hold a hearing for the purpose of conducting a public inquiry.

Delegation to certain staff members

             (3)  The National Integrity Commissioner may delegate all or any of his or her functions or powers to a staff member of the National Integrity Commission who is an SES employee or an acting SES employee.

             (4)  Subsection (3) does not apply to:

                     (a)  the power to hold a hearing for the purpose of conducting a public inquiry; or

                     (b)  a power under Division 2 or 3 of Part 6.

Form of delegation

             (5)  A delegation under this section must be in writing and signed by the National Integrity Commissioner.


 

Division 5Public reporting

156  Annual report

             (1)  The National Integrity Commissioner must give the Prime Minister, for presentation to each House of the Parliament, a report (the annual report) on the performance of the national integrity commissioner functions during each financial year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

             (2)  The annual report for the financial year must include the following:

                     (a)  the prescribed particulars of:

                              (i)  corruption issues raised by allegations or information referred to the National Integrity Commissioner under section 19 during that year; and

                             (ii)  corruption issues dealt with by the National Integrity Commissioner on his or her own initiative during that year; and

                            (iii)  corruption issues investigated by the National Integrity Commissioner during that year;

                     (b)  a description of investigations conducted by the National Integrity Commissioner during the financial year that the National Integrity Commissioner considers raise significant issues or developments in law enforcement;

                     (c)  a description, which may include statistics, of any patterns or trends, and the nature and scope, of corruption:

                              (i)  in Commonwealth agencies; or

                             (ii)  by public officials;

                            that have come to the National Integrity Commissioner’s attention during that year in the performance of the national integrity commissioner functions;

                     (d)  any recommendations for changes to:

                              (i)  the laws of the Commonwealth; or

                             (ii)  administrative practices of Commonwealth agencies;

                            that the National Integrity Commissioner, as a result of performing the national integrity commissioner functions during that year, considers should be made;

                     (e)  the extent to which investigations by the National Integrity Commissioner have resulted in the prosecution in that year of persons for offences;

                      (f)  the extent to which investigations by the National Integrity Commissioner have resulted in confiscation proceedings in that year;

                     (g)  details of the number and results of:

                              (i)  applications made to the Federal Court or the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for orders of review in respect of matters arising under this Act; and

                             (ii)  other court proceedings involving the National Integrity Commissioner;

                            being applications and proceedings that were determined, or otherwise disposed of, during that year.

157  Reports on investigations and public inquiries

             (1)  If:

                     (a)  both:

                              (i)  the National Integrity Commissioner gives the Prime Minister a report prepared under subsection 33(1); and

                             (ii)  one or more public hearings were held in the course of the investigation to which the report relates; or

                     (b)  the National Integrity Commissioner gives the Prime Minister a report prepared under subsection 40(1);

the Prime Minister must table the report in each House of the Parliament within 15 sitting days of that House after its receipt by the Prime Minister.

             (2)  Before the report is tabled in each House of the Parliament, the Prime Minister must remove information from the report if the Prime Minister is of the view that its inclusion may:

                     (a)  endanger a person’s life or physical safety; or

                     (b)  prejudice proceedings brought as a result of a corruption investigation or public inquiry; or

                     (c)  compromise operational activities, or methodologies, of the National Integrity Commission.

             (3)  To avoid doubt, the Prime Minister is not required by subsection (1) to cause a supplementary report prepared under subsection 33(6) or 40(5) to be tabled in either House of the Parliament.

158  Special reports

National Integrity Commissioner may give Prime Minister special reports

             (1)  The National Integrity Commissioner may, from time to time, give the Prime Minister, for presentation to the Parliament, a special report:

                     (a)  on the operations of the National Integrity Commission for a part of a financial year; or

                     (b)  on any matter relating to, or arising in connection with, the performance of the national integrity commissioner functions, or the exercise of the National Integrity Commissioner’s powers, under this Act; or

                     (c)  in accordance with subsection (2).

             (2)  The Prime Minister or a House of the Parliament may request the National Integrity Commissioner to, or the National Integrity Commissioner may, on his or her own initiative, prepare reports about the need for or the desirability of legislative or administrative action on issues in relation to:

                     (a)  corruption generally in Commonwealth agencies; or

                     (b)  the integrity of public officials;

whether those issues arose before or after the commencement of this Act.

             (3)  If the National Integrity Commissioner gives a special report to the Prime Minister under subsection (1), the Prime Minister must table the report in each House of the Parliament within 15 sitting days of that House after its receipt by the Prime Minister.

Opinion or finding critical of a government agency or person

             (4)  The National Integrity Commissioner must not disclose information in a special report prepared under subsection (1) that includes an opinion or finding that is critical of a government agency or person (either expressly or impliedly) unless the National Integrity Commissioner has taken the action required by subsection (5) or (6) before disclosing the information.

             (5)  If the opinion or finding is critical of a government agency, the National Integrity Commissioner must give the head of the agency:

                     (a)  a statement setting out the opinion or finding; and

                     (b)  a reasonable opportunity to appear before him or her and to make submissions in relation to the opinion or finding.

             (6)  If the opinion or finding is critical of a person, the National Integrity Commissioner must give the person:

                     (a)  a statement setting out the opinion or finding; and

                     (b)  a reasonable opportunity to appear before him or her and to make submissions in relation to the opinion or finding.

             (7)  The submissions may be made orally or in writing.

             (8)  The head of a government agency may:

                     (a)  appear before the National Integrity Commissioner personally; or

                     (b)  authorise another person to appear before the National Integrity Commissioner on his or her behalf.

             (9)  A person referred to in subsection (6):

                     (a)  may appear before the National Integrity Commissioner personally; or

                     (b)  may, with the National Integrity Commissioner’s approval, be represented by another person.

159  Contents of annual or special report

             (1)  The National Integrity Commissioner may exclude information from an annual report under section 156, or a special report under section 158, if the National Integrity Commissioner is satisfied that:

                     (a)  the information is sensitive information; and

                     (b)  it is desirable in the circumstances to exclude the information from the report.

             (2)  In deciding whether to exclude information under subsection (1), the National Integrity Commissioner must seek to achieve an appropriate balance between:

                     (a)  the public interest that would be served by including the information in the report; and

                     (b)  the prejudicial consequences that might result from including the information in the report.


 

Division 6Confidentiality requirements

160  Confidentiality requirements for National Integrity Commission staff

             (1)  A person who is, or has been, a staff member of the National Integrity Commission commits an offence if:

                     (a)  the person (either directly or indirectly and either while he or she is, or after he or she ceases to be, a staff member of the National Integrity Commission):

                              (i)  makes a record of any information; or

                             (ii)  divulges or communicates any information; and

                     (b)  the person acquired the information:

                              (i)  because of his or her being a staff member of the National Integrity Commission; or

                             (ii)  in the course of the carrying out his or her duties as a staff member of the National Integrity Commission; and

                     (c)  the information was disclosed or obtained under the provisions of, or for the purposes of, this Act.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

             (2)  Subsection (1) has effect subject to sections 161 and 162.

161  Exceptions to confidentiality requirements

Purposes connected with National Integrity Commissioner’s functions and powers

             (1)  Subsection 160(1) does not prevent a person from making a record of information, or divulging or communicating information, if the person:

                     (a)  acquired the information in the performance of his or her duties as a staff member of the National Integrity Commission; and

                     (b)  makes the record, or divulges or communicates the information:

                              (i)  for the purposes of a corruption investigation; or

                             (ii)  for purposes otherwise connected with the exercise of the powers, or the performance of the national integrity commissioner functions, under this Act.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3) of the Criminal Code.

             (2)  Without limiting subsection (1), subsection 160(1) does not prevent a person from communicating information to another person if:

                     (a)  the person acquired the information in the performance of his or her duties as a staff member of the National Integrity Commission; and

                     (b)  a provision of this Act requires or permits the National Integrity Commissioner to communicate that information to the other person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

Giving information to relevant agency

             (3)  Subsection 160(1) does not prevent the National Integrity Commissioner from disclosing information to the following heads of agencies:

                     (a)  the Commonwealth Ombudsman;

                     (b)  an Ombudsman of a State or Territory;

                     (c)  the head of a law enforcement agency;

                     (d)  the head of a police force of a State or Territory;

                     (e)  the head of an integrity agency for a State or Territory;

                      (f)  the head of another government agency;

if the National Integrity Commissioner is satisfied that, having regard to the functions of the agency concerned, it is appropriate to do so.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

National Integrity Commissioner to be satisfied that confidentiality regime in place

             (4)  If the National Integrity Commissioner proposes to disclose information to a person under subsection (3), the National Integrity Commissioner must satisfy himself or herself that a law of the Commonwealth, a State or Territory makes provision corresponding to the provision made by section 160 and this section with respect to the confidentiality of information acquired by that person.

Disclosure required by another Commonwealth law

             (5)  Subsection 160(1) does not prevent a person from disclosing information if the disclosure is required under another law of the Commonwealth.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code.

Disclosure to particular person

             (6)  The National Integrity Commissioner may disclose information to a particular person if the National Integrity Commissioner is satisfied that it is necessary to do so in order to protect the person’s life or physical safety.

162  Disclosure by National Integrity Commissioner in public interest etc.

             (1)  If the National Integrity Commissioner is satisfied that it is in the public interest to do so, the National Integrity Commissioner may disclose information to the public, or a section of the public, about:

                     (a)  the performance of the national integrity commissioner functions; or

                     (b)  the exercise of the National Integrity Commissioner’s powers; or

                     (c)  an investigation of a corruption issue conducted by the National Integrity Commissioner; or

                     (d)  a public inquiry conducted by the National Integrity Commissioner.

             (2)  Subsection (1) has effect:

                     (a)  subject to subsection (3) and section 163; and

                     (b)  despite any other provision of this Act.

             (3)  In deciding whether to disclose under subsection (1) information that the National Integrity Commissioner is satisfied is sensitive information, the National Integrity Commissioner must seek to achieve an appropriate balance between:

                     (a)  the public interest that would be served by disclosing the information; and

                     (b)  the prejudicial consequences that might result from disclosing the information.

163  Opportunity to be heard

Opinion or finding critical of a government agency or person

             (1)  The National Integrity Commissioner must not disclose information under section 162 in relation to an investigation of a corruption issue under this Act that includes an opinion or finding that is critical of a government agency or person (either expressly or impliedly) unless the National Integrity Commissioner has taken the action required by subsection (2) or (3) before disclosing the information.

Opportunity to appear and make submissions

             (2)  If the opinion or finding is critical of a government agency, the National Integrity Commissioner must give the head of the agency:

                     (a)  a statement setting out the opinion or finding; and

                     (b)  a reasonable opportunity to appear before him or her and to make submissions in relation to the opinion or finding.

             (3)  If the opinion or finding is critical of a person, the National Integrity Commissioner must give the person:

                     (a)  a statement setting out the opinion or finding; and

                     (b)  a reasonable opportunity to appear before him or her and to make submissions in relation to the opinion or finding.

             (4)  The submissions may be made orally or in writing.

             (5)  The head of a government agency may:

                     (a)  appear before the National Integrity Commissioner personally; or

                     (b)  authorise another person to appear before the National Integrity Commissioner on his or her behalf.

             (6)  A person referred to in subsection (3):

                     (a)  may appear before the National Integrity Commissioner personally; or

                     (b)  may, with the National Integrity Commissioner’s approval, be represented by another person.

164  National Integrity Commission staff generally not compellable in court proceedings

             (1)  This section applies to:

                     (a)  proceedings before a court (whether exercising federal jurisdiction or not); and

                     (b)  proceedings before any tribunal, authority or person having power to require the production of documents or the answering of questions.

             (2)  A person who is, or has been, a staff member of the National Integrity Commission is not compellable in any proceedings to which this section applies:

                     (a)  to disclose any information that:

                              (i)  he or she acquired because of his or her being or having been a staff member of the National Integrity Commission; and

                             (ii)  was disclosed or obtained under the provisions of, or for the purposes of, this Act; or

                     (b)  to produce any document that:

                              (i)  has come into his or her custody or control in the course of, or because of, the performance of his or her duties under this Act; and

                             (ii)  was produced under the provisions of, or for the purposes of, this Act.

             (3)  Subsection (1) does not apply to a proceeding if:

                     (a)  any of the following is a party to the proceedings in his or her official capacity:

                              (i)  the National Integrity Commissioner;

                             (ii)  a delegate of the National Integrity Commissioner;

                            (iii)  a person authorised by the National Integrity Commissioner to exercise a power or perform a function under this Act; or

                     (b)  the proceeding is brought for the purposes of carrying into effect a provision of this Act; or

                     (c)  the proceeding is a prosecution, civil penalty proceeding or confiscation proceeding brought as a result of a corruption investigation or public inquiry.

             (4)  In this section:

produce includes permit access to, and production has a corresponding meaning.


 

Part 10Parliamentary Joint Committee on the National Integrity Commission

  

165  Definitions

                   In this Part:

ACLEI corruption issue has the meaning given by section 8 of the Law Enforcement Integrity Commissioner Act 2006.

Australian Commission for Law Enforcement Integrity or ACLEI means the Australian Commission for Law Enforcement Integrity established by section 195 of the Law Enforcement Integrity Commissioner Act 2006.

committee means the Parliamentary Joint Committee on the National Integrity Commission for the time being constituted under this Part.

member means a member of the committee.

section 149 certified information has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.

special investigator means a person conducting a special investigation of an ACLEI corruption issue under Division 4 of Part 12 of the Law Enforcement Integrity Commissioner Act 2006.

166  Parliamentary Joint Committee on the National Integrity Commission

             (1)  As soon as practicable after the commencement of the first session of each Parliament, a joint committee of members of the Parliament to be known as the Parliamentary Joint Committee on the National Integrity Commission is to be appointed according to the practice of the Parliament with reference to the appointment of members to serve on joint select committees of both Houses of the Parliament.

             (2)  The committee is to consist of 10 members, 5 of whom must be members of the Senate appointed by the Senate, and 5 of whom must be members of the House of Representatives appointed by that House.

             (3)  A member of the Parliament is not eligible for appointment as a member of the committee if he or she is:

                     (a)  a minister; or

                     (b)  the President of the Senate; or

                     (c)  the Speaker of the House of Representatives; or

                     (d)  the Deputy President and Chair of Committees of the Senate or the Chair of Committees of the House of Representatives.

             (4)  A member ceases to hold office:

                     (a)  when the House of Representatives expires by the passing of time or is dissolved; or

                     (b)  if he or she becomes the holder of an office specified in any of the paragraphs of subsection (3); or

                     (c)  if he or she ceases to be a member of the House of the Parliament by which he or she was appointed; or

                     (d)  if he or she resigns his or her office as provided by subsection (5) or (6).

             (5)  A member appointed by the Senate may resign his or her office by writing signed by him or her and delivered to the President of the Senate.

             (6)  A member appointed by the House of Representatives may resign his or her office by writing signed by him or her and delivered to the Speaker of that House.

             (7)  Either House of the Parliament may appoint one of its members to fill a vacancy amongst the members of the committee appointed by that House.

167  Powers and proceedings of the committee

                   All matters relating to the powers and proceedings of the committee are to be determined by resolution of both Houses of the Parliament.

168  Duties of the committee

National Integrity Commissioner

             (1)  The committee has the following duties in relation to the National Integrity Commissioner:

                     (a)  to consider the proposed recommendation for an appointment of the National Integrity Commissioner in accordance with section 169; and

                     (b)  to monitor and review the National Integrity Commissioner’s performance of national integrity commissioner functions;

                     (c)  to report to both Houses of the Parliament, with such comments as it thinks fit, on any matter:

                              (i)  connected with the performance of the national integrity commissioner functions; or

                             (ii)  relating to the National Integrity Commission;

                            that the committee considers should be directed to the attention of Parliament;

                     (d)  to examine:

                              (i)  each annual report prepared by the National Integrity Commissioner under section 156; and

                             (ii)  any special report prepared by the National Integrity Commissioner under section 158;

                            and report to the Parliament on any matter appearing in, or arising out of, any such annual report or special report;

                     (e)  to examine trends and changes in law enforcement in so far as they relate to corruption and report to both Houses of the Parliament on any change that the committee thinks desirable:

                              (i)  to the national integrity commissioner functions or the powers of the National Integrity Commissioner; or

                             (ii)  to the procedures followed by the National Integrity Commissioner; or

                            (iii)  to the structure of the National Integrity Commission;

                      (f)  to inquire into any question in connection with the committee’s duties that is referred to it by either House of the Parliament, and to report to that House on that question.

             (2)  Subsection (1) does not authorise the committee:

                     (a)  to investigate a corruption issue; or

                     (b)  to reconsider the National Integrity Commissioner’s decisions or recommendations in relation to a particular corruption issue.

Law Enforcement Integrity Commissioner

             (3)  The committee has the following duties in relation to the Law Enforcement Integrity Commissioner:

                     (a)  to monitor and review the Law Enforcement Integrity Commissioner’s performance of law enforcement integrity commissioner functions;

                     (b)  to report to both Houses of the Parliament, with such comments as it thinks fit, on any matter:

                              (i)  connected with the performance of the law enforcement integrity commissioner functions; or

                             (ii)  relating to the Australian Commission for Law Enforcement Integrity;

                            that the committee considers should be directed to the attention of Parliament;

                     (c)  to examine:

                              (i)  each annual report prepared by the Law Enforcement Integrity Commissioner under section 201 of the Law Enforcement Integrity Commissioner Act 2006; and

                             (ii)  any special report prepared by the Law Enforcement Integrity Commissioner under section 204 of the Law Enforcement Integrity Commissioner Act 2006;

                            and report to the Parliament on any matter appearing in, or arising out of, any such annual report or special report;

                     (d)  to examine trends and changes in:

                              (i)  law enforcement in so far as they relate to corruption; and

                             (ii)  corruption generally in, or the integrity of staff members of, Commonwealth agencies with a law enforcement function;

                            and report to both Houses of the Parliament on any change that the committee thinks desirable:

                            (iii)  to the law enforcement integrity commissioner functions or the powers of the Law Enforcement Integrity Commissioner; or

                            (iv)  to the procedures followed by the Law Enforcement Integrity Commissioner; or

                             (v)  to the structure of the Australian Commission for Law Enforcement Integrity;

                     (e)  to inquire into any question in connection with the committee’s duties that is referred to it by either House of the Parliament, and to report to that House upon that question.

             (4)  Subsection (3) does not authorise the committee:

                     (a)  to investigate a corruption issue (as defined in section 7 of the Law Enforcement Integrity Commissioner Act 2006) or an ACLEI corruption issue; or

                     (b)  to reconsider the Law Enforcement Integrity Commissioner’s decisions or recommendations in relation to a particular corruption issue (as defined in section 7 of the Law Enforcement Integrity Commissioner Act 2006) or an ACLEI corruption issue; or

                     (c)  to reconsider a special investigator’s decisions or recommendations in relation to an ACLEI corruption issue.

169  Committee may approve or reject recommendation for appointment of National Integrity Commissioner

             (1)  If the Prime Minister refers a proposed recommendation for an appointment of the National Integrity Commissioner to the committee for approval, the committee must:

                     (a)  approve or reject the proposed recommendation within 10 sitting days after receiving it; or

                     (b)  notify the Prime Minister in accordance with subsection (2).

Note:          Section 125 requires a proposed recommendation to be referred to the committee for approval.

             (2)  The committee may notify the Prime Minister within 10 sitting days after receiving a proposed recommendation that it needs more time to consider the proposed recommendation. If the committee does so, the committee must approve or reject the proposed recommendation within 20 sitting days after receiving it.

             (3)  The decision to approve or reject a proposed recommendation is to be by majority of the members of the committee for the time being holding office.

             (4)  If the committee does not make a decision on a proposed recommendation by the required time, the committee is taken, at that time, to have approved the proposal.

             (5)  The committee must notify the Prime Minister of its decision in relation to a proposed recommendation as soon as practicable after making the decision.

             (6)  A notification under this section must be in writing.

             (7)  The committee must report to both Houses of the Parliament on its decision in relation to a proposed recommendation.

170  Disclosure to committee by National Integrity Commissioner

             (1)  Subject to subsection (2), the National Integrity Commissioner:

                     (a)  must comply with a request by the committee to give the committee information in relation to:

                              (i)  an investigation of a corruption issue; or

                             (ii)  a public inquiry;

                            that the National Integrity Commissioner has conducted or is conducting; and

                     (b)  must when requested by the committee, and may at such other times as the National Integrity Commissioner thinks appropriate, inform the committee concerning the general performance of the national integrity commissioner functions.

             (2)  The National Integrity Commissioner may decide not to comply with the request if the National Integrity Commissioner is satisfied that:

                     (a)  the information is sensitive information; and

                     (b)  the public interest that would be served by giving the information to the committee is outweighed by the prejudicial consequences that might result from giving the information to the committee.

             (3)  If the National Integrity Commissioner does not give information to the committee because of subsection (2), the committee may refer the request to the Prime Minister.

             (4)  If the committee refers the request to the Prime Minister, the Prime Minister:

                     (a)  must determine in writing whether:

                              (i)  the information is sensitive information; and

                             (ii)  if it is, whether the public interest that would be served by giving the information to the committee is outweighed by the prejudicial consequences that might result from giving the information to the committee; and

                     (b)  must provide copies of that determination to the National Integrity Commissioner and the committee; and

                     (c)  must not disclose his or her reasons for determining the question referred to in subparagraph (a)(ii) in the way stated in the determination.

             (5)  A determination made by the Prime Minister under subsection (4) is not a legislative instrument.

             (6)  If the Prime Minister determines that:

                     (a)  the information is not sensitive information; or

                     (b)  the information is sensitive information but the prejudicial consequences that might result from giving the information to the committee do not outweigh the public interest that would be served by giving the information to the committee;

the National Integrity Commissioner must give the information to the committee.

171  Disclosure to committee by Law Enforcement Integrity Commissioner

             (1)  Subject to subsections (2) and (3), the Law Enforcement Integrity Commissioner:

                     (a)  must comply with a request by the committee to give the committee information in relation to:

                              (i)  an investigation of a corruption issue (as defined in section 7 of the Law Enforcement Integrity Commissioner Act 2006); or

                             (ii)  a public inquiry under Part 8 of the Law Enforcement Integrity Commissioner Act 2006;

                            that the Law Enforcement Integrity Commissioner has conducted or is conducting; and

                     (b)  must when requested by the committee, and may at such other times as the Law Enforcement Integrity Commissioner thinks appropriate, inform the committee concerning the general performance of the law enforcement integrity commissioner functions.

             (2)  The Law Enforcement Integrity Commissioner must not comply with the request if:

                     (a)  the information is section 149 certified information; and

                     (b)  the disclosure of the information to the committee would contravene the certificate issued under section 149 of the Law Enforcement Integrity Commissioner Act 2006.

             (3)  The Law Enforcement Integrity Commissioner may decide not to comply with the request if the Law Enforcement Integrity Commissioner is satisfied that:

                     (a)  the information is sensitive information; and

                     (b)  the public interest that would be served by giving the information to the committee is outweighed by the prejudicial consequences that might result from giving the information to the committee.

             (4)  If the Law Enforcement Integrity Commissioner does not give information to the committee because of subsection (3), the committee may refer the request to the Minister.

             (5)  If the committee refers the request to the Minister, the Minister:

                     (a)  must determine in writing whether:

                              (i)  the information is sensitive information; and

                             (ii)  if it is, whether the public interest that would be served by giving the information to the committee is outweighed by the prejudicial consequences that might result from giving the information to the committee; and

                     (b)  must provide copies of that determination to the Law Enforcement Integrity Commissioner and the committee; and

                     (c)  must not disclose his or her reasons for determining the question referred to in subparagraph (a)(ii) in the way stated in the determination.

             (6)  A determination made by the Minister under subsection (5) is not a legislative instrument.

             (7)  If the Minister determines that:

                     (a)  the information is not sensitive information; or

                     (b)  the information is sensitive information but the prejudicial consequences that might result from giving the information to the committee do not outweigh the public interest that would be served by giving the information to the committee;

the Law Enforcement Integrity Commissioner must give the information to the committee.

172  Disclosure to committee by Minister

             (1)  Subject to subsections (2) and (3), the Minister must comply with a request by the committee to give the committee information in relation to an investigation of an ACLEI corruption issue that a special investigator has conducted or is conducting.

             (2)  The Minister must not comply with the request if:

                     (a)  the information is section 149 certified information; and

                     (b)  the disclosure of the information to the committee would contravene the certificate issued under section 149 of the Law Enforcement Integrity Commissioner Act 2006.

             (3)  The Minister may decide not to comply with the request if the Minister is satisfied that:

                     (a)  the information is sensitive information; and

                     (b)  the public interest that would be served by giving the information to the committee is outweighed by the prejudicial consequences that might result from giving the information to the committee.

173  Ombudsman to brief committee about controlled operations

             (1)  At least once in each year the Ombudsman must provide a briefing to the committee about the Law Enforcement Integrity Commissioner’s involvement in controlled operations under Part IAB of the Crimes Act 1914 during the preceding 12 months.

             (2)  For the purposes of receiving a briefing from the Ombudsman under subsection (1), the committee must meet in private.


 

Part 11Miscellaneous

  

174  Offence of victimisation

             (1)  A person commits an offence if the person causes, or threatens to cause, detriment to another person (the victim) on the ground that the victim, or any other person:

                     (a)  has referred, or may refer, to the National Integrity Commissioner an allegation, or information, that raises a corruption issue; or

                     (b)  has given, or may give, information to the National Integrity Commissioner; or

                     (c)  has produced, or may produce, a document or thing to the National Integrity Commissioner.

Penalty:  Imprisonment for 2 years.

             (2)  For the purpose of subsection (1), a threat may be:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

             (3)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

175  Legal and financial assistance in relation to applications for administrative review

             (1)  A person may apply to the Attorney‑General for assistance in respect of the person’s application, or proposed application, to the Federal Court or the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a matter arising under this Act.

             (2)  The Attorney‑General may, if he or she is satisfied that:

                     (a)  it would involve substantial hardship to the person to refuse the application; or

                     (b)  the circumstances of the case are of such a special nature that the application should be granted;

authorise the Commonwealth to provide the person with legal or financial assistance, determined by the Attorney‑General, in respect of the person’s application to the Federal Court or the Federal Magistrates Court, as the case may be.

             (3)  Legal or financial assistance may be given:

                     (a)  unconditionally; or

                     (b)  subject to such conditions as the Attorney‑General determines.

             (4)  An instrument that determines the conditions on which legal or financial assistance may be given is not a legislative instrument.

176  Immunity from civil proceedings

             (1)  A staff member of the National Integrity Commission is not liable to civil proceedings in relation to an act done, or omitted to be done, in good faith, in the performance or purported performance, or exercise or purported exercise, of the staff member’s functions, powers or duties under, or in relation to, this Act.

             (2)  A person whom the National Integrity Commissioner requests, in writing, to assist a staff member of the National Integrity Commission is not liable to civil proceedings in relation to an act done, or omitted to be done, in good faith for the purpose of assisting the staff member.

             (3)  If:

                     (a)  information or evidence has been given to the National Integrity Commissioner; or

                     (b)  a document or thing has been produced to the National Integrity Commissioner;

a person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the information or evidence was given or the document or thing was produced.

177  Immunities from certain State and Territory laws

                   The National Integrity Commissioner, an Assistant National Integrity Commissioner or a staff member of the National Integrity Commission is not required under, or by reason of, a law of a State or Territory:

                     (a)  to obtain or have a licence or permission for doing any act or thing in the exercise of his or her powers or the performance of his or her duties as the National Integrity Commissioner, an Assistant National Integrity Commissioner or a staff member of the National Integrity Commission; or

                     (b)  to register any vehicle, vessel, animal or article belonging to the Commonwealth.

178  Review of operation of Act

Undertaking the review

             (1)  The Prime Minister must cause an independent review to be undertaken of the first 3 years of the operation of this Act.

Report to Prime Minister

             (2)  The persons undertaking the review must give the Prime Minister a written report of the review within 6 months after the end of the 3‑year period.

Submissions

             (3)  The review must include an opportunity for:

                     (a)  persons who are, or have been, staff members of the National Integrity Commission; and

                     (b)  members of the public;

to make written submissions on the operation of this Act.

Assistance

             (4)  The National Integrity Commissioner and staff members of the National Integrity Commission must, if requested to do so by the persons undertaking the review, assist them in:

                     (a)  conducting the review; and

                     (b)  preparing the written report.

Tabling of report

             (5)  The Prime Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after he or she receives the report.

Section not to apply if review conducted by Parliamentary committee

             (6)  However, this section does not apply if a committee of one or both Houses of the Parliament (including the Parliamentary Joint Committee on the National Integrity Commission) has reviewed the operation of this Act, or started such a review, before the end of the 3‑year period.

Definition

             (7)  In this section:

independent review means a review undertaken by a person or persons who, in the Prime Minister’s opinion, possess appropriate qualifications to undertake the review.

179  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

180  Regulations

             (1)  The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  The regulations may require that information or reports that are required to be given under prescribed provisions are also to be given to prescribed persons in specified circumstances.

 


Schedule 1Amendments

Law Enforcement Integrity Commissioner Act 2006

1  After subsection 177(2)

Insert:

          (2A)  Subject to subsection (2), the Minister may appoint the National Integrity Commissioner to act as the Integrity Commissioner for the purposes of paragraph (1)(a) or (b).

          (2B)  A person appointed to act during a vacancy mentioned in paragraph (1)(a) must not act for more than 12 months.

2  After subsection 187(2)

Insert:

          (2A)  A person appointed to act during a vacancy mentioned in paragraph (1)(a) must not act for more than 12 months.

3  Subsection 197(2)

Repeal the subsection.

4  Part 14

Repeal the Part.

Ombudsman Act 1976

5  After subsection 6(15)

Insert:

        (15A)  If the Ombudsman forms the opinion:

                     (a)  that a complaint involves an allegation, or information, that raises a corruption issue; and

                     (b)  that the allegation or information could have been referred to the National Integrity Commissioner under Part 3 of the National Integrity Commissioner Act 2010 and could be more conveniently or effectively dealt with by the National Integrity Commissioner;

the Ombudsman may decide not to investigate the complaint, or not to investigate the complaint further, as the case may be, and to refer the allegation or information to the National Integrity Commissioner.

         (15B)  If the Ombudsman makes a decision under subsection (15A), the Ombudsman must:

                     (a)  refer the allegation, or information, that raises the corruption issue to the National Integrity Commissioner as soon as is reasonably practicable; and

                     (b)  give the National Integrity Commissioner any information or documents relating to the complaint that are in the possession, or under the control, of the Ombudsman; and

                     (c)  as soon as is reasonably practicable, give the complainant written notice that the complaint has been transferred to the National Integrity Commissioner.

         (15C)  In subsections (15A) and (15B):

corruption issue has the same meaning as in the National Integrity Commissioner Act 2010.

National Integrity Commissioner has the same meaning as in the National Integrity Commissioner Act 2010.

Privacy Act 1988

6  Subsection 18K(5) (note)

Repeal the note, substitute:

Note:          A credit reporting agency must not include a note about the disclosure of information in a file if a notation has been made on a summons, or a notice, relating to the disclosure of the information and the notation has not been cancelled (see section 29A of the Australian Crime Commission Act 2002, section 91 of the Law Enforcement Integrity Commissioner Act 2006 and section 60 of the National Integrity Commissioner Act 2010).