A Bill for an Act to establish the National Integrity Commission, and for related purposes
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act is the National Integrity Commission Act 2019.
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 |
| Provisions | Commencement | Date/Details |
| 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | |
| 2. Sections 3 to 281 | The day after the day on which the Consolidated Revenue Fund is appropriated under an Act to the Department in which this Act is administered for payment for the purposes of the National Integrity Commission. | |
| 3 Schedule 1 | At the same time as the provisions covered by table item 2. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Simplified outline of this Act
This Act establishes the Australian National Integrity Commission.
The Commission consists of:
(a) the National Integrity Commissioner; and
(b) the Law Enforcement Integrity Commissioner; and
(c) the Whistleblower Protection Commissioner; and
(d) Assistant National Integrity Commissioners; and
(e) Assistant Law Enforcement Integrity Commissioners.
The National Integrity Commissioner has functions relating to:
(a) promoting and improving the integrity and accountability of Commonwealth public administration; and
(b) preventing, investigating, exposing and addressing corruption issues involving or affecting Commonwealth public administration.
Those functions include the following:
(a) giving advice and assistance in relation to promoting integrity and reduce the likelihood of the occurrence of corrupt conduct;
(b) educating and disseminating information to combat corrupt conduct;
(c) leading and supporting the preparation of strategies for corruption prevention, national and international coordination of anti‑corruption efforts, and the development and implementation of a National Integrity and Anti‑Corruption Plan;
(d) investigating and conducting public inquiries into corruption issues;
(e) referring certain corruption issues to other agencies for investigation, or managing, overseeing or reviewing such investigations;
(f) preparing reports and making recommendations about legislative or other action relating to integrity and corruption.
The Whistleblower Protection Commissioner has functions including:
(a) receiving and investigating disclosures of wrongdoing; and
(b) providing advice, assistance, guidance and support to persons and agencies relating to the making of disclosures of wrongdoing.
The Commission has a CEO who is responsible for its administration and for assisting it to perform its functions.
This Act also provides for the appointment of the Parliamentary Joint Committee on the Australian National Integrity Commission. The Committee’s duties include:
(a) considering proposed recommendations for certain appointments under this Act; and
(b) monitoring and reviewing the performance of certain functions under this Act;
(c) reporting to Parliament about matters relating to the Commission or about trends and changes in law enforcement relating to corruption.
The Parliamentary Inspector of the Australian National Integrity Commission is established by this Act as an independent officer of the Parliament. The functions of the Parliamentary Inspector include:
(a) inspecting records of the Commission for purposes including reviewing whether the Commission has exercised power in an appropriate way; and
(b) investigating complaints about the conduct or activities of the Commission or staff of the Commission; and
(c) functions in relation to the protection of information by the Commission and alleged incidences of possible unauthorised disclosures; and
(d) reviewing information given by the Commission to the Parliamentary Joint Committee on the Australian National Integrity Commission.
4 Objects of Act
(1) The objects of this Act are:
(a) to promote and improve the integrity and accountability of Commonwealth public administration; and
(b) to prevent, investigate, expose and address corruption issues involving or affecting Commonwealth public administration; and
(c) to enable criminal offences to be prosecuted, civil and disciplinary proceedings to be brought, and other remedies to be obtained as a result of the investigation of corruption issues; and
(d) to educate government agencies, public officials and members of the public about corruption and its detrimental effects on public administration and the community, and about actions that should be or have been taken, or are being taken, to address corruption; and
(e) to ensure a comprehensive, efficient, nationally coordinated approach to the prevention, detection, reduction and remediation of corruption in:
(i) Commonwealth public administration;
(ii) Australia generally; and
(iii) Australia’s relations with other countries; and
(f) to assist in the cooperative implementation of Australia’s international anti‑corruption responsibilities, including under the United Nations Convention Against Corruption (2005); and
(g) to provide information, advice, guidance and support to:
(i) persons who, in the public interest, disclose corruption or other wrongdoing in Australia or involving Australian institutions; and
(ii) government agencies and other bodies dealing with disclosures of corruption or other wrongdoing; and
(h) to ensure support and protection is provided to persons who disclose corruption or other wrongdoing under the Public Interest Disclosure Act 2013 or Part 9.4AAA of the Corporations Act 2001 or related Commonwealth legislation.
(2) To assist in achieving the objects in paragraphs (1)(a) to (f), this Act establishes the office of the National Integrity Commissioner.
(3) To assist in achieving the objects in paragraphs (1)(g) and (h), this Act establishes the office of the Whistleblower Protection Commissioner.
5 Saving of powers, privileges and immunities
Except as expressly provided otherwise in this Act, 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.
6 Act binds the Crown
This Act binds the Crown in right of the Commonwealth.
7 Application of Act
This Act applies both within and outside Australia and extends to every external Territory.
8 Definitions
(1) In this Act:
AFP means the Australian Federal Police.
applicable code of conduct means:
(a) in the case of a Minister:
(i) a Ministerial code of conduct imposed by the Prime Minister on the Prime Minister’s 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; or
(b) in the case of a parliamentarian (including a Minister):
(i) the code of conduct in the National Integrity (Parliamentary Standards) Act 2019; or
(ii) a code of conduct for parliamentarians adopted by resolution of the House of which the parliamentarian is or was a member.
Assistant Commissioner means an Assistant National Integrity Commissioner appointed under section 206.
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.
assisting officer, in relation to a warrant for a person’s arrest or a search warrant, means:
(a) a person who:
(i) is an authorised officer or a member or special member of the AFP; and
(ii) is assisting in executing the warrant; or
(b) a person who:
(i) is not an authorised officer; and
(ii) is not a member or special member of the AFP; and
(ii) has been authorised by the authorised officer who is executing the warrant to assist in executing the warrant.
authorised officer means:
(a) the National Integrity Commissioner; or
(b) a person authorised under section 145.
CEO means the Chief Executive Officer of the Commission.
charged: a person is charged with an offence if a process for prosecuting the person for the offence commences.
civil penalty proceeding means a proceeding for a civil penalty in relation to a contravention of a law of the Commonwealth or of a State or Territory.
civil penalty provision means a provision of a law of the Commonwealth or of a State or Territory in relation to a contravention of which a civil penalty may be imposed.
Commission means the Australian National Integrity Commission established under section 11.
Commissioner means:
(a) the Whistleblower Protection Commissioner; or
(b) the Law Enforcement Integrity Commissioner.
Commonwealth agency means:
(a) an Agency within the meaning of the Public Service Act 1999; or
(b) a Department of the Parliament that is established under the Parliamentary Service Act 1999; 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 or the Northern Territory); or
(ii) by the Governor‑General; or
(iii) by a Minister;
but does not include a Commonwealth judicial officer.
Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
Commonwealth judicial officer has the same meaning as in the Criminal Code.
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.
constable means:
(a) a member or special member of the AFP; or
(b) a member of the police force or police service of a State or Territory.
corrupt conduct has the meaning given by section 9.
corruption investigation means an investigation of a corruption issue under this Act.
corruption issue has the meaning given by section 10.
criminal offence means an offence against a law of the Commonwealth or of a State or Territory.
criminal proceeding means:
(a) a prosecution for an offence against a law of the Commonwealth or of a State or Territory; or
(b) a confiscation proceeding.
data has the same meaning as in Part IAA of the Crimes Act 1914.
data held in a computer has the same meaning as in Part IAA of the Crimes Act 1914.
data storage device has the same meaning as in Part IAA of the Crimes Act 1914.
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.
disciplinary proceeding:
(a) means a proceeding of a disciplinary nature under a law of the Commonwealth or of a State or Territory; and
(b) includes action taken under Subdivision D of Division 3 of Part V of the Australian Federal Police Act 1979.
disclosure of wrongdoing means:
(a) a public interest disclosure within the meaning of the Public Interest Disclosure Act 2013; or
(b) a disclosure of information qualifying for protection under Part 9.4AAA of the Corporations Act 2001; or
(c) a referral of an allegation, or information, that raises a corruption issue under Part 4 of this Act, where made by a current or former employee, volunteer or contractor of an organisation to whom the corruption issue also relates; or
(d) an alleged or suspected contravention of the National Integrity (Parliamentary Standards) Act 2019, where made by a current or former employee, volunteer or contractor of an organisation to whom the contravention also relates; or
(e) a disclosure of wrongdoing of a type prescribed by the regulations for the purposes of this paragraph.
eligible seizable item means anything that:
(a) would present a danger to a person; or
(b) could be used to assist a person to escape from lawful custody.
employee of a Commonwealth agency includes:
(a) the head of the agency; and
(b) a temporary employee of the agency; and
(c) an independent contractor providing a service to or on behalf of the agency.
engage in conduct means:
(a) do an act; or
(b) omit to do an act.
evidential material means:
(a) in relation to an investigation warrant—a thing that may be relevant to:
(i) a corruption investigation; or
(ii) a public inquiry; or
(b) in relation to an offence warrant—a thing relevant to an offence against a law of the Commonwealth.
Federal Circuit Court means the Federal Circuit Court of Australia.
Federal Court means the Federal Court of Australia.
former parliamentarian means a former member of either House of the Parliament.
frisk search has the same meaning as in Part IAA of the Crimes Act 1914.
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.
head of a government agency means:
(a) the person holding, or performing the duties of, the principal office in respect of the agency; or
(b) if the government agency is a person—that person.
in contempt of the Commission has the meaning given by section 93.
industrial, civil or administrative body means:
(a) Fair Work Australia; or
(b) a court or commission (however described) performing or exercising, under an industrial law within the meaning of the Fair Work Act 2009, functions and powers corresponding to those conferred on Fair Work Australia by the Fair Work Act 2009; or
(c) a court or commission (however described) performing or exercising, under a workplace law (within the meaning of the Fair Work Act 2009), functions and powers corresponding to those conferred on Fair Work Australia by the Fair Work (Registered Organisations) Act 2009; or
(d) a civil or administrative appeals tribunal of the Commonwealth or of a State or Territory; or
(e) an anti‑discrimination, equal opportunity or human rights protection body, commission or tribunal of the Commonwealth or of a State or Territory.
interest means an interest whether it is or is not registrable in accordance with a resolution or resolutions of a House of the Parliament.
investigation warrant means a warrant to search for a thing that may be relevant to:
(a) a corruption investigation; or
(b) a public inquiry.
issuing officer means:
(a) for an investigation warrant:
(i) a Judge of the Federal Court of Australia sitting in Chambers; or
(ii) a Judge of the Federal Circuit Court of Australia sitting in Chambers; or
(iii) a Judge of a court of a State or Territory; or
(b) for an offence warrant—a magistrate.
law enforcement agency has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.
law enforcement function means any of the following functions:
(a) investigating whether:
(i) an offence has been committed against a law of the Commonwealth; or
(ii) there has been a contravention of a law of the Commonwealth in relation to which civil penalty proceedings may be brought;
(b) preparing the material necessary to prosecute a person for an offence against a law of the Commonwealth;
(c) preparing the material necessary to bring civil penalty proceedings against a person for a contravention of a law of the Commonwealth;
(d) collecting, maintaining, correlating, analysing, accessing or distributing information for the purpose of assisting the enforcement of laws of the Commonwealth;
(e) assisting in carrying out a function referred to in paragraphs (a) to (d).
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.
law enforcement secrecy provision means:
(a) Part 11 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006; or
(b) section 45 of the Surveillance Devices Act 2004; or
(c) sections 63 and 133 of the Telecommunications (Interception and Access) Act 1979; or
(d) anything done under a provision referred to in paragraphs (a) to (c).
legal aid officer means:
(a) a member, or member of staff, of an authority established by or under a law of a State or Territory for purposes that include providing legal assistance; or
(b) a person to whom the Attorney‑General has delegated his or her powers and functions under section 109.
legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner, of the High Court or of the Supreme Court of a State or Territory.
manage an investigation of a corruption issue by a Commonwealth agency has the meaning given by section 151.
National Integrity Commissioner means the National Integrity Commissioner appointed under section 187.
national integrity commissioner functions has the meaning given by section 12.
national law enforcement agencies means:
(a) the AFP; or
(b) the Australian Crime Commission; or
(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.
nominated contact of a Commonwealth agency for an investigation of a corruption issue means:
(a) a representative of the agency nominated under section 150 as the nominated contact for the investigation; or
(b) if representative is not nominated—the head of the agency.
occupier of premises means the person apparently in charge of the premises.
offence warrant means a warrant to search for a thing relevant to an offence against a law of the Commonwealth.
official matter means any of the following (whether past, present or contingent):
(a) a corruption investigation;
(b) a hearing held by the National Integrity Commissioner or a special investigator in relation to a corruption investigation;
(c) court proceedings.
ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket or any gloves, shoes or hat; and
(b) an examination of those items.
oversee an investigation of a corruption issue by a Commonwealth agency has the meaning given by section 152.
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
parliamentarian means:
(a) a senator; or
(b) a member of the House of Representatives; or
(c) a Minister of State who is not a senator or member of the House of Representatives; or
(d) a person who is taken to be the President of the Senate under the Parliamentary Presiding Officers Act 1965 and who is not a senator or member of the House of Representatives; or
(e) a person who is taken to be the Speaker of the House of Representatives under the Parliamentary Presiding Officers Act 1965 and who is not a senator or member of the House of Representatives.
parliamentary allowances means allowances (including allowances by way of salary) and entitlements (including superannuation entitlements) of parliamentarians under a law of the Commonwealth.
Parliamentary Inspector means the Parliamentary Inspector of the Australian National Integrity Commission referred to in section 253.
Parliamentary Joint Committee means the Parliamentary Joint Committee on the Australian National Integrity Commission for the time being constituted under Part 11.
premises includes a place, vehicle, vessel and aircraft.
presiding officer means:
(a) in relation to the Senate—the President of the Senate; or
(b) in relation to the House of Representatives—the Speaker of the House of Representatives.
presiding officers means the President of the Senate and the Speaker of the House of Representatives acting jointly.
public inquiry means a public inquiry conducted by the National Integrity Commissioner under Part 5.
public official means a person having Commonwealth public official functions or acting in a Commonwealth 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 person employed under the Members of Parliament (Staff) Act 1984;
(e) 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;
(f) a person declared by the regulations to be a public official for the purposes of this definition;
(g) 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 (f);
but does not include a Commonwealth judicial officer.
refer, in relation to an allegation or information, has the meaning given by subsections (2) and (3).
referred corruption issue means a corruption issue referred under section 42.
search warrant means an investigation warrant, or an offence warrant, that is issued under section 114:
(a) to search premises; or
(b) to carry out an ordinary search, or frisk search, of a person.
secrecy provision means:
(a) a provision of a law of the Commonwealth that purports to prohibit; or
(b) anything done, under a provision of a law of the Commonwealth, to prohibit;
the communication, divulging or publication of information, the production of, or the publication of the contents of, a document, or the production of a thing.
sensitive information means information the disclosure of which:
(a) could prejudice:
(i) the security, defence or international relations of Australia; or
(ii) relations between the Commonwealth Government and the Government of a State or between the Government of a State and the Government of another State; or
(b) would involve disclosing:
(i) deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the Commonwealth or of a State; or
(ii) deliberations or advice of the Federal Executive Council or the Executive Council of a State or the Northern Territory; or
(iii) deliberations or decisions of the Australian Capital Territory Executive or of a committee of that Executive; or
(c) could reveal, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to:
(i) the enforcement of the criminal law of the Commonwealth, a State or Territory or a foreign country; or
(ii) a corruption investigation; or
(iii) a public inquiry under this Act; or
(d) could endanger a person’s life or physical safety; or
(e) could prejudice the protection of public safety; or
(f) could prejudice the fair trial of a person or the impartial adjudication of a matter; or
(g) could prejudice the proper enforcement of the law (including through corruption investigations); or
(h) would involve disclosing information whose disclosure is prohibited (absolutely or subject to qualifications) by or under another law of the Commonwealth; or
(i) would involve unreasonably disclosing a person’s personal affairs; or
(j) would involve unreasonably disclosing confidential commercial information.
staff member of the Commission means:
(a) the National Integrity Commissioner; or
(b) the Law Enforcement Integrity Commissioner; or
(c) the Whistleblower Protection Commissioner; or
(d) any Assistant Commissioners; or
(e) any Assistant Law Enforcement Integrity Commissioners; or
(f) the CEO; or
(g) the staff referred to in section 227; or
(h) consultants engaged under section 228.
strip search has the same meaning as in Part IAA of the Crimes Act 1914.
taxation secrecy provision means a secrecy provision that is a provision of a taxation law within the meaning of the Taxation Administration Act 1953.
thing relevant to an indictable offence has the same meaning as in the Crimes Act 1914.
Whistleblower Protection Commissioner means the Whistleblower Protection Commissioner appointed under section 197.
whistleblower protection commissioner functions has the meaning given by section 14.
whistleblower protection issue means:
(a) an act or omission constituting reprisal or victimisation or which causes detriment to any person, as a result of that person or any other person making a disclosure of wrongdoing; or
(b) a failure of by any person or body to fulfil whistleblower protection responsibilities in respect of a disclosure of wrongdoing, in circumstances where the failure has led, will lead or is likely to lead to detriment or harm to any person;
and includes an allegation, reasonable suspicion, or information relating to such an act, omission or failure.
whistleblower protection responsibilities means, in relation to a person who made, may have made or may make a disclosure of wrongdoing, or to any related person, a duty under any law or applicable code of conduct or policy to:
(a) support, protect, or prevent detriment from being caused to, the person; or
(b) deal with a disclosure of wrongdoing in any particular way prescribed by law for the purpose of protecting the rights, interests and welfare of the person; or
(c) not cause detriment, by act or omission, to the person; or
(d) not victimise or engage in reprisal against the person.
(2) A reference in this Act to a person referring an allegation includes a reference to the person making the allegation.
(3) A reference in this Act to a person referring information includes a reference to the person giving information.
9 Meaning of corrupt conduct
(1) Subject to subsection (4), 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; or
(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions; or
(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; or
(d) any conduct of a public official that involves, or that is engaged in for the purpose of, the public official abusing his or her office as a public official; or
(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) Without limiting subsection (1), and subject to subsection (4), conduct that involves any of the following is capable of being corrupt conduct:
(a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition); or
(b) bribery; or
(c) blackmail; or
(d) obtaining or offering secret commissions; or
(e) theft; or
(f) perverting the course of justice; or
(g) embezzlement; or
(h) election bribery; or
(i) breaches of lobbying codes of conduct or electoral funding laws; or
(j) election fraud; or
(k) tax evasion; or
(l) revenue evasion; or
(m) illegal drug dealings; or
(n) illegal gambling; or
(o) obtaining financial benefit by vice engaged in by others; or
(p) bankruptcy and company violations; or
(q) collusive tendering; or
(r) impropriety in government procurement and tender processes
(s) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources; or
(t) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage; or
(u) defrauding the public revenue; or
(v) fraudulently obtaining or retaining employment or appointment as a public official.
(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.
Note: Subsection 12(3) provides that the national integrity commissioner functions do not include the investigation of corruption issues that arose more than 10 years before the day section 12 commences.
(4) Despite subsections (1) to (3), conduct does not amount to corrupt conduct unless it could constitute or involve:
(a) a criminal offence or conduct giving rise to a civil liability; 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.
(5) In this section:
impartial means conduct of a person that causes, or could cause, any public official or group or body of public officials to place the private or personal interests of any person (including their own) over the public good, in the exercise of any of their official functions; including conduct of which the public official or officials may have no knowledge.
partial means conduct of a public official that involves the placing by the public official of the private or personal interests of any person (including their own) over the public good, in the exercise of any of their official functions.
10 Meaning of corruption issue
(1) For the purposes of this Act, a corruption issue is an issue whether a person:
(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 2—The Australian National Integrity Commission
Division 1—Establishment
11 Establishment
(1) The Australian National Integrity Commission is established by this section.
(2) The Commission consists of:
(a) the National Integrity Commissioner; and
(b) the Law Enforcement Integrity Commissioner; and
(c) the Whistleblower Protection Commissioner; and
(d) any Assistant Commissioners; and
(e) any Assistant Law Enforcement Integrity Commissioners.
(3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the Commission is a listed entity; and
(b) the CEO is the accountable authority of the Commission; and
(c) the following persons are officials of the Commission:
(i) the National Integrity Commissioner;
(ii) the Commissioners;
(iii) any Assistant Commissioners;
(iv) any Assistant Law Enforcement Integrity Commissioners;
(v) the CEO;
(vi) the staff referred to in section 227;
(vii) consultants engaged under section 228; and
(d) the purposes of the Commission include:
(i) the functions of the Commissioner conferred by this Act; and
(ii) the national integrity commissioner functions; and
(iii) the law enforcement integrity commissioner functions; and
(iv) the whistleblower protection commissioner functions; and
(v) the functions of the CEO referred to in section 216.
Division 2—Functions and powers of the National Integrity Commissioner and Commissioners
12 Definition of national integrity commissioner functions
(1) The national integrity commissioner functions are as follows:
(a) to advise and assist any public official, Commonwealth agency or other person on changes in laws, practices or procedures compatible with the effective exercise of their functions which the National Integrity Commissioner thinks necessary to promote integrity and reduce the likelihood of the occurrence of corrupt conduct;
(b) to educate and disseminate information to public officials, Commonwealth agencies and the community on strategies to combat corrupt conduct;
(c) to lead and support Commonwealth and national strategies for corruption prevention, national and international coordination of anti‑corruption efforts, and development and implementation of a National Integrity and Anti‑Corruption Plan;
(d) on the National Integrity Commissioner’s own initiative, or at the request of the 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) the integrity of public officials; or
(ii) corruption generally in Commonwealth agencies; or
(iii) corruption generally in or affecting Australia;
whether those issues arose before or after the commencement of this section;
(e) 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 section;
(f) to refer corruption issues, in appropriate circumstances, to appropriate government agencies for investigation;
(g) to manage, oversee or review, in appropriate circumstances, the investigation of corruption issues by Commonwealth agencies;
(h) to communicate to appropriate authorities and to the public the results of investigations and inquiries, including recommendations for action that should be or have been taken, or are being taken, in relation to those results;
(i) with the consent of the Minister, to enter into an arrangement to perform the functions of a Territory integrity commissioner under a scheme established in accordance with the conditions of licences or authorities granted under an Act of a Territory;
(j) to support the Whistleblower Protection Commissioner in the discharge of their functions;
(k) to chair meetings of the Commission and of committees established under Part 3 of this Act;
(l) any other function conferred on the National Integrity Commissioner by this Act or another law of the Commonwealth;
(m) to do anything incidental or conducive to the performance of the above functions.
(2) An arrangement referred to in paragraph (1)(i) 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.
(3) Despite anything else in this Act or the regulations, the national integrity commissioner functions do not include the investigation of corruption issues that arose more than 10 years before the day this section commences.
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;
(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 whistleblower protection commissioner functions
(1) The whistleblower protection commissioner functions are as follows:
(a) to provide advice, assistance, guidance and support to any public official, Commonwealth agency or other person on rights, obligations and processes relating to the making of disclosures of wrongdoing as defined by this Act;
(b) to receive disclosures of wrongdoing from any person;
(c) to safeguard the identity and confidentiality of persons who make disclosures of wrongdoing, to the maximum extent possible by law and appropriate to the circumstances;
(d) to assess and, where appropriate, refer disclosures of wrongdoing to appropriate Commonwealth agencies, other government agencies, or other bodies, with functions and powers to deal with those disclosures;
(e) to monitor and, where appropriate, provide advice or assistance to agencies or bodies to whom disclosures of wrongdoing have been referred, in respect of whistleblower protection issues;
(f) to manage, oversee or review, in appropriate circumstances, the manner in which Commonwealth agencies investigate or deal with disclosures of wrongdoing, in respect of whistleblower protection issues;
(g) to ensure appropriate support and protection is provided to persons who make disclosures of wrongdoing;
(h) to advise and assist any public official, Commonwealth agency or other person on changes in laws, practices or procedures compatible with the effective exercise of their functions which the Whistleblower Protection Commissioner thinks necessary to promote the appropriate support and protection for persons who make disclosures of wrongdoing;
(i) on the Whistleblower Protection Commissioner’s own initiative, or at the request of the 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 whistleblower protection, whether those issues arose before or after the commencement of this section;
(j) to investigate and conduct public inquiries into issues of reprisal, detrimental action, or failures to prevent detrimental action, arising or resulting from disclosures of wrongdoing;
(k) to report on the results of those investigations and inquiries, whether the issues of reprisal, detrimental action, or failures to prevent detrimental action arose before or after the commencement of this section;
(l) to manage, oversee or review, in appropriate circumstances, the investigation by Commonwealth agencies of issues of reprisal, detrimental action, or failures to prevent detrimental action, arising or resulting from disclosures of wrongdoing;
(m) to communicate to appropriate authorities and to the public the results of investigations, including reports or recommendations on actions that should be or have been taken, or are being taken, in relation to whistleblower protection—including criminal prosecution, disciplinary action, civil penalty enforcement, or the seeking or provisions of remedies or rewards in favour of persons who make disclosures of wrongdoing;
(n) to provide legal advice, representation or other practical support, as appropriate, to persons who make disclosures of wrongdoing and who are, or may become, a party to proceedings in a court or to a matter before an industrial, civil or administrative body, under any law, if the Whistleblower Protection Commissioner considers that representing the person will promote compliance with whistleblower protection responsibilities;
(o) to commence proceedings in a court, or to make applications to an industrial, civil or administrative body, to enforce this Act or any Commonwealth law containing whistleblower protection responsibilities;
(p) to support the National Integrity Commissioner, the Law Enforcement Integrity Commissioner, other Commonwealth agencies and other government agencies in the discharge of their functions;
(q) such other functions as are delegated by the National Integrity Commissioner under this Act or another Act;
(r) any other function conferred on the Whistleblower Protection Commissioner by this Act or another law of the Commonwealth;
(s) to do anything incidental or conducive to the performance of the above functions.
(2) The Whistleblower Protection Commissioner must consult with the National Integrity Commissioner in exercising any function relating to the functions of the National Integrity Commissioner.
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.
(3) In performing functions or exercising powers conferred on the National Integrity Commissioner, the National Integrity Commissioner must:
(a) as far as practicable, direct attention to serious corrupt conduct and systemic corrupt conduct; and
(b) take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct.
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.
Note: The Law Enforcement Integrity Commissioner is subject to direction by the National Integrity Commissioner in relation to the performance of certain functions and the exercise of certain powers (see section 184 of the Law Enforcement Integrity Commissioner Act 2006).
17 Functions and powers of the Whistleblower Protection Commissioner
(1) The Whistleblower Protection Commissioner has the whistleblower protection commissioner functions.
(2) The Whistleblower Protection Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of the whistleblower protection commissioner functions conferred by this section.
Part 3—Corruption prevention, research and coordination
Division 1—Promoting integrity in public administration and Australia
18 Role of the National Integrity Commissioner
(1) The National Integrity Commissioner has the following duties for the purpose of promoting integrity and preventing corruption in Australia:
(a) to develop and implement a strategy for how the Commission can best contribute to the promotion of integrity and prevention of corruption;
(b) to develop and publish rules, guidance and standards for Commonwealth agency integrity and anti‑corruption plans under Division 2; and to review, monitor and support such plans;
(c) to lead and assist in improvement of the capacity of the public sector to strengthen its integrity systems and prevent corrupt conduct, including through corruption prevention inquiries under Division 3;
(d) to lead and facilitate training, education of, and advice to, the public sector and the community about consequences and prevention of corruption, including under Division 4;
(e) to undertake research into the incidence of corruption, its causes and antecedents, and methods of prevention, as provided for in Division 5;
(f) to lead and support cooperation and coordination among Commonwealth agencies responsible for promoting integrity and preventing or dealing with corruption or related issues, in the public sector, as provided for in Division 6; and
(g) to lead and support cooperation and coordination among government agencies, including State, Territory and international agencies, and other stakeholders, in strategies for combatting corruption in Australia, including the development and implementation of the National Integrity and Anti‑Corruption Plan under Division 7.
19 Role of the Commission
(1) In determining how to fulfil the duties under this Part, and in fulfilling the duties, the National Integrity Commissioner will consult with the Whistleblower Protection Commissioner and the Law Enforcement Integrity Commissioner.
(2) The National Integrity Commissioner may enter into an agreement with the head of a Commonwealth agency for the purpose of assisting the agency with fulfilment of any duty or obligation under this Part.
(3) The CEO must, by writing, designate positions in the Commission as positions assisting the National Integrity Commissioner with the fulfilment of duties under this Part.
Note: For creation of positions, see section 77 of the Public Service Act 1999.
(4) A person in a position designated under subsection (3) may be located in any Commonwealth agency with whom the CEO enters into an agreement under subsection (3).
Division 2—Commonwealth integrity and anti‑corruption plans
20 Preparation of integrity and anti‑corruption plans
(1) The head of each Commonwealth agency is to prepare, every 2 years, a plan to protect and enhance integrity in the performance of the agency’s functions (including the prevention of corruption in its program delivery, use of financial assets and information, decision‑making, and the conduct of its staff) covering at least the next 4‑year period.
Note: The first integrity and anti‑corruption plan is to be prepared within 2 years of the commencement of this Act.
(2) Each agency’s integrity and anti‑corruption plan must be consistent with any relevant rule, guidance or standard made under this Act.
(3) Nothing in this Act prevents a Commonwealth agency that is a Commonwealth entity from combining its integrity and anti‑corruption plan with a fraud control plan, or corporate plan, for the entity under the Public Governance, Performance and Accountability Act 2013.
(4) However, despite subsection (3), an integrity and anti‑corruption plan must not be wholly contained within an agency’s fraud control plan and must deal with topics of integrity and anti‑corruption beyond simply fraud.
(5) An agency head may elect to not publish the agency’s integrity and anti‑corruption plan, or may choose to redact it for publication, but only in circumstances where publication of some or all of the plan would be counter to the interests of preventing or dealing with corruption in or by the agency.
21 Audit Committee to monitor plans
If a Commonwealth agency is a Commonwealth entity, the audit committee for the agency must review the integrity and anti‑corruption plan, monitor its implementation and assess its effectiveness, having regard to the level of corruption risk applicable to the agency and its programs.
Note 1: See section 45 of the Public Governance, Performance and Accountability Act 2013 (which deals with audit committees for Commonwealth entities).
Note 2: The responsibility for preparing and implementing the entity’s plan remains with the accountable authority for the entity.
22 National Integrity Commissioner to receive plans on request
(1) A copy of a Commonwealth agency’s integrity and anti‑corruption plan, together with (for a Commonwealth entity) any audit committee comments or reports relating to its preparation or monitoring, is to be provided by the head of the agency on request by the National Integrity Commissioner.
(2) The head of a Commonwealth agency, including at the recommendation of an audit committee, may request the National Integrity Commissioner to review the agency’s integrity and anti‑corruption plan or advise on its preparation.
(3) The National Integrity Commissioner may provide comments to the head of the Commonwealth agency, designed to strengthen the agency’s integrity and anti‑corruption plan.
(4) Despite any other provision of this Act, the National Integrity Commissioner may publish a Commonwealth agency’s integrity and anti‑corruption plan, in part or whole, together with any comments, if satisfied it is in the public interest to do so.
23 Consideration of adequacy of plans
(1) This section applies to any report of an investigation or public inquiry under section 56 or section 70, or any special report under section 234, which identifies that a corruption issue arose in respect of any particular Commonwealth agency or agencies.
(2) In preparing the report, the National Integrity Commissioner must consider, address and, where relevant, report upon:
(a) whether the agency had in place an integrity and anti‑corruption plan;
(b) the adequacy of the integrity and anti‑corruption plan;
(c) recommendations for the improvement of the agency’s integrity and anti‑corruption plan, or the integrity and anti‑corruption plans of other agencies or in general; and
(d) whether there were any failures to implement the integrity and anti‑corruption plan, or to prevent corrupt conduct, and, if so, the nature of and reasons for those failures.
Division 3—Corruption prevention inquiries
24 National Integrity Commissioner may conduct inquiries
(1) The National Integrity Commissioner may conduct a public inquiry for the purposes of identifying changes in laws, practices or procedures which the National Integrity Commissioner thinks necessary to promote integrity and reduce the likelihood of the occurrence of corrupt conduct.
(2) An inquiry under this Division may be undertaken on the National Integrity Commissioner’s own initiative, or at the request of the Minister or either House of the Parliament.
25 Scope and powers of inquiries
(1) An inquiry under this Division may concern laws, practices or procedures relating to any of the following:
(a) the integrity of public officials;
(b) corruption or prevention of corruption generally in Commonwealth agencies;
(c) corruption generally, or the prevention of corruption, in or affecting Australia.
(2) An inquiry under this Division may concern such issues as the National Integrity Commissioner deems relevant for the purposes of subsection (1), whether those issues arose before or after the commencement of this section.
(3) An inquiry under this Division may review and make general recommendations about practices, procedures and standards in relation to integrity, propriety, ethics, and the prevention of corruption, in any of the following:
(a) Commonwealth agencies;
(b) government generally;
(c) other institutions or bodies in Australia;
(d) the community at large.
(4) An inquiry under this Division is to be conducted as a public inquiry under Division 3 of Part 5 of this Act.
26 Reports of inquiries
(1) A report of an inquiry under this Division is to be prepared in accordance with Division 4 of Part 5 of this Act.
(2) A report may include such recommendations, to any person, as the National Integrity Commissioner sees fit.
(3) Without limiting subsection (2), a report may include recommendations to the Parliament about the need for or the desirability of legislative or administrative action on any issues in relation to:
(a) the integrity of public officials; or
(b) corruption generally in Commonwealth agencies; or
(c) corruption generally in or affecting Australia;
whether those issues arose before or after the commencement of this section;
Division 4—Education, training and advice
27 Agency heads to provide training
The head of each Commonwealth agency is to ensure that officers of the agency are given appropriate education and training relating to ethical conduct, corruption risk and the prevention of corrupt conduct, including any obligations arising under this Act.
28 Role of National Integrity Commissioner
(1) The National Integrity Commissioner will develop and implement a strategy for how the Commission can best lead, facilitate and support the training and education of, and provision of advice to, the public sector and the community about the consequences and prevention of corruption.
(2) The National Integrity Commissioner will assist the heads of Commonwealth agencies in ensuring that officers are given appropriate education and training under section 27.
(3) The National Integrity Commissioner may enter into contracts, agreements and partnerships with other entities to support the Commission’s training, education and advice functions.
(4) In developing and implementing the strategy under subsection (1), the National Integrity Commissioner will consult with:
(a) the Australian Public Service Commission;
(b) the Merit Protection Commissioner;
(c) the Commonwealth Ombudsman; and
(d) such other agencies or bodies as the National Integrity Commissioner sees fit.
Division 5—Research and intelligence
29 Research functions
(1) The National Integrity Commissioner will develop and implement a strategy for research to support the performance of the Commission’s functions.
(2) The research strategy may include research into any of the following:
(a) the promotion of integrity and ethical conduct;
(b) individual and organisational behaviour related to integrity and ethical conduct;
(c) the incidence and prevention of corruption;
(d) detection and investigatory processes relating to corruption;
(e) factors giving rise, and factors influencing responses, to corruption issues among Commonwealth agencies;
(f) continuous improvement in responses to corruption;
(g) any other matter relating to the promotion of integrity or the prevention and eradication of corruption.
30 Research strategy—consultation and implementation
(1) In developing and implementing the research strategy under section 29, the National Integrity Commissioner will consult with:
(a) the Australian Institute of Criminology;
(b) the Australian Crime Commission;
(c) such other agencies or bodies as the National Integrity Commissioner sees fit.
(2) The Minister may make suggestions to the National Integrity Commissioner regarding issues suitable for inclusion in the Commission’s research strategy.
(3) The National Integrity Commissioner may enter into contracts, agreements and partnerships with other entities to support the Commission’s research functions.
31 Relationship between research and operations
In developing and implementing the research strategy under section 29, the National Integrity Commissioner will give priority to research which:
(a) assists the Commission in identifying and dealing with specific corruption issues among Commonwealth agencies, including areas of corruption risk to be addressed by the Commission; and
(b) applies, includes and makes use of the Commission’s experience in dealing with specific corruption issues among Commonwealth agencies, including information (including records and statistics) arising from enquiries, referrals or investigations relating to corruption issues.
Division 6—Commonwealth cooperation and coordination
32 Principles of operation of National Integrity Commission
The National Integrity Commissioner, Whistleblower Protection Commissioner and Law Enforcement Integrity Commissioner will exercise their functions and powers in such a way as to:
(a) work cooperatively with other Commonwealth agencies responsible for integrity, ethics and the prevention of or responses to corruption, including parliamentary officers and agencies; and
(b) improve the capacity of Commonwealth agencies to prevent and respond to corruption issues; and
(c) not duplicate or interfere with work that it considers has been undertaken or is being undertaken appropriately by a Commonwealth agency.
33 Cooperation and coordination with other Commonwealth agencies
(1) This section applies to any Commonwealth agency with responsibility for integrity, ethics or the prevention of, or responses to, corruption in Commonwealth public administration, including the agencies listed in subsection 34(2).
(2) The National Integrity Commissioner will facilitate cooperation and coordination among agencies to whom this section applies, and between any and all of those agencies and the Commission.
(3) In facilitating cooperation and coordination under subsection (2), it will be the objective of the National Integrity Commissioner to ensure a comprehensive, efficient, nationally coordinated approach to the prevention, detection, reduction and remediation of corruption in Commonwealth public administration.
(4) Despite any other Act, any agency to which this section applies may:
(a) exchange any information relating to the promotion of integrity, or to preventing or responding to corruption, with any other agency to whom this section applies; and
(b) engage in joint activities, projects or operations relating to the promotion of integrity, or to preventing or responding to corruption, with any other agency to which this section applies.
34 Commonwealth Integrity Coordination Committee
(1) The Commonwealth Integrity Coordination Committee is established by this section.
(2) The Commonwealth Integrity Coordination Committee consists of the persons who, from time to time, hold the following offices:
(a) Commonwealth Ombudsman;
(b) Australian Information Commissioner;
(c) Auditor‑General;
(d) Australian Public Service Commissioner;
(e) Merit Protection Commissioner;
(f) Australian Electoral Commissioner;
(g) Inspector‑General of Taxation;
(h) Inspector‑General of Intelligence and Security;
(i) Australian Federal Police Commissioner;
(j) CEO of the Australian Crime Commission;
(k) CEO of the Independent Parliamentary Expenses Authority;
(l) Parliamentary Standards Commissioner;
(m) Secretary of the Attorney‑General’s Department;
(n) Law Enforcement Integrity Commissioner;
(o) Whistleblower Protection Commissioner;
(p) National Integrity Commissioner;
(q) any other office that, in the opinion of the National Integrity Commissioner, has significant responsibility for integrity, ethics or the prevention of, or responses to, corruption in Commonwealth public administration.
(3) The Committee will be chaired by:
(a) a member of the Committee as agreed by the members of the Committee from time to time; or
(b) if, no other member is agreed under paragraph (a), the National Integrity Commissioner.
(3) The Committee will meet no less than twice in any calendar year.
35 Functions of the Commonwealth Integrity Coordination Committee
The Commonwealth Integrity Coordination Committee has the following functions:
(a) to foster cooperation and coordination between the members of the Committee and their respective agencies;
(b) to facilitate the exchange of information between agencies in performance of their functions;
(c) to develop common and consistent definitions, language and promotional and educational materials relating to integrity and anti‑corruption in Commonwealth administration;
(d) to provide a forum for consultation on the development of Rules, standards or guidance to be developed by the National Integrity Commissioner, Whistleblower Protection Commissioner or any other member agency;
(e) to provide a forum for consultation on the research, education, training or advice strategies of the National Integrity Commissioner or any other member agency;
(f) to identify priority areas of corruption risk for the Commonwealth, or priority areas or opportunities for the promotion of integrity and prevention of corruption;
(g) to identify and support joint activities, projects, initiatives or operations relating to integrity and anti‑corruption in Commonwealth administration;
(h) to develop common strategies for engaging and communicating with Commonwealth agencies and the wider community on issues relating to integrity and anti‑corruption in Commonwealth administration;
(i) to consult and provide advice to Government or the Parliament on issues of law, practice or procedure relating to integrity and anti‑corruption in Commonwealth administration;
(j) to do anything incidental to or conducive to the performance of the above functions.
Division 7—National cooperation and coordination
36 Role of the National Integrity Commissioner
(1) It is the duty of the National Integrity Commissioner to:
(a) promote and assist in a comprehensive, efficient, nationally coordinated approach to the prevention, detection, reduction and remediation of corruption in:
(i) Australia generally; and
(ii) Australia’s relations with other countries; and
(b) assist in the cooperative implementation of Australia’s international anti‑corruption responsibilities, including under the United Nations Convention Against Corruption (2005).
(2) In fulfilling their duty under subsection (1), the National Integrity Commissioner may undertake research or initiatives about, or have regard, express opinions, provide advice or make recommendations relating to:
(a) corruption and its prevention in Commonwealth public administration; or
(b) corruption and its prevention in government generally in Australia; or
(c) issues relating to corruption and its prevention in business or the wider community in Australia; or
(d) issues among other countries relating to corruption and prevention, that affect, or may affect, Australia.
(3) In fulfilling their duty under subsection (1), the National Integrity Commissioner will give priority to:
(a) their role in preparation of the National Integrity and Anti‑Corruption Plan under section 37; and
(b) their role in assisting the implementation of the National Integrity and Anti‑Corruption Plan.
37 National Integrity and Anti‑corruption Plan
(1) The Minister is to publish a National Integrity and Anti‑corruption Plan no less frequently than every 4 years, covering at least the next 4‑year period.
Note: The first National Integrity and Anti‑corruption Plan is to be published within 2 years of the commencement of this Part.
(2) The National Integrity and Anti‑corruption Plan must include the following:
(a) identification of key corruption threats and related risks to integrity affecting, or likely to affect, Commonwealth public administration;
Note: Threats and risk factors may include, but is not limited to: organised crime; influence peddling; political lobbying; internal fraud, external collusion, solicitation and bribery; maladministration, malfeasance and misconduct.
(b) identification of key corruption threats and related risks to integrity affecting, or likely to affect, Australia generally;
(c) key mechanisms in place and any additional measures planned to mitigate corruption threats and risks to integrity;
(d) the role of business and the wider community in promoting integrity and combatting corruption in Australia;
(e) the role of the States and Territories in promoting integrity and combatting corruption in Australia;
(f) priority areas for Commonwealth reform or action to promote integrity and combat corruption;
(g) key actions to be undertaken or recommended to be undertaken to promote integrity and combat corruption, including a timetable and parties responsible for those actions;
(h) any other items specified in the Rules.
(3) The National Integrity and Anti‑corruption Plan must include an assessment and recommendations regarding the adequacy of strategies to counter risks to integrity in high‑risk areas of Commonwealth public administration, including the following:
(a) major procurement and capital works;
(b) the allocation of grants and subsidies;
(c) enforcement of the criminal law;
(d) regulatory enforcement of industry and commerce;
(e) border crime and transboundary corruption;
(f) elections;
(g) any other item specified in the Rules;
(h) any other area considered relevant for inclusion by the Minister.
(4) The National Integrity and Anti‑corruption Plan must also consider appropriate measures to ensure continual improvement in the facilitation and protection of whistleblowers.
38 Preparation of plan
(1) In preparing the National Integrity and Anti‑Corruption Plan, the Minister is to consult and have regard to the views of the following:
(a) the National Integrity Commissioner;
(b) the members of the Commonwealth Integrity Coordination Committee established by section 34;
(c) the members of the National Integrity and Anti‑Corruption Advisory Committee established by section 40;
(d) such other persons as the Minister sees fit.
(2) In preparing the plan, the Minister will request the National Integrity Commissioner to:
(a) comment on a first draft of the plan;
(b) contribute research to the development of the plan;
(c) comment on the final draft of the plan prior to its adoption by the Minister.
(1) The Minister must not publish a plan unless it has been prepared following a period of public consultation.
39 Examination of plan
The Parliamentary Joint Committee is to inquire into each National Integrity and Anti‑Corruption Plan, and report to both houses on any matters it sees fit within 18 months of publication of the National Integrity and Anti‑Corruption Plan by the Minister.
40 National Integrity and Anti‑Corruption Advisory Committee
(1) The National Integrity and Anti‑Corruption Advisory Committee is established by this section.
(2) The National Integrity and Anti‑Corruption Advisory Committee consists of the following:
(a) the persons who, from time to time, hold the following offices:
(i) Secretary of the Department administered by the Attorney‑General;
(ii) National Integrity Commissioner;
(iii) Australian Federal Police Commissioner;
(iv) CEO of the Australian Crime Commission;
(v) Chairperson of the Australian Securities and Investments Commission;
(vi) Chairperson of the Australian Competition and Consumer Commission.
(b) at least 3 representatives of State or Territory agencies with significant responsibility for integrity, ethics or the prevention of, or responses to, corruption;
(c) at least 2 representatives of civil society organisations concerned with integrity, ethics or the prevention of, or responses to, corruption;
(d) at least 2 representatives of business organisations concerned with integrity, ethics or the prevention of, or responses to, corruption;
(e) at least 2 persons with independent specialist expertise in integrity, ethics or the prevention of, or responses to, corruption;
(f) such other persons that, in the opinion of the Minister, can contribute to the development of the National Integrity and Anti‑Corruption Plan.
(2) The Committee is to be chaired by the Secretary of the Attorney‑General’s Department.
(3) The Committee will meet no less than twice in any calendar year.
41 Functions of the advisory committee
The National Integrity and Anti‑corruption Advisory Committee has the following functions:
(a) to foster cooperation and coordination between the members of the Committee and their respective agencies and organisations, and other organisations;
(b) to facilitate the exchange of information between agencies in performance of their functions;
(c) to provide a forum for consultation on the research, education, training or advice strategies of the National Integrity Commissioner or any other member agency;
(d) to identify priority areas of corruption risk for Australia, or priority areas or opportunities for the promotion of integrity and prevention of corruption;
(e) to identify and support joint activities, projects, initiatives or operations relating to integrity and anti‑corruption in Australia;
(f) to provide a forum for consultation on the development of the National Integrity and Anti‑Corruption Plan;
(g) to do anything incidental to or conducive to the performance of the above functions.
Part 4—Dealing with corruption issues
Division 1—Referring corruption issues to National Integrity Commissioner
42 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.
43 Referral under section 42 by person in custody
Application of section
(1) This section applies if a person who is detained in custody (the prisoner) wishes to refer an allegation or information to the National Integrity Commissioner under section 42.
(2) A reference in this section to a custodian is a reference to:
(a) the person in whose custody the prisoner is detained; or
(b) any other person performing duties in connection with the prisoner’s detention.
Facilities to be provided for communicating with Integrity Commissioner
(3) The prisoner is entitled to be provided with facilities for:
(a) preparing a written record of the allegation or information; and
(b) for enclosing that written record in a sealed envelope;
if the prisoner requests a custodian to have those facilities provided.
(4) The prisoner is entitled to have sent to the National Integrity Commissioner, without undue delay, a sealed envelope that is:
(a) delivered by the prisoner to a custodian; and
(b) addressed to the National Integrity Commissioner;
if the prisoner requests a custodian to have the envelope sent to the National Integrity Commissioner.
(5) The prisoner is entitled to have delivered to the prisoner, without undue delay, any sealed envelope that:
(a) is addressed to the prisoner; and
(b) is sent by the National Integrity Commissioner; and
(c) comes into the possession, or under the control, of a custodian.
Dealing with communications between prisoner and Integrity Commissioner
(6) If:
(a) the prisoner delivers to a custodian a sealed envelope addressed to the National Integrity Commissioner for sending to the National Integrity Commissioner; or
(b) a sealed envelope addressed to the prisoner and sent by the National Integrity Commissioner comes into the possession, or under the control, of a custodian;
neither that custodian, nor any other custodian, is entitled to open the envelope or to inspect any document enclosed in the envelope.
Arrangements with State and Territory prison authorities
(7) For the purposes of this section, the National Integrity Commissioner may make arrangements with the appropriate authority of a State or a Territory for the identification and delivery of sealed envelopes sent by the National Integrity Commissioner to persons detained in custody in that State or Territory.
44 Public officials must refer corruption issues
(1) As soon as practicable after a public official becomes aware of an allegation, or information, that raises a corruption issue, the public official must:
(a) refer the allegation or information to the National Integrity Commissioner under section 42; or
(b) if the public official is an employee of a Commonwealth agency other than the head of the agency—notify the head of the agency of the allegation or information.
Note: The head of a Commonwealth agency is a public official.
(2) Subsection (1) does not apply if the public official:
(a) has already taken action referred to in subsection (1) in relation to the allegation or information; or
(b) has reasonable grounds to believe that the National Integrity Commissioner is already aware of the allegation or information.
(3) Action taken under subsection (1) by the head of a Commonwealth agency must be taken in accordance with any direction, guidance or agreement under section 45 that applies to the agency.
45 National Integrity Commissioner may enter into agreements etc. with head of Commonwealth agency
(1) The National Integrity Commissioner may issue directions or guidance to, or enter into an agreement with, the head of a Commonwealth agency in relation to either or both of the following matters:
(a) the level of detail required to refer an allegation or information to the National Integrity Commissioner;
(b) the way in which information or documents in relation to an allegation or information may be given to the National Integrity Commissioner (whether for the purpose of referring an allegation or information to the National Integrity Commissioner or otherwise).
(2) The National Integrity Commissioner may revoke the direction, guidance or agreement by written notice given to the head of the agency. The revocation takes effect on a day specified in the notice, which must be at least 14 days after the day it is given.
(3) Without limiting subsection (1), the direction, guidance or agreement may set out how it may be varied and other ways how it may be revoked.
Division 2—How National Integrity Commissioner deals with corruption issues
Subdivision A—General
46 How National Integrity Commissioner may deal with corruption issues
(1) The National Integrity Commissioner may deal with a corruption issue in any of the following ways:
(a) by investigating the corruption issue;
(b) if the corruption issue relates to a Commonwealth agency—by referring the corruption issue to the agency for investigation and:
(i) managing the investigation; or
(ii) overseeing the investigation; or
(iii) neither managing nor overseeing the investigation;
(c) if the corruption issue relates to a Commonwealth agency that is not the AFP—by referring the corruption issue to the AFP for investigation and:
(i) managing the investigation; or
(ii) overseeing the investigation; or
(iii) neither managing nor overseeing the investigation;
(d) by managing an investigation of the corruption issue that is being conducted by a Commonwealth agency;
(e) by overseeing an investigation of the corruption issue that is being conducted by a Commonwealth agency.
(2) The National Integrity Commissioner may investigate the corruption issue under paragraph (1)(a) either alone or jointly with another government agency with appropriate functions or powers for the purpose.
(3) Subsections (1) and (2) have effect subject to section 47.
47 Alleged contraventions of the National Integrity (Parliamentary Standards) Act 2019
(1) This section applies if:
(a) a corruption issue involves an alleged contravention of the National Integrity (Parliamentary Standards) Act 2019; and
(b) the corruption issue was not referred to the National Integrity Commissioner by the Parliamentary Standards Commissioner.
(2) The National Integrity Commissioner must refer the corruption issue to the Parliamentary Standards Commissioner in accordance with paragraph 46(1)(b)(iii), unless the National Integrity Commissioner considers that exceptional circumstances apply in relation to the corruption issue.
(3) Without limiting subsection (2), the National Integrity Commissioner may consider that exceptional circumstances apply in relation to the corruption issue if the National Integrity Commissioner is satisfied that:
(a) referring the corruption issue to the Parliamentary Standards Commissioner is likely to prejudice:
(i) the investigation of the corruption issue or another corruption investigation; or
(ii) protection of the identity or confidentiality of any person who referred or provided information in relation to the corruption issue, or protection of such a person from reprisal or detrimental action; or
(iii) any action taken as a result of an investigation referred to in paragraph (a); or
(b) the corruption issue involves serious corrupt conduct or systemic corrupt conduct.
(4) In deciding whether exceptional circumstances apply in relation to the corruption issue, the National Integrity Commissioner may obtain advice from the Parliamentary Standards Commissioner.
(5) To avoid doubt, the National Integrity Commissioner must have regard to the criteria in section 48:
(a) in deciding whether the corruption issue must be referred to the Parliamentary Standards Commissioner in accordance with this section; and
(b) if the National Integrity Commissioner decides that exceptional circumstances apply in relation to the corruption issue—in deciding to deal with the corruption issue in accordance with another one of the ways referred to in subsection 46(1).
48 Criteria for deciding how to deal with a corruption issue
(1) The National Integrity Commissioner must have regard to the matters set out in subsection (2) in deciding:
(a) how to deal with a corruption issue; or
(b) whether to take no further action in relation to a corruption issue.
(2) The matters to which the National Integrity Commissioner must have regard are the following:
(a) the need to ensure that the corruption issue is fully investigated;
(b) the rights and obligations of any other agency to investigate the corruption issue;
(c) the rights and obligations of any person who refers or provides information in relation to the corruption issue, including any need to protect the person’s identity or confidentiality or to protect the person from reprisal or detrimental action;
(d) if a joint investigation of the corruption issue by the National Integrity Commissioner and another agency is being considered—the extent to which the other agency is able to cooperate in the investigation;
(e) the resources that are available to any other agency to investigate the corruption issue;
(f) the need to ensure a balance between:
(i) the National Integrity Commissioner’s role in dealing with corruption issues (particularly in dealing with significant corruption issues); and
(ii) ensuring that the heads of Commonwealth agencies take responsibility for managing their agencies;
(g) the likely significance of the corruption issue for any agency and for the Commonwealth.
(3) Subsection (2) does not limit the matters to which the National Integrity Commissioner may have regard.
49 Dealing with multiple corruption issues
(1) The National Integrity Commissioner may, in the National Integrity Commissioner’s discretion, deal with a number of corruption issues together (whether or not they are raised by the same allegation or information).
(2) Without limiting subsection (1), if an allegation, or information, raises a number of corruption issues, the National Integrity Commissioner:
(a) may deal with some or all of those corruption issues together; and
(b) may deal with some or all of those corruption issues separately.
(3) Without limiting subsection (1), the National Integrity Commissioner may prepare a single report in relation to a number of corruption issues.
Subdivision B—National Integrity Commissioner dealing with referred corruption issues
50 National Integrity Commissioner must make a decision
(1) If an allegation, or information, that raises a corruption issue is referred to the National Integrity Commissioner under section 42, the National Integrity Commissioner must decide:
(a) to deal with the corruption issue in one of the ways referred to in subsection 46(1); or
(b) to take no further action in relation to the corruption issue.
Requesting information to assist in making the decision
(2) For the purposes of making a decision under subsection (1), the National Integrity Commissioner may request the head of any Commonwealth agency to give the National Integrity Commissioner the information specified in the request.
(3) The head of the Commonwealth agency must comply with the request.
(4) Subsection (3) does not limit the information to which the National Integrity Commissioner may have regard in making a decision under subsection (1).
Direction not to investigate
(5) If the corruption issue relates to a Commonwealth agency and the National Integrity Commissioner decides to deal with the corruption issue in one of the ways referred to in subsection 46(1), the National Integrity Commissioner may direct the head of the agency that the agency is not to investigate the corruption issue.
(6) If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.
Deciding to take no further action
(7) The National Integrity Commissioner may decide under subsection (1) to take no further action in relation to the corruption issue only if the National Integrity Commissioner 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
(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.
(8) If the corruption issue relates to a Commonwealth agency, the National Integrity Commissioner must advise the head of the agency of a decision under subsection (1) to take no further action in relation to the corruption issue. That advice must be given:
(a) in writing; and
(b) as soon as reasonably practicable after the decision is made.
(9) This Act continues to apply to the head of a Commonwealth agency given advice under subsection (8), in relation to the corruption issue unless the National Integrity Commissioner advises otherwise:
(a) in the advice given under subsection (8); or
(b) in a later written advice given to the head of that agency.
51 Advising person who refers corruption issue of decision about how to deal with corruption issue
The National Integrity Commissioner may advise a person (or a representative nominated by the person) of:
(a) the National Integrity Commissioner’s decision under section 50 in relation to a corruption issue raised by the person in a referral under section 46; and
(b) any decision the National Integrity Commissioner makes under section 56 on a reconsideration of how the corruption issue should be dealt with.
52 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 50 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.
Subdivision C—National Integrity Commissioner dealing with corruption issues on own initiative
53 National Integrity Commissioner may deal with corruption issues on own initiative
National Integrity Commissioner may decide to deal with a corruption issue
(1) If the National Integrity Commissioner becomes aware of an allegation, or information, that raises a corruption issue, the National Integrity Commissioner may, on the National Integrity Commissioner’s own initiative, deal with the corruption issue in one of the ways referred to in subsection 46(1).
(2) Subsection (1) does not apply if the National Integrity Commissioner becomes aware of the allegation or information because of action taken under Division 1 of this Part.
Requesting information to assist in making the decision
(3) For the purposes of making a decision under subsection (1), the National Integrity Commissioner may request the head of any Commonwealth agency to give the National Integrity Commissioner the information specified in the request.
(4) The head of the Commonwealth agency must comply with the request.
(5) Subsection (3) does not limit the information to which the National Integrity Commissioner may have regard in making a decision under subsection (1).
Direction not to investigate
(6) If the corruption issue relates to a Commonwealth agency and the National Integrity Commissioner decides to deal with the corruption issue in one of the ways referred to in subsection 46(1), the National Integrity Commissioner may direct the head of the agency that the agency is not to investigate the corruption issue.
(7) If a direction under subsection (6) is given in writing, the direction is not a legislative instrument.
Becoming aware of another corruption issue
(8) 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 deal with that other corruption issue in one of the ways referred to in subsection 46(1).
54 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 the National Integrity Commissioner’s own initiative, to deal with a corruption issue in one of the ways referred to in subsection 46(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 to deal with the corruption issue in that way; and
(b) any decision the National Integrity Commissioner makes under section 56 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).
55 Advising person of decision to deal with corruption issue on own initiative
If:
(a) the National Integrity Commissioner decides, on the National Integrity Commissioner’s own initiative, to deal with a corruption issue in one of the ways referred to in subsection 46(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 deal with the corruption issue in that way; and
(d) any decision the National Integrity Commissioner makes under section 56 on a reconsideration of how the corruption issue should be dealt with.
Subdivision D—Reconsidering how to deal with a corruption issue
56 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 in one of the ways referred to in subsection 46(1)—decide to deal with the corruption issue in accordance with one of the ways referred to in that subsection; or
(b) if the corruption issue is being dealt with in one of the ways referred to in subsection 46(1)—decide to deal with the corruption issue in another of the ways referred to in that subsection, or to take no further action in relation to the corruption issue.
(3) The National Integrity Commissioner may decide under subsection (2) to take no further action in relation to the corruption issue only if the National Integrity Commissioner 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
(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.
Division 3—Information sharing when decision made on how to deal with corruption issue
57 If Commonwealth agency to conduct, or continue conducting, investigation of corruption issue
(1) This section applies if:
(a) the National Integrity Commissioner decides to deal with a corruption issue that relates to a Commonwealth agency by referring the corruption issue to:
(i) the agency; or
(ii) the AFP;
for investigation; or
(b) an allegation, or information, that raises a corruption issue is referred to the National Integrity Commissioner under section 42 by the head of a Commonwealth agency and the Commonwealth agency is investigating the corruption issue.
(2) The National Integrity Commissioner must give the head of the Commonwealth agency investigating the corruption issue information or a document if:
(a) the information or document:
(i) relates to the corruption issue to the extent to which the agency is investigating the issue; and
(ii) is in the possession, or under the control, of the National Integrity Commissioner; and
(b) the head of the agency does not already have the information or document.
Note: Under section 159, the National Integrity Commissioner has a continuing obligation to pass on information that the National Integrity Commissioner becomes aware of and that is relevant to the corruption issue.
(3) The National Integrity Commissioner may give the original or a copy of a document.
58 If Commonwealth agency has already commenced investigating corruption issue
(1) This section applies if:
(a) the National Integrity Commissioner decides to deal with a corruption issue that relates to a Commonwealth agency in one of the ways referred to in subsection 46(1); and
(b) the agency has started or continued investigating the corruption issue before the National Integrity Commissioner makes that decision.
(2) The National Integrity Commissioner may direct the head of the agency investigating the corruption issue to give the National Integrity Commissioner, or the head of another government agency, all information or documents that:
(a) relate to the corruption issue; and
(b) are in the possession, or under the control, of the head of the agency.
(3) The direction must be in writing.
(4) A direction given under this section is not a legislative instrument.
Part 5—Investigations and public inquiries by the National Integrity Commissioner
Division 1—Investigations
59 Application of Division
This Division applies if the National Integrity Commissioner investigates a corruption issue (whether alone or jointly with another person or persons).
60 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.
61 Information sharing for joint investigation
(1) If:
(a) the National Integrity Commissioner is investigating a corruption issue jointly with another government agency; and
(b) information or documents in relation to the investigation are in the possession, or under the control, of the National Integrity Commissioner; and
(c) the head of the agency does not already have the information or documents;
the National Integrity Commissioner may give the head of the agency the information or documents.
(2) The National Integrity Commissioner may give the head of the agency the original or a copy of a document under subsection (1).
62 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 64 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 the head of the agency’s 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 2—Reporting in relation to investigations
Subdivision A—Reporting during investigation
63 National Integrity Commissioner may keep person who referred corruption issue informed of progress of investigation
The National Integrity Commissioner may keep a person (or a representative nominated by the person) informed of the progress of an investigation of a corruption issue if the person raised the corruption issue in a referral under section 42.
Subdivision B—Reporting at the end of investigation
64 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 62 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: The National Integrity Commissioner may publish the report if satisfied that it is in the public interest to do so: see section 239. Under section 233, the report must be tabled in each House of the Parliament if a public hearing has been held in the course of the investigation to which the report relates.
(3) Without limiting paragraph (2)(d), the National Integrity Commissioner may recommend:
(a) taking action in relation to a person, in accordance with relevant procedures, with a view to the person improving the person’s performances; or
(b) the termination of the employment of a person in accordance with the relevant procedures; or
(c) taking action to rectify or mitigate the effects of the conduct of a person; 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;
(e) taking appropriate action with a view to having a person charged with a criminal offence; or
(f) taking appropriate action to initiate disciplinary proceedings against 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 or the inclusion of the information may:
(i) endanger a person’s life or physical safety; or
(ii) prejudice proceedings brought as a result of a corruption investigation or public inquiry, or an investigation of a corruption issue that the National Integrity Commissioner manages or oversees; or
(iii) compromise operational activities, or methodologies, of the Commission; 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 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 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 under subsection (4).
65 National Integrity Commissioner to give report to Minister
The National Integrity Commissioner must give the Minister:
(a) the report prepared under subsection 64(1); and
(b) if a supplementary report is prepared under subsection 64(6) in relation to the investigation—the supplementary report.
Note: Section 233 provides that the Minister must table a copy of the report prepared under subsection 64(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 Minister is not required, however, to table a copy of a supplementary report under subsection 64(6) in each House of the Parliament.
66 Advising person who referred corruption issue of outcome of the investigation
Advice to person who referred issue under section 42
(1) The National Integrity Commissioner may advise a person (or a representative nominated by the person) of the outcome of an investigation of a corruption issue raised by the person in a referral under section 42.
Manner of giving advice
(2) One way of advising the person (or the representative) is to give a copy of all or part of any report prepared under subsection 64(1) in relation to the investigation.
(3) 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.
(4) In deciding whether to exclude information from the advice under paragraph (3)(b), 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.
67 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 64(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.
Division 3—Conducting a public inquiry
68 National Integrity Commissioner may conduct public inquiry
The National Integrity Commissioner may, if the National Integrity Commissioner 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.
69 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 111(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, the National Integrity Commissioner may, if satisfied that it is in the public interest to do so, authorise it to be published on the Commission’s website.
Division 4—Reporting in relation to public inquiries
70 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 233, the report must be tabled in each House of the Parliament.
Sensitive information etc.
(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 or the inclusion of the information may:
(i) endanger a person’s life or physical safety; or
(ii) prejudice proceedings brought as a result of a corruption investigation or public inquiry, or an investigation of a corruption issue that the National Integrity Commissioner manages or oversees; or
(iii) compromise operational activities, or methodologies, of the Commission; 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 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 under subsection (3).
71 Giving report to Minister
The National Integrity Commissioner must give the Minister:
(a) the report prepared under subsection 70(1); and
(b) if a supplementary report is prepared under subsection 70(5)—the supplementary report.
Note: Section 233 provides that the Minister must table a copy of the report prepared under subsection 70(1) in each House of the Parliament. The Minister is not required, however, to table a copy of a supplementary report under subsection 70(5) in each House of the Parliament.
Part 6—National Integrity Commissioner’s powers in conducting investigations and public inquiries
Division 1—Requiring people to give information or produce documents or things
Subdivision A—Requirement by National Integrity Commissioner
72 Notice to give information or to produce document or thing
Giving notice
(1) For the purpose of investigating a corruption issue, the National Integrity Commissioner may, by notice in writing, require a person to do either or both of the following:
(a) give the information specified in the notice;
(b) produce the documents or things specified in the notice;
if the National Integrity Commissioner has reasonable grounds to suspect that the information, documents or things will be relevant to the investigation.
Note: In certain cases, disclosing the existence of a notice, or any information about it, is an offence: see section 76.
(2) The National Integrity Commissioner may require that information specified under paragraph (1)(a) is to be given in writing.
(3) The notice must:
(a) be served on the person; and
(b) be signed by the National Integrity Commissioner; and
(c) specify the period within which, and the manner in which, the person must comply with the notice.
(4) The period specified under paragraph (3)(c) must be at least 14 days after the day the notice is served on the person, unless the National Integrity Commissioner considers that allowing a 14‑day period would significantly prejudice a corruption investigation, in which case a shorter period may be specified.
(5) If a shorter period is specified under paragraph (3)(c), the National Integrity Commissioner must record, in writing:
(a) the name of the corruption investigation that would be prejudiced; and
(b) why a 14‑day period would significantly prejudice the investigation.
(6) The National Integrity Commissioner may serve a notice on a person without holding a hearing.
73 Compliance with notice
Compliance with notice
(1) A person served with a notice under section 72 must comply with the notice:
(a) within the period specified in the notice; or
(b) within such further time as the National Integrity Commissioner allows under subsection (3).
Note: Failure to comply with a notice is an offence: see section 77.
Extension of time
(2) A person served with a notice under section 72 may apply to the National Integrity Commissioner, in writing, for further time to comply with the notice:
(a) before the period expires; or
(b) as soon as possible after the period expires.
(3) The National Integrity Commissioner may allow a person served with a notice further time to comply with the notice whether or not an application has been made.
Acknowledgement
(4) If a person served with a notice has given the information and/or produced the documents or things specified in the notice, the National Integrity Commissioner must give the person a written acknowledgement of that fact.
74 National Integrity Commissioner may retain documents and things
(1) If a document or thing is produced in accordance with a notice under section 72, 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, the National Integrity Commissioner 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 B—Prohibitions against disclosing information about notices
75 Disclosure of notice may be prohibited
Application
(1) This section applies in respect of a notice served on a person under section 72.
Notation prohibiting disclosure of information about notice
(2) The National Integrity Commissioner may include a notation in the notice to the effect that disclosure of information about:
(a) the notice; or
(b) any official matter connected with the notice;
is prohibited except in the circumstances (if any) specified in the notation.
(3) The National Integrity Commissioner must include a notation in the notice 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) a person’s fair trial, if the person has been charged with an offence or such a charge is imminent; or
(c) the investigation to which the notice 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 notice if the National Integrity Commissioner is satisfied that:
(a) failure to do so might prejudice:
(i) a person’s safety or reputation; or
(ii) a person’s fair trial, if the person has been charged with an offence or such a charge is imminent; or
(iii) the investigation to which the notice 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 notice in any other case.
Written statement to accompany notation
(6) If a notation is included in the notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 76 on the person on whom the notice is served.
Cancellation of notation
(7) A notation included in the notice is cancelled by this subsection if:
(a) the National Integrity Commissioner concludes the investigation to which the notice 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 who was served with the notated notice, in writing, of the cancellation.
Relationship of notation with the Privacy Act 1988
(9) If:
(a) a notation has been included in the notice in relation to the disclosure of information about the notice or any official matter connected with the notice; and
(b) the notation has not been cancelled; and
(c) apart from this subsection, a credit reporting body (within the meaning of the Privacy Act 1988) would be required, under subsection 20E(5) of that Act, to make a note about the disclosure of the information;
such a note must not be made until the notation is cancelled.
76 Offences of disclosure
(1) A person commits an offence if:
(a) the person is served with a notice under section 72; and
(b) the notice includes a notation under section 75; and
(c) the person discloses the existence of, or any information about:
(i) the notice; or
(ii) any official matter connected with the notice; and
(d) when the disclosure is made:
(i) the notation has not been cancelled by subsection 75(7); and
(ii) the period of 5 years after the notice is served under section 72 has not ended.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(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 notice; or
(c) to a legal aid officer for the purpose of seeking assistance under section 273 in relation to the notice; 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 notice; or
(e) if the person is a legal practitioner—for the purpose of obtaining the agreement of another person under subsection 78(3) to the legal practitioner answering a question or producing a document or thing.
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 a person about:
(i) a notice under section 72 that includes a notation under section 75; or
(ii) any official matter connected with a notice under section 72 that includes a notation under section 75; 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 notice; or
(ii) any official matter connected with the notice; and
(d) when the disclosure by the person is made:
(i) the notation has not been cancelled by subsection 75(7); and
(ii) the period of 5 years after the notice is served under section 72 has not ended.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(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 notice; or
(ii) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the notice; or
(iii) to a legal aid officer for the purpose of seeking assistance under section 221 in relation to the notice; or
(b) if the person is a legal practitioner—for the purpose of giving legal advice, making representations, or seeking assistance under section 273, in relation to the notice; or
(c) if the person is a legal aid officer—for the purpose of obtaining legal advice or representation in relation to the notice.
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 a person about:
(i) a notice under section 72 that includes a notation under section 75; or
(ii) any official matter connected with a notice under section 72 that includes a notation under section 75; 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 notice; or
(ii) discloses the existence of the notice; or
(iii) discloses any information about the notice 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 75(7); and
(ii) the period of 5 years after the notice is served under section 72 has not ended.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(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 C—Offence and related provisions
77 Failure to comply with notice
(1) A person commits an offence if:
(a) the person is served with a notice under section 72; and
(b) the person fails to comply with the notice:
(i) within the period specified in the notice; or
(ii) if the National Integrity Commissioner has allowed the person further time under subsection 73(3)—within such further time.
Note 1: If a notice requires a document or thing to be produced, a legal practitioner may refuse to produce the document or thing in certain circumstances: see section 78.
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 79.
Penalty: Imprisonment for 2 years.
(2) In proceedings for an offence against subsection (1), it is a defence if it is not reasonably practicable for the person to comply with the notice:
(a) within the period specified in the notice; or
(b) within such further time as allowed by the National Integrity Commissioner under subsection 73(3).
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
78 Legal practitioner not required to disclose privileged communications
(1) A legal practitioner may refuse:
(a) to give information; or
(b) to produce a document or thing;
when served with a notice to do so under section 72 if the information would disclose, or the document contains, a privileged communication made by the legal practitioner (or to the legal practitioner) in his or her capacity as a legal practitioner.
(2) Subsection (1) has effect subject to paragraph 79(4)(c).
(3) Subsection (1) does not apply if the person to whom the communication was made (or by whom the communication was made) agrees to the legal practitioner:
(a) giving the information; or
(b) producing the document or thing.
(4) If the legal practitioner refuses:
(a) to give the information; or
(b) to produce the document or thing;
he or she must, if required by the National Integrity Commissioner, give the National Integrity Commissioner the name and address of the person to whom the communication was made (or by whom the communication was made).
(5) If a legal practitioner gets agreement, as mentioned in subsection (3):
(a) the fact that he or she:
(i) gives information; or
(ii) produces 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; and
(b) the information or document does not cease to be the subject of legal professional privilege merely because it is given, produced or referred to.
79 Self‑incrimination etc.
Self‑incrimination
(1) A person is not excused from:
(a) giving information; or
(b) producing a document or thing;
when served with a notice to do so under section 72 on the ground that doing so would tend to incriminate the person or expose the person to a penalty.
(2) Subsection (3) does not apply to the production of a document that is, or forms part of, a record of an existing or past business.
(3) 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 77; 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
(4) A person is not excused from:
(a) giving information; or
(b) producing a document or thing;
when served with a notice to do so under section 72 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.
(5) The fact that a person is not excused under subsection (4) 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.
(6) 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 72.
80 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 notice under section 72 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 notice under section 72, 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 AFP; or
(b) members of the police force of a State or Territory.
(5) This section does not affect the Witness Protection Act 1994.
Division 2—Conducting hearings
Subdivision A—General provisions
81 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) to (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) 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;
(c) whether it is in the public interest that the hearing (or that part of the hearing) take place in public;
(d) the seriousness of the corruption issue or issues to which the investigation or public inquiry relates;
(e) any other relevant matter.
Note: If the hearing is to be held in public, a witness may request that the witness’s evidence be taken in private: see section 88.
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: A witness may request that the witness’s evidence be taken in private: see section 88.
Record of hearing
(6) The National Integrity Commissioner must make a record of a hearing.
(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) If a direction under this section is given in writing, the direction is not a legislative instrument.
82 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 to do either or both of the following:
(a) give evidence;
(b) produce any documents or other things referred to in the summons;
if the National Integrity Commissioner has reasonable grounds to suspect that the evidence, documents or things will be relevant to the investigation of a corruption issue or the conduct of a public inquiry.
Note 1: Disclosing the existence of a summons, or any information about it, may be an offence: see section 76.
Note 2: Failure to comply with a summons is an offence: see section 92.
Note 3: A person may apply for legal and financial assistance in respect of his or her attendance: see section 109.
(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.
The National Integrity Commissioner must record in writing the reasons for the summons. The record must be made at or before the time the summons is issued.
(3) The matters in relation to which the National Integrity Commissioner may require the person to give evidence, or produce documents or things, at the hearing may include:
(a) the subject matter of any charge, or imminent charge, against the person; and
(b) the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the person.
(4) 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.
(5) Subsection (4) 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.
(6) Subsection (4) 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).
(7) The National Integrity Commissioner may, at the hearing, require the witness to produce a document or other thing.
(8) A witness appearing at a hearing is entitled to be paid by the Commonwealth any allowances for travelling and other expenses that are prescribed by the regulations.
(9) Without limiting its effect apart from this subsection, this Act also has the effect it would have if:
(a) subsection (3) had not been enacted; or
(b) subsection (3) were, by express provision, confined to dealing with a charge against the person or such a charge that is imminent; or
(c) subsection (3) were, by express provision, confined to dealing with a confiscation proceeding against the person that has commenced or is imminent.
83 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 B—Procedure at hearing
84 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.
85 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 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 C—Taking evidence at hearing
86 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 92.
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 83; 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.
87 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.
88 Person may request that particular evidence be given in private
(1) A person giving evidence at a hearing held in public may request to give particular evidence in private.
(2) The National Integrity Commissioner may, if the National Integrity Commissioner considers it appropriate, allow the evidence to be given in private.
89 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) If direction given to a person under subsection (1) is given in writing, the direction is not a legislative instrument.
Subdivision D—Prohibitions against disclosing information about a summons
90 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 82 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 91 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 body (within the meaning of the Privacy Act 1988) would be required, under subsection 20E(5) of that Act, to make a note about the disclosure of the information;
such a note must not be made until the notation is cancelled.
91 Offences of disclosure
(1) A person commits an offence if:
(a) the person is served with a summons under section 82; and
(b) the summons includes a notation under section 90; 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 90(7); and
(ii) the period of 5 years after the summons is served under section 82 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 109 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 82 that includes a notation under section 90; or
(ii) any official matter connected with a summons under section 82 that includes a notation under section 90; 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 90(7); and
(ii) the period of 5 years after the summons is served under section 82 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 109 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 109, 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 82 that includes a notation under section 90; or
(ii) any official matter connected with a summons under section 82 that includes a notation under section 90; 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 90(7); and
(ii) the period of 5 years after the summons is served under section 82 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 E—Offences in relation to hearings
92 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.
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.
Penalty: Imprisonment for 12 months.
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.
Note 1: A person may refuse to answer a question on the ground of legal professional privilege: see section 99.
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 102.
Penalty: Imprisonment for 2 years.
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.
Note 1: A person may refuse to produce a document or thing on the ground of legal professional privilege: see section 100.
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 102.
Penalty: Imprisonment for 2 years.
93 Contempt of the Commission
(1) A person is in contempt of the Commission if the person:
(a) when served with a summons to attend a hearing:
(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; or
(iii) refuses or fails to be sworn or make an affirmation at the hearing; or
(iv) subject to subsection (2), refuses or fails to answer a question at the hearing that the National Integrity Commissioner requires the person to answer; or
(v) subject to subsection (3), refuses or fails to produce a document or thing that the person was required to produce by a summons or notice under this Act that was served on him or her as prescribed; or
(vi) subject to subsection (3), refuses or fails to produce a document or thing that the person was required to produce under subsection 82(7); or
(b) is a legal practitioner who is required to answer a question or produce a document or thing at a hearing and both of the following apply:
(i) the answer to the question would disclose, or the document or thing contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;
(ii) he or she refuses to comply with the requirement and does not, when required by the National Integrity Commissioner, give the National Integrity Commissioner the name and address of the person to whom or by whom the communication was made; or
(c) gives evidence at a hearing that he or she knows is false or misleading in a material particular; or
(d) insults, disturbs or uses insulting language towards someone who the person knows:
(i) is the National Integrity Commissioner; and
(ii) is holding a hearing in the performance of his or her functions, or the exercise of his or her powers, as Integrity Commissioner; or
(e) creates a disturbance, or takes part in creating or continuing a disturbance, in or near a place that the person knows is being used to hold a hearing for the purpose of:
(i) investigating a corruption issue; or
(ii) conducting a public inquiry; or
(f) obstructs or hinders the National Integrity Commissioner in the performance of his or her functions or the exercise of his or her powers; or
(g) disrupts a hearing that is being held for the purpose of:
(i) investigating a corruption issue; or
(ii) conducting a public inquiry; or
(h) threatens a person present at a hearing that is being held for the purpose of:
(i) investigating a corruption issue; or
(ii) conducting a public inquiry.
(2) Subparagraph (1)(a)(iv) does not apply in the case of a legal practitioner who refuses or fails to answer a question at a hearing on the ground that the answer to the question would disclose a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner.
(3) Subparagraph (1)(a)(v) does not apply in the case of a legal practitioner who refuses or fails to produce a document or thing at a hearing on the ground that the document or thing contains a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner.
94 Federal Court or Supreme Court to deal with contempt
Application
(1) If, in respect of a hearing, the National Integrity Commissioner is of the opinion that a person is in contempt of the Commission, the National Integrity Commissioner may apply to either of the following courts for the person to be dealt with in relation to the contempt:
(a) the Federal Court;
(b) the Supreme Court of the State or Territory in which the hearing is held.
(2) Before making the application, the National Integrity Commissioner must inform the person that the National Integrity Commissioner proposes to make the application.
(3) The application must be accompanied by a certificate that states:
(a) the grounds for making the application; and
(b) evidence in support of the application.
(4) A copy of the certificate must be given to the person before, or at the same time as, the application is made.
(5) To avoid doubt, if the National Integrity Commissioner makes an application under this section, the National Integrity Commissioner need not give the evidence to the relevant person or authority under section 147.
How court may deal with application
(6) If, after:
(a) considering the matters specified in the certificate; and
(b) hearing or receiving any evidence or statements by or in support of Commission; and
(c) hearing or receiving any evidence or statements by or in support of the person;
the court to which the application was made finds that the person was in contempt of the Commission, the court may deal with the person as if the acts or omissions involved constituted a contempt of that court.
(7) For the purposes of determining whether a person is in contempt of the Commission under subsection (1), Chapter 2 of the Criminal Code applies as if:
(a) being in contempt of the Commission were an offence; and
(b) references to a person being criminally responsible for an offence were references to a person being responsible for being in contempt of the Commission.
95 Conduct of contempt proceedings
(1) This section applies if an application is made to the Federal Court or to the Supreme Court of a State or Territory under section 94.
(2) Proceedings in relation to the application are, subject to this Act, to be instituted, carried on, heard and determined in accordance with the laws (including any Rules of Court) that apply in relation to the punishment of a contempt of the court to which the application was made.
(3) In proceedings relating to the application, a certificate under subsection 94(3) is prima facie evidence of the matters specified in the certificate.
96 Person in contempt may be detained
(1) If the National Integrity Commissioner proposes to make an application under subsection 94(1) in respect of a person, the National Integrity Commissioner may, during the hearing concerned, direct a constable or an authorised officer to detain the person for the purpose of bringing the person before the relevant court for the hearing of the application.
(2) If the person is so detained:
(a) the National Integrity Commissioner must apply to the court as soon as practicable under subsection 94(1) in respect of the person; and
(b) the person must, subject to subsection (3) of this section, be brought before the court as soon as practicable.
(3) The court may:
(a) direct that the person be released from detention on condition that he or she will appear before the court in relation to the application; or
(b) order that the person continue to be detained until the application is determined.
(4) The court may also impose any other condition on the release, for example:
(a) that the person surrenders the following documents:
(i) any Australian travel document that has been issued to him or her;
(ii) any passport or other travel document that has been issued to him or her by or on behalf of the government of a foreign country; or
(b) that the person give an undertaking as to his or her living arrangements; or
(c) that the person report as required to:
(i) the AFP; or
(ii) a police force or police service of a State; or
(iii) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the States.
(5) The court may at any time vary or revoke a condition imposed under subsection (4).
97 National Integrity Commissioner may withdraw contempt application
(1) The National Integrity Commissioner may, at any time, withdraw an application under subsection 94(1).
(2) If:
(a) the National Integrity Commissioner does so; and
(b) the person to whom the application relates is in detention under section 96;
the person must be released from detention immediately.
98 Double jeopardy
(1) If an act or omission by a person is an offence against this Act and is also an offence against a law of a State, the person may be prosecuted and convicted under this Act or under that law of that State in respect of the act or omission, but nothing in this Act renders a person liable to be punished twice in respect of the same act or omission.
(2) If:
(a) an application is made to the Federal Court or a Supreme Court under subsection 94(1) in respect of an act or omission by a person; and
(b) the person is dealt with by the court under that section in respect of the act or omission;
the person is not liable to be prosecuted for an offence in respect of that act or omission.
(3) If a person is prosecuted for an offence in respect of an act or omission referred to in subsection 93(1) without an application being made to the Federal Court or a Supreme Court under subsection 94(1) in respect of the act or omission, an application must not be made under subsection 94(1) in respect of the act or omission.
99 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 102(5)(c).
(2) If such a claim is made, the National Integrity Commissioner may decide whether to accept or reject the claim.
100 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 102(5)(c).
(2) If such a claim is made, the National Integrity Commissioner may decide whether to accept or reject the claim.
101 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 99(2) or 100(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.
Penalty: Imprisonment for 6 months or 10 penalty units.
(2) Subsection (1) is an offence of strict liability.
(3) Subsection (1) does not apply if the person has a reasonable excuse.
(4) It is not a reasonable excuse for the purposes of subsection (3) 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.
(5) 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 (3) and (5) (see subsection 13.3(3) of the Criminal Code).
102 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 82, 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 92; 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 82, 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 82 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 F—Court orders for delivery of witness’s passport and witness’s arrest
103 National Integrity Commissioner may apply for order that witness deliver passport
(1) The National Integrity Commissioner may apply to a Judge of the Federal Court for an order that a person deliver the person’s passport to the National Integrity Commissioner if:
(a) either of the following apply:
(i) a summons under section 82 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;
(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 the person’s 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.
104 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 103(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 the person 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 the person’s 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.
105 Applying for a warrant to arrest witness
(1) An authorised officer may apply to a Judge of the Federal Court, 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 the person’s 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 82 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 92(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.
106 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 105(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 the authorised officer’s 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 the person 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 the person 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 the person 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; or
(b) a Judge of the Supreme Court of a State or Territory.
107 Powers of Judge in relation to person arrested
(1) A person arrested under a warrant issued under section 106 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 the person 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; or
(b) a Judge of the Supreme Court of a State or Territory.
Subdivision G—Miscellaneous
108 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 82, 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, the National Integrity Commissioner 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.
109 Person may apply for legal and financial assistance
(1) A person who is summoned under section 82 to attend a hearing before the National Integrity Commissioner may apply to the Attorney‑General for assistance in respect of:
(a) the person’s attendance at the hearing; or
(b) the person’s 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 82(8).
Note 2: A person may also apply for assistance in respect of an application to the Federal Court or the Federal Circuit 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 273.
(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 Circuit 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 273.
(3) If a person applies under subsection (1) or (2), the Attorney‑General may, if the Attorney‑General 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.
110 Protection of National Integrity Commissioner etc.
(1) The National Integrity Commissioner has, in exercising the National Integrity Commissioner’s 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 Commissioner who exercises the power to hold a hearing in relation to a corruption issue under an authorisation under section 229.
111 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 AFP; or
(b) members of the police force of a State or Territory.
(5) This section does not affect the Witness Protection Act 1994.
Division 3—Search warrants
Subdivision A—Preliminary
112 Application to things under the control of a person
This Division applies to a person (the possessor) who has a thing under the possessor’s 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 B—Applying for a search warrant
113 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 116.
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 116.
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 the person’s possession, or will within the next 72 hours have in the person’s 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 116.
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 the person’s possession, or will within the next 72 hours have in the person’s 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 116.
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 C—Issue of a search warrant
114 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 113(1); and
(b) the issuing officer is satisfied, on the information given under subsection 113(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 113(2); and
(b) the issuing officer is satisfied, on the information given under subsection 113(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 113(3); and
(b) the issuing officer is satisfied, on the information given under subsection 113(5), that:
(i) there are reasonable grounds for suspecting that the person in relation to whom the application is made has in the person’s possession, or will within the next 72 hours have in the person’s 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 113(4); and
(b) the issuing officer is satisfied, on the information given under subsection 113(5), that there are reasonable grounds for suspecting that the person in relation to whom the application is made has in the person’s possession, or will within the next 72 hours have in the person’s 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 the issuing officer 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 the issuing officer 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; or
(b) a Judge of the Federal Circuit Court.
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 the issuing officer were performing that function as, or as a member of, the court of which the issuing officer is a member.
115 Content of warrants
General contents of warrant
(1) If an issuing officer issues a search warrant under section 114, 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 the authorised officer 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 the person’s 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.
116 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 113 and 114 apply as if subsections 113(1), (2), (3) and (4) and 114(1), (2), (3) and (4) referred to 48 hours rather than 72 hours; and
(b) section 115 applies as if subsection 115(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 114.
(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 the issuing officer 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.
117 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 the person’s 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.
118 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.
119 Restrictions on personal searches
A search warrant may not authorise a strip search or a search of a person’s body cavities.
120 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 D—General provisions about executing a search warrant
121 Announcement before entry
(1) An authorised officer executing the search warrant must, before any person enters premises under the warrant:
(a) announce that the authorised officer 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 the authorised officer 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.
122 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 or a constable—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 or a constable—the assisting officer may use the force against things that is necessary and reasonable in the circumstances.
(3) Only an authorised officer or a constable may take part in searching a person.
Subdivision E—Specific provisions about executing a warrant in relation to premises
123 Application
This Subdivision applies if a search warrant in relation to premises is being executed.
124 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.
125 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.
126 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.
127 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 the occupier’s 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.
128 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 the authorised officer or assisting officer 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 130.
(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, the authorised officer or assisting officer 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 Commission; and
(d) the destruction of any other reproduction of the data in the control of the Commission.
(4) However, the National Integrity Commissioner must not do so if the data is evidence that the National Integrity Commissioner 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, the authorised officer or assisting officer 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.
129 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 the authorised officer or assisting officer does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
the authorised officer or assisting officer 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) the authorised officer’s or assisting officer’s 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, the authorised officer or assisting officer 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.
130 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 the issuing officer 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.
131 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 128(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 128(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.
132 Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 127, 128 or 129:
(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 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 by another Act.
(6) For the purpose of subsection (1):
damage, in relation to data, includes damages by erasure of data or addition of other data.
133 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 128(2) or paragraph 128(5)(a); or
(b) possession of the document, film, computer file, thing or information by the occupier could constitute an offence.
134 Receipts of things seized under warrant
(1) If a thing is seized under a search warrant or moved under subsection 127(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 F—Specific provisions about executing a warrant in relation to a person
135 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.
136 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 G—Offences
137 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.
138 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 116; and
(c) the name is not the name of the issuing officer who issued the search warrant.
Penalty: Imprisonment for 2 years.
139 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 116; 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.
140 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 116; 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.
141 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 116; and
(b) the document is not the form of search warrant that the person executed.
Penalty: Imprisonment for 2 years.
Subdivision H—Miscellaneous
142 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.
143 Law relating to legal professional privilege not affected
This Division does not affect the law relating to legal professional privilege.
Division 4—Powers of arrest
144 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 5—Authorised officers
145 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 Commission whom the National Integrity Commissioner considers has suitable qualifications or experience; or
(b) a member of the AFP.
(3) The National Integrity Commissioner may authorise a person referred to in paragraph (2)(b) only if the Commissioner of the AFP 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.
146 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 the authorised officer’s 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 the authorised officer’s 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 7—Dealing with evidence and information obtained in investigation or public inquiry
147 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 Commonwealth Director of Public Prosecutions; 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.
Note: See also subsection 94(5).
148 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 AFP; 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.
149 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 the National Integrity Commissioner’s doing so;
the National Integrity Commissioner must:
(c) bring the evidence to the notice of the Minister; and
(d) advise the person that the National Integrity Commissioner has brought the evidence to the notice of the 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 the National Integrity Commissioner’s doing so;
the National Integrity Commissioner must:
(c) bring the evidence to the notice of the Minister; and
(d) advise the person that the National Integrity Commissioner has brought the evidence to the notice of the Minister.
Part 8—Investigations by other Commonwealth agencies
Division 1—Nominated contact for investigations by Commonwealth agencies
150 Nominating contact for investigation
(1) If the National Integrity Commissioner decides to deal with a corruption issue by:
(a) referring the corruption issue to a Commonwealth agency for investigation; or
(b) managing or overseeing an investigation of the corruption issue by a Commonwealth agency;
the head of the agency may nominate a representative of the agency as the contact for the investigation.
Note: If the head of the agency does not nominate someone under this subsection, the head of the agency is the nominated contact for the investigation (see the definition of nominated contact in section 8).
(2) The nomination must be made by notice in writing to the National Integrity Commissioner.
Division 2—Managing or overseeing investigations by Commonwealth agencies
151 Managing an investigation
(1) The National Integrity Commissioner manages an investigation of a corruption issue by a Commonwealth agency by giving the agency’s nominated contact for the investigation detailed guidance about the planning, and carrying out, of the investigation.
Note: The National Integrity Commissioner can request the agency to provide information about the investigation under sections 153 and 154.
(2) The head of the agency must ensure that:
(a) the agency adheres to the National Integrity Commissioner’s detailed guidance in planning and carrying out the investigation; and
(b) the agency cooperates with the National Integrity Commissioner in relation to the planning and carrying out of the investigation.
152 Overseeing an investigation
(1) The National Integrity Commissioner oversees an investigation of a corruption issue by a Commonwealth agency by giving the agency’s nominated contact for the investigation general guidance about the planning, and carrying out, of the investigation.
(2) The head of the agency must ensure that the agency follows the National Integrity Commissioner’s general guidance in relation to the planning and carrying out of the investigation.
Division 3—Reporting
Subdivision A—Reporting by Commonwealth agencies during investigations
153 National Integrity Commissioner may request individual progress report
(1) If a Commonwealth agency is investigating a corruption issue, the National Integrity Commissioner may request:
(a) if the National Integrity Commissioner referred the corruption issue to the agency for investigation or is managing or overseeing the investigation—the nominated contact for the investigation; or
(b) in any other case—the head of the agency;
to give him or her a progress report on the investigation.
(2) The request:
(a) must be in writing; and
(b) must specify the date by which the progress report must be given to the National Integrity Commissioner; and
(c) may specify particular matters in relation to the investigation that the report is to address.
The date specified under paragraph (b) must be at least 7 days after the request is made.
(3) The nominated contact, or the head of the agency, must comply with the request.
154 National Integrity Commissioner may request periodic progress reports
(1) If a Commonwealth agency is investigating a corruption issue, the National Integrity Commissioner may request:
(a) if the National Integrity Commissioner referred the corruption issue to the agency for investigation or is managing or overseeing the investigation—the nominated contact for the investigation; or
(b) in any other case—the head of the agency;
to give him or her periodic progress reports on the investigation.
(2) The request:
(a) must be in writing; and
(b) must specify the frequency with which the reports are to be given and the periods to which they are to relate; and
(c) may specify particular matters in relation to the investigation that the reports are to address.
(3) The nominated contact, or the head of the agency, must comply with the request.
Subdivision B—Reporting by Commonwealth agencies at end of investigations
155 Final report on investigation
(1) After a Commonwealth agency completes:
(a) an investigation of a corruption issue; or
(b) a further investigation of a corruption issue recommended by the National Integrity Commissioner under section 156;
the head of the agency must cause a report on the investigation to be prepared.
(2) The report:
(a) must set out:
(i) the agency’s findings on the corruption issue; and
(ii) the evidence and other material on which those findings are based; and
(iii) what action (if any) the head of the agency has taken, or proposes to take, to address those findings; and
(iv) if action is to be taken—the reasons for the proposed action; and
(b) if the agency is the AFP and the corruption issue relates to another Commonwealth agency—may also set out recommendations relating to the other agency.
(3) The head of the agency must give a copy of the report to the National Integrity Commissioner as soon as reasonably practicable after the investigation or further investigation is completed.
156 National Integrity Commissioner may comment on final report
National Integrity Commissioner may make comments or recommendations
(1) The National Integrity Commissioner may, if he or she thinks fit, make comments or recommendations on any matter relating to or arising out of:
(a) a report given to the National Integrity Commissioner by the head of a Commonwealth agency under section 155; or
(b) the investigation to which the report relates.
Note: Under section 56, the National Integrity Commissioner could, after receiving the report, reconsider how the corruption issue should be dealt with.
(2) The National Integrity Commissioner must put any such comments or recommendations in writing and give them to the head of the Commonwealth agency.
(3) If:
(a) the Commonwealth agency that gives the report to the National Integrity Commissioner is the AFP; and
(b) the corruption issue relates to another Commonwealth agency;
the National Integrity Commissioner must also give the comments or recommendations to the head of that other agency.
(4) Without limiting subsection (1), the National Integrity Commissioner may recommend that:
(a) the head of a Commonwealth agency take appropriate action with a view to having a person charged with a criminal offence; or
(b) the head of a Commonwealth agency take appropriate action:
(i) to initiate disciplinary proceedings against a person; or
(ii) to determine whether a person’s employment or appointment should be terminated; or
(c) the head of a Commonwealth agency that gave the report to the National Integrity Commissioner investigate the corruption issue further.
Note: Under section 56, the National Integrity Commissioner could, instead of recommending that the agency investigate the corruption issue further, decide that the corruption issue should be dealt with in another way.
Request for details of action to be taken
(5) The National Integrity Commissioner may request the head of the Commonwealth agency to which the National Integrity Commissioner’s recommendations are directed to give the National Integrity Commissioner, within a specified time, details of any action that the head of the agency proposes to take with respect to the recommendations.
(6) The head of the agency must comply with the request.
(7) If the National Integrity Commissioner is not satisfied with the response of the head of the agency to the request, the National Integrity Commissioner may refer to the relevant Minister for the agency:
(a) the National Integrity Commissioner’s recommendation and the reasons for that recommendation; and
(b) the response of the head of the agency to the recommendation; and
(c) the National Integrity Commissioner’s reasons for not being satisfied with that response.
(8) If the National Integrity Commissioner refers material to a Minister under subsection (7), the National Integrity Commissioner may also send a copy of that material to:
(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.
Sensitive information
(9) The National Integrity Commissioner may exclude information from the copy of the material sent under subsection (8) 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 material sent.
(10) In deciding whether to exclude information from the copy of the material sent under subsection (8), 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 material sent; and
(b) the prejudicial consequences that might result from including the information in the material sent.
(11) After the material is presented to the Parliament, the National Integrity Commissioner may discuss any matter to which the material relates with the head of the agency for the purpose of resolving the matter.
157 Advising person who referred corruption issue of outcome of the investigation
(1) The head of a Commonwealth agency may advise a person (or a representative nominated by the person) of the outcome of the agency’s investigation of a corruption issue:
(a) raised by the person in a referral under section 42; and
(b) referred to the agency under paragraph 46(1)(b) or (c).
(2) One way of advising the person (or the representative) is to give a copy of all or part of any report prepared under section 155 in relation to the investigation.
158 Advising person whose conduct is investigated of outcome of the investigation
(1) If a Commonwealth agency investigates a corruption issue that relates to a person who is, or has been, an employee or officer of the agency, the head of the agency may advise the person of the outcome of the investigation.
(2) Without limiting subsection (1), the head of the agency may advise the person by giving the person a copy of the whole or a part of the report prepared in relation to the investigation under section 155.
Division 4—National Integrity Commissioner to pass on information relevant to agency
159 National Integrity Commissioner to pass on information relevant to agency investigation
If:
(a) a Commonwealth agency is investigating a corruption issue; and
(b) either:
(i) the National Integrity Commissioner referred the corruption issue to the agency for investigation; or
(ii) the head of the agency referred corruption issue to the National Integrity Commissioner under section 42; and
(c) the National Integrity Commissioner becomes aware of information that is relevant to the corruption issue; and
(d) the head of the agency does not already have the information;
the National Integrity Commissioner must give the information to the head of the agency.
Part 9—Whistleblower Protection
Division 1—Disclosures, information or requests
160 Receipt of disclosures, information or requests
(1) A person may:
(a) make, or provide information about, a disclosure of wrongdoing, to; or
(b) request information, advice, guidance or assistance in relation to a disclosure of wrongdoing or a whistleblower protection issue, from;
the Whistleblower Protection Commissioner.
(2) Without limiting subsection (1):
(a) the person may make the disclosure or request, or provide the 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 make the disclosure or request, or provide the information anonymously; and
(c) the person may make the disclosure or request, or provide the information either orally or in writing.
(3) If the person who makes the disclosure or request, or provides the information, orally, the Whistleblower Protection Commissioner may require the person to put the disclosure, request, or information in writing.
(4) If the person is asked to put the disclosure, request, or information in writing under subsection (3), the Whistleblower Protection Commissioner may refuse to deal further with the disclosure, request or information until it is put in writing.
(5) If a government agency:
(a) decides, under relevant legislation, to refer a disclosure, request, or information to the Whistleblower Protection Commissioner; or
(b) is required, under relevant legislation, to refer a disclosure, request, or information to the Whistleblower Protection Commissioner;
the person who made the disclosure or request, or provided the information, to the agency is taken to have made the disclosure or request, or provided the information to the Whistleblower Protection Commissioner under this section.
(6) To avoid doubt, a disclosure of wrongdoing may include or consist of an allegation, or information, that raises a corruption issue, and to which the definition of disclosure of wrongdoing in this Act also applies.
161 Person making disclosure or request under section 160 may elect to be kept informed
(1) If a person makes a disclosure or request, or provides information to the Whistleblower Protection Commissioner under section 160, the Whistleblower Protection Commissioner must ask the person to elect whether or not to be kept informed of the action taken in relation to the disclosure, request or information.
(2) Subsection (1) does not apply if the person makes the disclosure or request, or provides the 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 disclosure, request or information.
(4) If the person elects to be kept informed of the action taken in relation to the disclosure, request or information, the person may revoke the election at any time by notice to the Whistleblower Protection Commissioner.
162 Public officials must refer whistleblower protection issues
(1) As soon as practicable after a public official becomes aware of an allegation, or information, that raises a whistleblower protection issue, the public official must:
(a) refer the allegation or information to the Whistleblower Protection Commissioner under section 160; or
(b) if the public official is an employee of a Commonwealth agency other than the head of the agency—notify the head of the agency of the allegation or information.
Note: The head of a Commonwealth agency is a public official.
(2) Subsection (1) does not apply if the public official:
(a) has already taken action referred to in subsection (1) in relation to the allegation or information; or
(b) has reasonable grounds to believe that the Whistleblower Protection Commissioner is already aware of the allegation or information.
(3) Action taken under subsection (3) by the head of a Commonwealth agency must be taken in accordance with any direction, guidance or agreement under section 163 that applies to the agency.
163 Whistleblower Protection Commissioner may enter into agreements etc. with head of Commonwealth agency
(1) The Whistleblower Protection Commissioner may issue directions or guidance to, or enter into an agreement with, the head of a Commonwealth agency in relation to either or both of the following matters:
(a) the level of detail required to refer an allegation or information to the Whistleblower Protection Commissioner;
(b) the way in which information or documents in relation to an allegation or information may be given to the Whistleblower Protection Commissioner (whether for the purpose of referring an allegation or information to the Whistleblower Protection Commissioner or otherwise).
(2) The Whistleblower Protection Commissioner may revoke the direction, guidance or agreement by written notice given to the head of the agency. The revocation takes effect on a day specified in the notice, which must be at least 14 days after the day it is given.
(3) Without limiting subsection (1), the direction, guidance or agreement may set out how it may be varied and other ways how it may be revoked.
(4) Before issuing directions or guidance to, or entering into an agreement with, the head of a Commonwealth agency for the purposes of this section, the Whistleblower Protection Commissioner must consult with:
(a) the National Integrity Commissioner; and
(b) the Commonwealth Ombudsman; and
(c) the Australian Public Service Commission; and
(d) the Australian Securities and Investments Commission; and
(e) any other Commonwealth agency with responsibility for issuing directions or guidance, or entering into agreements with, the heads of Commonwealth agencies with respect to the receipt, referral or investigation of disclosures of wrongdoing or whistleblower protection issues.
(5) Directions, guidance or agreements for the purposes of this section may be included in directions, guidance or agreements issued or entered into by the National Integrity Commissioner for the purposes of section 45.
164 General information, advice, guidance and assistance
(1) The Whistleblower Protection Commissioner is to provide general information, advice, guidance and assistance to persons who:
(a) make, or provide information about, disclosures of wrongdoing; or
(b) request information, advice, guidance or assistance in relation to a disclosure of wrongdoing or a whistleblower protection issue; or
(c) are responsible for whistleblower protection responsibilities in any Commonwealth agency or any other body in relation to whom a disclosure of wrongdoing has been made or can be made; or
(d) are responsible for investigating or otherwise dealing with disclosures of wrongdoing.
(2) In determining the nature of general information, advice, guidance and assistance to be provided under this Part, the Whistleblower Protection Commissioner must consult with:
(a) the National Integrity Commissioner; and
(b) the Commonwealth Ombudsman; and
(c) the Australian Public Service Commission; and
(d) the Australian Securities and Investments Commission; and
(e) a body or bodies representing the interests of employers in the public and private sectors; and
(f) a body or bodies representing the interests of employees or workers in the public and private sectors; and
(g) one or more civil society organisations representing persons with experience of making disclosures of wrongdoing or with expertise in whistleblower protection; and
(h) any other government agencies with responsibility for issuing directions or guidance to other agencies or organisations with respect to whistleblower protection issues; and
(i) any other person or body that the Whistleblower Protection Commissioner deems fit.
(3) In making arrangements and giving direction for the provision of general information, advice, guidance and assistance to persons who:
(a) make, or provide information about, disclosures of wrongdoing; or
(b) request information, advice, guidance or assistance in relation to a disclosure of wrongdoing or a whistleblower protection issue;
the Whistleblower Protection Commissioner must ensure that the relevant staff members of the Commission have appropriate specialist training and experience in the provision of legal, administrative, investigative, psychological and workplace‑related advice, guidance and support.
Division 2—How Whistleblower Protection Commissioner deals with disclosures of wrongdoing and whistleblower protection issues
Subdivision A—General
165 How Whistleblower Protection Commissioner may deal with disclosures of wrongdoing
(1) The Whistleblower Protection Commissioner may deal with a disclosure of wrongdoing, or information about a disclosure of wrongdoing, in any of the following ways:
(a) if the disclosure of wrongdoing relates to a Commonwealth agency—by referring the disclosure or information to the agency for investigation;
(b) if the disclosure of wrongdoing relates to a matter that is within the functions and powers of a government agency to investigate or otherwise deal with—by referring the disclosure or information to the agency for investigation or to be otherwise dealt with.
(2) If a disclosure of wrongdoing includes an allegation or information that raises a corruption issue, that allegation or information must, unless it concerns the National Integrity Commissioner, be referred to the National Integrity Commissioner under section 42.
(3) If the Whistleblower Protection Commissioner refers a disclosure of wrongdoing, or information about a disclosure to another government agency, the Whistleblower Protection Commissioner may, for the purpose of ensuring that whistleblower protection responsibilities are fulfilled:
(a) monitor the way in which the agency investigates or deals with the disclosure or information; and
(b) provide advice, guidance or assistance to the person who made the disclosure or provided the information, or any related person; and
(c) provide advice, guidance or assistance to the agency or any other person with respect to the way in which the agency investigates or deals with the disclosure or information.
Requesting information to assist in monitoring and guidance
(4) For the purposes of subsection (1), the Whistleblower Protection Commissioner may request the head of any government agency to give the Whistleblower Protection Commissioner any information specified in the request.
(5) The head of a Commonwealth agency must comply with the request.
166 How Whistleblower Protection Commissioner may deal with whistleblower protection issues
(1) The Whistleblower Protection Commissioner may deal with an allegation, or information that raises a whistleblower protection issue in any of the following ways:
(a) by investigating the whistleblower protection issue;
(b) if the whistleblower protection issue relates to a Commonwealth agency—by referring the whistleblower protection issue to the agency for investigation and:
(i) managing the investigation; or
(ii) overseeing the investigation; or
(iii) neither managing nor overseeing the investigation;
(c) if the whistleblower protection issue relates to a matter that is within the functions and powers of a government agency to investigate or otherwise deal with—by referring the whistleblower protection issue to the agency for investigation or to be otherwise dealt with and:
(i) managing the investigation; or
(ii) overseeing the investigation; or
(iii) neither managing nor overseeing the investigation;
(d) by managing an investigation of the whistleblower protection issue that is being conducted by a Commonwealth agency;
(e) by overseeing an investigation of the whistleblower protection issue that is being conducted by a Commonwealth agency.
(2) The Whistleblower Protection Commissioner may investigate the whistleblower protection issue under paragraph (1)(a) either alone or jointly with another government agency with appropriate functions or powers for the purpose.
(3) The Whistleblower Protection Commissioner may not deal with a disclosure of wrongdoing or information relating to a disclosure in any of the ways provided for in this section, unless the disclosure or information involves a whistleblower protection issue.
167 Criteria for deciding how to deal with a disclosure of wrongdoing or whistleblower protection issue
(1) The Whistleblower Protection Commissioner must have regard to the matters set out in subsection (2) in deciding:
(a) how to deal with a disclosure of wrongdoing, or whistleblower protection issue; or
(b) whether to take no further action in relation to a disclosure of wrongdoing, or whistleblower protection issue.
(2) The matters to which the Whistleblower Protection Commissioner must have regard are the following:
(a) the need to ensure that disclosures of wrongdoing and whistleblower protection issues are fully investigated;
(b) the rights and obligations of any other agency to investigate a the disclosure of wrongdoing or the whistleblower protection issue;
(c) the rights and obligations of any person who makes or provides information in relation to the disclosure of wrongdoing or raises the whistleblower protection issue, including any need to protect the person’s identity or confidentiality or to protect the person from reprisal or detrimental action;
(d) if a joint investigation of the whistleblower protection issue by the Whistleblower Protection Commissioner and another agency is being considered—the extent to which the other agency is able to cooperate in the investigation;
(e) the resources that are available to any other agency to investigate the whistleblower protection issue;
(f) the need to ensure a balance between:
(i) the Whistleblower Protection Commissioner’s role in dealing with whistleblower protection issues (particularly in dealing with significant whistleblower protection issues); and
(ii) ensuring that the heads of Commonwealth agencies take responsibility for managing their agencies, or for investigating and dealing with whistleblower protection issues;
(g) the likely significance of the whistleblower protection issue for any person to whom it relates, for any agency and for the Commonwealth.
(3) Subsection (2) does not limit the matters to which the Whistleblower Protection Commissioner may have regard.
168 Dealing with multiple whistleblower protection issues
(1) The Whistleblower Protection Commissioner may, in the Whistleblower Protection Commissioner’s discretion, deal with a number of whistleblower protection issues together (whether or not they are raised by the same allegation or information).
(2) Without limiting subsection (1), if an allegation, or information, raises a number of whistleblower protection issues, the Whistleblower Protection Commissioner:
(a) may deal with some or all of those whistleblower protection issues together; and
(b) may deal with some or all of those whistleblower protection issues separately.
(3) Without limiting subsection (1), the Whistleblower Protection Commissioner may prepare a single report in relation to a number of whistleblower protection issues.
Subdivision B—Whistleblower Protection Commissioner dealing with referred whistleblower protection issues
169 Whistleblower Protection Commissioner must make a decision
(1) If an allegation, or information, that raises a whistleblower protection issue is referred to the Whistleblower Protection Commissioner under subsection 160(5), the Whistleblower Protection Commissioner must decide:
(a) to deal with the whistleblower protection issue in one of the ways referred to in subsection 166(1); or
(b) to take no further action in relation to the whistleblower protection issue.
Requesting information to assist in making the decision
(2) For the purposes of making a decision under subsection (1), the Whistleblower Protection Commissioner may request the head of any government agency to give the Whistleblower Protection Commissioner the information specified in the request.
(3) The head of a Commonwealth agency must comply with the request.
(4) Subsections (2) and (3) do not limit the information to which the Whistleblower Protection Commissioner may have regard in making a decision under subsection (1).
Direction not to investigate
(5) If the whistleblower protection issue relates to a Commonwealth agency and the Whistleblower Protection Commissioner decides to deal with the whistleblower protection issue in one of the ways referred to in subsection 166(1), the Whistleblower Protection Commissioner may direct the head of the agency that the agency is not to investigate the whistleblower protection issue.
(6) If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.
Deciding to take no further action
(7) The Whistleblower Protection Commissioner may decide under subsection (1) to take no further action in relation to the whistleblower protection issue only if the Whistleblower Protection Commissioner is satisfied that:
(a) the whistleblower protection issue is already being, or will be, investigated by another government agency; or
(b) the referral of the allegation, or information, that raises the whistleblower protection issue is frivolous or vexatious; or
(c) the whistleblower protection issue has been, is or will be, the subject of proceedings before a court or an application to an industrial, civil or administrative body; or
(d) investigation of the whistleblower protection issue is not warranted having regard to all the circumstances.
(8) If the whistleblower protection issue relates to a Commonwealth agency, the Whistleblower Protection Commissioner must advise the head of the agency of a decision under subsection (1) to take no further action in relation to the whistleblower protection issue. That advice must be given:
(a) in writing; and
(b) as soon as reasonably practicable after the decision is made.
(9) This Act continues to apply to the head of a Commonwealth agency given advice under subsection (8), in relation to the whistleblower protection issue unless the Whistleblower Protection Commissioner advises otherwise:
(a) in the advice given under subsection (8); or
(b) in a later written advice given to the head of that agency.
170 Advising person who raises whistleblower protection issue of decision about how to deal with issue
Whistleblower Protection Commissioner to advise person who raises whistleblower protection issue
(1) If a person:
(a) makes an allegation, or provides information, that raises a whistleblower protection issue to the Whistleblower Protection Commissioner under section 160; and
(b) elects under section 161 to be kept informed of the action taken in relation to the whistleblower protection issue;
the Whistleblower Protection Commissioner must advise the person of:
(c) the Whistleblower Protection Commissioner’s decision under section 169 in relation to the whistleblower protection issue; and
(d) any decision the Whistleblower Protection Commissioner makes under section 175 on a reconsideration of how the whistleblower protection issue should be dealt with.
Form and timing of advice
(2) The Whistleblower Protection 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 Whistleblower Protection Commissioner need not advise the person if the Whistleblower Protection Commissioner is satisfied that doing so is likely to prejudice:
(a) the investigation of the whistleblower protection issue or any other investigation; or
(b) protection of the identity or confidentiality of any person who referred or provided information in relation to the whistleblower protection issue, or protection of such a person from reprisal or detrimental action; or
(c) 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 a whistleblower protection issue to the Whistleblower Protection 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 Whistleblower Protection Commissioner to receive communications from the Whistleblower Protection Commissioner;
the Whistleblower Protection Commissioner must give the advice required by subsection (1) to the person nominated or the person for the time being holding the office nominated.
171 Advising person to whom referred whistleblower protection issue relates of decision about how to deal with issue
If the Whistleblower Protection Commissioner makes a decision under section 169 in relation to a referred whistleblower protection issue that relates to a person, the Whistleblower Protection Commissioner may advise the person of the Whistleblower Protection Commissioner’s decision.
Subdivision C—Whistleblower Protection Commissioner dealing with whistleblower protection issues on own initiative
172 Whistleblower Protection Commissioner may deal with whistleblower protection issues on own initiative
Whistleblower Protection Commissioner may decide to deal with a whistleblower protection issue
(1) If the Whistleblower Protection Commissioner becomes aware of an allegation, or information, that raises a whistleblower protection issue, the Whistleblower Protection Commissioner may, on the Whistleblower Protection Commissioner’s own initiative, deal with the whistleblower protection issue in one of the ways referred to in subsection 166(1).
(2) Subsection (1) does not apply if the Whistleblower Protection Commissioner becomes aware of the allegation or information because of action taken under Division 1 of this Part.
Requesting information to assist in making the decision
(3) For the purposes of making a decision under subsection (1), the Whistleblower Protection Commissioner may request the head of any Commonwealth agency to give the Whistleblower Protection Commissioner the information specified in the request.
(4) The head of the Commonwealth agency must comply with the request.
(5) Subsection (3) does not limit the information to which the Whistleblower Protection Commissioner may have regard in making a decision under subsection (1).
Direction not to investigate
(6) If the whistleblower protection issue relates to a Commonwealth agency and the Whistleblower Protection Commissioner decides to deal with the whistleblower protection issue in one of the ways referred to in subsection 166(1), the Whistleblower Protection Commissioner may direct the head of the agency that the agency is not to investigate the whistleblower protection issue.
(7) If a direction under subsection (6) is given in writing, the direction is not a legislative instrument.
Becoming aware of another whistleblower protection issue
(8) Without limiting subsection (1), if the Whistleblower Protection Commissioner:
(a) is investigating, or inquiring into, a particular whistleblower protection issue; and
(b) in the course of doing so, becomes aware of an allegation, or information, that raises another whistleblower protection issue;
the Whistleblower Protection Commissioner may deal with that other whistleblower protection issue in one of the ways referred to in subsection 166(1).
173 Advising head of Commonwealth agency of decision to deal with whistleblower protection issue on own initiative
Application of section
(1) This section applies if:
(a) the Whistleblower Protection Commissioner decides, on the Whistleblower Protection Commissioner’s own initiative, to deal with a whistleblower protection issue in one of the ways referred to in subsection 166(1); and
(b) the whistleblower protection 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 Whistleblower Protection Commissioner must advise the head of that Commonwealth agency of:
(a) the Whistleblower Protection Commissioner’s decision to deal with the whistleblower protection issue in that way; and
(b) any decision the Whistleblower Protection Commissioner makes under section 175 on a reconsideration of how the whistleblower protection issue should be dealt with.
Form and timing of advice
(3) The Whistleblower Protection 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 Whistleblower Protection Commissioner need not advise the head of the Commonwealth agency if doing so would be likely to prejudice:
(a) the investigation of the whistleblower protection issue or another corruption investigation; or
(b) any action taken as a result of an investigation referred to in paragraph (a).
174 Advising person of decision to deal with whistleblower protection issue on own initiative
If:
(a) the Whistleblower Protection Commissioner decides, on the Whistleblower Protection Commissioner’s own initiative, to deal with a whistleblower protection issue in one of the ways referred to in subsection 166(1); and
(b) the whistleblower protection issue relates to a person who is, or has been, a public official;
the Whistleblower Protection Commissioner may advise the person of:
(c) the Whistleblower Protection Commissioner’s decision to deal with the whistleblower protection issue in that way; and
(d) any decision the Whistleblower Protection Commissioner makes under section 175 on a reconsideration of how the whistleblower protection issue should be dealt with.
Subdivision D—Reconsidering how to deal with a whistleblower protection issue
175 Reconsidering how to deal with a whistleblower protection issue
(1) The Whistleblower Protection Commissioner may, at any time, reconsider how a particular whistleblower protection issue should be dealt with.
(2) On that reconsideration, the Whistleblower Protection Commissioner may:
(a) if the whistleblower protection issue is not being dealt with in one of the ways referred to in subsection 166(1)—decide to deal with the whistleblower protection issue in accordance with one of the ways referred to in that subsection; or
(b) if the whistleblower protection issue is being dealt with in one of the ways referred to in subsection 166(1)—decide to deal with the whistleblower protection issue in another of the ways referred to in that subsection, or to take no further action in relation to the whistleblower protection issue.
(3) The Whistleblower Protection Commissioner may decide under subsection (2) to take no further action in relation to the whistleblower protection issue only if the Whistleblower Protection Commissioner is satisfied that:
(a) the whistleblower protection issue is already being, or will be, investigated by another government agency; or
(b) the allegation, or information, that raises the whistleblower protection issue is frivolous or vexatious; or
(c) the whistleblower protection issue relates has been, is or will be, the subject of proceedings before a court or an application to an industrial, civil or administrative body; or
(d) further investigation of the whistleblower protection issue is not warranted having regard to all the circumstances.
Division 3—Information sharing when decision made on how to deal with whistleblower protection issue
176 If Commonwealth agency to conduct, or continue conducting, investigation of whistleblower protection issue
(1) This section applies if:
(a) the Whistleblower Protection Commissioner decides to deal with a whistleblower protection issue that relates to a Commonwealth agency by referring the whistleblower protection issue to that or another Commonwealth agency for investigation; or
(b) an allegation, or information, that raises a whistleblower protection issue is referred to the Whistleblower Protection Commissioner under subsection 160(5) by the head of a Commonwealth agency and the Commonwealth agency is investigating the whistleblower protection issue.
(2) The Whistleblower Protection Commissioner must give the head of the Commonwealth agency investigating the whistleblower protection issue information or a document if:
(a) the information or document:
(i) relates to the whistleblower protection issue to the extent to which the agency is investigating the issue; and
(ii) is in the possession, or under the control, of the Whistleblower Protection Commissioner; and
(b) the head of the agency does not already have the information or document.
Note: Under section 159, the Whistleblower Protection Commissioner has a continuing obligation to pass on information that the Whistleblower Protection Commissioner becomes aware of and that is relevant to the whistleblower protection issue.
(3) The Whistleblower Protection Commissioner may give the original or a copy of a document.
177 If Commonwealth agency has already commenced investigating whistleblower protection issue
(1) This section applies if:
(a) the Whistleblower Protection Commissioner decides to deal with a whistleblower protection issue that relates to a Commonwealth agency in one of the ways referred to in subsection 166(1); and
(b) the agency has started or continued investigating the whistleblower protection issue before the Whistleblower Protection Commissioner makes that decision.
(2) The Whistleblower Protection Commissioner may direct the head of the agency investigating the whistleblower protection issue to give the Whistleblower Protection Commissioner, or the head of another government agency, all information or documents that:
(a) relate to the whistleblower protection issue; and
(b) are in the possession, or under the control, of the head of the agency.
(3) The direction must be in writing.
(4) A direction given under this section is not a legislative instrument.
Division 4—Investigations and public inquiries by the Whistleblower Protection Commissioner
178 Manner and powers of investigation
(1) This Division applies if the Whistleblower Protection Commissioner investigates or conducts a public inquiry in relation to a whistleblower protection issue (whether alone or jointly with another person or persons).
(2) Parts 5, 6 and 7 of this Act apply to an investigation or public inquiry by the Whistleblower Protection Commissioner as if a reference to the National Integrity Commissioner were a reference to the Whistleblower Protection Commissioner, and a reference to a corruption issue were a reference to a whistleblower protection issue.
Division 5—Investigations by other Commonwealth agencies
179 Dealing with, managing or overseeing investigations
(1) This Division applies if the Whistleblower Protection Commissioner decides to deal with a corruption issue by:
(a) referring the corruption issue to a Commonwealth agency for investigation; or
(b) managing or overseeing an investigation of the corruption issue by a Commonwealth agency.
(2) Part 8 of this Act applies to the investigation by the Commonwealth agency as if a reference to the National Integrity Commissioner were a reference to the Whistleblower Protection Commissioner, and a reference to a corruption issue were a reference to a whistleblower protection issue.
Division 6—Remedial functions and powers
180 Additional recommendations
(1) This section applies to a report of an investigation or public inquiry or a special report made by the Whistleblower Protection Commissioner under section 64, 70, 233 or 234 of the Act.
(2) Without limiting any recommendations that the Whistleblower Protection Commissioner thinks fit to make, the Whistleblower Protection Commissioner may also recommend:
(a) the adoption of measures to remedy deficiencies in the policy, procedures or practices that facilitated:
(i) a person or body engaging in reprisal, victimisation, detrimental acts or omissions in relation to a person as a result of the disclosure of wrongdoing; or
(ii) a failure to support and protect, or prevent detrimental acts or omissions from occurring in relation to, a person as a result of the disclosure of wrongdoing; or
(b) the adoption of measures to prevent detriment from being suffered, or further detriment from being suffered, by a person as a result of the disclosure of wrongdoing; or
(c) a decision to reinstate a person’s employment or duties or otherwise deal with a person’s employment to remedy or compensate for detriment suffered; or
(d) the payment of compensation or giving of a reward or other remedies to a person, including payment of legal and other costs;
(e) the taking of appropriate action to enforce a civil penalty or obtain a civil, industrial, workplace or administrative remedy for a person; or
(f) such other action as the Whistleblower Protection Commissioner considers necessary to protect a person from, or compensate a person for, detrimental actions or omissions a result of the disclosure of wrongdoing.
181 Proceedings and applications
(1) This section applies to a whistleblower protection issue that the Whistleblower Protection Commissioner is investigating or has investigated, or in relation to which the Whistleblower Protection Commissioner has made a report under sections 64, 70, 233 or 234 of the Act.
(2) Where the Whistleblower Protection Commissioner is satisfied it is in the public interest to do so, the Commissioner may, in respect of the whistleblower protection issue:
(a) commence proceedings in a court; or
(b) make applications to an industrial, civil or administrative body;
seeking such orders as may be available under any Commonwealth law for remedies for a breach or apprehended breach of whistleblower protection responsibilities.
(3) The Whistleblower Protection Commissioner may provide legal advice, representation or other practical support, as appropriate, to a person who:
(a) experienced a whistleblower protection issue as a result of a disclosure of wrongdoing; and
(b) is, or may become, a party to proceedings in a court or to a matter before an industrial, civil or administrative body, under any law for enforcement or remedies in relation to a whistleblower protection responsibility;
if the Whistleblower Protection Commissioner considers that representing or providing advice or support to the person will promote compliance with whistleblower protection responsibilities, and is appropriate in all the circumstances.
(4) Practical support under subsection (3) may include payments for non‑legal costs, services, living support, or a reward.
(5) The Whistleblower Protection Commissioner must establish a fund to support the provision of legal advice, representation or other practical support to persons under subsection (3).
(6) The fund described in subsection (5) is to be supported by the Whistleblower Protection Special Account created by section 184.
(7) Where the orders that may be sought by the Whistleblower Protection Commissioner under subsection (2) include exemplary damages for a breach or apprehended breach of a whistleblower protection responsibility, the Whistleblower Protection Commissioner:
(a) may seek such damages; and
(b) must, if such damages are awarded and the court of tribunal so agrees, have the damages paid into the Whistleblower Protection Special Account created by section 184.
182 Mediation and arbitration
(1) This section applies to a whistleblower protection issue:
(a) that the Whistleblower Protection Commissioner is investigating or has investigated; or
(b) in relation to which the Whistleblower Protection Commissioner has made a report under sections 64, 70, 233 or 234 of the Act;
and which involves a dispute between 2 or more parties in respect of the whistleblower protection issue and its resolution.
(2) Where the Whistleblower Protection Commissioner is satisfied it is in the public interest and the interests of all parties to do so, the Commissioner may, with the consent of all parties:
(a) mediate the dispute; or
(b) arbitrate in respect of the dispute.
(3) The Whistleblower Protection Commissioner may provide legal advice, representation or other practical support, as appropriate, to any person involved in a mediation or arbitration under subsection (2).
183 Enforceable undertakings relating to contraventions of civil remedy provisions
Application of this section
(1) This section applies if the Whistleblower Protection Commissioner reasonably believes that a person has contravened a civil remedy provision in respect of a whistleblowing protection responsibility.
Accepting an undertaking
(2) The Whistleblower Protection Commissioner may accept a written undertaking given by the person in relation to the contravention.
Withdrawing or varying an undertaking
(3) The person may withdraw or vary the undertaking at any time, but only with the Whistleblower Protection Commissioner’s consent.
Relationship with orders in relation to contraventions of civil remedy provisions
(4) The Whistleblower Protection Commissioner must not apply for an order under subsection 181(2) in relation to a contravention of a civil remedy provision by a person if an undertaking given by the person under this section in relation to the contravention has not been withdrawn.
Note: A person other than the Whistleblower Protection Commissioner who is otherwise entitled to apply for an order in relation to the contravention may do so.
Enforcement of undertakings
(5) If the Whistleblower Protection Commissioner considers that the person who gave the undertaking has contravened any of its terms, the Whistleblower Protection Commissioner may apply to the Federal Court, the Federal Magistrates Court or a State or Territory Court for an order under subsection (6).
(6) If the court is satisfied that the person has contravened a term of the undertaking, the court may make one or more of the following orders:
(a) an order directing the person to comply with the term of the undertaking;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order that a civil penalty be paid into the Whistleblower Protection Special Account created by section 184;
(d) any other order that the court considers appropriate.
Division 7—Special Account
184 Whistleblower Protection Special Account
(1) The Whistleblower Protection Special Account (the Account) is established by this section.
(2) The Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
185 Credits to the Account
There may be credited to the Account amounts equal to the following:
(a) amounts received by the Commonwealth in connection with the performance of the Whistleblower Protection Commissioner’s functions under this Act, including awards of exemplary damages or civil penalties under Division 6;
(b) interest received by the Commonwealth from the investment of amounts debited from the Account;
(c) amounts received by the Commonwealth in relation to property paid for with amounts debited from the Account;
(d) amounts of any gifts given or bequests made for the purposes of the Account;
(e) such amounts as the Minister may approve for the expenditure of money standing to the credit of the Confiscated Assets Account, for the purpose of crime prevention or law enforcement measures, under section 298 of the Proceeds of Crime Act 2002.
Note: An Appropriation Act provides for amounts to be credited to a special account if any of the purposes of the special account is a purpose that is covered by an item in the Appropriation Act.
186 Purposes of the Account
The purposes of the Account are as follows:
(a) paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the Whistleblower Protection Commissioner’s functions;
(b) paying any remuneration and allowances payable to any staff of the Commission assisting the Whistleblower Protection Commission under this Act (including staff mentioned in subsection 227(3));
(c) meeting the expenses of administering the Account.
Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).
Part 10—Administrative provisions relating to the Commission
Division 1—National Integrity Commissioner
187 Appointment of National Integrity Commissioner
(1) The National Integrity Commissioner is to be appointed by the Governor‑General by written instrument.
(2) A person must not be appointed as the National Integrity Commissioner unless the person:
(a) is or has been a Judge of the Federal Court or the Supreme Court of a State or Territory; or
(b) is qualified for appointment as such a Judge.
(3) Before the Minister makes a recommendation to the Governor‑General for the appointment of a person as the National Integrity Commissioner:
(a) the Minister must refer the proposed recommendation for the appointment to the Parliamentary Joint Committee under section 247; 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 Minister that it has decided to approve the proposed recommendation.
(4) Subject to section 188, a person may be proposed for appointment on more than one occasion.
(5) In this section and sections 246 and 247, appointment includes re‑appointment.
(6) The Governor‑General may, for the purpose of appointing to the office of the National Integrity Commissioner a person who is the holder of a judicial office of a State or Territory, enter into such arrangement with the Governor of that State or the Administrator of that Territory, as the case may be, as is necessary to secure that person’s services.
(7) An arrangement under subsection (6) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of the person to whom the arrangement relates.
188 General terms and conditions of appointment
(1) The National Integrity Commissioner holds office for the period specified in the 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 10 years.
(2) The National Integrity Commissioner holds office on a full‑time basis.
(3) A person holding office as 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.
189 Other paid work
The National Integrity Commissioner must not engage in paid work outside the duties of the National Integrity Commissioner’s office without the Minister’s approval.
190 Remuneration
(1) The 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, 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) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 do not apply in relation to the office of the National Integrity Commissioner.
Note: The effect of this subsection is that remuneration or allowances of the National Integrity Commissioner will be paid out of money appropriated by an Act other than the Remuneration Tribunal Act 1973.
(4) This section has effect subject to the Remuneration Tribunal Act 1973 (except as provided by subsection (3)).
191 Leave of absence
(1) The National Integrity Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The 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 Minister determines.
192 Resignation
(1) The National Integrity Commissioner may resign the National Integrity Commissioner’s 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.
193 Removal from office
(1) The Governor‑General may remove the National Integrity Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor‑General praying for the removal of the National Integrity Commissioner on the ground:
(a) of misbehaviour; or
(b) that the National Integrity Commissioner is unable to perform the duties of the National Integrity Commissioner’s office because of physical or mental incapacity.
(2) The Governor‑General must remove the National Integrity Commissioner from office 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 the National Integrity Commissioner’s creditors; or
(iv) makes an assignment of the National Integrity Commissioner’s remuneration for the benefit of the National Integrity Commissioner’s 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 Minister’s approval, in paid work outside the duties of the National Integrity Commissioner’s office;
(d) the National Integrity Commissioner fails, without reasonable excuse, to comply with:
(i) section 195 of this Act (disclosure of interests); or
(ii) section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
194 Acting appointments
(1) The 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 the 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.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
(2) The Minister may appoint the Law Enforcement Integrity Commissioner to act as the National Integrity Commissioner for the purposes of paragraph (1)(a) or (b).
195 Disclosure of interests
(1) The National Integrity Commissioner must give a written notice to the Minister of all direct or indirect pecuniary interests that the National Integrity Commissioner has or acquires in any business or in any body corporate carrying on any business.
(2) Subsection (1) applies in addition to any rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013.
Division 2—Law Enforcement Integrity Commissioner
196 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.
Division 3—Whistleblower Protection Commissioner
197 Appointment of Whistleblower Protection Commissioner
(1) The Whistleblower Protection Commissioner is to be appointed by the Governor‑General by written instrument.
Note: Subject to subsection 188(1), the Whistleblower Protection Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
(2) Before the Governor‑General appoints a person as the Whistleblower Protection Commissioner, the Minister must be satisfied that the person:
(a) has suitable qualifications or experience; and
(b) is of good character.
(3) Before the Minister makes a recommendation to the Governor‑General for the appointment of a person as the Whistleblower Protection Commissioner:
(a) the Minister must refer the proposed recommendation for the appointment to the Parliamentary Joint Committee under section 247; 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 Minister that it has decided to approve the proposed recommendation.
(4) Subject to section subsection 198(1), a person may be proposed for appointment on more than one occasion.
(5) In this section and sections 246 and 247, appointment includes re‑appointment.
(6) The Governor‑General may, for the purpose of appointing to the office of the Whistleblower Protection Commissioner a person who is the holder of a judicial office of a State or Territory, enter into such arrangement with the Governor of that State or the Administrator of that Territory, as the case may be, as is necessary to secure that person’s services.
(7) An arrangement under subsection (6) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of the person to whom the arrangement relates.
198 General terms and conditions of appointment
(1) The Whistleblower Protection Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. The sum of the periods for which the Whistleblower Protection Commissioner holds office must not exceed 10 years.
(2) The Whistleblower Protection Commissioner holds office on a full‑time basis.
(3) A person holding office as the Whistleblower Protection 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.
199 Other paid work
The Whistleblower Protection Commissioner must not engage in paid work outside the duties of the National Integrity Commissioner’s office without the Minister’s approval.
200 Remuneration
(1) The Whistleblower Protection 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, the Whistleblower Protection Commissioner is to be paid the remuneration that is prescribed by the regulations.
(2) The Whistleblower Protection Commissioner is to be paid the allowances that are prescribed by the regulations.
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 do not apply in relation to the office of the Whistleblower Protection Commissioner.
Note: The effect of this subsection is that remuneration or allowances of the Whistleblower Protection Commissioner will be paid out of money appropriated by an Act other than the Remuneration Tribunal Act 1973.
(4) This section has effect subject to the Remuneration Tribunal Act 1973 (except as provided by subsection (3)).
201 Leave of absence
(1) The Whistleblower Protection Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Whistleblower Protection Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
202 Resignation
(1) The Whistleblower Protection Commissioner may resign the Whistleblower Protection Commissioner’s 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.
203 Removal from office
(1) The Governor‑General may remove the Whistleblower Protection Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor‑General praying for the removal of the Whistleblower Protection Commissioner on the ground:
(a) of misbehaviour; or
(b) that the Whistleblower Protection Commissioner is unable to perform the duties of the Whistleblower Protection Commissioner’s office because of physical or mental incapacity
(2) The Governor‑General must remove the Whistleblower Protection Commissioner from office if any of the following apply:
(a) the Whistleblower Protection 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 the Whistleblower Protection Commissioner’s creditors; or
(iv) makes an assignment of the Whistleblower Protection Commissioner’s remuneration for the benefit of the National Integrity Commissioner’s creditors;
(b) the Whistleblower Protection Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;
(c) the Whistleblower Protection Commissioner engages, except with the Minister’s approval, in paid work outside the duties of the National Integrity Commissioner’s office;
(d) the Whistleblower Protection Commissioner fails, without reasonable excuse, to comply with:
(i) section 195 of this Act (disclosure of interests); or
(ii) section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
204 Acting appointments
(1) The Minister may, by written instrument, appoint a person to act as the Whistleblower Protection Commissioner:
(a) during a vacancy in the office of the Whistleblower Protection Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Whistleblower Protection Commissioner:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
(2) The Minister may appoint the National Integrity Commissioner to act as the Whistleblower Protection Commissioner for the purposes of paragraph (1)(a) or (b).
205 Disclosure of interests
(1) The Whistleblower Protection Commissioner must give a written notice to the Minister of all direct or indirect pecuniary interests that the Whistleblower Protection Commissioner has or acquires in any business or in any body corporate carrying on any business.
(2) Subsection (1) applies in addition to any rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013.
Division 4—Assistant National Integrity Commissioners
206 Appointment of Assistant National Integrity Commissioners
(1) An Assistant National Integrity Commissioner is to be appointed by the Governor‑General by written instrument.
Note: Subject to subsection 207(1), the Assistant National Integrity Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
(2) A person must not be appointed as an Assistant Commissioner unless the person:
(a) is or has been a Judge of the Federal Court or the Supreme Court of a State or Territory; or
(b) is qualified for appointment as such a Judge.
(3) Before the Minister makes a recommendation to the Governor‑General for the appointment of a person as an Assistant Commissioner:
(a) the Minister must consult the National Integrity Commissioner; and
(b) the Minister must refer the proposed recommendation for the appointment to the Parliamentary Joint Committee under section 247; and
(c) 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 Minister that it has decided to approve the proposed recommendation.
(4) Subject to section 188, a person may be proposed for appointment on more than one occasion.
(5) In this section and sections 246 and 247, appointment includes re‑appointment.
(6) The Governor‑General may, for the purpose of appointing to the office of the an Assistant Commissioner a person who is the holder of a judicial office of a State or Territory, enter into such arrangement with the Governor of that State or the Administrator of that Territory, as the case may be, as is necessary to secure that person’s services.
(7) An arrangement under subsection (6) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of the person to whom the arrangement relates.
207 General terms and conditions of appointment
(1) An Assistant Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. The sum of the periods for which a person holds office as an Assistant Commissioner holds office must not exceed 10 years.
(2) An Assistant Commissioner may be appointed on either a full‑time or part‑time basis.
(3) A person holding office as an Assistant 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.
208 Other paid work
(1) An Assistant Commissioner appointed on a full‑time basis must not engage in paid work outside the duties of the Assistant Commissioner’s office without the Minister’s approval.
(2) An Assistant Commissioner appointed on a part‑time basis must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the Assistant Commissioner’s duties.
209 Remuneration
(1) An Assistant 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 Commissioner is to be paid the remuneration that is prescribed by the regulations.
(2) An Assistant Commissioner is to be paid the allowances that are prescribed by the regulations.
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 do not apply in relation to the office of an Assistant Commissioner
Note: The effect of this subsection is that remuneration or allowances of an Assistant Commissioner will be paid out of money appropriated by an Act other than the Remuneration Tribunal Act 1973.
(4) This section has effect subject to the Remuneration Tribunal Act 1973 (except as provided by subsection (3)).
210 Leave of absence
(1) A full‑time Assistant Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time Assistant Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
(3) The National Integrity Commissioner may grant leave of absence to any part‑time Assistant Commissioner on the terms and conditions that the National Integrity Commissioner determines.
211 Resignation
(1) An Assistant Commissioner may resign the Assistant Commissioner’s 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.
212 Removal from office
(1) The Governor‑General may remove an Assistant Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor‑General praying for the removal of the Assistant Commissioner on the ground:
(a) of misbehaviour; or
(b) that the Assistant Commissioner is unable to perform the duties of the Assistant Commissioner’s office because of physical or mental incapacity
(2) The Governor‑General must remove the Assistant Commissioner from office if any of the following apply:
(a) the Assistant 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 the Assistant Commissioner’s creditors; or
(iv) makes an assignment of the Assistant Commissioner’s remuneration for the benefit of the Assistant Commissioner’s creditors;
(b) if the Assistant Commissioner is appointed on a full‑time basis—the Assistant Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;
(c) if the Assistant Commissioner is appointed on a part‑time basis—the Assistant Commissioner is absent, except on leave of absence, to an extent that the Minister considers excessive;
(d) the Assistant Commissioner engages, except with the Minister’s approval, in paid work outside the duties of the Assistant Commissioner’s office;
(e) the Assistant Commissioner fails, without reasonable excuse, to comply with:
(i) section 214 of this Act (disclosure of interests); or
(ii) section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
213 Acting appointments
The Minister may appoint a person to act as an Assistant Commissioner:
(a) during a vacancy in the office of the Assistant 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 Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
214 Disclosure of interests
(1) An Assistant Commissioner must give written notice to the Minister of all direct or indirect pecuniary interests that the Assistant Commissioner has or acquires in any business or in any body corporate carrying on any business.
(2) Subsection (1) applies in addition to any rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013.
Division 5—Chief Executive Officer
215 CEO
There is to be a Chief Executive Officer of the Commission.
Note: In this Act, CEO means the Chief Executive Officer of the Commission: see section 8.
216 Functions of the CEO
The CEO’s functions are:
(a) to manage the administration of the Commission; and
(b) to assist the National Integrity Commissioner, the Law Enforcement Integrity Commissioner, the Whistleblower Protection Commissioner, an Assistant Commissioner, an Assistant Law Enforcement Integrity Commissioner or the Commission in the performance of its functions.
217 Powers of the CEO
The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of the CEO’s functions.
218 Commission may give directions to CEO
(1) The Commission may give written directions to the CEO about the performance of the CEO’s functions.
(2) The CEO must comply with a direction under subsection (1).
(3) Subsection (2) does not apply to the extent that:
(a) compliance with the direction would be inconsistent with the CEO’s performance of functions or exercise of powers under the Public Governance, Performance and Accountability Act 2013 in relation to the Commission; or
(b) the direction relates to the CEO’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the Commission.
(4) A direction under subsection (1) is not a legislative instrument.
219 Appointment of CEO
(1) The CEO is to be appointed by the Commission by written instrument.
(2) A person must not be appointed as the CEO unless the Commission is satisfied that the person has appropriate qualifications, knowledge or experience.
(3) Before the Commission appoints a person as the CEO:
(a) the Commission must refer the proposed recommendation for the appointment to the Parliamentary Joint Committee under section 247; 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 Commission that it has decided to approve the proposed recommendation.
(4) The CEO holds office on a full‑time basis.
(5) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The CEO may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
220 Appointment of acting CEO
(1) The Commission may, by written instrument, appoint a person to act as the CEO:
(a) during a vacancy in the office of the CEO (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the CEO:
(i) is absent from duty or Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) A person must not be appointed to act as the CEO unless the Commission is satisfied that the person has appropriate qualifications, knowledge or experience.
221 Remuneration of the CEO
(1) The CEO 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, the CEO is to be paid the remuneration that is prescribed by the regulations.
(2) The CEO is to be paid the allowances that are prescribed by the regulations.
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 do not apply in relation to the office of the CEO.
Note: The effect of this subsection is that remuneration or allowances of the CCEO will be paid out of money appropriated by an Act other than the Remuneration Tribunal Act 1973.
(4) This section has effect subject to the Remuneration Tribunal Act 1973 (except as provided by subsection (3)).
222 Leave of absence of the CEO
(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Commission may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Commission determines.
223 Other paid work of the CEO
The CEO must not engage in paid work outside the duties of the CEO’s office without the Commission’s approval.
224 Resignation of the CEO
(1) The CEO may resign the CEO’s appointment by giving the Commission a written resignation.
(2) The resignation takes effect on the day it is received by the Commission or, if a later day is specified in the resignation, on that later day.
225 Termination of appointment of the CEO
Misbehaviour or incapacity
(1) The Commission may terminate the appointment of the CEO:
(a) for misbehaviour; or
(b) if the CEO is unable to perform the duties of the CEO’s office because of physical or mental incapacity.
Bankruptcy etc.
(2) The Commission may terminate the appointment of the CEO if:
(a) the CEO:
(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 the CEO’s creditors; or
(iv) makes an assignment of the CEO’s remuneration for the benefit of the CEO’s creditors; or
(b) the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the CEO engages, except with the Commission’s approval, in paid work outside the duties of the CEO’s office (see section 223); or
(d) the CEO fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
226 Other terms and conditions of the CEO
The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Commission.
Division 6—Staff, consultants and delegations
227 Staff
(1) The staff of the Commission must be persons appointed or engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the CEO and the staff of the Commission together constitute a Statutory Agency; and
(b) the CEO is the Head of that Statutory Agency.
(3) The CEO must, by writing, designate positions in the Commission as positions assisting the Whistleblower Protection Commissioner in the performance of the whistleblower protection commissioner functions.
Note: For creation of positions, see section 77 of the Public Service Act 1999.
(4) A person in a position designated under subsection (3) 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;
other than in respect of the whistleblower protection commissioner functions of receiving and referring disclosures of wrongdoing under Division 1 of Part 9 and section 165.
228 Consultants
The CEO may, on behalf of the Commonwealth, engage consultants to assist in the performance of the CEO’s functions.
229 Delegation—National Integrity Commissioner
Delegation to Whistleblower Protection Commissioner or an Assistant Commissioner
(1) The National Integrity Commissioner may, in writing, delegate all or any of the National Integrity Commissioner’s functions or powers under this Act to the Whistleblower Protection Commissioner or an Assistant Commissioner.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) Subsection (1) does not apply to the power to hold a public hearing.
Delegation to certain staff members
(3) The National Integrity Commissioner may, in writing, delegate all or any of the National Integrity Commissioner’s functions or powers to a staff member of the Commission who is an SES employee or an acting SES employee.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(4) Subsection (3) does not apply to:
(a) the power to hold a public hearing; or
(b) a power under Division 1 or 2 of Part 6.
Delegate must comply with directions
(5) In performing a function or exercising a power delegated under subsection (1) or (3), the delegate must comply with any written directions of the National Integrity Commissioner.
230 Delegation—Whistleblower Protection Commissioner
(1) Section 229 applies to the Whistleblower Protection Commissioner as if a reference to the National Integrity Commissioner were a reference to the Whistleblower Protection Commissioner.
(2) However, a function or power of the Whistleblower Protection Commissioner must not be delegated to the same person to whom the National Integrity Commissioner has delegated any function or power, other than in respect of the whistleblower protection commissioner functions of receiving and referring disclosures of wrongdoing under Division 1 of Part 9 and section 165.
231 Delegation—CEO
(1) The CEO may, in writing, delegate all or any of the CEO’s functions or powers to a staff member of the Commission who is an SES employee or an acting SES employee.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) In performing a function or exercising a power delegated under subsection (1), the delegate must comply with any written directions of the CEO.
Division 7—Public reporting
232 Annual report
(1) The National Integrity Commissioner must give the 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 the following:
(i) corruption issues raised by allegations or information referred to the National Integrity Commissioner under section 42 during that year;
(ii) corruption issues dealt with by the National Integrity Commissioner on the National Integrity Commissioner’s own initiative during that year;
(iii) corruption issues investigated by the National Integrity Commissioner during that year;
(iv) corruption issues that the National Integrity Commissioner referred to a Commonwealth agency for investigation 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 Circuit 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.
233 Reports on investigations and public inquiries
(1) If:
(a) both:
(i) the National Integrity Commissioner gives the Minister a report prepared under subsection 64(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 Minister a report prepared under subsection 70(1);
the Minister must table the report in each House of the Parliament within 5 sitting days of that House after its receipt by the Minister.
(2) To avoid doubt, the Minister is not required by subsection (1) to cause a supplementary report prepared under subsection 64(6) or 70(5) to be tabled in either House of the Parliament.
234 Special reports
National Integrity Commissioner may give Minister special reports
(1) The National Integrity Commissioner may, from time to time, give the Minister, for presentation to the Parliament, a special report:
(a) on the operations of the 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 Minister or a House of the Parliament may request the National Integrity Commissioner to, or the National Integrity Commissioner may, on the National Integrity Commissioner’s 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 section.
(3) If the National Integrity Commissioner gives a special report to the Minister under subsection (1), the Minister must table the report in each House of the Parliament within 5 sitting days of that House after its receipt by the 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 the head of the agency’s 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.
235 Contents of annual or special report
(1) The National Integrity Commissioner may exclude information from an annual report under section 232, or a special report under section 234, if the National Integrity Commissioner is satisfied that:
(a) the information is sensitive information or the inclusion of the information may:
(i) endanger a person’s life or physical safety; or
(ii) prejudice proceedings brought as a result of a corruption investigation or public inquiry, or an investigation of a corruption issue that the National Integrity Commissioner manages or oversees; or
(iii) compromise operational activities, or methodologies, of the Commission; 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.
236 Public reporting—Whistleblower Protection Commissioner
(1) Sections 220 to 235 apply to the Whistleblower Protection Commissioner as if a reference to the National Integrity Commissioner were a reference to the Whistleblower Protection Commissioner, a reference to a national integrity commissioner function were a reference to a whistleblower protection commissioner function, and a reference to corruption or corruption issues were a reference to whistleblower protection issues.
(2) A report by the Whistleblower Protection Commissioner referred to in this Division may, by arrangement with National Integrity Commissioner, be published together with or as part of a report of the same type by the National Integrity Commissioner.
Division 8—Confidentiality requirements
237 Confidentiality requirements for National Integrity Commission staff
(1) A person who is, or has been, a staff member of the Commission commits an offence if:
(a) the person (either directly or indirectly and either while the person is, or after the person ceases to be, a staff member of the 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 the person being a staff member of the Commission; or
(ii) in the course of the carrying out the person’s duties as a staff member of the 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 238 and 239.
(3) To avoid doubt, if a corruption issue is investigated jointly by the National Integrity Commissioner and a government agency, any information that a staff member of the Commission acquires in the course of participating the joint investigation is taken:
(a) to have been acquired by the staff member because of his or her being a staff member of the Commission; and
(b) to have been disclosed or obtained under the provisions of, or for the purposes of, this Act.
(4) In this Division, staff member of the Commission includes:
(a) the National Integrity Commissioner; and
(b) the Law Enforcement Integrity Commissioner; and
(c) the Whistleblower Protection Commissioner; and
(d) any Assistant Commissioner; and
(e) any Assistant Law Enforcement Integrity Commissioners.
238 Exceptions to confidentiality requirements
Purposes connected with Commission’s functions and powers
(1) Subsection 237(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 the person’s duties as a staff member of the 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 237(1) does not prevent a person from communicating information to another person if:
(a) the person acquired the information in the performance of the person’s duties as a staff member of the Commission; and
(b) a provision of this Act requires or permits the staff member 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 237(1) does not prevent the National Integrity Commissioner or a 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 another government agency;
if the National Integrity Commissioner or 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 or Commissioner to be satisfied that confidentiality regime in place
(4) If the National Integrity Commissioner or Commissioner proposes to disclose information to a person under subsection (3), the National Integrity Commissioner or 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 237 and this section with respect to the confidentiality of information acquired by that person.
Disclosure required by another Commonwealth law
(5) Subsection 237(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) A staff member of the Commission may disclose information to a particular person if the staff member is satisfied that it is necessary to do so in order to protect the person’s life or physical safety.
239 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 240; 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.
240 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 239 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 head of the agency’s 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.
241 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 Commission is not compellable in any proceedings to which this section applies:
(a) to disclose any information that:
(i) the person acquired because of the person being or having been a staff member of the 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 the person’s custody or control in the course of, or because of, the performance of the person’s 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 persons is a party to the proceedings in the person’s 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:
(i) a corruption investigation or public inquiry; or
(ii) an investigation of a corruption issue that the National Integrity Commissioner manages or oversees.
(4) In this section:
produce includes permit access to, and production has a corresponding meaning.
242 Confidentiality requirements—Whistleblower Protection Commissioner
Sections 237 to 241 apply to the Whistleblower Protection Commissioner as if a reference to the National Integrity Commissioner were a reference to the Whistleblower Protection Commissioner, a reference to a national integrity commissioner function were a reference to a whistleblower protection commissioner function, and a reference to corruption or corruption issues were a reference to whistleblower protection issues.
Part 11—Parliamentary Joint Committee on the Australian National Integrity Commission
243 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 Australian 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.
244 Parliamentary Joint Committee on the Australian 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 Australian 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 12 members:
(a) 6 of whom must be members of the Senate appointed by the Senate, and 6 of whom must be members of the House of Representatives appointed by that House; and
(b) 5 of whom must be members of the Government; and
(c) 5 of whom must be members of the Opposition; and
(d) 2 of whom must be members of the Parliament other than members of the Government or Opposition.
(3) The co‑Chairs of the committee are to be:
(a) the member nominated as co‑Chair by the Prime Minister; and
(b) the member nominated as co‑Chair by the leader of the Opposition.
(4) A member of the Parliament is not eligible for appointment as a member of the committee if the member 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 Deputy Speaker of the House of Representatives.
(5) A member ceases to hold office:
(a) when the House of Representatives expires by the passing of time or is dissolved; or
(b) if the member becomes the holder of an office specified in any of the paragraphs of subsection (4); or
(c) if the member ceases to be a member of the House of the Parliament by which the member was appointed; or
(d) if the member resigns the member’s office as provided by subsection (6) or (7).
(6) A member appointed by the Senate may resign the member’s office by writing signed by him or her and delivered to the President of the Senate.
(7) A member appointed by the House of Representatives may resign the member’s office by writing signed by him or her and delivered to the Speaker of that House.
(8) 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.
245 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.
246 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 247;
(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 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 232; and
(ii) any special report prepared by the National Integrity Commissioner under section 234;
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 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.
Assistant Commissioners, CEO and Parliamentary Inspector
(5) The committee has the duty to consider the proposed recommendation for an appointment of an Assistant Commissioner, the CEO or the Parliamentary Inspector, in accordance with section 247.
247 Committee may approve or reject recommendation for appointment
National Integrity Commissioner and Assistant Commissioners
(1) If the Minister refers a proposed recommendation for an appointment of the National Integrity Commissioner or an Assistant 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 Minister in accordance with subsection (2).
Note: See sections 187 and 206.
(2) The committee may notify the 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.
CEO
(3) If the Commission refers a proposed recommendation for an appointment of the CEO 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 Commission in accordance with subsection (4).
Note: See section 215.
(4) The committee may notify the Commission 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.
Parliamentary Inspector
(5) If the Presiding Officers refers a proposed recommendation for an appointment of the Parliamentary Inspector 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 Presiding Officers in accordance with subsection (6).
Note: See section 262.
(6) The committee may notify the Presiding Officers 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.
Making of decision
(7) The decision to approve or reject a proposed recommendation must be:
(a) by majority of the members of the committee for the time being holding office; and
(b) the majority must include at least 2 members of each of the Government and the Opposition.
(8) 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.
(9) The committee must notify the Minister, the Commission of the Presiding Officers (as the case may be) of its decision in relation to a proposed recommendation as soon as practicable after making the decision.
(10) A notification under this section must be in writing.
(11) The committee must report to both Houses of the Parliament on its decision in relation to a proposed recommendation.
248 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 Minister.
(4) 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 National Integrity Commissioner and the committee; and
(c) must not disclose the Minister’s reasons for determining the question referred to in subparagraph (a)(ii) in the way stated in the determination.
(5) A determination made by the Minister under subsection (4) is not a legislative instrument.
(6) 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 National Integrity Commissioner must give the information to the committee.
249 Parliamentary Joint Committee—Whistleblower Protection Commissioner
Sections 246 to 248 apply to the duties and powers of the Parliamentary Joint Committee as if a reference to the National Integrity Commissioner were a reference to the Whistleblower Protection Commissioner, a reference to a national integrity commissioner function were a reference to a whistleblower protection commissioner function, and a reference to corruption or corruption issues were a reference to whistleblower protection issues.
250 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 the Minister’s 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.
251 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.
252 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 12—Parliamentary Inspector of the Australian National Integrity Commission
Division 1—Establishment and functions and powers of the Parliamentary Inspector of the Australian National Integrity Commission
253 Parliamentary Inspector of the Australian National Integrity Commission
(1) There is to be a Parliamentary Inspector of the Australian National Integrity Commission.
(2) The Parliamentary Inspector of the Australian National Integrity Commission is an independent officer of the Parliament.
254 Functions of the Parliamentary Inspector
(1) The functions of the Parliamentary Inspector are, as required by the Parliamentary Joint Committee, to do the following:
(a) inspect records kept by the Commission, including operational files and accompanying documentary material, for the purpose of forming an opinion as to whether:
(i) the Commission has exercised power in an appropriate way;
(ii) required authorisations for the exercise of power have been obtained;
(iii) any practice or procedural guidelines set by the Commission are adequate, having regard to risk;
(iv) any practice or procedural guidelines set by the Commission have been strictly complied with;
(b) investigate complaints made against, or concerns expressed about, the conduct or activities of the Commission or its staff;
(c) audit the Commission’s systems of governance and risk management relating to control of information, including relating to the protection of whistleblowers and human sources;
(d) review alleged incidences of possible unauthorised disclosure of information or other material that, under an enactment, is confidential;
(e) review information given by the Commission to the Parliamentary Joint Committee to verify its accuracy and completeness, particularly in relation to an operational matter;
(f) report, and make recommendations, to the Parliamentary Joint Committee on the results of performing the functions mentioned in paragraphs (a) to (e).
(2) A requirement under subsection (1) is effective only if it is requested or authorised in terms of reference jointly issued by the co‑Chairs of the Parliamentary Joint Committee.
(3) The Parliamentary Inspector also has such other functions as are conferred on the Parliamentary Inspector by this Act or any other law of the Commonwealth.
255 Matters arising from a conduct investigation
(1) This section applies if the Parliamentary Inspector investigates a matter relating to the conduct of a person.
(2) The Parliamentary Inspector may seek the assistance of the AFP or a police service of a State of Territory to assist in the investigation of a criminal offence.
(3) If, from information obtained in conducting the investigation, the Parliamentary Inspector decides that prosecution proceedings for an offence should be considered, the Parliamentary Inspector may give information or evidence gathered about the matter to the Director of Public Prosecutions, or other appropriate prosecuting authority, for the purposes of any prosecution proceedings the director or other authority considers warranted.
256 Report on conduct investigations conducted by Parliamentary Inspector
(1) If the matter involved conduct of a staff member of the Commission, the Parliamentary Inspector may produce a report relating to the information or evidence gathered, and may include:
(a) for conduct of the National Integrity Commissioner, a Commissioner, an Assistant Commissioner or the CEO—a recommendation to the Minister or the Parliamentary Joint Committee that the Minister or Parliamentary Joint Committee consider whether disciplinary action should be taken against that staff member; or
(b) for conduct of another staff member of the Commission—a recommendation to the CEO that the CEO consider whether disciplinary action should be taken against the staff member.
(2) The Parliamentary Inspector must not include in a report under subsection (1):
(a) any statement that a person has engaged, is engaging or is about to engage in conduct that constitutes a criminal offence or disciplinary breach; or
(b) any opinion or recommendation that a person should be prosecuted for a criminal offence or be the subject of disciplinary action or further disciplinary action.
(3) The Parliamentary Joint Committee or the Minister, as the case may be, may table the report, or an extract from the report if, and only if:
(a) the Parliamentary Joint Committee or Minister is satisfied of the following:
(i) the report relates to a case of serious corrupt conduct or systemic corrupt conduct;
(ii) tabling the report or extract is in the public interest; and
(b) if the tabling of the report or extract would disclose information adverse to a person, the person has been afforded procedural fairness for the disclosure.
257 Parliamentary Inspector cannot be required to disclose particular information
The Parliamentary Inspector cannot be required by the Parliamentary Joint Committee to disclose to the Committee information relating to a conduct investigation conducted by the Parliamentary Inspector.
Division 2—Audits, investigations, reviews and reports
258 Process for conducting an audit, investigation or review
An audit, inspection, investigation or review conducted by the Parliamentary Inspector is to be conducted in accordance with the process prescribed by the regulations.
259 Contents of reports on results of performance of functions
A report by the Parliamentary Inspector on the performance of a function referred to in subsection 254(1) must be prepared in accordance with the requirements prescribed by the regulations.
260 Parliamentary Inspector may require information etc.
For the purposes of performing his or her functions, the Parliamentary Inspector may exercise any of the powers of the National Integrity Commissioner, as prescribed by the regulations.
261 Privilege against self‑incrimination
A person required by notice or summons to produce information to the Parliamentary Inspector enjoys the same privileges and immunities, and holds the dame obligations and responsibilities, as if the person were subject to a notice or summons issued by the National Integrity Commissioner.
Division 3—Administrative provisions relating to the Parliamentary Inspector
262 Appointment of Parliamentary Inspector
(1) The Parliamentary Inspector is to be appointed by the Presiding Officers by written instrument.
(2) A person must not be appointed as the Parliamentary Inspector unless the person:
(a) is or has been a Judge of the Federal Court or the Supreme Court of a State or Territory; or
(b) is qualified for appointment as such a Judge.
(3) Before the Presiding Officers appoint a person as the Parliamentary Inspector:
(a) the Presiding Officers must refer the proposed recommendation for the appointment to the Parliamentary Joint Committee under section 247; 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 Presiding Officers that it has decided to approve the proposed recommendation.
(4) Subject to section 263, a person may be proposed for appointment on more than one occasion.
(5) In this section and sections 246 and 247, appointment includes re‑appointment.
(6) The Presiding Officers may, for the purpose of appointing to the office of the National Integrity Commissioner a person who is the holder of a judicial office of a State or Territory, enter into such arrangement with the Governor of that State or the Administrator of that Territory, as the case may be, as is necessary to secure that person’s services.
(7) An arrangement under subsection (6) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of the person to whom the arrangement relates.
263 General terms and conditions of appointment
(1) The Parliamentary Inspector holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. The sum of the periods for which the Parliamentary Inspector holds office must not exceed 10 years.
(2) The Parliamentary Inspector may be appointed on a full‑time or part‑time basis.
(3) The Parliamentary Inspector holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Presiding Officers.
264 Other paid work
(1) If the Parliamentary Inspector is appointed on a full‑time basis, the Parliamentary Inspector must not engage in paid work outside the duties of the Parliamentary Inspector office without the Presiding Officers’ approval.
(2) If the Parliamentary Inspector is appointed on a part‑time basis, the Parliamentary Inspector must not engage in any paid work that conflicts or may conflict with the proper performance of the Parliamentary Inspector’s duties.
265 Remuneration
(1) The Parliamentary Inspector 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, the Parliamentary Inspector is to be paid the remuneration that is prescribed by the regulations.
(2) The Parliamentary Inspector is to be paid the allowances that are prescribed by the regulations.
(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 do not apply in relation to the office of the Parliamentary Inspector
Note: The effect of this subsection is that remuneration or allowances of the Parliamentary Inspector will be paid out of money appropriated by an Act other than the Remuneration Tribunal Act 1973.
(4) This section has effect subject to the Remuneration Tribunal Act 1973 (except as provided by subsection (3)).
266 Leave of absence
(1) If the Parliamentary Inspector is appointed on a full‑time basis, the Parliamentary Inspector has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) If the Parliamentary Inspector is appointed on a full‑time basis, the Presiding Officers may grant the Parliamentary Inspector leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Presiding Officers determine.
267 Resignation
(1) The Parliamentary Inspector may resign the Parliamentary Inspector’s appointment by giving the Presiding Officers a written resignation.
(2) The resignation takes effect on the day it is received by the Presiding Officers or, if a later day is specified in the resignation, on that later day.
268 Termination of appointment
(1) The Presiding Officers may terminate the appointment of the Parliamentary Inspector:
(a) for misbehaviour; or
(b) if the Parliamentary Inspector is unable to perform the duties of the Parliamentary Inspector’s office because of physical or mental incapacity.
(2) The Presiding Officers may terminate the appointment of the Parliamentary Inspector if any of the following apply:
(a) the Parliamentary Inspector:
(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 the Parliamentary Inspector’s creditors; or
(iv) makes an assignment of the Parliamentary Inspector’s remuneration for the benefit of the Parliamentary Inspector’s creditors;
(b) if the Parliamentary Inspector is appointed on a full‑time basis:
(i) the Parliamentary Inspector engages, except with Presiding Officers’ approval, in paid work outside the duties of the Parliamentary Inspector’s office; or
(ii) the Parliamentary Inspector is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;
(c) if the Parliamentary Inspector is appointed on a part‑time basis—the Parliamentary Inspector engages in paid work that conflicts or may conflict with the proper performance of the Parliamentary Inspector’s duties;
(d) the Parliamentary Inspector Adviser fails, without reasonable excuse, to comply with section 270.
269 Acting appointments
(1) The Presiding Officers may, by written instrument, appoint a person to act as the Parliamentary Inspector:
(a) during a vacancy in the office of the Parliamentary Inspector (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Parliamentary Inspector:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
(2) The Presiding Officers must not appoint the National Integrity Commissioner, the Law Enforcement Integrity Commissioner, the Whistleblowing Protection Commissioner, an Assistant Commissioner, an Assistant Law Enforcement Integrity Commissioner, the Parliamentary Standards Commissioner, the Parliamentary Integrity Adviser or another staff member of the Commission to act as the Parliamentary Inspector.
270 Disclosure of interests
The Parliamentary Inspector must give written notice to the Presiding Officers of all interests, pecuniary or otherwise, that the Parliamentary Inspector has or acquires and that conflict or could conflict with the proper performance of the Parliamentary Inspector’s functions.
271 Assistance to Parliamentary Inspector
(1) The Parliamentary Inspector may seek assistance from the Presiding Officers to support the performance of the Parliamentary Inspector’s functions.
(2) The assistance may include the following:
(a) the provision of information;
(b) the provision of advice;
(c) the making available of resources, staff, consulting services and facilities.
(3) Any other Department, agency or authority of the Commonwealth (other than the National Integrity Commission) may also assist the Parliamentary Inspector in the performance of the Parliamentary Inspector’s functions.
Part 13—Miscellaneous
272 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.
273 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 Circuit 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 the Attorney‑General 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 Circuit Court, as the case may be.
(3) Legal or financial assistance may be given: