Federal Register of Legislation - Australian Government

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A Bill for an Act to deal with consequential and transitional matters arising from the enactment of the National Anti-Corruption Commission Act 2022, and for other purposes
Administered by: Attorney-General's
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 30 Sep 2022
Introduced HR 28 Sep 2022
Table of contents.

 

 

 

2022

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

National Anti-Corruption Commission BILL 2022

National Anti-Corruption Commission (Consequential and Transitional Provisions) BILL 2022

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)

 


Table of contents

Glossary                                                                                                                                            1

General outline and financial impact                                                                                                3

Statement of Compatibility with Human Rights                                                                              7

National Anti-Corruption Commission Bill 2022                                                                           55

Part 1          Preliminary                                                                                                              55

Part 2          Key concepts used in this Act                                                                                  69

Division 1—Corrupt conduct and corruption issues                                                             69

Division 2—Public officials                                                                                                 81

Division 3—Commonwealth agencies and the heads of those agencies                                81

Division 4—Staff members of Commonwealth agencies                                                      84

Division 5—Commonwealth integrity agencies                                                                    90

Part 3          The National Anti-Corruption Commission                                                              92

Division 1—The Commissioner                                                                                            92

Division 2—The Deputy Commissioners                                                                              93

Division 3—The National Anti-Corruption Commission                                                      93

Part 4          Protections for disclosers under this Act                                                                  95

Division 1—Meaning of NACC disclosure                                                                           97

Division 2—Protection of persons from liability                                                                  98

Division 3—Protection from reprisals                                                                                 100

Division 4—Protection for journalists’ informants                                                             102

Part 5          Referring corruption issues                                                                                    104

Division 1—Voluntary referrals                                                                                         104

Division 2—Mandatory referrals                                                                                        104

Division 3—Other matters relating to referrals                                                                    114

Part 6          Dealing with corruption issues                                                                               115

Division 1—Dealing with corruption issues                                                                        115

Division 2—Investigations conducted by Commonwealth agencies                                   124

Part 7          Investigating corruption issues                                                                               128

Division 1—General                                                                                                           129

Division 2—Requiring information, documents and things                                                129

Division 3—Hearings                                                                                                         134

Division 4—Use and disclosure of certain information and material                                  156

Division 5—Retention and return of documents and things                                                170

Division 6—Privileges and protections                                                                               172

Division 7—Search powers                                                                                                178

Division 8—Interaction with criminal procedure and confiscation proceedings                 189

Part 8          Reporting on corruption investigations                                                                   197

Part 9          Public inquiries                                                                                                      209

Part 10       Oversight of the National Anti-Corruption Commission                                        215

Division 1—Parliamentary Joint Committee on the National Anti-Corruption Commission 216

Division 2—The Inspector of the National Anti-Corruption Commission                           220

Division 3—NACC corruption issues                                                                                 229

Division 4—Investigating and reporting by Inspector                                                         239

Part 11       Confidentiality, consultation and information sharing                                           257

Division 1—Confidentiality requirements                                                                          257

Division 2—Protected information reports                                                                         271

Division 3—National security and related matters                                                              272

Subdivision B—Arrangements relating to intelligence agencies and the IGIS                     278

Part 12       Administrative provisions for the National Anti-Corruption Commission              283

Division 1—Appointment of the NACC Commissioners                                                    283

Division 2—The CEO, staff etc. and authorised officers                                                    288

Subdivision A—Appointment and functions of the CEO                                                   288

Subdivision B—Staff and consultants etc.                                                                          292

Subdivision C—Authorised officers                                                                                   293

Division 3—Immunities of staff members of the NACC                                                    295

Division 4—Annual report by Commissioner                                                                     295

Part 13       Miscellaneous                                                                                                        298

Division 1—Parliamentary privilege and other protections                                                 298

Division 2—Delegations and review                                                                                   299

Division 4—Instruments under the Act                                                                               301

National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022  303

Preliminary                                                                                                                             303

Schedule 1—Amendments                                                                                                     304

Schedule 2—Application, saving and transitional provisions                                                 343

 


The following abbreviations and acronyms are used throughout this Explanatory Memorandum.

Abbreviation

Definition

AAT

Administrative Appeals Tribunal

AAT Act

Administrative Appeals Tribunal Act 1975

ABC

Australian Broadcasting Corporation

ACIC

Australian Criminal Intelligence Commission (formerly the Australian Crime Commission)

ACLEI

Australian Commission for Law Enforcement Integrity

ADF

Australian Defence Force

ADJR Act

Administrative Decisions (Judicial Review) Act 1977

AFP

Australian Federal Police

AFP Act

Australian Federal Police Act 1979

AML/CTF Act

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

APS

Australian Public Service

ASIO

Australian Security Intelligence Organisation

ASIO Act

Australian Security Intelligence Organisation Act 1979

ASIS

Australian Secret Intelligence Service

ATO

Australian Taxation Office

AUSTRAC

Australian Transaction Reports and Analysis Centre

CDPP

Commonwealth Director of Public Prosecutions

Commissioner

National Anti-Corruption Commissioner

Committee

Parliamentary Joint Committee on the National Anti-Corruption Commission

Consequential Bill

National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022

Criminal Code

The Schedule to the Criminal Code Act 1995

ICCPR

International Covenant on Civil and Political Rights

IGIS

Inspector-General of Intelligence and Security

IGIS Act

Inspector-General of Intelligence and Security Act 1986

Inspector

Inspector of the National Anti-Corruption Commission

IPEA

Independent Parliamentary Expenses Authority

LEIC Act

Law Enforcement Integrity Commissioner Act 2006

NACC

National Anti-Corruption Commission

NACC Bill

National Anti-Corruption Commission Bill 2022

PGPA Act

Public Governance, Performance and Accountability Act 2013

PGPA Rule

Public Governance, Performance and Accountability Rule 2014

PID

Public interest disclosure

PID Act

Public Interest Disclosure Act 2013

POC Act

Proceeds of Crime Act 2002

SBS

Special Broadcasting Service Corporation

SD Act

Surveillance Devices Act 2004

SES

Senior Executive Service

TIA Act

Telecommunications (Interception and Access) Act 1979

 


GENERAL OUTLINE

The NACC Bill would create a new Commonwealth anti-corruption agency, the National Anti‑Corruption Commission. The NACC would be an independent agency that would investigate and report on serious or systemic corruption in the Commonwealth public sector, refer evidence of criminal corrupt conduct for prosecution, and undertake education and prevention activities regarding corruption.

The NACC Bill would strengthen corruption prevention across the Commonwealth government, by enabling the NACC to undertake public inquiries and provide advice on corruption risks and vulnerabilities and strategies to address them.

The NACC Bill would establish the Commissioner as the head of the NACC, and provide the Commissioner with broad powers to investigate corruption issues and conduct public inquiries.

The Commissioner’s power to deal with corruption issues will sit within a broader Commonwealth integrity framework. Other Commonwealth bodies and frameworks contribute to Australia’s multi-faceted integrity framework and provide other avenues to deal with and prevent fraud and corruption in the Commonwealth public sector. For example:

       the Auditor-General supports accountability in the Australian Government sector through its audit and assurance functions;

       the Commonwealth Ombudsman, the Inspector-General of Intelligence and Security, the Australian Information Commissioner, the Independent Parliamentary Expenses Authority, and a number of Inspectors-General all fulfil oversight functions;

       the Foreign Influence Transparency Scheme, the Lobbying Code of Conduct, the freedom of information framework, and the National Archives of Australia fulfil a transparency function, providing and promoting public visibility of government decisions and external influence;

       the Commonwealth Fraud Control and Protective Security Policy Frameworks and the Commonwealth Fraud Prevention Centre fulfil a preventative function—the NACC would also have a complementary preventative and educative function;

       the Australian Federal Police is responsible for investigating the most serious and complex cases of fraud against the Commonwealth, in partnership with regulatory agencies, and State, Territory and international law enforcement agencies; and

       courts and tribunals are able to review government decision-making and provide redress where appropriate to persons adversely affected by government decisions.

Structure of the NACC

The NACC would be led by a Commissioner and up to three Deputy Commissioners, and would also be supported by a Chief Executive Officer appointed under the NACC Bill.

The Commissioner and Deputy Commissioners would have security of tenure, involving appointment for a single term of up to five years for the Commissioner and up to two terms of five years for the Deputy Commissioners, with the termination of their appointments generally requiring an address from each House of the Parliament on the grounds of misbehaviour or incapacity.

The NACC Bill would also provide for a requirement for a Parliamentary Joint Committee to oversee the NACC and approve the Government’s nominated appointees for the offices of Commissioner and Deputy Commissioner, as well as the Inspector of the NACC.

Jurisdiction of the NACC and definition of corrupt conduct

The NACC Bill would provide the Commissioner with a broad jurisdiction to investigate Commonwealth Ministers, parliamentarians, persons engaged under the Members of Parliament (Staff) Act 1984, the heads and employees of Commonwealth agencies, government contractors and their employees, members of the Australian Defence Force, statutory office holders and appointees, officers and directors of Commonwealth companies, and people or bodies providing services, exercising powers or performing functions on behalf of the Commonwealth.

The Commissioner would only be able to commence an investigation (whether following a public complaint, agency referral or on their own initiative) in relation to a corruption issue that the Commissioner is of the opinion could involve serious or systemic corrupt conduct. This would include, but would not be limited to, conduct that could constitute a criminal offence—for example, the bribery, abuse of office and related offences contained in Part 7.6 of the Criminal Code.

The NACC Bill would define corrupt conduct to include any conduct of a person (including a public official) that adversely affects, or could adversely affect, the honest or impartial exercise or performance of any public official’s powers, functions or duties. Corrupt conduct would also include any conduct of a public official that:

       constitutes or involves a breach of public trust;

       constitutes, involves, or is engaged in for the purpose of abuse of the person’s office as a public official;

       constitutes or involves the misuse of information acquired in the person’s capacity as a public official; or

       constitutes, involves, or is engaged in for the purpose of corruption of any other kind.

The NACC Bill would enable the Commissioner to investigate serious or systemic corrupt conduct that occurred prior to the NACC’s establishment, the conduct of former public officials while they were public officials, and the misuse of information by a former public official that was acquired by the former public official in the course of their functions or duties as a public official.

Protection for whistleblowers and persons providing information

The NACC Bill would provide protections for persons who refer allegations or information raising corruption issues. This would include criminal offences for taking, or threatening to take, reprisal action that causes detriment to whistleblowers who provide information to the NACC, and immunity from criminal, administrative and civil liability. These protections would complement existing protections under the PID Act for public officials making disclosures.

Referrals

The NACC Bill would create mandatory and voluntary pathways for the referral of corruption issues to the Commissioner. The NACC Bill would define a corruption issue as an issue of whether a person has engaged, is engaging, or will engage in corrupt conduct.

The NACC Bill would allow any person to refer a corruption issue to the Commissioner. Referrals could also occur because of a public interest disclosure under the PID Act.

The NACC Bill would require agency heads and persons with responsibilities under the PID Act to refer information or allegations involving any corrupt conduct that could be serious or systemic to the NACC as soon as reasonably practicable after becoming aware of the information or allegation. Referrals in relation to intelligence agencies could also be made to the IGIS.

Dealing with corruption issues

The Commissioner would be able to deal with a corruption issue in a number of ways: by investigating the issue when the threshold outlined above is met (either by themselves or jointly with another agency), or referring the issue to an appropriate agency for investigation or consideration—for example, back to the agency within which the conduct occurred to conduct an internal investigation or to another independent investigation agency such as the AFP for its consideration.

The NACC Bill would also provide the Commissioner with a preliminary investigation power, allowing the Commissioner to gather information to confirm the existence or nature of a corruption issue, and to support a decision about how to deal with an allegation of corrupt conduct.

If a corruption issue were to be referred for investigation by the agency within which the conduct occurred, the Commissioner would have the ability to:

       oversee the investigation;

       provide directions to the agency regarding the conduct of the investigation;

       retain visibility of the investigation by requesting progress reports and a final report;

       make comments and additional recommendations on a final report;

       follow-up on the agency’s implementation of recommendations; and

       assume responsibility for the investigation where appropriate.

Powers

The Commissioner would be able to exercise a range of powers under the NACC Bill and other legislation to undertake their functions.

The NACC Bill would provide the Commissioner with the power to hold hearings as part of an investigation into a corruption issue or a public inquiry. Hearings would, by default, be held in private. The NACC Bill would provide the Commissioner with the discretion to hold public hearings in relation to an investigation or public inquiry where the Commissioner decides that exceptional circumstances justify holding the hearing in public and it is in the public interest to do so.

The Commissioner would have the ability to compel the production of documents or information, obtain a warrant to enter and search premises, enter certain Commonwealth premises without a search warrant, seize evidence and exercise limited powers of arrest to ensure attendance at a hearing.

The Commissioner would also have covert investigative powers such as telecommunications interception powers and the ability to use surveillance devices, subject to existing thresholds for the use of those powers by law enforcement agencies. These arrangements are provided for in the Consequential Bill.

Reporting

The NACC Bill would include a number of reporting requirements, dealing with the preparation of reports on corruption investigations and public inquiries. The NACC Bill would require the tabling of reports in Parliament where a public hearing has been held in the course of an investigation or inquiry, or public submissions were invited on matters that were the subject of a public inquiry.

The NACC Bill would also allow the Commissioner to publish reports and disclose other information relevant to the NACC, if satisfied it is in the public interest to do so.

The NACC Bill would empower the Commissioner to make findings of fact in reports, including findings of corrupt conduct in investigation reports, but not to make determinations of criminal liability. The Commissioner could refer evidence of alleged criminal conduct to appropriate agencies, such as the Commonwealth Director of Public Prosecutions, for further consideration.

The NACC Bill would contain important safeguards around the protection of sensitive information.

The NACC Bill would also ensure the Commissioner would provide procedural fairness to individuals or agencies that are to be the subject of an adverse finding or opinion. Findings would also be subject to judicial review.

Reputational safeguards

The NACC Bill would balance the Commissioner’s investigatory purpose with the need to protect against undue reputational damage. This would include a public interest test for the Commissioner to investigate a corruption issue that has already been dealt with by another Commonwealth integrity agency. It would also include provision for the Commissioner to clarify the capacity in which a witness appears at a public hearing, or to make a public statement at any time or a statement in a report where that is appropriate to avoid damage to a person’s reputation.

Public inquiries

In addition to dealing with corruption issues, the NACC Bill would also enable the Commissioner to conduct public inquiries into corruption risks, vulnerabilities and measures to prevent corruption in Commonwealth agencies. Public inquiries would focus on broader systemic issues in the Commonwealth public sector rather than a specific corruption issue concerning the conduct of an individual.

The Commissioner would be able to commence a public inquiry on their own initiative and make recommendations for legislative or administrative reform in relation to these inquiries. The Commissioner would be able to exercise powers to invite submissions, hold hearings, and compel the production of documents or information from Commonwealth entities in support of an inquiry.

Oversight of the NACC

The NACC Bill would establish appropriate oversight mechanisms to provide assurance to the Government, the Parliament and the public that the NACC is functioning fairly and effectively. This would include oversight by an independent Inspector and a Parliamentary Joint Committee.

The NACC Bill would provide for the Inspector to be appointed in the same way, and have security of tenure on the same terms, as the Commissioner and Deputy Commissioners. The Inspector would be able to be appointed for up to 10 years to provide consistent oversight across the appointment of multiple Commissioners.

The NACC Bill would confer the Inspector with functions that include the investigation of corruption issues within the NACC and complaints about the conduct of the NACC or its staff. The Inspector would have complete discretion in performing their functions and carrying out their duties.

The NACC Bill would provide for a Parliamentary Joint Committee to oversee the work of the Commissioner, the NACC, and the Inspector. The functions of the Committee would include reviewing and approving the Government’s nominated appointees for the offices of Commissioner, Deputy Commissioner and Inspector. The Committee would also be able to review the sufficiency of the NACC’s budget and staffing levels.

The Consequential Bill

The NACC Bill would be supported by the Consequential Bill, which would amend various Acts to give effect to the NACC.

Schedule 1 to the Consequential Bill would repeal the LEIC Act. That Act established ACLEI, which would transition to become part of the NACC.

Schedule 1 would also make consequential amendments to other Commonwealth laws, including to confer powers on the Commissioner that are currently conferred on ACLEI’s Integrity Commissioner, and to confer on the Commissioner industry assistance powers under Part 15 of the Telecommunications Act 1997.

Schedule 2 to the Consequential Bill would outline the transitional arrangements necessary to support the establishment of the NACC. These arrangements would ensure the effective transition of ACLEI’s existing roles and functions to the NACC.

Date of effect

The NACC Bill and Consequential Bill would generally commence on a single day to be fixed by Proclamation, intended to be in mid-2023. However, if they do not commence within the period of 12 months beginning on the day on which the NACC Bill receives Royal Assent, they would commence on the day after the end of that period.

Provisions concerning the Committee would commence on the day following Royal Assent.

FINANCIAL IMPACT

The Government has committed $262.6 million over four years to support the establishment of the NACC, which will be contained in the 2022-23 Budget.

 


Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Anti-Corruption Commission Bill 2022

1.                       The NACC Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the NACC Bill

2.                       Corruption is a key enabler of serious and organised crime, has the capacity to cause significant harm to individuals, society and the economy, and can undermine Australia’s national security and the community’s confidence in Australia’s institutions.

3.                       The NACC Bill would create a new Commonwealth anti-corruption commission, the NACC. The NACC would be a specialist, centralised investigatory agency that would detect, investigate and report on the most serious or systemic forms of corruption in the Commonwealth public sector.

4.                       The NACC Bill would establish the office of the Commissioner as the head of the NACC. The Commissioner would have significant powers under the NACC Bill and other legislation. The Commissioner would use these powers to investigate corruption issues, conduct corruption inquiries and assemble evidence to support prosecutions. The Commissioner would also have powers to make recommendations for disciplinary or employment actions.

5.                       The NACC Bill would strengthen corruption prevention across the Commonwealth government, by enabling the NACC to undertake public inquiries and provide advice on corruption risks and vulnerabilities and strategies to address them.

6.                       The NACC Bill would ensure appropriate protections are in place to protect the rights and reputations of individuals, and provide robust oversight through the independent Inspector and the Committee, to ensure that the Commissioner is accountable to Parliament.

7.                       In addition to the key role of the Commissioner, the NACC Bill would establish three Deputy Commissioners to assist the Commissioner in the performance of the Commissioner’s functions and any other function conferred on them by the NACC Bill or other legislation.

8.                       The Commissioner’s power to deal with corruption issues will sit within a broader Commonwealth integrity framework and would build on existing anti-corruption arrangements at the Commonwealth level. A number of measures in the NACC Bill would carry over from existing arrangements for ACLEI, as the NACC would subsume ACLEI.

Human rights implications

9.                       The measures in the NACC Bill engage the following human rights contained in the ICCPR:

       the right to an effective remedy contained in article 2(3);

       the right to liberty and security of person in article 9;

       the right to freedom of movement contained in article 12;

       the right to a fair trial and a fair hearing under article 14(1);

       the right to the presumption of innocence under article 14(2);

       the right to minimum guarantees in criminal proceedings under article 14(3);

       the prohibition on interference with privacy, and right to reputation, under article 17;

       the right to freedom of expression under article 19(2).

10.                   The NACC Bill may be perceived to also engage the prohibition against retrospective operation of criminal laws in article 15 of the ICCPR.

11.                   Many measures in the NACC Bill engage human rights in the same way as those discussed in the Explanatory Memorandum to the Law Enforcement Amendment (Powers) Bill 2015, which included powers relating to ACLEI. As the NACC would subsume ACLEI, many powers and measures, including those relating to hearings, warrants, use and disclosure of information and other operational matters, are similarly reflected in the NACC Bill.

The right to an effective remedy contained in article 2(3) of the ICCPR

12.                   Article 2(3) of the ICCPR guarantees the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities. The content of the right also includes an obligation to ensure that the competent authorities enforce such remedies when they are granted.

13.                   This Bill would promote the right to an effective remedy for violations of the rights and freedoms under the ICCPR by ensuring:

       people have access to legal and financial assistance in relation to matters arising under the NACC Bill (clause 280);

       a person who provides information to the NACC for the purposes of this Bill is protected from civil, criminal and administrative liability and reprisal action;

       concurrent investigations can occur; and

       the NACC is subject to oversight.

Legal and financial assistance

14.                   The NACC Bill would promote the right to an effective remedy by allowing persons to access legal and financial assistance in relation to matters arising under, or in relation to, the NACC Bill (clause 280). This financial assistance could be in relation to a person’s representation at a hearing by a legal practitioner, or an application under the ADJR Act (for example, when seeking judicial review of findings made in an investigation report (clause 280)). The statutory enshrinement of legal assistance would promote the right to an effective remedy by ensuring that people who cannot afford to pay their legal costs are not denied an opportunity to access the justice system, as required, to review relevant decisions made under the NACC Bill.

Referrals and protections for disclosers

15.                   Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information. The NACC Bill would promote the right to an effective remedy in relation to article 19(2) by providing a range of protections to persons who provide evidence or information about a corruption issue to the NACC. This would also enhance the effectiveness of the NACC by encouraging people to provide information about corruption issues to the NACC without fear of retribution. Any person who provides information about a corruption issue to the NACC would be afforded immunity from civil, criminal and administrative liability and protection from reprisals or the threat of reprisals (clauses 24 and 30). The NACC Bill would also provide protection from the enforcement of contractual or other remedies against a person due to their NACC disclosure (clause 24).

Concurrent investigations

16.                   The NACC Bill would protect the right to an effective remedy by ensuring that corruption issues can be promptly addressed by either the agency in which it occurred or the NACC. Agencies would be able to continue investigating corruption issues, and taking appropriate action, while the NACC conducts its own investigation into the issue (unless the Commissioner issues a stop action direction under clause 43). This would ensure that a corruption issue could be addressed internally by an agency, notwithstanding that the NACC may be conducting its own parallel investigation into the issue.

17.                   The ability for the Commissioner to issue a stop action direction to an agency would only be available if it is required to ensure the effectiveness of any action the Commissioner has taken in relation to the corruption issue and to prevent an agency’s investigation causing inadvertent prejudice to NACC Bill processes. An agency would also be able to seek the permission of the Commissioner to undertake actions in relation to a corruption issue following a stop action direction (clause 43). In the context of the PID Act, this would mean that PID and NACC Act investigative processes would be able to run concurrently, unless a stop action direction is issued.

Oversight of the NACC

18.                   The NACC Bill would protect the right to an effective remedy by ensuring that the NACC would be overseen by a Parliamentary Joint Committee and an independent Inspector. The oversight arrangements in Part 10 of the NACC Bill would provide assurance that the NACC is performing its functions fairly, effectively, appropriately and independently, and would allow for recommendations to be made to rectify findings of corrupt conduct within the NACC.

19.                   The Inspector would have the ability to investigate complaints, make findings about the conduct of the NACC or its staff and make recommendations to remedy the findings. Any person would be able to refer a NACC corruption issue to the Inspector (clause 202). The Consequential Bill would ensure that the PID Act would also apply for the purpose of making PIDs to the Inspector relating to the NACC (clause 204), meaning protections and remedies provided for disclosers under that Act would also apply to disclosures of NACC corruption issues.

20.                   These oversight mechanisms would operate in addition to the Commonwealth Ombudsman’s oversight of the use of particular coercive powers by the NACC (further details on the oversight of these powers is outlined in the Statement of Compatibility for the Consequential Bill). After the Inspector has conducted an investigation, they would be required to prepare an investigation report setting out their opinion or findings, supporting evidence, and recommendations on how to rectify any opinion or finding of corrupt conduct (clause 215). This oversight role of the Inspector would, therefore, protect the right to an effective remedy.

The right to liberty and security of person contained in article 9 of the ICCPR

21.                   Article 9(1) of the ICCPR provides that everyone has the right to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention. The UN Human Rights Committee has stated that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. Arbitrariness may result from a law which is vague or allows for the exercise of powers in broad circumstances that are not sufficiently defined.

22.                   The NACC Bill would limit the right to liberty and security under Article 9(1) of the ICCPR. This is because it would provide that the Commissioner or the Inspector may:

       arrest a person in relation to their failure to attend a hearing for a corruption investigation (clauses 90 (corruption investigation) and 214 (NACC corruption investigation)), and

       detain a person for the purposes of a contempt in relation to both investigations and inquiries (clauses 85 (corruption investigation), 163 (public inquiries) and 214 (NACC corruption investigation)).

23.                   Limitations on the right to liberty are permitted to the extent that they are ‘in accordance with such procedures as are established by law’, provided that the law and the enforcement of it is not arbitrary, and where they are reasonable, necessary and proportionate to achieve a legitimate objective.

Rational connection to a legitimate objective

24.                   Both the power to arrest and the power to detain limit the right to liberty and security in order to achieve the legitimate objectives of detecting and investigating serious or systemic corrupt conduct—which in turn are necessary to achieve the legitimate objectives of preventing and addressing such conduct, including where appropriate by enabling persons to be prosecuted for serious, criminal corrupt conduct. More specifically, these powers are critical aspects of the Commissioner’s and Inspector’s ability to effectively conduct a hearing in connection with a corruption investigation and, in relation to the power to detain, a public inquiry.

25.                   Conducting hearings would be a key power available to the Commissioner and Inspector. Hearing powers would enable the Commissioner and Inspector to obtain information that would not otherwise be available—including information uniquely within the knowledge of the person being questioned—or could only be obtained after long and complex investigations. Material gathered in hearings would play a key role in furthering investigations of serious or systemic corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

26.                   The power to arrest afforded to the Commissioner and the Inspector is directed to ensure a person attends a hearing in accordance with a summons. The power to arrest a witness where a superior court judge is satisfied that there are reasonable grounds for believing that the witness has failed to attend a hearing, or is likely to attempt to do so—including by leaving Australia, or by absconding or otherwise attempting to evade the service of a summons—for the purpose of bringing them before a superior court with powers to make orders to ensure the witness’s appearance at the hearing, is likely to ensure their attendance at the relevant hearing.

27.                   The power to detain is directed towards bringing a person before a court to be dealt with in relation to an application for contempt. This is important because relying on criminal proceedings alone may mean investigations or inquiries are compromised by the delay in the commencement of court proceedings. Contempt provisions motivate an uncooperative witness to comply with the requirements of a hearing, as the witness is immediately subject to the possibility of being taken into custody before a superior court. The capacity to detain a person in relation to whom the Commissioner or Inspector proposes to make a contempt application will ensure that person attends the court for the hearing of the contempt application, and is likely to ensure that the person complies with any direction given during a hearing.

Not arbitrary; reasonable, necessary and proportionate
The power to arrest with warrant

28.                   The NACC Bill places appropriate limitations on the power to arrest, to ensure that this power is not arbitrary, and is reasonable, necessary and proportionate. The power to arrest would only be able to be exercised in circumstances where the Commissioner or Inspector is of the opinion that the issue could involve corrupt conduct that is serious or systemic (clauses 55 (corruption investigation), 210 (NACC corruption investigation)), and a warrant has been issued by a superior court judge. An authorised officer may only apply to a superior court judge for a warrant to arrest a person in limited circumstances. An application may only be made where:

       the person has been ordered to deliver a travel document to the Commissioner or Inspector and the authorised officer has reasonable grounds to believe that the person is likely to leave Australia for the purpose of avoiding giving evidence at a hearing;

       the person is to be served with a summons and the authorised officer has reasonable grounds to believe that the person has absconded or is likely to abscond, or is otherwise attempting, or likely to attempt, to evade service of the summons; or

       the authorised officer has reasonable grounds to believe that the person has committed an offence of failure to attend a hearing, or is likely to do so.

29.                   The requirement for a warrant ensures that the NACC is required to obtain independent authorisation from a judge to exercise this power. The judge may only issue the warrant if satisfied, on the evidence, that there are reasonable grounds for believing that one of the circumstances outlined above applies. These criteria establish a threshold that would ensure the power to arrest is not arbitrary and only exercised where it may be justified on a reasonable basis, and in circumstances where the exercise of the power is necessary to ensure the Commissioner or Inspector is able to ensure attendance at a hearing.

1.1                   A warrant to arrest a witness would be executed by an authorised officer of the NACC (defined in clause 7 to mean the Commissioner, a Deputy Commissioner or a person appointed under clause 267). Clause 267 seeks to ensure that authorised officers possess skills and experience that reflect the significant and coercive nature of their powers under the NACC Bill. It would only allow the Commissioner to appoint a person to be an authorised officer if the person is:

       a staff member of the NACC who the Commissioner considers has suitable qualifications or experience;

       a staff member of the NACC who is also a member of the AFP;

       a staff member of the NACC who is also a member of the police force or police service of a State or Territory; or

       a member of the AFP.

30.                   Authorised officers who are members of the AFP or a State or Territory police force would be constables. In executing a warrant, an authorised officer who is not a constable would have the same powers and duties as a constable has in arresting a person under Divisions 4 and 5 of Part IAA of the Crimes Act 1914. This would apply a range of safeguards, specifically:

       force used to enter premises must be limited to that which is necessary and reasonable in the circumstances (section 3ZB);

       premises must not be entered between 9pm and 6am for the purposes of an arrest (section 3ZB);

       the officer must not in the course of arresting another person for an offence, use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the person after the arrest (section 3ZC);

       the officer must inform the person of the reason for the arrest (section 3ZD);

       an ordinary or frisk search must, if practicable, be conducted by a person of the same sex as the person being searched (section 3ZR); and

       authorised officers must generally announce that they are authorised to enter premises and give the person at the premises the opportunity to allow entry before entering warrant premises (section 3ZS).

31.                   Following arrest, further statutory limits ensure a person is not detained arbitrarily and only deprived of their liberty to the extent that is reasonable, necessary and proportionate to the objective of conducting a hearing. Clause 92 would require a person arrested to be brought as soon as practicable before a superior court judge to make appropriate orders, which may include release or bail. Where a judge orders that a person should continue to be detained for the purposes of ensuring their appearance at a hearing, the legislation would ensure the person is brought back before the judge within 14 days, or a time affixed by the judge. This would ensure that a person is not held in arbitrary or indefinite detention due to a failure to act on the part of the NACC.

The power to detain

32.                   The Commissioner or Inspector may only direct that a person be detained (clause 85):

       where they propose to make an application to a court for that person to be dealt with for contempt of the NACC or the Inspector; and

       for the purpose of bringing the person before the court for the hearing of the application.

33.                   Clause 82 would set out the circumstances in which a person would be in contempt. These circumstances would include where the person:

       having been summonsed to attend a hearing:

      fails to attend as required by the summons;

      fails to appear and report from day to day unless excused or released from further attendance by the Commissioner;

      refuses or fails to take an oath or make an affirmation at the hearing;

      refuses or fails to answer a question at the hearing that the Commissioner requires the person to answer; or

      refuses or fails to give information or produce a document or thing, at a hearing as required (whether by a summons or by the Commissioner under clause 65); or

       is a legal practitioner who refuses, at a hearing, to give the Commissioner the name and address of a person in accordance with clause 115;

       gives evidence or information, or produces a document, at a hearing (whether required by a summons or by the Commissioner under clause 65) that the person knows is false or misleading in a material particular;

       insults, disturbs or uses insulting language towards someone who the person knows is a NACC Commissioner and who is holding a hearing in the performance of the NACC Commissioner’s functions, or the exercise of the NACC Commissioner’s powers;

       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;

       obstructs or hinders a staff member of the NACC in the performance or exercise of the staff member’s functions, powers or duties in connection with a hearing;

       disrupts a hearing; or

       threatens a person present at a hearing.

34.                   The nature of contempt, in this context, is focused on conduct that would prevent, hinder or disrupt the effective conduct of a hearing. The Commissioner or Inspector would only be permitted to direct that a person be detained where the Commissioner or Inspector propose to make an application to a court for that person to be dealt with for contempt. This would require the Commissioner or Inspector to turn their mind to the application for contempt before exercising the power to detain, which would limit the use of the power to circumstances in which a person is preventing, hindering or disrupting the effective conduct of a hearing in one or more of the ways set out in clause 82. This threshold ensures the power to detain is only exercised in circumstances where it is reasonable and necessary to ensure the effective conduct of a hearing.

35.                   Furthermore, the Commissioner would be required to apply and bring the person before the court as soon as practicable, so that appropriate orders may be made. This would ensure the NACC’s power to detain is proportionate to the objective of conducting a hearing, subject to scrutiny by a court immediately following its use. It would also prevent the possibility of arbitrary or indefinite detention. The NACC Bill will explicitly permit the court to make orders for the person’s continued detention, but only until the application for contempt is determined. The court may also grant the person’s release on conditional terms, including the surrender of travel documents. In effect, this would ensure the court turns its mind to whether there is a less restrictive alternative to detention that could achieve the stated objective of ensuring that a person is dealt with appropriately.

36.                   Where the Commissioner withdraws a contempt application, and a person is detained, the legislation would require the person be released immediately (clause 86). This affirms the rational connection between the exercise of the power and its legitimate objective, and ensures the power is not arbitrary and only exercised where necessary and proportionate to achieving that objective.

The right to freedom of movement contained in article 12 of the ICCPR

37.                   Articles 12 and 13 of the ICCPR protect the right to freedom of movement. They provide that anyone lawfully in a State shall have the right to liberty of movement and that everyone shall be free to leave any country, including their own and enter any country of which they are a citizen. Governments have a duty to ensure that a person’s freedom of movement is not unduly restricted.

38.                   The NACC Bill would limit the right to freedom of movement under article 12(2) of the ICCPR. This is because it would provide that the Commissioner or the Inspector may:

       summon a person to attend a hearing to give evidence, information, documents and things (clauses 63 (corruption investigations), 163 (public inquiries) and 214 (NACC corruption issue investigations by Inspector)); and

       make an application to a court to have a person surrender an Australian travel document or any other passport or travel document that has been issued by another government (clauses 88 (corruption investigations) and 214 (NACC corruption issue investigations by Inspector)).

39.                   Article 12(3) provides that the right to freedom of movement may be limited where the limitation is for a legitimate objective, is lawful, and is necessary to protect national security, public order, public health or morals, or the rights and freedom of others.

Summoning a person to attend a hearing
Rational connection to a legitimate objective

40.                   The ability for the Commissioner and Inspector to summon a person to a hearing at a particular time and place would serve the legitimate objectives of:

       facilitating the investigation of a corruption issue or a NACC corruption issue that could involve corrupt conduct that is serious or systemic;

       facilitating the investigation of a complaint about the NACC; and

       facilitating the inquiry into corruption risks and vulnerabilities in Commonwealth agencies and measures to prevent corruption in Commonwealth agencies.

41.                   Hearings would be a key power available to the Commissioner and Inspector. Hearing powers would enable the Commissioner and Inspector to obtain information that would not otherwise be available—including information uniquely within the knowledge of the person being questioned—or could only be obtained after long and complex investigations. Material gathered in hearings would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

42.                   Limiting a witness’s freedom of movement by requiring them to attend a hearing at a particular time and place to give evidence would ensure the Commissioner or Inspector can obtain material relevant to a corruption investigation or an investigation by the Inspector, or to corruption risks and vulnerabilities in Commonwealth agencies and measures to prevent corruption in Commonwealth agencies, while an investigation or inquiry is underway and at a time when it will be useful to that investigation or inquiry. A summons would be likely to be effective in ensuring attendance as failing to comply will constitute an offence that carries a maximum penalty of two years imprisonment.

Reasonable, necessary and proportionate

43.                   Limitations on a person’s freedom of movement in appropriate circumstances are necessary to ensure the effectiveness of an investigation or public inquiry. The power to require a person to attend a hearing would be proportionate and subject to reasonable limitations and safeguards.

44.                   The Commissioner or Inspector may only summon a person to attend a hearing if they have reasonable grounds to suspect that the person has evidence relevant to a corruption investigation, a NACC corruption investigation or a public inquiry. Where post-charge and post-confiscation application summonses are available (for corruption investigations and NACC corruption investigations), an additional threshold applies to the issue of such summonses. The Commissioner or Inspector must also have reasonable grounds to suspect that the evidence is necessary for the purposes of the investigation even though the person has been charged or the confiscation proceeding has commenced, or that charge or proceeding is imminent.

45.                   The power to summon a person to attend a hearing at a particular time and place is reasonable, necessary and proportionate to ensure that hearings can be conducted in an efficient and effective manner—or at all. Conducting a hearing would be a substantial undertaking, requiring:

       significant planning and preparation, including by the Commissioner or Inspector, and counsel assisting;

       complex logistical and security arrangements, to ensure an appropriate hearing room is available for the duration of the planned hearing, relevant investigators, subject-matter experts and support staff are in attendance, and that physical security arrangements are in place; and

       coordination with external parties, including ensuring the availability of the witness’s legal representative, and any third party or legal representative approved to attend the hearing.

46.                   The power to summon a person to attend a hearing at a particular time and place would enable the Commissioner or Inspector to begin planning and preparations for a hearing, from the foundation of a fixed time and place for that hearing to be conducted. The Commissioner or Inspector may only require the production of information, documents and things under a summons if also requiring the person to give evidence. Information, documents and things would otherwise be required under a notice to produce, which would not limit the person’s freedom of movement.

47.                   A person would be excused from, or released from further attendance at, a hearing once the Commissioner or Inspector is satisfied they have provided all relevant evidence.

Requiring a person to deliver travel documents
Rational connection to a legitimate objective

48.                   The ability for the Commissioner and Inspector to apply to a Judge of the Federal Court for an order that a person deliver a travel document would serve the legitimate objective of ensuring the person’s attendance at a hearing into a corruption issue or NACC corruption issue that could involve corrupt conduct that is serious or systemic. Limiting a person’s movement in this way is likely to achieve the objective of ensuring they do not leave Australia in order to avoid giving evidence, as such documents are required for international travel.

49.                   Hearings would be a key power available to the Commissioner and Inspector. Hearing powers would enable the Commissioner and Inspector to obtain information that would not otherwise be available—including information that is uniquely within the knowledge of the person being questioned—or could only be obtained after long and complex investigations. Material gathered in hearings would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

Reasonable, necessary and proportionate

50.                   Limitations on a person’s freedom of movement would only occur in appropriate circumstances, where it is necessary for the effective investigation into a corruption issue or NACC corruption issue that could involve corrupt conduct that is serious or systemic. The power to require travel documents to be held by the Commissioner or Inspector would be subject to safeguards and reasonable limitations.

51.                   The Commissioner or Inspector may only apply for an order that a person deliver a travel document in limited circumstances. An application may only be made where:

       a summons has been issued requiring the person to attend a hearing, or the person has appeared at a hearing to give evidence or to produce documents or things;

       there are reasonable grounds to believe that the person may be able to give evidence, or further evidence, that is relevant to the corruption investigation concerned, or to produce documents or things, or further documents or things, that are relevant to the investigation concerned; and

       there are reasonable grounds to suspect that the person has a travel document and intends to leave Australia.

52.                   If a Judge of the Federal Court is satisfied that the above thresholds are met, they may require the person to attend court and request the person to show cause why the person should not be ordered to deliver the travel document to the Commissioner or Inspector. This will provide the person an opportunity to argue against such an order being made.

53.                   The Court may, if it thinks fit, order that a person deliver a travel document to the Commissioner or Inspector and authorise the Commissioner or Inspector to retain it. Retention will only be permitted for a limited period of up to one month, extendable by the Court by up to one month at a time to a maximum of three months.

54.                   The person may apply to the Federal Court for an order authorising the Commissioner or Inspector to retain a travel document to be revoked. If the Federal Court revokes the order, the Commissioner must return the travel document to the person immediately.

The right to a fair trial contained in article 14(1) of the ICCPR

55.                   Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, and public hearing in civil proceedings. It provides that all persons shall be equal before the courts and tribunals, and, in the determination of criminal charges, or any suit at law, the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

56.                   The NACC Bill would limit the right to a fair trial under article 14(1) of the ICCPR by:

       abrogating legal professional privilege when a person is giving an answer or information, or producing a document or thing, under a notice to produce or at a hearing (clause 114);

       providing for post‑charge and post‑confiscation application notices to produce (clause 58) and summons (clause 63); and

       allowing post-charge investigation material and post‑charge derivative material to be disclosed (clause 105).

57.                   The NACC Bill would promote and protect the right to a fair trial by ensuring people have access to legal and financial assistance in relation to matters arising under the NACC Bill.

Abrogating legal professional privilege

58.                   Legal professional privilege ensures the confidential nature of the communication between lawyers and their clients and therefore the quality of advice and representation the client receives at trial. Clause 114 would abrogate legal professional privilege in relation to evidence given at a hearing, or material provided in response to a notice to produce under clause 99 (see paragraphs 7.267 to 7.273). The privilege would be abrogated for any person, including a Commonwealth agency or a company. This would limit the right to a fair trial.

59.                   However, the abrogation of legal professional privilege would not apply to advice or a communication relating to a person’s compliance with a notice to produce or attendance (or anticipated attendance) at a hearing (subclause 114(2)). It would also not apply in relation to a communication made for the purposes of, or in the course of, a person’s work as a journalist in a professional capacity (subclause 114(3) and subclause 114(4)).

Rational connection to a legitimate objective

60.                   The abrogation of legal professional privilege in certain contexts, as outlined above and contained in the NACC Bill, would serve the legitimate objective of facilitating the prevention and investigation of corrupt conduct.

61.                   Abrogating legal professional privilege would allow the Commissioner and the Inspector to have access to information that would otherwise be required to be kept confidential. This would enable the Commissioner or the Inspector, as the case may be, to obtain information that could be highly relevant to:

       an investigation into a corruption issue (clause 41) or a NACC corruption issue (clause 214);

       a public inquiry (clause 161); or

       an investigation into a complaint about the NACC (clause 214).

62.                   Material gathered through the abrogation of legal professional privilege would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order. These measures would also ensure that individuals could not use legal professional privilege to frustrate the Commissioner or the Inspector’s ability to conduct thorough and effective investigations or inquiries for the purposes of the NACC Bill.

Reasonable, necessary and proportionate

63.                   The measures in the NACC Bill that abrogate legal professional privilege in certain contexts are reasonable, necessary and proportionate to achieve the legitimate objective of facilitating the effective investigation of corruption issues and NACC corruption issues, conducting a public inquiry, or an investigation into a complaint made about the NACC.

64.                   Legal professional privilege is only abrogated where necessary and in certain limited contexts, in particular for evidence provided at a hearing or pursuant to a notice to produce. If legal professional privilege was not abrogated in these contexts, people engaging in serious or systemic corrupt conduct would be able to prevent the NACC from accessing information that would otherwise enable an investigation or inquiry under the NACC Bill to progress. This could impede the Commissioner or the Inspector’s ability to properly investigate allegations of serious or systemic corruption, which could hamper the public’s confidence in the ability for the NACC and the NACC’s oversight mechanisms to function effectively. For example, the Commissioner may undertake investigations into serious or systemic corrupt conduct relating to procurement or contract management processes. In these situations, there would likely be legal advice relating to contractual issues that would be relevant to the corruption issue. In such circumstances, having access to this legal advice would assist the Commissioner to understand the factors and risks considered by decision-makers.

65.                   The abrogation of legal professional privilege is subject to a number of limitations and safeguards in the NACC Bill, which would ensure that any limitation on the right to a fair trial would be reasonable and proportionate. For example, evidence given at a hearing that would otherwise be subject to legal professional privilege would be required to be given in private (clause 74). Despite a person being required to provide the evidence at a hearing, or comply with the notice to produce, the person would still be able to claim legal professional privilege over the information at a later time in criminal or civil proceedings (subclause 114(5)).

66.                   The abrogation of legal professional privilege would also not apply to advice or a communication relating to a person’s compliance with a notice to produce or attendance (or anticipated attendance) at a hearing (subclause 114(2)). This is appropriate as such advice would relate to compliance with the notice or summons and not the substantial corruption issue. This limit ensures that legal professional privilege is only limited to the extent necessary to achieve the legitimate objective of facilitating the prevention and investigation of corrupt conduct.

67.                   In addition, legal professional privilege would not be abrogated in relation to communications made for the purposes of, or in the course of, a person’s work as a journalist in a professional capacity (subclause 114(3) and subclause 114(4)). This exception upholds the value of a free press by recognising the importance of safeguarding the independence of journalists and protecting their sources. Given the limited circumstances in which this right is engaged, and the fact that a person can still claim legal professional privilege over material at a later time in criminal or civil proceedings, any effect on the right to a fair trial would be reasonable, necessary and proportionate.

Post‑charge and post‑confiscation application notices to produce and summons

68.                   When conducting an investigation into a corruption issue or a NACC corruption issue, the Commissioner or the Inspector would have the power to issue a summons to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (post-charge or post-confiscation application summonses, in clause 63). This measure would limit the right to a fair trial as it would prevent a person from refusing to answer questions in a hearing on the grounds that the answer may incriminate them (this is discussed further in relation to the right to minimum guarantees in criminal proceedings).

69.                   The Commissioner or the Inspector would also be able to issue a notice to produce to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (post-charge or post-confiscation application proceedings, in clause 58). The material, evidence, information, documents or things given or produced by a person at a hearing or in response to a notice would be investigation material under clause 99 (see paragraphs 7.267 to 7.273). This measure would limit the right to a fair trial as it would prevent a person from refusing to provide investigation material where that material may incriminate them (this is also discussed further in relation to the right to minimum guarantees in criminal proceedings).

70.                   In particular, where a hearing occurs or a notice to produce is issued after the person has been charged with an offence (or such a charge is imminent), the answers given or the investigation material produced in that hearing may affect the person’s subsequent trial, particularly if the investigation material is provided to the relevant prosecution pursuant to clause 105, which provides for the disclosure of post-charge investigation material and post-charge derivative material. The requirement to comply with post-charge or post confiscation summonses or applications may require the person to provide a version of events that limits their choices in how to defend charges at trial.

71.                   Subclause 106(4) would provide that a person’s trial for an offence is not unfair merely because the person has been a witness after being charged with the offence or after such charge was imminent.

Rational connection to a legitimate objective

72.                   Authorising the Commissioner or the Inspector to issue a notice to produce or a summons to a person charged with an offence, or facing confiscation proceedings, would mean that the Commissioner or the Inspector, as the case may be, would not be required to wait until the charges or proceedings were resolved before obtaining highly relevant information for the purposes of investigating a corruption issue or a NACC corruption issue. Preventing delay in the conduct of corruption investigations and NACC corruption investigations would serve the legitimate objective of facilitating the timely investigation of corruption issues and NACC corruption issues.

Reasonable, necessary and proportionate

73.                   Limitations on the right to a fair trial are reasonable, necessary and proportionate to achieve the legitimate aim of facilitating the effective investigation of corruption issues and NACC corruption issues, and the NACC Bill contains a number of safeguards and protections.

74.                   Corruption is a key enabler of criminal offences, including serious and organised crimes that attract some of the most serious penalties, such as drug trafficking and the importation of firearms. It is therefore likely that, in some situations, the conduct that the Commissioner would investigate under the NACC Bill (serious or systemic corrupt conduct) would also constitute conduct that forms the basis of a charge for an offence. If the Commissioner or the Inspector were required to wait for the charges or proceedings to be resolved, potentially highly relevant evidence could be lost or investigations delayed significantly. To ensure that the NACC could undertake timely investigations, it is critical that it can receive evidence that may relate to such a charge prior to its resolution. To that end, the measures contained in the NACC Bill which authorise post-charge and post‑confiscation application notices to produce and summons would be necessary to achieve the aim of the NACC Bill to facilitate the investigation and prevention of corruption.

75.                   These measures are reasonable as they would allow the Commissioner and the Inspector to conduct effective investigations into corruption issues and NACC corruption issues that may involve corrupt conduct that is serious or systemic. Without the ability to issue a post‑charge or post‑confiscation application notice to produce or summons, the Commissioner or the Inspector would have to obtain information or question a witness either before they are charged (which may alert them to law enforcement interest in their activities), or wait until all charges against the witness have been resolved, undermining the effective and timely investigation of corruption issues and NACC corruption issues.

76.                   These measures are proportionate, as a post‑charge or post‑confiscation application notice to produce or summons could only be issued if the Commissioner or the Inspector had reasonable grounds to suspect the investigation material was necessary for the purposes of the investigation despite the person having been charged, the confiscation proceeding having commenced, or the charge or proceeding being imminent (see subclauses 58(4) and 63(3)).

77.                   This is a higher threshold than the test for an ordinary notice to produce or summons, which requires that the Commissioner or Inspector has reasonable grounds to suspect that a person has information, or a document or thing, relevant to a corruption investigation. This provides assurance that the Commissioner and the Inspector would be exercising their powers for a proper purpose and that, in deciding to issue the notice or summons, the Commissioner or the Inspector has paid due regard to the fact that the person has been charged with an offence or is the subject of confiscation proceedings. This ensures that material obtained by a notice to produce or at a hearing is intended to serve the purpose of a corruption investigation or a NACC corruption investigation, and not to bolster the prosecution of a witness to whom the notice or summons was issued.

78.                   The NACC Bill would contain safeguards to mitigate the prejudice that any post-charge or post‑confiscation application notice to produce or hearing may cause to a witness’s right to a fair trial. These would include:

       the obligation on the Commissioner or the Inspector to include a non‑disclosure notation in a notice to produce or a private hearing summons if they are satisfied that not doing so would reasonably be expected to prejudice a person’s fair trial, if the person has been charged with an offence or such a charge is imminent (subclause 96(1));

       limits on the disclosure of investigation material to a prosecutor of a person post-charge (clause 105) – specifically, such investigation material could only be disclosed to a prosecutor with a court order, where the court is satisfied that it is in the interests of justice to do so (subclause 106(1));

       the restrictions on the disclosure of sensitive information, including that evidence at a hearing must be given in private if it would disclose sensitive information (paragraph 74(b)(iii)), and the definition of sensitive information includes ‘information that would prejudice the fair trial of any person or the impartial adjudication of any matter’;

       the obligation on the Commissioner or the Inspector, as the case may be, to give a direction about the use and disclosure of material obtained during an investigation, if they are satisfied that failure to give such a direction would reasonably be expected to prejudice a witness’s fair trial, if the witness has been charged with a relevant offence or such a charge is imminent (clause 77); and

       inclusion of an offence where a staff member of the NACC, the Inspector or a person assisting the Inspector discloses information received in the course of performing their duties that they are not otherwise authorised to disclose (see clause 228).

Disclosure of post-charge investigation material and post-charge derivative material

79.                   The NACC Bill would authorise the disclosure of investigation material and derivative material (including material obtained directly or indirectly from investigation material, see clause 133) to a prosecutor of the witness who provided the investigation material, and its use in evidence against that person (subject to the rules of evidence and procedure) (see clause 105). This provision would limit the right to a fair trial as it may impact on the principle of ‘equality of arms’, which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings. The disclosure and use of derivative material in this way may limit the options of a person in their defence at trial.

Rational connection to a legitimate objective

80.                   The measures in the NACC Bill that would authorise the disclosure and use of investigation material and derivative material are necessary to achieve the legitimate objective of facilitating the investigation and prosecution of criminal offences. The measures would support this objective by ensuring that material obtained through the NACC’s investigations can be used to disrupt and prevent serious harm to the community, including by prosecuting persons who have been witnesses and who may have also engaged in criminal conduct.

81.                   The effective prosecution of people who have been subject to NACC’s investigations, or witnesses in NACC investigations is crucial to enabling the NACC to fulfil its statutory functions and ensure public confidence in its effectiveness. The measures would ensure that prosecutors of witnesses in NACC investigations are given access to all the necessary information to conduct an effective criminal trial. Similarly, the disclosure of these materials to an agency like the AFP would assist in the investigation and prosecution of criminal offences. Without the use of these materials, the success of these investigations and prosecutions would be significantly hindered.

Reasonable, necessary and proportionate

82.                   These measures are reasonable, necessary and proportionate to achieve the legitimate objective of facilitating the investigation and prosecution of criminal offences. Without all relevant information, an investigating or prosecuting agency may not be able to perform their functions as effectively, thus inhibiting the enforcement of the criminal law. The disclosure and use of this material would be subject to a number of limitations in the NACC Bill, which would ensure that any limitation of the right to a fair trial would be proportionate.

83.                   The material referred to would only be able to be disclosed to a prosecutor of the witness pursuant to a court order (clause 105). Under clause 106, a court would be able to order disclosure of the investigative or derivative material to the prosecutor of a witness, if it was satisfied that disclosure was in the interests of justice, and despite any direction under clause 100. The court could specify who could receive the material, and would be able to place limits on the use of the material. A court order would also be required for the post‑charge disclosure of pre‑charge investigation material (not derivative material) to the prosecutor of the witness (clause 105). This safeguard reflects the fact that a witness during a corruption investigation or a NACC corruption investigation would not be able to rely on the privilege against self‑incrimination to refuse to answer questions or produce documents or things during a hearing, or in compliance with a notice to produce (clause 113).

84.                   Any disclosure of this material to persons other than a prosecutor of a witness, would be subject to any direction imposed by the Commissioner or the Inspector under clause 100. This would give the Commissioner and the Inspector the discretion to specify who the information could be disclosed to, who the information could be used by, and on what conditions. The Commissioner or the Inspector could not vary a direction under clause 100 if a witness is charged with a relevant offence, or such a charge was imminent, and they were satisfied that the variation or revocation would reasonably be expected to prejudice the witness’s fair trial.

85.                   As a further general safeguard against disclosure of derivative material, a staff member of the NACC, the Inspector or a person assisting the Inspector would commit an offence if they disclose information received in the course of their duties that they are not otherwise authorised to disclose (see clause 228).

Legal and financial assistance

86.                   The NACC Bill would promote the right to a fair trial by allowing persons to access legal and financial assistance in relation to matters arising under, or in relation to, the NACC Bill (clause 280). This financial assistance could be in relation to a person’s representation at a hearing by a legal practitioner, an application under the ADJR Act, or any other matter arising under, or in relation to, the NACC Bill. The statutory enshrinement of legal assistance would promote the right to a fair trial as it would ensure that people who cannot afford to pay their legal costs are not denied an opportunity to access fair representation at a hearing or denied an opportunity to review a decision made under the NACC Bill.

The right to the presumption of innocence contained in article 14(2) of the ICCPR

87.                   Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

88.                   The NACC Bill would limit the right to the presumption of innocence under article 14(2) of the ICCPR. This is because it would:

       place a reversed evidential burden on defendants with respect to certain offences; and

       impose strict liability for certain offences.

89.                   Limitations on the right to be presumed innocent must be reasonable, necessary and proportionate to achieve a legitimate objective.

Offences containing a reversed evidential burden

90.                   Offences that contain a ‘reversed evidential burden’ in the NACC Bill may amount to a limitation on the right to be presumed innocent. This includes provisions where an evidential burden is created by expressing a matter to be a defence or exception to an offence or providing that the defendant must prove the matter. Reversing the evidential burden in this way may limit article 14(2), as a defendant's failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt. However, under international human rights law, a ‘reversed evidential burden’ will not necessarily limit the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification.

91.                   The following offences in the NACC Bill contain exemptions that reverse the evidential burden requiring the defendant to prove it was not reasonably practicable to comply with a request to provide information, documents or things, or to provide them within a specified timeframe.

92.                   The Commissioner or Inspector may require a person to give material relevant to an investigation to the Commissioner or Inspector (clause 58). Clause 60 creates an offence for failing to comply with a notice to produce issued by the Commissioner (or Inspector as applied by clause 214) within the time specified. An exception exists if it was not reasonably practicable to comply within the time specified, for which the defendant bears the evidential burden.

93.                   The Commissioner or Inspector may require a witness to produce material relevant to an investigation at a hearing (clause 65 and 214). Clause 69 creates an offence for failing to produce this material. An exception exists if it was not reasonably practicable for the person to give the information or produce the document or thing, for which the defendant would bear the evidential burden.

94.                   The following offences in the NACC Bill also contain exemptions that reverse the evidential burden, requiring a defendant to prove that information alleged to be false or misleading is not false or misleading in a material particular.

       Clause 61 creates an offence for providing false or misleading information, or omitting a matter or thing without which the information given is false or misleading, in response to a notice to produce issued under clause 58. An exception to the offence exists if the information or document was not false or misleading in a material particular, for which the defendant would bear the evidential burden; and

       Clause 71, creates an offence for giving false or misleading evidence, information or documents at a hearing when required by the Commissioner or Inspector to give information or documents at a hearing under clause 65. An exception exists if the evidence, information or documents were not false or misleading in a material particular, for which the defendant would bear the evidential burden.

95.                   The following offences in the NACC Bill would require a defendant to prove that they recorded or disclosed protected information under certain specified circumstances.

       Clause 84 would establish an offence for disclosing information in contravention of a non disclosure notation attached to a notice to produce issued by the Commissioner or Inspector under clause 58, or a summons to attend a private hearing issued under clause 63. An exception to the offence would apply if the defendant could prove that:

      the disclosure was made in the circumstances, if any, permitted by the notation;

      to a legal practitioner for the purposes of obtaining legal advice or representation in relation to the notice or summons;

      to a legal aid officer for the purpose of seeking assistance in relation to the notice, summons or another matter arising under the NACC Bill;

      if the person is a body corporate – to an officer or agent for the purpose of ensuring compliance with the notice or summons;

      if the person is a legal practitioner – for the purpose of obtaining the agreement of another person to the legal practitioner disclosing advice or communication, or to give legal advice to or make representations on behalf of, the person on whom the notice or summons was served; or

      after the information had already been lawfully published.

       Clause 228 would establish an offence for the Commissioner, NACC staff members, the Inspector, and persons assisting the Inspector (authorised officer) to make a record of, or disclose, any information obtained in the course of being an entrusted person or in the course of performing their duties under the NACC Bill. An exception would exist if the defendant could prove that they were permitted or authorised to disclose or record the information under clauses 229 and 230.

       Clause 234 would establish an offence for disclosing the whole or part of a protected information report. An exception would exist if the defendant could prove that the disclosure was authorised under clauses 229 and 230.

       Under clause 268, a defendant who is a former authorised officer would bear the burden of proving their identity card had in fact been lost or destroyed. This defence would apply to the offence for a person who ceases to be an authorised officer to fail to return their identity card to the Commissioner or Inspector within 14 days after ceasing to be an authorised officer.

Rational connection to a legitimate objective

96.                   The reversed evidential burden provisions requiring the defendant to prove it was not reasonably practicable for them to comply with a request to produce a document or thing (in clauses 60 and 69) and to prove information was not false or misleading in a material particular (in clauses 61 and 71), serve the legitimate objectives of facilitating the provision of timely and accurate information to the NACC. For the purposes of the Inspector, the reversed evidential burden provisions will similarly facilitate investigation of a complaint about the NACC or a NACC corruption issue. These provisions will support the NACC or Inspector to:

       investigate a corruption issue or NACC corruption issue that could involve conduct that is serious or systemic; and

       conduct inquiries into corruption risks and vulnerabilities in Commonwealth agencies.

97.                   Clauses 60 and 69 serve the legitimate objective of ensuring NACC and Inspector investigations are timely. If a person bears the burden of proving that it was not reasonably practicable for them to comply with a notice to produce (per the offence in clause 60) or a summons to attend a hearing (per the offence in clause 69), then they are more likely to comply with the notice or summons within the specified timeframe.

98.                   Clauses 61 and 71 serve the legitimate objective of ensuring NACC and Inspector investigations are accurate, because if a person must prove that material they provided, that is alleged to be false or misleading, was not false or misleading in a material particular, they are more likely to take care to ensure the information they provide in response to a notice to produce (per the offence in clause 61) or at a hearing (per the offence in clause 71) is complete and truthful.

99.                   The reversed evidential burden provisions in clauses 84, 228 and 234 requiring a defendant to prove that their alleged unlawful recording or disclosure of sensitive information was in fact permitted or authorised serve the legitimate objective of:

       preventing the disclosure of sensitive information that could, for example, harm or prejudice Australia’s national security, international relations, criminal proceedings, and the safety and privacy of individuals; and

       preventing the disclosure of information that could prejudice a NACC or Inspector’s investigation or inquiry.

100.               Requiring a defendant to prove that an alleged unlawful recording or disclosure of sensitive information was in fact permitted or authorised would put persons subject to non-disclosure obligations on notice to ensure they only disclose protected information if they have appropriate authorisation. This is likely to encourage persons subject to non-disclosure obligations to properly apprise themselves of when a recording or disclosure is or is not permitted under the NACC Bill. This would reduce the risk of harm or prejudice to Australia’s national security, international relations, criminal proceedings, and the safety and privacy of individuals.

101.               The reversed evidential burden provision requiring a defendant to prove an identity card had been lost or destroyed is likely to encourage a former authorised officer to take care not to lose or destroy their card in order to return it to the Commissioner or Inspector as and when required. Compliance with this provision would serve the legitimate objective of ensuring the security and integrity of the NACC and Inspector’s investigation processes and preventing investigation powers from being exercised without proper authorisation.

Reasonable, necessary and proportionate

102.               It is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant. For example, a defendant is best-placed to give evidence that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe (see the defences in clauses 58 and 69). Similarly, a defendant is best placed to produce regarding the circumstances in which they made a particular record or disclosure (clauses 84, 228 and 234), or circumstances in which an identity card was lost or stolen (clause 268).

103.               Reversed evidential burden provisions are proportionate because, consistent with section 13.3 of the Criminal Code, this burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that a particular matter exists or does not exist. It does not require the defendant to prove those matters beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will also be required to disprove those matters beyond reasonable doubt. The reversed evidential burden provisions established in the NACC Bill also create offence-specific defences that operate in addition to, not instead of, the general defences available at criminal law.

Strict liability

104.               The effect of applying strict liability to an offence, or an element of an offence, is that no fault element needs to be proved. The application of strict liability may limit the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant for that particular element. Strict liability provisions will not violate the presumption of innocence so long as they are reasonable in the circumstances, and maintain rights of defence.

105.               There are a number of provisions in the NACC Bill that would apply strict liability to offences, or elements of offences, and these provisions may limit the right to a presumption of innocence.

       Clause 84 would make it an offence to disclose information about a notice or summons that included a non-disclosure notation where the notation had not been cancelled. Strict liability would apply to whether the notation had not been cancelled.

       Clause 101 would make it an offence to use or disclose investigation material in contravention of a direction under clause 100, and the use or disclosure was not authorised by or under the NACC Bill. Strict liability would apply to whether the use or disclosure was not authorised by or under the NACC Bill.

       Subclause 268(7) would make it an offence for a former authorised officer to fail to hand in their identity card within 14 days after ceasing to be an authorised officer. The entire offence would be an offence of strict liability.

Rational connection to a legitimate objective

106.               The strict liability elements of the offences in clauses 84 and 101 serve the legitimate objective of:

       preventing the disclosure of sensitive information that could, for example, harm or prejudice Australia’s national security, international relations, criminal proceedings, and the safety and privacy of individuals; and

       preventing the disclosure of information that could prejudice a NACC or Inspector’s investigation or inquiry.

107.               Applying strict liability to the elements of the offences in clauses 84 and 101 that relate to whether a disclosure was authorised is likely to put persons subject to non-disclosure obligations on notice as to when and under what circumstances they may disclose certain classes of information, and when such disclosure is prohibited. This reduces the risk of unauthorised disclosures that may prejudice Australia’s national security, international relations, criminal proceedings, safety and privacy, or investigations or inquiries by the Commissioner or Inspector.

108.               The strict liability offence in clause 268 serves the legitimate objective of preventing investigation powers from being used without proper authorisation. The strict liability offence in clause 268 would reduce this risk by requiring authorised officers to promptly return their identification should they cease to be an authorised officer.

Reasonable, necessary and proportionate

109.               The application of strict liability elements in the offences outlined above is reasonable and necessary to ensure that a person cannot avoid criminal responsibility because they were unaware of certain circumstances, for example that the disclosure of certain information was unauthorised by the NACC Bill. Requiring knowledge of such an element in these circumstances would undermine the deterrent effect of the offence. There are also legitimate grounds for penalising a person’s lacking ‘fault’ in these circumstances because it would put persons on notice to guard against the possibility of a contravention, for example, by properly apprising themselves of the circumstances in which disclosure is or is not authorised under the NACC Bill. These provisions would also reflect the likely serious consequences resulting from a breach of the offences.

110.               The general defence of mistake of fact as set out in section 9.2 of the Criminal Code would also remain available. This defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

       at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

        had those facts existed, the conduct would not have constituted an offence.

111.               The strict liability measures under clauses 84 and 101 are proportionate as they only apply to elements of the offence and not to the offences as a whole. In this respect, the prosecution will still be required to prove, beyond a reasonable doubt, all other elements of the offence including the fault elements of intention or recklessness.

112.               The strict liability offence under clause 268 is proportionate because while strict liability applies to all its elements, it could only be committed by someone who has been an authorised officer of the NACC or Inspector, and has received specific training and guidance about the appropriate exercise of their powers. It could not be committed by a member of the public. The offence would carry a maximum penalty of 60 penalty units, which reflects the possible risk of serious consequences resulting from a breach of this provision. Strict liability would significantly enhance the deterrent effect, which will put authorised officers on notice to guard against the possibility of contravention.

The right to minimum guarantees in criminal proceedings contained in article 14(3)(g) of the ICCPR

113.               Article 14(3)(g) of the ICCPR sets out minimum guarantees in criminal proceedings. This includes the right to be free from self-incrimination, in that a person may not be compelled to testify against him or herself to confess guilt. Provisions which abrogate the privilege against self-incrimination engage article 14(3)(g) of the ICCPR.

114.               The following measures in the NACC Bill would limit this right:

       authorising the use of self-incriminatory hearing material, and notice material, in certain criminal proceedings (clause 113); and

       the measures which authorise the derivative use of self-incriminatory hearing material.

115.               A further measure to modify the circumstances in which self-incriminatory hearing or notice material may be used in confiscation proceedings does not limit this right, however, discussion about the relationship between this measure and the privilege against self-incrimination is included below.

116.               However, the authorisation to use self-incriminatory material (including derivative material) is appropriately limited as to only abrogate the right to be free from self-incrimination to the extent reasonable, necessary, and proportionate to achieve the legitimate objective of facilitating the effective investigation of conduct that is serious or systemic.

117.               In the course of conducting an investigation of a corruption issue or a NACC corruption issue the Commissioner or the Inspector would have the power to issue a summons to attend a hearing to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (post-charge or post-confiscation application summonses). The Commissioner or the Inspector would also be able to issue a notice to produce information, documents or things to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (post-charge or post-confiscation application proceedings). The material, evidence, information, documents or things given or produced by a person at a hearing or in response to a notice would constitute investigation material under clause 99 (see paragraphs 7.267 to 7.273).

118.               The investigation materials obtained through this process may include self-incriminatory materials, which could then also be used in subsequent criminal proceedings in certain circumstances – abrogating the privilege against self-incrimination.

Circumstances where self-incriminatory investigation material may be used in criminal proceedings

119.               Clause 113 would abrogate the privilege against self-incrimination in the context of giving answers or other material at a hearing or producing material in response to a notice to produce (see paragraphs 7.387 to 7.400). This would be accompanied by a use immunity in relation to criminal proceedings, proceedings for the imposition or recovery of a penalty, and confiscation proceedings (see subclause 113(2)). The application of the use immunity in these circumstances would mean that the self-incriminatory investigation material would not be admissible as evidence in court against the person who provided the material.

120.               However, paragraph 113(3)(b) would provide that the use immunity would not apply to proceedings for offences set out in Table 1:

Table 1—Offences for which use immunity not available

 

Provision

Offence

1

clause 60

Failure to comply with notice to produce

2

Clause 61

Producing false or misleading information or documents in response to a notice to produce

3

Clause 68

Failure to attend a hearing

4

Clause 69

Failure to give information, or produce documents or things at a hearing

5

Clause 70

Destroying documents or things

6

Clause 71

Giving false or misleading evidence, information or documents at a hearing

7

Clause 72

Obstructing or hindering hearings, threatening persons present at a hearing

8

Clause 81

Failure to take an oath, make an affirmation or answer a question at a hearing

9

Clause 98

Failure to comply with non-disclosure notations

10

Clause 101

Improper use or disclosure of investigation material

11

Section 137.1 of the Criminal Code

Giving false or misleading information (in relation to a notice to produce or a hearing)

12

Section 137.2 of the Criminal Code

Giving false or misleading documents (in relation to a notice to produce or a hearing)

13

Section 144.1 of the Criminal Code

Forgery (in relation to a notice to produce or a hearing)

14

Section 145.1 of the Criminal Code

Using forged documents (in relation to a notice to produce or a hearing)

15

Section 149.1 of the Criminal Code

Obstruction of Commonwealth public officials (in relation to the Bill)

Rational connection to a legitimate objective

121.               Authorisation of the use of self-incriminatory investigation material in these limited circumstances is appropriate in order to achieve the legitimate objective of facilitating the effective investigation of a corruption issue or NACC corruption issue that could involve corrupt conduct that is serious or systemic.

122.               The offences exempted from the use immunity listed above are intended to ensure the Commissioner and the Inspector could enforce compliance with a notice to produce or summons to attend a hearing. The ability to enforce compliance with a notice to produce or summons would ensure the material that the Commissioner and the Inspector receives is accurate and reliable. These offences would necessarily depend on evidence about the witness’s compliance (or lack of compliance) with a notice or summons, or their interference with the performance of the Commissioner’s or the Inspector’s functions. Without the ability to admit this material into evidence, the Commissioner or the Inspector would not have an effective method to ensure compliance with these provisions. The material resulting from a hearing or notice to produce in these circumstances would often be a crucial part of proving the offences listed in paragraph 113(3)(b).

Reasonable, necessary and proportionate

123.               The measures authorising the use of self-incriminatory investigation material in these limited circumstances are necessary to ensure the effectiveness of hearings and notices to produce, and the ability of the Commissioner and the Inspector to achieve their objectives. The measures are also reasonable and proportionate and include are subject to the following safeguards:

       a limit on the circumstances in which self-incriminatory investigation material can be used in criminal proceedings (paragraph 113(3)(b));

       limits on the disclosure of investigation material to a prosecutor of a person post-charge (clause 105);

       the obligation on the Commissioner or the Inspector to include a non-disclosure notation in a notice to produce or a private hearing summons in particular circumstances (clause 96);

       the ability of the Commissioner or Inspector to issue a direction in relation to the use or disclosure of investigation material (clause 100);

       the requirement that certain evidence must be given in private, including evidence that would disclose information that, if disclosed, would prejudice the fair trial of any person or the impartial adjudication of a matter (clause 74); and

       a provision making it an offence if a staff member of the NACC, the Inspector or a person assisting the Inspector discloses information received in the course of their duties that they are not otherwise authorised to disclose (clause 228).

124.               The measures would be subject to further safeguards contained in Division 4 of Part 7 of the NACC Bill. These provisions would provide for the use and disclosure of investigation material and place limits on when such material may be disclosed to the prosecutor of a witness. Relevantly, subclause 105(4) would provide that investigation material could only be disclosed post-charge to a person prosecuting the witness for a relevant offence with a court order. The disclosure would be post-charge if the disclosure occurs when the person has been charged with a relevant offence or such a charge is imminent (see clause 130). A court could only authorise such disclosure where the court is satisfied that the disclosure is required in the interests of justice (see subclause 106(1)).

125.               Further, subclause 106(3) would specifically retain a courts’ power to make any order necessary to ensure that the witness’s fair trial is not prejudiced by the possession or use of investigation material or derivative material by a prosecutor of the witness.

126.               There would also be an obligation on the Commissioner or the Inspector to include a non-disclosure notation in a notice to produce or a private hearing summons if they are satisfied that failure to do would reasonably be expected to prejudice a person’s safety or reputation or a person’s fair trial (see paragraphs 7.234 to 7.238). The Commissioner or Inspector also has a discretion to include a non-disclosure notation if satisfied that prejudice might occur or where not doing so might otherwise be contrary to the public interest. A non‑disclosure notation may prohibit the disclosure of information or limit disclosure in specified circumstances.

127.               In addition to non-disclosure notations, the Commissioner or Inspector would also be able to direct that investigation material must not be used or disclosed or may only be used by, or disclosed to, specified persons in specified ways or on specified conditions (subclause 100(1)). Such a direction may be issued in relation to self-incriminatory investigation material.

128.               The disclosure of self-incriminatory investigation material is also generally limited by the requirement in clause 74 to only hear certain evidence in private. This requirement applies where the Commissioner is satisfied that the information is sensitive information, which includes information that would, if disclosed, prejudice the fair trial of any person or the impartial adjudication of a matter.

129.               As a further general safeguard against disclosure of self-incriminatory investigation material, a staff member of the NACC, the Inspector or a person assisting the Inspector would commit an offence if they disclose information received in the course of their duties that they are not otherwise authorised to disclose (see clause 228).

Authorising derivative use of self-incriminatory investigation material

130.               The NACC Bill would provide for the disclosure and use of derivative material (which would include any materials obtained directly or indirectly from investigation material, per clause 133), which could then be used in criminal proceedings against the witness (see clause 105). This would engage the right against self‑incrimination in criminal proceedings by limiting the effectiveness of a person’s ability to claim the privilege against self-incrimination. As noted above, clause 113 would abrogate the privilege against self‑incrimination in the context of giving answers or other material at a hearing or producing material in response to a notice to produce (see paragraphs 7.387 to 7.400). The clause would specifically authorise the disclosure of derivative material to a prosecutor of the witness and its use in evidence against that person (subject to the rules of evidence and procedure). While self-incriminatory investigation material may not itself be admissible against the witness in relation to some offences (due to the use immunity discussed at paragraphs 7.390 to 7.400), material derived from it would be able to be used in the prosecution of the witness.

Rational connection to a legitimate objective

131.               The derivative use of self-incriminatory investigation material is necessary to achieve the legitimate objective of facilitating the investigation and prosecution of criminal offences. Without the use of these materials, the success of these investigations and prosecutions would be significantly hindered. For further explanation, please refer to the discussion under the right to a fair trial.

Reasonable, necessary and proportionate

132.               Notices to produce and hearings both support the Commissioner’s and Inspector’s ability to effectively investigate corruption issues or NACC corruption issues that could involve corrupt conduct that is serious or systemic. While it is appropriate that self-incriminatory hearing and notice material should generally not be admissible against a witness, it is necessary that this material can be provided to the prosecution and used in the further investigation of the person’s activities in this context, for the reasons outlined below. It would also be appropriate that this evidence could be used to find additional evidence to address and prevent serious criminal activity and harm to the community.

133.               The measures to specifically authorise the derivative use of self-incriminatory investigation materials would be subject to the following safeguards:

       limits on the disclosure of investigation material to a prosecutor of a person post-charge (clause 105);

       the obligation on the Commissioner or the Inspector to include a non-disclosure notation in a notice to produce or a private hearing summons in particular circumstances (clause 96);

       the requirement that certain evidence must be given in private, including evidence that would disclose information that, if disclosed, would prejudice the fair trial of any person or the impartial adjudication of a matter (clause 74); and

       a provision making it an offence if a staff member of the NACC, the Inspector or a person assisting the Inspector discloses information received in the course of their duties that they are not otherwise authorised to disclose (clause 228).

134.               There would be limitations on the circumstances in which derivative materials can be disclosed to a prosecutor of that witness. Under subclause 105(4), post-charge derivative material cannot be disclosed to a prosecutor of the witness without a court order. The court may only order the disclosure of post-charge derivative material to a prosecutor if it would be in the interests of justice (see subclause 106(1)). These limitations do not apply to pre-charge derivative material. It would not be appropriate to include a derivative use immunity in these provisions as it would undermine the capacity of the Commissioner to assist in investigation of serious criminal activities. If a derivative use immunity was provided, the prosecution would have to prove the provenance of every piece of evidence in the trial of a person that was the subject of, or a witness in, a NACC investigation before it could be admitted. This requirement could be used to inappropriately delay the resolution of charges against the accused.

135.               It would also not be appropriate to require a person to seek a court order to disclose pre-charge derivative material to a prosecutor after the witness has been charged with an offence. This would allow a witness to challenge every post-charge disclosure of material to a prosecutor and to require proof that the material was not derivative material.

136.               To the extent that there is any prejudice to the examinee or witness’s fair trial resulting from the prosecutor’s possession or use of derivative material, this is more appropriately managed by the court under its existing powers and process. The NACC Bill also specifically preserves a court’s power to make any orders necessary to ensure that the witness’s fair trial is not prejudiced by the possession or use of investigation material or derivative material by a prosecutor of the witness (see clause 106).

137.               The disclosure of a self-incriminatory derivative material would also be limited by the Commissioner or the Inspector obligations to include a non-disclosure notation in a notice to produce or a private hearing summons if they are satisfied that failure to do would reasonably be expected to prejudice a person’s safety or reputation or a person’s fair trial (see paragraphs 7.234 to 7.338). The Commissioner or Inspector also has a discretion to include a non-disclosure notation if satisfied that prejudice might occur or where not doing so might otherwise be contrary to the public interest. A non-disclosure notation may prohibit the disclosure of information or limit disclosure in specified circumstances.

138.               The disclosure of self-incriminatory derivative material is also generally limited by the requirement in clause 74 to only hear certain evidence in private. This requirement applies where the Commissioner is satisfied that the information is sensitive information, which includes information that would, if disclosed, prejudice the fair trial of any person or the impartial adjudication of a matter.

139.               As a further general safeguard against disclosure of self-incriminatory derivative material, a staff member of the NACC, the Inspector or a person assisting the Inspector would commit an offence if they disclose information received in the course of their duties that they are not otherwise authorised to disclose (see clause 228).

Circumstances where self-incriminatory material may be used in confiscation proceedings

140.               The United Nations Human Rights Committee has stated that criminal charges primarily encompass acts that are declared to be punishable under domestic criminal law, but may also extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal. Relevant factors in considering whether charges are criminal include whether proceedings are brought by a public authority, whether there is a punitive element to the process and whether there are potentially serious consequences such as imprisonment.[1]

141.               Confiscation proceedings under the NACC Bill would be a proceeding under the POC Act or a corresponding law within the meaning of that Act (clause 136). Such proceedings are brought by a public authority and have the punishment and deterrence of breaches of Commonwealth law as one of their stated objects. However, proceeds of crime orders imposed via confiscation proceedings cannot create any criminal liability, do not result in any finding of criminal guilt and do not expose people to any criminal sanctions such as imprisonment. As a result, confiscation proceedings are civil proceedings and would not be considered criminal in nature. These measures would therefore not limit the right to minimum guarantees in criminal proceedings contained in article 14(3).

142.               The immunity against the use of self-incriminatory investigation material contained in subclause 113(2) would also not be available in a confiscation proceeding, if the information was given, or the document or thing was produced, at a time when the proceeding had not commenced and was not imminent (unless the court orders otherwise) (see paragraph 7.397). This means that self-incriminatory investigation material obtained in a post-confiscation hearing or in response to a post-confiscation notice to produce would not be admissible in confiscation hearings. However, this material would be admissible in confiscation proceedings against the witness if it was obtained in a pre-confiscation hearing or in response to a pre-confiscation notice to produce.

143.               Further, subclause 109(2) would provide that a person who may lawfully disclose investigation material or derivative material may lawfully disclose that material to a proceeds of crime authority.

144.               Ensuring people who have been a subject of the Commissioner’s and Inspector’s investigations are not able to access the proceeds of their crime is crucial to enabling the Commissioner and Inspector to prevent corrupt conduct and fulfil their statutory functions. Without the use of self-incriminatory pre-confiscation hearing or notice material, the success of the Commissioner’s and Inspector’s ability to prevent the use of proceeds of corrupt conduct would be significantly hindered. The ability to use such material will assist authorities in both investigating the source of individuals’ criminal wealth and in confiscating the profits of their criminal activities. In addition, the measures would be subject to the following safeguards:

       limits on when self-incriminatory investigation material could be admitted into evidence in a confiscation proceeding (subparagraph 113(3)(b)(i));

       the ability of a person or body to disclose investigation material or derivative material to a proceeds of crime authority would be subject to a direction issued by the Commissioner or the Inspector (clause 100);

       a requirement that certain evidence must be given in private, including evidence that would disclose information that, if disclosed, would prejudice the fair trial of any person or the impartial adjudication of a matter (clause 74); and

       a provision making it an offence if a staff member of the NACC, the Inspector or a person assisting the Inspector discloses information received in the course of their duties that they are not otherwise authorised to disclose (clause 228).

145.               Self-incriminatory investigation material would be inadmissible if it came from a post-confiscation application notice or hearing (see subparagraph 113(3)(b)(i)). This material can be used to further the investigation of the witness, but it cannot be used directly to bolster the confiscation proceedings against them.

146.               This reinforces that material obtained by a notice to produce or at a hearing is intended to serve the purpose of a corruption investigation or a NACC corruption investigation, and not to bolster a proceeds of crime authority’s case in confiscation proceedings.

147.               The use and disclosure of self-incriminatory investigation material in relation to confiscation proceedings would be limited by the ability of the Commissioner or Inspector to issue a direction on its use and disclosure (see paragraphs 7.278 to 7.283), the requirement that certain evidence must be given in private (see paragraphs 7.126 to 7.127) and general confidentiality requirements (see paragraph 11.15 to 11.32).

The prohibition against retrospective operation of criminal laws contained in article 15 of the ICCPR

148.               Article 15 of the ICCPR prohibits retrospective criminal laws. Relevantly, it provides that laws must not impose criminal liability for acts or omissions that were not criminal offences at the time they were committed.

149.               The prohibition against retrospective operation of criminal laws is absolute and may never be justifiably limited.

150.               The NACC Bill does not engage the prohibition on the retrospective operation of criminal laws in article 15 of the ICCPR. However, the NACC Bill may be perceived to engage the prohibition against retrospective criminal laws through the definition of corrupt conduct under clause 8.

151.               The definition would enable the Commissioner to investigate past conduct that they consider could involve serious or systemic corrupt conduct, including:

       conduct that occurred prior to the establishment of the NACC (under subclause 8(4));

       conduct of a former public official while they were a public official (under subclause 8(5)); and

       misuse of information by a former public official that was acquired by the former public official in the course of their functions or duties as a public official (under paragraph 8(1)(d)).

152.               While this definition would enable the Commissioner to investigate serious or systemic corrupt conduct that occurred prior to the establishment of the NACC, the Commissioner would only be able to make a finding of corrupt conduct where the conduct in question, at the time it occurred:

       adversely affected the honest or impartial performance by a public official of their powers, functions or duties;

       constituted an abuse of office, breach of trust, or misuse of information obtained in an official capacity; or

       constituted corruption of any other kind.

153.               Further, the definition of corrupt conduct, and the NACC Bill more broadly, would not create any retrospective criminal offences or otherwise impose criminal liability on a person retrospectively. The Commissioner would only be able to conduct a criminal investigation where the conduct in question could have constituted a corruption-related offence at the time it was alleged to have been committed.

154.               The definition of corrupt conduct would enable the NACC to effectively investigate past conduct that is serious or systemic, including criminal conduct where appropriate. Investigating conduct of this kind is critical to ensuring the Australian community has confidence in the integrity and effective administration of public institutions.

The prohibition on interference with privacy contained in article 17 of the ICCPR

155.               Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person’s privacy, family, home and correspondence, and prohibits unlawful attacks on a person’s reputation. The United Nations Human Rights Committee has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

156.               A number of measures in the NACC Bill would limit this right, including:

       powers and mechanisms for the Commissioner and Inspector to obtain information relevant to an investigation or public inquiry;

       information sharing mechanisms allowing for the disclosure of personal information;

       the reporting framework allowing for the publication of personal information; and

       measures designed to promote the right to privacy and protect against undue damage to a person’s reputation.

157.               The right to privacy may be limited where the limitation is lawful and not arbitrary. The use of the term ‘arbitrary’ means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ to imply that any limitation must be proportionate and necessary to achieve a legitimate objective.

Powers and legal mechanisms to obtain information

158.               The NACC Bill engages the right to privacy by providing the Commissioner, Inspector and other authorised officers powers to collect information for the purpose of investigating corruption issues that may involve corrupt conduct that is serious or systemic. Some of these powers could also be exercised:

       by the Commissioner when conducting preliminary investigations (clause 42) and when conducting public inquiries (clause 163); and

       by the Inspector when conducting investigations, or preliminary investigations, into NACC corruption issues and complaints (see clauses 211 and 214).

159.               Table 2 summarises the powers available to the Commissioner and Inspector to obtain information under this Bill. The information that may be obtained by the Commissioner, Inspector or other authorised officers exercising these powers could include personal information, or information subject to the right to privacy.

Table 2—Investigative powers afforded to the Commissioner and the Inspector

 

Commissioner

Inspector

Power

Investigation

Preliminary investigation

Public inquiry

Investigation

Preliminary investigation

Requirement to provide information with referral

Yes

No

Yes

Entry onto Commonwealth premises

Yes

No

No

Yes

No

Search warrant

Yes

No

No

No

No

Power to require agency heads to provide information, documents and things

Yes

Yes

Yes

Yes

Yes

Notice to produce

Yes

Yes

Yes

Yes

Yes

Power to require person to answer questions at hearing

Yes

No

Yes

Yes

No

Rational connection to a legitimate objective

160.               The information-gathering powers that would be granted to the Commissioner by the NACC Bill would be necessary to enable the Commissioner to:

       detect and investigate corruption issues that could involve serious or systemic corrupt conduct involving public officials; and

       inquire into corruption risks and vulnerabilities, and measures to prevent corruption, in Commonwealth agencies.

161.               The information-gathering powers that would be granted to the Inspector by the NACC Bill would be necessary to enable the Inspector to:

       detect and investigate corruption issues that could involve serious or systemic corruption involving staff members of the NACC; and

       investigate complaints made in relation to the conduct or activities of the NACC and its staff members.

162.               The detection and investigation of, and the making of findings and recommendations in relation to serious or systemic corrupt conduct by the Commissioner are legitimate objectives, and would enable action being taken to address such conductincluding the prosecution of, or the taking of disciplinary or administrative action against, public officials and other persons involved in such conduct.

163.               Similarly, the identification of corruption risks and vulnerabilities, and the assessment of the adequacy of measures to prevent corruption in Commonwealth agencies are legitimate objectives, and would enable the making of recommendations for remedial action to address such risks and vulnerabilities—including those that are identified in the course of an investigation.

164.               The need for the Inspector to detect, investigate and address allegations of serious or systemic corrupt conduct, or misconduct more broadly, by staff members of the NACC would be particularly acute. Corruption within, or affecting, the NACC could prejudice anti-corruption investigations across the Commonwealth. Corruption or misconduct by the NACC or its staff could also undermine public and parliamentary trust and confidence in the effectiveness of the Commonwealth’s anti-corruption framework—and, as a consequence, in public administration more broadly. The detection and investigation of such matters are also legitimate objectives.

165.               Persons engaged in serious or systemic corruption often take steps to conceal their conduct, and to create plausibly deniable explanations as to why their conduct was done for a proper purpose. Enabling the Commissioner and Inspector to receive all relevant information would be critical for making findings of fact in relation to corruption issues, identifying risks and vulnerabilities in Commonwealth agencies, and making robust recommendations directed at preventing corruption or mitigating against any adverse consequences of corruption.

166.               The information-gathering powers and mechanisms contained in the NACC Bill that would enable the Commissioner and Inspector to obtain information that would not otherwise be available—including information uniquely within the knowledge of the person being questioned—or could only be obtained after long and complex investigations. Vesting the Commissioner and Inspector with these powers would ensure they can investigate allegations of serious or systemic corrupt conduct, as well as ascertain and expose the circumstances that contribute to serious or systemic corruption within the Commonwealth public sector. Ensuring appropriate powers are available to the Commissioner when conducting public inquiries, and to the Inspector when investigating complaints raised in relation to the NACC, would strengthen the NACC’s broader inquiry and prevention functions and oversight of the NACC.

Reasonable, necessary and proportionate

167.               The information-gathering powers that would be granted to the Commissioner and Inspector under the NACC Bill would be necessary and proportionate to the legitimate objectives outlined above.

168.               It is necessary for the Commissioner to have powers to gather information to support their investigation and inquiry functions, and for the Inspector to have such powers to support their investigation functions through the gathering of information.

169.               The NACC Bill would provide the Commissioner and Inspector with a graduated suite of powers and mechanisms to obtain information, with less intrusive powers available at the earlier stages of investigations and for the purposes of public inquiries, and the use of more intrusive powers being more tightly controlled.

Requirement for the provision of relevant information with referrals

170.               The requirement for agency heads and persons with responsibilities under the PID Act to provide all relevant information as part of the mandatory referral of a corruption issue to the Commissioner or Inspector is a reasonable, necessary and proportionate requirement. The requirement would apply only where:

       the corruption issue concerns the conduct of person who is, or was, a staff member of the agency; and

       the agency head or person with PID Act responsibilities suspects that the issue could involve corrupt conduct that is serious or systemic.

171.               The requirement to provide all relevant information when referring a corruption issue would be necessary to enable the Commissioner or Inspector to:

       form a view about whether the issue is within the Commissioner or Inspector’s jurisdiction, and if so, whether and how to deal with the issue—including whether the issue might best be investigated by the Commissioner or Inspector alone, as a joint investigation, by the originating agency as an internal investigation, or by another law enforcement or integrity agency;

       understand the potential harm that may arise from the corruption issue—including whether the corruption issue involves, or is likely to involve prejudice to the privacy or reputation of an innocent party, such as whether the issue involves the misuse of personal information by a public official;

       have visibility of any investigative steps that the referring agency may have undertaken, or proposes to undertake; and

       avoid taking unnecessary investigative steps, based on incomplete information.

172.               The requirement would be proportionate to the achievement of such objectives. The withholding of relevant information from the Commissioner or Inspector would result in them being less than fully-informed about the above matters, and about the nature and circumstances of the alleged corrupt conduct more broadly. The requirement for the agency or person making the referral to provide all relevant information would reduce the need for the Commissioner or Inspector to exercise their powers to require the production of further information or documents to support their consideration of the issue. A referring agency or person would generally be well-placed to determine which information would be relevant to the issue they are referring, and to provide the Commissioner or Inspector with that information—while reducing the risk that the Commissioner or Inspector may unnecessarily receive or obtain personal information that is not relevant to a corruption issue.

173.               The proportionality of the requirement would be reinforced by the requirement being limited to information that is in the person’s possession or control, in their capacity as an agency head or person with responsibilities under the PID Act. In practice, this would be limited to:

       official information, being information generated or obtained by the relevant agency, in connection with the performance of its functions—which may include personal information contained, for example, in official applications relating a program to which the alleged corrupt conduct relates, or concerning the person alleged to have engaged in the corrupt conduct (including information contained in an internal disclosure that has led to the referral); and

       information held by the agency on its systems or files, or at its premises—which may include personal information where, for example, the person alleged to have engaged in serious or systemic corrupt conduct has used their work email account for non-work-related purposes.

174.               A person would have a limited expectation of privacy in such information, being information that is already in the possession or control of a government agency and that could therefore generally be used for the investigation of unlawful activity or misconduct of a serious nature that relates to the agency’s functions (see section 16A, Privacy Act 1988). The NACC Bill would exclude certain types of information from the application of this requirement, where persons would have a reasonable expectation of privacy in that information (see the definition of exempt secrecy provision in clause 7) including information that is subject to the My Health Records Act 2012.

Powers to search premises and persons, and to seize evidential material and seizable items

175.               The NACC Bill would provide the Commissioner with four sets of powers to undertake searches and seize documents and things, being:

       a right to enter and search Commonwealth premises without warrant, for the purposes of a preliminary investigation or corruption investigation (see clause 117);

       powers to obtain search warrants for the purposes of (see clause 119 and Subdivision B of Part 7):

      a corruption investigation that is also a criminal investigation; or

      any corruption investigation, where necessary to ensure that persons do not have the opportunity to conceal, lose, mutilate or destroy important evidential material pertaining to a corruption issue;

       powers to stop and search conveyances in emergency situations to prevent the destruction of evidence (see clause 119 and Subdivision B of Part 7); and

       when arresting a person under a warrant to ensure their attendance at a hearing (see clauses 90 and 91).

176.               The NACC Bill would provide the Inspector with a more limited set of powers to undertake searches and seize documents and things (see clause 214), being:

       a right to enter and search Commonwealth premises without warrant, for the purposes of a preliminary investigation or corruption investigation (see clause 117); and

       when arresting a person under a warrant to ensure their attendance at a hearing (see clauses 90 and 91).

177.               The Commissioner and Inspector’s powers to require persons to give information, produce documents or things, or to answer questions are reasonable and necessary for the above purposes, as they would enable the Commissioner and Inspector to obtain information that:

       would not otherwise be available—including information uniquely within the knowledge of the person being questioned, including information about how or why a decision was made that have not been reduced to documentary form; or

       could only be obtained after long and complex investigations—including, for example, by enabling the Commissioner and Inspector to ask follow-up questions to clarify or expand on information, documents or answers given by a person.

178.               There would be appropriate limits on the Commissioner’s search powers when conducting public inquiries or preliminary investigations, and the Inspector’s powers when conducting preliminary or complaint investigations, given the significant nature of these powers:

       when conducting a public inquiry or preliminary investigation, the Commissioner would not have powers to enter and search premises or to search persons (whether with or without a warrant); and

       when conducting a preliminary investigation, the Inspector would not be permitted to enter and search Commonwealth premises; and

       when conducting a complaint investigation, the Inspector would not be able to obtain a warrant to arrest a person to ensure their attendance at a hearing.

179.               These powers would be necessary to enable the Commissioner and Inspector to obtain information relevant to a corruption investigation, or the investigation of a complaint in relation to the conduct or activities of the NACC or a staff member of the NACC. Powers to conduct searches and seize documents and things would, in particular, be necessary in circumstances where it may not be appropriate or practicable to rely on a notice to produce, for example where:

       the Commissioner or Inspector has reason to doubt that the recipient of a notice would comply with the notice;

       the service of a notice to produce would prematurely ‘tip off’ the subject of an investigation; or

       it would be necessary for the Commissioner or Inspector to employ specialist capabilities to locate and seize relevant documents or things—such as forensic or digital forensic capabilities.

180.               There would be safeguards in place to limit the powers of the Commissioner, Inspector and authorised officers, and ensure any impact on the right to privacy is proportionate and not arbitrary. These powers would be available only as part of:

       a corruption investigation or NACC corruption investigation, where the Commissioner or Inspector are investigating a corruption issue that could involve corrupt conduct that is serious or systemic; or

       a complaint investigation, where the Inspector is investigating a complaint about the activities or conduct of the NACC or a staff member of the NACC.

181.               The NACC’s powers to conduct searches under warrant, or of a conveyance in an emergency, would be based on existing powers under the Crimes Act 1914, which apply generally to the investigation of Commonwealth criminal laws.

182.               Before issuing a search warrant, an issuing officer would need to be satisfied by information on oath or affirmation that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours (clause 124):

       in a case where the NACC is investigating a particular offence or offences—any evidential material (within the meaning of the substituted definition outlined in paragraph 7.458) at the premises or in the possession of the person that is subject to the warrant; or

       in a case where the NACC is investigating a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic, but where no offence, or no specific offence, has been identified:

      there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises or in the possession of the person that is subject to the warrant; and

      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.

183.               The inclusion of this additional threshold for non-criminal investigations would ensure that search warrants for premises are only available where other means of obtaining the evidential material would be ineffective—because the material might be concealed, lost, mutilated or destroyed if the Commissioner sought to obtain it by serving a person with a summons to produce the material. This is consistent with the approach taken in section 4 of the Royal Commissions Act 1902 and with investigation warrants under subsection 109(1) of the LEIC Act.

184.               Similarly, searches conducted by authorised officers of the NACC under a warrant would be subject to the same limits and safeguards to limit any disproportionate impact on privacy as those conducted by constables under the Crimes Act 1914, including:

       warrants may only be in force for up to seven days after the date of issue (subsection 3E(5A) of the Crimes Act 1914);

       warrants to search persons must state whether an ordinary or frisk search is authorised, and only that type of search may be conducted (paragraph 3E(7)(b) and subsection 3F(4));

       warrants cannot authorise a strip search or a search of a person’s body cavities (section 3S);

       ordinary searches and frisk searches of a person must, if practicable, be conducted by a person of the same sex as the person being searched (section 3ZR);

       the executing officer must identify themselves to, and make a copy of the warrant available to, the person being searched or the occupier of warrant premises (section 3H);

       if data is accessed from premises other than warrant premises under sections 3L or 3LAA, the executing officer must notify the occupier of those premises as soon as practicable, if it is practicable to notify the occupier (section 3LB); and

       the occupier of warrant premises or their representative is entitled to observe the search being conducted (section 3P).

185.               The NACC’s power to stop and search conveyances, without a warrant, would be limited to circumstances where a constable or authorised officer has reasonable grounds to suspect that things relevant to an offence or a corruption investigation are in the conveyance, and conducting the search is necessary to prevent those things from being concealed, lost or destroyed in serious or urgent circumstances. Where any element of the threshold is not met, an authorised officer would instead be required to obtain a search warrant.

186.               The Commissioner and Inspector’s right to enter and search most Commonwealth premises as part of an investigation would be proportionate, as:

       the exercise of such a power would, in essence, be within the Commonwealth; and

       working for or with the Commonwealth is voluntary—persons who choose to work for or with the Commonwealth choose to be bound by the conduct standards that apply to public officials, and to applicable enforcement frameworks, including the jurisdiction of the Commission.

187.               The search powers that arise at the time of executing a warrant for a witness’s arrest would also be reasonable and subject to appropriate safeguards. Search and seizure powers at the time of arrest would be limited to circumstances where an authorised officer:

       suspects on reasonable grounds that it would be prudent to search the person to ascertain whether the person is carrying any seizable items (being anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody);

       suspects on reasonable grounds that the person is carrying evidential material or a seizable item; or

       believes on reasonable grounds that a thing in plain view at the premises is evidential material in relation to an offence, or a seizable item (sections 3ZE, 3ZF and 3ZG of the Crimes Act 1914 as applied by clause 91).

Powers to require the giving of information, production of documents and things, and the answering of questions at hearings

188.               Corruption investigations conducted by the Commissioner and Inspector, and complaint investigations conducted by the Inspector, would be inherently concerned with how and why public officials have made particular decisions. Such investigations would depend not only on access to contemporaneous documents and records supporting decision-making process, but also understanding the state of mind of, and considerations taken into account by a decision-maker.

189.               Similarly, public inquiries conducted by the Commissioner to identify corruption risks and vulnerabilities, and assess the adequacy of measures to prevent corruption in Commonwealth agencies, would require not only detailed information on agencies’ corruption detection and prevention frameworks, but also information on how those frameworks operate in practice—and how they integrate with other systems and processes.

190.               Hearings would be a key power available to the Commissioner and Inspector. Hearing powers would enable the Commissioner and Inspector to obtain information that would not otherwise be available—including information uniquely within the knowledge of the person being questioned—or could only be obtained after long and complex investigations. Material gathered in hearings would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

191.               The Commissioner and Inspector’s powers to require persons to give information, produce documents or things, or to answer questions are reasonable and necessary for the above purposes, as they would enable the Commissioner and Inspector to obtain information that:

        would not otherwise be available—including information uniquely within the knowledge of the person being questioned, including information about how or why a decision was made that have not been reduced to documentary form; or

       could only be obtained after long and complex investigations—including, for example, by enabling the Commissioner and Inspector to ask follow-up questions to clarify or expand on information, documents or answers given by a person.

192.               Material gathered in hearings would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

193.               There would be appropriate limits on the Commissioner’s coercive information-gathering powers when conducting a public inquiry, and the Commissioner and Inspector’s powers when conducting preliminary investigations, given the significant nature of these powers:

       when conducting a public inquiry, the Commissioner’s notice to produce powers could only be exercised in relation to a Commonwealth agency head; and

       when conducting a complaint investigation, the Inspector would not be permitted to issue notices to produce or summons persons to attend headings post-charge and post-confiscation application.

194.               The exercise of the Commissioner and Inspector’s coercive powers could result in a person being compelled to provide personal information. The NACC Bill would ensure that such powers would be proportionate. In certain circumstances, personal information would be directly relevant to an investigation or inquiry—for example, where it is alleged that a public official has engaged in serious or systemic corrupt conduct to obtain a benefit or advantage for another person to whom they have a family or other personal relationship, personal information about the existence and nature of that relationship, and communications between the official and the person in connection with the benefit, would potentially be directly relevant to the investigation.

195.               The NACC Bill would contain a number of additional safeguards to ensure that the Commissioner and Inspector’s powers to obtain personal information under a notice to produce or at a hearing are proportionate.

196.               Hearings would, by default, be held in private, preventing any personal information that arises in evidence from being publicly disclosed. The NACC Bill would provide the Commissioner with the discretion to hold public hearings only where the Commissioner decides that exceptional circumstances justify holding the hearing in public and it is in the public interest to do so (see Division 3 of Part 5, clause 161 and clause 214).

197.               The factors that may be considered when determining whether to hold a hearing in public would include:

       the extent to which the corruption issue could involve corrupt conduct that is serious or systemic;

       whether certain evidence is of a confidential nature; and

       whether a person giving evidence has a particular vulnerability.

198.               Certain sensitive information would also be required to be heard in private. In particular, information that would unreasonably disclose a person’s personal affairs would be required to be heard in private (see clause 74 and the definition of sensitive information in clause 227). Where such information is heard in private, the Commissioner or Inspector would be required to issue a direction under clause 100 (which has the effect that specified investigation material must not be used or disclosed, or may only be used by or disclosed to specified person in specified ways or on specified conditions) if the Commissioner is satisfied that the failure to give such a direction might lead to the publication of sensitive information that would unreasonably disclose a person’s personal affairs.

199.               The NACC Bill would also provide for non-disclosure notations where hearings, investigations or inquiries are held in private, and create an offence for breaches of these notations (Subdivision A, Division 4 of Part 7, clause 163 and clause 214). Non-disclosure notations would ensure the Commissioner can limit the spread of information relating to investigations or inquiries being held in private. The notation would protect the disclosure of information relating to a notice to produce information or a private hearing summons, for example, that the notice or summons exists or has been served on a particular person. Grounds for issuing a notice would include to the protect a person’s reputation, to prevent prejudice to an investigation or inquiry, or to prevent harm to an individual.

Use and disclosure of information obtained through the exercise of powers

200.               The NACC Bill engages the right to privacy in that the Commissioner, Inspector, and entrusted persons may disclose personal information or documents relating to individuals to other. The information that may be shared through these arrangements may include personal information, or information considered to fall within the scope of the right to privacy.

201.               Clause 228 would impose confidentiality obligations on entrusted persons (being staff members of the NACC, the Commissioner, the Inspector, and persons assisting the Inspector), that would generally prohibit them from disclosing information they obtain in the course of their duties. Clause 229 would then authorise the disclosure of such information in limited circumstances.

202.               For example, clause 229 would allow an entrusted person to disclose information for purposes connected with the functions, power and duties of the Commissioner or the Inspector. This would allow, for example, an entrusted person to make a disclosure or share information for the purpose of conducting a corruption investigation or public inquiry.

203.               Clause 229 would also allow the Commissioner and the Inspector to disclose information to the head of a Commonwealth agency, or of a State or Territory government entity, where satisfied that it is appropriate to do so, having regard to the functions of the person or entity concerned. This would allow, for example, the Commissioner to provide information to the head of an agency conducting a criminal investigation. Similarly, this would allow the Commissioner to share information with the head of an agency conducting a joint corruption investigation with the NACC.

Rational connection to a legitimate objective

204.               The information sharing mechanisms provided for under the NACC Bill would be critical to supporting both the Commissioner’s and the Inspector’s investigation and other functions, including by enabling the disclosure of information for purposes including:

       an investigation conducted by the Commissioner or Inspector, including disclosures between agencies as part of joint investigations conducted with other Commonwealth, State or Territory agencies;

       referring corruption issues to other agencies for their investigation or consideration; and

       referring evidence of criminal corrupt conduct to the CDPP or another prosecutorial agency, for prosecution.

205.               This recognises the Commissioner and Inspector’s functions as part of a broader Commonwealth integrity framework, and their role in supporting the proper enforcement of the law.

206.               The Commissioner and Inspector would also have the ability to disclose information to a particular person, if they are satisfied that it is necessary to do so in order to protect that or any other person’s life or physical safety. This recognises that the Commissioner and Inspector may come into possession of information that indicates that a person may harm themselves or another person, and would enable the Commissioner and Inspector to disclose such information in the course of seeking to protect against such harm. 

Reasonable, necessary and proportionate

207.               Information sharing is particularly necessary, given the nature of the matters that the Commissioner may work on and the potential for overlap with the work of State, Territory and Commonwealth integrity agencies and law enforcement bodies such as the AFP.

208.               Effective information sharing mechanisms would be necessarily dependent on partial limitations to the right to privacy. It would be necessary at times to share personal information, including identifying information and information regarding a person’s conduct, to ensure integrity agencies can carry out their investigations and law enforcement activities effectively.

209.               Such limitations to the right to privacy would be proportionate, in that exceptions allowing for the disclosure of information would be limited, under clause 229, to:

       disclosures for purposes connected with the exercise of powers, or the performance of the functions or duties, of the Commissioner or Inspector—which relate to the detection, investigation and prevention of corruption; and

       disclosures to the head of a Commonwealth agency, or a State or Territory government entity, that are authorised by the Commissioner or Inspector on the basis that they are satisfied that the disclosure is appropriate, having regard to the functions of the agency or entity—this could include, for example:

      disclosing evidence of criminal corrupt conduct to the CDPP to consider prosecution;

      disclosing evidence of serious corrupt conduct by a public official to the head of that public official’s agency, to consider disciplinary or administrative action against the public official—as well as any necessary remedial action to address corruption risks or vulnerabilities identified by the Commissioner or Inspector; or

      disclosing information about sophisticated money laundering activities detected in the course of a corruption investigation to the CEO of AUSTRAC, which is responsible for preventing, detecting and responding to criminal abuse of the financial system to protect the community from serious and organised crime;

       disclosures between the Commissioner and Inspector—which reflect the Inspector’s functions to oversee the Commissioner and the NACC;

       disclosures that are required by another Commonwealth law; and

       disclosures to protect life or physical safety. 

210.               Where no exception authorising disclosure applies, the confidentiality requirements under clause 228 would make it an offence for entrusted persons to disclose information they obtain in the course of their duties.

211.               Clause 233 would enable the Commissioner or the Inspector to impose confidentiality requirements on information shared with a person through this framework. That clause would make it an offence for the person to disclose information in breach of a confidentiality requirement.

212.               The NACC Bill would impose additional restrictions on the disclosure of certain information. Clauses 77, 100 and 214 would set out a confidentiality framework to ensure appropriate protection of particularly sensitive investigation material—including information the disclosure of which would unreasonably disclose a person’s personal affairs—and would require the Commissioner or the Inspector to issue a confidentiality direction in certain circumstances where evidence is obtained at a private hearing. Contravention of such a direction would be an offence under clause 101.

213.               Clauses 95 and 96 would also enable the Commissioner and the Inspector to issue non-disclosure notations, prohibiting the disclosure of information about a notice to produce or summons. The Commissioner and Inspector would be required to do so if satisfied that failure to issue a non‑disclosure notation would reasonably be expected to prejudice a person’s reputation, and would have a discretion to do so if satisfied that not doing so might prejudice a person’s reputation.

214.               Several measures in the NACC Bill would provide protections around the use and disclosure of information that is gathered through the exercise of powers and conduct of hearings, ensuring that any limitation on the right is reasonable and proportionate.

215.               The Commissioner, staff members of the NACC, the Inspector, and persons assisting the Inspector would generally not be compellable to give evidence, disclose information or produce documents in proceedings. This would protect against the disclosure of information or documents that were acquired under the NACC Bill for unintended purposes, and would reduce the risk that third parties may improperly obtain personal information obtained by the Commissioner or Inspector through discovery in proceedings—other than proceedings:

       to which a Commissioner, delegate or authorised officer, the CEO or the Inspector are party in their official capacity—for example, a challenge to the exercise of a power by the Commissioner;

       brought for the purposes of carrying into effect a provision of the NACC Bill—for example, a contempt proceeding against a person for failing to comply with a summons to appear before the Inspector; or

       being criminal, civil penalty or confiscation proceedings, brought as a result of an investigation under the NACC Bill or the referral of a corruption issue to another agency or entity.

216.               The NACC Bill would further protect information that may arise in an investigation or inquiry by enabling the Commissioner and Inspector to impose confidentiality requirements on persons who receive information about investigations and inquiries—for example, where a staff member of the NACC discloses information to another law enforcement agency as part of a joint investigation. Clause 233 would enable the Commissioner or the Inspector to impose conditions on the making of a record of the information by the recipient, and any on-disclosure of the information. This would include, for example, any condition considered appropriate to protect the identity of any person of interest to an investigation or inquiry. Non-compliance with a condition would be an offence under clause 233.

Public reporting

217.               The NACC Bill further engages the right to privacy by allowing for the potential disclosure of personal information contained in reports through the tabling or publication of those reports. The NACC Bill would require the tabling of reports in Parliament where a public hearing has been held in the course of an investigation, NACC investigation, or public inquiry, or where public submissions were invited on matters that were the subject of a public inquiry (clauses 155, 168 and 221). The Minister would also be able to table reports at their discretion, and the Commissioner and the Inspector would be able to publish reports and disclose other information relevant to the NACC, if satisfied it is in the public interest to do so (clauses 156, 169, 222 and 230).

Rational connection to a legitimate objective

218.               Any limitation of the right to privacy as a result of the robust reporting requirements in the NACC Bill would be directed towards the legitimate objective of promoting transparency and accountability to the public. Limiting the right to privacy through the public reporting of information that identifies persons connected with corruption investigations will promote transparent reporting of findings of corrupt conduct in the Commonwealth public sector. Public reporting would also enhance the NACC’s educational function by bringing to light the circumstances that contribute to corruption, and the detrimental effects of corruption on public administration and the Australian community.

Reasonable, necessary and proportionate

219.               Robust and transparent reporting will at times require the tabling and publication of reports, particularly where the matters dealt with in reports are already in the public domain.

220.               The disclosure of personal information in reports would be limited to circumstances to where its inclusion is necessary to ensure transparency and accountability, and would be subject to strong safeguards.

221.               For example, the Commissioner and the Inspector would be required to exclude information from reports they are satisfied is sensitive information (as defined under clause 227) and that is subject to a section 235 certificate. Sensitive information would include, in particular, information the disclosure of which would involve unreasonably disclosing a person’s personal affairs. Such information would instead be included in a protected information report and protected from disclosure to the public (see clauses 151 and 152 in relation to the Commissioner’s investigation reports, clauses 217 and 218 in relation to the Inspector’s NACC investigation reports, and clauses 199 and 272 in relation to annual reports). Clause 234 would make it a criminal offence for a person to disclose a protected information report, or information contained in a protected information report, to the public.

222.               In addition, a number of reputational safeguards would prevent certain information from being reported.

Measures to protect an individual’s reputation

223.               The NACC Bill contains a number of measures designed to protect an individual’s reputation and promote the right to privacy. These measures would balance the NACC Bill’s key objective, to expose corruption in public administration, with the need to protect against undue prejudice to a person’s reputation. Measures would include specific requirements when conducting corruption investigations and inquiries, and when preparing reports.

224.               As set out, above, hearings would, by default, be held in private, preventing any personal information that arises in evidence from being publicly disclosed. The NACC Bill would provide the Commissioner with the discretion to hold public hearings only where the Commissioner decides that exceptional circumstances justify holding the hearing in public and it is in the public interest to do so (see Division 3 of Part 5, clause 161 and clause 214).

225.               Where hearings, investigations or inquiries are held in private, the NACC Bill would also provide for non-disclosure notations and create an offence for breaches of these notations (Subdivision A, Division 4 of Part 7, clause 163 and clause 214). Non-disclosure notations would ensure the Commissioner can limit the spread of information relating to investigations or inquiries being held in private. The notation would protect the disclosure of information relating to a notice to produce information or a private hearing summons, for example, that the notice or summons exists or has been served on a particular person. Grounds for issuing a notation would include to the protect a person’s reputation, to prevent prejudice to an investigation or inquiry, or to prevent harm to an individual.

226.               Where hearings are held in public, the Commissioner and Inspector would have the discretion to make a statement clarifying the capacity in which a witness is appearing, in particular, whether they are appearing voluntarily or in response to a summons, and whether their conduct is the subject of the corruption investigation (clause 73). This would assist to avoid harm to a person’s reputation that might arise, if there was public misunderstanding about the capacity in which the person has appeared as a witness. It would be open to a person appearing before the Commissioner or Inspector to request that they make such a statement.

227.               The NACC Bill would also allow the Commissioner to issue public statements on corruption issues at any time (for example, where a person has been incorrectly identified as the subject of a corruption investigation). The NACC Bill would require certain statements be included in reports, if it would be appropriate and practicable to do so to avoid damage to a person’s reputation (see subclause 149(5)).

228.               The NACC Bill would further promote the right to privacy and protect against reputational risk by ensuring the NACC would operate with procedural fairness for individuals who are to be the subject of a critical finding, opinion or recommendation. Such individuals would be afforded an opportunity to respond to the adverse comment before its inclusion in a report, or prior to its publication (clauses 153, 157, 170, 166, 219, 223 and 231.)

229.               These measures would ensure an appropriate balance is achieved between the exposure and prevention of corruption, and protecting against undue damage to a person’s reputation.

The right to freedom of expression contained in article 19(2) of the ICCPR

230.               Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media.

231.               However, Article 19(3) of the ICCPR provides that the exercise of the rights provided for in article 19(2) carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for the protection of national security and for the respect of individuals’ rights or reputations.

232.               The NACC Bill would limit the right to freedom of expression by restricting a person’s ability to refer and disclose certain sensitive information. For example:

       the Attorney-General would be able to restrict a person’s ability to refer information that is subject to an international relations certificate to the NACC or the Inspector (under clause 236);

       the Attorney-General would be able to restrict a person’s ability to disclose information that is subject to an Attorney-General’s certificate issued under clause 235;

       it would be an offence to disclose whole or part of a protected information report (under clause 234);

       the NACC would be able to restrict a person’s ability to disclose certain information and material, including information subject to non-disclosure notations (under Division 4 of Part 7 (including as applied by Parts 9 and 10)).

233.               The NACC Bill would also limit the right to freedom of expression by applying confidentiality requirements to certain people. For example:

       an offence for an entrusted person to make a record or disclose information obtained because of their role or in the course of their duties (clause 228);

       an offence for a person who has received information from an entrusted person relating to certain investigations and inquiries from disclosing the information (clause 233).

234.               Under article 19(3) of the ICCPR, the right to freedom of expression may be subject to limitations where those limitations are provided for by law and are necessary for the protection of national security and for the respect of individuals’ rights and reputations.

Rational connection to a legitimate objective
Restricting a person’s ability to refer and disclose certain sensitive information

235.               In the course of performing its functions, the NACC would obtain a range of sensitive information that could, if released, prejudice Australia’s national security, its relationships with foreign governments, and individuals’ rights to privacy and reputation. These adverse consequences would be avoided or mitigated by the limitations on the disclosure and referral of certain sensitive information contained in the NACC Bill.

236.               It is necessary for the NACC to be able to prohibit the referral and disclosure of certain secret or sensitive information in its remit. The NACC Bill would not restrict the referral or disclosure of information generally; only the most sensitive information would be subject to referral or disclosure prohibitions under the NACC Bill. This includes information that, if publicly released or handled inappropriately, could harm or prejudice Australia’s national security, Australia’s international relations and the privacy of individuals.

237.               For example, information contained in international relations certificates generally includes information communicated in confidence to Australia by foreign governments under international agreements. The referral or disclosure of the information contained in an international relations certificate could therefore significantly damage Australia’s reputation and ongoing partnerships with foreign governments. Preventing the referral or disclosure of information contained in these certificates without appropriate consent is a legitimate object of the NACC Bill.

238.               It is also necessary for the NACC Bill to prevent the disclosure of sensitive information pertaining to the NACC’s functions, including its powers under Part 7. Permitting information contained in a notice or summons issued by the NACC, for example, could prejudice investigations and inquiries, in addition to causing harm to individuals’ reputations and privacy. Ensuring this type of information is protected from disclosure under a non-disclosure notation (and under similar directions) is a legitimate object of the NACC Bill.

Requiring certain people to abide by confidentiality requirements

239.               The NACC Bill recognises that staff members of the NACC and people conducting oversight of the NACC would have access to a range of sensitive information in the course of their duties, and that the improper use and disclosure of this information could significantly damage public trust in the NACC and the Inspector and their ability to protect confidential information they receive.

240.               The NACC Bill applies a range of confidentiality requirements to entrusted persons (see clause 227), which refers to staff members of the NACC, the Inspector, and persons assisting the Inspector. If an entrusted person were to make a record of or disclose sensitive information otherwise than in the course of their duties, this could irreparably damage the NACC’s reputation and significantly deter people from providing sensitive information to the NACC in future. If entities, members of the public and public officials are not willing to make disclosures or otherwise provide assistance to the NACC due to fear the information they impart would not be dealt with confidentially, the NACC would be significantly inhibited in performing its statutory functions. The restrictions on entrusted persons making records of and disclosing sensitive information—except in connection with the exercise of their powers—is a legitimate object of this Bill.

241.               Requiring staff members of the NACC, and the Inspector and persons assisting them, to only handle certain sensitive information for purposes connected with their functions, powers and duties under the NACC Bill would ensure that the NACC remains a trusted recipient of sensitive information.

242.               Additionally, enabling the NACC to make third parties subject to confidentiality requirements when receiving sensitive information about certain NACC investigations and inquiries would deter third parties from improperly recording or disclosing the sensitive information, thereby safeguarding NACC processes from prejudice.

243.               The NACC Bill would also apply confidentiality requirements to people who receive information from entrusted persons about certain NACC corruption investigations and public inquiries. This would not be an absolute restriction on a person’s ability to make records of or disclose information received from entrusted persons, but would instead provide entrusted persons with a mechanism for imposing conditions on the use of sensitive information pertaining to the NACC’s processes, as appropriate in the circumstances. This would ensure that sensitive information capable of prejudicing a NACC investigation or inquiry is protected from improper use and communication by third parties. These restrictions on freedom of expression are therefore a legitimate object of the NACC Bill.

Reasonable, necessary and proportionate

244.               The limitations on freedom of expression outlined above would be necessary to protect information obtained by the Commissioner from inappropriate referral and disclosure. These measures are particularly important given the covert nature of investigations, inquiries and other processes undertaken by the Commissioner and the Inspector, the coercive nature of the powers available to support these functions, and the sensitive nature of information they gather from entities and individuals.

245.               The NACC Bill also contains safeguards to ensure that limitations on the right to freedom of expression are necessary. For example, an Attorney-General’s certificate could only be issued if the information contained in the certificate was sufficiently sensitive (see clause 235). This would include information pertaining to communications between the Commonwealth Government and the Government of a State or Territory, and information that could reveal the existence or identity of a confidential source or a staff member of an Australian intelligence entity. The referral or disclosure of information contained in an Attorney-General’s certificate could have serious ramifications for Australia’s national security, and restricting the communication of information contained in these certificates is therefore a legitimate object of the NACC Bill.

246.               Only sufficiently sensitive information may be restricted from being recorded, referred and disclosed, including information relating to Australia’s national security, international relations, the privacy and reputation of individuals, and the performance of the NACC’s statutory functions generally. The limitations on the right to freedom of expression contained in the NACC Bill are therefore reasonable, necessary and proportionate.

247.               Further, the penalties attaching to breaches of these restrictions under the NACC Bill are reasonable and proportionate. In the absence of serious consequences for breaches, unauthorised disclosures of certain information may undermine and jeopardise the effectiveness of the NACC or be detrimental to the operations of other regulated entities. In many cases, publicly releasing the information that is the subject of these measures could have serious ramifications beyond the functions of the NACC, including for Australia’s national security. The primary effect of the penalties would therefore be to act as a deterrent, and would correlate to the seriousness of the offences.

248.               To ensure that the offences are sufficiently precise and do not unnecessarily limit a person’s right to freedom of expression where a disclosure is in fact permitted, many of the offences include exceptions.

Conclusion

249.               The NACC Bill would be compatible with human rights. To the extent that the measures in the NACC Bill may limit human rights, each of those limitations are necessary, reasonable and proportionate.

National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022

250.               The Consequential Bill would be compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Consequential Bill

251.               The NACC Bill would be supported by the Consequential Bill, which would amend various Acts to give effect to the NACC.

252.               Schedule 1 to the Consequential Bill would repeal the LEIC Act. That Act established ACLEI, which would transition to become part of the NACC. The Consequential Bill would repeal references to ACLEI and the LEIC Act currently contained in legislation. These would be replaced with references to the NACC and the NACC Bill. The effect of these amendments would be to support the transition of ACLEI to the NACC and confer powers on the NACC that are currently conferred on ACLEI. Many of these powers would be significant components of the NACC’s overall investigative powers and would complement the powers conferred by the NACC Bill (in particular Part 7).

253.               The arrangements for the NACC that are dealt with in the Consequential Bill would generally apply to the NACC in the way they currently apply to ACLEI. Exceptions to this are:

       certain decisions made by the Commissioner from review under the ADJR Act, including decisions made under Part 6 (dealing with corruption issues) and Part 7 (investigating corruption issues) of the NACC Bill;

       allowing the NACC to undertake integrity testing of staff members of all Commonwealth agencies under Part IABA of the Crimes Act 1914, in accordance with the NACC’s broader jurisdiction;

       allowing the IGIS or the staff of the IGIS to disclose information to a staff member of the NACC if the information being disclosed is relevant to the NACC’s functions or powers, and the IGIS is satisfied on reasonable grounds that the NACC has satisfactory arrangements in place to protect the information;

       enabling a disclosure for the purposes of the PID Act to be made directly to the NACC, and enabling the NACC to issue a stop action direction to ‘freeze’ PID Act processes;

       providing the NACC with access to the industry assistance framework under Part 15 of the Telecommunications Act 1997 so the agency can obtain reasonable assistance from communications providers to support the agency’s powers (such as those under the TIA Act);

       authorising the Inspector-General of Taxation to make a disclosure to the NACC under the Taxation Administration Act 1953 and enabling the NACC to disclose information received from the Inspector-General for the purposes of the NACC Bill; and

       ensuring that the Ombudsman does not have to decide not to investigate before they can make a referral to the NACC under the Ombudsman Act 1976.

254.               The Consequential Bill would provide the NACC with a range of covert investigative powers consistent with those currently available to ACLEI and other law enforcement agencies. This would mean those powers may only be used to investigate criminal offending, and would be subject to thresholds concerning the seriousness of the offence and reasonableness and appropriateness of the particular power.

255.               Schedule 2 to the Consequential Bill would outline the transitional arrangements necessary to support the establishment of the NACC. These arrangements would ensure the effective transition of ACLEI’s existing roles and functions to the NACC.

Human rights implications

256.               The measures in the Consequential Bill would engage the following human rights contained in the ICCPR:

       the right to an effective remedy contained in article 2(3);

       the right to a fair trial under article 14(1);

       the right to the presumption of innocence under article 14(2);

       the prohibition on interference with privacy, and right to reputation, under article 17;

       the right to freedom of expression under article 19(2).

The right to an effective remedy contained in article 2(3) of the ICCPR

257.               Article 2(3) of the ICCPR guarantees the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities. The content of the right also includes an obligation to ensure that the competent authorities enforce such remedies when they are granted.

258.               This Consequential Bill would not limit the right to an effective remedy for violations of the rights and freedoms under the ICCPR. Instead, the Consequential Bill would engage the right to an effective remedy by ensuring:

       findings and decisions of the Commissioner can be subject to judicial review;

       the NACC’s use of coercive powers are subject to oversight; and

       protections for public officials under the PID Act continue to apply for disclosures made directly to the NACC (see items 163,165, 166, 167 and 168).

Judicial review

259.               The Consequential Bill would protect the right to an effective remedy by ensuring findings and decisions of the Commissioner are reviewable under the ADJR Act.

260.               A person would be able to seek judicial review in relation to findings and decisions under Part 8 of the NACC Bill, and judicial review more broadly under the Judiciary Act 1903 or in the High Court’s original jurisdiction. For example, a finding of corrupt conduct contained in a report could be subject to judicial review. These measures would promote the right to an effective remedy. While decisions made regarding intermediate steps leading up to the commencement of an investigation or inquiry (for example, under Part 6) would not be reviewable under the ADJR Act (item 2 of Schedule 1), these are interim decisions that are excluded to ensure the NACC’s statutory functions are not undermined and that investigations can be conducted in a timely manner.

Oversight of the NACC’s covert powers

261.               The Consequential Bill would promote the right to an effective remedy by ensuring that the NACC would be subject to effective oversight mechanisms. As is the case with other law enforcement agencies that are authorised to exercise covert powers, the NACC’s use of the following covert powers would be subject to oversight by the Commonwealth Ombudsman:

       the NACC’s authorisation and conduct of controlled operations under Division 4 Part IAB of the Crimes Act;

       surveillance devices and computer access powers under the SD Act;

       telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the TIA Act; and

       the NACC’s access to industry assistance framework under Part 15 of the Telecommunications Act 1997 to obtain reasonable assistance from communications providers to support the NACC’s powers. 

262.               The NACC would also be conducted overseen by a Parliamentary Joint Committee and an independent Inspector of the NACC, to provide assurance to the Parliament, Government and the public that the NACC is performing its functions fairly and effectively.

Disclosures to the NACC

263.               Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information. The Consequential Bill would promote the right to an effective remedy by amending the PID Act to ensure public officials could make direct disclosures to the NACC and, in doing so, would continue to be afforded the protections available to them under the PID Act for these disclosures (items 163, 165, 166, 167and 168). These protections include protection from liabilities and reprisal actions. This amendment would ensure that public officials who refer corruption issues to the NACC do not experience detriment on the basis of the agency that they make their disclosures and are able to freely impart relevant information to the NACC.

The right to a fair trial contained in article 14(1) of the ICCPR

264.               Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, and public hearing in civil proceedings. It provides that all persons shall be equal before the courts and tribunals, and, in the determination of criminal charges, or any suit at law, the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

265.               The following measures in the Consequential Bill may limit the right to a fair trial:

       enabling the NACC to authorise controlled operations under Part IAB of the Crimes Act 1914 (see items 42 to 62);

       enabling the NACC to authorise integrity testing operations and to undertake integrity testing of staff members in any Commonwealth agency within the meaning of the NACC Bill (see items 63 to 88); and

       a measure to make it a function of the ACIC to assist the NACC in making applications for integrity testing authorities and related authorities to conduct controlled operations under the Crimes Act 1914 (see item 14).

Controlled operations

266.               Controlled operations under Part IAB of the Crimes Act 1914 are covert law enforcement operations conducted for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious criminal offence. For example, a controlled operation could involve a person receiving currency and providing that currency to another person to obtain evidence to be used against persons involved in money laundering.

267.               ACLEI is currently one of the agencies able to authorise controlled operations under Part IAB of the Crimes Act 1914, along with the AFP and the ACIC.

268.               Items 42 to 62 of the Consequential Bill would amend Part IAB to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC and the NACC Bill. Items 35 to 39 would make related amendments to the definitions in section 3 of the Crimes Act 1914.

269.               These amendments would enable the NACC to authorise controlled operations under Part IAB of the Crimes Act 1914. Specifically, the amendments would allow:

       staff members of the NACC to apply to an appropriate authorising officer for an authority to conduct a controlled operation under section 15GH; and

       the NACC Commissioner and SES staff members of the NACC authorised in writing by the NACC Commissioner to:

      authorise controlled operations in accordance with section 15GI where those operations relate to the conduct of a corruption investigation within the meaning of the NACC Bill; and

      vary and cancel operations in accordance with sections 15GO and 15GY.

270.               The gathering of evidence through a controlled operation may limit the choices a person has in defending the charges at trial.

Rational connection to a legitimate objective

271.               The measures outlined above would serve the legitimate objective of facilitating the prevention and investigation of corrupt conduct. Allowing the NACC to authorise controlled operations would assist in ensuring the NACC can receive sufficient evidence to inform its investigations. The types of conduct the Commissioner would be tasked with investigating would often involve corrupt relationships and may be easy to conceal. Without such covert powers, the NACC may not receive sufficient evidence to effectively expose corrupt conduct that could be serious or systemic, frustrating the purpose of the NACC, and leaving it unable to fulfil its statutory functions.

Reasonable, necessary and proportionate

272.               These measures are reasonable, necessary and proportionate to achieve the legitimate objective of facilitating the investigation and prosecution of criminal offences. Without all relevant information, the NACC may not be able to perform its functions as effectively. Conducting controlled operations would be subject to a number of limitations under the Crimes Act 1914, which would ensure that any limitation of the right to a fair trial would be proportionate.

273.               The ability to authorise controlled operations is reasonable and necessary given the very nature of corrupt conduct, as public officials involved may be able to easily conceal their behaviour. For example, corrupt public officials may be in positions of power, which could make it difficult for junior officers to come forward and provide evidence. Controlled operations and integrity testing may be the only avenue to collect evidence in relation to such conduct. The power to authorise controlled operations is therefore reasonable and necessary to ensure the Commissioner can effectively facilitate the prevention and investigation of corrupt conduct.

274.               The measures would be limited by appropriate safeguards, for example, a NACC authorising officer would only be able to grant authority to conduct a controlled operation if they are satisfied on reasonable grounds:

       that either:

      a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or

      an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency; and

       the restrictions on controlled operations and controlled conduct outline in paragraphs 15GI(2)(b) to (h) of the Crimes Act 1914 apply (these include a requirement to not conduct a controlled operation in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit, and a requirement that the nature and extent of the suspected criminal activity justify the controlled operation).

275.               The admissibility of evidence gathered through a controlled operation would be subject to the rules of evidence and a court’s discretion – the court would retain the discretion to exclude the evidence if it considered it had been obtained through entrapment, and where the evidence is intended to be used in proceedings it would be made available to the defendant.

276.               As is the case with other law enforcement agencies that are authorised to exercise covert powers, the Commonwealth Ombudsman would oversee the NACC’s authorisation and conduct of controlled operations under Division 4 of Part IAB of the Crimes Act 1914.

Integrity testing

277.               Part IABA of the Crimes Act 1914 provides a framework for operations that are designed to test the integrity of staff members of the ACIC, the AFP and the Department of Home Affairs, using controlled or simulated situations. Operations may involve offering a staff member an opportunity to engage in conduct, whether lawful or unlawful, so as to contravene principles of behaviour required of persons occupying the position of such a staff member. For example, an integrity test could involve putting false information in a database to catch a person suspected of unlawfully disclosing information.

278.               Integrity testing operations may currently be authorised by the agency concerned or, where a corruption issue is involved, by ACLEI. The amendments in items 63 to 88 would enable the NACC to authorise such operations and allow the NACC to undertake integrity testing of staff members in any Commonwealth agency within the meaning of the NACC Bill. Further, item 14 would amend the Australian Crime Commission Act 2002 making it a function of the ACIC to assist the NACC in making applications for integrity testing authorities and related controlled operations authorities under the Crimes Act 1914.

Rational connection to a legitimate objective

279.               The measures outlined above would serve the legitimate objective of facilitating the prevention and investigation of corrupt conduct.  Allowing the NACC to conduct integrity testing would act as a deterrent, furthering the NACC’s legitimate objective of preventing corrupt conduct. The measures would also provide the Commissioner with another means of investigating suspected corrupt conduct that would constitute an offence. Integrity testing would allow the Commissioner to receive evidence in relation to corrupt conduct that it would likely not otherwise receive.

Reasonable, necessary and proportionate

280.               The measures are reasonable and necessary to achieve the legitimate objective of investigating, exposing, and preventing corrupt conduct. Integrity testing would provide an avenue to reveal corrupt conduct in circumstances where it may be difficult to otherwise obtain evidence. As outlined above, corrupt public officials may be in positions of power, which could make it difficult for junior officers to come forward and provide evidence. The measures would enable the deterrence of corrupt conduct by encouraging public officials to consider their actions before they engage in potentially corrupt conduct, such as accepting a bribe.

281.               The measures would be limited by the following safeguards:

       the Commissioner, a Deputy Commissioner, or an SES employee of the NACC would only be permitted to authorise an integrity testing operation if they are satisfied that (sections 15JC, 15JE and 15JG of the Crimes Act 1914, as amended by items 65 to 75 and 77 to 80);

      there are reasonable grounds to suspect that an offence punishable on conviction by imprisonment for 12 months of more has been, is being, or is likely to be committed by a staff member of the target agency;

      it is appropriate in all the circumstances to conduct the operation; and

      the operation is part of a corruption investigation (within the meaning of the NACC Bill);

       the admissibility of evidence gathered through an integrity testing operation would be subject to the rules of evidence and a court’s discretion – the court would retain the discretion to exclude the evidence if it considered it had been obtained through entrapment and where the evidence is intended to be used in proceedings it would be made available to the defendant.

282.               Further, authorised integrity testing operations would not constitute entrapment. The operations would be designed to ensure that the subject of the test is provided with an equal opportunity to pass or fail the test, rather than be induced to fail the test.

The right to the presumption of innocence contained in article 14(2) of the ICCPR

283.               Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

284.               The Consequential Bill would limit the right to the presumption of innocence under article 14(2) of the ICCPR, because it would place a reversed evidential burden on defendants with respect to certain offences.

285.               Limitations on the right to be presumed innocent must be reasonable, necessary and proportionate to achieve a legitimate objective.

Offences containing reversed evidential burden provisions

286.               Offences that contain a ‘reversed evidential burden’ in the Consequential Bill may amount to a limitation on the right to be presumed innocent. This includes provisions where an evidential burden is created by expressing a matter to be a defence, an exception to an offence or providing that the defendant must prove the matter. Reversing the evidential burden in this way may limit article 14(2), as a defendant's failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt. However, under international human rights law, a ‘reversed evidential burden’ will not necessarily limit the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification.

287.               The following amendments in the Consequential Bill would introduce new offences with offence‑specific defences, and new circumstances in which an existing offence containing a reversed evidential burden would apply. This would reverse the evidential burden, as the defendant would bear the burden of proving the elements of each new or amended defence.

       Item 10 would amend the existing defence in subsection 121(2) of the Anti-Money-Laundering and Counter-Terrorism Financing Act 2006 to allow AUSTRAC entrusted persons to record, access or disclose protected information for the purposes of the NACC Bill. A defendant would bear an evidential burden of proving that the record, access or disclosure was made for the purposes of the NACC Bill.

       Items 15 and 16 would amend the defences in subsections 21C(2) and 21C(4) of the Australian Crime Commission Act 2002 to provide that it is not an offence to disclose the existence of or information about a notice containing a non-disclosure notation if the disclosure is made as a NACC disclosure. A defendant would bear the burden of proving the disclosure was made as a NACC disclosure.

       Items 83 to 86 would amend the defences in sections 15JQ and 15JR of the Crimes Act 1914. Under these existing provisions, it is an offence to disclose information relating to an integrity testing operation (subsection 15JQ(1)) or to disclose information relating to an integrity testing operation with the intention to endanger the health and safety of any person or to prejudice the effective conduct of an integrity testing operations. It would be a defence to both offences if the disclosure was made in connection with the administration or execution of the NACC Bill, or to the Commissioner concerning a corruption issue or misconduct in relation to an integrity testing operation. A defendant would bear the burden of proving the disclosure was made in connection with administering or executing the NACC Bill, or to the Commissioner for the specified purpose.  

       Item 201 would amend section 355-65 in Schedule 1 to the Taxation Administration Act 1953 to allow a taxation officer to make a record of and disclose protected information to the Commissioner in relation to taxation matters acquired in the course of performing their duties. It would otherwise be an offence for a taxation officer to disclose protected information. The exemption would apply if the defendant could prove that the disclosure was made to the Commissioner, for the purposes of the NACC Bill, in relation to a corruption issue relating to the ATO or the Inspector-General of Taxation.  

       Item 202 would amend the existing exception in section 355-70 in Schedule 1 to the Taxation Administration Act 1953 to the offence in section 355‑25, to authorise taxation officers to disclose protected information to the NACC as a listed law enforcement agency. A defendant would bear the burden of proving the disclosure was made to an officer of the NACC as an authorised law enforcement agency, and was for the purpose of investigating a serious offence, enforcing a law the contravention of which would be a serious offence, or making, supporting or enforcing a proceeds of crime order.  

       Item 203 would insert new section 355-192, which would create two new exceptions to the offence in Section 355-155 in Schedule 1 to the Taxation Administration Act 1953. This offence prohibits on-disclosure of protected information by specified persons who have received protected information from a taxation officer for a permitted purpose. The first new exception would apply to the Inspector-General of Taxation, if they made the record or disclosure to the Commissioner or a staff member of the NACC for the purposes of the NACC Bill in relation to a corruption issue relating to the ATO or the Inspector-General of Taxation. The second new exception would apply to the Commissioner or another staff member of the NACC if they received the protected information from the Inspector-General of Taxation, and made the record or disclosure for the purpose of performing a function or duty of the Commissioner or another staff member of the NACC under the NACC Bill. A defendant would bear the burden of proving that the record or disclosure was made in the circumstances permitted by the relevant new exception.

       Item 262 would amend the offence-specific defences in paragraphs 22(5)(c), 22A(5)(c) and 22B(3)(c) of the Witness Protection Act 1994 to provide that it is not an offence to disclose information about individuals who are participants in the National Witness Protection Program if the disclosure is made as a NACC disclosure. A defendant would bear the burden of proving the disclosure was made as a NACC disclosure.

Rational connection to a legitimate objective

288.               The reversed evidential burden provisions in items 10, 15, 16, 83-86, 201-203 and 262 requiring a defendant to prove that their alleged unlawful recording or disclosure of sensitive information was in fact permitted or authorised serve the legitimate objective of:

       preventing the disclosure of sensitive information that could, for example, harm or prejudice a criminal investigation, an integrity testing operation, or the safety of a person;

       preventing the disclosure of sensitive information that would unreasonably interfere with a person’s privacy, or that could reveal the identity of a person where this is not appropriate or safe; and

       preventing the disclosure of information that could prejudice a NACC or Inspector’s investigation or inquiry.

289.               Requiring a defendant to prove that an alleged unlawful recording or disclosure of sensitive information was in fact permitted or authorised would put persons subject to non-disclosure obligations on notice to ensure they only disclose protected information if they have appropriate authorisation. This is likely to encourage persons subject to non-disclosure obligations to properly apprise themselves of when a recording or disclosure is or is not permitted under the Consequential Bill. This would reduce the risk of harm or prejudice to criminal investigations, integrity testing operations, and the safety and privacy of individuals.

Reasonable, necessary and proportionate

290.               It is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant. For example, a defendant is best-placed to give evidence that they made a particular disclosure for the purposes of the NACC Bill (as in items 10, 15, 16, 83-86, 201-203 and 262).

291.               Reversed evidential burden provisions are proportionate because, consistent with section 13.3 of the Criminal Code, this burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that a particular matter exists or does not exist. It does not require the defendant to prove those matters beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will also be required to disprove those matters beyond reasonable doubt. The reversed evidential burden provisions in the Consequential Bill also create or amend offence-specific defences that operate in addition to, not instead of, the general defences available at criminal law.

The prohibition on interference with privacy contained in article 17 of the ICCPR

292.               Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person’s privacy, family, home and correspondence, and prohibits unlawful attacks on a person’s reputation.

293.               The Human Rights Committee has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy may be limited where the limitation is lawful and not arbitrary, and where it is reasonable, necessary and proportionate to achieve a legitimate objective.

294.               A number of measures in the Consequential Bill would engage this right, by providing for amendments to a number of Commonwealth Acts that would:

       provide the NACC with information gathering powers;

       provide the NACC with covert investigation powers; and

       allow for further information sharing mechanisms (in addition to those provided for under the NACC Bill).

Information gathering powers under existing legislation

295.               This Consequential Bill would also engage the right to privacy, by amending relevant legislation to provide the Commissioner with a number of information gathering powers. These powers would allow for interference with individual’s privacy through the gathering of personal information.

296.               Items 4 to 10 and 112 to 116 of Schedule 1 would give the NACC further powers to compel information from reporting entities and cash dealers under the AML/CTF Act and the Financial Transactions Reports Act 1988. Amendments to these Acts would allow the Commissioner to obtain information about financial transactions that may be relevant to a corruption issue under investigation by the NACC.

297.               The Consequential Bill would also make a number of amendments to the POC Act (items 158 to 162), including giving the Commissioner powers to:

       obtain information under a notice to a financial institution;

       access property-tracking documents under a production order;

       obtain information under a monitoring order;

       apply for a search warrant; and

       exercise search powers without a warrant in emergency situations.

298.               Generally, these amendments would provide the Commissioner (and other staff members of the NACC) with powers to seek information about accounts held by a person of interest to a corruption investigation and to search for and seize tainted property (such as proceeds of an offence) and evidential material (such as benefits derived from commission of an offence).

Rational connection to a legitimate objective

299.               Limitations on the right to privacy through allowing the NACC to obtain information under existing laws would be necessary to achieve to the fundamental aim of the NACC to investigate, expose and prevent corruption.

300.               Serious and systemic corruption have significant detrimental impacts on public administration and can erode trust in the Government, Parliament and democracy. Vesting the NACC with these powers would ensure the Commissioner can investigate serious or systemic corruption within the Commonwealth public sector.

301.               The ability to exercise information gathering powers ensures the Commissioner can obtain material relevant to the NACC’s objectives. Enabling the NACC to receive all relevant information would be critical for making findings of fact in relation to corruption issues and making robust recommendations directed at preventing corruption or mitigating against any adverse consequences of corruption. These powers would enable the Commissioner to access information and data that would not otherwise be available, and may be critical to an investigation.

Reasonable, necessary and proportionate

302.               To undertake its key function of investigating corrupt conduct, the NACC would necessarily be invested with a range of information gathering powers – similar to other investigative bodies. These powers would be limited to situations in which it would be relevant to an investigation into suspected serious or systemic corruption of a criminal nature, and where relevant thresholds are met for use of each power.

303.               Money laundering is a key enabler of criminal activity, including offending related to corruption. Information obtained under the AML/CTF Act and the Financial Transactions Reports Act 1988 should be available to assist the investigation of corruption issues involving corrupt conduct that may be serious or systemic.

304.               Providing the NACC with the powers available under the POC Act are reasonable in that these powers are intended to prevent a person who has committed an offence from being able to enjoy the benefit, or reinvest the proceeds, of their criminal conduct. These powers act as a disincentive to possible criminal corrupt actors by minimising any profit motive.

305.               The oversight arrangement set out under the NACC Bill would play a critical role in ensuring the exercise of these powers is reasonable, necessary and proportionate. Oversight through a Parliamentary Joint Committee and an independent Inspector of the NACC would provide assurance to the Parliament, Government and the public that the NACC is performing its functions fairly and effectively.

Covert investigative powers

306.               This Consequential Bill would also engage the right to privacy, by amending relevant legislation to provide the Commissioner with a number of covert investigative and electronic surveillance powers. These powers would allow for interference with individual’s privacy through the surveillance and gathering of personal information.

307.               These measures would engage the right to privacy, by allowing the collection, use and storage of personal data related to individuals.

308.               In particular, the Consequential Bill would engage the right to privacy through amendments to the SD Act (items 188 to 204) and the TIA Act (see items 206 to 260). This would provide the NACC:

       surveillance device powers under the SD Act;

       computer access powers under the SD Act;

       interception powers for serious offences under the TIA Act;

       access to stored communications (for example emails, SMS or voice messages stored on equipment) under the TIA Act; and

       access to telecommunications data under the TIA Act.

309.               Information gathered using these powers may consist of personal information. The use of information gathered under these Acts would be subject to the limitations of each Act around the use or disclosure of this information.

310.               In addition, items 263 to 270 would amend the Telecommunications Act 1997 to give the NACC and certain state agencies access to the industry assistance framework under Part 15 of the Act. This would provide the NACC and state agencies with ancillary powers to request assistance from communications providers to access encrypted information stored on devices gathered through the NACC’s exercise of other powers.

Rational connection to a legitimate objective

311.               Limitations on the right to privacy through obtaining information through covert investigative powers would be necessary to achieve the fundamental aim of the NACC to investigate, expose and prevent corrupt conduct.

312.               Serious and systemic corruption have significant detrimental impacts on public administration and can erode trust in the Government, Parliament and democracy. Vesting the NACC with these powers would ensure the Commissioner can investigate serious or systemic corruption within the Commonwealth public sector.

313.               The ability to exercise covert investigative and surveillance powers ensures the Commissioner can obtain material relevant to the NACC’s objectives. Enabling the NACC to receive relevant information would be critical for making findings of fact in relation to corruption issues and making robust recommendations directed at preventing corruption or mitigating against any adverse consequences of corruption. These powers would enable the Commissioner to access information and data that would not otherwise be available, and may be critical to an investigation.

314.               Vesting certain state agencies with industry assistance powers would ensure state-based
anti-corruption agencies can obtain reasonable assistance from communications providers to support their investigation functions.

Reasonable, necessary and proportionate

315.               The NACC would be invested with a range of investigative powers in order to effectively undertake its key function of investigating corrupt conduct. These covert powers would be limited to situations in which it would be relevant to an investigation into suspected serious or systemic corruption of a criminal nature, and where the offence is of sufficient seriousness to meet the threshold for use of each power.

316.               Thresholds would apply for the issuing of surveillance device and computer access warrants under the SD Act. An eligible Judge or a nominated AAT member may grant such warrants for a corruption investigation by the Commissioner if satisfied that there are reasonable grounds for the Commissioner’s suspicions that:

       one or more relevant offences have been, are being, are about to be, or are likely to be, committed;

       an investigation into those offences is being, will be, or is likely to be, conducted; and

       the use of a surveillance device, or access to data held in a computer, is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders.

317.               Similarly, under the TIA Act, an eligible Judge or a nominated AAT member may grant an interception warrant if satisfied that, among other things, there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the relevant telecommunications service, and that the information obtained would be likely to assist in connection with the investigation of a serious offence in which the person (or a person with whom they are communicating) is involved. A serious offence is defined in section 5D of the TIA Act.

318.               In addition, in determining whether a warrant or production order should be issued under the SD Act or the TIA Act, the issuing Judge or AAT member would also be required to have regard to the extent to which the privacy of any person is likely to be interfered with as a result of exercising the warrant, and the existence of any alternative means of obtaining the evidence or information (subsections 16(2) and 27C(2) of the SD Act, subsections 46(2), 46A(2), 116(2) and 180F of the TIA Act, and subclauses 30(5), 39(5) and 48(5) of Schedule 1 to the TIA Act).

319.               The oversight arrangement set out under the NACC Bill would play a critical role in ensuring the exercise of these powers is reasonable, necessary and proportionate. Oversight through a Parliamentary Joint Committee and an independent Inspector of the NACC would provide assurance to the Parliament, Government and the public that the NACC is performing its functions fairly and effectively.

320.               These oversight mechanisms would operate in addition to the Commonwealth Ombudsman’s oversight of the NACC’s exercise of covert investigative powers. As is the case with other law enforcement agencies that are authorised to exercise covert powers, the Ombudsman would oversee the NACC’s use of the following mechanisms:

       surveillance devices and computer access powers under the SD Act;

       telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the TIA Act; and

       industry assistance under the Telecommunications Act 1997.

321.               The Commonwealth Ombudsman would also provide oversight of state-based anti-corruption commissions to the extent they exercise industry assistance powers.

322.               Oversight by the Commonwealth Ombudsman would provide further assurance that the exercise of powers that limit the right to privacy are reasonable, necessary and proportionate.

Information sharing

323.               The Consequential Bill would further engage the right to privacy in that it would allow for reciprocal information sharing between the Commissioner and relevant agencies. The information that may be shared through these arrangements may include personal information, or information considered to fall within the scope of the right to privacy.

324.               A number of measures in Schedule 1 Part 2 of the Consequential Bill would provide for reciprocal information sharing between agencies and the Commissioner.

325.               For example, items 4 to 10 would amend the AML/CTF Act to provide that information may be shared between the Commissioner (and other staff members of the NACC) and AUSTRAC for the purposes of the Consequential Bill, or in connection with the performance or exercise of the person’s functions, powers or duties. Similar information sharing arrangements would be made for the AFP Act (items 20 to 33), the IGIS Act (items 117 to 121) and the Data Availability and Transparency Act 2021 (items 108 to 111).

326.               Schedule 1 of the Consequential Bill would also amend the Crimes Act 1914, to allow constables and Commonwealth officers to use and share documents and things that have been seized or produced under the Crimes Act 1914 for corruption investigations, public inquiries, NACC corruption investigations and NACC complaint investigations (items 40 and 41).

Rational connection to a legitimate objective

327.               The information sharing mechanisms provided for under the Consequential Bill would be critical to supporting both the Commissioner’s and the Inspector’s investigation and inquiry functions, by allowing other agencies to refer relevant information and material where appropriate.

328.               Limiting the right to privacy through the disclosure of personal information, including identifying information, would enable the Commissioner or the Inspector to aid a corruption investigation being undertaken jointly with another agency, or a related investigation being undertaken by a Commonwealth agency, or a State or Territory government entity. This recognises the NACC’s prevention functions as part of a broader integrity framework, and its role in supporting the proper enforcement of the law.

Reasonable, necessary and proportionate

329.               Information sharing is particularly necessary, given the nature of the matters that the Commissioner may work on and the potential for overlap with the work of other Commonwealth integrity agencies and law enforcement agencies such as the AFP.

330.               Effective information sharing mechanisms would be necessarily dependent on partial limitations to the right to privacy. It would be necessary at times for agencies to share personal information, including identifying information and information regarding a person’s conduct, with the NACC to support its anti-corruption functions.

331.               Such limitations to the right to privacy would be proportionate, in that exceptions allowing for the disclosure of information are limited to targeted anti-corruption and law enforcement purposes under the Consequential Bill and other Acts of the Commonwealth. For example, such purposes would include allowing the AFP to share a document obtained in the course of a criminal investigation with the NACC where it is relevant to a corruption investigation.

332.               On this basis, limitations to the right to privacy are reasonable, necessary and proportionate to achieve the legitimate objective of conducting investigations or inquiries under the Consequential Bill, while preventing the disclosure of sensitive information and ensuring relevant powers are exercised with proper authority and subject to appropriate safeguards and oversight.

 


National Anti-Corruption Commission Bill 2022

1.1                   This Part deals with a number of preliminary matters, including the commencement and general application of the NACC Bill, the objects of the NACC Bill and the definitions.

Clause 1—Short title

1.2                   This clause provides for the short title of the Act to be enacted by the NACC Bill to be the National Anti‑Corruption Commission Act 2022.

Clause 2—Commencement

1.3                   This clause would provide for the commencement of each provision in the NACC Bill.

1.4                   The NACC Bill would generally commence on a single day to be fixed by Proclamation. However, provisions for the establishment of the Committee (Division 1 of Part 10) would commence on the day following Royal Assent. This is necessary to ensure the Committee can review and approve candidates for the positions of Commissioner, Deputy Commissioners and the Inspector in advance of the NACC being established (see clause 178).

1.5                   It is not necessary to commence provisions relating to the appointment of the Commissioners (Division 1 of Part 12) or the Inspector (Division 2 of Part 10) to facilitate the Committee approval process or, following the Committee’s approval, the appointment of the office-holders (see section 4 of the Acts Interpretation Act 1901). Appointments made prior to the day fixed by proclamation would commence on that day.

1.6                   The Government intends for the remaining provisions of the NACC Bill to commence by proclamation in mid‑2023 and for the NACC to be operational from that time.

1.7                   If a provision of the NACC Bill does not commence within the 12-month period beginning on the day on which the NACC Bill receives Royal Assent, it would commence on the day after the end of that period. A 12-month commencement period is appropriate considering the work necessary to stand-up the Commission as a new Commonwealth entity following the passage of the NACC Bill. The 12-month period extends beyond the Government’s planned commencement in mid‑2023 to address the risk of delay, including a delay outside the Government’s control, for example relating to the Committee’s approval of a Commissioner.

1.8                   Part 1, including this clause, would commence on the day the NACC Bill receives Royal Assent. This is a formality and would not enable any substantial operation of the NACC Bill.

Clause 3—Objects of this Act

1.9                   This clause would outline the objects of the NACC Bill. As section 15AA of the Acts Interpretation Act 1901 provides that statutes should be interpreted in accordance with their objects, all the other provisions of the NACC Bill are to be read, as far as is possible, as being designed to carry out these objects.

Investigating serious or systemic corrupt conduct

1.10               The NACC Bill would facilitate the detection of corrupt conduct and the timely investigation of corruption issues that could involve corrupt conduct that is serious or systemic.

1.11               The NACC would be a specialised investigative body tasked specifically with investigating allegations of serious or systemic corrupt conduct.

1.12               Corrupt conduct may constitute criminal conduct. The NACC and the Inspector would be able to investigate corrupt conduct that may constitute an offence, including as a law enforcement investigation with the primary purpose of gathering evidence to support the prosecution of any offence that is substantiated.

1.13               Corrupt conduct may also involve serious conduct that is incompatible with a public official’s position but that is not addressed by the criminal law. In these circumstances, the Commissioner could still exercise most of their powers to investigate the issue but the investigation and any consequences flowing from it would be of an administrative character.

Timeliness of investigations

1.14               The Government expects the NACC to conduct investigations in a timely manner and produce its reports in a timely manner. The timeliness of these processes is an important reputational safeguard and ensures allegations of corruption do not weigh on a person for an excessive length of time. What constitutes the ‘timely’ investigation of a particular corruption issue will depend on the scale and complexity of the issue, and all of the circumstances of a case. As such, it would be inappropriate for the NACC Bill to direct the Commissioner towards any particular timeframe for investigations. The question of whether an investigation would be capable of being ‘timely’ would, however, be a relevant consideration for the Commissioner or Inspector when considering whether to commence or continue a corruption investigation.

1.15               This object is not intended to weigh against the investigation of past corruption issues, provided that the investigation is conducted in a timely fashion after the corruption issue comes to the Commissioner or Inspector’s attention.

1.16               The importance of the timeliness of investigations is also reflected in the design of the Commissioner and Inspector’s powers, and the obligations imposed on Commonwealth agencies and other persons under the NACC Bill, including through:

       requirements for agency heads and persons with responsibilities under the PID Act to refer corruption issues that they suspect may involve corrupt conduct, as soon as is reasonably practicable after becoming aware of the issue, and to include with the referral all information relevant to the issue that is in their possession or control;

       broad discretions for the Commissioner and Inspector to deal with corruption issues, supported by powers to conduct preliminary investigations to confirm the existence or nature of a corruption issue, or assist them to decide whether or how to deal with the issue in a timely fashion;

       powers for the Commissioner and Inspector to obtain information and documents from Commonwealth agencies with a minimum of formality, as well as a broader suite of investigative powers—including, in particular, powers to require the production of information or documents within a specified timeframe, or a person’s attendance at a hearing at a particular time; and

       a reporting process that facilitates the timely finalisation and provision of reports, subject to procedural fairness requirements.

Enabling referral for prosecution, civil proceedings or disciplinary action

1.17               The NACC Bill would enable, after investigation of a corruption issue, the referral of persons for criminal prosecution, civil proceedings or disciplinary action. The NACC would be an investigative rather than a judicial body. If, during the course of a corruption investigation or public inquiry, the Commissioner uncovers evidence of criminal conduct—whether that conduct is also corrupt conduct or not—the Commissioner could refer that evidence to prosecuting authorities for criminal prosecution before a court, or to a relevant police force for further investigation. Only a court would be able to make a finding of criminal guilt or impose punishments on an offender.

1.18               Given the broad scope of corrupt conduct within the NACC’s jurisdiction, evidence obtained during an investigation or inquiry may not support a criminal prosecution. However, evidence could also be provided to other Commonwealth agencies responsible for commencing civil proceedings or taking disciplinary action against a person. For example, evidence could be referred to a regulator empowered to seek a civil penalty or evidence could be referred to a person’s employing agency for appropriate disciplinary action, including the termination of the person’s employment.

Preventing corrupt conduct

1.19               The NACC Bill supports the prevention of corruption in a number of ways, including by giving the NACC education and prevention functions.

1.20               By enabling the publication of investigation reports in the public interest, the NACC Bill would enable the public exposure of corrupt conduct in appropriate circumstances. The NACC Bill would also enable the Commissioner to conduct public inquiries into corruption risks and vulnerabilities in the Commonwealth, and measures to prevent corruption in Commonwealth agencies. The Commissioner may invite public submissions and hold public hearings in relation to such inquiries.

1.21               In the course of performing their functions, the Commissioner will obtain valuable information and insights into corruption risks, vulnerabilities and trends, of both a general and specific nature. In addition to using such information for the purpose of corruption investigations, the Commissioner would be able to use this information to provide education and information about corruption, and the detrimental effects of corruption on public administration and the Australian community. Such education and information may be provided to other Commonwealth agencies, as well as more broadly—including to State or Territory government entities, and to the public at large. Providing this education and information would be a function of the Commissioner (see paragraph 17(h)). The Commissioner would also be able to use such information in the performance of their functions of:

       collecting, correlating, analysing and disseminating general information and intelligence about corrupt conduct (see paragraph 17(i)); and

       reporting, and making recommendations, to the Minister concerning the need for, or desirability of, legislative or administrative reform in relation to any matters dealt with by the NACC Bill (see paragraph 17(j)).

Clause 4—Simplified outline of this Act

1.22               This clause would provide a simplified outline of the NACC Bill, including the framework it would create for the Commissioner and the NACC to deal with corruption issues.

1.23               The simplified outline would be included to assist readers to understand the substantive provisions of the NACC Bill. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the NACC Bill.

Clause 5—Application of this Act

1.24               This clause would provide that the NACC Bill applies both within and outside Australia, and to the external territories.

1.25               By providing the Commissioner with jurisdiction within and outside Australia and in every external Territory, the Commissioner would be able to investigate the conduct of public officials located overseas (for example, when travelling or living overseas on posting) and, in limited circumstances, conduct hearings overseas (see also clause 79).

Clause 6—Crown to be bound

1.26               This clause would provide that the NACC Bill will bind Crown in each of its capacities. This reflects the fact that government entities and public officials would be subject to obligations under the NACC Bill. For example, State or Territory government entities may receive information from the NACC or during the course of a joint investigation to which a confidentiality direction or requirement applies (see clauses 100 and 233 respectively).

1.27               This clause would also provide that the Crown would not be liable to a pecuniary penalty or to be prosecuted for an offence under the NACC Bill.

Clause 7—Definitions

1.28               This clause would set out the Dictionary for the NACC Bill and define the following terms.

1.29               Accountable authority has the same meaning as in the PGPA Act. The accountable authority of a Commonwealth entity is responsible for the entity for the purposes of the finance law, including the PGPA Act. Accountable authorities include the secretaries of Departments of State and Parliamentary Departments, the heads of certain statutory authorities and the boards of corporate Commonwealth entities. The accountable authority of many Commonwealth agencies will be the head of the agency for the purposes of the NACC Bill.

1.30               AFP means the Australian Federal Police. The Commissioner may work with the AFP and AFP members to conduct corruption investigations. The AFP is also a Commonwealth agency subject to the NACC’s jurisdiction and a Commonwealth integrity agency.

1.31               AFP Commissioner means the Commissioner of Police appointed under the AFP Act. The AFP Commissioner is the head of the AFP.

1.32               Annual report is defined in subclauses 198(1) and 271(1). The Commissioner and the Inspector would be required to report on the performance of their functions during each financial year.

1.33               Agency head is defined in clause 11. The head of an agency would generally be responsible for referring corruption issues arising within their agency to the Commissioner (see clause 33).

1.34               Australia, when used in a geographical sense, includes the external Territories.

1.35               The Australian Geospatial-Intelligence Organisation forms part of the Department of Defence but would be treated as a separate Commonwealth agency for the purposes of the NACC Bill. The Australian Geospatial‑Intelligence Organisation would be an intelligence agency, reflecting the nature of its work. Appropriate arrangements would be in place for intelligence agencies, for example to protect sensitive information dealt with by the Australian Geospatial‑Intelligence Organisation.

1.36               Australian travel document means an Australian passport or a travel‑related document issued under the Australian Passports Act 2005. Under clause 88, the Commissioner may apply for a court order that a witness deliver an Australian travel document or a foreign equivalent to prevent the witness from leaving the country.

1.37               Authorised discloser is defined in clause 227 to include the Commissioner and the Inspector. The confidentiality requirements in Part 11 permit authorised disclosers to disclose information obtained by the NACC and the Inspector in specific circumstances.

1.38               Authorised officer means:

       the Commissioner;

       a Deputy Commissioner; or

       a person appointed as an authorised officer by the Commissioner under clause 267.

1.39               Authorised officers would be able to exercise certain investigative powers on behalf of the NACC, for example, applying for and executing search warrants.

1.40               CEO means the Chief Executive Officer of the NACC, a position established by clause 251.

1.41               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.

1.42               Commissioner means the National Anti-Corruption Commissioner established by clause 16.

1.43               Committee means the Parliamentary Joint Committee on the National Anti-Corruption Commission (see Division 1 of Part 10). The Committee would oversee the NACC.

1.44               Commonwealth agency is defined in clause 11. Staff members of Commonwealth agencies (see clause 12) would be public officials subject to the NACC’s jurisdiction.

1.45               Commonwealth company has the same meaning as in the PGPA Act. A Commonwealth company is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001 that the Commonwealth controls directly (see section 89 of the PGPA Act). Staff members of Commonwealth companies are public officials subject to the NACC’s jurisdiction. For example, NBN Co Limited is a Commonwealth company.

1.46               Commonwealth contract is defined in clause 13. A person providing goods or services for a Commonwealth contract may be a contracted service provider or a staff member of a Commonwealth agency.

1.47               Commonwealth entity has the same meaning as in the PGPA Act. In section 10 of that Act, a Commonwealth entity is:

       a Department of State;

       a Parliamentary Department established under the Parliamentary Service Act 1999, for example the Department of Parliamentary Services;

       a listed entity, as prescribed by an Act or Schedule 1 to the PGPA Rule, for example the ATO or the AFP;

       a body corporate that is established by a law of the Commonwealth, for example the Commonwealth Scientific and Industrial Research Organisation; or

       a body corporate that is established under a law of the Commonwealth (other than a Commonwealth company) and is prescribed by an Act or the PGPA Rule to be a Commonwealth entity, for example Land Councils listed in section 7A of the PGPA Rule.

1.48               The High Court and the Future Fund Board of Guardians are not Commonwealth entities. Staff members of the High Court—excluding the Justices of the Court—and members of the Future Fund Board of Guardians are still public officials subject to the NACC’s jurisdiction (see paragraphs 2.105 to 2.107).

1.49               Commonwealth integrity agencies are listed in clause 15. The Commissioner may only investigate a corruption issue that a Commonwealth integrity agency has previously investigated if the new investigation is in the public interest (see clause 45).

1.50               Confiscation proceeding is defined in clause 136 to mean a proceeding under the POC Act and equivalent State and Territory legislation. Different rules would apply to the collection, use and disclosure of investigation material that relates to a relevant confiscation proceeding that is on foot (see for example clause 58).

1.51               Completion report means a report prepared by a Commonwealth agency on the completion of an investigation of a corruption issue that was referred to the agency by the Commissioner (see clause 52).

1.52               Constable means:

       a member or special member of the AFP; or

       a member of the police force or police service of a State or Territory.

1.53               The Commissioner would be able direct a constable or an authorised officer to detain a person the Commissioner considers is in contempt of the NACC (see clause 85).

1.54               A container includes:

       a trailer or other like receptacle, whether with or without wheels, that is used for the movement of goods from one place to another, including a shipping container;

       any baggage; and

       any other thing that is or could be used for the carriage of goods, whether or not designed for that purpose.

1.55               A container is included in the definition of premises (see paragraph 1.133) and may be the subject of a search warrant.

1.56               Contract includes any arrangement, agreement, deed or understanding. This extended definition would mean a person may be a contracted service provider even if the person provides services to the Commonwealth without consideration. However, the definition is not intended to cover pre‑contractual activities that do not amount to a settled arrangement, agreement, deed or understanding.

1.57               Contracted service provider is defined in clause 13. A provider, or an employee or officer of a provider, may be a staff member of the Commonwealth agency administering the relevant Commonwealth contract.

1.58               Contravene, in relation to a certificate issued under clause 235 or 236, is defined in those clauses. A disclosure would contravene a certificate if the disclosure would be contrary to the public interest according to the terms of the certificate.

1.59               A conveyance includes an aircraft, vehicle or vessel. A conveyance is included in the definition of premises (see paragraph 1.133) and may be the subject of a search warrant.

1.60               Corrupt conduct is defined in clause 8. The existence of a corruption issue (see clause 9) concerning alleged corrupt conduct forms the basis for the NACC’s jurisdiction. However, the Commissioner would only be able to investigate a corruption issue if the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

1.61               Corporate commonwealth entity has the same meaning as in the PGPA Act. A corporate Commonwealth entity is a Commonwealth entity that is a body corporate (see paragraph 11(a) of the PGPA Act), for example the Commonwealth Scientific and Industrial Research Organisation. Staff members of corporate commonwealth entities are public officials subject to the NACC’s jurisdiction.

1.62               Corruption investigation is defined in clause 41 to mean an investigation of a corruption issue by the Commissioner, including a joint investigation with a Commonwealth agency, or State or Territory Government entity. The Commissioner would only be able to investigate issues if the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

1.63               Corruption issue is defined in clause 9. The existence of a corruption issue concerning alleged corrupt conduct forms the basis for the NACC’s jurisdiction. A corruption issue does not include a NACC corruption issue.

1.64               Criminal proceeding means a prosecution for an offence against a law of the Commonwealth or of a State or Territory.

1.65               Defence Department means the Department administered by the Minister administering Part III of the Defence Act 1903.

1.66               The Defence Intelligence Organisation forms part of the Department of Defence but would be treated as a separate Commonwealth agency for the purposes of the NACC Bill. The Defence Intelligence Organisation would be an intelligence agency, reflecting the nature of its work. Appropriate arrangements would be in place for intelligence agencies, for example to protect sensitive information dealt with by the Defence Intelligence Organisation.

1.67               Deputy Commissioner means a National Anti-Corruption Deputy Commissioner, a position established under clause 18.

1.68               Derivative material is defined in clause 133 to mean any evidence, information, document or thing obtained directly or indirectly from investigation material (defined in clause 99).

1.69               Detriment is defined in clause 29. The term has its ordinary meaning and includes disadvantage with respect to a person’s employment, including the termination or an alteration of the person’s position to their detriment (see paragraph 4.50).

1.70               Direction to produce means a direction issued by the Commissioner to the head of a Commonwealth agency requiring the agency head to produce information, documents or things for the purposes of a corruption investigation (see clause 57).

1.71               Entrusted person is defined in clause 227 to mean staff members of the NACC, the Inspector and a person assisting the Inspector. Entrusted persons are subject to the confidentiality requirements in Part 11.

1.72               Exempt secrecy provision means:

       Part 11 (secrecy and access) of the AML/CTF Act;

       section 34 of the IGIS Act (concerning the secrecy of information held by the IGIS and their staff);

       a secrecy provision (see paragraph 1.148) under the My Health Records Act 2012;

       a secrecy provision in Part VIIIA of the Privacy Act 1988 (concerning COVIDSafe app data);

       section 45 of the SD Act (a prohibition on use, recording, communication or publication of protected information or its admission in evidence);

       section 45B of the SD Act (a prohibition on use, recording, communication or publication of protected network activity warrant information or its admission in evidence);

       section 63 of the TIA Act (a prohibition on dealing in intercepted information or interception warrant information);

       section 133 of the TIA Act (a prohibition on dealing with accessed information); or

       a secrecy provision that is a provision of a taxation law, for example:

      a law of which the Commissioner of Taxation has general administration such as the provisions of Division 355 in Schedule 1 to the Taxation Administration Act 1953 (concerning the protection of information that was disclosed or obtained under or for the purposes of a taxation law); and

      section 70-35 of the Tax Agent Services Act 2009 (concerning the protection of official information that was disclosed or obtained under or for the purposes of that Act);

       a secrecy provision that is expressed to apply despite the NACC Bill; and

       anything done under an exempt secrecy provision.

1.73               An exempt secrecy provision would not be overridden by the NACC Bill. This means a person may not need to provide certain information to the Commissioner or another person for the purposes of the NACC Bill. For example, the Commissioner cannot require a person to provide access to personal medical information protected under the My Health Records Act 2012. There is a compelling individual interest in preserving the privacy of this information, which is unlikely to be particularly relevant to a corruption investigation.

1.74               The distinguishing feature of other exempt secrecy provisions from secrecy provisions more generally (see paragraph 1.148) is that they provide a complete regime for the use and protection of information obtained under relevant Commonwealth law. The NACC Bill preserves the effect of these specific kinds of secrecy provisions by providing exceptions to general secrecy overrides. This does not mean that the Commissioner cannot obtain information subject to an exempt secrecy provision. Rather, the Commissioner must access that information in accordance with those provisions, including as amended by the Consequential Bill.

1.75               Federal Court means the Federal Court of Australia.

1.76               Finance law has the same meaning as in the PGPA Act and is the collective term for that Act, the rules and other instruments made under that Act, and the Appropriation Acts.

1.77               Foreign Affairs Department is defined in clause 240 to mean the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967. Under that clause, the Commissioner or Inspector would be required to consult the Foreign Affairs Department about matters concerning foreign officials and certain conduct of foreign nationals.

1.78               Head is defined as follows:

       in relation to a Commonwealth agency—head is defined in subclause 11(1);

       in relation to a State or Territory government entity—head means the person holding, or performing the duties of, the principal office in respect of the entity;

1.79               Hearing means a hearing held under the NACC Bill (see Division 3 of Part 7).

1.80               The IGIS is the Inspector‑General of Intelligence and Security. The IGIS is the head of a Commonwealth agency—the Office of the Inspector‑General of Intelligence and Security. The Office is a Commonwealth integrity agency. Further, the IGIS plays an important role in dealing with corruption issues concerning intelligence agencies (see, for example, clause 34).

1.81               IGIS official means the IGIS and staff assisting the IGIS under subsection 32(1) of the IGIS Act.

1.82               A charge for an offence, or a confiscation proceeding, is imminent in the circumstances set out in clause 132. An imminent charge or proceeding is treated in the same way as a charge or proceeding that is on foot. Additional requirements apply to the Commissioner’s powers and the use and disclosure of investigation material when they relate to a charge or proceeding that is imminent or on foot.

1.83               Inquiry report means a report prepared following a public inquiry (see clause 164).

1.84               Inspector means the Inspector of the NACC, who is responsible for overseeing the NACC and is established by clause 182.

1.85               Inspector-General of Biosecurity means the person appointed under section 566A of the Biosecurity Act 2015.

1.86               Inspector-General of Live Animal Exports means the office established by section 9 of the Inspector-General of Live Animal Exports Act 2019.

1.87               Inspector-General of the Australian Defence Force means the office established by section 110B of the Defence Act 1903.

1.88               Inspector-General of Water Compliance means the office established by section 215B of the Water Act 2007.

1.89               The four Inspectors-General defined at paragraphs 1.85 to 1.88 above would be treated as independent Commonwealth agencies and as if they do not form part of the Department of Agriculture, Fisheries and Forestry, or the Department of Defence (see paragraphs 2.111 to 2.113). This reflects their independence from the Departments they oversee. The four Inspectors‑General and their staff would be Commonwealth integrity agencies.

1.90               Intelligence agency means:

       the Australian Geospatial-Intelligence Organisation;

       ASIS;

       ASIO;

       the Australian Signals Directorate;

       the Defence Intelligence Organisation; or

       the Office of National Intelligence.

1.91               The NACC Bill would establish a number of arrangements for dealing with corruption issues that concern intelligence agencies. These arrangements would be designed to protect sensitive and intelligence information used by those agencies, while allowing corruption issues to be investigated.

1.92               Intelligence information is defined in clause 239. That clause provides for the Commissioner and the Inspector to enter into arrangements with intelligence agencies for obtaining, storing, accessing, using or disclosing intelligence information.

1.93               International relations has the meaning given by section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004: ‘political, military and economic relations with foreign governments and international organisations’.

1.94               International relations certificate means a certificate issued by the Attorney-General under clause 236. These certificates may restrict the disclosure of information on the grounds that the disclosure would harm or prejudice Australia’s international relations in relation to information that was communicated in confidence to Australia by a foreign government under an international agreement.

1.95               Investigation material is defined in clause 99. Restrictions apply to the use and disclosure of investigation material.

1.96               Investigation report means a report prepared following a corruption investigation (see clause 149).

1.97               Law enforcement agency means an authority or person responsible for the enforcement of the laws of the Commonwealth, or of a State or Territory. This would include the AFP, and the police force or police service of a State or Territory.

1.98               Law of the Commonwealth includes a law in force in an external Territory or the Jervis Bay Territory, so far as the law is in force because of an Act providing for the acceptance, administration or government of that Territory.

1.99               Legal aid officer is defined in clause 84 to mean 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. The regulations would be able to prescribe additional legal aid officers in connection with legal financial assistance provided under the regulations (see paragraph 13.44).

1.100           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.

1.101           Magistrate is defined in clause 112 to mean a magistrate who is remunerated by salary or otherwise, and includes a Judge, or acting Judge, of the Local Court of the Northern Territory. That clause permits the Commissioner to apply to a magistrate for the retention, forfeiture, disposal or destruction of a thing produced to the Commissioner if the thing is likely to be used in the commission of a serious offence.

1.102           NACC means the National Anti-Corruption Commission, as established by clause 20.

1.103           NACC Act process means:

       a corruption investigation;

       a NACC complaint investigation;

       a NACC corruption investigation; or

       a public inquiry.

1.104           A NACC Act process does not include:

       an investigation conducted by a Commonwealth agency following a referral of a corruption issue by the Commissioner;

       an investigation of a NACC corruption issue by the Commissioner following a referral of the issue by the Inspector; or

       a preliminary investigation conducted by either the Commissioner or the Inspector.

1.105           NACC Commissioner means the Commissioner or a Deputy Commissioner.

1.106           NACC complaint investigation means an investigation by the Inspector of a complaint against the NACC (see clause 212).

1.107           NACC corruption investigation means an investigation of a NACC corruption issue conducted by the Inspector (see clause 210).

1.108           NACC corruption issue is defined in clause 201. The existence of a NACC corruption issue concerning alleged corrupt conduct with a connection to the NACC (for example because it concerns the conduct of a NACC staff member) forms the basis for the Inspector’s jurisdiction. The Inspector would only be able to investigate NACC corruption issues if the Inspector is of the opinion that the issue could involve corrupt conduct that is serious or systemic. A NACC corruption issue is not also a corruption issue.

1.109           NACC disclosure is defined in clause 35 to include the provision of any evidence or information under the NACC Bill to the Commissioner, the IGIS or the Inspector. A person who makes a NACC disclosure receives certain protections, including immunities from liability and protections against reprisals.

1.110           NACC investigation report means a report prepared following a NACC corruption investigation (see clause 215).

1.111           Non-disclosure notation means a requirement attached to a notice to produce or a summons requiring a person not to disclose information about the notice or summons, or other official matters (see clause 81 and paragraph 1.114).

1.112           Notice to produce means a notice issued under clause 58 requiring a person to provide information, documents or things to the Commissioner.

1.113           Occupier of premises is defined in clause 268 to mean the person apparently in charge of the premises.

1.114           Official matter is defined in clause 81 to mean:

       a corruption investigation;

       any other investigation or inquiry under the NACC Bill; or

       court proceedings.

1.115           An official matter may be past, present or contingent. An official matter connected with a summons or notice to produce may be protected by a non-disclosure notation (see clause 95).

1.116           Official of a registered industrial organisation means a person who holds an office (within the meaning of the Fair Work Act 2009) in an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009. Despite holding an office and exercising functions under an Act, these officials are not statutory office holders or staff members of Commonwealth agencies for the purposes of the NACC Bill because their offices and functions are not public in nature. The offices relate to the relevant organisation or association. An official may be a public official for the purposes of the NACC Bill on another basis.

1.117           Paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise). Office holders appointed under the NACC Bill would be subject to restrictions on their ability to undertake other paid work.

1.118           Parliamentarian means:

       a senator;

       a member of the House of Representatives;

       a Minister of State (whether or not the Minister is a senator or a member of the House of Representatives);

       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;

       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; or

       any other person to whom remuneration is payable under section 49 of the Parliamentary Business Resources Act 2017.

1.119           The Parliamentary Presiding Officers Act 1965 provides for a person to be deemed the Speaker of the House of Representatives or President of the Senate during vacancies in those offices. For example, section 6 of that Act provides that the Presiding Officer of a House at the time the House is dissolved or expires is deemed to continue to be the Presiding Officer of that House until a new Presiding Officer is chosen. As the person remains able to exercise official powers and perform official functions despite not being a parliamentarian in the ordinary sense, they would be included in the definition to bring their conduct within the NACC’s jurisdiction.

1.120           A parliamentarian recontesting an election remains a parliamentarian subject to the NACC’s jurisdiction throughout the election period. Section 49 of the Parliamentary Business Resources Act 2017 provides that remuneration is payable to a parliamentarian following the dissolution of the relevant House of Parliament at least until the next election if the person recontests that election (if they are re-elected, their remuneration does not cease). During that time the person is not legally a senator or member of the House of Representatives. However, because the person continues to derive public resources and may influence public affairs using their former position, they would be included in the definition to bring their conduct within the NACC’s jurisdiction.

1.121           A Minister of State need not be a senator or member of the House of Representatives for a three‑month period, for example when the relevant House of Parliament is dissolved (section 64 of the Constitution). If a Minister was a member of a House of Parliament that is dissolved—and the Minister does not seek re-election to enliven section 49 of the Parliamentary Business Resources Act 2017—the Minister is still taken to be a parliamentarian and a public official while continuing to serve as a Minister.

1.122           A member or senator who is also a Minister is a parliamentarian and a public official with respect to both capacities. Their conduct in either capacity may be subject to the NACC’s jurisdiction.

1.123           Parliamentary office means the office of a parliamentarian. Staff members of a parliamentarian are public officials subject to the NACC’s jurisdiction.

1.124           A person is a permanent resident of Australia if the person is a permanent resident within the meaning of the Australian Citizenship Act 2007, which generally refers to a person who holds a permanent visa (see clause 240).

1.125           Person assisting the Inspector is defined in clause 195.

1.126           PGPA Act means the Public Governance, Performance and Accountability Act 2013.

1.127           An event is post-charge if it occurs at a time when a witness has been charged with a relevant offence and that charge is still to be resolved (or such a charge is imminent) (see clause 130).

1.128           An event is post-confiscation application if it occurs at a time when a relevant confiscation proceeding has commenced against a witness and that proceeding is still to be resolved (or such a proceeding is imminent) (see clause 135).

1.129           An event is pre-charge if it occurs when a witness has not been charged with a relevant offence (and no such charge is imminent) or all such charges have been resolved (see clause 129).

1.130           An event is pre-confiscation application if it occurs when a relevant confiscation proceeding has not been commenced (and no such proceeding is imminent) or all such proceedings have been resolved (see clause 134).

1.131           For the four definitions outlined above, the events are:

       a notice to produce is issued to the person;

       a summons is issued for the person to attend a hearing as a witness;

       a hearing commences at which the person is to appear as a witness;

       material at a hearing that relates to the person becomes investigation material; or

       such investigation material or derivative material is used or disclosed.

1.132           Additional rules apply to those events if they occur in post-charge or post-confiscation application circumstances. This reflects the fact that those events are more likely to affect a person’s trial for a relevant offence, or relevant confiscation proceedings, in those circumstances.

1.133           Premises includes a place, a container or a conveyance (see paragraphs 1.54 and 1.59). This term is used in the context of search warrants issued under the NACC Bill.

1.134           Private hearing summons means a summons to attend a hearing all or part of which is to be held in private (see clause 95).

1.135           A proceeds of crime authority is defined in clause 138 to mean:

       a proceeds of crime authority within the meaning of the POC Act, being the AFP Commissioner or the Director of Public Prosecutions; or

       an authority of a State or Territory responsible for conducting a confiscation proceeding under a corresponding State or Territory law prescribed in the regulations made under that Act.

1.136           This term is relevant to the use and disclosure of investigation material (see clause 109).

1.137           A prosecuting authority is defined in clause 105 to mean an individual or authority, authorised by or under a law of the Commonwealth or of a State or Territory to prosecute an offence. The term is intended to include the CDPP and their State and Territory counterparts. It is also intended to extend to other bodies that may have prosecutorial functions, such as State or Territory police.

1.138           A prosecutor of a witness is defined in clause 105 to mean an individual who is a prosecuting authority or is employed or engaged by a prosecuting authority and who:

       makes, or is involved in the making of, a decision whether to prosecute the witness for a relevant offence; or

       is one of the individuals engaging in such a prosecution of the witness.

1.139           The definition is intended to cover only the persons who are directly involved in the prosecution of a witness for a relevant offence or the decision about whether to prosecute the witness. This would include:

       the Director of Public Prosecutions;

       the prosecutors who have carriage of the prosecution of the witness, other prosecutors who assist that prosecutor in the prosecution of the witness or who assist in making the decision to prosecute the witness;

       counsel engaged to assist in the prosecution of the witness; and

       support staff who assist in the prosecution of the witness.

1.140           The definition is not intended to cover the following:

       police or law enforcement officers involved in the investigation which led to the witness being charged;

       police or law enforcement officers who are witnesses in a prosecution of the witness for a relevant offence;

       persons involved in the prosecution of the witness for unrelated offences (whether that prosecution is by the same prosecuting authority or another prosecuting authority);

       persons involved in the prosecution only of persons other than the witness.

1.141           Protected information report means a report of an investigation or inquiry containing sensitive information or section 235 certified information. Protected information reports are disseminated on a limited basis. The unauthorised disclosure of a protected information report would be an offence against clause 234.

1.142           Protected suspect is defined in clause 132 by reference to Part IC of the Crimes Act 1914, and generally means a person being questioned about a Commonwealth, State or Territory offence that has not been arrested for the offence. If a person is a protected suspect, it indicates a charge against them is imminent (see paragraph 1.82).

1.143           Public inquiry means a public inquiry conducted under Part 9.

1.144           Public official is defined in clause 10. Public officials are subject to the NACC’s jurisdiction.

1.145           Relevant confiscation proceedings are defined in clause 137. The existence of confiscation proceedings relevant to an event (or the imminence of such proceedings) will make the event a post-confiscation application event and additional restrictions will apply to the event.

1.146           Relevant offence is defined in clause 131. The existence of a charge for an offence relevant to an event (or the imminence of such a charge) will make the event a post-charge event and additional restrictions will apply to the event.

1.147           A charge for an offence, or a confiscation proceeding, is resolved in relation to a person, as set out in clause 139 by reference to the relevant proceedings and any appeal proceedings. An event will not be a post-charge event if all charges for relevant offences have been resolved (and no new charges are imminent).

1.148           A secrecy provision is a provision of a law of the Commonwealth (or anything done under such a provision) that purports to prohibit:

       the use of information, or a document or thing;

       dealing with information, or a document or thing;

       making a record of information, or a copy of a document or thing;

       the disclosure or publication of information;

       the production of, or the publication of the contents of, a document;

       the production of a thing; or

       access to information, a document or thing.

1.149           Provisions of the NACC Bill override secrecy provisions (other than exempt secrecy provisions: see paragraph 1.72). This is the case regardless of whether the secrecy provision:

       commenced before the commencement of the NACC Bill; or

       is expressed to apply despite any other law.

1.150           The Commissioner’s information-gathering powers would not be limited by the provisions of any other law unless that law is an exempt secrecy provision. This would include a law that expressly excludes the Commissioner’s power to obtain information or expressly excludes the operation of the Act to be enacted by the NACC Bill. This requirement is to ensure that Parliament is expressly alerted to any restrictions that might be sought in the future that would limit the Commissioner’s capacity to carry out their statutory functions including the investigation of corruption issues that, in the Commissioner’s opinion, could involve corrupt conduct that is serious or systemic. That is, it is not intended that laws that contain merely general or blanket privacy provisions, restricting access to information other than to specified persons, should apply to the Commissioner. This approach reflects the approach to the relationship between the Auditor-General Act 1997 and other laws.

1.151           The definition of secrecy provision does not need to apply to State and Territory laws because those laws would not operate to displace a power to obtain—or an obligation to provide—information, documents or things under a Commonwealth law such as the Act to be enacted by the NACC Bill.

1.152           Section 235 certified information means information that is about a matter or contained in a document specified in a certificate in force under clause 235. Section 235 certificates are issued by the Attorney‑General to protect against the disclosure of information or documents that would be contrary to the public interest.

1.153           Security matters are defined in clause 237. The Commissioner or Inspector must generally consult with the head of ASIO under that clause if they become aware of a security matter.

1.154           Sensitive information is defined in clause 227. There are restrictions on the disclosure of sensitive information throughout the NACC Bill.

1.155           Serious offence is defined in clause 112. That clause permits the Commissioner to apply to a magistrate for the retention, forfeiture, disposal or destruction of a thing produced to the Commissioner if the thing is likely to be used in the commission of a serious offence.

1.156           A staff member of a Commonwealth agency is defined in clause 12. Staff members of Commonwealth agencies are public officials subject to the NACC’s jurisdiction.

1.157           A staff member of the NACC is defined in clause 266.

1.158           State or Territory government entity means:

       a department of a State or Territory; or

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

1.159           Statutory office holder is defined in clause 14. Statutory office holders would be staff members of Commonwealth agencies and public officials within the NACC’s jurisdiction.

1.160           Subsidiary has the same meaning as in the PGPA Act: an entity that is controlled by a corporate Commonwealth entity or Commonwealth company (see section 8 of the PGPA Act).

1.161           Summons means a summons issued under clause 63.

1.162           Superior court judge is defined in clause 90 to mean:

       a Judge of the Federal Court; or

       a Judge of the Supreme Court of a State or Territory.

1.163           Takes a reprisal is defined in clause 29. Taking a reprisal or threatening to take a reprisal against a person for making a NACC disclosure is an offence against clause 30.

1.164           Travel document is defined in clause 88 to mean an Australian travel document or a passport or travel document issued by a foreign country. The Commissioner may apply to a Judge of the Federal Court under that clause for an order that a person surrender a travel document in certain circumstances.

1.165           Witness generally means a person who is required to comply with a notice to produce or a summons, or who gives evidence at a hearing.

1.166           Witness also has a specific meaning in relation to investigation material and derivative material that is provided for in clause 99. There, a witness is a person referenced in the definition of investigation material, which would include a person who complies with a notice to produce or who gives evidence during the course of a hearing, a person about whom allegations have been raised, or a person of interest to an investigation or inquiry.

1.167           However, there would be no witness for investigation material that consists of the fact that a private hearing has been or may be held.


Part 2      Key concepts used in this Act

2.1                   This Part would set out the key concepts that would establish the Commissioner’s jurisdiction to:

       deal with corruption issues (as defined in clause 9) concerning allegations of corrupt conduct (as defined in clause 8) by public officials (as defined in clause 10), as well as any person whose conduct adversely affects, or could adversely affect, the honest or impartial exercise by a public official of their powers, functions or duties; and

       where the Commissioner is of the opinion that a corruption issue could involve corrupt conduct that is serious or systemic—investigate the issue (as provided for in clause 41).

2.2                   The definition of corrupt conduct would be central to the operation of the NACC Bill, and to the Commissioner’s jurisdiction. The definition would incorporate elements drawn from the LEIC Act and legislation establishing State and Territory anti-corruption bodies, and would cover criminal and non-criminal forms of corrupt conduct.

2.3                   The Commissioner would be able to deal with corruption issuesbeing an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct—in a number of ways (see clause 41).

2.4                   The Commissioner would have broad jurisdiction to investigate corruption issues that could involve corrupt conduct that is serious or systemic by public officials—including Commonwealth ministers, parliamentarians, staff members of Commonwealth agencies (including staff members of parliamentarians), statutory office holders and contracted service providers. This broad jurisdiction would ensure that, where an individual exercises powers or performs functions on behalf of the Commonwealth in any capacity, they are likely to be within the Commission’s jurisdiction, regardless of the exact nature of their role. There would only be very limited exceptions to this general principle (see paragraph 2.145).

2.5                   The Commissioner would also have jurisdiction to investigate a corruption issue that could involve serious or systemic conduct by any person that could adversely affect the honesty or impartiality of a public official’s conduct. This would ensure that the Commissioner could fully investigate serious or systemic corrupt conduct and transactions between public officials and third parties, as well as attempts by third parties to corrupt public officials.

2.6                   The seriousness of particular instances of corrupt conduct or alleged corrupt conduct may vary significantly. The Commissioner would be able to deal with less serious corruption issues in other ways, for example, by referring the issue to the relevant Commonwealth agency for internal investigation. This would ensure that the Commissioner could focus their resources and capabilities on the investigation of serious or systemic corrupt conduct, while providing avenues for other corruption issues to be addressed by other agencies.

Division 1—Corrupt conduct and corruption issues

2.7                   This Division would define corrupt conduct and corruption issue.

Clause 8—Meaning of corrupt conduct

2.8                   This clause would define corrupt conduct. This clause is not intended to establish a new standard of conduct by public officials or alter the relationship between those officials and the public as reflected in Australia’s system of representative and responsible government. Rather, this clause is intended to reflect long-standing standards of conduct by public officials and their existing duty, including the duty to act in the public interest. This clause would enliven the NACC’s jurisdiction to deal with alleged conduct that breaches those standards and duties and to investigate those allegations that concern serious or systemic conduct. Corrupt conduct within the NACC’s jurisdiction would be defined in subclause 8(1) as follows:

(a)        any conduct of any person (whether or not a public official) that adversely affects, or could adversely affect, either directly or indirectly:

(i)         the honest or impartial exercise of any public official’s powers as a public official; or

(ii)        the honest or impartial performance of any public official’s functions or duties as a public official;

(b)        any conduct of a public official that constitutes or involves a breach of public trust;

(c)        any conduct of a public official that constitutes, involves, or is engaged in for the purpose of abuse of the person’s office as a public official;

(d)        any conduct of a public official, or former public official, that constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official;

(e)        any conduct of a public official in that capacity that constitutes, involves or is engaged in for the purpose of corruption of any other kind.

2.9                   Paragraphs 8(1)(a) to (d) of the definition of corrupt conduct are intended to be complementary and mutually reinforcing, rather than mutually exclusive. A particular instance of corrupt conduct may be covered by more than one of paragraphs 8(1)(a) to (d). Paragraph 8(1)(e) is intended to cover corruption of any other kind that is not dealt with in the preceding paragraphs.

2.10               While the definition largely focuses on the conduct of public officials, the definition of corrupt conduct would extend to the conduct of other persons (third parties) in two ways:

       if their conduct adversely affects, or could adversely affect, the honest or impartial exercise of a public official’s powers, or the honest or impartial performance of a public official’s functions and duties (see paragraphs 2.11 to 2.29); and

       if they conspire with another person (whether or not a public official) for that other person to engage in corrupt conduct covered by subclause 8(1) (see paragraphs 2.62 to 2.63).

Conduct of any person – adversely affecting the honest and impartial exercise of powers or performance of functions.

2.11               Paragraph 8(1)(a) would provide that any person engages in corrupt conduct if they engage in conduct that does or could adversely affect the honest or impartial exercise or performance of official powers, functions or duties by a public official.

2.12               Honesty is a core and consistent requirement of a person performing functions or exercising powers as a public official. The term honest has its ordinary meaning and requires no elaboration.

2.13               The term impartial is intended to be understood in the context of Australia’s system of representative and responsible government. Governments are elected to implement particular commitments, and to make policy and administrative decisions throughout a term of government. Some of those decisions will necessarily benefit some persons more than others. The New South Wales Court of Appeal considered the meaning of the term in the context of the definition of corrupt conduct in section 8 of the Independent Commission Against Corruption Act 1988 (NSW). In Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 (in which the Court of Appeal provided declaratory relief nullifying the New South Wales Independent Commission Against Corruption’s determination that the Premier of New South Wales, Mr Greiner, had engaged in corrupt conduct), Mahoney JA considered that partial conduct would only constitute corrupt conduct where there is an obligation to act in an impartial manner and a preference was given for a purpose extraneous to the power in question. Mahoney JA articulated (at 161) five elements to indicate partiality:

1.      it occurs in the context in which two or more persons or interests are in contest, in the sense of having competing claims;

2.      it indicates that a preference or advantage has been given to one of those persons or interests which has not been given to another;

3.      the advantage must be given in circumstances where there was a duty or at least an expectation that no one would be advantaged in the particular way over the others but, in the relevant sense, all would be treated equally;

4.      what was done in preferring one over the other was done for the purpose of giving a preference or advantage to that one; and

5.      the preference was given for a purpose which was extraneous to the power in question.

Examples of conduct that would not be considered partial

2.14               In the context of Australia’s representative democratic system of government, it would not be considered partial, in and of itself, for a Minister or public official to implement the election commitments or policy platform of the government of the day. For example:

       where a government has made a commitment to amend legislation in a particular way then, at face value, the third and fifth elements of Mahoney JA’s concept of partiality listed above would not be satisfied—notwithstanding that some persons may benefit more than others, from the effect of the change to the legislation; and

       where a government has made an election commitment to provide a particular grant to a particular recipient then, subject to the rules of the grants program in question allowing the grant to be made in such a manner, at face value, the third or fifth elements of Mahoney JA’s concept of partiality listed above would also not be satisfied.

2.15               A limited or single source tender may also be undertaken impartially. In situations where there is a compelling reason to adopt such an approach, there may be no reasonable expectation of equality. Where a limited or single source tender process is followed, the preference given to the sole-source contractor may be given for a proper purpose within the scope of the powers conferred on the official. For example, conducting a limited tender process to procure services that can only be provided by particular businesses on a panel, in compliance with the Commonwealth Procurement Rules, would likely not fall within Mahoney JA’s concept of partiality and would be less likely to constitute corrupt conduct.

2.16               It may also be appropriate for a public official to employ staff in circumstances where there is not a merit-based recruitment requirement. For example, a Minister may appropriately employ ministerial staff under the Members of Parliament (Staff) Act 1984 without a merit-based recruitment process. Given the close relationship of trust or confidence, and the importance of political alignment, in such roles, there would be no expectation to undertake a merit-based recruitment process.

2.17               A Minister may exercise their discretion in recommending an appointment to a statutory office and can disagree with the advice of officials and reach a different conclusion as to the appropriate person for a role—provided their discretion is not exercised for an improper purpose.

Examples of conduct that could be considered partial

2.18               Failing to undertake a merits recruitment process in circumstances where such a process is required or expected could be considered partial and fall within the definition of corrupt conduct. In these circumstances, Mahoney JA’s third limb of partiality may be satisfied as there would be an expectation that no one would be advantaged in a particular way. This could apply where, for example, a recruitment panel for an ongoing position within a department rated a candidate as suitable for engagement at a particular level because the candidate was a close friend or relative of a member of the panel. In that case, there would be a duty to treat all candidates equally, but one candidate would be given preference over other candidates, and that preference would be given for an improper purpose – namely, to advantage a friend or relative.

2.19               An allocation of grants for the purpose of gaining political advantage, or to provide a benefit to a political donor may also be considered partial and within the definition of corrupt conduct. Such a situation may meet Mahoney JA’s third and fifth limbs of partiality. There would be an expectation that grants processes are generally conducted in the public interest and without regard to political considerations. A grants allocation that favours a political donor or confers another political advantage may also be extraneous to the power to give the grant. This situation should be distinguished from the situation where a decision-maker makes a grant in the public interest, in the expectation that they will receive acknowledgement or recognition—including political recognition— or exercising their powers in an effective manner, as discussed in greater detail at paragraph 2.36. It should also be distinguished from a situation where a government has made an election commitment to provide a grant to a particular recipient – in such circumstances there would be no duty or expectation of impartiality and the grant guidelines could provide for that outcome.

Corrupt conduct must be capable of adversely affecting the probity of a public official’s conduct

2.20               Paragraph 8(1)(a) is limited to conduct that could adversely affect the honesty or impartiality (collectively, the probity) of a public official’s conduct in their capacity as a public official. It is not intended to cover:

       conduct that merely affects the efficacy of the performance of a public official’s functions, or

       conduct that adversely affects the honesty or impartiality of a public official’s conduct in a private capacity.

2.21               This approach reflects the majority opinion of the High Court in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1. In that case, the Court considered the meaning of ‘adversely affects’ used in the definition of corrupt conduct in subsection 8(2) of the Independent Commission Against Corruption Act 1988 (NSW). The majority reasoned (at 10) that extending a definition of corrupt conduct to conduct (for example fraud) adversely affecting the efficacy of an official function would ‘result in the inclusion in “corrupt conduct” of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration’.

2.22               It is also appropriate to ensure the Commissioner does not exercise their coercive powers with respect to conduct having nothing to do with the ordinary understanding of corruption in public administration. The more limited application of paragraph 8(1)(a) to conduct adversely affecting the probity of official decision-making, as opposed to its efficacy, helps to ensure the Commissioner exercises their powers appropriately. This would address a key concern the majority expressed in Cunneen.

2.23               In Australia’s representative democratic system of government, it is expected that private citizens and businesses, among others, will engage with parliamentarians and other public officials to advocate on behalf of their own and other persons’ interests. Paragraph 8(1)(a) would not cover partial conduct by a third party, unless that conduct could adversely affect the probity of a public official’s conduct. For example, a person who merely vigorously lobbies a public official to present the merits of the person’s position or those of their client would not be covered by the concept of corrupt conduct, where nothing in the conduct or the relevant circumstances could be expected to induce or influence a public official to exercise a power dishonestly or partially.

2.24               On the other hand, a person offering a payment or benefit conditional on a decision-maker exercising a power in a particular way would likely be considered to adversely affect the honest and impartial exercise of that decision-maker’s power.

Conduct of one public official affecting the probity of a second public official’s conduct

2.25               Paragraph 8(1)(a) would apply to the conduct of one public official that could adversely affect the probity of the conduct of a second public official—for example, a senior official using their influence to pressure a junior staff member to make a dishonest or partial decision could be captured under paragraph 8(1)(a). Such conduct could, depending on all of the circumstances, also constitute an abuse of office by the first public official, for the purposes of paragraph 8(1)(c).

Conduct of certain individuals is not covered by paragraph 8(1)(a)

2.26               Paragraph 8(1)(a) would not apply in relation to conduct of any of the following persons:

       the Governor-General and Deputy Governor-General;

       a Justice of the High Court or a judge of a court created by the Parliament;

       a judge of a court of a State or Territory;

       a member of a Royal Commission; or

       the Inspector or a person assisting the Inspector.

2.27               The definition of public official also does not apply to these persons (clause 12(5) and paragraph 2.145). The effect of these two carve-outs is that these persons are not capable of engaging in corrupt conduct within the NACC’s jurisdiction. These carve-outs are appropriate to:

       ensure that Ministers alone are responsible for their decisions, including those given effect to by the Governor-General who, by constitutional convention, acts on the advice of Ministers (in the case of the Governor-General and Deputy Governor-General);

       maintain proper separation between the Executive and Judicial branches of government (in the case of a Justice of the High Court, a judge of a court created by the Parliament, or a judge of a court of a State or Territory);

       prevent improper interferences by a Commonwealth executive body in State and Territory judicial decision-making (in the case of a judge of a court of a State or Territory);

       prevent inappropriate interference with time-critical investigations and proceedings, and maintain proper independence from government (in the case of a Royal Commissioner); and

       preclude the NACC from interfering with the effective oversight of the exercise of its powers and performance of its functions (in the case of the Inspector or a person assisting the Inspector).

Conduct affecting public official’s own powers or functions

2.28               Subclause 8(3) provides that paragraph 8(1)(a) would cover a public official’s own conduct, if it has, or could have, the specified adverse effects in relation to the public official’s powers, functions or duties. For example, if a public official attempts to solicit a bribe from a third party, but the third party refuses, the public official could still be found to have engaged in conduct that adversely affects their own honest or impartial exercise of its powers, functions, or duties.

Dishonest conduct that is in the proper performance of a public official’s functions or duties

2.29               There are limited circumstances where it is within the functions or duties of certain public officials to engage in conduct that may involve dishonesty or partiality—for example, an undercover police officer using an assumed identity in accordance with Part IAC of the Crimes Act 1914 may mislead persons as to their identity, such as when undertaking an undercover police operation. Paragraph 8(1)(a) applies only to conduct that could adversely affect the honest or impartial exercise of powers, or the performance of functions or duties by a public official—it does not apply to conduct constituting the proper exercise of a power, or the proper performance of function or duty, merely because that conduct involves dishonesty or partiality.

2.30               A member of the AFP would not engage in corrupt conduct, within the meaning of paragraph 8(1)(a), where the member:

       works with an organised criminal group to purportedly import a controlled substance as part of a controlled operation under Part IAB of the Crimes Act 1914;

       authorises the use of, or uses an assumed identity in accordance with Part IAC of the Crimes Act 1914; or

       provides a payment or benefit to a human source in exchange for information as part of a criminal investigation.

Conduct of a public official—Breach of public trust

2.31               Paragraph 8(1)(b) would provide that conduct of a public official that constitutes or involves a breach of public trust would amount to corrupt conduct.

2.32               Public office is a public trust—public officials hold their official powers, functions and duties on trust for the public, and are expected to exercise their powers, and to perform their functions and duties, for the purpose for which those powers, functions and duties were conferred. Public officials are also expected to exercise official powers in the public interest.

2.33               If a public official exercises their official powers for an improper purpose, or exercises their powers or performs their functions and duties contrary to the purpose for which those powers, functions or duties were conferred, their conduct would amount to a breach of public trust (see Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 165 (Mahoney JA)). The concept of a breach of public trust does not require that the abuse of entrusted power or an official position be for personal gain or the benefit of a third party; the key feature of a breach of trust is the exercise of a power, or the performance of a function or duty, for an improper purpose.

2.34               Whether conduct can be characterised as a breach of the public trust will depend on the exact circumstances. Accordingly, breach of public trust could include the following conduct but it would not be limited to these examples:

       official misconduct or misconduct in public office;

       showing partiality in the exercise of official powers in order to advance a personal interest;

       using, applying, or awarding public resources to achieve a purpose for which those resources were not appropriated, designated or otherwise given.

2.35               Decision‑making in public office, and the determination of the public interest, can involve the weighing of multiple competing factors and the exercise of judgment. In the absence of an improper purpose, it is not a breach of public trust for a decision-maker to disagree with the advice of officials or reach a different conclusion as to the public interest, and thereby make a different decision to that which has been recommended—provided that, in doing so, the decision-maker does not make the decision or exercise a power for an improper purpose.

2.36               Decisions may be made, and powers may be exercised, for multiple or ‘mixed’ purposes. It is possible for a public official to exercise their powers in a way that achieves both the legitimate purpose for which the power was granted, and another improper purpose. In these cases, if the public official would not have exercised their power but for the improper purpose, their conduct may still constitute or involve a breach of public trust. This is the case even if the improper exercise of powers, functions or duties produced a real public benefit.

2.37               Comparatively, it would not be a breach of public trust for a decision-maker to exercise a power for the purpose for which it has been conferred, in the hope that they will receive some acknowledgement, recognition or benefit for effectively performing their functions.

Conduct of a public official—Abuse of office

2.38               Paragraph 8(1)(c) would provide that conduct of a public official that constitutes, involves, or is engaged in for the purpose of abusing the person’s office as a public official would constitute corrupt conduct.

2.39               The concept of an abuse of office by a public official involves the official engaging in improper acts or omissions in their official capacity, that the public official knows to be improper, with the intention of gaining a benefit for themselves or another person or causing a detriment to another person.

2.40               However, conduct may still constitute corrupt conduct even if it were not for the personal benefit of the public official or other persons involved in the conduct (see subclause 8(8) and further information at paragraph 2.58). In the context of an abuse of office, this means that a public official may still abuse their office if the public official intended to cause a benefit that was indirect, intangible, or several steps removed from themselves or the other persons involved in their conduct. An abuse of office can be committed through the exercise of influence arising from the person’s public office or the use of information obtained in their capacity as a public official, along with any other conduct in that capacity.

2.41               For example, a senior public servant may engage in an abuse of office if they use their seniority to influence a decision-making panel comprised of more junior public servants to make a decision that benefits a friend or family member—notwithstanding that there is no direct benefit to the senior public servant from that outcome.

2.42               Further, an individual (the first person) responsible for processing claims for financial assistance, and who has obtained information concerning another individual’s (the second person) financial situation, may engage in an abuse of office if they use that information to the detriment of the second person—such as by using that information to pressure the second person to agree to sell a property or asset on unfavourable terms.

Conduct of a public official—Misuse of information acquired in capacity as a public official

2.43               Paragraph 8(1)(d) would provide that conduct of a public official, or a former public official, that constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official constitutes corrupt conduct.

2.44               The concept of a misuse of information or documents acquired in a person’s capacity as a public official is intended to cover conduct ranging from, for example, simple unauthorised access to information through to the unlawful sale of classified information or documents to a third party. All conduct on this spectrum is capable of being characterised as corrupt conduct. The Commissioner would only be able to investigate a corruption issue after forming an opinion the relevant conduct could constitute serious or systemic corrupt conduct.

2.45               Corrupt conduct constituting or involving the misuse of information could encompass the following conduct, but would not be limited to these examples:

       a public servant in the ATO browsing through a celebrity’s tax returns when they have no need to access that information;

       a public servant or law enforcement officer who is a domestic violence perpetrator using an official database to access a former partner’s personal information;

       a Border Force officer disclosing sensitive information about their work practices to enable an organised crime syndicate to import illegal cargo into Australia; and

       a recently-resigned ministerial adviser disclosing market-sensitive and classified regulatory information gained in their capacity as a public official in exchange for a lucrative position with a participant in the regulated market.

Conduct of a public official—Corruption of any other kind

2.46               Paragraph 8(1)(e) would provide that the definition of corrupt conduct extends to any conduct of a public official in that capacity that constitutes, involves, or is engaged in for the purpose of corruption of any other kind.

2.47               This limb of the definition would provide the Commissioner with the flexibility to address emerging areas of corruption that may not currently be foreseen, and may not fall within any of the other more specific limbs of the definition.

2.48               Despite its broad framing, paragraph 8(1)(e) would still only apply to conduct that:

       constitutes corruption—such as a deliberate act of dishonesty, breach of the law, or abuse of public trust or power that undermines or is incompatible with the impartial exercise of an official’s powers, authorities, duties or functions; and

       is engaged in by a public official, in their capacity as a public official—this limb could not apply to the conduct of any other person or of a public official in their private capacity unrelated to their public functions and duties. For a person, for example an employee of a contracted service provider, who is only a public official in relation to particular activities, the conduct would need to have a connection with those activities to constitute corrupt conduct.

2.49               A comparable provision appears in paragraph 6(1)(c) of the Law Enforcement Integrity Commission Act 2006.

Extensions, exclusions and clarifications

2.50               The definition of corrupt conduct would include provisions that:

       extend its application to corrupt conduct that occurred prior to the NACC’s establishment and conduct amounting to a conspiracy or attempt to engage in corrupt conduct;

       exclude from its application conduct amounting to exercises of powers and functions of a judicial nature and conduct amounting to the use of public resources to conduct parliamentary business; and

       clarify its application to conduct that did not produce a direct personal benefit to the persons involved, and to conduct engaged in with the agreement or participation of others.

Extension to past corrupt conduct

2.51               The definition would extend to corrupt conduct that occurred before the NACC was established. This means:

       if a person engaged in conduct covered by the definition before the NACC’s establishment, this conduct would be corrupt conduct within the NACC’s jurisdiction; and

       if a former public official, who has ceased to be a public official before the NACC was established, had engaged in any conduct covered by the definition, their conduct would also be corrupt conduct within the NACC’s jurisdiction.

2.52               It is appropriate that the Commissioner is able to investigate allegations of serious or systemic corrupt conduct that occurred before the NACC was established. This reflects the fact that the definition would not impose new standards of conduct in public administration, but would reflect long-standing community expectations of public officials, including the expectation to act in the public interest. It is possible that certain conduct involving public officials could have fallen short of these existing expectations before the NACC was established.

2.53               The definition would enable the Commissioner to investigate serious or systemic corrupt conduct that occurred prior to the NACC’s establishment. The Commissioner would only be able to make a finding of corrupt conduct if the conduct fell within one of the limbs of the definition, at the time it occurred.

2.54               The definition would not establish a criminal offence, and so would not impose retrospective criminal liability for any conduct. Where the Commissioner conducts an investigation into past serious or systemic corrupt conduct and forms a view that the conduct could have constituted a criminal offence at the time it was committed, the Commissioner could refer that conduct and supporting evidence to the CDPP.

Exclusion of judicial powers, functions and duties

2.55               The definition of corrupt conduct would not include conduct engaged in by a staff member of the High Court or of a court created by the Parliament to exercise a power, or perform a function or duty of a judicial nature. Judges would also not be public officials within the NACC’s jurisdiction (see clause 12 and paragraph 2.145). For example, court registrars’ conduct would be excluded from the NACC’s jurisdiction to the extent they are performing their judicial functions or duties. However, if a registrar engaged in corrupt conduct that was unconnected to their judicial functions or duties, their conduct would be within jurisdiction.

2.56               This exclusion is appropriate to maintain proper separation between the Executive and Judicial branches of government. The NACC would form part of the Executive. Accordingly, it should not interfere with the exercise of judicial power under Chapter III of the Constitution by investigating, referring, or making findings about conduct engaged in only to perform functions or duties, or exercise powers of a judicial nature.

2.57               Further, the definition would not extend to conduct of any person if it only affected the exercise of power, or the performance of a function or duty, of a judicial nature by a public official who is a staff member of the High Court or of a court created by the Parliament.

Clarifying that conduct need not be for personal benefit

2.58               A person does not need to gain a personal benefit in order to engage in corrupt conduct. In some cases, it will be unclear whether the person’s conduct involves the person receiving a direct benefit. In other cases, the benefit may be intangible or several steps removed from the persons involved in the conduct. The definition clarifies that corrupt conduct would be within jurisdiction even if there is no direct benefit to the person or public official involved in the conduct.

2.59               For example, a third party could offer to give a benefit to a relative of a public official to induce the public official to make a decision that favours a friend of the third party. The fact that neither the public official nor the third party received a direct benefit from the conduct would not prevent the Commissioner from investigating this corruption issue, if they were of the opinion it was serious or systemic.

Conduct may be corrupt whether engaged in alone or with others

2.60               A person or public official would not need to be solely responsible or engage in corrupt conduct alone for their conduct to be within the NACC’s jurisdiction. This clause would provide that a person may engage in corrupt conduct alone, or with the agreement or participation of other persons (whether or not those persons are public officials). Subclause 8(9) would clarify that a person still engages in corrupt conduct even if other people are participating in the conduct or have agreed to engage in the conduct.

2.61               This rule would not affect whether the other person engaged in corrupt conduct. That person’s conduct would only be corrupt or give rise to a corruption issue concerning that person if it satisfied subclause 8(1) or if it constituted a conspiracy to engage in corrupt conduct (see paragraphs 2.62 to 2.63).

Extension to conduct amounting to conspiracy or attempt

2.62               This clause would provide that conduct comprising conspiracy or an attempt to commit or engage in conduct covered by subclause 8(1) is itself corrupt conduct. This would ensure that the Commissioner can investigate persons who attempt, but fail, to engage in corrupt conduct, as well as persons who do not directly engage in corrupt conduct but are nonetheless involved in another person’s corrupt conduct.

2.63               A person may also engage in corrupt conduct through either planning or attempting to engage in conduct covered by subclause 8(1). However, there must still be a level moral impropriety, and an overt act, involved in the planning or attempt to engage in corrupt conduct. For example, a hypothetical one-off discussion between two public officials in a Commonwealth agency about engaging in corrupt conduct could not, without more, constitute corrupt conduct. On the other hand, an explicit agreement and plan between a public official and a third party to dishonestly exercise the public official’s powers in exchange for benefits which would be shared between the public official and the third party may constitute corrupt conduct.

Clarification that conducting parliamentary business using public resources is not corrupt conduct

2.64               Subclauses 8(11) and (12) would provide that, to avoid doubt, the use of public resources by a parliamentarian to conduct parliamentary business in accordance with the Parliamentary Business Resources Act 2017 or the Members of Parliament (Staff) Act 1984 does not constitute corrupt conduct. This would be intended to clarify that the legitimate use of resources within these frameworks would not be considered corrupt conduct for the purposes of the NACC Bill.

2.65               The Parliamentary Business Resources Act 2017 is intended to remain as the central framework to govern the use of public resources by members of Parliament in connection with parliamentary business. It recognises that members of Parliament should be able to access public resources for reasonable costs incurred in conducting their parliamentary business, if they meet their obligations to the public in relation to the use of those resources. Under this framework, members of Parliament have obligations to use public resources for the dominant purpose of conducting parliamentary business and to ensure expenses provide value for money. Expenses provide value for money if they use public money efficiently, effectively and economically, consistent with the obligation on the proper use of public resources by Commonwealth officials under the PGPA Act.

2.66               The parliamentary business of a member includes:

       parliamentary duties (activities that relate directly to the member’s role as a member of the Parliament);

       electorate duties (activities that support or serve the member’s constituents);

       party political duties (activities that are connected with the member’s political party and their membership of the Parliament); and

       official duties (activities that relate to the member’s role as an officer holder or Minister of State).

2.67               Further detail on each of these terms is contained in the Parliamentary Business Resources (Parliamentary Business) Determination 2017.

2.68               An activity of a member is not the parliamentary business of a member if the member carries it out for the dominant purpose of either providing a personal benefit to another person or pursuing a commercial purpose of the member or another person.

2.69               Public resources under the Parliamentary Business Resources Act 2017 include expenses, allowances, and any goods, services, premises, equipment or facilities that are available to support a member in conducting parliamentary business. For example, that Act covers travel and accommodation costs, and allowances or the provision of an electorate office.

2.70               Political activities that do not involve the use of public resources would not fall within the scope of the NACC’s jurisdiction.

2.71               IPEA is responsible for auditing and reporting on parliamentarian’s work expenses and those of their staff. IPEA has a specific power to make a ruling determining that conduct engaged in by a particular member or any other person in relation to travel expenses of, or travel allowances for, was or was not in accordance with the Parliamentary Business Resources Act 2017.

2.72               Conduct that is not in accordance with the Parliamentary Business Resources Act 2017 could be considered corrupt conduct and form the basis of a corruption issue if it met other parts of the definition. In such circumstances, the Commissioner would be able to deal with the conduct under clause 40. However, the circumstances in which the Commissioner may decide to deal with such a corruption issue by commencing an investigation would be limited if it involves conduct that would fall within IPEA’s jurisdiction (see clause 46). The Commissioner could only investigate such conduct if IPEA has referred the corruption issue to the Commissioner.

2.73               The Members of Parliament (Staff) Act 1984 provides a framework for the engagement of staff by parliamentarians including recruitment, duties and services during employment, and ceasing current employment.

2.74               Under the Members of Parliament (Staff) Act 1984 and other instruments made under that Act, parliamentarians are entitled to use public resources to employ persons as either personal or electorate office staff. Ministers may also engage consultants as contractors.

2.75               This framework is intended to provide a single, consistent source of guidance on the engagement of staff by parliamentarians. The Commissioner would only be able to deal with conduct that was not in accordance with this framework.

2.76               The intention of these subclauses is to provide clarity and certainty to members of parliament in relation to their legitimate use of business resources and engagement of staff, while still allowing the Commissioner to investigate conduct that does not comply with this framework that could involve serious or systemic corrupt conduct—such to the requirement for conduct to be referred by IPEA.

Clarification regarding political activities

2.77               Subclause 8(13) would provide that, to avoid doubt, conduct engaged in as part of a political activity does not constitute corrupt conduct if the conduct does not involve or affect either of the following:

       the exercise of power, or the performance of a function or duty, by a public official; or

       the use of public resources within the meaning of the PGPA Act.

2.78               The term ‘political activity’ would not be further defined, and is intended to refer to activity designed to attain a purpose by the use of political power or by activity in political channels. It is intended to include, for example:

       the internal affairs of political parties’ and individual candidates’ campaigns; and

       activities such as political campaigning or advertising, fundraising events, or campaign meetings, involving parliamentarians and candidates for political office, political parties, and third parties.

2.79               Such activities, where undertaken in a manner that does not involve or affect the exercise of power, or the performance of a function or duty, by a public official or the use of public resources would not involve corrupt conduct.

2.80               ‘Public resources’ are defined under the PGPA Act as:

       relevant money – which means money standing to the credit of any bank account of the Commonwealth or a corporate Commonwealth entity, or money held by the Commonwealth or a corporate Commonwealth entity;

       relevant property – which means property (other than money) owned or held by the Commonwealth or a corporate Commonwealth entity; or

       appropriations – being moneys appropriated from the Consolidated Revenue Fund to fund expenditure by the Government.

2.81               A political activity would not involve the use of public resources merely because it involves the use of funds:

       that have previously been appropriated and provided to a political party or candidate following a previous election in accordance with Part XX of the Commonwealth Electoral Act 1918;

       the political party or candidate expects to receive or claim under that Part of the Commonwealth Electoral Act 1918.

2.82               The expenditure of such funds, once received by a political party or candidate, would not involve ‘expenditure by the Government’.

2.83               This subclause is intended to provide clarity and certainty regarding the circumstances in which political activities would not be characterised as corrupt, in the context of Australia’s representative democratic system of government. For example, a parliamentarian, political party or third party interest group that publicly campaigns on a particular policy issue could not be regarded as corruption in a democratic society. Political activities would only be capable of constituting corrupt conduct if they do or could adversely affect the probity of a public official’s conduct (see paragraph 2.20), or involve the use of public resources.  It is not appropriate for the definition of corrupt conduct to extend to political activities that have no effect on the probity of public administration, or where no public resources have been used.

Clause 9 – Meaning of corruption issue

2.84               This clause would provide the definition of corruption issue. Corruption issues may be dealt with by the Commissioner in accordance with clause 40, including by investigating the issue where the Commissioner is of the opinion that the corruption issue could involve corrupt conduct that is serious or systemic.

2.85               A corruption issue would be an issue of whether a person:

       has already, at some time in the past, engaged in corrupt conduct as defined in clause 8;

       is currently engaging in corrupt conduct; or

       will, at any time in the future, engage in corrupt conduct.

2.86               A corruption issue is a key concept that would establish the scope of the NACC’s jurisdiction. The Commissioner would only be empowered to deal with a corruption issue. A corruption issue is a question about potential corrupt conduct (see clause 8) that arises for potential investigation on the basis of an allegation or other information that suggests a person may have engaged in corrupt conduct, or is engaging or will engage in that conduct. The purpose of the investigation would be to test any allegation and, where appropriate, make an assessment on the corruption issue, that is, to determine whether the person engaged in the alleged corrupt conduct or is engaging or will engage in that conduct.

When an allegation or information raises a corruption issue

2.87               For an allegation, or other information, to give rise to a corruption issue, the allegation or information would need to give rise to, bring up, or put forward all of the essential elements of a corruption issue, as defined. Central to the definition of a corruption issue is the related definition of corrupt conduct (see clause 8).

2.88               If an allegation or information concerns conduct that would not satisfy the definition of corrupt conduct, the allegation would not give rise to a corruption issue that is within the Commissioner’s jurisdiction to investigate or otherwise deal with. This is the case even if an allegation raises an issue concerning some other form of misconduct. The NACC would be a specialised investigative body tasked specifically with investigating serious or systemic corruption, and would only be able to deal with corrupt conduct as defined. However, in these circumstances, the Commissioner may:

       refer allegations of misconduct outside of their jurisdiction to a more appropriate person or entity to investigate (see paragraph 6.25); or

       conduct a preliminary investigation to determine the existence of a corruption issue and determine whether it could involve serious or systemic corrupt conduct (see clause 42).

Probative value of allegation or information not relevant at this stage

2.89               The probative value of the allegation or information would not be relevant to the question of whether it raises a corruption issue. It would not be necessary for the allegation or information to prove that a person engaged in corrupt conduct. However, the allegation or information would need to coherently allege, either explicitly or implicitly, that each element of the definition of corrupt conduct was present in the alleged conduct of the relevant person.

2.90               The probative value of the allegation or information would be relevant at a later stage, specifically to whether and how a corruption issue that is raised may and should be dealt with under the NACC Bill. The Commissioner may conduct a corruption investigation (if the Commissioner is of the opinion that the corruption issue could involve serious or systemic corrupt conduct) or otherwise require an investigation of a corruption issue and, in doing so, test the accuracy of an allegation.

2.91               The Commissioner need not investigate or otherwise deal with every allegation that raises a corruption issue (see paragraph 6.29).

Corruption issues concerning future conduct

2.92               A corruption issue would generally relate to conduct that is alleged to have occurred or to be ongoing. A corruption issue could also arise in the form of a question about whether a person will engage in corrupt conduct at some time in the future. This question may arise, for example, because of concerns that the integrity of a public official has been compromised.

Division 2—Public officials

Clause 10—Meaning of public official

2.93               This clause would provide the definition of public official. A public official would be defined as:

       a parliamentarian—the extended definition of a parliamentarian in clause 7 includes a Minister, and means an individual will be treated as a parliamentarian and a public official even when the relevant House of Parliament is dissolved and the individual is not a senator or member (see paragraphs 1.118 to 1.122);

       a staff member of a Commonwealth agency (see clauses 11 and 12); or

       a staff member of the NACC (see clause 266).

2.94               A person who is acting for and on behalf of, or as a deputy or delegate of, any of the persons or bodies set out in this clause will also be a public official.

Division 3—Commonwealth agencies and the heads of those agencies

Clause 11—Commonwealth agencies and the heads of those agencies

2.95               This clause would specify particular bodies that are Commonwealth agencies for the purpose of the NACC’s jurisdiction. This clause would also specify the persons who are the heads of those Commonwealth agencies.

Table 3—Commonwealth agencies and the heads of those agencies

 

Commonwealth agency

Head of the agency

1

A parliamentary office

The parliamentarian

2

A Commonwealth entity

The accountable authority of the entity or, if that authority is a group, the chief executive officer of the entity or another person prescribed by the regulations.

3

A Commonwealth company

The chief executive officer of the company or another person prescribed by the regulations

4

A subsidiary of a Commonwealth company or a corporate Commonwealth entity

The chief executive officer of the subsidiary or another person prescribed by the regulations

5

The High Court

The Chief Executive and Principal Registrar of the High Court

6

The Australian Geospatial‑Intelligence Organisation

The Director of the Australian Geospatial‑Intelligence Organisation

7

The Defence Intelligence Organisation

The Director of the Defence Intelligence Organisation

8

The Inspector-General of the Australian Defence Force

The Inspector-General of the Australian Defence Force

9

The Inspector-General of Biosecurity

The Inspector-General of Biosecurity

10

The Inspector-General of Live Animal Exports

The Inspector-General of Live Animal Exports

11

The Inspector-General of Water Compliance

The Inspector-General of Water Compliance

2.96               The Governor-General would be able to prescribe additional Commonwealth agencies in the regulations. A prescribed Commonwealth agency would need to be:

       established for a public purpose; and

       established by, or under, a law of the Commonwealth (other than a general law allowing incorporation as a company or body corporate).

Parliamentary offices

2.97               A parliamentary office would consist of the staff of the office, primarily persons engaged under the Members of Parliament (Staff) Act 1984 (see paragraph 2.123).

2.98               A parliamentarian would be the head of a parliamentary office but would not be considered a staff member of the office (see paragraph 2.123). A parliamentarian would still be a public official subject to the NACC’s jurisdiction.

2.99               The extended definition of a parliamentarian in clause 7 means that a parliamentary office may continue to exist even when the relevant House of Parliament is dissolved and the parliamentarian is not a senator or member (see paragraphs 1.118 to 1.120).

Commonwealth entities

2.100           A Commonwealth entity (as referenced at item 2 of Table 3) is:

       a Department of State;

       a parliamentary department established under the Parliamentary Service Act 1999, for example the Department of Parliamentary Services;

       a listed entity, as prescribed by an Act or Schedule 1 to the PGPA Rule, for example the ATO or the AFP;

       a body corporate that is established by a law of the Commonwealth, for example the Commonwealth Scientific and Industrial Research Organisation; or

       a body corporate that is established under a law of the Commonwealth (other than a Commonwealth company) and is prescribed by an Act or the PGPA Rule to be a Commonwealth entity, for example Land Councils listed in section 7A of the PGPA Rule.

2.101           The accountable authorities of Commonwealth entities are listed in section 12 of the PGPA Act, and include the Secretary of a Department of State or Parliamentary Department, and the governing body of a body corporate (for example, the board). For listed entities, the law prescribing the listed entity will prescribe the accountable authority of the entity.

2.102           The High Court and the Future Fund Board of Guardians are not Commonwealth entities and their positions in relation to the NACC Bill are outlined in paragraphs 2.105 to 2.107, 2.116 and 2.117.

Commonwealth companies and subsidiaries

2.103           A Commonwealth company (as referenced in item 3 of Table 3) is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001 that the Commonwealth controls directly (see section 89 of the PGPA Act). For example, NBN Co Limited is a Commonwealth company.

2.104           A subsidiary of a corporate Commonwealth entity or a Commonwealth company (as referenced at item 4 of Table 3) means an entity that is controlled by the corporate Commonwealth entity or Commonwealth company (see section 8 of the PGPA Act).

The High Court

2.105           The High Court (as referenced at item 5 of Table 3) is specifically listed as a Commonwealth agency for the purposes of the NACC Bill because the High Court is not a Commonwealth entity for the purposes of the PGPA Act.

2.106           The Chief Executive and Principal Registrar of the High Court is the head of the agency for the purposes of the NACC Bill.

2.107           For the purposes of the NACC Bill, the High Court does not include the Justices of the High Court, who do not fall within the NACC’s jurisdiction (see paragraph 2.145).

The Australian Geospatial-Intelligence Organisation and the Defence Intelligence Organisation

2.108           The Australian Geospatial-Intelligence Organisation and the Defence Intelligence Organisation (as referenced at items 6 and 7 of Table 3) ordinarily form part of the Department of Defence, a Commonwealth entity and Commonwealth agency for the purposes of the NACC Bill. However, the organisations would be treated as separate Commonwealth agencies for the purposes of the NACC Bill.

2.109           The arrangements for the Australian Geospatial‑Intelligence Organisation and the Defence Intelligence Organisation reflect the specialist intelligence functions of those Organisations and their oversight by the IGIS, and facilitate their classification as intelligence agencies for the purposes of the NACC Bill. Although the Organisations form part of the Defence Department for other purposes, the Organisations are organised in a way that is sufficiently separate from the Department to allow them to be treated as separate Commonwealth agencies for the purposes of the NACC Bill.

2.110           The Director of each organisation would be the head of the relevant Commonwealth agency for the purposes of the NACC Bill.

The Inspector-General of the Australian Defence Force

2.111           The Inspector-General of the Australian Defence Force (as referenced at item 8 of Table 3) ordinarily forms part of the Department of Defence, a Commonwealth entity and Commonwealth agency for the purposes of the NACC Bill. However, the Inspector‑General would be treated as a separate Commonwealth agency for the purposes of the NACC Bill. This would ensure the Inspector-General maintains its independence from the Department of Defence, which it oversees.

2.112           The Inspector-General of the Australian Defence Force would be the head of the relevant Commonwealth agency for the purposes of the NACC Bill.

The Inspectors-General and the Department of Agriculture, Fisheries and Forestry

2.113           For the purposes of the NACC Bill, the Inspector-General of Biosecurity, the Inspector‑General of Live Animal Exports and the Inspector-General of Water Compliance would each be taken to be Commonwealth agencies in their own right, and not to be part of the Department of Agriculture, Fisheries and Forestry. This would ensure the Inspectors-General maintain their independence from the Department of Agriculture, Fisheries and Forestry, which they oversee.

2.114           Each Inspector-General would be the head of the relevant Commonwealth agency for the purposes of the NACC Bill.

The National Anti-Corruption Commission

2.115           The NACC would not itself be a Commonwealth agency. However, NACC staff members would be public officials. The NACC and its staff would be subject to special oversight arrangements (see Part 10).

The Future Fund Board of Guardians

2.116           The Fund Board of Guardians is not a Commonwealth entity (subsection 10(2) of the PGPA Act) and would not be a Commonwealth agency in its own right for the purposes of the NACC Bill. However, the members of that Board would be staff members of the Future Fund Management Agency for the purposes of the NACC Bill because the purposes of the Agency include assisting the Board (see section 75 of the Future Fund Act 2006 and paragraph 2.137).

2.117           The Chair of the Board is the accountable authority for the Future Fund Management Agency and would be the head of the Agency for the purposes of the NACC Bill.

Division 4—Staff members of Commonwealth agencies

Clause 12—Meaning of staff member – Commonwealth agencies

2.118           This clause would specify which individuals are staff members of Commonwealth agencies.

2.119           This clause is intended to apply broadly. The majority of individuals carrying out official functions on behalf of the Commonwealth, in any capacity, will be designated as staff members of a Commonwealth agency under the NACC Bill. This means conduct of those individuals, if corrupt, would fall within the NACC’s jurisdiction. Similarly, conduct that could affect the honesty or impartiality of those persons in their official capacity may also fall within the NACC’s jurisdiction.

2.120           Only very limited exemptions would apply to the broad framing of staff member, for example judges, the Governor-General and Royal Commissioners.

2.121           The following paragraphs explain in detail the legal bases on which each class of individual is considered to be a staff member of a Commonwealth agency. This is primarily of importance to determine which agency or agencies an individual is working for as a staff member. That, in turn, determines which agency heads have responsibility for referring corrupt conduct of that individual (see for example clause 33). These considerations do not have a significant effect on how the Commissioner exercises their jurisdiction or conducts a corruption investigation.

2.122           Generally, an individual would be treated as being a staff member of a single Commonwealth agency. However, there may be some circumstances where it is appropriate that a staff member be a staff member of multiple agencies, for example:

       a secondee who is both a staff member of their home agency and the host agency; and

       an employee of a contracted service provider who provides services under a Commonwealth contract to multiple agencies.

2.123           The following would be staff members of a Commonwealth agency:

       the head of the agency for the purposes of the NACC Bill (except for parliamentarians);

       individuals employed or engaged as consultants by a parliamentarian under Part III, IV, or II of the Members of Parliament (Staff) Act 1984;

       officials of a Commonwealth entity—generally a person who is in, or forms part of, the entity (see section 13 of the PGPA Act);

       employees of the agency and employees of a staff member of the agency who are engaged on behalf of the Commonwealth;

       officers and directors of a Commonwealth company or a subsidiary;

       contracted service providers (see paragraph 2.151) who are individuals, and the employees and officers of contracted service providers who provide goods or services for a Commonwealth contract; and

       secondees to the agency.

2.124           The reference to officials of a Commonwealth entity being ‘officials’ within the meaning of the PGPA Act, of the entity:

       includes persons who are prescribed to be officials of a Commonwealth entity by an Act or the PGPA Rule, in accordance with paragraph 13(1)(c) of the PGPA Act—for example, the PGPA Rule prescribes that a member of the ADF is an official of the Department of Defence; and

       excludes persons who are prescribed to not be officials of a Commonwealth entity by an Act or the PGPA Rule, in accordance with paragraph 13(2)(c) of the PGPA Act—for example, the PGPA Rule prescribes that an officer, instructor or cadet in the Australian Air Force Cadets, the Australian Army Cadets, or the Australian Navy Cadets is not an official of the Department of Defence.

The High Court

2.125           Special rules would apply to the High Court, which is not a Commonwealth entity under the PGPA Act, given its constitutional status. The staff members of the High Court would be:

       the head of the agency (the Chief Executive and Principal Registrar of the High Court);

       contracted service providers (see paragraph 2.151) who are individuals, and the employees and officers of contracted service providers who provide goods or services for a Commonwealth contract;

       secondees to the High Court; and

       individuals who are appointed or engaged as an officer or employee of the High Court under section 26 of the High Court of Australia Act 1979.

2.126           For the purposes of the NACC Bill, the High Court does not include the Justices of the High Court, who are beyond the NACC’s jurisdiction (see paragraph 2.145).

The Australian Geospatial‑Intelligence Organisation and the Defence Intelligence Organisation

2.127           Special rules would apply to the Australian Geospatial‑Intelligence Organisation and the Defence Intelligence Organisation. The staff members of each organisation would be:

       the head of the agency (the Director of the Australian Geospatial‑Intelligence Organisation and the Director of the Defence Intelligence Organisation);

       contracted service providers (see paragraph 2.151) who are individuals, and the employees and officers of contracted service providers who provide goods or services for a Commonwealth contract;

       secondees to the relevant agency; and

       individuals who are employed in the relevant organisation.

The Inspector-General of Biosecurity

2.128           Special rules would apply to the Inspector-General of Biosecurity. The staff members of the agency would be:

       the head of the agency (the Inspector-General of Biosecurity);

       contracted service providers (see paragraph 2.151) who are individuals, and the employees and officers of contracted service providers who provide goods or services for a Commonwealth contract;

       secondees to the agency; and

       individuals engaged under the Public Service Act 1999 who assist the Inspector‑General of Biosecurity.

The Inspector-General of Live Animal Exports

2.129           Special rules would apply to the Inspector-General of Live Animal Exports. The staff members of the agency would be:

       the head of the agency (the Inspector-General of Live Animal Exports);

       contracted service providers (see paragraph 2.151) who are individuals, and the employees and officers of contracted service providers who provide goods or services for a Commonwealth contract;

       secondees to the agency; and

       individuals acting under the authority of the Inspector-General of Live Animal Exports.

The Inspector-General of Water Compliance

2.130           Special rules would apply to the Inspector-General of Water Compliance. The staff members of the agency would be:

       the head of the agency (the Inspector-General of Water Compliance);

       contracted service providers (see paragraph 2.151) who are individuals, and the employees and officers of contracted service providers who provide goods or services for a Commonwealth contract;

       secondees to the agency; and

       individuals engaged under the Public Service Act 1999 who assist the Inspector-General of Water Compliance.

The Inspector-General of the Australian Defence Force

2.131           Special rules would apply to the Inspector-General of the Australian Defence Force. The staff members of the agency would be:

       the head of the agency (the Inspector-General of the Australian Defence Force);

       contracted service providers (see paragraph 2.151) who are individuals, and the employees and officers of contracted service providers who provide goods or services for a Commonwealth contract;

       secondees to the agency; and

       members of the staff of the Inspector-General of the Australian Defence Force.

The Administrative Appeals Tribunal

2.132           Special rules would apply to the AAT. The staff members of the agency would be:

       a member (within the meaning of the AAT Act) of the AAT who is not a judge of a court created by the Parliament; and

       a member of staff of the AAT.

2.133           Special rules for the AAT are necessary to prevent non-judicial staff members of the AAT from being treated as staff members of the Attorney-General’s Department because of the operation of subclause 12(3) (see paragraph 2.138). The Registrar of the AAT would be the agency head of the AAT as its accountable authority (see subclauses 11(1) and 12(1)).  

2.134           Consistent with other provisions excluding judges and judicial functions from the NACC’s jurisdiction, a member of the AAT who is a judge cannot be a staff member of the AAT in their non-judicial capacity (see subclauses 8(2) and 12(5) and paragraphs 2.27 and 2.145). This is appropriate to maintain the separation between the Executive and Judicial branches of government.

Special rules apply in place of normal rules

2.135           Staff members of agencies with special rules are generally not staff members of another Commonwealth agency. For example, a person who is a staff member of the Australian Geospatial‑Intelligence Organisation or the Defence Intelligence Organisation is not a staff member of the Department of Defence even though, for other purposes, those individuals are employees of the Department. However, an individual who is a contracted service provider to one of those Organisations might also be a contracted service provider to the Department of Defence if they have contracts that relate to both an Organisation and another part of the Department.

Statutory office holders

2.136           Statutory office holders and other individuals exercising Commonwealth powers could be staff members of a Commonwealth agency for the purposes of the NACC Bill.

2.137           A statutory office holder could be a staff member of an agency for different reasons, including because:

       the office holder is the head of an agency for the purposes of the NACC Bill (paragraph 12(1)(b));

       the office holder is an official or officer of the agency (paragraphs 12(1)(c) and (e));

       a purpose of the agency is to assist the office holder or a body of which the office holder is a member (paragraph (a) of item 1 of the table in subclause 12(3)); or

       the primary function of the office holder is to assist the agency or another staff member of the agency in the performance of their functions (paragraph (b) of item 1 of the table in subclause 12(3)).

2.138           Alternatively, if the office holder is not a staff member of a particular agency on one of the bases outlined above, the office holder would be treated as a staff member of the department administered by the minister that administers the law by or under which the office is established (paragraph (c) of item 1 of the table in subclause 12(3)).

Persons with functions or powers under a Commonwealth law

2.139           A person may exercise powers or perform functions conferred by or under a Commonwealth law without being a statutory office holder. Similarly, an individual may be a director, officer, employee or contractor of a body corporate that exercises powers, or performs functions, conferred on the body corporate by or under a law of the Commonwealth.

2.140           Such an individual, whether the functions or powers are conferred directly on them or on the body corporate, would be a staff member of a Commonwealth agency. If the power is exercised, or the function is performed, for the purpose of assisting a Commonwealth agency or another staff member of the agency in the performance of their functions, the individual would be a staff member of that agency. Alternatively, if the function or power does not have that purpose, the individual would be treated as a staff member of the department that administers the law that confers the function or power. This is appropriate to ensure that persons who are exercising statutory powers, or performing statutory functions on behalf of the Commonwealth, are within the NACC’s jurisdiction.

2.141           For the purposes of this clause, a power or function conferred by or under the following laws would be disregarded:

       a general law allowing incorporation as a company or body corporate (for example the Corporations Act 2001);

       the Australian Capital Territory (Self Government) Act 1988;

       the Northern Territory (Self Government) Act 1978; or

       a provision of a law prescribed in the regulations.

2.142           Functions and powers conferred under those laws (for example the functions of a director of a private company) are not functions or powers of a public nature that would be appropriate to bring within the NACC’s jurisdiction. Similarly, individuals exercising powers or functions conferred by or under a Commonwealth law who are officials of registered industrial organisations would not be staff members of a Commonwealth agency. The functions and powers exercised by these individuals are also not of a public nature.

Persons appointed under section 67 of the Constitution

2.143           A person appointed under section 67 of the Constitution would be treated as a staff member of the Department of the Prime Minister and Cabinet for the purposes of the NACC Bill. Appointments under section 67 are not common but might be made where, for example, there is a need for the appointee to operate independently from the Secretary of a department, or where the appointee is to have functions relating to whole-of-government issues.

Providing for individuals to be staff members of a different agency

2.144           The NACC Bill would allow regulations to be made to provide that an individual who would otherwise be a staff member of a particular Commonwealth agency because of the operation of clause 12 is a staff member of a different Commonwealth agency. As discussed at paragraph 2.118 to 2.121, which agency a staff member is working for is primarily of importance for determining which agency head has mandatory obligations to refer corruption issues to the NACC. This regulation-making power is appropriate to ensure that, as circumstances and practices change, individuals are still treated as staff members of the Commonwealth agency that is best-placed to refer corruption issues involving those individuals to the NACC.

Certain individuals are not staff members

2.145           None of the following individuals would be staff members of a Commonwealth agency:

       the Governor-General and Deputy Governor-General;

       a parliamentarian (however, parliamentarians are still public officials, see clause 10 and paragraph 2.93);

       a Justice of the High Court or a judge of a court created by the Parliament;

       a judge of a court of a State or Territory;

       a member of a Royal Commission;

       a staff member of the NACC (however, staff members of the NACC are still public officials, see clause 10 and paragraph 2.93);

       the Inspector, or a person assisting the Inspector.

2.146           An individual listed above could not be a staff member of a Commonwealth agency even in a different capacity of the individual. For example, a judge who is a member of the AAT would not be a staff member of the AAT even though a non-judicial member of the AAT would be a staff member of the AAT.

2.147           At the Commonwealth level, excluding Justices of the High Court and judges of courts created by the Parliament maintains proper separation between the Executive and Judicial branches of government. The exclusion would prevent the NACC from improperly interfering with exercises of judicial power and judicial functions and duties by using its coercive powers to investigate a judge’s conduct.

2.148           Excluding judges of State and Territory courts would also maintain that separation between executive and judicial power. Further, it would prevent an executive body of the Commonwealth from improperly interfering with State and Territory judicial decisions. This would include judges of State or Territory courts performing Commonwealth functions in their personal capacity.

2.149           The NACC Bill would also exclude:

        the Governor-General and any Deputy Governor‑General. As discussed at paragraph 2.27, this is appropriate because of the Governor-General’s constitutional position, including acting by convention on the advice of Ministers;

       Royal Commissioners, whose role is time-limited and at arm’s length from Government (see paragraph 2.27); and

       the Inspector and persons assisting, because it would be inappropriate for the NACC to frustrate effective oversight of its performance of its functions and exercise of powers (see paragraph 2.27).

2.150           An essential element of these roles is their independence from government. This exclusion ensures the NACC does not interfere with the proper performance of those roles by those individuals.

Clause 13—Meaning of contracted service provider for a Commonwealth contract

2.151           This clause would define the related concepts of a contracted service provider and a Commonwealth contract. These concepts would be incorporated into the definition of a staff member of a Commonwealth agency (see clause 12).

Commonwealth contract

2.152           A Commonwealth contract is a contract, arrangement, agreement, deed or understanding:

       to which the Commonwealth or a Commonwealth agency is a party; and

       under which goods or services are to be, or were to be, provided to the Commonwealth, a Commonwealth agency, or in connection with the activities of the Commonwealth or an agency.

2.153           Clause 7 defines the term contract to include any arrangement, agreement, deed or understanding (see paragraph 1.56).

2.154           The definition of a Commonwealth contract may include procurement arrangements and certain grants, depending on the nature of the relevant arrangement (and regardless of the nomenclature adopted by the parties).

2.155           The test would be clearly satisfied where goods or services are provided to the Commonwealth or the relevant agency, for example, where the Commonwealth has procured the goods or services. If the Commonwealth or agency is not the recipient of the goods or services, the test is whether the contract would involve the provision of goods or services to another party in connection with the activities of the Commonwealth or the agency.

2.156           It would not be necessary that there be an agency relationship between the parties for the definition to apply.

Contracted service provider

2.157           There would be two categories of contracted service providers for the purposes of the NACC Bill.

2.158           The first category would be a person who is a party to the Commonwealth contract and is responsible for the provision of goods or services under or for the Commonwealth contract.

2.159           The second category would be a subcontractor. In this case, the person would be:

       a party to a contract with a person who is a contracted service provider (as defined in the first category of the definition) for the Commonwealth contract; and

       responsible for the provision of goods or services for the purposes (whether direct or indirect) of the Commonwealth contract.

2.160           If an individual is a contracted service provider, that individual would be a staff member of the Commonwealth agency responsible for administering the Commonwealth contract. This is intended to include, for example, individual independent contractors engaged in tripartite labour hire arrangements where they are not an employee of the labour hire firm or the Commonwealth agency (sometimes referred to as Odco arrangements).

2.161           Further, any officers or employees of a contracted service provider would be staff members of the agency if they provided goods or services for the purposes (whether direct or indirect) of the contract. This would apply, for example, if a Commonwealth agency entered into a contract with an incorporated labour hire firm for the supply of additional workers to the agency. While the firm’s employees would not be contracted service providers to the Commonwealth, they would be treated as staff members of the Commonwealth agency under the NACC Bill because they would be assisting the agency in the performance of its functions, pursuant to the labour hire firm’s contract with the agency.

Exceptions

2.162           The government of a State or Territory, the government of a foreign country or part of a foreign country, and a person in a class prescribed by the regulations, would not be a contracted service provider for a Commonwealth contract.

A subcontractor of any of these excluded entities would also not be a contracted service provider. That is, the exceptions mentioned above break the chain between the Commonwealth and the subcontractor, ensuring the subcontractor of a State, Territory or foreign government is not within the NACC’s jurisdiction For example, if the Commonwealth enters into a contract with a foreign government for the provision of goods, any subcontractors engaged by the foreign government would not be contracted service providers for the purposes of the NACC Bill.

2.163           However, a person employed by the government of a State or Territory or the government of a foreign country or part of a foreign country, or by a subcontractor of one of those governments, may still engage in corrupt conduct under paragraph 8(1)(a) if it is found they have adversely affected the honest or impartial exercise or performance of a public official’s powers or functions. Clause 240 would require the Commissioner and the Inspector to consult the Secretary of the Foreign Affairs Department in certain circumstances—including if they become aware that a corruption issue or public inquiry relates in any way to an official of a foreign country.

Clause 14—Meaning of statutory office holder

2.164           This clause would define a statutory office holder for the purposes of clause 12.

2.165           A statutory office holder would be an individual who holds an office or appointment under a law of the Commonwealth.

2.166           However, offices and appointments under the following laws would be excluded:

       a general law allowing incorporation as a company or body corporate (for example the office of a company director under the Corporations Act 2001);

       the Australian Capital Territory (Self Government) Act 1988; and

       the Northern Territory (Self Government) Act 1978.

2.167           Most offices established under those laws (for example the office of a director of a private company) are not offices of a public nature that would be appropriate to bring within the NACC’s jurisdiction.

2.168           Despite the exclusion of offices and appointments under general laws allowing incorporation, the following offices that have a public nature would be statutory office holders:

       the office of Registrar, or Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and

       the office of a member of a committee convened under Part 2 of Schedule 2 to the Corporations Act 2001 (concerning the professional regulation of liquidators).

2.169           The NACC Bill would allow regulations to be made excluding additional offices and appointments from being statutory office holders. Regulations could also be made to allow certain offices and appointments to be statutory office holders despite the office or appointment being made under a general law concerning incorporation. For example, if a new office that is of a public nature is established by the Corporations Act 2001, regulations may be made to ensure the office-holder is within the NACC’s jurisdiction.

Division 5—Commonwealth integrity agencies

Clause 15—Meaning of Commonwealth integrity agency

2.170           This clause would define a Commonwealth integrity agency. This definition is relevant to clause 45, which would provide for an additional threshold to the commencement of a corruption investigation where the Commissioner is aware that a Commonwealth integrity agency has previously concluded an investigation into a matter regarding the conduct of a public official.

2.171           The following office holders, together with their staff, would be Commonwealth integrity agencies:

       the Commonwealth Ombudsman, a Deputy Commonwealth Ombudsman, the Defence Force Ombudsman, the Postal Industry Ombudsman, the Overseas Students Ombudsman, the Private Health Insurance Ombudsman and the VET Student Loans Ombudsman;

       the Australian Public Service Commissioner;

       the Merit Protection Commissioner;

       the Auditor‑General;

       the AFP Commissioner;

       the Parliamentary Service Commissioner;

       the Parliamentary Service Merit Protection Commissioner;

       the Australian Information Commissioner;

       the CEO of the ACC;

       the IGIS;

       the Inspector‑General of Taxation;

       the CEO of the Tertiary Education Quality and Standards Agency;

       the Inspector-General of Biosecurity;

       the Inspector-General of Live Animal Exports;

       the Inspector-General of Water Compliance; and

       the Inspector-General of the Australian Defence Force.

2.172           Regulations could be made to prescribe additional Commonwealth integrity office holders. A prescribed office holder would be required to have functions that include investigating or inquiring into action taken by public officials.


Part 3      The National Anti-Corruption Commission

3.1                   This Part would establish the NACC and the statutory offices of the NACC, and set out the functions of the NACC and those offices.

Division 1—The Commissioner

3.2                   This Division would establish the office of the Commissioner and set out their functions.

Clause 16—The Commissioner

3.3                   This clause would establish the office of the National Anti-Corruption Commissioner, who will be the head of the NACC. Provisions regarding the appointment of the Commissioner would be contained in Division 1 of Part 12.

Clause 17—Functions of the Commissioner

3.4                   This clause would outline the Commissioner’s functions. The Commissioner would have the following functions:

       to detect corrupt conduct;

       to conduct preliminary investigations into corruption issues or possible corruption issues;

       to conduct corruption investigations into corruption issues that could involve corrupt conduct that is serious or systemic;

       to report on corruption investigations and public inquiries;

       to refer corruption issues to Commonwealth agencies and State or Territory government entities;

       to oversee investigations into corruption issues conducted by Commonwealth agencies;

       to conduct public inquiries into:

      the risk of corrupt conduct occurring; and

      measures directed at dealing with that risk and preventing that conduct;

       to provide education and information in relation to corrupt conduct and preventing that conduct;

       to collect, correlate, analyse and disseminate general information and intelligence about corrupt conduct;

       to report, and make recommendation, to the Minister concerning the need for, or desirability of, legislative or administrative reform in relation to any matters dealt with by this Bill;

       to provide relevant information and documents to the Committee (see Division 1 of Part 10);

       to receive and deal with PIDs;

       any other functions conferred on the Commissioner by this Bill or another Act; and

       to do anything incidental or conducive to the performance of any of the above functions.

3.5                   These functions would enable the Commissioner to further the objects of the NACC Bill, as outlined in clause 3 (see paragraphs 1.9 to 1.21), and are consistent with the NACC’s role as a specialist investigative body, responsible for investigating allegations of serious or systemic corrupt conduct in the Commonwealth public sector.

3.6                   In addition to its investigative functions, the Commissioner would also have education and prevention functions, including the ability to conduct public inquiries into corruption risks, vulnerabilities and measures to prevent corruption in Commonwealth agencies and measures aimed at dealing with and preventing corruption. These functions are common among anti‑corruption commissions at a State and Territory level, and would allow the Commissioner to enhance corruption prevention across the Commonwealth.

3.7                   Another function of the Commissioner would be to receive PIDs under the PID Act. This is part of a comprehensive framework in the NACC Bill to ensure that persons who make disclosures directly to the NACC receive appropriate protections (see Part 4).

Division 2—The Deputy Commissioners

3.8                   This Division would establish the office of the Deputy Commissioners, and outline their functions.

Clause 18—The Deputy Commissioner

3.9                   This clause would provide that there are to be up to three Deputy Commissioners. Provisions regarding the appointment of the Deputy Commissioners would be in Division 1 of Part 12.

Clause 19—Functions of a Deputy Commissioner

3.10               This clause would outline the functions of a Deputy Commissioner. A Deputy Commissioner would have functions to assist the Commissioner in the performance of the Commissioner’s functions, and to perform any other function conferred on the Deputy Commissioner by other provisions of this Bill, or by another Act. For example, a Deputy Commissioner would have functions under the Crimes Act 1914 as an authorising officer for a controlled operation.

3.11               The Commissioner would have discretion to determine the responsibilities of each of the Deputy Commissioners, and would be able to delegate any or all of their powers, functions or duties to a Deputy Commissioner (see clause 276). This would provide the Commissioner with flexibility to manage the workload of the NACC.

3.12               In performing their functions, a Deputy Commissioner would be required to comply with any directions of the Commissioner. Given the Commissioner would be delegating their functions to a Deputy Commissioner, it is appropriate that the Commissioner is able to provide direction as to the exercise of those functions. This ensures the Commissioner—as the person on whom substantive functions are conferred (see clause 17)—remains responsible for how those functions are performed in practice.

3.13               A direction given to a Deputy Commissioner by the Commissioner would not be a legislative instrument. This statement is included in the NACC Bill to assist readers, as a direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Division 3—The National Anti-Corruption Commission

3.14               This Division would establish the National Anti-Corruption Commission as a Commonwealth entity and outline its functions.

Clause 20—Establishment of the National Anti-Corruption Commission

3.15               This clause would establish the NACC and provide that it is a listed entity for the purposes of finance law (see paragraph 1.76).

3.16               The NACC would be a non-corporate Commonwealth entity subject to the rules and obligations in the PGPA Act. A non-corporate Commonwealth entity is defined in the PGPA Act as a Commonwealth entity that is not a corporate Commonwealth entity. This means the NACC would legally form part of the Commonwealth and would not have a separate legal identity. As a non‑corporate Commonwealth entity, the NACC would be able to enter into arrangements and commit relevant money on behalf of the Commonwealth. It would also be required to prepare a corporate plan and annual report each year.

3.17               The CEO would be the accountable authority of the NACC. As the accountable authority, the CEO would be responsible for managing the NACC’s affairs and ensuring the NACC performs its functions (see clause 252). The CEO would have specific duties under Division 2 of Part 2-2 of the PGPA Act, for example to govern the NACC in a way that promotes the proper use and management of public resources and establish and maintain appropriate risk oversight and management systems.

3.18               Staff members of the NACC (as listed in clause 266) are officials for the purposes of the PGPA Act. As officials, staff members of the NACC would have specific duties under Division 3 of Part 2-2 of the that Act, such as the duty to act honestly, in good faith and for a proper purpose. An official’s employment may be terminated if they contravene these duties.

3.19               The PGPA Act requires accountable authorities to govern a Commonwealth entity in a way that promotes the achievement of the purposes of the entity. In addition to the purposes of a Commonwealth entity set out in the PGPA Act (the objectives, functions or role of the entity), this clause would provide that the purposes of the NACC for the purposes of the finance law would include:

       the functions of the Commissioner referred to in clause 17;

       the functions of a Deputy Commissioner referred to in clause 19;

       the functions of the NACC referred to in clause 22; and

       the functions of the CEO referred to in clause 252.

Clause 21—Constitution of the NACC

3.20               This clause would outline the constitution of the NACC. The NACC would consist of:

       the Commissioner;

       any Deputy Commissioners;

       the CEO; and

       the staff referred to in clause 262. These staff would be engaged under the Public Service Act 1999 and do not include consultants, secondees or a counsel assisting the NACC.

Clause 22—Functions of the NACC

3.21               This clause would set out the functions of the NACC, which would be to assist the Commissioner in performing their functions and to assist any Deputy Commissioner in performing their functions. As outlined in clause 17, the substantive functions conferred by this Bill are conferred on the Commissioner personally rather than the NACC as a Commonwealth entity. These functions could be delegated to a Deputy Commissioner. As such, the NACC has no functions as an entity other than to support the Commissioner, and any Deputy Commissioner, in performing their functions.

 


Overview of this Part

4.1                   This Part would provide a range of protections to persons who provide evidence or information to the Commission for the purposes of the NACC Bill. These protections would provide immunity from civil, criminal and administrative liability for whistleblowers and other persons, and criminal penalties for anyone taking, or threatening to take reprisal action against them.

4.2                   This Part provides one component of a broader framework for:

       the management of PIDs—particularly internal disclosures—made by public officials (within the meaning of the PID Act); and

       the protection of persons generally who provide information for the purposes of the NACC Bill.

4.3                   This Part would complement and align with the existing PID Act framework, which:

       provides protections to public officials and former public officials who make PIDs;

       provides for the allocation and investigation of PIDs that are internal disclosures made to an individual’s supervisor or an authorised officer; and

       provides for oversight of the PID Act framework by the Commonwealth Ombudsman and the IGIS.

4.4                   Other provisions of the NACC Bill and the Consequential Bill that are relevant to this Part include:

       clause 35, which provides that staff members of Commonwealth agencies who become aware of possible corruption issues in the course of performing certain functions under the PID Act are required to refer those corruption issues to the Commissioner;

       clause 39, the effect of which is that an internal disclosure under the PID Act referred to the Commissioner must continue to be dealt with by the referring Commonwealth agency under the PID Act by default;

       clause 43, which would permit the Commissioner to direct, among other things, that an internal investigation by a Commonwealth agency under the PID Act be stopped, if it is required to ensure the effectiveness of an action the Commissioner has taken or will take in relation to the corruption issue;

       clauses 204, and 208, and clause 43 as applied by clause 211, which provide equivalent arrangements for NACC corruption issues; and

       amendments to the PID Act (see paragraphs 14.132 to 14.177) to be made by the Consequential Bill, which would ensure that a public official (within the meaning of that Act) obtains the protections available under that Act regardless of whether they make a PID internally or a NACC disclosure under this Bill.

Existing protections under the PID Act for public officials

4.5                   A current or former public official (within the meaning of the PID Act) may make a PID in relation to disclosable conduct as defined by the PID Act. Public officials are defined in section 69 of the PID Act, and include staff members of departments, executive agencies, contracted service providers and certain statutory office holders. Disclosable conduct is defined in section 29 of the PID Act, and includes conduct that contravenes a law of the Commonwealth, a State or a Territory, conduct that perverts the course of justice, involves corruption of any kind, constitutes maladministration, results in the wastage of public money, or is an abuse of public trust.

4.6                   Instances of corrupt conduct as defined in clause 8 are likely to constitute disclosable conduct for the purposes of the PID Act. An individual who makes a PID under the PID Act will receive a range of protections under that Act. In particular:

       an individual is not subject to any civil, criminal or administrative liability, or contractual or other remedies, for making a PID (section 10);

       it is an offence to take a reprisal, or to threaten to take a reprisal, against a person because of a PID (including a proposed or a suspected PID) (section 19);

       the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make orders for civil remedies (including compensation, injunctions and reinstatement of employment) if a reprisal is taken against a person because of a PID (including a proposed or a suspected PID) (sections 14 to 16); and

       it is an offence to disclose the identity of an individual who makes a PID, unless an exception applies (section 20).

New protections in the NACC Bill

4.7                   This Part would ensure appropriate protections (equivalent to those available to public officials under the PID Act) are available to:

       all persons, including those who are not public officials (within the meaning of the NACC Bill or the PID Act); and

       all information provided for the purposes of the NACC Bill, regardless of whether that information concerns disclosable conduct (within the meaning of the PID Act).

4.8                   The protections that are provided for under this Part are:

       immunity from civil, criminal and administrative liability, including disciplinary action;

       protection from enforcement of contractual or other remedies against a person due to their disclosure; and

       an offence criminalising the taking of reprisals, and threatening reprisals.

4.9                   These protections would reduce the likelihood of a person being deterred from referring corruption issues to the Commissioner, or assisting a corruption investigation, due to fear of retribution or proceedings being brought against them. These protections could operate to provide, for example, immunity from proceedings brought in response to breaching a condition of employment or a non‑disclosure agreement by disclosing information to the NACC about a corruption issue, or stealing company property by providing documents to the NACC about a corruption issue. They could also provide for a person who takes a reprisal against someone who gives information to the NACC, or assists with a NACC investigation, to be subject to prosecution for a criminal offence.

4.10               The protections would also ensure that persons who refer matters, provide information or otherwise assist with a NACC Act process—investigations of corrupt conduct, public inquiries, and NACC complaint investigations (see paragraph 1.103)—are protected from any adverse consequences resulting from their disclosure or participation. Importantly, these protections would apply despite the effect of any other Commonwealth laws.

Protections only available under the PID Act

4.11               Compensation for detriment arising from a person taking a reprisal action would remain available only under the PID Act in relation to PIDs by current and former public officials—not to members of the public more broadly. Compensation is available under the PID Act to public officials who make a disclosure in accordance with that Act and experience a detriment, including dismissal of the person from their employment, alteration of their employment, and discrimination between the person and another employee by the employer. This is considered appropriate on the basis that members of the public who are not public officials would be less likely to experience employment-related detriment from an employer outside the NACC’s jurisdiction as a result of making a NACC disclosure.

4.12               Unlike the PID Act, this Part would not provide a specific protection against the disclosure of a discloser’s identity. Section 20 of the PID Act makes it an offence for a person to disclose information that is likely to enable identification of a person who has made a PID, where that information was obtained in their capacity as a public official. It is unnecessary to replicate section 20 because Part 11 of the NACC Bill would provide general obligations of confidentiality on staff members of the NACC that would extend to protecting the identity of a person who made a NACC disclosure. This would be subject to exceptions where the disclosure is for the purpose of staff members performing their functions under the NACC Bill. For example, a person’s identity could be shared with other staff of the NACC to assist with the investigation of a corruption issue.

4.13               If a disclosure to the NACC constitutes a PID, the offence in section 20 of the PID Act would apply to staff members of the NACC. That offence applies subject to relevant exceptions, including paragraph 20(3)(d) of the PID Act, which allows for the disclosure or use of identifying information for the purposes of a law of the Commonwealth. This would include the use of identifying information for the purposes of the NACC Bill, once enacted.

4.14               Any person who is concerned about their identity being known by the NACC would have the option of making an anonymous voluntary referral to the NACC under clause 32.

Protection for journalists’ informants

4.15               Division 4 of this Part would relieve a journalist or their employer from disclosing identifying information about their informants.

Division 1—Meaning of NACC disclosure

Clause 23—Meaning of NACC disclosure

4.16               This clause would define the concept of a NACC disclosure for the purposes of the NACC Bill.

4.17               A person would make a NACC disclosure if they referred, or provided information about, a corruption issue to the Commissioner or to the IGIS under Part 5 of the NACC Bill.

4.18               A NACC disclosure would also be made where a person refers information about a NACC corruption issue to the Inspector under clause 202 or clause 203.

4.19               A person would also make a NACC disclosure where they give evidence or information, or produce a document or a thing, to a NACC Commissioner, the IGIS or the Inspector in relation to any of the following:

       a corruption issue;

       a NACC Act process (see paragraph 1.103), including a corruption investigation;

       a NACC corruption issue;

       a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.

4.20               In practice, the definition of a NACC disclosure would apply to a broad range of disclosures, including:

       a person who voluntarily refers a corruption issue to the Commissioner under clause 32, regardless of whether the person is a public official;

       agency heads who refer corruption issues to the Commissioner or the IGIS under clause 33 or 34;

       staff members with functions under the PID Act who refer corruption issues to the Commissioner under clause 35;

       persons who provide evidence to the Commissioner during a corruption investigation or public inquiry, whether voluntarily or in response to a notice to produce or a summons; and

       persons who make equivalent referrals, make complaints, or provide equivalent evidence to the Inspector in relation to NACC corruption issues, NACC corruption investigations or NACC complaint investigations.

Division 2—Protection of persons from liability

4.21               This Division would set out the protections available to a person who makes a NACC disclosure under this Bill, and the circumstances in which those protections are available. This Division would also outline how a person may seek to invoke the protections where proceedings have been commenced against them.

Clause 24—Protection of persons from liability

4.22               This clause would provide immunities and other protections for persons who make NACC disclosures. This is important to ensure that a person is neither legally prevented nor deterred from making a NACC disclosure where they have information concerning potential corrupt conduct.

4.23               This clause would provide that a person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making a NACC disclosure under clause 23. This would mean, for example, that a person making a NACC disclosure would not be subject to:

       civil liability for breach of confidence arising from the disclosure of confidential information to the Commissioner

       criminal liability for providing classified documents to the IGIS

       for public officials—administrative action—such as performance management, suspension or termination of their employment—as a result of disclosing information to the Inspector.

4.24               This clause would also provide protection against a contractual or other remedy or right that would otherwise have been able to be enforced against the person on the basis that they made a NACC disclosure. For example, a contractual remedy such as compensation for the breach of a non‑disclosure agreement could not be obtained, and a contractual termination clause or statutory power could not be exercised, on the basis of the person making a NACC disclosure.

4.25               Further, this clause would provide that a person making a NACC disclosure would have absolute privilege in proceedings for defamation in respect of the NACC disclosure. That is, generally no action for defamation could be brought against a person in relation to a NACC disclosure.

4.26               These protections are subject to the limitation in clause 25 outlined below.

4.27               This clause is consistent with section 10 of the PID Act.

Clause 25—Liability for false and misleading statements unaffected

4.28               This clause would provide that the protections in clause 24 do not apply to civil, criminal or administrative liability (including disciplinary action) for knowingly making a statement that is false or misleading. This would ensure that a discloser is not protected from liability in circumstances where the discloser knowingly makes false or misleading statements.

4.29               A discloser would be subject to civil liability for such statements. For example, this would mean that a person could potentially be sued for defamation or a breach of their employment contract if they provided falsified information to the Commissioner.

4.30               A discloser who is a public official would also be subject to administrative liability, including disciplinary action, in these circumstances. For example, this would mean that a public official’s security clearance could be revoked, or they could be demoted to a more junior level, if they provided information that they knew to be misleading to the NACC when purporting to refer a corruption issue.

4.31               The effect of this clause would be to ensure disclosers are not protected from criminal liability and other liabilities for knowingly making false or misleading statements. Preserving the operation of criminal liability in these circumstances would deter the making of false allegations of corrupt conduct or the provision of misleading evidence to the NACC, which could otherwise harm a person’s reputation, seek to conceal corrupt conduct or divert the NACC’s resources. In the absence of this provision, the operation of the offences in clauses 61 (producing false or misleading information or documents) and 71 (giving false or misleading evidence, information or documents) would be compromised.

4.32               This clause expressly preserves the operations of the offences under sections 137.1, 137.2, 144.1 and 145.1 of the Criminal Code, which relate to knowingly producing false or misleading information or documents to a Commonwealth entity, and making and using forged documents.

4.33               This clause is consistent with section 11 of the PID Act.

Clause 26—Person’s liability for own conduct not affected

4.34               This clause would clarify that a person’s liability for their own conduct is not affected if they make a NACC disclosure concerning that conduct. For example, a person who engaged in corrupt conduct and then referred that conduct to the NACC in an attempt to avoid criminal liability would not receive immunity from criminal liability under clause 24.

4.35               This clause is consistent with section 12 of the PID Act.

Clause 27—Claims for protection

4.36               This clause would outline how a person may seek to invoke the protections that would be provided under clause 24 in circumstances where civil or criminal proceedings have been instituted against that person in a court. This clause would apply if the person makes a claim, relevant to the proceedings, that they are not subject to any civil, criminal or administrative liability for making a particular NACC disclosure due to the protections in clause 24.

4.37               The person seeking to invoke protection from liability under clause 24 in these circumstances would bear the onus of adducing evidence that suggests a reasonable possibility that the protection applies. If the onus is discharged, the party who instituted the proceedings against the person would bear the onus of proving that the protection from liability did not apply.

4.38               For example, a person who had civil proceedings instituted against them for breaching a confidentiality clause in their contract of employment would be able to make a claim that the breach was for the purposes of making a NACC disclosure. The person would then need to adduce evidence that they are entitled to immunity from civil liability under clause 24. To discharge this onus, the person could, for example, adduce evidence of their disclosure to the NACC (such as an email or other record of their referral). The party instituting the proceedings would then bear the onus of proving that the person is not entitled to protection under clause 24.

4.39               A claim under this clause would be dealt with by the court in separate proceedings. The initial civil or criminal proceedings against the person would be adjourned by the court until the claim for protection under this clause was resolved.

4.40               Any admission, information or evidence made or given by the person in the separate proceedings would not be admissible in evidence against the person, except in proceedings concerning the falsity of the admission, information or evidence made or given.

4.41               If the person or another person were to give evidence in the separate proceedings under this clause, the giving of that evidence would not amount to a waiver of privilege for the purposes of any proceedings. This clause would clarify that a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence with respect to the identity of journalists’ informants would be a privilege for the purposes of this clause.

4.42               This clause is consistent with section 23 of the PID Act.

Clause 28—Protection has effect despite other Commonwealth laws

4.43               This clause would provide that protections afforded by clause 24 would have effect despite any other provision of a law of the Commonwealth, unless the provision is enacted after the commencement of this clause and is expressed to have effect despite this Part or clause.

4.44               This clause would ensure that protections and remedies afforded by the NACC Bill to persons who make a disclosure to the NACC are not overridden by provisions of other laws, unless there is a clear legislative intention to do so.

4.45               For example, a public official who makes a NACC disclosure would receive immunity from liability under this Bill if their disclosure breaches a designated publication restriction under section 11A of the PID Act. Types of designated publication restrictions are defined in section 8 of the PID Act and include a range of suppression and non-publication orders made by a court, including under the Judiciary Act 1903.

Division 3—Protection from reprisals

4.46               This Division would make it an offence for a person to take, or threaten to take, a reprisal against another person on the basis that they have made or may make a NACC disclosure.

Clause 29—What constitutes taking a reprisal

4.47               This clause would set out the circumstances in which a reprisal will be taken to have occurred for the purposes of this Bill. A reprisal would occur where a person (the first person) causes (by act or omission) any detriment to another person (the second person).

4.48               At the time the first person’s act or omission occurred, the first person must have believed or suspected that the second person (or any other person) made, may have made or is proposing to make, a NACC disclosure.

4.49               This clause would also require that the first person’s belief or suspicion about the NACC disclosure was the reason (or part of the reason) for their act or omission that caused the second person detriment.

4.50               Under this clause, detriment has its ordinary meaning and includes disadvantage with respect to the second person’s employment, including termination or an alteration of the second person’s position to their detriment.

4.51               For example, taking a reprisal could include bullying or harassing a person, or passing that person over for a promotion, if it was motivated by the fact that person has or is suspected of making a NACC disclosure.

4.52               An exception to behaviour that might otherwise constitute a reprisal under this clause is where a person takes administrative action that is reasonable to protect another person from detriment. For example, where a person has made a disclosure in relation to practices in their immediate work area, it may be appropriate to transfer them to another work area to ensure they are not subject to any detriment.

4.53               This clause would also protect a person who makes a disclosure indirectly to the NACC in appropriate circumstances.

4.54               This clause is consistent with section 13 of the PID Act.

Clause 30—Offences—taking a reprisal or threatening to take a reprisal

4.55               This clause would make it an offence to take a reprisal, or threaten to take a reprisal, against another person because that person or another person has made, or may make, a NACC disclosure.

4.56               A similar offence in section 19 of the PID Act protects persons from reprisal action taken against them on the basis that they made, may have made or intended to make, a PID. This offence would not apply where a disclosure is not a valid PID for the purposes of the PID Act (for example because a person is not a public official, or where the information is not disclosable conduct under the PID Act). It is important that a person who refers a corruption issue or provides information under the NACC Bill does not experience detriment on the basis of their disclosure, regardless of whether it is made under the PID Act or otherwise. This clause would ensure that disclosers who would not be entitled to protection from reprisals under the PID Act would receive equivalent protections under the NACC Bill.

Offence of taking a reprisal

4.57               The first offence would consist of the physical element that a person (the first person) takes a reprisal against another person (the second person). The fault element for this conduct element would be intention, in accordance with section 5.6 of the Criminal Code.

4.58               The maximum penalty for this offence would be imprisonment for 2 years. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. Given the potentially severe consequences of a reprisal against the second person, this penalty is appropriate to punish a worst case offence. The penalty is the same as the equivalent offence under subsection 19(1) of the PID Act.

4.59               In a prosecution for such an offence, it would not be necessary to prove that a NACC disclosure was made or was intended to be made. This clause does not affect the onus of proof in a prosecution and is merely a clarification that these matters do not form part of the physical elements of the offence.

Offence of threatening to take a reprisal

4.60               This clause would also make it an offence to threaten another person with taking a reprisal. This offence recognises that a mere threat to cause detriment could deter whistleblowers from making a NACC disclosure.

4.61               The offence would consist of the following physical elements:

       the first person makes a threat to a second person to take a reprisal against the second person or a third person;

       the first person either:

      intends the second person to fear that the threat will be carried out; or

      is reckless as to the second person fearing that the threat will be carried out.

4.62               The fault element for the first element of the offence—concerning the person’s conduct in making the threat—would be intention.

4.63               The fault element for the second element is stated in the NACC Bill. The fault element would be that:

       the first person intends the second person to fear that the threat will be carried out; or

       the first person is reckless as to the second person fearing that the threat will be carried out.

4.64               The maximum penalty for this office would be imprisonment for 2 years. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. Given the potentially severe consequences of a person repeatedly threatening to take a reprisal against a second person, this penalty is appropriate to punish a worst case offence. This penalty is the same as the equivalent offence under subsection 19(3) of the PID Act.

4.65               This clause would provide that a threat may be express or implied, or conditional or unconditional. This would ensure that all forms of threats are capable of falling within the scope of the offence, including where the first person avoids making the threat expressly.

4.66               In a prosecution for this offence, it would not be necessary to prove that the person threatened actually feared that the threat would be carried out. This clause does not affect the onus of proof in a prosecution and is merely a clarification that the threatened person’s state of mind does not form a physical element of the offence.

Division 4—Protection for journalists’ informants

Clause 31—Protection for journalists’ informants

4.67               This clause would provide protections for the identities of journalists’ informants. Protecting the identity of journalists’ sources would assist to uphold the public interest associated with a free press.

When the protection applies

4.68               The protections in this clause would apply where:

       a person (the informant) gives information, directly or indirectly, to a person working in a professional capacity as a journalist;

       the information is given in the normal course of the journalist’s work as a journalist; and

       the journalist reasonably believes that the informant provided the information on the express or implied understanding that their identity would not be disclosed.

4.69               A journalist would be a person working in a professional capacity as a journalist. Indicators that a person is working in a professional capacity as a journalist include regular employment, formal qualifications, adherence to enforceable ethical standards and membership of a professional body.

Scope of the protection

4.70               This clause would provide that a journalist and the journalist’s employer would not be required to do anything under this Bill that would disclose the identity of an informant or would enable the identity of an informant to be ascertained.

4.71               This clause would apply to any journalist and their employer. This would include journalists who are staff members of the ABC or SBS (which are Commonwealth agencies for the purposes of the NACC Bill). For the ABC and SBS, this clause would provide that the journalist’s employer (who is also entitled to the protections) would be the head of the agency.

4.72               Relatedly, the abrogation of legal professional privilege in the context of providing investigation material in response to a direction to produce, a notice to produce or at a hearing would not apply in relation to advice or a communication given for the purposes of, or in the course of, a person’s work as a journalist (see clause 114 and paragraphs 7.405 to 7.407). This would provide additional protection for journalists’ informants.

Search powers

4.73               This clause does not prevent an authorised officer from doing anything an authorised officer would be able to do when exercising powers under Part IAA of the Crimes Act 1914 for the purposes of the NACC Bill. Part IAA concerns search, information-gathering, arrest and related powers (other than powers under delayed notification search warrants).

4.74               The effect of this clause would be that a journalist and their employer would not be able to refuse the seizure of material under a search warrant issued under Part IAA for the purposes of a corruption investigation on the basis that it would disclose an informant’s identity.

4.75               This is appropriate because Part IAA powers to issue a search warrant involving a journalist are modified by clause 124 to require consideration of the public interest in protecting journalists’ sources and the free exchange of information between journalists and members of the public. That clause would balance the importance of ensuring the NACC can conduct corruption investigations and public inquiries with the importance of preserving freedom of expression by maintaining the confidentiality of journalists’ sources.

4.76               Further, the Commissioner’s power to search premises occupied by a Commonwealth agency without a warrant (clause 117) would not extend to the premises occupied by the ABC or SBS (see paragraph 7.439).


5.1                   This Part would create voluntary and mandatory pathways for the referral of corruption issues to the Commissioner. A broad pathway for voluntary referrals and targeted requirements for mandatory referrals would ensure the Commissioner receives sufficient information to identify potential corrupt conduct and deal with corruption issues.

5.2                   The voluntary pathway would provide for referrals to be made to the Commissioner by any person, including members of the public. This broad voluntary referral pathway would ensure the Commissioner can receive information critical to its functions, regardless of its source.

5.3                   The mandatory referral obligations would apply to Commonwealth agencies. It would generally be a requirement for the heads of Commonwealth agencies and certain staff members of Commonwealth agencies to refer corruption issues involving a current or past staff member of their agency where they suspect it could involve corrupt conduct that is serious or systemic.

Division 1—Voluntary referrals

Clause 32—Any person may refer corruption issue

5.4                   This clause would allow any person to voluntarily refer a corruption issue or provide information about a corruption issue to the Commissioner. This would ensure that all people, including members of the public, are able to refer corruption issues to the Commissioner. This is appropriate to ensure that anyone can refer a potential corruption issue to the Commissioner without limitation.

5.5                   Under this clause, the Commissioner would be able to request that a referral or information is to be provided to the Commissioner in a particular way. For example, the Commissioner would be able to request that a referral be given in writing rather than orally.

5.6                   The Commissioner would also be able to request the referral or information be accompanied or supported by further information. For example, information given to the Commissioner may be insufficient to allow the Commissioner to determine whether the corruption issue being referred is serious or systemic for the purposes of clause 41. In this situation, the Commissioner could request further information be included in the referral or be provided to support their consideration of a matter. However, a person would not be required to comply with the request.

5.7                   The ability to request further information is appropriate to enable the Commissioner to receive as much relevant information as possible about a potential corruption issue to support their assessment of how to deal with a corruption issue.

Division 2—Mandatory referrals

5.8                   This Division would create mandatory referral obligations for:

       a head of a Commonwealth agency, including specific obligations for the head of an intelligence agency;

       staff members of Commonwealth agencies who have certain responsibilities under the PID Act; and

       the IGIS.

5.9                   The obligation on a head of an agency or relevant staff members to refer matters to the Commissioner (or alternatively to the IGIS in the case of intelligence agencies) would arise where the person becomes aware that there is a corruption issue:

       that concerns the conduct of a person who is, or was, a staff member of their agency while that person is, or was, a staff member; and

       they suspect the issue could involve corrupt conduct that is serious or systemic.

5.10               This would ensure that mandatory referrals received by the Commissioner are aligned as much as possible with the Commissioner’s threshold for commencing an investigation (see paragraphs 6.12 to 6.24). This complements the voluntary referral pathway that allows any person to refer a corruption issue to the Commissioner (see clause 32).

5.11               The meaning of the term serious or systemic is discussed further in paragraphs 6.16 to 6.19. The Commissioner would also be permitted to issue guidance to agencies to, among other things, assist agencies to determine whether alleged conduct would constitute serious or systemic corrupt conduct (see clause 279). It is expected that this guidance would be developed and updated over time and in response to the nature and volume of referrals that agencies make, agencies’ experiences with complying with this Division, and the Commissioner’s assessment of risk.

5.12               The requirement for the agency head or relevant staff member to ‘suspect’ that the issue could involve corrupt conduct that is serious or systemic is a lower threshold than ‘belief’ or ‘knowledge’. ‘Suspicion’ necessarily connotes the existence of uncertainty and it is immaterial whether the suspected serious or systemic nature of the alleged conduct exists. Further, the test would be subjective, going to the genuinely held suspicions of the person potentially subject to the referral obligation.

Clause 33—Mandatory referral—Commonwealth agencies other than intelligence agencies

5.13               This clause would create an obligation for a head of a Commonwealth agency to refer corruption issues to the Commissioner. Commonwealth agencies and the head of those agencies are defined in clause 11.

5.14               The mandatory referral obligation applies where an agency head becomes aware of a corruption issue concerning the conduct of a person who was a staff member of the agency at the time of the alleged conduct. As defined in clause 9, a corruption issue is an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct. Corrupt conduct is defined in clause 8.

5.15               The obligation to refer the issue only arises if the agency head suspects that the issue could involve corrupt conduct that is serious or systemic. This is appropriate to ensure that referrals that are unlikely to be dealt with by the Commissioner are not required to be referred and continue to be dealt with by the relevant agency.

5.16               The meaning of the term serious or systemic is discussed further in paragraphs 6.16 to 6.19. The Commissioner would also be permitted to issue guidance to agencies to, among other things, assist agencies to determine whether alleged conduct would constitute serious or systemic corrupt conduct (see clause 279). This guidance would be likely to be developed and updated over time and in response to the nature and volume of referrals that agencies make, agencies’ experiences with complying with this Division, and the Commissioner’s assessment of risk.

5.17               The requirement for the agency head to ‘suspect’ that the issue could involve corrupt conduct that is serious or systemic would be intended to operate as a low threshold, and can be contrasted with the other common legislative standards requiring a higher threshold, such as ‘belief’ and ‘knowledge’. ‘Suspicion’ necessarily connotes the existence of uncertainty and it is immaterial whether the suspected serious or systemic nature of the alleged conduct exists. Further, the test would be subjective, going to the genuinely held suspicions of the person potentially subject to the referral obligation.

5.18               The mandatory referral obligations would only arise when the agency head becomes personally aware of the corruption issue, regardless of how this awareness occurs. The obligation would apply regardless of when the relevant conduct occurred, including if it occurred prior to the agency head joining the agency or prior to establishment of the NACC.

5.19               The mandatory referral obligations would only arise when the agency head becomes aware of the corruption issue after the commencement of this clause. The obligation would not apply to corruption issues that the agency head may have already been aware of prior to the commencement of this clause. This is intended to ensure that agency heads are not required to refer corruption issues to the Commissioner that may already be under investigation or that have previously been fully investigated, or that have been otherwise dealt with. This would not preclude an agency head from referring a corruption issue that they are already aware of to the Commissioner under clause 32.

5.20               Where a mandatory referral is made under this clause, the agency head must state in the referral the reasons why they suspect that the issue could involve corrupt conduct that is serious or systemic. This will assist the Commissioner to determine whether the corrupt conduct being referred is likely to meet the Commissioner’s threshold for commencing an investigation.

5.21               The requirements under this clause would not apply to the head of an intelligence agency as this is instead dealt with in clause 34.

5.22               Exceptions to the mandatory referral obligation in clause 37 provide that the agency head is not required to refer a corruption issue to the Commissioner if they believe on reasonable grounds that the Commissioner is already aware of this issue or a determination made by the Commissioner provides that a referral is not required.

Clause 34—Mandatory referral—intelligence agencies

5.23               This clause would create an obligation for the head of an intelligence agency to refer corruption issues to the Commissioner or the IGIS. Consistent with the definition in clause 7 (see paragraph 1.90), intelligence agencies covered by this obligation are:

       the Australian Geospatial-Intelligence Organisation;

       ASIS;

       ASIO;

       the Australian Signals Directorate;

       the Defence Intelligence Organisation; and

       the Office of National Intelligence.

5.24               The heads of these agencies are defined in clause 11.

5.25               The mandatory referral obligation applies where the head of an intelligence agency becomes aware of a corruption issue concerning the conduct of a person who was a staff member of the intelligence agency at the time of the alleged conduct. As defined in clause 9, a corruption issue is an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct. Corrupt conduct is defined in clause 8.

5.26               The obligation to refer the issue only arises if the head of the intelligence agency suspects that the issue could involve corrupt conduct that is serious or systemic. This is appropriate to ensure that referrals that are unlikely to be dealt with by the Commissioner are not required to be referred and continue to be dealt with by the relevant agency.

5.27               The meaning of the term serious or systemic is discussed further in paragraphs 6.16 to 6.19. The Commissioner would also be permitted to issue guidance to agencies to, among other things, assist agencies to determine whether alleged conduct would constitute serious or systemic corrupt conduct (see clause 279). This guidance would likely be developed and updated over time and in response to the nature and volume of referrals that agencies make, and agencies’ experiences with complying with this Division, and the Commissioner’s assessment of risk.

5.28               The requirement for the head of the intelligence agency to ‘suspect’ that the issue could involve corrupt conduct that is serious or systemic would be intended to operate as a low threshold, and can be contrasted with the other common legislative standards requiring a higher threshold, such as ‘belief’ and ‘knowledge’. ‘Suspicion’ necessarily connotes the existence of uncertainty and it is immaterial whether the suspected serious or systemic nature of the alleged conduct exists. Further, the test would be subjective, going to the genuinely held suspicions of the person potentially subject to the referral obligation.

5.29               The mandatory referral obligations would only arise when the head of the intelligence agency becomes personally aware of the corruption issue, regardless of how this awareness occurs. The obligation would apply regardless of when the relevant conduct occurred, including if it occurred prior to the head joining the intelligence agency or prior to establishment of the NACC.

5.30               The mandatory referral obligations would only arise when the agency head becomes aware of the corruption issue after the commencement of this clause. The obligation would not apply to corruption issues that the agency head may have already been aware of prior to the commencement of this clause. This is intended to ensure that agency heads are not required to refer corruption issues to the Commissioner or the IGIS that may already be under investigation or that have previously been fully investigated, or have been otherwise dealt with. This would not preclude an agency head from referring a corruption issue that they are already aware of to the Commissioner under clause 32, or to the IGIS under the IGIS Act.

5.31               Providing intelligence agency heads with a discretion to refer a matter to either the Commissioner or to the IGIS would enable the head of an intelligence agency to determine which is the most appropriate body to refer the corruption issue to on a case‑by‑case basis. For example, there may be circumstances where it is more appropriate for a referral to be made to the IGIS given its oversight role and extensive experience in relation to the legality and propriety of the conduct of intelligence agencies.

5.32               Where a referral is made under this clause, the head of the intelligence agency must state in the referral the reasons why they suspect that the issue could involve corrupt conduct that is serious or systemic. This will assist the IGIS and the Commissioner to determine whether the corrupt conduct being referred is likely to meet the Commissioner’s threshold for commencing an investigation.

5.33               Exceptions to the mandatory referral obligation in clause 37 provide that the agency head is not required to refer a corruption issue to the Commissioner or the IGIS if they believe on reasonable grounds that the Commissioner or the IGIS is already aware of this issue or a determination made by the Commissioner provides that a referral is not required.

5.34               This clause would provide that when the head of an intelligence agency refers a corruption issue to the Commissioner, they must notify the IGIS of the referral as soon as reasonably practicable. As the standing oversight body for intelligence agencies, this provides visibility to the IGIS of allegations of corruption, allowing the IGIS to effectively perform their oversight role.

5.35               If the head of an intelligence agency refers the corruption issue to the IGIS, the IGIS would be required to consider the issue. If the IGIS is satisfied that the issue is likely to involve corrupt conduct that is serious or systemic, the IGIS would be required to refer the issue to the Commissioner. This ensures that all issues likely to involve serious or systemic corruption make their way to the Commissioner, who may then decide how to deal with the issue (see Part 6). It also provides the Commissioner with comprehensive visibility of the nature of corruption issues arising across the Commonwealth.

5.36               For the referral obligation to arise for the IGIS, the IGIS would require a higher level of certainty than a suspicion that the issue involves corrupt conduct that is serious or systemic. The IGIS must be satisfied that the issue is likely to involve corrupt conduct that is serious or systemic. This higher threshold recognises the oversight role and extensive experience of the IGIS in relation to the legality and propriety of the conduct of intelligence agencies.

5.37               The IGIS would not be required to consider the likelihood that the alleged conduct occurred, as that is a matter for any investigation. A corruption issue would concern serious or systemic corrupt conduct if the alleged conduct is serious or systemic, regardless of whether that conduct is likely to have occurred.

Clause 35—Mandatory referral—Public Interest Disclosure Act disclosures

5.38               This clause would create a mandatory referral obligation for staff members of a Commonwealth agency with certain responsibilities under the PID Act (a PID officer). This would ensure that corruption issues that come to the attention of a Commonwealth agency through a PID Act process are referred to the Commissioner at the earliest possible opportunity.

5.39               This clause recognises that there would be overlap between the types of disclosable conduct that can be dealt with under the PID Act and alleged corrupt conduct that can be dealt with under the NACC Bill. Under the PID Act, a public official can make an internal disclosure to their supervisor or an authorised officer. An authorised officer must allocate an internal disclosure to an agency for investigation unless satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure (section 43 of the PID Act). Subject to certain exceptions, the principal officer of that agency or their delegate must investigate the internal disclosure (section 47 of the PID Act).

PID officers

5.40               The mandatory referral obligation would apply to PID officers, which would include:

       authorised officers who have functions and powers in relation to the allocation of internal disclosures under Division 1 of Part 3 of the PID Act; and

       other persons (in this Explanatory Memorandum, investigating officers), who have functions and powers in relation to the investigation of internal disclosures under Division 2 of Part 3 of the PID Act.

Authorised officers

5.41               Division 1 of Part 3 of the PID Act details the functions and powers conferred on an authorised officer when an internal disclosure is made to that officer. Section 36 of the PID Act provides that an authorised officer is the principal officer of the agency or a public official of that agency appointed as an authorised officer by the principal officer. Under the PID Act, authorised officers may receive an internal disclosure and allocate the disclosure to another person for investigation.

5.42               If an authorised officer, in the course of performing their functions under the PID Act, received an internal disclosure under the PID Act that raised a corruption issue they suspect could involve corrupt conduct that is serious or systemic and that concerns the conduct of a person who was a staff member of the agency at the time of the alleged conduct, the authorised officer would be required to refer the issue to the Commissioner. This obligation on authorised officers applies even if the authorised officer considers the disclosure was not an internal disclosure under the PID Act, provided the information raising the corruption issue came to them in their capacity as an authorised officer.

5.43               If the authorised officer is a staff member of an intelligence agency, they would be required to refer the issue to either the Commissioner or the IGIS, consistent with the obligation on the heads of those agencies.

5.44               If an authorised officer handling the corruption issue is unsure whether the issue involves serious or systemic corruption, the officer would be able to have regard to any guidelines issued by the Commissioner under clause 279.

5.45               The obligation would arise once the authorised officer became aware of the corruption issue and suspected that it involved corrupt conduct that is serious or systemic, including after receiving an internal disclosure.

Investigating officers

5.46               Division 2 of Part 3 of the PID Act confers functions and powers on the principal officer of an agency and their delegates (an investigating officer) to investigate an internal disclosure allocated under Division 1 of that Part. The principal officer of an agency is defined in section 73 of the PID Act.

5.47               Generally, the principal officer is the same person as the head of a Commonwealth agency under the NACC Bill. However, the heads of agencies may have delegated their powers and functions under the PID Act and the NACC Bill to different officers. As a result, those officers investigating internal disclosures under the PID Act (investigating officers) may have greater awareness of corruption issues.

5.48               If an internal disclosure made or investigated under the PID Act raises a corruption issue, an investigating officer who suspects the issue could involve corrupt conduct that is serious or systemic and that concerns a person who was a staff member of the agency at the time of the alleged conduct, would be required to refer the issue to the Commissioner. If the principal officer is a staff member of an intelligence agency, they would be required to refer the issue to either the Commissioner or the IGIS. This requirement on investigating officers applies even if they consider the disclosure was not an internal disclosure under the PID Act, provided the information raising the corruption issue came to them in their capacity as an investigating officer.

5.49               The obligation would arise once the investigating officer became aware of the corruption issue, including after receiving a disclosure from an authorised officer or during the course of a disclosure investigation.

The mandatory referral obligation

5.50               The obligation arises where a PID officer becomes aware of a corruption issue that concerns the conduct of a person who was a staff member of the agency at the time of the alleged conduct. As defined in clause 9, a corruption issue is an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct. Corrupt conduct is defined in clause 8.

5.51               The obligation to refer the issue only arises if the PID officer suspects that the issue could involve corrupt conduct that is serious or systemic. This is appropriate to ensure that referrals that are unlikely to be dealt with by the Commissioner are not required to be referred and continue to be dealt with by the relevant agency under the PID Act.

5.52               The meaning of the term serious or systemic is discussed further in paragraphs 6.16 to 6.19. The Commissioner would also be permitted to issue guidance to agencies to, among other things, assist agencies to determine whether alleged conduct would constitute serious or systemic corrupt conduct (see clause 279). This guidance would likely be developed and updated over time and in response to the nature and volume of referrals that agencies make, and agencies’ experiences with complying with this Division.

5.53               The requirement for the PID officer to ‘suspect’ that the issue could involve corrupt conduct that is serious or systemic would be intended to operate as a low threshold, and can be contrasted with the other common legislative standards requiring a higher threshold, such as ‘belief’ and ‘knowledge’. ‘Suspicion’ necessarily connotes the existence of uncertainty and it is immaterial whether the suspected serious or systemic nature of the alleged conduct exists. Further, the test would be subjective, going to the genuinely held suspicions of the person potentially subject to the referral obligation.

5.54               The obligation would apply regardless of when the relevant conduct occurred, including if it occurred prior to establishment of the NACC. The obligation would not arise if the corruption issue did not relate to the person’s agency. However, the mandatory referral obligations would only arise when the PID officer becomes aware of the corruption issue after the commencement of this clause. The obligation would not apply to corruption issues that the PID officer may have already been aware of prior to the commencement of this clause. This is intended to ensure that PID officers are not required to refer corruption issues to the Commissioner or the IGIS (as the case may be) that may already be under investigation or that have previously been fully investigated, or have been otherwise dealt with. This would not preclude a PID officer from referring a corruption issue that they are already aware of to the Commissioner under clause 32, or to the IGIS under the IGIS Act or PID Act.

5.55               The mandatory referral obligation would apply to relevant corruption issues that form all or part of a PID made to the PID officer, or a corruption issue that the PID officer becomes aware of in the course of performing their functions under the PID Act. This is appropriate to ensure that the Commissioner still receives referrals relating to corruption issues, even where the corruption issue forms part of a PID that also concerns other alleged misconduct, for example, maladministration.

5.56               Exceptions to the mandatory referral obligation in clause 37 provide that the PID officer is not required to refer a corruption issue to the Commissioner if they believe on reasonable grounds that the Commissioner is already aware of this issue (for example if it has already been referred by the agency head responsible for the PID officer’s agency) or a determination made by the Commissioner provides that a referral is not required.

5.57               In addition, a referral to the Commissioner would not prevent a PID officer from being able to continue to handle the disclosure in accordance with the PID Act (see clause 39 and paragraphs 5.91 to 5.95), unless the Commissioner has issued a stop action direction (see clause 43). This is appropriate to ensure that PID officers are still able to meet their obligations under the PID Act following a referral.

Additional steps for corruption issues concerning intelligence agencies

5.58               If a PID officer refers a corruption issue concerning an intelligence agency under this clause, additional requirements would apply.

5.59               If the PID officer referred the issue to the Commissioner, the PID officer would be required to notify the IGIS as soon as practicable. As the standing oversight body for intelligence agencies, this provides visibility to the IGIS of allegations of corruption, allowing the IGIS to effectively perform their oversight role.

5.60               If the PID officer referred the issue to the IGIS, the IGIS would be required to consider the issue. If the IGIS is satisfied that the issue is likely to involve corrupt conduct that is serious or systemic, the IGIS would be required to refer the issue to the Commissioner. This ensures that all issues involving serious or systemic corruption make their way to the Commissioner, who may then decide how to deal with the issue (see Part 6). It also provides the Commissioner with comprehensive visibility of the nature of corruption issues arising across the Commonwealth.

5.61               For the referral obligation to arise for the IGIS under this clause, the IGIS would require a higher level of certainty than a suspicion that the issue involves corrupt conduct that is serious or systemic. The IGIS must be satisfied that the issue is likely to involve corrupt conduct that is serious or systemic. This higher threshold recognises the oversight role and experience of the IGIS in relation to the conduct of intelligence agencies, agencies’ compliance with the law and the propriety of agencies’ activities.

5.62               The IGIS would not be required to consider the likelihood that the alleged conduct occurred, as that is a matter for any investigation. A corruption issue would concern serious or systemic corrupt conduct if the alleged conduct is serious or systemic, regardless of whether that conduct is likely to have occurred.

Notification to discloser

5.63               This clause would also provide that where a PID officer refers a corruption issue that arose from an internal disclosure made under the PID Act, the PID officer must, as soon as reasonably practicable, notify the discloser that their disclosure has been referred to the Commissioner or to the IGIS. Ensuring the discloser is notified of such a referral is consistent with a PID officer’s obligations under the PID Act to keep disclosers informed of how their disclosure is being dealt with (see for example subsection 44(2) and section 50 of that Act). The obligation to notify the discloser does not create a requirement for the Commissioner or the IGIS to deal with the issue, or create a requirement for the PID officer to cease dealing with the disclosure under the PID Act.

Clause 36—Mandatory referral—secrecy protection provisions

5.64               This clause would ensure the obligation to refer a corruption issue under this Division would still apply despite any secrecy provision, with the exception of an exempt secrecy provision (see paragraph 1.72). This is appropriate to enable the Commissioner to receive as much information about a corruption issue as possible—including where that information is subject to a secrecy provision—which would be critical for the efficacy of the NACC’s investigation function.

5.65               Arrangements in Part 11 of the NACC Bill concerning the NACC’s confidentiality, consultation and information-sharing requirements would ensure that any information received by the Commissioner would be subject to appropriate confidentiality requirements and would be securely handled.

5.66               Part 11 of the NACC Bill would not impose confidentiality requirements on the IGIS in relation to information provided to the IGIS under clause 34 or 35. However, the IGIS is already subject to the confidentiality requirements in section 34 of the IGIS Act. This means that information provided to the IGIS under those clauses despite a secrecy provision would be protected from inappropriate on-disclosure.

Other ways information could be provided to the Commissioner or the IGIS

5.67               There is no requirement for a person under a mandatory referral obligation to disclose information to the Commissioner where that information is subject to an exempt secrecy provision. However, a person could still disclose such information to the Commissioner on a voluntary basis under Division 1 of this Part. In those circumstances, a person could rely on clause 24 (protection of persons from liability) to avoid civil, criminal or administrative liability in respect of their disclosure.

5.68               These arrangements reflect the established approach in section 34B of the IGIS Act, which ensures that a person who voluntarily provides information to the Inspector‑General is not liable to penalties under Commonwealth laws for making a disclosure for certain IGIS Act purposes. That section may also apply to disclosures concerning corruption issues that are made to the IGIS.

Clause 37—Mandatory referral—exceptions

5.69               This clause would provide for two exceptions to the mandatory referral obligations under this Division:

       where the Commissioner or the IGIS (as appropriate) is already aware of the issue; and

       in accordance with a determination made by the Commissioner.

Exception where Commissioner or the IGIS already aware

5.70               A person subject to a mandatory referral obligation is not required to refer a matter if they believe on reasonable grounds that the Commissioner or the IGIS (as appropriate) is already aware of the corruption issue.

5.71               This exception would ensure that mandatory referral obligations do not result in duplication by requiring multiple people to refer the same issue to the Commissioner or the IGIS. For example, the obligation to refer a single corruption issue may apply to multiple persons who become aware of the issue, including:

       an agency head and an authorised officer of an agency; or

       in the case of the conduct of a secondee—the head of the secondee’s home agency and the head of the host agency to which the services of the secondee have been made available. In these circumstances, it does not matter in which capacity of the secondee the corruption issue arises.

5.72               Once one person has made a referral, any person who believes on reasonable grounds that the Commissioner or the IGIS (as relevant) is already aware of the referred corruption issue will be relieved of the obligation to refer the corruption issue.

5.73               For example, an authorised officer under the PID Act would not be required to refer a corruption issue if they believed on reasonable grounds that the principal officer of their agency had already referred the corruption issue to the Commissioner. The PID officer would equally be relieved of a mandatory referral obligation if they believed on reasonable grounds that the person who made the internal disclosure had already made a voluntary referral to the Commissioner.

Commissioner’s determinations

5.74               The second exception arises where the Commissioner has made a determination that the referral is not required because of the kind of corruption issue involved or the circumstances in which the issue arose. A determination need not relate to a specific corruption issue and may be made to provide a prospective exception to a class of corruption issues.

5.75               The ability for the Commissioner to make determinations would assist the NACC and the relevant agency by ensuring that referrals that are unlikely to be dealt with by the Commissioner are not required to be referred. For example, the Commissioner may receive large volumes of referrals regarding misuse of information where the conduct involves inappropriate browsing of internal database that may be more appropriately dealt with by the relevant agency rather than the NACC. The determination power would allow the Commissioner to relieve Commonwealth agencies of their mandatory referral obligations in relation to this conduct.

5.76               This clause would provide that the Commissioner’s determinations are not legislative instruments. This declaration would operate as an exception to section 8(1) of the Legislation Act 2003 (see paragraph 8(6)(a) of that Act). As a consequence of this declaration, a determination would not need to be published on the Federal Register of Legislation, or be subject to parliamentary disallowance or sunsetting under Parts 2 and 3 of Chapter 3 of the Legislation Act 2003.

5.77               It is appropriate that Commissioner’s determinations not be legislative instruments, and be excepted from tabling, publication, disallowance and sunsetting. As a preliminary matter, determinations would not narrow the Commissioner’s jurisdiction to investigate corruption issues, or remove the ability for any person to voluntarily refer a corruption issue to the Commissioner (notwithstanding that the issue may be covered by a determination). A determination would only narrow the referral obligation imposed on agency heads and persons with responsibilities under the PID Act, by setting out:

       kinds of corruption issues that are not required to be referred to the Commissioner; and

       circumstances in which corruption issues are not required to be referred to the Commissioner.

5.78               In some circumstances, the details of a determination may be inherently sensitive—for example, if the Commissioner were to make a determination to give effect to an agreement with another oversight or integrity authority (such as the IGIS or Inspector-General of the Australian Defence Force) about the efficient division of responsibility between their agencies, and that division of responsibility were made by reference to particular operational circumstances in which a corruption issue may arise.

5.79               Although the Commonwealth has a robust, multi-agency integrity framework, the publication of a determination could also result in public officials and third parties perceiving that they are less likely to be detected or investigated if they engage in corrupt conduct of a kind set out in a determination. In such circumstances, the publication of a determination could have the adverse effect of reducing deterrence of corruption risks in areas covered by a determination.

5.80               Each of the above risks would be a material barrier to the Commissioner making a determination, and could prevent the Commissioner from using the determination-making power to efficiently and effectively manage their pipeline of incoming mandatory referrals, or to give effect to sensible divisions of responsibility with other Commonwealth law enforcement, oversight and integrity agencies.

5.81               It would be open to the Commissioner to publish determinations on their website where the Commissioner determines it is appropriate to do so.

Clause 38—Mandatory referral—timing and information requirements

5.82               This clause would set out requirements for making a mandatory referral and providing relevant information to the Commissioner or the IGIS (as appropriate).

Timing requirements

5.83               This clause would provide that a person who is required to refer a corruption issue must make the referral as soon as reasonably practicable after becoming aware of the issue, or within such later time as is allowed by the Commissioner.

5.84               It is important that there is flexibility in the timing of referrals. The person who is subject to the requirement to make the referral will need sufficient time to obtain relevant information, consult with relevant stakeholders and obtain advice as to whether the referral threshold is met. On the other hand, it is important for the referral to be made to the NACC as quickly as possible, so that it can take any necessary investigative steps to capture relevant evidence. The requirement for the referral to be made as soon as reasonably practicable achieves an appropriate balance between these competing interests.

Information requirements

5.85               This clause would outline the information that must be included when a person makes a mandatory referral of a corruption issue to the Commissioner or to the IGIS. A person making a referral would be required to include all information relevant to the corruption issue that is in their possession or control at the time the referral is made.

5.86               Where a person becomes aware of further information that is relevant to the corruption issue after a referral has been made, the person would be required to give that information to the recipient of the referral as soon as reasonably practicable.

5.87               These requirements are appropriate to enable the Commissioner or the IGIS to receive all relevant information about a corruption issue that an agency has in its possession. This means that the Commission can proceed efficiently to decide how to deal with the corruption issue, without needing to request basic information from the relevant agency.

Exceptions to information requirements

5.88               The information requirements under this clause would not apply if the person has reasonable grounds to believe that the recipient of the referral is already aware of the information, for example if the information has already been provided by another person within the agency who has a mandatory referral obligation.

5.89               Further, the recipient of the information may advise the person that they no longer require additional information to be provided. In these circumstances, the person’s obligation to continue providing relevant information would cease. For example, the Commissioner may have decided to deal with the corruption issue by referring it to another agency for consideration, in which case the Commissioner would not need to receive further information on that matter.

5.90               This clause is subject to the requirements contained in clause 236 (Attorney-General’s certificate in relation to international relations).

Division 3—Other matters relating to referrals

Clause 39—Effect of referral on continued actions

5.91               This clause would confirm that, in the absence of a stop action direction given by the Commissioner under clause 43, the referral of a corruption issue under Part 5 has no effect on the ability of a Commonwealth agency or the IGIS to take action in relation to the relevant conduct.

5.92               Any obligation on the relevant agency or the IGIS to handle the corruption issue under any other law also remains unaffected by a referral to the Commissioner. Except where provided for in other legislation, a referral to the Commissioner or the IGIS does not transfer a matter to the Commissioner such that it is no longer a matter for the referring agency to deal with under relevant legislation.

5.93               This is appropriate to ensure that persons with obligations under any other law continue to meet those obligations after making a referral to the NACC.

5.94               For example, after a PID officer refers a disclosure that raises a corruption issue to the Commissioner, the officer would need to continue to handle the disclosure in accordance with the PID Act unless the Commissioner has issued a stop action direction.

5.95               If the Commissioner decides to conduct a corruption investigation, this may permit a PID officer to discontinue any investigation under the PID Act (see subparagraph 48(1)(f)(i) of that Act).


6.1                   This Part would provide for the Commissioner to manage incoming referrals and other information by deciding how to deal with corruption issues.

6.2                   The Commissioner would have a broad discretion to decide how to deal with a corruption issue that they become aware of, whether as the result of a referral from a Commonwealth agency or another person, or that the Commissioner becomes aware of in any other way. The ability for the Commissioner to deal with corruption issues that they become aware of, otherwise than as the result of a referral, would ensure that the Commissioner can deal with corruption issues of their own initiative.

6.3                   The Commissioner would have a range of options when dealing with a corruption issue. The Commissioner would be able to investigate the issue, either by themselves or jointly with another agency, provided they are of the opinion that the corruption issue could involve corrupt conduct that is serious or systemic. Further, the Commissioner could refer any corruption issue to an agency to which the corruption issue relates for internal investigation—which would facilitate the timely investigation of less serious or isolated corruption issues—or to another independent investigative agency, such as the AFP, for its consideration.

6.4                   To ensure the Commission can effectively manage its workload, the Commissioner would also have discretion to take no action in relation to a corruption issue. This would allow the Commissioner to not investigate or otherwise deal with an unmeritorious referral or allegation.

Division 1—Dealing with corruption issues

Clause 40—Commissioner may deal with corruption issues

6.5                   This clause would provide that the Commissioner may deal with a corruption issue that is formally referred to the Commissioner under Part 5 or that the Commissioner otherwise becomes aware of through other means.

6.6                   This clause would only allow the Commissioner to deal with matters that fall within their jurisdiction. This would mean there must be a corruption issue, which would be defined by clause 9 to mean an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct. Corrupt conduct would be defined in clause 8.

6.7                   Part 5 would provide for the Commissioner to receive voluntary referrals of corruption issues from any person as well as mandatory referrals of corruption issues from agency heads and certain staff with responsibilities under the PID Act. This clause would allow the Commissioner to deal with corruption issues that are referred in this way.

6.8                   The Commissioner would also be able to deal with corruption issues that the Commissioner becomes aware of in any other way, for example through media reporting on the issue. It would ensure the Commissioner could act on their own initiative.

6.9                   The Commissioner would be able to conduct a preliminary investigation to confirm whether a corruption issue exists (see clause 42) to enable them to make an informed decision about whether, and if so how, to deal with the issue.

Clause 41—How Commissioner deals with corruption issues

6.10               This clause would provide a discretion for the Commissioner to deal with a corruption issue in one or more of the following ways:

       by investigating the issue themselves;

       by investigating the issue jointly with a Commonwealth agency, for example the AFP, or a State or Territory government entity, such as an anti-corruption commission;

       by referring the issue to a Commonwealth agency to which the issue relates for investigation by that agency, but only if the Commissioner is satisfied the agency has appropriate capabilities to investigate the issue—this would enable the Commissioner to refer less serious corruption issues to the relevant Commonwealth agency and to require the agency to conduct an internal investigation; or

       by referring the issue to a Commonwealth agency or a State or Territory government entity for its consideration—this would enable the Commissioner to refer a corruption issue to another investigative agency for their consideration, ensuring that issues can be drawn to the attention of the most-appropriate investigative agency. This would not require the investigative agency to conduct an investigation, noting that decision would be a matter for that agency.

6.11               An investigation conducted by the Commissioner, including a joint investigation, would be a corruption investigation.

Corruption investigation threshold—serious or systemic corrupt conduct

6.12               The Commissioner would only be able to conduct, or continue to conduct, a corruption investigation if the Commissioner is of the opinion that the corruption issue (being an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct) could involve corrupt conduct that is serious or systemic.

Opinion is subjective

6.13               The requirement that the Commissioner be ‘of the opinion’ that the corruption issue could involve corrupt conduct that is serious or systemic is a requirement that the Commissioner subjectively hold that state of mind. It is in the public interest that credible reports and allegations of serious or systemic corrupt conduct be investigated, that unfounded allegations be dispensed with, and minor matters be handled by the agency is which they arose. The requirement is not intended to impose an onerous or impracticably high bar to the Commissioner commencing a corruption investigation.

Threshold applies throughout investigation

6.14               The objects of this Bill, as would be set out by clause 3, include the timely investigation of corruption issues that involve, or potentially involve, corrupt conduct that is serious or systemic. The Commissioner’s functions would be to conduct corruption investigations into corruption issues that could involve serious or systemic corrupt conduct.

6.15               Therefore, the ‘serious or systemic’ threshold would be ongoing throughout an investigation. For example, if evidence received during the investigation caused the Commissioner to no longer hold the opinion that the corruption issue could involve serious or systemic corrupt conduct, the Commissioner would not be able to continue investigating the corruption issue.

Meaning of serious

6.16               The term serious is intended to take its ordinary meaning. Corruption issues may arise in a wide range of contexts, may be criminal or non-criminal in nature, and may affect any aspect of public administration. Multiple factors may contribute to the question of whether particular corrupt conduct could be ‘serious’, including both the substance of the conduct and its result. It would not be appropriate to attempt to define these factors exhaustively, but they may include:

       where the corrupt conduct could involve the commission of a criminal offence—the seriousness of that offence, including by reference to the maximum penalty set by the Parliament for the offence;

       where the corrupt conduct involves corruptly causing a financial loss or gain—the quantum of that financial loss or gain;

       where the corrupt conduct involves the misuse of information—the sensitivity of that information, and the harm that may result from its misuse;

       where the corrupt conduct involves an abuse of office—the nature of the office, the manner in which the person is alleged to have abused their office, and the nature and extent of the improper benefit or loss that has resulted or that may result;

       whether the conduct was done covertly or involved deception; or

       whether the conduct was done in a planned and deliberate fashion.

6.17               The fact that a person holds a particular office or appointment will not, of itself, be relevant to the question of whether particular corrupt conduct could be serious—the focus of the threshold would be on the conduct in question, rather than on the identity or characteristics of the office-holder. However, where a person holds a position or office of particular trust or sensitivity, and is alleged or suspected of having used or abused that office to engage in the conduct, their use or abuse of that office in the course of their conduct may also be relevant to the question of whether that corrupt conduct could be ‘serious’.

6.18               For example, a senior official who knowingly misuses a corporate credit card for a small personal expense, without more, may not be considered serious—notwithstanding their seniority. However, if the senior official also misused their seniority to pressure a departmental fraud control officer to ensure their credit card statement is not audited or reviewed, this additional abuse of office would be relevant to determining whether the conduct is serious.

Meaning of systemic

6.19               The term systemic is intended to take its ordinary meaning. An instance of corrupt conduct would be systemic where, on its ordinary meaning, it occurs as part of a pattern of corrupt conduct, for example in one or more Commonwealth agencies. The pattern of conduct need not be coordinated in any way. For example, the Commissioner may receive multiple referrals relating to different staff members of the same agency engaging in similar corrupt conduct that does not appear to be coordinated. The first referral of conduct would raise a corruption issue. As there is information available to the Commissioner pointing to multiple instances of similar conduct in the agency, it would be open to the Commissioner to form the opinion that the corruption issue in question could involve corrupt conduct that is systemic.

Opinion concerns the nature of alleged conduct

6.20               The opinion required would go to the nature of the alleged conduct and whether that conduct—if established in a corruption investigation—could involve serious or systemic corrupt conduct. This clause would not require the Commissioner to form an opinion about whether the alleged conduct occurred; that is a matter for an investigation.

6.21               The Commissioner’s discretion to investigate a corruption issue that they consider could involve serious or systemic corrupt conduct would not depend on the probative value of the allegation. For an allegation, or other information, to give rise to a corruption issue, the allegation or information would need to give rise to, bring up, or put forward all of the essential elements of a corruption issue, as defined (see clause 9). Similarly, the allegation, or other information, would need to include, either explicitly or implicitly, coherent grounds on which the Commissioner could form the opinion that the corruption issue could—if established in a corruption investigation—involve corrupt conduct that is serious or systemic.

6.22               It would not be necessary, however, for the allegation or information to prove that there is a corruption issue that could involve serious or systemic corrupt conduct. The purpose of a corruption investigation would be to test the accuracy of the allegation or information.

6.23               Where the information before the Commissioner is incomplete or is otherwise not sufficient for the Commissioner to form the requisite opinion, it would be open to the Commissioner to conduct a preliminary investigation for the purposes of (see clause 42):

       confirming the existence or nature of a corruption issue (including whether a corruption issue could involve corrupt conduct that is serious or systemic); or

       to assist the Commissioner to decide whether or how to deal with a corruption issue.

6.24               The Commissioner would not be obliged to investigate if the allegation raises a corruption issue that could be serious or systemic. For example, the Commissioner may be disinclined to investigate an issue, if the Commissioner is aware that another agency is already investigating the issue.

Other corruption issues may be dealt with in other ways

6.25               Where the Commissioner is of the opinion that a corruption issue does not meet the threshold for the Commissioner to commence or continue a corruption investigation themselves, the Commissioner would have the power, under this clause, to refer the issue to the relevant agency for internal investigation, or to another Commonwealth, State or Territory agency for its consideration.

General matters

6.26               The Commissioner would be able to investigate particular corruption issues together. This is intended to enable the Commissioner to investigate related corruption issues in the most efficient and effective manner including, for example:

       where the Commissioner has received multiple referrals in relation to conduct that may demonstrate a systemic issue within an agency or multiple agencies—by allowing the Commissioner to investigate these issues together and establish whether a pattern of corrupt conduct has occurred;

       where the Commissioner has received referrals alleging multiple instances of corrupt conduct by the same public official—by allowing the Commissioner to investigate those issues together, if they appear to be related, to enable the Commissioner to form a complete picture of the official’s conduct, and to enable an efficient approach to investigating conduct by the same person; or

       where the Commissioner has received a referral alleging that multiple persons have engaged in corrupt conduct as part of a conspiracy—by allowing the Commissioner to investigate each of those corruption issues (being an issue of whether each person has engaged, is engaging, or will engage in corrupt conduct) together.

6.27               The Commissioner would also be able to reconsider whether or how to deal with a corruption issue at any time. For example, if the Commissioner ceases an investigation as they no longer hold the opinion that the corruption issue could involve serious or systemic corrupt conduct, the Commissioner could decide to deal with the corruption issue in another way under this clause, including by making a referral to the relevant Commonwealth agency.

Commissioner may decide to take no action

6.28               The Commissioner would also be able to decide to take no action in relation to a corruption issue. This decision would be at the discretion of the Commissioner and is not subject to additional criteria or a mandatory process. This is intended to provide the Commission with flexibility to manage its workload, maintain its focus on serious or systemic corruption issues, and to dispense with referrals in a timely fashion in circumstances where, for example:

       the referral is unsubstantiated or unmeritorious; or

       the referring agency has advised that it, or another investigative agency, is already investigating the corruption issue.

6.29               The Commissioner would not be under a duty to consider whether to deal with a corruption issue, whether it is requested to do so by the person who referred the issue or by any other person, or in any other circumstances.

6.30               Regardless of whether the Commissioner deals with a corruption issue, the Commissioner may refer an allegation or other information to another person or body that could more appropriately deal with the matter (see paragraph 6.10).

Clause 42—Preliminary investigations by Commissioner

6.31               This clause would provide the Commissioner with the power to conduct a preliminary investigation for the purposes of:

       confirming the existence or nature of a corruption issue (including whether a corruption issue could involve corrupt conduct that is serious or systemic); or

       to assist the Commissioner to decide whether or how to deal with a corruption issue.

6.32               Referrals to the Commissioner will often not contain sufficient information for the Commissioner to form an opinion as to whether there is a corruption issue, or whether a corruption issue could involve corrupt conduct that is serious or systemic. For example, a referral may allege that a public official has exercised a particular statutory power for an improper purpose, but may not be accompanied by relevant information that would enable the Commissioner to understand the facts and circumstances of the case, or the purposes for which that power may be exercised. The ability to conduct preliminary investigations is intended to enable the Commissioner to seek information to assist them to decide whether or how to deal with a matter based on credible and sufficient information.

Exercise of certain Part 7 powers for preliminary investigations

6.33               For the purposes of preliminary investigations, the Commissioner would be able to exercise the following investigative powers in Part 7:

       the power to direct the head of a Commonwealth agency to give information, or a document or a thing, to the Commissioner;

       the power to serve a notice to produce on any person requiring the person to give information, or a document or thing, to a specified staff member of the NACC.

6.34               The Commissioner would not be able to issue a post-charge or post-confiscation notice to produce for the purposes of a preliminary investigation.

6.35               This means that in issuing a notice to produce, the Commissioner may not require the person to give the information, document or thing to the Commissioner that includes:

       the subject matter of any charge, or imminent charge, against the person; or

       the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the person.

6.36               It is not appropriate or necessary for the Commissioner to have access to all of the coercive powers available under Part 7 for the purposes of preliminary inquiries. The intrusive nature of some of these powers means that they are not appropriate in the context of confirming the existence of or nature of a corruption issue or assisting the Commissioner to decide how to deal with the corruption issue.

6.37               The availability of these particular statutory powers for the purposes of a preliminary investigation would not preclude the Commissioner from seeking or obtaining information through other means—for example, by requesting the person who made an initial referral to provide further information on a voluntary basis. This clause would not limit the information, documents or things to which the Commissioner may have regard in making a decision about whether or how to deal with a corruption issue.

6.38               The provisions in Part 7 would specify:

       the mode in which information must be provided;

       how a notice is served;

       the period for compliance;

       compliance with a direction or notice (including an offence and provision for extension of time); and

       the retention of documents and things would also apply in relation to the exercise of these powers for preliminary investigations.

Commissioner may have regard to other information

6.39               This clause would provide that it does not limit the information, documents or things to which the Commissioner may have regard in making a decision about whether or how to deal with a corruption issue. This would ensure that the Commissioner can make decisions about how to deal with a corruption issue regardless of whether a preliminary investigation has been undertaken.

Clause 43—Commissioner’s directions about further actions

6.40               This clause would permit the Commissioner to direct a Commonwealth agency to stop taking specified action in relation to a corruption issue that concerns the agency.

6.41               The Commissioner would be able to direct an agency head to stop taking action in relation to a corruption issue that concerns the agency, unless the action is permitted by the Commissioner. The Commissioner would only be able to give a direction to an agency where the corruption issue concerns the agency—for example, where there is an issue of whether a staff member of that agency has engaged in corrupt conduct. This power would not enable the Commissioner to direct other independent agencies to stop conducting a separate or related investigation or inquiry, in parallel to the Commissioner. For example, this power would not enable the Commissioner to direct the Auditor-General to stop or defer an audit. This is appropriate, as the Commissioner should not have the power to direct other independent statutory office-holders, or independent officers of the Parliament, in the performance of their functions.

6.42               The Commissioner would only be able to give this direction if it is required to ensure the effectiveness of any action the Commissioner has taken, or might take, in relation to the corruption issue, or any other corruption issue. A direction could direct the agency not to take particular actions set out in the direction, or not to take action of any kind in relation to a corruption issue. This power could be used to prevent an agency from taking action that may, for example, alert a suspect to the existence of a corruption investigation, or result in the loss of evidence. In particular, the Commissioner could use this power to intervene to halt standard agency practices that could inadvertently prejudice a corruption investigation.

6.43               For example, where an agency has referred a suspected serious or systemic corruption issue to the Commissioner it could also, depending on the facts and circumstances of the case, be appropriate for the agency to suspend the staff member who is suspected of having engaged in corrupt conduct from work, with or without pay. It could also be the case that the agency has a standard administrative practice to require staff who will be absent from work for an extended period to return their electronic devices so that they can be reset and reissued to other staff members. In such circumstances, the Commissioner could direct the agency to not reset and reissue the staff member’s devices, to ensure that potential evidence is not inadvertently lost as a result of the application of standard administrative practices.

6.44               The Commissioner would be required to revoke a direction if it is no longer required.

Permission to take other action

6.45               An agency would be able to take actions in relation to a corruption issue if the Commissioner gives permission for those actions to be taken. Certain actions can also be taken without seeking permission from the Commissioner or despite a direction under this clause (see clause 44).

6.46               If an agency head needs to take action in relation to a corruption issue following the Commissioner giving a direction, they could make a request to the Commissioner. For example, an agency head may request to remove a person’s access from certain IT systems if they are suspected of engaging in corrupt conduct. If such a request is made, the Commissioner would be required to, as soon as practicable, decide whether the entity can take the requested action. The Commissioner would be required to provide a written explanation if they refuse to grant permission for the entity to take action, unless doing so would prejudice any action the Commissioner has taken or might take in relation to a corruption issue, or any action taken as a result of a NACC Act process (see paragraph 1.103).

6.47               The agency head will only need to make such a request to take action if a stop action direction is in place. If there is no such direction in place, the agency can continue to take any action it is otherwise permitted to take.

Interaction with other laws

6.48               A direction by the Commissioner would apply broadly and override any other law of the Commonwealth. Therefore, if a direction conflicted with a requirement in another statute to perform an action, the direction would prevail. For example, an internal disclosure investigation required under the PID Act could be stopped using this power. Where a stop action direction is issued that has the effect of stopping an investigation under the PID Act, an investigating officer would not be required to complete an investigation under the PID Act. Once the stop action direction is revoked, the PID Act timeframes would restart again.

6.49               A stop action direction would not be a legislative instrument. The NACC Bill states this to assist readers, as a direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Clause 44—Action that can be taken without permission

6.50               This clause would outline actions that Commonwealth agencies can take despite any stop action direction issued by the Commissioner.

6.51               There are some circumstances in which it is appropriate and justifiable for an agency to take actions in relation to a corruption issue, even if those actions could affect a corruption investigation. This clause would allow an agency to take action if the action is:

       taken to prevent or lessen an imminent risk to a person’s safety or life;

       taken in the interests of the security, defence or international relations of Australia;

       taken to prevent loss to the Commonwealth of an amount greater than the amount (if any) prescribed by the regulations that cannot be recovered; or

       otherwise unreasonable in the circumstances to await any necessary permission (for example, immediately removing IT access if there is an imminent risk that the person subject to the investigation is about to use that access for corrupt purposes that could have a significant impact on the agency).

6.52               If such action is taken, the agency head would be required to provide details of the action to the Commissioner. The agency head must provide these details as soon as practicable, but at least within 48 hours after the action is taken. This would ensure that the Commissioner has visibility of any actions that have been taken.

6.53               The agency head would be required to take reasonable steps to:

       ensure that the action does not prejudice the investigation of a corruption issue or any other NACC Act process (see paragraph 1.103); and

       preserve evidence that is, or could be, relevant for the purposes of conducting such a NACC Act process (see paragraph 1.103).

Clause 45—Previous investigations by Commonwealth integrity agencies

6.54               This clause would provide for an additional threshold to the commencement of a corruption investigation where the Commissioner is aware that a Commonwealth integrity agency (as defined in clause 15) has previously concluded an investigation into a matter regarding the conduct of a public official. The Commissioner would only be able to commence a corruption investigation into a corruption issue involving the conduct if the Commissioner is satisfied that it is in the public interest to do so.

6.55               The Commissioner would have broad jurisdiction and independence in performing their functions. However, this clause reflects the fact the NACC would also fit within an existing Commonwealth integrity architecture, with specialised agencies performing complementary functions. As such, it is likely that there would be circumstances in which:

       another Commonwealth integrity agency may have completed an investigation into a matter before it comes to the attention of the Commissioner—for example, a performance audit by the Auditor-General may reveal information that may give rise to a corruption issue in relation to a particular Commonwealth agency; or

       the Commissioner may have made an active decision to await the outcome of another Commonwealth integrity agency’s investigation, before deciding whether and how to deal with a corruption issue.

6.56               There is a clear public interest in the effective investigation of allegations of serious or systemic corrupt conduct. Other Commonwealth integrity agencies may not have the jurisdiction or expertise to investigate or make findings in relation to a corruption issue, or have the necessary investigative powers to fully investigate the issue—in particular, if the issue appears to involve serious, criminal corrupt conduct. However, successive investigations relating to the same or substantially similar matter may, in some circumstances, be a disproportionate response.

The public interest test

6.57               In deciding whether it is in the public interest to commence the investigation, the Commissioner would be permitted to have regard to the following matters:

       the significance of the corruption issue;

       the details of the investigation undertaken by the Commonwealth integrity agency (to the extent that those details are known by, or made available to, the Commissioner and the Commissioner considers them relevant);

       any conclusions or findings of the integrity agency in relation to the corruption issue;

       whether the Commissioner has any new evidence in relation to the corruption issue that was not available to the integrity agency, and would not have been obtainable by the exercise of reasonable diligence by that agency;

       any unfairness to a person that may arise as a result of the Commissioner conducting a further investigation into the corruption issue;

       the need to ensure that the corruption issue is fully investigated.

6.58               These factors are non-exhaustive and the Commissioner may consider other appropriate matters when considering whether it is in the public interest to commence a corruption investigation into a matter previously investigated by a Commonwealth integrity agency.

Clause 46—Matters dealt with by Independent Parliamentary Expenses Authority

6.59               This clause would limit the circumstances in which the Commissioner could investigate a corruption issue involving the conduct of a parliamentarian or staff member of a parliamentary office where that conduct falls within the jurisdiction of IPEA.

6.60               This clause would apply to conduct that has been, is or could be the subject of either of the following by IPEA:

       an audit, or a review for the purpose of preparing a report, under the Independent Parliamentary Expenses Authority Act 2017 into the use, by the parliamentarian or the staff member, of work resources or travel resources;

       a ruling, under subsection 37(1) of the Parliamentary Business Resources Act 2017, concerning conduct by the parliamentarian or the staff member in relation to expenses or allowances.

6.61               Where this clause applies, the Commissioner would only be permitted to commence a corruption investigation if IPEA has referred the corruption issue to the Commissioner accompanied by a statement that the Authority considers the issue could involve serious or systemic corrupt conduct. The Commissioner would also be required to be of that opinion to conduct a corruption investigation.

6.62               IPEA was established as an independent authority, responsible for auditing and reporting on parliamentarian’s work expenses and those of their staff, as well to provide advice, monitor and administer claims for travel expenses and allowances. IPEA is intended to provide a single, consistent source of guidance, advice and rulings on these matters. This clause is intended to preserve the role of IPEA as the Commonwealth agency with lead responsibility for the parliamentary expenses framework.

Clause 47 – Matters dealt with by Electoral Commissioner

6.63               This clause would limit the circumstances in which the Commissioner could investigate a corruption issue that falls within the jurisdiction of the Electoral Commissioner.

6.64               The clause would apply to conduct of a person that has been, is, or could be the subject of an investigation by the Electoral Commissioner under, or into compliance with the Commonwealth Electoral Act 1918—unless the conduct is of an officer or a member of staff of the Australian Electoral Commission.  

6.65               The Australian Electoral Commission is established as an independent oversight authority responsible for delivering Australian citizens’ right to vote. This clause is intended to preserve the role of the Electoral Commissioner as the Commonwealth agency with lead responsibility for ensuring compliance with electoral obligations, including:

       alleged contraventions of the election funding and financial disclosure requirements in Part XX of the Commonwealth Electoral Act 1918, as well as offences under the Criminal Code in relation to that Part; and

       electoral offences under Part XXI of that Act.

6.66               This clause would not apply in relation to the conduct of an officer or a member of the staff of the Australian Electoral Commission, within the meaning of the Commonwealth Electoral Act 1918. If there were an allegation of serious or systemic corrupt conduct involving an officer or a staff member of the Australian Electoral Commission, it would be appropriate that the Commissioner could commence a corruption investigation without the requirement for a referral from the Electoral Commissioner. 

Clause 48—Public statements about corruption issues

6.67               This clause would allow the Commissioner to make a public statement about a corruption issue at any time. Generally, any public statements by the Commissioner about a particular corruption investigation, other than those made in the course of a public hearing, would be contained in an investigation report prepared under Part 8 after the conclusion of the investigation. However, there may be circumstances where it is appropriate or necessary for the Commissioner to make a public statement about a corruption issue during the course of an investigation or otherwise.

When a public statement may be appropriate

6.68               The circumstances in which the Commissioner considers it would be appropriate, desirable or necessary to make a public statement could include, for example, circumstances where the statement would:

       confirm that the Commissioner has commenced a corruption investigation into a particular corruption issue;

       explain why the Commissioner has decided to deal with a corruption issue in a particular way, including by commencing a corruption investigation or referring the issue to another agency for investigation or consideration;

       explain why the Commissioner has decided not to take any further action in relation to a corruption issue;

       explain particular actions by the Commissioner in the course of a corruption investigation;

       correct factually inaccurate information that is in the public domain about a corruption issue; or

       make a public statement to avoid damage to a person’s reputation, where the Commissioner is satisfied that it is appropriate and practicable to do so. These circumstances would include those where a person has been incorrectly identified as the subject of a corruption investigation.

When a public statement may not be appropriate

6.69               The Commissioner would have a discretion as to whether to make a public statement about a corruption issue, including to avoid damage to a person’s reputation. It is not intended that the Commissioner would be required or expected to make public statements responding to any and every issue concerning a corruption issue that may be in the public domain. There would also be circumstances in which it would be inappropriate or impracticable for the Commissioner to make a public statement. These circumstances could include, for example, where:

       making a public statement could prejudice the conduct of a corruption investigation or other action that might be taken in connection with a corruption issue;

       making a public statement could compound the damage to a person’s reputation by calling greater attention to an issue that is only marginally in the public domain;

       the Commissioner considers it would be more appropriate to allow a matter to be addressed in another way, including by allowing a corruption investigation or other process to reach its conclusion.

Limitations on Commissioner’s discretion to make public statements

6.70               The Commissioner’s ability to make public statements would be limited by the limitations in clauses 230 and 231 as if the statement were a disclosure under clause 230 (see paragraphs 11.61 to 11.76). The Commissioner would therefore be restricted from making a public disclosure that includes:

       an opinion or finding about whether a particular person engaged in corrupt conduct;

       section 235 certified information; and

       information that the Commissioner is satisfied is sensitive information (as defined in clause 227).

6.71               The Commissioner would be required to consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates about whether the information is sensitive information. This recognises that the Commissioner may not be best placed to identify whether information is sensitive in circumstances where the information relates to the functions or activities of another agency.

6.72               If the public statements included an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, the Commissioner would be required give the head of the agency or entity or other person concerned a reasonable opportunity to respond to the opinion, finding or recommendation and the proposed disclosure.

Division 2—Investigations conducted by Commonwealth agencies

6.73               This Division would outline the Commissioner’s powers in relation to a corruption issue it has referred to a Commonwealth agency for investigation. The Commissioner would be able to oversee the investigation, request and comment on the agency’s reports, make additional recommendations and follow-up on the agency’s implementation of recommendations.

Clause 49—Application

6.74               This clause would provide that this Division applies if the Commissioner decides to deal with a corruption issue by referring it to a Commonwealth agency for investigation under paragraph 41(1)(c). Under that clause the Commissioner may only refer a corruption issue to a Commonwealth agency to which the corruption issue relates.

Clause 50—Commissioner may oversee investigation

6.75               This clause would enable the Commissioner to oversee an investigation conducted by a Commonwealth agency into a corruption issue relating to that agency following a referral from the Commissioner. This is intended to allow the Commissioner to provide investigative support to agencies that are investigating a corruption issue following a referral but do not have the same level of investigative expertise or capability as the NACC. This would assist the Commissioner to appropriately manage the NACC’s resources and allow the Commissioner to focus on the most serious or systemic corruption issues, while providing support to agencies to investigate minor or lower-level corruption issue.

6.76               The Commissioner’s ability to oversee investigations conducted by Commonwealth agencies is limited to a corruption issue that the Commissioner decides to deal with under clause 41 by referring the issue back to the agency to which the issue relates for investigation. Where the Commissioner has decided to deal with a corruption issue under clause 41 by referring it to another Commo