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Part 6—Dealing with corruption issues

Part 6 Dealing with corruption issues

Division 1 Dealing with corruption issues

40   Commissioner may deal with corruption issues

                   The Commissioner may deal with a corruption issue that:

                     (a)  is referred to the Commissioner; or

                     (b)  the Commissioner becomes aware of in any other way.

41   How Commissioner deals with corruption issues

             (1)  The Commissioner may deal with a corruption issue in any one or more of the following ways:

                     (a)  by investigating the corruption issue;

                     (b)  by investigating the corruption issue jointly with a Commonwealth agency or a State or Territory government entity;

                     (c)  by referring, for investigation, the corruption issue to a Commonwealth agency to which the corruption issue relates (if the Commissioner is satisfied that the agency has appropriate capabilities to investigate the issue);

                     (d)  by referring, for consideration, the corruption issue to a Commonwealth agency or a State or Territory government entity.

             (2)  An investigation mentioned in paragraph (1)(a) or (b) is a corruption investigation .

Corruption investigation threshold—serious or systemic corrupt conduct

             (3)  The Commissioner may conduct, or continue to conduct, a corruption investigation only if the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

General matters

             (4)  Corruption issues may be investigated together.

             (5)  The Commissioner may, at any time, reconsider whether or how to deal with a corruption issue.

Commissioner may decide to take no action

             (6)  The Commissioner may decide to take no action in relation to a corruption issue.

Commissioner under no duty to consider whether to deal with corruption issue

             (7)  The Commissioner does not have a duty to consider whether to deal with a corruption issue under this section, whether the Commissioner is requested to do so by the person who referred the issue or by any other person, or in any other circumstances.

42   Preliminary investigations by Commissioner

Application

             (1)  This section applies if the Commissioner considers it necessary or desirable to conduct a preliminary investigation for any of the following purposes:

                     (a)  to confirm the existence or nature of a corruption issue (including whether a corruption issue could involve corrupt conduct that is serious or systemic);

                     (b)  to assist the Commissioner to decide whether or how to deal with a corruption issue.

Exercise of certain Part 7 powers for preliminary investigations

             (2)  The Commissioner may exercise the following Part 7 powers as if the preliminary investigation mentioned in subsection (1) were a corruption investigation:

                     (a)  the power, under subsection 57(2), to direct the head of a Commonwealth agency to give information, or a document or a thing, to the Commissioner;

                     (b)  the power, under subsection 58(2) as modified by subsection (3) of this section, to serve a notice to produce on a person requiring the person to give information, or a document or thing, to a specified staff member of the NACC.

             (3)  The modifications are as follows:

                     (a)  the Commissioner may not issue a post-charge or a post-confiscation notice to produce under this section; and

                     (b)  subsection 58(6) does not apply to a notice to produce given under this section.

             (4)  To avoid doubt, the other provisions of this Act continue to apply in relation to the exercise of powers under subsections 57(2) and 58(2) for the purpose of conducting a preliminary investigation under this section.

Commissioner may have regard to other material

             (5)  This section 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.

43   Commissioner’s directions about further action

Directions to stop action

             (1)  The Commissioner may direct an agency head to stop the agency taking specified action in relation to a corruption issue that concerns the agency, unless the action is permitted by the Commissioner.

             (2)  However, the direction may be given only if:

                     (a)  the Commissioner has consulted with the agency head about giving the direction; and

                     (b)  the direction is required to ensure the effectiveness of any action the Commissioner has taken, or might take, under this Act in relation to the corruption issue, or any other corruption issue.

             (3)  The direction must be revoked if it is no longer so required.

Permission to take other action

             (4)  If the agency head requests the Commissioner to permit the taking of particular action, the Commissioner must:

                     (a)  as soon as practicable after the request is made, decide whether to permit the taking of the action; and

                     (b)  if the Commissioner refuses to permit the taking of the action—give the agency head written reasons for the refusal.

             (5)  However, the Commissioner need not give the reasons for a refusal if doing so would be likely to prejudice:

                     (a)  any action the Commissioner has taken, or might take, under this Act in relation to the corruption issue, or any other corruption issue; or

                     (b)  any action taken by any person as a result of a NACC Act process.

             (6)  A direction under subsection (1):

                     (a)  is not a legislative instrument; and

                     (b)  has effect despite any other law of the Commonwealth.

44   Action that can be taken without permission

             (1)  Despite any direction given by the Commissioner under subsection 43(1), the following action may be taken:

                     (a)  action to prevent or lessen an imminent risk to the safety of a person, or to protect a person’s life;

                     (b)  action that is in the interests of the security, defence or international relations of Australia;

                     (c)  action to prevent loss to the Commonwealth of an amount, greater than the amount (if any) prescribed by the regulations, which could not be recovered;

                     (d)  other action for which it would be unreasonable in the circumstances to await any necessary permission.

             (2)  If action is taken relying on subsection (1), the agency head must:

                     (a)  as soon as practicable, but no later than 48 hours after the action is taken, provide details of the action to the Commissioner; and

                     (b)  take reasonable steps to:

                              (i)  ensure that the action does not prejudice the investigation of a corruption issue or any other NACC Act process; and

                             (ii)  preserve evidence that is, or could be, relevant for the purposes of conducting a NACC Act process.

45   Previous investigations by Commonwealth integrity agencies

Application

             (1)  This section applies if the Commissioner is aware that a Commonwealth integrity agency has previously concluded an investigation into a matter regarding the conduct of a public official.

Corruption investigation threshold—public interest

             (2)  The Commissioner may commence a corruption investigation into a corruption issue involving the conduct only if the Commissioner is satisfied that it is in the public interest to do so.

             (3)  The Commissioner may have regard to the following matters in making the decision:

                     (a)  the significance of the corruption issue;

                     (b)  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);

                     (c)  any conclusions or findings (however described) of the integrity agency in relation to the corruption issue;

                     (d)  whether the Commissioner has any new evidence in relation to the corruption issue that:

                              (i)  was not available to the integrity agency; and

                             (ii)  would not have been obtainable by the exercise of reasonable diligence by that agency;

                     (e)  any unfairness to a person that may arise as a result of the Commissioner conducting a further investigation into the corruption issue;

                      (f)  the need to ensure that the corruption issue is fully investigated.

             (4)  Subsection (3) does not limit the matters to which the Commissioner may have regard in making the decision.

46   Matters dealt with by Independent Parliamentary Expenses Authority

Application

             (1)  This section applies if conduct of a parliamentarian or a staff member of a parliamentary office has been, is or could be the subject of either of the following by the Independent Parliamentary Expenses Authority:

                     (a)  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;

                     (b)  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 travel, expenses or allowances.

Restriction on corruption investigation by Commissioner

             (2)  The Commissioner must not commence a corruption investigation into a corruption issue involving the conduct unless:

                     (a)  the Independent Parliamentary Expenses Authority:

                              (i)  refers the issue to the Commissioner; and

                             (ii)  states that the Authority considers that the issue could involve corrupt conduct that is serious or systemic; and

                     (b)  the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

47   Matters dealt with by Electoral Commissioner

Application

             (1)  This section applies if conduct of a person 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 .

Restriction on corruption investigation by Commissioner

             (2)  The Commissioner must not commence a corruption investigation into a corruption issue involving the conduct unless:

                     (a)  the Electoral Commissioner:

                              (i)  refers the issue to the Commissioner; and

                             (ii)  states that the Electoral Commissioner considers that the issue could involve corrupt conduct that is serious or systemic; and

                     (b)  the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

Exception—officers and staff members of the Electoral Commission

             (3)  This section does not apply in relation to conduct of an officer (within the meaning of the Commonwealth Electoral Act 1918 ), or a member of the staff of the Commission (within the meaning of that Act).

48   Public statements about corruption issues

             (1)  The Commissioner may make a public statement about a corruption issue at any time (whether or not the Commissioner deals with the issue).

             (2)  Without limiting subsection (1), the Commissioner may make a public statement if the Commissioner is satisfied that it is appropriate and practicable to do so to avoid damage to a person’s reputation.

             (3)  Subsection (1) is subject to subsections 230(4) to (6) and section 231 as if a public statement under this section were a disclosure under section 230.

Division 2 Investigations conducted by Commonwealth agencies

49   Application

                   This Division applies if the Commissioner deals with a corruption issue by referring it to a Commonwealth agency for investigation under paragraph 41(1)(c).

50   Commissioner may oversee investigation

             (1)  The Commissioner may oversee the investigation.

             (2)  If the Commissioner decides to oversee the investigation, the Commissioner must notify the agency head.

51   Commissioner may give directions

             (1)  The Commissioner may give the agency directions about the planning and conduct of the investigation.

             (2)  The directions may be given to the agency’s nominated contact for the investigation.

             (3)  The agency head must ensure that the agency follows the Commissioner’s directions.

52   Commissioner may require reports

                   The Commissioner may require the agency head to provide either or both of the following:

                     (a)  progress reports on the investigation from time to time;

                     (b)  a report (the completion report ) on the completion of the investigation.

53   Commissioner’s comments and recommendations

             (1)  If the Commissioner requires an agency head to provide a completion report, the Commissioner may do either or both of the following:

                     (a)  comment on the report;

                     (b)  provide additional recommendations in relation to the report.

Opportunity to respond must be given before including certain information in completion reports

             (2)  Before making a comment on, or a recommendation in relation to, a completion report that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, the Commissioner must give the head of the agency, the head of the entity or the other person concerned:

                     (a)  a statement setting out the comment or recommendation; and

                     (b)  a reasonable opportunity to respond to the comment or recommendation.

             (3)  The response may be given by:

                     (a)  the head of the Commonwealth agency or of the State or Territory government entity concerned, or a person authorised by the head; or

                     (b)  in relation to any other person concerned—the other person concerned, or, with approval, a person representing the other person.

54   Follow-up action on completion report

             (1)  If the Commissioner requires an agency head to provide a completion report, the Commissioner may request the head to give the Commissioner, within a specified time, details of any action that the head has taken, or proposes to take, with respect to:

                     (a)  a recommendation included in the report; or

                     (b)  a recommendation made by the Commissioner in relation to the report.

             (2)  The agency head must comply with the request.

             (3)  If the Commissioner is not satisfied with the response of the agency head to the request, the Commissioner may refer to the person mentioned in subsection (4):

                     (a)  the recommendation; and

                     (b)  if the recommendation is made by the Commissioner—the reasons for the recommendation; and

                     (c)  the response of the head of the agency to the recommendation; and

                     (d)  the Commissioner’s reasons for not being satisfied with that response.

             (4)  For the purposes of subsection (3), the person is:

                     (a)  if the Commonwealth agency is a parliamentary office:

                              (i)  for a parliamentarian who is a senator—the President of the Senate; or

                             (ii)  for a parliamentarian who is a member of the House of Representatives—the Speaker of the House of Representatives; or

                     (b)  if the Commonwealth agency is a Department of the Parliament established under the Parliamentary Service Act 1999 :

                              (i)  for the Department of the Senate—the President of the Senate; or

                             (ii)  for the Department of the House of Representatives—the Speaker of the House of Representatives; or

                            (iii)  otherwise—both the President of the Senate and the Speaker of the House of Representatives; or

                     (c)  if the Commonwealth agency is established or continued in existence by an Act and paragraph (b) does not apply—the Minister administering that Act; or

                     (d)  if the Commonwealth agency is a Commonwealth entity and neither paragraph (b) nor (c) applies—the Minister having general responsibility for the activities of the entity.

             (5)  If the Commissioner refers material to a person under subsection (3), the Commissioner may also send a copy of that material to:

                     (a)  the President of the Senate for presentation to the Senate; and

                     (b)  the Speaker of the House of Representatives for presentation to the House of Representatives.

             (6)  The Commissioner must exclude the following from the copy of the material sent under subsection (5):

                     (a)  section 235 certified information;

                     (b)  information that the Commissioner is satisfied is sensitive information.

             (7)  Before sending a copy of material under subsection (5), the Commissioner must consult with the head of each Commonwealth agency or State or Territory government entity to which the material relates about whether the material contains sensitive information.