Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    Next Fragment
Part 8—Reporting on corruption investigations

Part 8 Reporting on corruption investigations

   

149   Report on corruption investigation

Commissioner must prepare an investigation report

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

Contents of an investigation report

             (2)  Subject to section 151, the investigation report must set out:

                     (a)  the Commissioner’s findings or opinions on the corruption issue; and

                     (b)  a summary of the evidence and other material on which those findings or opinions are based; and

                     (c)  any recommendations that the Commissioner thinks fit to make; and

                     (d)  if recommendations are made—the reasons for those recommendations.

Note:          See also section 153, which requires the Commissioner to give certain persons an opportunity to respond before including certain information in the report. That section also requires additional information to be included in an investigation report in certain circumstances.

             (3)  For the purposes of paragraph (2)(a), if the Commissioner forms the opinion that a person whose conduct has been investigated has engaged in corrupt conduct of a serious or systemic nature, the Commissioner must include a statement to that effect in the investigation report.

             (4)  To avoid doubt, for the purposes of paragraph (2)(a), if the Commissioner forms the opinion that a person whose conduct has been investigated has not engaged in corrupt conduct the Commissioner must set out that opinion in the report.

             (5)  If:

                     (a)  a person gives evidence at a hearing in relation to a corruption investigation; and

                     (b)  the person is not the subject of any findings or opinions in relation to the corruption investigation;

the Commissioner may include a statement to that effect in the investigation report if the Commissioner is satisfied that it is appropriate and practicable to do so to avoid damage to the person’s reputation.

Recommendations that may be made

             (6)  Without limiting paragraph (2)(c), the Commissioner may make one or more of the following recommendations:

                     (a)  taking action in relation to a person, in accordance with relevant procedures, with a view to improving their performance;

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

                     (c)  taking action to rectify or mitigate the effects of the conduct of a person;

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

                              (i)  the employment or engagement of an unsuitable person; or

                             (ii)  a person engaging in corrupt conduct; or

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

Section does not limit what may be included in an investigation report

             (7)  This section does not limit what may be included in an investigation report.

150   Effect of findings or opinions about corrupt conduct

             (1)  This section applies if an investigation report includes a finding or opinion that a person has engaged, is engaging or will engage in corrupt conduct or conduct that could constitute or involve corrupt conduct.

             (2)  The finding or opinion does not constitute a finding or opinion that the person is guilty of or has committed, is committing or will commit an offence.

151   Excluding certain information from investigation report

             (1)  The Commissioner must exclude the following from an investigation report:

                     (a)  section 235 certified information;

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

Note:          This information must be included in a protected information report (see section 152).

             (2)  Before including information in the report, the Commissioner must 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.

152   Protected information report

                   If the Commissioner excludes information from an investigation report under section 151, the Commissioner must prepare another report (a protected information report ) that sets out:

                     (a)  the information; and

                     (b)  the reasons for excluding the information from the investigation report.

Note:          If a protected information report is given to a person, the person must not disclose the report, or information contained in the report, to the public or a section of the public (see section 234).

153   Opportunity to respond must be given before including certain information in investigation report

             (1)  Before including in an investigation report 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 must give the head of the agency, the head of the entity or the other person concerned:

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

                     (b)  a reasonable opportunity to respond to the opinion, finding or recommendation.

             (2)  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.

             (3)  If:

                     (a)  the opinion or finding is that a person has engaged in corrupt conduct; and

                     (b)  the person provides a response to the finding or opinion;

the Commissioner must include in the investigation report a summary of the substance of the response if the person requests the Commissioner to do so.

             (4)  Subsection (3) is subject to section 151.

             (5)  However, the Commissioner must not include in the investigation report any information in a response provided under this section that would identify any person who, in the opinion of the Commissioner, has not engaged in corrupt conduct unless the Commissioner:

                     (a)  is satisfied that it is necessary to do so in the public interest; and

                     (b)  is satisfied that doing so will not cause unreasonable damage to the reputation, safety or wellbeing of the person; and

                     (c)  includes in the report a statement that, in the opinion of the Commissioner, the person has not engaged in corrupt conduct.

154   Commissioner to give copies of reports to certain persons

             (1)  The Commissioner must give the person referred to in subsection (2):

                     (a)  the investigation report; and

                     (b)  if a protected information report is prepared in relation to the investigation—the protected information report.

             (2)  For the purposes of subsection (1), the person is:

                     (a)  if the investigation report relates to an investigation that concerned the conduct of the Minister—the Prime Minister; or

                     (b)  otherwise—the Minister.

             (3)  Subject to subsection (5), the Commissioner:

                     (a)  must give a copy of an investigation report; and

                     (b)  may give a copy of a protected information report;

to the following persons:

                     (c)  for a corruption investigation concerning the conduct of a current Minister—the Prime Minister;

                     (d)  for a corruption investigation concerning the conduct of a staff member of a Commonwealth agency—the head of the agency and the person mentioned in subsection (4);

                     (e)  for a corruption investigation concerning the conduct of the head of a Commonwealth agency:

                              (i)  the person mentioned in subsection (4); and

                             (ii)  if the head of the Commonwealth agency is an Agency Head (within the meaning of the Public Service Act 1999 )—the Australian Public Service Commissioner;

                      (f)  for a corruption investigation concerning the conduct of a senator—the President of the Senate;

                     (g)  for a corruption investigation concerning the conduct of a member of the House of Representatives—the Speaker of the House of Representatives.

Note:          A parliamentary office is a type of Commonwealth agency and the parliamentarian is the head of the agency (see subsection 11(1)).

             (4)  For the purposes of paragraphs (3)(d) and (e), the person is:

                     (a)  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

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

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

             (5)  The Commissioner must exclude the following from a protected information report given under paragraph (3)(b):

                     (a)  section 235 certified information, if the disclosure of the information would contravene the certificate issued under section 235;

                     (b)  information that the Commissioner is satisfied:

                              (i)  is sensitive information; and

                             (ii)  is desirable in the circumstances to exclude from the report.

             (6)  In deciding whether to exclude information from a protected information report under paragraph (5)(b), the Commissioner must seek to achieve an appropriate balance between:

                     (a)  the interest of a person mentioned in paragraphs (3)(c) to (g) or subsection (4), to whom the report is to be given, in having the information included in the report; and

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

155   Tabling of investigation report in Parliament

                   If:

                     (a)  the Commissioner gives the Minister or the Prime Minister an investigation report under subsection 154(1); and

                     (b)  one or more public hearings were held in the course of the investigation to which the investigation report relates;

the Minister or Prime Minister (as the case may be) must table the report in each House of the Parliament within 15 sitting days of that House after its receipt.

156   Publishing investigation report in whole or part

             (1)  The Commissioner may publish the whole or a part of an investigation report if:

                     (a)  the Commissioner has given the Minister or the Prime Minister the investigation report under subsection 154(1); and

                     (b)  the Commissioner is satisfied that it is in the public interest to publish the whole or the part of the report (as the case may be).

             (2)  This section is subject to section 157.

157   Opportunity to respond must be given before publishing an investigation report containing critical opinions etc.

             (1)  This section applies to an investigation report that:

                     (a)  has not been tabled in Parliament; and

                     (b)  is published, in whole or in part, under section 156 more than 3 months after the report is given to the Minister or the Prime Minister under subsection 154(1).

             (2)  The investigation report must not include 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, unless the Commissioner has given the head of the agency, the head of the entity or the other person concerned:

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

                     (b)  a reasonable opportunity to respond to:

                              (i)  the opinion, finding or recommendation; and

                             (ii)  the proposed publication of the opinion, finding 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.

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

             (1)  The Commissioner may advise a person (or a representative nominated by the person) of the outcome of an investigation of a corruption issue raised by the person in a referral under Part 5.

             (2)  One way of advising the person (or the representative) is to give a copy of all or part of the investigation report prepared in relation to the investigation.

             (3)  In advising the person of the outcome of the investigation, the Commissioner:

                     (a)  must not disclose section 235 certified information to the person if the disclosure of the information to the person would contravene the certificate issued under section 235; and

                     (b)  must exclude information from the advice if the Commissioner is satisfied that:

                              (i)  the information is sensitive information; and

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

             (4)  Before giving the person information about the outcome of the investigation, the Commissioner must 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.

             (5)  In deciding whether to exclude information from the advice under paragraph (3)(b), the Commissioner must seek to achieve an appropriate balance between:

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

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

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

             (1)  The Commissioner must advise a person of the outcome of a corruption investigation if:

                     (a)  the Commissioner investigates a corruption issue concerning the conduct of the person; and

                     (b)  the Commissioner makes a finding that the person has engaged in corrupt conduct.

             (2)  The Commissioner may advise a person of the outcome of a corruption investigation if:

                     (a)  the Commissioner investigates a corruption issue concerning the conduct of the person; and

                     (b)  the Commissioner forms an opinion or makes a finding about the corruption issue (other than a finding that the person has engaged in corrupt conduct).

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

             (4)  In advising the person under subsection (1) or (2), the Commissioner:

                     (a)  must not disclose section 235 certified information to the person if the disclosure of the information to the person would contravene the certificate issued under section 235; and

                     (b)  must exclude information from the advice if the Commissioner is satisfied that:

                              (i)  the information is sensitive information; and

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

             (5)  Before giving the person information under subsection (1) or (2), the Commissioner must 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.

             (6)  In deciding whether to exclude information from the advice under paragraph (4)(b), the Commissioner must seek to achieve an appropriate balance between:

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

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

160   Follow-up action on investigation report

             (1)  The Commissioner may request the head of a Commonwealth agency to whom an investigation report is given to give the Commissioner, within a specified time, details of any action that the head of the Commonwealth agency has taken, or proposes to take, with respect to a recommendation included in the investigation report.

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

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

                     (a)  the Commissioner’s recommendation and the reasons for that recommendation; and

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

                     (c)  the 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 paragraph (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.