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Part 9—Public inquiries

Part 9 Public inquiries

   

161   Commissioner may conduct public inquiries

             (1)  The Commissioner may, on the Commissioner’s own initiative, conduct a public inquiry into one or more of the following:

                     (a)  corruption risks and vulnerabilities in Commonwealth agencies;

                     (b)  measures to prevent corruption in Commonwealth agencies.

             (2)  A public inquiry is not a corruption investigation, and must not be, or involve, an inquiry into a particular corruption issue.

             (3)  The Commissioner may conduct a public inquiry in such manner as the Commissioner thinks fit.

162   Commissioner may invite submissions

                   The Commissioner may invite submissions on matters that are the subject of a public inquiry.

163   Commissioner’s powers

             (1)  Part 7 (investigating corruption issues) applies for the purposes of a public inquiry in the same way as that Part applies to the investigation of a corruption issue.

             (2)  However:

                     (a)  the following provisions of Part 7 do not apply for the purposes of a public inquiry:

                              (i)  Subdivision E of Division 3 (travel documents and arrest of witnesses);

                             (ii)  Division 7 (search powers); and

                     (b)  that Part, as applied by this section, does not authorise:

                              (i)  a notice to produce to be served on a person other than an agency head; or

                             (ii)  the taking of any action in relation to a post-charge or a post-confiscation application event.

164   Reporting on public inquiries

             (1)  After completing a public inquiry, the Commissioner must prepare a report (the inquiry report ) on the inquiry.

Contents of inquiry report

             (2)  Without limiting what the report may include, it must include:

                     (a)  the Commissioner’s findings or opinions on corruption risks, vulnerabilities, and the effectiveness of corruption prevention arrangements in Commonwealth agencies; and

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

                     (c)  any recommendations concerning the need for, or desirability of, legislative or administrative reform to prevent corruption; and

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

             (3)  The report must not include:

                     (a)  findings or opinions about specific instances of corrupt conduct; or

                     (b)  section 235 certified information; or

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

             (4)  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.

165   Protected information report

                   If the Commissioner excludes section 235 certified information or sensitive information from an inquiry report, 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 inquiry 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.

166   Opportunity to respond must be given before including certain information in inquiry report

             (1)  Before including in an inquiry 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.

167   Commissioner to give copies of reports to certain persons

             (1)  The Commissioner must give the Minister:

                     (a)  the inquiry report; and

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

             (2)  For a public inquiry concerning a Commonwealth agency, the Commissioner:

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

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

to the following persons:

                     (c)  the agency head;

                     (d)  if the agency is established or continued in existence by an Act—the Minister administering that Act (subject to paragraph (e));

                     (e)  if the 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;

                      (f)  if the agency is a Commonwealth entity—the Minister having general responsibility for the activities of the entity.

             (3)  The Commissioner must exclude the following from a protected information report given under paragraph (2)(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.

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

                     (a)  the interest of a person mentioned in paragraphs (2)(c) to (f), 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.

168   Tabling of inquiry report in Parliament

                   The Minister must table an inquiry report in each House of the Parliament within 15 sitting days of that House after the Minister receives the report if:

                     (a)  public submissions were invited on matters that were the subject of the inquiry; or

                     (b)  one or more public hearings were held in the course of the inquiry.

169   Publishing inquiry report in whole or part

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

                     (a)  the Commissioner has given the Minister the inquiry report under subsection 167(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 170.

170   Opportunity to respond must be given before publishing an inquiry report containing critical opinions etc.

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

                     (a)  has not been tabled in Parliament; and

                     (b)  is published, in whole or in part, under section 169 more than 3 months after the report is given to the Minister under subsection 167(1).

             (2)  The inquiry 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.

171   Follow-up action on inquiry report

             (1)  The Commissioner may request the head of a Commonwealth agency to whom an inquiry 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 inquiry 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 (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.