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Part 10—Oversight of the National Anti-Corruption Commission

Part 10 Oversight of the National Anti-Corruption Commission

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

172   Parliamentary Joint Committee on the National Anti-Corruption Commission

             (1)  As soon as practicable after the commencement of the first session of each Parliament, a joint committee of members of the Parliament, to be known as the Parliamentary Joint Committee on the National Anti-Corruption Commission, is to be appointed according to the practice of the Parliament.

             (2)  The Committee is to consist of 12 members:

                     (a)  6 members of the Senate appointed by the Senate; and

                     (b)  6 members of the House of Representatives appointed by that House.

             (3)  The 6 members appointed by each of the Senate and the House of Representatives must consist of the following:

                     (a)  3 members of the Government;

                     (b)  2 members of the Opposition;

                     (c)  1 member of the Parliament who is a member of neither the Government nor the Opposition.

173   Chair of the Committee

Office of Chair of the Committee

             (1)  There must be a Chair of the Committee, who must be a member of the Government elected by the members of the Committee from time to time.

             (2)  The Chair holds office during the pleasure of the Committee.

             (3)  A person holding office as Chair ceases to hold the office if the person:

                     (a)  ceases to be a member of the Committee; or

                     (b)  resigns the office.

             (4)  A person holding office as Chair may resign the office by giving a signed notice of resignation to a meeting of the Committee.

Votes of the Chair

             (5)  At meetings of the Committee at which the Chair is present, the Chair:

                     (a)  has a deliberative vote; and

                     (b)  has a casting vote if votes are equal.

174   Eligibility for appointment as a Committee member

                   A member of the Parliament is not eligible for appointment as a member of the Committee if the member is:

                     (a)  a Minister; or

                     (b)  the President of the Senate; or

                     (c)  the Speaker of the House of Representatives; or

                     (d)  the Deputy President and Chair of Committees of the Senate; or

                     (e)  the Deputy Speaker of the House of Representatives.

175   Terms of office of Committee members

             (1)  A member holds office during the pleasure of the House of the Parliament by which the member was appointed.

             (2)  A person ceases to hold office as a member of the Committee if:

                     (a)  the House of Representatives expires by the passing of time or is dissolved; or

                     (b)  the person becomes the holder of an office specified in any of the paragraphs of section 174; or

                     (c)  the person ceases to be a member of the House of the Parliament by which the person was appointed; or

                     (d)  the person resigns the person’s office as provided by subsection (3).

             (3)  A member of the Committee appointed by a House of the Parliament may resign the member’s office by giving the Presiding Officer of that House a written resignation.

             (4)  A House of the Parliament may appoint one of its members to fill a vacancy among the members of the Committee appointed by that House.

176   Powers and proceedings of the Committee

                   All matters relating to the powers and proceedings of the Committee are to be determined by resolution of both Houses of the Parliament.

177   Functions of the Committee

             (1)  The Committee has the following functions:

                     (a)  to consider proposed recommendations for the appointment of the following positions in accordance with section 178:

                              (i)  the Commissioner;

                             (ii)  a Deputy Commissioner;

                            (iii)  the Inspector;

                     (b)  to monitor and review the performance by the Commissioner and the Inspector of their functions;

                     (c)  to report to both Houses of the Parliament, with such comments as it thinks fit, on any matter connected with the performance of the functions of the Commissioner or the Inspector that the Committee considers should be directed to the attention of the Parliament;

                     (d)  to examine and report to the Parliament on any matter appearing in, or arising out of, the following:

                              (i)  any investigation report that is laid before the Houses of the Parliament under section 155;

                             (ii)  each annual report prepared by the Commissioner under section 271;

                            (iii)  any NACC investigation report that is laid before the Houses of the Parliament under section 221;

                            (iv)  each annual report prepared by the Inspector under section 198;

                     (e)  to examine trends and changes in corruption among those who are subject to this Act and report to both Houses of the Parliament on any change that the Committee thinks desirable to the following:

                              (i)  the functions or powers of the Commissioner or the Inspector;

                             (ii)  the procedures followed by the Commissioner or the Inspector;

                            (iii)  the NACC’s staffing or structure;

                            (iv)  the staffing arrangements for the Inspector;

                      (f)  to inquire into any question in connection with the Committee’s functions that is referred to it by either House of the Parliament, and to report to that House upon that question;

                     (g)  to review the NACC’s budget and finances, and to report to both Houses of the Parliament on the following matters:

                              (i)  whether the NACC has sufficient finances and resources to effectively perform its functions;

                             (ii)  whether the NACC’s budget should be increased to ensure that it will have sufficient finances and resources to effectively perform its functions;

                            (iii)  any other matter arising out of the review that the Committee considers relevant.

             (2)  The Committee may request that the Inspector assist the Committee in the exercise of the function mentioned in paragraph (1)(g).

             (3)  Subsection (1) does not authorise the Committee to:

                     (a)  investigate a corruption issue or a NACC corruption issue; or

                     (b)  reconsider a decision or recommendation made by the Commissioner or the Inspector in relation to a corruption issue, a NACC corruption issue or a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC; or

                     (c)  review a decision made, or an operational activity carried out, in relation to a NACC Act process that is still being conducted; or

                     (d)  review an operational activity undertaken or proposed to be undertaken by a person or body mentioned in subsection (4); or

                     (e)  review any of the following to the extent that they are available to a person or body mentioned in subsection (4):

                              (i)  sensitive operational information;

                             (ii)  operationally sensitive information (within the meaning of Schedule 1 to the Intelligence Services Act 2001 );

                            (iii)  operational methods;

                            (iv)  operational assistance; or

                      (f)  review information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or

                     (g)  review an aspect of the activities of an intelligence agency that does not affect an Australian person; or

                     (h)  review the content of, or conclusions reached in, assessments or reports made by an intelligence agency, or review sources of information on which such assessments or reports are based; or

                      (i)  review anything done by the Office of National Intelligence in carrying out the evaluation functions mentioned in section 9 of the Office of National Intelligence Act 2018 .

             (4)  The persons and bodies are:

                     (a)  the NACC; or

                     (b)  the Inspector; or

                     (c)  a Commonwealth agency; or

                     (d)  a State or Territory government entity.

178   Committee may approve or reject recommendation for appointment

Appointments that the Committee must approve or reject

             (1)  The Committee must approve or reject a proposed recommendation referred to the Committee by the Minister for the appointment of the following positions:

                     (a)  the Commissioner;

                     (b)  a Deputy Commissioner;

                     (c)  the Inspector.

Decision to approve or reject

             (2)  The Committee must make the decision on a proposed recommendation within:

                     (a)  14 calendar days after the referral; or

                     (b)  if, within the first 14 calendar days after the referral, the Committee notifies the Minister that it requires additional time to consider the referral—44 calendar days after the referral.

             (3)  As soon as practicable after making the decision, the Committee must:

                     (a)  give the Minister written notice of the decision; and

                     (b)  report the decision to both Houses of the Parliament.

             (4)  The Committee is taken to have approved the proposed recommendation if the Committee does not give notice under paragraph (3)(a) within the period specified in paragraph (2)(a) or (b) as the case requires.

179   Staff of the Committee must be cleared for security purposes

                   Each member of the staff of the Committee must be cleared for security purposes to a level that is appropriate having regard to the information that the member of staff will deal with in that capacity.

180   Protection of information and documents

             (1)  The Committee must make arrangements for the protection and security of all information held, and all records made, by the Committee while such information and records remain in the Committee’s possession.

             (2)  The Committee must ensure that any documents having a security classification (within the meaning of section 90.5 of the Criminal Code ) provided to the Committee by a person are returned to the person as soon as possible after the members have examined them.

181   Committee’s access to certain information

                   If:

                     (a)  a person would, but for this subsection, be required to give information, or produce a document, to the Committee; and

                     (b)  either:

                              (i)  the information is, or the document contains, section 235 certified information; or

                             (ii)  the information or document is covered by an international relations certificate issued under section 236;

the person must not give the information, or produce the document, to the Committee.

Division 2 The Inspector of the National Anti-Corruption Commission

Subdivision A Functions and powers of the Inspector

182   The Inspector

             (1)  There is to be an Inspector of the National Anti-Corruption Commission.

             (2)  The Inspector is an independent officer of the Parliament.

             (3)  The functions, powers, rights, immunities and obligations of the Inspector are as specified in this Act and in any other Act. There are no implied functions, powers, rights, immunities or obligations arising from the Inspector being an independent officer of the Parliament.

183   Independence

                   Subject to this Act and any other Act, the Inspector:

                     (a)  has complete discretion in performing or exercising the Inspector’s functions or powers; and

                     (b)  is not subject to direction from anyone when doing so.

184   Functions of the Inspector

             (1)  The Inspector has the following functions:

                     (a)  to detect corrupt conduct within, and relating to, the NACC;

                     (b)  to undertake preliminary investigations into NACC corruption issues or possible NACC corruption issues;

                     (c)  to conduct NACC corruption investigations into NACC corruption issues that could involve corrupt conduct that is serious or systemic;

                     (d)  to refer NACC corruption issues to the NACC, Commonwealth agencies and State or Territory government entities;

                     (e)  to investigate complaints made in relation to the conduct or activities of:

                              (i)  the NACC; or

                             (ii)  a staff member of the NACC;

                      (f)  to provide relevant information and documents to the Committee;

                     (g)  to receive public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013 ) and to deal with those disclosures;

                     (h)  to report, and make recommendations, to both Houses of the Parliament on the results of performing the functions mentioned in paragraphs (a) to (f).

             (2)  The Inspector also has such other functions conferred on the Inspector by this Act or by any other Act.

Subdivision B Appointment of the Inspector

185   Appointment of the Inspector

Appointment by Governor-General

             (1)  The Inspector of the National Anti-Corruption Commission is to be appointed by the Governor-General, by written instrument, on the recommendation of the Minister.

             (2)  Before the Minister makes a recommendation to the Governor-General:

                     (a)  the Minister must have referred the proposed recommendation to the Committee under section 178; and

                     (b)  one of the following must have occurred:

                              (i)  the Committee was taken to have approved the proposed recommendation under subsection (5) of that section;

                             (ii)  the Committee has notified the Minister that it has decided to approve the proposed recommendation.

Qualifications for appointment

             (3)  A person must not be appointed as the Inspector unless the person:

                     (a)  is a retired judge of a federal court or a court of a State or Territory; or

                     (b)  is enrolled as a legal practitioner (however described) of a federal court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years.

             (4)  A person must not be appointed as the Inspector if the person has previously been appointed as the Commissioner.

Period of appointment

             (5)  The Inspector holds office for the period specified in the instrument of appointment. The period must not exceed 10 years.

             (6)  The Inspector must not be reappointed.

Basis of appointment

             (7)  The Inspector may be appointed on a full-time or part-time basis.

186   Acting appointments

             (1)  The Minister may, by written instrument, appoint a person to act as the Inspector:

                     (a)  during a vacancy in the office of the Inspector (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Inspector:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .

Qualification for acting appointment

             (2)  A person must not be appointed to act as the Inspector unless the person is qualified, as mentioned under subsections 185(3) and (4), to be appointed as the Inspector.

187   Remuneration

             (1)  The Inspector is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Inspector is to be paid the remuneration that is prescribed by the regulations.

             (2)  The Inspector is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

188   Leave of absence

             (1)  If the Inspector is appointed on a full-time basis, the Inspector has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  If the Inspector is appointed on a full-time basis, the Minister may grant the Inspector leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

             (3)  If the Inspector is appointed on a part-time basis, the Minister may grant leave of absence to the Inspector on the terms and conditions that the Minister determines.

189   Other paid work

                   The Inspector must not engage in paid work outside the duties of the Inspector’s office without the Minister’s approval.

190   Disclosure of interests to the Minister

                   The Inspector must give written notice to the Minister of all interests, pecuniary or otherwise, that the Inspector has or acquires and that conflict or could conflict with the proper performance of the Inspector’s functions.

191   Other terms and conditions

                   The Inspector holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

192   Resignation

             (1)  The Inspector may resign the Inspector’s appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

193   Termination of appointment

             (1)  The Governor-General may terminate the appointment of the Inspector if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor-General praying for the removal of the Inspector:

                     (a)  for misbehaviour; or

                     (b)  if the Inspector is unable to perform the duties of the Inspector’s office because of physical or mental incapacity.

             (2)  The Governor-General must terminate the appointment of the Inspector if the Inspector:

                     (a)  becomes bankrupt; or

                     (b)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                     (c)  compounds with the Inspector’s creditors; or

                     (d)  makes an assignment of the Inspector’s remuneration for the benefit of the Inspector’s creditors.

Subdivision C Persons assisting the Inspector

194   Persons assisting the Inspector

Persons made available to the Inspector

             (1)  The Inspector may be assisted by the following persons, whose services are made available to the Inspector in connection with the performance of any of the Inspector’s functions:

                     (a)  APS employees in the Department;

                     (b)  officers and employees of Agencies (within the meaning of the Public Service Act 1999 );

                     (c)  persons employed under the  Australian Security Intelligence Organisation Act 1979 ;

                     (d)  persons employed under the  Intelligence Services Act 2001 ;

                     (e)  Parliamentary Service employees (within the meaning of the  Parliamentary Service Act 1999 );

                      (f)  members of the Australian Defence Force;

                     (g)  members of the Australian Federal Police.

             (2)  When performing services for the Inspector under subsection (1), a person is subject to the directions of the Inspector.

Consultants

             (3)  The Inspector may, on behalf of the Commonwealth, engage consultants to assist in the performance of the Inspector’s functions.

             (4)  The consultants are to be engaged on the terms and conditions that the Inspector determines in writing.

Legal counsel

             (5)  The Inspector may appoint a legal practitioner to assist the Inspector in relation to a particular NACC corruption investigation.

195   Meaning of person assisting the Inspector

                   Each of the following is a person assisting the Inspector for the purposes of this Act:

                     (a)  a person made available to the Inspector as mentioned in subsection 194(1);

                     (b)  a person engaged as a consultant under subsection 194(3);

                     (c)  a legal practitioner appointed to assist the Inspector under subsection 194(5).

Subdivision D Immunities of Inspector and persons assisting

196  Immunity from civil proceedings for the Inspector and persons assisting

             (1)  The Inspector is not liable to civil proceedings in relation to an act done, or omitted to be done, in good faith, in the performance or purported performance, or exercise or purported exercise, of the Inspector’s functions, powers or duties under, or in relation to, this Act.

             (2)  A person whom the Inspector requests, in writing, to assist the Inspector, or a person assisting the Inspector, is not liable to civil proceedings in relation to an act done, or omitted to be done, in good faith for the purpose of assisting the Inspector.

197  Immunities from certain State and Territory laws

                   Neither the Inspector nor a person assisting the Inspector is required under, or by reason of, a law of a State or Territory:

                     (a)  to obtain or have a licence or permission for doing any act or thing in the exercise of powers or the performance of duties of the Inspector; or

                     (b)  to register any vehicle, vessel, animal or article belonging to the Commonwealth.

Subdivision E Annual report by Inspector

198   Annual report

             (1)  As soon as practicable after the end of each financial year, the Inspector must:

                     (a)  prepare a report (the annual report ) relating to the performance of the Inspector’s functions during the financial year; and

                     (b)  cause a copy of the annual report to be tabled in each House of the Parliament.

             (2)  The copy of the annual report must be tabled as soon as practicable after the end of the financial year, and in any event, by the following 31 December.

             (3)  Subject to section 199, the annual report must include the information prescribed by the regulations.

199   Exclusion of certain information from annual report

                   The Inspector must exclude the following from the annual report:

                     (a)  section 235 certified information;

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

200   Effect of findings or opinions about corrupt conduct

             (1)  This section applies if an annual 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.

Division 3 NACC corruption issues

Subdivision A Meaning of NACC corruption issue

201   Meaning of NACC corruption issue

             (1)  A NACC corruption issue is an issue of whether, in the circumstances mentioned in subsection (2), a person:

                     (a)  has engaged in corrupt conduct; or

                     (b)  is engaging in corrupt conduct; or

                     (c)  will engage in corrupt conduct.

Note:          A NACC corruption issue is not a corruption issue: see subsection 9(2).

             (2)  The circumstances are:

                     (a)  the person is a staff member of the NACC; or

                     (b)  the conduct of the person adversely affects, or could adversely affect, either directly or indirectly:

                              (i)  the honest or impartial exercise of the powers of a staff member of the NACC; or

                             (ii)  the honest or impartial performance of the functions, duties of a staff member of the NACC; or

                     (c)  the person’s conduct occurs in conspiracy with a staff member of the NACC.

             (3)  For the purposes of subsection (2), it is immaterial whether the conduct was, is or will be engaged in before the staff member was, or while the staff member is or was, a staff member of the NACC.

Subdivision B Referring NACC corruption issues

202   Any person may refer NACC corruption issue

             (1)  Any person may refer a NACC corruption issue or provide other information about a NACC corruption issue to the Inspector.

             (2)  The Inspector may request the referral or information to be:

                     (a)  given in a particular way; or

                     (b)  accompanied or supported by further information.

203   Mandatory referral—Commissioner

                   If the Commissioner becomes aware of a NACC corruption issue, the Commissioner must refer the NACC corruption issue to the Inspector.

204   Mandatory referral—Public Interest Disclosure Act disclosures

             (1)  A staff member of the NACC who, in the course of performing or exercising functions or powers under Division 1 or 2 of Part 3 of the Public Interest Disclosure Act 2013 (including as a delegate), becomes aware of a NACC corruption issue, must refer the NACC corruption issue to the Inspector.

             (2)  If the staff member became aware of the NACC corruption issue as a result of an internal disclosure made under the Public Interest Disclosure Act 2013 , the staff member must, as soon as reasonably practicable, notify the discloser of the staff member’s referral of the issue under this section.

205   Mandatory referral—secrecy provisions

                   The obligation to refer a NACC corruption issue under this Subdivision applies despite any secrecy provision (other than an exempt secrecy provision).

206   Mandatory referral—exceptions

                   A person is not required to refer a NACC corruption issue under this Subdivision if the person believes on reasonable grounds that the Inspector is already aware of the issue.

207   Mandatory referral—timing and information requirements

Timing requirements

             (1)  A person who is required to refer a NACC corruption issue under this Subdivision must do so as soon as reasonably practicable after becoming aware of the issue or within such later time as is allowed by the Inspector.

Information requirements

             (2)  A person who is required to refer a NACC corruption issue under this Subdivision must include with the referral all information relevant to the issue that is in the person’s possession or control at the time the referral is made.

             (3)  If the person subsequently becomes aware of any further information that is relevant to the issue, the person must give the further information to the Inspector as soon as reasonably practicable.

Exceptions to information requirements

             (4)  A person is not required to provide information under this section if:

                     (a)  the person has reasonable grounds to believe that the Inspector is already aware of the information; or

                     (b)  the Inspector has advised the person that the provision of information about the NACC corruption issue is not required.

Note:          This section has effect subject to section 236 (Attorney-General’s certificate in relation to international relations).

208   Effect of referral on continued actions

                   The referral of a NACC corruption issue under this Subdivision does not:

                     (a)  subject to any direction to stop taking action given by the Inspector under subsection 43(1) (as modified by section 211), prevent the NACC from continuing to take any action in relation to conduct that is the subject of the issue; or

                     (b)  affect the obligations of the NACC in relation to that conduct under any other law.

Subdivision C Dealing with NACC corruption issues

209   Inspector may deal with NACC corruption issues

                   The Inspector may deal with a NACC corruption issue that:

                     (a)  is referred to the Inspector; or

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

210   How Inspector deals with NACC corruption issues

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

                     (a)  by investigating the NACC corruption issue;

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

                     (c)  by referring, for investigation, the NACC corruption issue to the NACC (if the Inspector is satisfied that it is appropriate for the NACC to investigate the issue);

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

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

NACC corruption investigation threshold—serious or systemic corrupt conduct

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

General matters

             (4)  NACC corruption issues may be investigated together.

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

Inspector may decide to take no action

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

Inspector under no duty to consider whether to deal with NACC corruption issue

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

211   Other matters related to dealing with NACC corruption issues

                   Part 6 (other than sections 40 and 41) applies in relation to a NACC corruption investigation with the modifications set out in the following table:

 

Modifications

Item

A reference to...

is taken to...

1

the Commissioner

be a reference to the Inspector.

2

the NACC

be a reference to the Inspector.

3

a NACC Commissioner

be a reference to the Inspector.

4

a corruption issue

be a reference to a NACC corruption issue.

5

a corruption investigation

be a reference to a NACC corruption investigation.

6

an agency head

include a reference to the Commissioner.

7

a head

include a reference to the Commissioner.

8

a Commonwealth agency

include a reference to the NACC.

9

an agency

include a reference to the NACC.

Division 4 Investigating and reporting by Inspector

Subdivision A Investigations by Inspector

212   Application of Division

             (1)  This Division applies:

                     (a)  to the Inspector’s investigation of a NACC corruption issue that could, in the Inspector’s opinion, involve corrupt conduct that is serious or systemic; and

                     (b)  whether the investigation is conducted:

                              (i)  by the Inspector only; or

                             (ii)  jointly by the Inspector and a Commonwealth agency, the NACC or a State or Territory government entity.

             (2)  This Division also applies to an investigation into a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC (a NACC complaint investigation ).

213   Conduct of investigations generally

                   The Inspector may perform the investigation in such manner as the Inspector thinks fit.

214   Inspector’s powers to investigate

             (1)  Divisions 2 to 6 and 8 of Part 7, and sections 117, 118, 120, 267 and 268, apply in relation to the investigation with the modifications set out in the following table:

 

Modifications

Item

A reference to...

is taken to...

1

the Commissioner

be a reference to the Inspector.

2

the NACC

be a reference to the Inspector.

3

a NACC Commissioner

be a reference to the Inspector.

4

a corruption issue

be a reference to:

(a) a NACC corruption issue; or

(b) a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.

5

a corruption investigation

be a reference to:

(a) a NACC corruption investigation; or

(b) a NACC complaint investigation.

6

an authorised officer

be a reference to a person appointed by the Inspector under section 267 (appointment of authorised officers) as applied by this section.

7

an agency head

include a reference to the Commissioner.

8

a head

include a reference to the Commissioner.

9

a Commonwealth agency

include a reference to the NACC.

10

an agency

include a reference to the NACC.

11

a staff member of the NACC

be a reference to:

(a) the Inspector; or

(b) a person assisting the Inspector.

             (2)  However:

                     (a)  Subdivision E of Division 3 of Part 7 (travel documents and arrest of witnesses) does not apply for the purposes of a NACC complaint investigation; and

                     (b)  the following provisions of that Part, as applied by this section, do not authorise, in the context of a NACC complaint investigation, the taking of any action in relation to a post-charge or a post-confiscation application event:

                              (i)  Subdivision B of Division 2 (notices to produce);

                             (ii)  Division 3 (hearings); and

                     (c)  item 6 of the table in subsection (1) does not apply to subsections 267(1) and (4); and

                     (d)  item 11 of the table in subsection (1) does not apply to the following provisions:

                              (i)  paragraph 104(3)(a);

                             (ii)  paragraph 143(3)(a).

Subdivision B Reporting on NACC corruption investigations and NACC complaint investigations

215   Report on NACC corruption investigation or NACC complaint investigation

Inspector must prepare a NACC investigation report

             (1)  After completing:

                     (a)  a NACC corruption investigation; or

                     (b)  a NACC complaint investigation;

the Inspector must prepare a report (a NACC investigation report ) on the investigation.

Contents of a NACC investigation report

             (2)  Subject to section 217, the NACC investigation report must set out:

                     (a)  the Inspector’s findings or opinions on the NACC corruption issue or the complaint; and

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

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

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

Note:          See also section 219, which requires the Inspector 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 a NACC investigation report in certain circumstances.

             (3)  For the purposes of paragraph (2)(a), if:

                     (a)  the NACC investigation report relates to a NACC corruption investigation; and

                     (b)  the Inspector forms the opinion that a person whose conduct has been investigated has engaged in corrupt conduct of a serious or systemic nature;

the Inspector must include a statement to that effect in the NACC investigation report.

             (4)  To avoid doubt, for the purposes of paragraph (2)(a), if:

                     (a)  the NACC investigation report relates to a NACC corruption investigation; and

                     (b)  the Inspector forms the opinion that a person whose conduct has been investigated has not engaged in corrupt conduct;

the Inspector must set out that opinion in the report.

             (5)  If:

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

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

the Inspector may include a statement to that effect in the NACC investigation report if the Inspector 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 Inspector 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 a NACC investigation report

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

216   Effect of findings or opinions about corrupt conduct

             (1)  This section applies if a NACC 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.

217   Excluding certain information from NACC investigation report

             (1)  The Inspector must exclude the following from a NACC investigation report:

                     (a)  section 235 certified information;

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

Note:          This information must be included in a protected information report (see section 218).

             (2)  Before including information in a NACC investigation report, the Inspector must consult with the following about whether the information is sensitive information:

                     (a)  the head of each Commonwealth agency or State or Territory government entity to which the information relates;

                     (b)  if the information relates to the NACC or a staff member of the NACC—the Commissioner.

218   Protected information report

                   If the Inspector excludes information from a NACC investigation report under section 217, the Inspector must prepare another report (a protected information report ) that sets out:

                     (a)  the information; and

                     (b)  the reasons for excluding the information from the NACC 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.

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

             (1)  Before including in a NACC investigation report an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity, the NACC or any other person, the Inspector must give the head of the agency, the head of the entity, the Commissioner 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 the NACC—the Commissioner, or a person authorised by the Commissioner; or

                     (c)  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 Inspector must include in the NACC investigation report a summary of the substance of the response if the person requests the Inspector to do so.

             (4)  Subsection (3) is subject to section 217.

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

                     (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 Inspector, the person has not engaged in corrupt conduct.

220   Inspector to give copies of reports to certain persons

             (1)  The Inspector must give the Commissioner, the CEO and the person referred to in subsection (2):

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

                     (b)  otherwise—the Minister.

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

                     (a)  must give a copy of a NACC investigation report relating to a NACC corruption investigation; and

                     (b)  may give a copy of a protected information report relating to the NACC corruption investigation;

to the following persons:

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

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

                     (g)  for a NACC 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 Inspector 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 Inspector 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 Inspector 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.

221   Tabling of NACC investigation report in Parliament

                   If:

                     (a)  the Inspector gives the Commissioner a NACC investigation report under subsection 220(1); and

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

the Inspector must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Inspector gives the report.

222   Publishing NACC investigation report in whole or in part

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

                     (a)  the Inspector has given the Commissioner the NACC investigation report under subsection 220(1); and

                     (b)  the Inspector 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 223.

223   Opportunity to respond must be given before publishing a NACC investigation report containing critical opinions etc.

             (1)  This section applies to a NACC investigation report that:

                     (a)  has not been tabled in Parliament; and

                     (b)  is published, in whole or in part, under section 222 more than 3 months after the report is given to the Commissioner under subsection 220(1).

             (2)  The NACC 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, the NACC or any other person, unless the Inspector has given the head of the agency, the head of the entity, the Commissioner 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 the NACC—the Commissioner, or a person authorised by the Commissioner; or

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

224   Advising person who referred NACC corruption issue or made complaint of outcome

             (1)  The Inspector may advise a person (or a representative nominated by the person) of the outcome of:

                     (a)  an investigation of a NACC corruption issue raised by the person in a referral under section 202, 203 or 204; or

                     (b)  if the person made the complaint in relation to which the NACC complaint investigation was conducted—the NACC complaint investigation.

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

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

                     (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 Inspector 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 Inspector 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.

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

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

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

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

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

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

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

             (3)  The Inspector may advise a person of the outcome of a NACC complaint investigation if:

                     (a)  the complaint concerned the conduct of the person; and

                     (b)  the Inspector forms an opinion or makes a finding about the complaint.

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

             (5)  In advising the person under subsection (1), (2) or (3), the Inspector:

                     (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 Inspector is satisfied that:

                              (i)  the information is sensitive information; and

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

             (6)  Before giving the person information under subsection (1), (2) or (3), the Inspector 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.

             (7)  In deciding whether to exclude information from the advice under paragraph (5)(b), the Inspector 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.

226   Follow-up action on NACC investigation report

             (1)  The Inspector may request:

                     (a)  the Commissioner; or

                     (b)  the head of a Commonwealth agency to whom a NACC investigation report is given;

to give the Inspector, within a specified time, details of any action that the Commissioner or the head of the Commonwealth agency has taken, or proposes to take, with respect to a recommendation included in the NACC investigation report.

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

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

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

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

                     (c)  the Inspector’s reasons for not being satisfied with that response.

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

                     (a)  if the response was made by the Commissioner—the Minister; or

                     (b)  if the response was made by the head of a Commonwealth agency that 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

                     (c)  if the response was made by the head of a Commonwealth agency that 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

                     (d)  if the response was made by the head of a Commonwealth agency that is established or continued in existence by an Act and paragraph (c) does not apply—the Minister administering that Act; or

                     (e)  if the response was made by the head of a Commonwealth agency that is a Commonwealth entity and neither paragraph (c) nor paragraph (d) applies—the Minister having general responsibility for the activities of the entity.

             (5)  If the Inspector refers material to a person under subsection (3), the Inspector 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 Inspector must exclude the following from the copy of the material sent under subsection (5):

                     (a)  section 235 certified information;

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

             (7)  Before sending a copy of material to a person under subsection (5), the Inspector must consult with the following about whether the material contains sensitive information:

                     (a)  the head of each Commonwealth agency or State or Territory government entity to which the material relates;

                     (b)  if the material relates to the NACC or a staff member of the NACC—the Commissioner.