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

Part 12 Administrative provisions for the National Anti-Corruption Commission

Division 1 Appointment of the NACC Commissioners

241   Appointment of the Commissioner

Appointment by Governor-General

             (1)  The National Anti-Corruption Commissioner 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.

Qualification for appointment

             (3)  A person must not be appointed as the Commissioner 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.

Period of appointment

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

             (5)  The Commissioner must not be reappointed.

Basis of appointment

             (6)  The Commissioner must be appointed on a full-time basis.

242   Appointment of the Deputy Commissioners

Appointment by Governor-General

             (1)  A National Anti-Corruption Deputy Commissioner 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.

Qualification for appointment

             (3)  A person must not be appointed as a Deputy Commissioner unless the Minister is satisfied that the person has appropriate qualifications, knowledge or experience.

             (4)  At least 2 Deputy Commissioners (or if there is only one Deputy Commissioner—that Deputy Commissioner) must be:

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

                     (b)  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.

             (5)  A person must not be appointed as a Deputy Commissioner if the person has previously been appointed as the Commissioner.

Period of appointment

             (6)  A Deputy Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (7)  A Deputy Commissioner may be reappointed on one occasion after the Deputy Commissioner’s first appointment.

Basis of appointment

             (8)  A Deputy Commissioner may be appointed on a full-time or part-time basis.

243   Acting appointments

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

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

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

                              (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 a NACC Commissioner unless:

                     (a)  if the person is to act as the Commissioner—the person is qualified, as mentioned under subsection 241(3), to be appointed as the Commissioner; or

                     (b)  if the person is to act as a Deputy Commissioner—the person is qualified, as mentioned under subsection 242(3) or (4) (as the case requires), to be appointed as a Deputy Commissioner.

244   Remuneration

             (1)  A NACC Commissioner 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 NACC Commissioner is to be paid the remuneration that is prescribed by the regulations.

             (2)  A NACC Commissioner is to be paid the allowances that are prescribed by the regulations.

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

245   Leave of absence

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

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

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

246   Other paid work

                   A NACC Commissioner must not engage in paid work outside the duties of the NACC Commissioner’s office without the Minister’s approval.

247   Disclosure of interests

             (1)  A disclosure by a NACC Commissioner under section 29 of the PGPA Act (which deals with the duty to disclose interests) must be made to the Minister.

             (2)  Subsection (1) applies in addition to any rules made for the purposes of that section.

             (3)  For the purposes of this Act and the PGPA Act, a NACC Commissioner is taken not to have complied with section 29 of that Act if the NACC Commissioner does not comply with subsection (1) of this section.

248   Other terms and conditions

                   A NACC Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

249   Resignation

             (1)  A NACC Commissioner may resign the NACC Commissioner’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.

250   Termination of appointment

             (1)  The Governor-General may terminate the appointment of a NACC Commissioner 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 NACC Commissioner:

                     (a)  for misbehaviour; or

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

             (2)  The Governor-General must terminate the appointment of a NACC Commissioner if the NACC Commissioner:

                     (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 NACC Commissioner’s creditors; or

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

Division 2 The CEO, staff etc. and authorised officers

Subdivision A Appointment and functions of the CEO

251   The Chief Executive Officer

                   There is to be a Chief Executive Officer of the National Anti-Corruption Commission.

252   Functions of CEO

             (1)  The functions of the CEO are:

                     (a)  to manage the affairs of the NACC; and

                     (b)  to ensure the NACC performs its functions.

             (2)  The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of the CEO’s functions.

253   Commissioner may give directions to CEO

             (1)  The Commissioner may give directions to the CEO about the performance of the CEO’s functions.

             (2)  The CEO must comply with a direction given under subsection (1).

             (3)  Subsection (2) does not apply to the extent the direction relates to the CEO’s performance of functions or exercise of powers under the following Acts in relation to the NACC:

                     (a)  the PGPA Act;

                     (b)  the Public Service Act 1999 .

             (4)  A direction under subsection (1) is not a legislative instrument.

254   Appointment of CEO

Appointment by Governor-General

             (1)  The CEO 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 Commissioner; and

                     (b)  the Commissioner must have approved the proposed recommendation.

Qualification for appointment

             (3)  A person must not be appointed as the CEO unless the Commissioner is satisfied that the person has appropriate qualifications, knowledge or experience.

Period of appointment

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

Note:          The CEO may be reappointed: see section 33AA of the Acts Interpretation Act 1901 .

Basis of appointment

             (5)  The CEO must be appointed on a full-time basis.

255   Acting appointments

                   The Commissioner may, by written instrument, appoint a person to act as the CEO:

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

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

                              (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 .

256   Remuneration

             (1)  The CEO 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 CEO is to be paid the remuneration that is prescribed by the regulations.

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

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

257   Leave of absence

             (1)  The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Commissioner may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

258   Other paid work

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

259   Other terms and conditions

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

260   Resignation

             (1)  The CEO may resign the CEO’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.

261   Termination of appointment

             (1)  The Governor-General may terminate the appointment of the CEO:

                     (a)  for misbehaviour; or

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

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

                     (a)  the CEO:

                              (i)  becomes bankrupt; or

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

                            (iii)  compounds with the CEO’s creditors; or

                            (iv)  makes an assignment of the CEO’s remuneration for the benefit of the CEO’s creditors; or

                     (b)  the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the CEO engages, except with Commissioner’s approval, in paid work outside the duties of the CEO’s office (see section 258); or

                     (d)  the CEO fails, without reasonable excuse, to comply with section 29 of the PGPA Act (which deals with the duty to disclose interests) or rules made for the purposes of that section.

Subdivision B Staff and consultants etc.

262   Staff

             (1)  The staff of the NACC must be persons engaged under the Public Service Act 1999 .

             (2)  For the purposes of the Public Service Act 1999 :

                     (a)  the CEO and the APS employees assisting the CEO together constitute a Statutory Agency; and

                     (b)  the CEO is the Head of that Statutory Agency.

263   Consultants

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

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

264   Persons assisting the NACC

             (1)  The NACC may be assisted by:

                     (a)  officers and employees of Agencies (within the meaning of the Public Service Act 1999 ), and of authorities of the Commonwealth, whose services are made available to the NACC in connection with the performance of any of the NACC’s functions; and

                     (b)  persons whose services are made available under arrangements made under subsection (2).

             (2)  The CEO may, on behalf of the Commonwealth, make an arrangement with the appropriate authority or officer of:

                     (a)  a State or Territory government; or

                     (b)  a State or Territory government authority; or

                     (c)  a government body or authority of a foreign country;

under which the government or authority makes officers or employees available to the NACC to perform services in connection with the performance of any of the NACC’s functions.

             (3)  An arrangement under subsection (2) may provide for the Commonwealth to reimburse a State or Territory or foreign country with respect to the services of a person to whom the arrangement relates.

             (4)  When performing services for the NACC under this section, a person is subject to the directions of the CEO and a NACC Commissioner.

             (5)  To avoid doubt, a constable assisting the NACC continues to have, and may exercise, all their functions, powers and duties as such a constable.

Note:          For constable , see section 7.

265   Counsel assisting the NACC or a NACC Commissioner

                   The CEO may appoint a legal practitioner to assist the NACC or a NACC Commissioner as counsel:

                     (a)  generally; or

                     (b)  in relation to a particular corruption investigation.

266   Meaning of staff member of the NACC

                   Each of the following is a staff member of the NACC:

                     (a)  the Commissioner;

                     (b)  any Deputy Commissioners;

                     (c)  the CEO;

                     (d)  a member of the staff referred to in section 262;

                     (e)  a consultant engaged under section 263;

                      (f)  a person referred to in section 264 whose services are made available to the NACC;

                     (g)  a legal practitioner appointed under section 265.

Subdivision C Authorised officers

267   Appointment of authorised officers

             (1)  The Commissioner may, in writing, appoint a person to be an authorised officer for the purposes of Part 7 (investigating corruption issues).

             (2)  The person may exercise such powers of an authorised officer under Part 7 as are specified in the appointment.

             (3)  The person must be:

                     (a)  a staff member of the NACC:

                              (i)  who the Commissioner considers has suitable qualifications or experience; or

                             (ii)  who is also a member of the AFP; or

                            (iii)  who is also a member of the police force or police service of a State or Territory; or

                     (b)  a member of the AFP.

             (4)  A person who is a member of a police force or police service (including the AFP) must not be appointed as an authorised officer unless the head (however described) of the force or service agrees to the appointment.

             (5)  In exercising powers as an authorised officer, the person must comply with any directions given by the Commissioner.

             (6)  If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.

268   Identity cards

             (1)  The Commissioner must issue an identity card to a person who is an authorised officer for the purposes of Part 7 (investigating corruption issues).

             (2)  An identity card:

                     (a)  must be in the form approved in writing by the Minister; and

                     (b)  must contain a recent photograph of the authorised officer.

Identity card to be carried and produced on request

             (3)  An authorised officer must carry the identity card at all times when exercising powers as an authorised officer in accordance with Part 7.

             (4)  An authorised officer is not entitled to exercise any powers under Part 7 in relation to premises if:

                     (a)  the occupier of the premises requires the authorised officer to produce the authorised officer’s identity card for inspection by the occupier; and

                     (b)  the authorised officer fails to comply with the requirement.

             (5)  An authorised officer is not entitled to exercise any powers under Part 7 in relation to a person if:

                     (a)  the person requires the authorised officer to produce the authorised officer’s identity card for inspection by the person; and

                     (b)  the authorised officer fails to comply with the requirement.

             (6)  The occupier of premises is the person apparently in charge of the premises.

Offence

             (7)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an authorised officer; and

                     (c)  the person does not return the identity card to the Commissioner within 14 days after ceasing to be an authorised officer.

Penalty:  60 penalty units.

             (8)  An offence against subsection (7) is an offence of strict liability.

             (9)  Subsection (7) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (9): see subsection 13.3(3) of the Criminal Code .

Division 3 Immunities of staff members of the NACC

269  Immunity from civil proceedings for staff members of the NACC and persons assisting

             (1)  A staff member of the NACC 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 staff member’s functions, powers or duties under, or in relation to, this Act.

             (2)  A person whom the Commissioner requests, in writing, to assist a staff member of the NACC 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 staff member.

270  Immunities from certain State and Territory laws

                   A staff member of the NACC is not 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 as such a staff member; or

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

Division 4 Annual report by Commissioner

271   Annual report

             (1)  The Commissioner must give the Minister, for presentation to each House of the Parliament, a report (the annual report ) on the performance of the Commissioner’s functions during each financial year.

Note:          See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.

             (2)  The annual report for each financial year must include:

                     (a)  the particulars prescribed by the regulations about the following:

                              (i)  corruption issues referred to the Commissioner during that year;

                             (ii)  corruption issues dealt with by the Commissioner during that year;

                            (iii)  corruption investigations conducted by the Commissioner during that year;

                            (iv)  corruption issues that the Commissioner referred to a Commonwealth agency or State or Territory government entity for investigation during that year;

                             (v)  public inquiries conducted by the Commissioner during that year;

                            (vi)  certificates issued by the Attorney-General under section 235 during that year;

                           (vii)  international relations certificates issued during that year; and

                     (b)  a description of the corruption investigations conducted by the Commissioner during that year that the Commissioner considers raise significant issues for, or reflect developments in, Commonwealth agencies; and

                     (c)  a description of any patterns or trends, and the nature and scope, of corruption in Commonwealth agencies or by public officials that have come to the Commissioner’s attention during that year; and

                     (d)  any recommendations for changes to the laws of the Commonwealth or administrative practices of Commonwealth agencies that the Commissioner, as a result of performing the Commissioner’s functions during that year, considers should be made; and

                     (e)  the extent to which corruption investigations have resulted in the prosecution in that year of persons for offences; and

                      (f)  the extent to which corruption investigations have resulted in confiscation proceedings in that year; and

                     (g)  the details of the number and results of:

                              (i)  applications made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under the Administrative Decisions (Judicial Review) Act 1977 for orders of review in respect of matters arising under this Act in connection with the performance of functions or exercise of powers by the Commissioner; and

                             (ii)  other court proceedings involving the Commissioner;

                            being applications and proceedings that were determined, or otherwise disposed of, during that year.

             (3)  The Minister must table the annual report in each House of the Parliament within 15 sitting days of that House after its receipt.

             (4)  A report prepared under this section may be included in a report prepared and given to the Minister under section 46 of the PGPA Act in relation to the NACC.

272   Exclusion of certain information from annual report

                   The Commissioner must exclude the following from the annual report:

                     (a)  section 235 certified information;

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

273   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.