2022

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

National Anti-Corruption Commission BILL 2022

National Anti-Corruption Commission (Consequential and Transitional Provisions) BILL 2022

 

 

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the

Attorney-General, the Hon Mark Dreyfus KC MP)        

National Anti-Corruption Commission BILL 2022

This addendum responds to matters raised by:

•        the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 6 of 2022 dated 26 October 2022;

•        the Parliamentary Joint Committee on Human Rights in Report 5 of 2022 dated 20 October 2022; and

•       the Joint Select Committee on National Anti-Corruption Commission Legislation in its Advisory report on the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 dated 10 November 2022.

 

The right to an effective remedy contained in article 2(3) of the ICCPR

After paragraph 13, insert the following new paragraph:

13A.       This Bill further engages and may limit the right to an effective remedy by conferring immunities from civil liability on staff members of the NACC and persons assisting the NACC, the Inspector and persons assisting the Inspector.

After paragraph 20, insert the following new heading and paragraphs:

Immunity from civil liability for certain persons

20A.       This Bill confers immunities from civil liability on staff members of the NACC and persons assisting the NACC (clause 269), and on the Inspector and persons assisting the Inspector (clause 196).

20B.       These persons would not be liable to civil proceedings in relation to an act or omission done in good faith during the actual or purported performance or exercise of their functions, powers or duties under the NACC Bill.

20C.       These immunities serve the legitimate objective of ensuring these persons are able to perform their functions and duties in good faith and in the public interest. The immunities are rationally connected to that objective by managing the risk that staff members of the NACC, persons assisting the NACC, the Inspector and persons assisting the Inspector would limit their conduct to minimise any real or perceived risk of incurring personal civil liability. The immunities are proportionate to achieving this objective by only applying to the individuals, and not the Commission or the Commonwealth. Affected persons could still seek an effective remedy for loss or damage suffered in the purported exercise of the Commissioner’s or Inspector’s functions against the Commission or the Commonwealth. As such, the NACC Bill is consistent with the right to an effective remedy under Article 2(3) of the ICCPR.

The right to the presumption of innocence contained in article 14(2) of the ICCPR

In paragraph 95, first bullet point, omit ‘84’ and substitute ‘98’.

In paragraph 99, omit ‘84’ and substitute ‘98’.

In paragraph 102, omit all words after ‘within the knowledge of the defendant’ and insert:

, and where it would be significantly more difficult and costly for the prosecution to prove (see the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers ).

102A.   In the case of clauses 60 and 69, it is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe because:

•        the reasons why it was not reasonably practicable for a person to comply with a requirement to produce or give information, documents or things are likely to be entirely within the knowledge of the person on whom the notice, summons or requirement was served;

•        it would be an onerous task for the prosecution to disprove the existence of all circumstances that would make it reasonably practicable for a defendant to comply with the notice, especially where these circumstances are peculiarly within the knowledge of the defendant;

•        requiring the prosecution to disprove the existence of all circumstances in which it could be reasonably practicable to comply with a notice would create a significant risk to successful prosecution and affect the deterrent effect of the offence; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence is available to the prosecution.

102B.   In the case of clauses 61 and 71, it is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that the evidence was not false or misleading in a material particular because:

•        where a person has knowingly given false or misleading information or evidence under oath or affirmation, or in response to a notice or direction, the question of whether and why the particulars in which the information was false or misleading are not material to the case at hand is likely to be solely and entirely within the person’s knowledge;

•        it would be simple for the person to adduce or point to evidence that suggests a reasonable possibility that the evidence was not false or misleading in a material particular, by way of explanation for why they gave the evidence despite knowing that it was false or misleading;

•        it would be an onerous task for the prosecution to disprove that a person knew their evidence to be false or misleading, but not in a material particular; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the information or evidence was not false or misleading in a material particular—is available to the prosecution.

102C.   In the case of clause 98, it is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by subclause 98(3) because:

•        the purpose for which the person has made the disclosure will be solely and entirely within the person’s knowledge, and it would not be onerous for the person to adduce or point to evidence that suggests a reasonable possibility of that purpose;

•        requiring the prosecution to disprove the existence of every circumstance or reason for which a disclosure was made would create a significant risk to successful prosecution and affect the deterrent effect of the offence;

•        requiring the prosecution to prove matters relating to the relationship between two private parties, including a body corporate with its officer or agent or a legal practitioner and their client, would also create a risk to successful prosecution and affect the deterrent effect of the offence; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the disclosure was authorised—is available to the prosecution.

102D.  In the case of clause 228, it is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by clause 229 or 230, because:

•        the reasons why an entrusted person obtained, recorded or disclosed information would be solely and entirely within the knowledge of the entrusted person, and it would not be onerous for the person to adduce or point to evidence that suggests a reasonable possibility of that purpose;

•        it would be onerous for the prosecution to disprove matters peculiarly within the knowledge of a defendant, including the reasons why an entrusted person obtained, recorded or disclosed information and whether the Commissioner or Inspector were satisfied of the appropriateness of a disclosure; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the disclosure was authorised—is available to the prosecution.

102E.   In the case of clause 234, it is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by subclause 229(4) or clause 230, because:

•        in relation to subclause 229(4), which requires the disclosure to be both required by another law of the Commonwealth, and not inconsistent with an arrangement under clause 239:

˗           the basis on which the person has been required to disclose the information and the reason why the disclosure is consistent with any arrangement under clause 239 is likely to be peculiarly within the knowledge of the person;

˗           it would be an onerous task for the prosecution to prove the absence of a requirement for the person to disclose the information;

˗           requiring the prosecution to disprove the existence of any possible requirement on the person would create a significant risk to successful prosecution and affect the deterrent effect of the offence; and

˗           it would be unlikely that a prosecution would be brought where information indicating the availability of the defence is available to the prosecution; and

•        in relation to clause 230, which allows an authorised discloser to disclose information publicly if they are satisfied it is in the public interest:

˗           whether the authorised discloser was so satisfied is likely to be solely and entirely within their knowledge, as the element turns on the subjective state of mind of the authorised discloser;

˗           it would be an onerous task for the prosecution to disprove that an authorised discloser held the requisite state of mind; and

˗           it would be highly unlikely that a prosecution would be brought where information indicating the availability of the defence—being information indicating that the authorised disclosure was satisfied that the disclosure was in the public interest—was available to the prosecution.

102F.   In the case of clause 268, it is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their identity card was lost or destroyed because that information is likely to be solely and entirely within their knowledge.

The right to freedom of expression contained in article 19(2) of the ICCPR

After paragraph 233, insert:

233A.  The NACC Bill would further, indirectly, limit the right to freedom of expression by enabling the NACC to apply for and obtain warrants to search a person who works in a professional capacity as a journalist, their employer, or premises occupied by the journalist or their employer to identify and seize evidential material as part of a corruption investigation. This may create an actual or perceived risk that the NACC may obtain information that may identify a person who has provided information to a journalist on a confidential basis, or that may enable the identity of such a person to be ascertained, which may reduce the willingness of that person or other persons to provide information to journalists.

233B.   The NACC Bill would also limit the right to freedom of expression by providing that a person is in contempt of the NACC if they insult, disturb, or use insulting language towards a NACC Commissioner who is holding a hearing, disrupts a hearing, or threatens a person present at a hearing.

After paragraph 238, insert:

238A.  The Commissioner may cancel a non-disclosure notation at any time if the reason for the notation no longer exists. It would be open to a person to request that the Commissioner consider exercising this power at any time. The Commissioner is also required to consider whether to cancel a non-disclosure notation five years after the notice or summons is served, and then every two years thereafter, unless it is cancelled earlier. The five-year period for the initial requirement for the Commissioner to consider cancelling a notation reflects the likely duration of the grounds for issuing notations in the first place. For example, risks to a person’s safety or reputation will generally endure for an extended period of time. Similarly, criminal, civil and administrative proceedings and processes—including appeals from such processes—arising from a corruption investigation or a related investigation by another agency will often take a number of years to resolve. The requirement for the Commissioner to actively consider cancelling a notation after five years, coupled with a discretion to do so at any point in time including at the request of any person, appropriately balances the need to ensure that non-disclosure notations do not remain in force for longer than is necessary with the need to avoid an administratively burdensome and futile requirement to actively consider cancelling notations at a point in time at which the reasons for the notation are unlikely to have dissipated.

After paragraph 243, insert:

Search warrants in relation to journalists and their employers

243A.  The ability for the NACC to obtain search warrants authorising it to search persons and premises and to seize evidential material would be necessary to enable the Commissioner to investigate corruption issues that could involve serious or systemic corrupt conduct involving public officials.

243B.     The detection and investigation of, and the making of findings and recommendations in relation to, serious or systemic corrupt conduct by the Commissioner are legitimate objectives, and would enable action being taken to address such conduct—including the prosecution of, or the taking of disciplinary or administrative action against, public officials and other persons involved in such conduct.

243C.     Persons engaged in serious or systemic corruption often take steps to conceal their conduct, and to create plausibly deniable explanations as to why their conduct was done for a proper purpose. Enabling the Commissioner to obtain all relevant information would be critical for making findings of fact in relation to corruption issues, identifying risks and vulnerabilities in Commonwealth agencies, and making robust recommendations directed at preventing corruption or mitigating against any adverse consequences of corruption.

243D.     A person who is a professional journalist may engage in serious or systemic corruption in either their professional or personal capacity, as too may other officers or employees of media organisation or the organisation as a whole—consistent with any other individual or organisation. In such cases, it is likely that the person may hold evidential material, or that such material may be located at their workplace.

243E.     A person who is a professional journalist or a media organisation may also hold evidence of serious or systemic corruption, even if they are not involved in such conduct—consistent with any other individual or organisation. While the NACC would be expected to seek to obtain evidential material directly from persons who are suspected of having engaged in corrupt conduct, in some cases this may not be possible, for example where the person has destroyed material in their possession. In such cases, it may be necessary for the NACC to seek to obtain copies of that evidential material from other persons and premises—for example, if the person has previously provided a third party with a copy of a document.

243F.     In either of the above cases, the ability for the NACC to obtain a search warrant in relation the person or their offices would enable the Commissioner and Inspector to obtain information that would not otherwise be available, including physical, documentary and electronic evidence located on their person or held on such premises. Vesting the Commissioner and Inspector with these powers would ensure they can investigate allegations of serious or systemic corrupt conduct, as well as ascertain and expose the circumstances that contribute to serious or systemic corruption within the Commonwealth public sector. Ensuring appropriate powers are available to the Commissioner when conducting public inquiries, and to the Inspector when investigating complaints raised in relation to the NACC, would strengthen the NACC’s broader inquiry and prevention functions and oversight of the NACC.

Contempt of the NACC

243G.  Clause 82 would relevantly provide that a person is in contempt of the NACC if they:

•        insult, disturb, or use insulting language towards a NACC Commissioner who is holding a hearing in the performance or exercise of the NACC Commissioner’s functions or powers;

•        disrupt a hearing; or

•        threaten a person present at a hearing.

243H.     Providing that this conduct constitutes a contempt of the NACC allows hearings to be conducted safely, efficiently and effectively. Hearings are a crucial part of corruption investigations; ensuring their safe, efficient and effective management is a legitimate objective. Without the safeguard provided by clause 82, hearings and wider corruption investigations could be derailed by witnesses engaging in this kind of conduct. For example, if a witness answered questions at a hearing only with insults to the Commissioner, there would be no utility in proceeding with the hearing and the investigation would be delayed.

After paragraph 248, insert:

248A.     Clause 124 would introduce an additional threshold for the issue of a search warrant if the warrant is to search a person (a journalist) who works in a professional capacity as a journalist, a journalist’s employer, or premises occupied or controlled by a journalist or a journalist’s employer. The issuing officer would be required to weigh the public interest in issuing a warrant against the public interest in protecting the confidentiality of the identity of the journalist’s source. They would also be required to weigh the public interest issuing a warrant against the public interest in facilitating the exchange of information between journalists and the public so as to facilitate reporting of matters in the public interest.

248B.     The requirement to weigh up of these competing public interests in deciding a warrant application would ensure issuing officers must specifically turn their minds to the public interests associated with source confidentiality and freedom of the press, and may only issue warrants where they are satisfied it is in the public interest overall.

248C.     This additional threshold would apply to any search warrant sought by the NACC that relates to a journalist or their employer, irrespective of the purpose of the warrant—including where the journalist, their employer, or another officer or employee of the media organisation is the subject of the corruption investigation. The breadth of this safeguard reflects the public interest associated with source confidentiality and the freedom of the press, and the importance of those matters to the freedom of expression.

248D.     The availability of contempt proceedings for the kinds of conduct outlined in clause 82 is reasonable and necessary to ensure hearings may be conducted safely, efficiently and effectively. The provisions for contempt proceedings are proportionate because they ensure contempt matters can be dealt with quickly and expeditiously, without recording a criminal conviction, in proportion to the severity of the conduct. Where the conduct is more serious in nature, criminal proceedings may also be available. 

The right to the presumption of innocence contained in article 14(2) of the ICCPR

In paragraph 290, omit all words between ‘peculiarly within the knowledge of the defendant.’ and ‘(as in items’ and substitute:

and would be significantly more costly or difficult for the prosecution to prove. For example, whether a person made a disclosure for the purposes of the NACC Bill is solely and entirely within the knowledge of the person who made the disclosure

At the end of paragraph 290, insert:

Further, it would be an onerous task for the prosecution to disprove that disclosures were made for the purposes of the NACC Bill as the purpose for which the person made the disclosures would be peculiarly within the knowledge of the person making the disclosure. It would also be unlikely for a prosecution to be brought where information indicating the availability of the defence—being information indicating that the disclosure was made for the purposes of the NACC Bill—was available to the prosecution.

 

Clause 8—Meaning of corrupt conduct

At the end of paragraph 2.36, insert:

For a decision to amount to a breach of public trust, it would generally be necessary to establish the causative role of the improper purpose in motivating the decision, in the sense that the decision would not have occurred ‘but for’ the improper purpose ( Maitland v R; Macdonald v R (2019) 99 NSWLR 376, [67]). In an administrative law context, see also: Klein v Domus Pty Ltd (1963) 109 CLR 467  at 473 (the improper purpose was the ‘dominating, actuating reason for the decision’) and Thompson v Randwick Municipal Council (1950) 81 CLR 87 at 106 (the improper purpose was ‘a substantial purpose in the sense that no attempt would be made to act in the same way the decision required if that improper purpose had not existed’).

Clause 60—Offence—failure to comply with notice to produce

In paragraph 7.40, after ‘Criminal Code’ insert:

which include mistake or ignorance of fact, and intervening conduct or event. These standard or general defences would not be sufficient to excuse a person from criminal liability in circumstances where they accurately understand the requirement to give information, or produce documents or things, and there is no third party or external factor that prevents their compliance with the requirement, but the person is nevertheless unable to comply either within the timeframe specified or at all.

After 7.40, insert:

7.40A  The question of whether it was ‘not reasonably practicable’ for a person to comply is an objective one, to be judged by the standard of behaviour expected of a reasonable person in the duty holder’s position. Whether it was reasonably practicable for the person to comply would require an assessment in which the degree of risk of non-compliance is weighed against the burden, in terms of time, money and effort, involved in any steps necessary to reduce or avert the risk of non-compliance. If there is a great disproportion between the risk and the burden, such that the risk or the degree to which the risk is likely to be reduced is insignificant when compared with the burden, then the step in question would not be reasonably practicable. It is appropriate to include a reasonable practicability-based defence to requirements to produce information, documents or things, to cover a diverse range of circumstances situations in which, for example:

•                       it would be physically possible but extraordinarily onerous for a person to comply with a requirement—such as where it would only be possible for the person to comply if they (and all available staff) went without sleep for an extended period of time; or

•                       the person is dependent on a third party to access or produce a document or thing (such as a lawyer, bank or accounting firm that holds the document or thing on behalf of the person), and the person has taken all reasonably practicable steps to obtain the document or thing from the third party, but has been unable to do so.

In paragraph 7.41, omit all words after ‘ Criminal Code ).’, and substitute:

It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe, because:

•        the reasons why it was not reasonably practicable for a person to comply with a requirement to produce or give information, documents or things are likely to be entirely within the knowledge of the person on whom the notice, summons or requirement was served;

•        it would be an onerous task for the prosecution to disprove the existence of all circumstances that would make it reasonably practicable for a defendant to comply with the notice, especially where these circumstances are peculiarly within the knowledge of defendants;

•        requiring the prosecution to disprove the existence of all circumstances in which it could be reasonably practicable to comply with a notice would create a significant risk to successful prosecution and affect the deterrent effect of the offence; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence is available to the prosecution.

Clause 61—Offence—producing false or misleading information or documents

In paragraph 7.49, omit all words after ‘ Criminal Code ).’ and substitute:

It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility the evidence was not false or misleading in a material particular because:

•        where a person has knowingly given false or misleading information or evidence under oath or affirmation, or in response to a notice or direction, the question of whether and why the particulars in which the information was false or misleading are not material to the case at hand is likely to be solely and entirely within the person’s knowledge;

•        it would be simple for the person to adduce or point to evidence that suggests a reasonable possibility that the evidence was not false or misleading in a material particular, by way of explanation for why they gave the evidence despite knowing that it was false or misleading;

•        it would be an onerous task for the prosecution to disprove that a person knew their evidence to be false or misleading, but not in a material particular; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the information or evidence was not false or misleading in a material particular—is available to the prosecution.

Clause 69—Offence—failure to give information, or produce documents or things

In paragraph 7.96, after ‘under’ insert ‘Part 2.3 of’.

In paragraph 7.96, after ‘Criminal Code’ insert:

which include mistake or ignorance of fact, and intervening conduct or event. These standard or general defences would not be sufficient to excuse a person from criminal liability in circumstances where they accurately understand the requirement to give information, or produce documents or things, and there is no third party or external factor that prevents their compliance with the requirement, but the person is nevertheless unable to comply either within the timeframe specified or at all.

After 7.96, insert:

7.96A  The question of whether it was ‘not reasonably practicable’ for a person to comply is an objective one, to be judged by the standard of behaviour expected of a reasonable person in the duty holder’s position. Whether it was reasonably practicable for the person to comply would require an assessment in which the degree of risk of non-compliance is weighed against the burden, in terms of time, money and effort, involved in any steps necessary to reduce or avert the risk of non-compliance. If there is a great disproportion between the risk and the burden, such that the risk or the degree to which the risk is likely to be reduced is insignificant when compared with the burden, then the step in question would not be reasonably practicable. It is appropriate to include a reasonable practicability-based defence to requirements to produce information, documents or things, to cover a diverse range of circumstances situations in which, for example:

•        it would be physically possible but extraordinarily onerous for a person to comply with a requirement—such as where it would only be possible for the person to comply if they (and all available staff) went without sleep for an extended period of time; or

•        the person is dependent on a third party to access or produce a document or thing (such as a lawyer, bank or accounting firm that holds the document or thing on behalf of the person), and the person has taken all reasonably practicable steps to obtain the document or thing from the third party, but has been unable to do so.

In paragraph 7.97, omit all words after ‘ Criminal Code ).’, and substitute:

It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe, because:

•        the reasons why it was not reasonably practicable for a person to comply with a requirement to produce or give information, documents or things are likely to be entirely within the knowledge of the person on whom the notice, summons or requirement was served;

•        it would be an onerous task for the prosecution to disprove the existence of all circumstances that would make it reasonably practicable for a defendant to comply with the notice, especially where these circumstances are peculiarly within the knowledge of defendants;

•        requiring the prosecution to disprove the existence of all circumstances in which it could be reasonably practicable to comply with a notice would create a significant risk to successful prosecution and affect the deterrent effect of the offence; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence is available to the prosecution.

Clause 71—Offence—giving false or misleading evidence, information or documents

In paragraph 7.110, omit all words after ‘ Criminal Code).’ and substitute:

It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility the evidence was not false or misleading in a material particular because:

•        where a person has knowingly given false or misleading information or evidence under oath or affirmation, or in response to a notice or direction, the question of whether and why the particulars in which the information was false or misleading are not material to the case at hand is likely to be solely and entirely within the person’s knowledge;

•        it would be simple for the person to adduce or point to evidence that suggests a reasonable possibility that the evidence was not false or misleading in a material particular, by way of explanation for why they gave the evidence despite knowing that it was false or misleading;

•        it would be an onerous task for the prosecution to disprove that a person knew their evidence to be false or misleading, but not in a material particular; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the information or evidence was not false or misleading in a material particular—is available to the prosecution.

7.110A   To rely on the defence, the person would only need to adduce or point to evidence suggesting a reasonable possibility that the information or document is not false or misleading in a material particular. If the person does so, and in order for the offence to apply, the prosecution would then need to discharge its legal burden to negate that possibility beyond reasonable doubt.

Clause 72—Offences—obstructing or hindering hearings, threatening persons present

After paragraph 7.113, insert:

7.113A   The terms ‘obstructs’ and ‘hinders’ would take their ordinary meanings, and would cover a range of conduct that prevents or makes it difficult for a staff member of the NACC to perform or exercise of the staff member’s functions, powers or duties in connection with a hearing. This could include:

•        preventing the Commissioner or another staff member of the NACC from entering the hearing room;

•        interfering with recording devices to prevent a staff member of the NACC from recording a hearing, resulting in the loss of evidence; or

•        assaulting or restraining a staff member of the NACC responsible for ensuring the physical security of a hearing, with the result that a second person is able to enter a private hearing.

In paragraph 7.114, after ‘for the Commissioner.’, omit ‘This penalty’ and insert:

              Obstructing or hindering a staff member of the NACC in the performance or exercise of their functions, powers or duties in connection with a hearing may have significant consequences, including:

•        causing delay to a corruption investigation, with potential attendant consequences for the wellbeing of witnesses and the subject of the investigation;

•        causing a loss of evidence, which may prejudice the investigation; and

•        compromising the security of a hearing, potentially exposing witnesses and other present to risks to their safety or wellbeing.

7.114A The maximum penalty of imprisonment for two years

After paragraph 7.115, insert:

7.115A The term ‘disrupts’ would take its ordinary meaning, and would cover a range of conduct that interrupts a hearing by causing a disturbance or problem. This could include:

•        a person who is present at a public hearing repeatedly interjecting to prevent a witness from answering questions;

•        a person who calls in a bomb threat to a hearing, requiring the hearing to be evacuated; or

•        a person who causes significant property damage in a hearing room, requiring the hearing to be cancelled.

In paragraph 7.116, after ‘to the Commissioner.’, omit ‘This penalty’ and insert:

              Hearings would generally require extensive planning, preparation and logistical support, and can place significant pressure on witnesses and the subjects of investigations. Disrupting a hearing may have significant consequences, including:

•        causing delay to a corruption investigation, including by requiring a hearing to be rescheduled, with potential attendant consequences for the wellbeing of witnesses and the subject of the investigation; or

•        preventing the Commission from effectively questioning a witness at a hearing, or preventing a witness from effectively answering questions, resulting in the Commission obtaining incomplete or inaccurate evidence, potentially prejudicing the outcome of the investigation.

7.116A The maximum penalty of imprisonment for two years

In paragraph 7.118, omit ‘given’ and substitute ‘giving’.

Clause 82—Contempt of the NACC

After paragraph 7.167, insert:

7.167A   Proceedings for contempt of the NACC would be available in addition to criminal offences for obstructing or hindering staff members of the Commission and threatening persons present at a hearing. The availability of both contempt and criminal proceedings for persons who obstruct or hinder staff members of the Commission would provide alternative avenues for addressing such conduct depending on the circumstances. Contempt proceedings may be preferable in cases where the conduct constituting the alleged contempt or offence is at the lower end of the range in terms of its severity, and it is desirable to have the matter dealt with expeditiously and without a conviction being recorded as a contempt of the NACC under this clause, rather than as an offence. This could include, for example, a case in which a witness has engaged in unruly conduct that requires a hearing to be adjourned and rescheduled (which may constitute the offence of disrupting a hearing under subclause 72(2)). Comparatively, in a case where a person’s disruptive conduct is at the upper end of the range in terms of severity, potentially in conjunction with other serious criminal offences, such as by causing significant property damage to the hearing room or assaulting persons present at the hearing, it may be more appropriate to proceed by way of prosecution.

7.167B   The availability of both criminal and contempt proceedings is consistent with the Law Enforcement Integrity Commissioner Act 2006 , Australian Crime Commission Act 2002 , Independent Commission Against Corruption Act 1988 (NSW) and Law Enforcement Conduct Commission Act 2016 (NSW).

Clause 84—Conduct of contempt proceedings

In paragraph 7.176, after ‘matters specified in the certificate.’, omit ‘This’ and insert:

The use of prima facie evidentiary certificates for substantive matters in contempt proceedings facilitates their prompt resolution, by enabling the Commission to place evidence before the court and enabling the court to treat that evidence as correct unless it is rebutted.

7.176A The use of a prima facie evidentiary certificate

In new paragraph 7.176A, after ‘oral testimony.’, omit ‘This’ and insert:

This approach minimises the potential delay associated with calling witnesses or adducing evidence to establish uncontested facts, or negotiating an agreed statement of facts. This is important to facilitate the timely investigation of corruption issues that could involve serious or systemic corrupt conduct, consistent with the objects of the NACC Bill set out in clause 3. This is particularly important in cases of contempt by non-compliance, to mitigate the risk that an alleged contemnor may draw out contempt proceedings to further delay and frustrate an ongoing investigation. The use of a prima facie evidentiary certificate

At the end of new paragraph 7.176A, insert: ‘The use of a prima facie evidentiary certificate framework for contempt proceedings in this clause is consistent with existing approaches in the Law Enforcement Integrity Commissioner Act 2006 and the Australian Crime Commission Act 2002 .’

Clause 98—Offence—failure to comply with non-disclosure notations

In paragraph 7.257, omit all words after ‘ Criminal Code ).’ and substitute:

It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by subclause 98(3) because:

•        the purpose for which the person has made the disclosure will be solely and entirely within the person’s knowledge, and it would not be onerous for the person to adduce or point to evidence that suggests a reasonable possibility of that purpose;

•        requiring the prosecution to disprove the existence of every circumstance or reason for which a disclosure was made would create a significant risk to successful prosecution and affect the deterrent effect of the offence;

•        requiring the prosecution to prove matters relating to the relationship between two private parties, including a body corporate with its officer or agent or a legal practitioner and their client, would also create a risk to successful prosecution and affect the deterrent effect of the offence; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the disclosure was authorised—is available to the prosecution.

Clause 196—Immunity from civil proceedings for the Inspector and persons assisting

In paragraph 10.116, after ‘in the performance of their duties’ insert ‘— and may therefore improperly and excessively limit or curtail their conduct to protect their personal interests’.

In paragraph 10.116, omit ‘person’ (second occurring) and substitute ‘staff member of the NACC’.

In paragraph 10.116, omit the words after ‘wishes to bring legal action to seek compensation for damage’ and substitute:

to their reputation as a result of allegedly defamatory statements contained in report finding the staff member of the NACC has engaged in corrupt conduct, or maladministration that enabled corrupt conduct to occur. Such an outcome would be likely to create an actual or perceived risk that the Inspector may improperly constrain their findings to avoid any risk to their personal interests. By providing an immunity from civil liability for acts or omissions done in good faith in the performance or exercise, or purported performance or exercise, of their functions, powers or duties under the NACC Bill, this clause would reduce the risk that the Inspector or persons assisting the Inspector would adopt a less rigorous approach to the performance of their functions to protect their personal interests at the expense of the public interest.

After paragraph 10.117, insert:

10.117A           The immunities would not prevent an affected person from bringing an action to seek a remedy where the Inspector or persons assisting acted in good faith. The immunities are conferred on the individuals, not on the Commonwealth. It would be open to an affected person to seek a remedy from the Commonwealth, but not from the Inspector or a person assisting where they have acted in good faith.

Clause 227—Key concepts

Sensitive information

After paragraph 11.11, insert:

Unreasonable disclosure of a person’s personal affairs or confidential commercial information

11.11A.            Paragraphs (n) and (o) of the definition of sensitive information refer to information, the disclosure of which ‘would involve unreasonably disclosing’ a person’s personal affairs or confidential commercial information. A person’s ‘personal affairs’ means the affairs of or relating to the private aspects of an individual’s life. It would not be possible or desirable to define the concept exhaustively, as what constitutes a person’s personal affairs will depend on that person’s circumstances. The concept would include, but would not be limited to information relating to a person’s:

•        health and wellbeing, including information of a medical or psychiatric nature;

•        family, marital and other intimate relationships;

•        domestic responsibilities or financial obligations;

•        financial situation or affairs;

•        date of birth and government identifiers; or

•        criminal history or mentions in police records.

11.11B.            Information about an individual’s work or business would not usually qualify as information about their personal affairs. However, information that relates both to an individual’s work or business and matters such as those listed above—such as reasonable adjustments made to a person’s role or workspace to enable a person with a disability or medical condition to participate equally in work—may be information about a person’s personal affairs. Information about a person’s conduct as a public official would not qualify as information about their personal affairs.

11.11C.            The concept of a person’s personal affairs is not limited to information that is confidential or not widely known—although whether particular information is confidential or not widely known may be relevant to the question of whether it would be unreasonable to disclose the information.

11.11D.            The concept of a person’s personal affairs would not extend to legal persons.

11.11E.            The concept of confidential commercial information is self-explanatory.

11.11F.            When determining whether they are satisfied that disclosing particular information would ‘unreasonably’ disclose a person’s personal affairs or confidential commercial information, the Commissioner or Inspector will need to consider all of the relevant circumstances including, in particular:

•        the public interest in the disclosure of the information, which would often turn on the relevance and salience of that information to the corruption investigation or process being conducted by the Commissioner or Inspector—there is a strong public interest in the public exposure of serious or systemic corrupt conduct, and the provision of information to enable people to understand how such conduct has arisen and may arise in the future; and

•        the impact or consequences—adverse or beneficial—that would reasonably be expected to occur, were the information to be disclosed.

11.11G.            In circumstances where a particular aspect of a person’s personal affairs is directly relevant to their corrupt conduct, it may be reasonable for the Commissioner or Inspector to disclose information about that aspect of the person’s personal affairs. For example, where an official engages in corrupt conduct to benefit a person with whom the official is in a relationship, or to obtain a corrupt benefit to cover a significant personal debt, it may be reasonable for the Commissioner or Inspector to disclose information about the relationship or debt because that information would be central to understanding the reasons for the person’s corrupt conduct.

11.11H.            Where the information relates to the personal affairs of a person who is not the subject of the investigation or an adverse finding, the public interest in any disclosure of that person’s personal affairs would generally be reduced. For example, in the case where an official has engaged in corrupt conduct to benefit a person with whom the official is in a relationship, and that person was not involved in or aware of the corrupt conduct, it may be unreasonable for the Commissioner or Inspector to disclose that person’s identity—it may instead be reasonable to disclose only more limited information about the fact that the official engaged in corrupt conduct to benefit the person with whom they were in a relationship, as well as the details of the official’s own conduct.

11.11I.             As noted above, the question of whether information about a person’s personal affairs is confidential or not widely known may be relevant to the question of whether it is unreasonable to disclose the information, and the extent of any such disclosure, as it would go to the impact or consequences that would reasonably be expected to occur, would the information to be disclosed. For example, in the case of a public official who has engaged in corrupt conduct to benefit a person with whom the person is in a relationship without that person’s knowledge or involvement, if the other person’s identity is not widely known, it may be unreasonable for the Commissioner or Inspector to disclose their identity—and it may be sufficient for the Commissioner or Inspector to merely disclose the fact of a personal relationship. On the other hand, where the relationship was public and widely known (even if not publicly notorious) it may be reasonable for the Commissioner or Inspector to include the other person’s identity, as the information would be both relevant and salient to the Commissioner or Inspector’s findings.

11.11J.             It may be reasonable for the Commissioner or Inspector to disclose information about a person’s personal affairs that the person has revealed in evidence where the information provides an explanation or context for the person’s conduct, and disclosing the information would protect that person from undue reputational harm. For example, where the Commissioner intends to publish a report containing a finding that an omission or failing by an official enabled corrupt conduct to occur or continue, and an aspect of that official’s personal affairs provides some explanation or context, if not an excuse, for how  that omission or failing occurred, such as a recent bereavement or an ongoing illness that affected the official’s capacity, then it may be reasonable to include some information about that aspect of the person’s personal affairs in the report.

11.11H.            Similar considerations would apply to the question of whether the disclosure of particular confidential commercial information would be ‘unreasonable’, with the exception that the concept is inherently limited to information that is confidential. For example, where confidential commercial information is central to understanding why a person engaged in corrupt conduct, it may be reasonable to disclose that information. It would also not be unreasonable to disclose the fact that a person or business had corruptly obtained a commercial benefit or advantage, even if that information was not previously publicly known and would have significant commercial sensitivity. On the other hand, where the confidential commercial information—such as a trade secret or non-public, market-sensitive information—is of only passing relevance to a matter, it may be unreasonable for the Commissioner or Inspector to disclose details of the information either beyond a general reference as to its existence, or at all.

Clause 228—Confidentiality requirements for entrusted persons

In paragraph 11.31, omit all words after ‘ Criminal Code ).’ and substitute:

It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by clause 229 or 230, because:

•        the reasons why an entrusted person obtained, recorded or disclosed information would be solely and entirely within the knowledge of the entrusted person, and it would not be onerous for the person to adduce or point to evidence that suggests a reasonable possibility of that purpose;

•        it would be onerous for the prosecution to disprove matters peculiarly within the knowledge of a defendant, including the reasons why an entrusted person obtained, recorded or disclosed information and whether the Commissioner or Inspector were satisfied of the appropriateness of a disclosure; and

•        it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the disclosure was authorised—is available to the prosecution.

Clause 234—Public disclosure of protected information reports prohibited

In paragraph 11.103, omit all words after ‘ Criminal Code ).’ and substitute:

It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by subclause 229(4) or clause 230, because:

•        in relation to subclause 229(4), which requires the disclosure to be both required by another law of the Commonwealth, and not inconsistent with an arrangement under clause 239:

˗           the basis on which the person has been required to disclose the information and the reason why the disclosure is consistent with any arrangement under clause 239 is likely to be peculiarly within the knowledge of the person;

˗           it would be an onerous task for the prosecution to prove the absence of a requirement for the person to disclose the information;

˗           requiring the prosecution to disprove the existence of any possible requirement on the person would create a significant risk to successful prosecution and affect the deterrent effect of the offence; and

˗           it would be unlikely that a prosecution would be brought where information indicating the availability of the defence is available to the prosecution; and

•        in relation to clause 230, which allows an authorised discloser to disclose information publicly if they are satisfied it is in the public interest:

˗           whether the authorised discloser was so satisfied is likely to be solely and entirely within their knowledge, as the element turns on the subjective state of mind of the authorised discloser;

˗           it would be an onerous task for the prosecution to disprove that an authorised discloser held the requisite state of mind; and

˗           it would be highly unlikely that a prosecution would be brought where information indicating the availability of the defence—being information indicating that the authorised disclosure was satisfied that the disclosure was in the public interest—was available to the prosecution.

Clause 268—Identity cards

Omit paragraph 12.122 and substitute:

12.122 It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their identity card was lost or destroyed because that information is likely to be solely and entirely within their knowledge.

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

In paragraph 12.127, after ‘in the performance of their duties’ insert ‘— and may therefore improperly and excessively limit or curtail their conduct to protect their personal interests’.

At the end of paragraph 12.127, insert:

In doing so, this clause would reduce the risk that staff members would conduct less thorough searches—such as by avoiding searching inside fragile objects or locked containers—to the detriment of the conduct of effective and professional investigations, to protect their personal interests.

After paragraph 12.128, insert:

12.128A           The immunities would not prevent an affected person from bringing an action to seek a remedy where the Inspector or persons assisting acted in good faith. The immunities are conferred on the individuals, not on the Commonwealth. It would be open to an affected person to seek a remedy from the Commonwealth, but not from a staff member of the NACC or a person assisting where they have acted in good faith.

Clause 276—Delegations

General delegation down to Executive Level 2 staff

At the beginning of paragraph 13.16, insert: ‘Executive Level 2 staff in the Commission would be expected to lead investigation teams or supporting functions, similar to a Superintendent in the Australian Federal Police or a state or territory police force. It is appropriate that the Commissioner be able to delegate certain statutory powers to the senior official leading investigation teams or supporting functions, subject to appropriate conditions and directions.’

In paragraph 13.16, after ‘The jurisdiction of the NACC will’ insert ‘also’.

In paragraph 13.16, after ‘it would be appropriate for the Commissioner to be able to delegate’ omit ‘these functions’ and substitute ‘certain statutory powers (with the exception of the issuing of summonses and the conduct of hearings)’.

Delegation of power to take no action

After paragraph 13.17, insert:

13.17A            The delegation of the decision to take no action would be expected to be accompanied by Guidelines under clause 279 about the kinds of unmeritorious referrals that can be expeditiously dispensed with, and the kinds of referrals that should be elevated for more senior decision making. This could include guidance that, for example referrals that contain no discernible connection with the Commonwealth public sector or corruption of any kind, are nonsensical, are duplicates of a previous referral, or that relate to a matter that a Commissioner or senior delegate has determined should not continue to be escalated (such as continued referrals into a matter that has been fully investigated and that do not contain fresh evidence) can be expeditiously dispensed with by a more junior delegate.

Clause 277—Delegation by heads of Commonwealth agencies

At the end of paragraph 13.26, insert:

The concept of being ‘concerned with the management of an agency’ is inherently limited to senior officials or officers of the agency or Commonwealth company in question, and should be regarded as being comparable to an SES officer.

At the end of paragraph 13.27, insert:

This would enable, for example:

•        a Minister or other parliamentarian to delegate their duty to refer corruption issues to the Commissioner to their Chief of Staff, where the Chief of Staff is responsible for the management of the parliamentarian’s office;

•        an agency head to delegate their duty to refer corruption issues to the SES (or equivalent) officer or officers with responsibility for internal investigations, or SES (or equivalent) officers with responsibility for managing significant programs or contracts on behalf of the agency, to enable the timely referral of suspected serious or systemic corruption to the NACC by requiring those officers to refer such issues, rather than requiring all such issues to be escalated to the agency head; or

•        the Secretary of a department to delegate their duty to refer corruption issues to statutory office holders who head small agencies in their portfolio that are not entities for the purpose of the Public Governance, Performance and Accountability Act 2013 and that are therefore not taken to be separate Commonwealth agencies from the department for the purposes of the NACC Bill, to ensure that those office-holders are required to refer suspected serious or systemic corruption issues to the NACC.

Administrative Decisions (Judicial Review) Act 1977 amendments

In paragraph 14.15, omit ‘Enabling a person to seek review of these intermediate decisions could also cause lengthy delays that could prejudice NACC Act processes.’ and substitute:

‘For example, in the same investigation, a person could seek review under the ADJR Act of each of the Commissioner’s decisions to deal with a corruption issue, commence a preliminary investigation, issue a notice to produce seeking foundational information to inform the Commissioner as to whether and how to further deal with the corruption issue, commence an investigation of the corruption issue, and to hold a hearing. The person could also send the Commissioner correspondence requesting that the Commissioner discontinue the investigation, and then seek review under the ADJR Act of the Commissioner’s decision to continue the investigation. Excluding decisions made under these provisions from the ADJR Act would ensure that well-resourced subjects of investigations cannot use the ADJR Act to fragment, delay and frustrate corruption investigations by seeking review of the Commissioner’s foundational and intermediate decisions on the way to reaching findings.’

At the end of paragraph 14.16, insert:

This would include the ability for a person to seek a writ of mandamus to compel the performance of a statutory duty by the Commissioner, such as the duty contained in clause 153 to provide a person with an opportunity to respond to certain matters before including them in an investigation report. It would also include the ability for a person to seek a writ of prohibition or an injunction to prevent an excess of power or jurisdiction by the Commission, or to restrain unlawful behaviour.