Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Anti-Corruption Commission Bill 2022

1. The NACC Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the NACC Bill

2. Corruption is a key enabler of serious and organised crime, has the capacity to cause significant harm to individuals, society and the economy, and can undermine Australia's national security and the community's confidence in Australia's institutions.

3. The NACC Bill would create a new Commonwealth anti-corruption commission, the NACC. The NACC would be a specialist, centralised investigatory agency that would detect, investigate and report on the most serious or systemic forms of corruption in the Commonwealth public sector.

4. The NACC Bill would establish the office of the Commissioner as the head of the NACC. The Commissioner would have significant powers under the NACC Bill and other legislation. The Commissioner would use these powers to investigate corruption issues, conduct corruption inquiries and assemble evidence to support prosecutions. The Commissioner would also have powers to make recommendations for disciplinary or employment actions.

5. The NACC Bill would strengthen corruption prevention across the Commonwealth government, by enabling the NACC to undertake public inquiries and provide advice on corruption risks and vulnerabilities and strategies to address them.

6. The NACC Bill would ensure appropriate protections are in place to protect the rights and reputations of individuals, and provide robust oversight through the independent Inspector and the Committee, to ensure that the Commissioner is accountable to Parliament.

7. In addition to the key role of the Commissioner, the NACC Bill would establish three Deputy Commissioners to assist the Commissioner in the performance of the Commissioner's functions and any other function conferred on them by the NACC Bill or other legislation.

8. The Commissioner's power to deal with corruption issues will sit within a broader Commonwealth integrity framework and would build on existing anti-corruption arrangements at the Commonwealth level. A number of measures in the NACC Bill would carry over from existing arrangements for ACLEI, as the NACC would subsume ACLEI.

Human rights implications

9. The measures in the NACC Bill engage the following human rights contained in the ICCPR:

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the right to an effective remedy contained in article 2(3);

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the right to liberty and security of person in article 9;

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the right to freedom of movement contained in article 12;

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the right to a fair trial and a fair hearing under article 14(1);

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the right to the presumption of innocence under article 14(2);

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the right to minimum guarantees in criminal proceedings under article 14(3);

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the prohibition on interference with privacy, and right to reputation, under article 17;

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the right to freedom of expression under article 19(2).

10. The NACC Bill may be perceived to also engage the prohibition against retrospective operation of criminal laws in article 15 of the ICCPR.

11. The measures in the NACC Bill also engage the right to the enjoyment of the highest attainable standard of physical and mental health contained in Article 12 of the ICESCR.

12. Many measures in the NACC Bill engage human rights in the same way as those discussed in the Explanatory Memorandum to the Law Enforcement Amendment (Powers) Bill 2015, which included powers relating to ACLEI. As the NACC would subsume ACLEI, many powers and measures, including those relating to hearings, warrants, use and disclosure of information and other operational matters, are similarly reflected in the NACC Bill.

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

13. Article 2(3) of the ICCPR guarantees the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities. The content of the right also includes an obligation to ensure that the competent authorities enforce such remedies when they are granted.

14. This Bill would promote the right to an effective remedy for violations of the rights and freedoms under the ICCPR by ensuring:

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people have access to legal and financial assistance in relation to matters arising under the NACC Bill (clause 280);

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a person who provides information to the NACC for the purposes of this Bill is protected from civil, criminal and administrative liability and reprisal action;

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concurrent investigations can occur; and

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the NACC is subject to oversight.

15. 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.

Legal and financial assistance

16. The NACC Bill would promote the right to an effective remedy by allowing persons to access legal and financial assistance in relation to matters arising under, or in relation to, the NACC Bill (clause 280). This financial assistance could be in relation to a person's representation at a hearing by a legal practitioner, or an application under the ADJR Act (for example, when seeking judicial review of findings made in an investigation report (clause 280)). The statutory enshrinement of legal assistance would promote the right to an effective remedy by ensuring that people who cannot afford to pay their legal costs are not denied an opportunity to access the justice system, as required, to review relevant decisions made under the NACC Bill.

Referrals and protections for disclosers

17. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information. The NACC Bill would promote the right to an effective remedy in relation to article 19(2) by providing a range of protections to persons who provide evidence or information about a corruption issue to the NACC. This would also enhance the effectiveness of the NACC by encouraging people to provide information about corruption issues to the NACC without fear of retribution. Any person who provides information about a corruption issue to the NACC would be afforded immunity from civil, criminal and administrative liability and protection from reprisals or the threat of reprisals (clauses 24 and 30). The NACC Bill would also provide protection from the enforcement of contractual or other remedies against a person due to their NACC disclosure (clause 24).

Concurrent investigations

18. The NACC Bill would protect the right to an effective remedy by ensuring that corruption issues can be promptly addressed by either the agency in which it occurred or the NACC. Agencies would be able to continue investigating corruption issues, and taking appropriate action, while the NACC conducts its own investigation into the issue (unless the Commissioner issues a stop action direction under clause 43). This would ensure that a corruption issue could be addressed internally by an agency, notwithstanding that the NACC may be conducting its own parallel investigation into the issue.

19. The ability for the Commissioner to issue a stop action direction to an agency would only be available if it is required to ensure the effectiveness of any action the Commissioner has taken in relation to the corruption issue and to prevent an agency's investigation causing inadvertent prejudice to NACC Bill processes. An agency would also be able to seek the permission of the Commissioner to undertake actions in relation to a corruption issue following a stop action direction (clause 43). In the context of the PID Act, this would mean that PID and NACC Act investigative processes would be able to run concurrently, unless a stop action direction is issued.

Oversight of the NACC

20. The NACC Bill would protect the right to an effective remedy by ensuring that the NACC would be overseen by a Parliamentary Joint Committee and an independent Inspector. The oversight arrangements in Part 10 of the NACC Bill would provide assurance that the NACC is performing its functions fairly, effectively, appropriately and independently, and would allow for recommendations to be made to rectify findings of corrupt conduct within the NACC.

21. The Inspector would have the ability to investigate complaints, make findings about the conduct of the NACC or its staff and make recommendations to remedy the findings. Any person would be able to refer a NACC corruption issue to the Inspector (clause 202). The Consequential Bill would ensure that the PID Act would also apply for the purpose of making PIDs to the Inspector relating to the NACC (clause 204), meaning protections and remedies provided for disclosers under that Act would also apply to disclosures of NACC corruption issues.

22. These oversight mechanisms would operate in addition to the Commonwealth Ombudsman's oversight of the use of particular coercive powers by the NACC (further details on the oversight of these powers is outlined in the Statement of Compatibility for the Consequential Bill). After the Inspector has conducted an investigation, they would be required to prepare an investigation report setting out their opinion or findings, supporting evidence, and recommendations on how to rectify any opinion or finding of corrupt conduct (clause 215). This oversight role of the Inspector would, therefore, protect the right to an effective remedy.

Immunity from liability for certain persons

23. 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).

24. 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.

25. 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 liberty and security of person contained in article 9 of the ICCPR

26. Article 9(1) of the ICCPR provides that everyone has the right to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention. The UN Human Rights Committee has stated that 'arbitrariness' is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. Arbitrariness may result from a law which is vague or allows for the exercise of powers in broad circumstances that are not sufficiently defined.

27. The NACC Bill would limit the right to liberty and security under Article 9(1) of the ICCPR. This is because it would provide that the Commissioner or the Inspector may:

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arrest a person in relation to their failure to attend a hearing for a corruption investigation (clauses 90 (corruption investigation) and 214 (NACC corruption investigation)), and

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detain a person for the purposes of a contempt in relation to both investigations and inquiries (clauses 85 (corruption investigation), 163 (public inquiries) and 214 (NACC corruption investigation)).

28. Limitations on the right to liberty are permitted to the extent that they are 'in accordance with such procedures as are established by law', provided that the law and the enforcement of it is not arbitrary, and where they are reasonable, necessary and proportionate to achieve a legitimate objective.

Rational connection to a legitimate objective

29. Both the power to arrest and the power to detain limit the right to liberty and security in order to achieve the legitimate objectives of detecting and investigating serious or systemic corrupt conduct-which in turn are necessary to achieve the legitimate objectives of preventing and addressing such conduct, including where appropriate by enabling persons to be prosecuted for serious, criminal corrupt conduct. More specifically, these powers are critical aspects of the Commissioner's and Inspector's ability to effectively conduct a hearing in connection with a corruption investigation and, in relation to the power to detain, a public inquiry.

30. Conducting hearings would be a key power available to the Commissioner and Inspector. Hearing powers would enable the Commissioner and Inspector to obtain information that would not otherwise be available-including information uniquely within the knowledge of the person being questioned-or could only be obtained after long and complex investigations. Material gathered in hearings would play a key role in furthering investigations of serious or systemic corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

31. The power to arrest afforded to the Commissioner and the Inspector is directed to ensure a person attends a hearing in accordance with a summons. The power to arrest a witness where a superior court judge is satisfied that there are reasonable grounds for believing that the witness has failed to attend a hearing, or is likely to attempt to do so-including by leaving Australia, or by absconding or otherwise attempting to evade the service of a summons-for the purpose of bringing them before a superior court with powers to make orders to ensure the witness's appearance at the hearing, is likely to ensure their attendance at the relevant hearing.

32. The power to detain is directed towards bringing a person before a court to be dealt with in relation to an application for contempt. This is important because relying on criminal proceedings alone may mean investigations or inquiries are compromised by the delay in the commencement of court proceedings. Contempt provisions motivate an uncooperative witness to comply with the requirements of a hearing, as the witness is immediately subject to the possibility of being taken into custody before a superior court. The capacity to detain a person in relation to whom the Commissioner or Inspector proposes to make a contempt application will ensure that person attends the court for the hearing of the contempt application, and is likely to ensure that the person complies with any direction given during a hearing.

Not arbitrary; reasonable, necessary and proportionate

The power to arrest with warrant

33. The NACC Bill places appropriate limitations on the power to arrest, to ensure that this power is not arbitrary, and is reasonable, necessary and proportionate. The power to arrest would only be able to be exercised in circumstances where the Commissioner or Inspector is of the opinion that the issue could involve corrupt conduct that is serious or systemic (clauses 55 (corruption investigation), 210 (NACC corruption investigation)), and a warrant has been issued by a superior court judge. An authorised officer may only apply to a superior court judge for a warrant to arrest a person in limited circumstances. An application may only be made where:

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the person has been ordered to deliver a travel document to the Commissioner or Inspector and the authorised officer has reasonable grounds to believe that the person is likely to leave Australia for the purpose of avoiding giving evidence at a hearing;

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the person is to be served with a summons and the authorised officer has reasonable grounds to believe that the person has absconded or is likely to abscond, or is otherwise attempting, or likely to attempt, to evade service of the summons; or

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the authorised officer has reasonable grounds to believe that the person has committed an offence of failure to attend a hearing, or is likely to do so.

34. The requirement for a warrant ensures that the NACC is required to obtain independent authorisation from a judge to exercise this power. The judge may only issue the warrant if satisfied, on the evidence, that there are reasonable grounds for believing that one of the circumstances outlined above applies. These criteria establish a threshold that would ensure the power to arrest is not arbitrary and only exercised where it may be justified on a reasonable basis, and in circumstances where the exercise of the power is necessary to ensure the Commissioner or Inspector is able to ensure attendance at a hearing.

35. A warrant to arrest a witness would be executed by an authorised officer of the NACC (defined in clause 7 to mean the Commissioner, a Deputy Commissioner or a person appointed under clause 267). Clause 267 seeks to ensure that authorised officers possess skills and experience that reflect the significant and coercive nature of their powers under the NACC Bill. It would only allow the Commissioner to appoint a person to be an authorised officer if the person is:

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a staff member of the NACC who the Commissioner considers has suitable qualifications or experience;

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a staff member of the NACC who is also a member of the AFP;

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a staff member of the NACC who is also a member of the police force or police service of a State or Territory; or

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a member of the AFP.

36. Authorised officers who are members of the AFP or a State or Territory police force would be constables. In executing a warrant, an authorised officer who is not a constable would have the same powers and duties as a constable has in arresting a person under Divisions 4 and 5 of Part IAA of the Crimes Act 1914. This would apply a range of safeguards, specifically:

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force used to enter premises must be limited to that which is necessary and reasonable in the circumstances (section 3ZB);

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premises must not be entered between 9pm and 6am for the purposes of an arrest (section 3ZB);

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the officer must not in the course of arresting another person for an offence, use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the person after the arrest (section 3ZC);

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the officer must inform the person of the reason for the arrest (section 3ZD);

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an ordinary or frisk search must, if practicable, be conducted by a person of the same sex as the person being searched (section 3ZR); and

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authorised officers must generally announce that they are authorised to enter premises and give the person at the premises the opportunity to allow entry before entering warrant premises (section 3ZS).

37. Following arrest, further statutory limits ensure a person is not detained arbitrarily and only deprived of their liberty to the extent that is reasonable, necessary and proportionate to the objective of conducting a hearing. Clause 92 would require a person arrested to be brought as soon as practicable before a superior court judge to make appropriate orders, which may include release or bail. Where a judge orders that a person should continue to be detained for the purposes of ensuring their appearance at a hearing, the legislation would ensure the person is brought back before the judge within 14 days, or a time affixed by the judge. This would ensure that a person is not held in arbitrary or indefinite detention due to a failure to act on the part of the NACC. The conduct of the Commission in applying for and executing arrest warrants would also be subject to review by the Inspector.

The power to detain

38. The Commissioner or Inspector may only direct that a person be detained (clause 85):

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where they propose to make an application to a court for that person to be dealt with for contempt of the NACC or the Inspector; and

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for the purpose of bringing the person before the court for the hearing of the application.

39. Clause 82 would set out the circumstances in which a person would be in contempt. These circumstances would include where the person:

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having been summonsed to attend a hearing:

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fails to attend as required by the summons;

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fails to appear and report from day to day unless excused or released from further attendance by the Commissioner;

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refuses or fails to take an oath or make an affirmation at the hearing;

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refuses or fails to answer a question at the hearing that the Commissioner requires the person to answer; or

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refuses or fails to give information or produce a document or thing, at a hearing as required (whether by a summons or by the Commissioner under clause 65); or

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is a legal practitioner who refuses, at a hearing, to give the Commissioner the name and address of a person in accordance with clause 115;

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gives evidence or information, or produces a document, at a hearing (whether required by a summons or by the Commissioner under clause 65) that the person knows is false or misleading in a material particular;

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insults, disturbs or uses insulting language towards someone who the person knows is a NACC Commissioner and who is holding a hearing in the performance of the NACC Commissioner's functions, or the exercise of the NACC Commissioner's powers;

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obstructs or hinders a staff member of the NACC in the performance or exercise of the staff member's functions, powers or duties in connection with a hearing;

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disrupts a hearing; or

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threatens a person present at a hearing.

40. The nature of contempt, in this context, is focused on conduct that would prevent, hinder or disrupt the effective conduct of a hearing. The Commissioner or Inspector would only be permitted to direct that a person be detained where the Commissioner or Inspector propose to make an application to a court for that person to be dealt with for contempt. This would require the Commissioner or Inspector to turn their mind to the application for contempt before exercising the power to detain, which would limit the use of the power to circumstances in which a person is preventing, hindering or disrupting the effective conduct of a hearing in one or more of the ways set out in clause 82. This threshold ensures the power to detain is only exercised in circumstances where it is reasonable and necessary to ensure the effective conduct of a hearing.

41. Furthermore, the Commissioner would be required to apply and bring the person before the court as soon as practicable, so that appropriate orders may be made. This would ensure the NACC's power to detain is proportionate to the objective of conducting a hearing, subject to scrutiny by a court immediately following its use. It would also prevent the possibility of arbitrary or indefinite detention. The NACC Bill will explicitly permit the court to make orders for the person's continued detention, but only until the application for contempt is determined. The court may also grant the person's release on conditional terms, including the surrender of travel documents. In effect, this would ensure the court turns its mind to whether there is a less restrictive alternative to detention that could achieve the stated objective of ensuring that a person is dealt with appropriately.

42. Where the Commissioner withdraws a contempt application, and a person is detained, the legislation would require the person be released immediately (clause 86). This affirms the rational connection between the exercise of the power and its legitimate objective, and ensures the power is not arbitrary and only exercised where necessary and proportionate to achieving that objective.

The right to freedom of movement contained in article 12 of the ICCPR

43. Articles 12 and 13 of the ICCPR protect the right to freedom of movement. They provide that anyone lawfully in a State shall have the right to liberty of movement and that everyone shall be free to leave any country, including their own and enter any country of which they are a citizen. Governments have a duty to ensure that a person's freedom of movement is not unduly restricted.

44. The NACC Bill would limit the right to freedom of movement under article 12(2) of the ICCPR. This is because it would provide that the Commissioner or the Inspector may:

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summon a person to attend a hearing to give evidence, information, documents and things (clauses 63 (corruption investigations), 163 (public inquiries) and 214 (NACC corruption issue investigations by Inspector)); and

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make an application to a court to have a person surrender an Australian travel document or any other passport or travel document that has been issued by another government (clauses 88 (corruption investigations) and 214 (NACC corruption issue investigations by Inspector)).

45. Article 12(3) provides that the right to freedom of movement may be limited where the limitation is for a legitimate objective, is lawful, and is necessary to protect national security, public order, public health or morals, or the rights and freedom of others.

Summoning a person to attend a hearing

Rational connection to a legitimate objective

46. The ability for the Commissioner and Inspector to summon a person to a hearing at a particular time and place would serve the legitimate objectives of:

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facilitating the investigation of a corruption issue or a NACC corruption issue that could involve corrupt conduct that is serious or systemic;

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facilitating the investigation of a complaint about the NACC; and

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facilitating the inquiry into corruption risks and vulnerabilities in Commonwealth agencies and measures to prevent corruption in Commonwealth agencies.

47. Hearings would be a key power available to the Commissioner and Inspector. Hearing powers would enable the Commissioner and Inspector to obtain information that would not otherwise be available-including information uniquely within the knowledge of the person being questioned-or could only be obtained after long and complex investigations. Material gathered in hearings would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

48. Limiting a witness's freedom of movement by requiring them to attend a hearing at a particular time and place to give evidence would ensure the Commissioner or Inspector can obtain material relevant to a corruption investigation or an investigation by the Inspector, or to corruption risks and vulnerabilities in Commonwealth agencies and measures to prevent corruption in Commonwealth agencies, while an investigation or inquiry is underway and at a time when it will be useful to that investigation or inquiry. A summons would be likely to be effective in ensuring attendance as failing to comply will constitute an offence that carries a maximum penalty of two years imprisonment.

Reasonable, necessary and proportionate

49. Limitations on a person's freedom of movement in appropriate circumstances are necessary to ensure the effectiveness of an investigation or public inquiry. The power to require a person to attend a hearing would be proportionate and subject to reasonable limitations and safeguards.

50. The Commissioner or Inspector may only summon a person to attend a hearing if they have reasonable grounds to suspect that the person has evidence relevant to a corruption investigation, a NACC corruption investigation or a public inquiry. Where post-charge and post-confiscation application summonses are available (for corruption investigations and NACC corruption investigations), an additional threshold applies to the issue of such summonses. The Commissioner or Inspector must also have reasonable grounds to suspect that the evidence is necessary for the purposes of the investigation even though the person has been charged or the confiscation proceeding has commenced, or that charge or proceeding is imminent.

51. The power to summon a person to attend a hearing at a particular time and place is reasonable, necessary and proportionate to ensure that hearings can be conducted in an efficient and effective manner-or at all. Conducting a hearing would be a substantial undertaking, requiring:

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significant planning and preparation, including by the Commissioner or Inspector, and counsel assisting;

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complex logistical and security arrangements, to ensure an appropriate hearing room is available for the duration of the planned hearing, relevant investigators, subject-matter experts and support staff are in attendance, and that physical security arrangements are in place; and

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coordination with external parties, including ensuring the availability of the witness's legal representative, and any third party or legal representative approved to attend the hearing.

52. The power to summon a person to attend a hearing at a particular time and place would enable the Commissioner or Inspector to begin planning and preparations for a hearing, from the foundation of a fixed time and place for that hearing to be conducted. The Commissioner or Inspector may only require the production of information, documents and things under a summons if also requiring the person to give evidence. Information, documents and things would otherwise be required under a notice to produce, which would not limit the person's freedom of movement.

53. A person would be excused from, or released from further attendance at, a hearing once the Commissioner or Inspector is satisfied they have provided all relevant evidence.

Requiring a person to deliver travel documents

Rational connection to a legitimate objective

54. The ability for the Commissioner and Inspector to apply to a Judge of the Federal Court for an order that a person deliver a travel document would serve the legitimate objective of ensuring the person's attendance at a hearing into a corruption issue or NACC corruption issue that could involve corrupt conduct that is serious or systemic. Limiting a person's movement in this way is likely to achieve the objective of ensuring they do not leave Australia in order to avoid giving evidence, as such documents are required for international travel.

55. Hearings would be a key power available to the Commissioner and Inspector. Hearing powers would enable the Commissioner and Inspector to obtain information that would not otherwise be available-including information that is uniquely within the knowledge of the person being questioned-or could only be obtained after long and complex investigations. Material gathered in hearings would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

Reasonable, necessary and proportionate

56. Limitations on a person's freedom of movement would only occur in appropriate circumstances, where it is necessary for the effective investigation into a corruption issue or NACC corruption issue that could involve corrupt conduct that is serious or systemic. The power to require travel documents to be held by the Commissioner or Inspector would be subject to safeguards and reasonable limitations.

57. The Commissioner or Inspector may only apply for an order that a person deliver a travel document in limited circumstances. An application may only be made where:

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a summons has been issued requiring the person to attend a hearing, or the person has appeared at a hearing to give evidence or to produce documents or things;

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there are reasonable grounds to believe that the person may be able to give evidence, or further evidence, that is relevant to the corruption investigation concerned, or to produce documents or things, or further documents or things, that are relevant to the investigation concerned; and

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there are reasonable grounds to suspect that the person has a travel document and intends to leave Australia.

58. If a Judge of the Federal Court is satisfied that the above thresholds are met, they may require the person to attend court and request the person to show cause why the person should not be ordered to deliver the travel document to the Commissioner or Inspector. This will provide the person an opportunity to argue against such an order being made.

59. The Court may, if it thinks fit, order that a person deliver a travel document to the Commissioner or Inspector and authorise the Commissioner or Inspector to retain it. Retention will only be permitted for a limited period of up to one month, extendable by the Court by up to one month at a time to a maximum of three months.

60. The person may apply to the Federal Court for an order authorising the Commissioner or Inspector to retain a travel document to be revoked. If the Federal Court revokes the order, the Commissioner must return the travel document to the person immediately.

The right to a fair trial contained in article 14(1) of the ICCPR

61. Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, and public hearing in civil proceedings. It provides that all persons shall be equal before the courts and tribunals, and, in the determination of criminal charges, or any suit at law, the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

62. The NACC Bill would limit the right to a fair trial under article 14(1) of the ICCPR by:

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abrogating legal professional privilege when a person is giving an answer or information, or producing a document or thing, under a notice to produce or at a hearing (clause 114);

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providing for post-charge and post-confiscation application notices to produce (clause 58) and summons (clause 63); and

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allowing post-charge investigation material and post-charge derivative material to be disclosed (clause 105).

63. The NACC Bill would promote and protect the right to a fair trial by ensuring people have access to legal and financial assistance in relation to matters arising under the NACC Bill.

Abrogating legal professional privilege

64. Legal professional privilege ensures the confidential nature of the communication between lawyers and their clients and therefore the quality of advice and representation the client receives at trial. Clause 114 would abrogate legal professional privilege in relation to evidence given at a hearing, or material provided in response to a notice to produce under clause 99 (see paragraphs 7.288 to 7.294). The privilege would be abrogated for any person, including a Commonwealth agency or a company. This would limit the right to a fair trial.

65. However, the abrogation of legal professional privilege would not apply to advice or a communication relating to a person's compliance with a notice to produce or attendance (or anticipated attendance) at a hearing (subclause 114(2)). It would also not apply in relation to a communication made for the purposes of, or in the course of, a person's work as a journalist in a professional capacity (subclause 114(3) and subclause 114(4)).

Rational connection to a legitimate objective

66. The abrogation of legal professional privilege in certain contexts, as outlined above and contained in the NACC Bill, would serve the legitimate objective of facilitating the prevention and investigation of corrupt conduct.

67. Abrogating legal professional privilege would allow the Commissioner and the Inspector to have access to information that would otherwise be required to be kept confidential. This would enable the Commissioner or the Inspector, as the case may be, to obtain information that could be highly relevant to:

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an investigation into a corruption issue (clause 41) or a NACC corruption issue (clause 214);

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a public inquiry (clause 161); or

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an investigation into a complaint about the NACC (clause 214).

68. Material gathered through the abrogation of legal professional privilege would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order. These measures would also ensure that individuals could not use legal professional privilege to frustrate the Commissioner or the Inspector's ability to conduct thorough and effective investigations or inquiries for the purposes of the NACC Bill.

Reasonable, necessary and proportionate

69. The measures in the NACC Bill that abrogate legal professional privilege in certain contexts are reasonable, necessary and proportionate to achieve the legitimate objective of facilitating the effective investigation of corruption issues and NACC corruption issues, conducting a public inquiry, or an investigation into a complaint made about the NACC.

70. Legal professional privilege is only abrogated where necessary and in certain limited contexts, in particular for evidence provided at a hearing or pursuant to a notice to produce. If legal professional privilege was not abrogated in these contexts, people engaging in serious or systemic corrupt conduct would be able to prevent the NACC from accessing information that would otherwise enable an investigation or inquiry under the NACC Bill to progress. This could impede the Commissioner or the Inspector's ability to properly investigate allegations of serious or systemic corruption, which could hamper the public's confidence in the ability for the NACC and the NACC's oversight mechanisms to function effectively. For example, the Commissioner may undertake investigations into serious or systemic corrupt conduct relating to procurement or contract management processes. In these situations, there would likely be legal advice relating to contractual issues that would be relevant to the corruption issue. In such circumstances, having access to this legal advice would assist the Commissioner to understand the factors and risks considered by decision-makers.

71. The abrogation of legal professional privilege is subject to a number of limitations and safeguards in the NACC Bill, which would ensure that any limitation on the right to a fair trial would be reasonable and proportionate. For example, evidence given at a hearing that would otherwise be subject to legal professional privilege would be required to be given in private (clause 74). Despite a person being required to provide the evidence at a hearing, or comply with the notice to produce, the person would still be able to claim legal professional privilege over the information at a later time in criminal or civil proceedings (subclause 114(5)).

72. The abrogation of legal professional privilege would also not apply to advice or a communication relating to a person's compliance with a notice to produce or attendance (or anticipated attendance) at a hearing (subclause 114(2)). This is appropriate as such advice would relate to compliance with the notice or summons and not the substantial corruption issue. This limit ensures that legal professional privilege is only limited to the extent necessary to achieve the legitimate objective of facilitating the prevention and investigation of corrupt conduct.

73. In addition, legal professional privilege would not be abrogated in relation to communications made for the purposes of, or in the course of, a person's work as a journalist in a professional capacity (subclause 114(3) and subclause 114(4)). This exception upholds the value of a free press by recognising the importance of safeguarding the independence of journalists and protecting their sources. Given the limited circumstances in which this right is engaged, and the fact that a person can still claim legal professional privilege over material at a later time in criminal or civil proceedings, any effect on the right to a fair trial would be reasonable, necessary and proportionate.

Post-charge and post-confiscation application notices to produce and summons

74. When conducting an investigation into a corruption issue or a NACC corruption issue, the Commissioner or the Inspector would have the power to issue a summons to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (post-charge or post-confiscation application summonses, in clause 63). This measure would limit the right to a fair trial as it would prevent a person from refusing to answer questions in a hearing on the grounds that the answer may incriminate them (this is discussed further in relation to the right to minimum guarantees in criminal proceedings).

75. The Commissioner or the Inspector would also be able to issue a notice to produce to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (post-charge or post-confiscation application proceedings, in clause 58). The material, evidence, information, documents or things given or produced by a person at a hearing or in response to a notice would be investigation material under clause 99 (see paragraphs 7.288 to 7.294). This measure would limit the right to a fair trial as it would prevent a person from refusing to provide investigation material where that material may incriminate them (this is also discussed further in relation to the right to minimum guarantees in criminal proceedings).

76. In particular, where a hearing occurs or a notice to produce is issued after the person has been charged with an offence (or such a charge is imminent), the answers given or the investigation material produced in that hearing may affect the person's subsequent trial, particularly if the investigation material is provided to the relevant prosecution pursuant to clause 105, which provides for the disclosure of post-charge investigation material and post-charge derivative material. The requirement to comply with post-charge or post confiscation summonses or applications may require the person to provide a version of events that limits their choices in how to defend charges at trial.

77. Subclause 106(4) would provide that a person's trial for an offence is not unfair merely because the person has been a witness after being charged with the offence or after such charge was imminent.

Rational connection to a legitimate objective

78. Authorising the Commissioner or the Inspector to issue a notice to produce or a summons to a person charged with an offence, or facing confiscation proceedings, would mean that the Commissioner or the Inspector, as the case may be, would not be required to wait until the charges or proceedings were resolved before obtaining highly relevant information for the purposes of investigating a corruption issue or a NACC corruption issue. Preventing delay in the conduct of corruption investigations and NACC corruption investigations would serve the legitimate objective of facilitating the timely investigation of corruption issues and NACC corruption issues.

Reasonable, necessary and proportionate

79. Limitations on the right to a fair trial are reasonable, necessary and proportionate to achieve the legitimate aim of facilitating the effective investigation of corruption issues and NACC corruption issues, and the NACC Bill contains a number of safeguards and protections.

80. Corruption is a key enabler of criminal offences, including serious and organised crimes that attract some of the most serious penalties, such as drug trafficking and the importation of firearms. It is therefore likely that, in some situations, the conduct that the Commissioner would investigate under the NACC Bill (serious or systemic corrupt conduct) would also constitute conduct that forms the basis of a charge for an offence. If the Commissioner or the Inspector were required to wait for the charges or proceedings to be resolved, potentially highly relevant evidence could be lost or investigations delayed significantly. To ensure that the NACC could undertake timely investigations, it is critical that it can receive evidence that may relate to such a charge prior to its resolution. To that end, the measures contained in the NACC Bill which authorise post-charge and post-confiscation application notices to produce and summons would be necessary to achieve the aim of the NACC Bill to facilitate the investigation and prevention of corruption.

81. These measures are reasonable as they would allow the Commissioner and the Inspector to conduct effective investigations into corruption issues and NACC corruption issues that may involve corrupt conduct that is serious or systemic. Without the ability to issue a post-charge or post-confiscation application notice to produce or summons, the Commissioner or the Inspector would have to obtain information or question a witness either before they are charged (which may alert them to law enforcement interest in their activities), or wait until all charges against the witness have been resolved, undermining the effective and timely investigation of corruption issues and NACC corruption issues.

82. These measures are proportionate, as a post-charge or post-confiscation application notice to produce or summons could only be issued if the Commissioner or the Inspector had reasonable grounds to suspect the investigation material was necessary for the purposes of the investigation despite the person having been charged, the confiscation proceeding having commenced, or the charge or proceeding being imminent (see subclauses 58(4) and 63(3)).

83. This is a higher threshold than the test for an ordinary notice to produce or summons, which requires that the Commissioner or Inspector has reasonable grounds to suspect that a person has information, or a document or thing, relevant to a corruption investigation. This provides assurance that the Commissioner and the Inspector would be exercising their powers for a proper purpose and that, in deciding to issue the notice or summons, the Commissioner or the Inspector has paid due regard to the fact that the person has been charged with an offence or is the subject of confiscation proceedings. This ensures that material obtained by a notice to produce or at a hearing is intended to serve the purpose of a corruption investigation or a NACC corruption investigation, and not to bolster the prosecution of a witness to whom the notice or summons was issued.

84. The NACC Bill would contain safeguards to mitigate the prejudice that any post-charge or post-confiscation application notice to produce or hearing may cause to a witness's right to a fair trial. These would include:

•

the obligation on the Commissioner or the Inspector to include a non-disclosure notation in a notice to produce or a private hearing summons if they are satisfied that not doing so would reasonably be expected to prejudice a person's fair trial, if the person has been charged with an offence or such a charge is imminent (subclause 96(1));

•

limits on the disclosure of investigation material to a prosecutor of a person post-charge (clause 105) - specifically, such investigation material could only be disclosed to a prosecutor with a court order, where the court is satisfied that it is in the interests of justice to do so (subclause 106(1));

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the restrictions on the disclosure of sensitive information, including that evidence at a hearing must be given in private if it would disclose sensitive information (paragraph 74(b)(iii)), and the definition of sensitive information includes 'information that would prejudice the fair trial of any person or the impartial adjudication of any matter';

•

the obligation on the Commissioner or the Inspector, as the case may be, to give a direction about the use and disclosure of material obtained during an investigation, if they are satisfied that failure to give such a direction would reasonably be expected to prejudice a witness's fair trial, if the witness has been charged with a relevant offence or such a charge is imminent (clause 77); and

•

inclusion of an offence where a staff member of the NACC, the Inspector or a person assisting the Inspector discloses information received in the course of performing their duties that they are not otherwise authorised to disclose (see clause 228).

Disclosure of post-charge investigation material and post-charge derivative material

85. The NACC Bill would authorise the disclosure of investigation material and derivative material (including material obtained directly or indirectly from investigation material, see clause 133) to a prosecutor of the witness who provided the investigation material, and its use in evidence against that person (subject to the rules of evidence and procedure) (see clause 105). This provision would limit the right to a fair trial as it may impact on the principle of 'equality of arms', which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings. The disclosure and use of derivative material in this way may limit the options of a person in their defence at trial.

Rational connection to a legitimate objective

86. The measures in the NACC Bill that would authorise the disclosure and use of investigation material and derivative material are necessary to achieve the legitimate objective of facilitating the investigation and prosecution of criminal offences. The measures would support this objective by ensuring that material obtained through the NACC's investigations can be used to disrupt and prevent serious harm to the community, including by prosecuting persons who have been witnesses and who may have also engaged in criminal conduct.

87. The effective prosecution of people who have been subject to NACC's investigations, or witnesses in NACC investigations is crucial to enabling the NACC to fulfil its statutory functions and ensure public confidence in its effectiveness. The measures would ensure that prosecutors of witnesses in NACC investigations are given access to all the necessary information to conduct an effective criminal trial. Similarly, the disclosure of these materials to an agency like the AFP would assist in the investigation and prosecution of criminal offences. Without the use of these materials, the success of these investigations and prosecutions would be significantly hindered.

Reasonable, necessary and proportionate

88. These measures are reasonable, necessary and proportionate to achieve the legitimate objective of facilitating the investigation and prosecution of criminal offences. Without all relevant information, an investigating or prosecuting agency may not be able to perform their functions as effectively, thus inhibiting the enforcement of the criminal law. The disclosure and use of this material would be subject to a number of limitations in the NACC Bill, which would ensure that any limitation of the right to a fair trial would be proportionate.

89. The material referred to would only be able to be disclosed to a prosecutor of the witness pursuant to a court order (clause 105). Under clause 106, a court would be able to order disclosure of the investigative or derivative material to the prosecutor of a witness, if it was satisfied that disclosure was in the interests of justice, and despite any direction under clause 100. The court could specify who could receive the material, and would be able to place limits on the use of the material. A court order would also be required for the post-charge disclosure of pre-charge investigation material (not derivative material) to the prosecutor of the witness (clause 105). This safeguard reflects the fact that a witness during a corruption investigation or a NACC corruption investigation would not be able to rely on the privilege against self-incrimination to refuse to answer questions or produce documents or things during a hearing, or in compliance with a notice to produce (clause 113).

90. Any disclosure of this material to persons other than a prosecutor of a witness, would be subject to any direction imposed by the Commissioner or the Inspector under clause 100. This would give the Commissioner and the Inspector the discretion to specify who the information could be disclosed to, who the information could be used by, and on what conditions. The Commissioner or the Inspector could not vary a direction under clause 100 if a witness is charged with a relevant offence, or such a charge was imminent, and they were satisfied that the variation or revocation would reasonably be expected to prejudice the witness's fair trial.

91. As a further general safeguard against disclosure of derivative material, a staff member of the NACC, the Inspector or a person assisting the Inspector would commit an offence if they disclose information received in the course of their duties that they are not otherwise authorised to disclose (see clause 228).

Legal and financial assistance

92. The NACC Bill would promote the right to a fair trial by allowing persons to access legal and financial assistance in relation to matters arising under, or in relation to, the NACC Bill (clause 280). This financial assistance could be in relation to a person's representation at a hearing by a legal practitioner, an application under the ADJR Act, or any other matter arising under, or in relation to, the NACC Bill. The statutory enshrinement of legal assistance would promote the right to a fair trial as it would ensure that people who cannot afford to pay their legal costs are not denied an opportunity to access fair representation at a hearing or denied an opportunity to review a decision made under the NACC Bill.

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

93. Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

94. The NACC Bill would limit the right to the presumption of innocence under article 14(2) of the ICCPR. This is because it would:

•

place a reversed evidential burden on defendants with respect to certain offences; and

•

impose strict liability for certain offences.

95. Limitations on the right to be presumed innocent must be reasonable, necessary and proportionate to achieve a legitimate objective.

Offences containing a reversed evidential burden

96. Offences that contain a 'reversed evidential burden' in the NACC Bill may amount to a limitation on the right to be presumed innocent. This includes provisions where an evidential burden is created by expressing a matter to be a defence or exception to an offence or providing that the defendant must prove the matter. Reversing the evidential burden in this way may limit article 14(2), as a defendant's failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt. However, under international human rights law, a 'reversed evidential burden' will not necessarily limit the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification.

97. The following offences in the NACC Bill contain exemptions that reverse the evidential burden requiring the defendant to prove it was not reasonably practicable to comply with a request to provide information, documents or things, or to provide them within a specified timeframe.

98. The Commissioner or Inspector may require a person to give material relevant to an investigation to the Commissioner or Inspector (clause 58). Clause 60 creates an offence for failing to comply with a notice to produce issued by the Commissioner (or Inspector as applied by clause 214) within the time specified. An exception exists if it was not reasonably practicable to comply within the time specified, for which the defendant bears the evidential burden.

99. The Commissioner or Inspector may require a witness to produce material relevant to an investigation at a hearing (clause 65 and 214). Clause 69 creates an offence for failing to produce this material. An exception exists if it was not reasonably practicable for the person to give the information or produce the document or thing, for which the defendant would bear the evidential burden.

100. The following offences in the NACC Bill also contain exemptions that reverse the evidential burden, requiring a defendant to prove that information alleged to be false or misleading is not false or misleading in a material particular.

•

Clause 61 creates an offence for providing false or misleading information, or omitting a matter or thing without which the information given is false or misleading, in response to a notice to produce issued under clause 58. An exception to the offence exists if the information or document was not false or misleading in a material particular, for which the defendant would bear the evidential burden; and

•

Clause 71, creates an offence for giving false or misleading evidence, information or documents at a hearing when required by the Commissioner or Inspector to give information or documents at a hearing under clause 65. An exception exists if the evidence, information or documents were not false or misleading in a material particular, for which the defendant would bear the evidential burden.

101. The following offences in the NACC Bill would require a defendant to prove that they recorded or disclosed protected information under certain specified circumstances.

•

Clause 98 would establish an offence for disclosing information in contravention of a non-disclosure notation attached to a notice to produce issued by the Commissioner or Inspector under clause 58, or a summons to attend a private hearing issued under clause 63. An exception to the offence would apply if the defendant could prove that:

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the disclosure was made in the circumstances, if any, permitted by the notation;

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to a legal practitioner for the purposes of obtaining legal advice or representation in relation to the notice or summons;

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to a legal aid officer for the purpose of seeking assistance in relation to the notice, summons or another matter arising under the NACC Bill;

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to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling);

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if the person is a body corporate - to an officer or agent for the purpose of ensuring compliance with the notice or summons;

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if the person is a legal practitioner - for the purpose of obtaining the agreement of another person to the legal practitioner disclosing advice or communication, or to give legal advice to or make representations on behalf of, the person on whom the notice or summons was served; or

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after the information had already been lawfully published.

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Clause 101 would establish an offence of the using or disclosing investigation material in contravention of a direction under clause 100, where the use or disclosure was not authorised by or under the NACC Bill. An exception to the offence would apply if the defendant could prove that the disclosure was made by a witness:

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to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the corruption investigation to which the investigation material relates;

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to a legal aid officer for the purpose of seeking assistance in relation to the investigation; or

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to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

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Where the use or disclosure of investigation material is by a legal practitioner, an exception to the offence under clause 101 would apply if the defendant could prove that the use or disclosure was for the purpose of:

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obtaining the agreement of a person to the legal practitioner disclosing advice or a communication; or

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giving legal advice to, or making representations on behalf of, the witness.

•

Clause 228 would establish an offence for the Commissioner, NACC staff members, the Inspector, and persons assisting the Inspector (authorised officer) to make a record of, or disclose, any information obtained in the course of being an entrusted person or in the course of performing their duties under the NACC Bill. An exception would exist if the defendant could prove that they were permitted or authorised to disclose or record the information under clauses 229 and 230.

•

Clause 234 would establish an offence for disclosing the whole or part of a protected information report. An exception would exist if the defendant could prove that the disclosure was authorised under clauses 229 and 230.

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Under clause 268, a defendant who is a former authorised officer would bear the burden of proving their identity card had in fact been lost or destroyed. This defence would apply to the offence for a person who ceases to be an authorised officer to fail to return their identity card to the Commissioner or Inspector within 14 days after ceasing to be an authorised officer.

Rational connection to a legitimate objective

102. The reversed evidential burden provisions requiring the defendant to prove it was not reasonably practicable for them to comply with a request to produce a document or thing (in clauses 60 and 69) and to prove information was not false or misleading in a material particular (in clauses 61 and 71), serve the legitimate objectives of facilitating the provision of timely and accurate information to the NACC. For the purposes of the Inspector, the reversed evidential burden provisions will similarly facilitate investigation of a complaint about the NACC or a NACC corruption issue. These provisions will support the NACC or Inspector to:

•

investigate a corruption issue or NACC corruption issue that could involve conduct that is serious or systemic; and

•

conduct inquiries into corruption risks and vulnerabilities in Commonwealth agencies.

103. Clauses 60 and 69 serve the legitimate objective of ensuring NACC and Inspector investigations are timely. If a person bears the burden of proving that it was not reasonably practicable for them to comply with a notice to produce (per the offence in clause 60) or a summons to attend a hearing (per the offence in clause 69), then they are more likely to comply with the notice or summons within the specified timeframe.

104. Clauses 61 and 71 serve the legitimate objective of ensuring NACC and Inspector investigations are accurate, because if a person must prove that material they provided, that is alleged to be false or misleading, was not false or misleading in a material particular, they are more likely to take care to ensure the information they provide in response to a notice to produce (per the offence in clause 61) or at a hearing (per the offence in clause 71) is complete and truthful.

105. The reversed evidential burden provisions in clauses 98, 101, 228 and 234 requiring a defendant to prove that their alleged unlawful recording or disclosure of sensitive information was in fact permitted or authorised serve the legitimate objective of:

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preventing the disclosure of sensitive information that could, for example, harm or prejudice Australia's national security, international relations, criminal proceedings, and the safety and privacy of individuals; and

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preventing the disclosure of information that could prejudice a NACC or Inspector's investigation or inquiry.

106. Requiring a defendant to prove that an alleged unlawful recording or disclosure of sensitive information was in fact permitted or authorised would put persons subject to non-disclosure obligations on notice to ensure they only disclose protected information if they have appropriate authorisation. This is likely to encourage persons subject to non-disclosure obligations to properly apprise themselves of when a recording or disclosure is or is not permitted under the NACC Bill. This would reduce the risk of harm or prejudice to Australia's national security, international relations, criminal proceedings, and the safety and privacy of individuals.

107. The reversed evidential burden provision requiring a defendant to prove an identity card had been lost or destroyed is likely to encourage a former authorised officer to take care not to lose or destroy their card in order to return it to the Commissioner or Inspector as and when required. Compliance with this provision would serve the legitimate objective of ensuring the security and integrity of the NACC and Inspector's investigation processes and preventing investigation powers from being exercised without proper authorisation.

Reasonable, necessary and proportionate

108. It is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant, 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).

109. 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:

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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;

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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;

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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

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

110. 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:

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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;

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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;

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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

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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.

111. In the case of clauses 98 and 101, 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) or subclauses 101(2A) or (2B) because:

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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-this is particularly the case as communications with lawyers and medical practitioners are typically subject to a range of legal and ethical protections that would be expected to limit the ability of the prosecution to obtain information about the purpose for which the person has made the disclosure;

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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;

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requiring the prosecution to prove matters relating to the relationship between two private parties, including a body corporate with its officer or agent, a medical practitioner and their patient, 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.

112. 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:

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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;

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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

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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.

113. 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:

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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;

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

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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

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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:

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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;

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

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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.

114. 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.

115. Reversed evidential burden provisions are proportionate because, consistent with section 13.3 of the Criminal Code, this burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that a particular matter exists or does not exist. It does not require the defendant to prove those matters beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will also be required to disprove those matters beyond reasonable doubt. The reversed evidential burden provisions established in the NACC Bill also create offence-specific defences that operate in addition to, not instead of, the general defences available at criminal law.

Strict liability

116. The effect of applying strict liability to an offence, or an element of an offence, is that no fault element needs to be proved. The application of strict liability may limit the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant for that particular element. Strict liability provisions will not violate the presumption of innocence so long as they are reasonable in the circumstances, and maintain rights of defence.

117. There are a number of provisions in the NACC Bill that would apply strict liability to offences, or elements of offences, and these provisions may limit the right to a presumption of innocence.

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Clause 98 would make it an offence to disclose information about a notice or summons that included a non-disclosure notation where the notation had not been cancelled. Strict liability would apply to whether the notation had not been cancelled.

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Clause 101 would make it an offence to use or disclose investigation material in contravention of a direction under clause 100, where the use or disclosure was not authorised by or under the NACC Bill. Strict liability would apply to whether the use or disclosure was not authorised by or under the NACC Bill.

•

Subclause 268(7) would make it an offence for a former authorised officer to fail to hand in their identity card within 14 days after ceasing to be an authorised officer. The entire offence would be an offence of strict liability.

Rational connection to a legitimate objective

118. The strict liability elements of the offences in clauses 98 and 101 serve the legitimate objective of:

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preventing the disclosure of sensitive information that could, for example, harm or prejudice Australia's national security, international relations, criminal proceedings, and the safety and privacy of individuals; and

•

preventing the disclosure of information that could prejudice a NACC or Inspector's investigation or inquiry.

119. Applying strict liability to the elements of the offences in clauses 98 and 101 that relate to whether a disclosure was authorised is likely to put persons subject to non-disclosure obligations on notice as to when and under what circumstances they may disclose certain classes of information, and when such disclosure is prohibited. This reduces the risk of unauthorised disclosures that may prejudice Australia's national security, international relations, criminal proceedings, safety and privacy, or investigations or inquiries by the Commissioner or Inspector.

120. The strict liability offence in clause 268 serves the legitimate objective of preventing investigation powers from being used without proper authorisation. The strict liability offence in clause 268 would reduce this risk by requiring authorised officers to promptly return their identification should they cease to be an authorised officer.

Reasonable, necessary and proportionate

121. The application of strict liability elements in the offences outlined above is reasonable and necessary to ensure that a person cannot avoid criminal responsibility because they were unaware of certain circumstances, for example that the disclosure of certain information was unauthorised by the NACC Bill. Requiring knowledge of such an element in these circumstances would undermine the deterrent effect of the offence. There are also legitimate grounds for penalising a person's lacking 'fault' in these circumstances because it would put persons on notice to guard against the possibility of a contravention, for example, by properly apprising themselves of the circumstances in which disclosure is or is not authorised under the NACC Bill. These provisions would also reflect the likely serious consequences resulting from a breach of the offences.

122. The general defence of mistake of fact as set out in section 9.2 of the Criminal Code would also remain available. This defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

•

at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

123. The strict liability measures under clauses 98 and 101 are proportionate as they only apply to elements of the offence and not to the offences as a whole. In this respect, the prosecution will still be required to prove, beyond a reasonable doubt, all other elements of the offence including the fault elements of intention or recklessness.

124. The strict liability offence under clause 268 is proportionate because while strict liability applies to all its elements, it could only be committed by someone who has been an authorised officer of the NACC or Inspector, and has received specific training and guidance about the appropriate exercise of their powers. It could not be committed by a member of the public. The offence would carry a maximum penalty of 60 penalty units, which reflects the possible risk of serious consequences resulting from a breach of this provision. Strict liability would significantly enhance the deterrent effect, which will put authorised officers on notice to guard against the possibility of contravention.

The right to minimum guarantees in criminal proceedings contained in article 14(3)(g) of the ICCPR

125. Article 14(3)(g) of the ICCPR sets out minimum guarantees in criminal proceedings. This includes the right to be free from self-incrimination, in that a person may not be compelled to testify against him or herself to confess guilt. Provisions which abrogate the privilege against self-incrimination engage article 14(3)(g) of the ICCPR.

126. The following measures in the NACC Bill would limit this right:

•

authorising the use of self-incriminatory hearing material, and notice material, in certain criminal proceedings (clause 113); and

•

the measures which authorise the derivative use of self-incriminatory hearing material.

127. A further measure to modify the circumstances in which self-incriminatory hearing or notice material may be used in confiscation proceedings does not limit this right, however, discussion about the relationship between this measure and the privilege against self-incrimination is included below.

128. However, the authorisation to use self-incriminatory material (including derivative material) is appropriately limited as to only abrogate the right to be free from self-incrimination to the extent reasonable, necessary, and proportionate to achieve the legitimate objective of facilitating the effective investigation of conduct that is serious or systemic.

129. In the course of conducting an investigation of a corruption issue or a NACC corruption issue the Commissioner or the Inspector would have the power to issue a summons to attend a hearing to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (post-charge or post-confiscation application summonses). The Commissioner or the Inspector would also be able to issue a notice to produce information, documents or things to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (post-charge or post-confiscation application proceedings). The material, evidence, information, documents or things given or produced by a person at a hearing or in response to a notice would constitute investigation material under clause 99 (see paragraphs 7.288 to 7.294).

130. The investigation materials obtained through this process may include self-incriminatory materials, which could then also be used in subsequent criminal proceedings in certain circumstances - abrogating the privilege against self-incrimination.

Circumstances where self-incriminatory investigation material may be used in criminal proceedings

131. Clause 113 would abrogate the privilege against self-incrimination in the context of giving answers or other material at a hearing or producing material in response to a notice to produce (see paragraphs 7.414 to 7.427). This would be accompanied by a use immunity in relation to criminal proceedings, proceedings for the imposition or recovery of a penalty, and confiscation proceedings (see subclause 113(2)). The application of the use immunity in these circumstances would mean that the self-incriminatory investigation material would not be admissible as evidence in court against the person who provided the material.

132. However, paragraph 113(3)(b) would provide that the use immunity would not apply to proceedings for offences set out in Table 1:

Table 1-Offences for which use immunity not available

Rational connection to a legitimate objective

133. Authorisation of the use of self-incriminatory investigation material in these limited circumstances is appropriate in order to achieve the legitimate objective of facilitating the effective investigation of a corruption issue or NACC corruption issue that could involve corrupt conduct that is serious or systemic.

134. The offences exempted from the use immunity listed above are intended to ensure the Commissioner and the Inspector could enforce compliance with a notice to produce or summons to attend a hearing. The ability to enforce compliance with a notice to produce or summons would ensure the material that the Commissioner and the Inspector receives is accurate and reliable. These offences would necessarily depend on evidence about the witness's compliance (or lack of compliance) with a notice or summons, or their interference with the performance of the Commissioner's or the Inspector's functions. Without the ability to admit this material into evidence, the Commissioner or the Inspector would not have an effective method to ensure compliance with these provisions. The material resulting from a hearing or notice to produce in these circumstances would often be a crucial part of proving the offences listed in paragraph 113(3)(b).

Reasonable, necessary and proportionate

135. The measures authorising the use of self-incriminatory investigation material in these limited circumstances are necessary to ensure the effectiveness of hearings and notices to produce, and the ability of the Commissioner and the Inspector to achieve their objectives. The measures are also reasonable and proportionate and include are subject to the following safeguards:

•

a limit on the circumstances in which self-incriminatory investigation material can be used in criminal proceedings (paragraph 113(3)(b));

•

limits on the disclosure of investigation material to a prosecutor of a person post-charge (clause 105);

•

the obligation on the Commissioner or the Inspector to include a non-disclosure notation in a notice to produce or a private hearing summons in particular circumstances (clause 96);

•

the ability of the Commissioner or Inspector to issue a direction in relation to the use or disclosure of investigation material (clause 100);

•

the requirement that certain evidence must be given in private, including evidence that would disclose information that, if disclosed, would prejudice the fair trial of any person or the impartial adjudication of a matter (clause 74); and

•

a provision making it an offence if a staff member of the NACC, the Inspector or a person assisting the Inspector discloses information received in the course of their duties that they are not otherwise authorised to disclose (clause 228).

136. The measures would be subject to further safeguards contained in Division 4 of Part 7 of the NACC Bill. These provisions would provide for the use and disclosure of investigation material and place limits on when such material may be disclosed to the prosecutor of a witness. Relevantly, subclause 105(4) would provide that investigation material could only be disclosed post-charge to a person prosecuting the witness for a relevant offence with a court order. The disclosure would be post-charge if the disclosure occurs when the person has been charged with a relevant offence or such a charge is imminent (see clause 130). A court could only authorise such disclosure where the court is satisfied that the disclosure is required in the interests of justice (see subclause 106(1)).

137. Further, subclause 106(3) would specifically retain a courts' power to make any order necessary to ensure that the witness's fair trial is not prejudiced by the possession or use of investigation material or derivative material by a prosecutor of the witness.

138. There would also be an obligation on the Commissioner or the Inspector to include a non-disclosure notation in a notice to produce or a private hearing summons if they are satisfied that failure to do would reasonably be expected to prejudice a person's safety or reputation or a person's fair trial (see paragraphs 7.253 to 7.257). The Commissioner or Inspector also has a discretion to include a non-disclosure notation if satisfied that prejudice might occur or where not doing so might otherwise be contrary to the public interest. A non-disclosure notation may prohibit the disclosure of information or limit disclosure in specified circumstances.

139. In addition to non-disclosure notations, the Commissioner or Inspector would also be able to direct that investigation material must not be used or disclosed or may only be used by, or disclosed to, specified persons in specified ways or on specified conditions (subclause 100(1)). Such a direction may be issued in relation to self-incriminatory investigation material.

140. The disclosure of self-incriminatory investigation material is also generally limited by the requirement in clause 74 to only hear certain evidence in private. This requirement applies where the Commissioner is satisfied that the information is sensitive information, which includes information that would, if disclosed, prejudice the fair trial of any person or the impartial adjudication of a matter.

141. As a further general safeguard against disclosure of self-incriminatory investigation material, a staff member of the NACC, the Inspector or a person assisting the Inspector would commit an offence if they disclose information received in the course of their duties that they are not otherwise authorised to disclose (see clause 228).

Authorising derivative use of self-incriminatory investigation material

142. The NACC Bill would provide for the disclosure and use of derivative material (which would include any materials obtained directly or indirectly from investigation material, per clause 133), which could then be used in criminal proceedings against the witness (see clause 105). This would engage the right against self-incrimination in criminal proceedings by limiting the effectiveness of a person's ability to claim the privilege against self-incrimination. As noted above, clause 113 would abrogate the privilege against self-incrimination in the context of giving answers or other material at a hearing or producing material in response to a notice to produce (see paragraphs 7.414 to 7.427). The clause would specifically authorise the disclosure of derivative material to a prosecutor of the witness and its use in evidence against that person (subject to the rules of evidence and procedure). While self-incriminatory investigation material may not itself be admissible against the witness in relation to some offences (due to the use immunity discussed at paragraphs 7.417 to 7.427), material derived from it would be able to be used in the prosecution of the witness.

Rational connection to a legitimate objective

143. The derivative use of self-incriminatory investigation material is necessary to achieve the legitimate objective of facilitating the investigation and prosecution of criminal offences. Without the use of these materials, the success of these investigations and prosecutions would be significantly hindered. For further explanation, please refer to the discussion under the right to a fair trial.

Reasonable, necessary and proportionate

144. Notices to produce and hearings both support the Commissioner's and Inspector's ability to effectively investigate corruption issues or NACC corruption issues that could involve corrupt conduct that is serious or systemic. While it is appropriate that self-incriminatory hearing and notice material should generally not be admissible against a witness, it is necessary that this material can be provided to the prosecution and used in the further investigation of the person's activities in this context, for the reasons outlined below. It would also be appropriate that this evidence could be used to find additional evidence to address and prevent serious criminal activity and harm to the community.

145. The measures to specifically authorise the derivative use of self-incriminatory investigation materials would be subject to the following safeguards:

•

limits on the disclosure of investigation material to a prosecutor of a person post-charge (clause 105);

•

the obligation on the Commissioner or the Inspector to include a non-disclosure notation in a notice to produce or a private hearing summons in particular circumstances (clause 96);

•

the requirement that certain evidence must be given in private, including evidence that would disclose information that, if disclosed, would prejudice the fair trial of any person or the impartial adjudication of a matter (clause 74); and

•

a provision making it an offence if a staff member of the NACC, the Inspector or a person assisting the Inspector discloses information received in the course of their duties that they are not otherwise authorised to disclose (clause 228).

146. There would be limitations on the circumstances in which derivative materials can be disclosed to a prosecutor of that witness. Under subclause 105(4), post-charge derivative material cannot be disclosed to a prosecutor of the witness without a court order. The court may only order the disclosure of post-charge derivative material to a prosecutor if it would be in the interests of justice (see subclause 106(1)). These limitations do not apply to pre-charge derivative material. It would not be appropriate to include a derivative use immunity in these provisions as it would undermine the capacity of the Commissioner to assist in investigation of serious criminal activities. If a derivative use immunity was provided, the prosecution would have to prove the provenance of every piece of evidence in the trial of a person that was the subject of, or a witness in, a NACC investigation before it could be admitted. This requirement could be used to inappropriately delay the resolution of charges against the accused.

147. It would also not be appropriate to require a person to seek a court order to disclose pre-charge derivative material to a prosecutor after the witness has been charged with an offence. This would allow a witness to challenge every post-charge disclosure of material to a prosecutor and to require proof that the material was not derivative material.

148. To the extent that there is any prejudice to the examinee or witness's fair trial resulting from the prosecutor's possession or use of derivative material, this is more appropriately managed by the court under its existing powers and process. The NACC Bill also specifically preserves a court's power to make any orders necessary to ensure that the witness's fair trial is not prejudiced by the possession or use of investigation material or derivative material by a prosecutor of the witness (see clause 106).

149. The disclosure of a self-incriminatory derivative material would also be limited by the Commissioner or the Inspector obligations to include a non-disclosure notation in a notice to produce or a private hearing summons if they are satisfied that failure to do would reasonably be expected to prejudice a person's safety or reputation or a person's fair trial (see paragraphs 7.253 to 7.365). The Commissioner or Inspector also has a discretion to include a non-disclosure notation if satisfied that prejudice might occur or where not doing so might otherwise be contrary to the public interest. A non-disclosure notation may prohibit the disclosure of information or limit disclosure in specified circumstances.

150. The disclosure of self-incriminatory derivative material is also generally limited by the requirement in clause 74 to only hear certain evidence in private. This requirement applies where the Commissioner is satisfied that the information is sensitive information, which includes information that would, if disclosed, prejudice the fair trial of any person or the impartial adjudication of a matter.

151. As a further general safeguard against disclosure of self-incriminatory derivative material, a staff member of the NACC, the Inspector or a person assisting the Inspector would commit an offence if they disclose information received in the course of their duties that they are not otherwise authorised to disclose (see clause 228).

Circumstances where self-incriminatory material may be used in confiscation proceedings

152. The United Nations Human Rights Committee has stated that criminal charges primarily encompass acts that are declared to be punishable under domestic criminal law, but may also extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal. Relevant factors in considering whether charges are criminal include whether proceedings are brought by a public authority, whether there is a punitive element to the process and whether there are potentially serious consequences such as imprisonment. ^[1]

153. Confiscation proceedings under the NACC Bill would be a proceeding under the POC Act or a corresponding law within the meaning of that Act (clause 136). Such proceedings are brought by a public authority and have the punishment and deterrence of breaches of Commonwealth law as one of their stated objects. However, proceeds of crime orders imposed via confiscation proceedings cannot create any criminal liability, do not result in any finding of criminal guilt and do not expose people to any criminal sanctions such as imprisonment. As a result, confiscation proceedings are civil proceedings and would not be considered criminal in nature. These measures would therefore not limit the right to minimum guarantees in criminal proceedings contained in article 14(3).

154. The immunity against the use of self-incriminatory investigation material contained in subclause 113(2) would also not be available in a confiscation proceeding, if the information was given, or the document or thing was produced, at a time when the proceeding had not commenced and was not imminent (unless the court orders otherwise) (see paragraph 7.424). This means that self-incriminatory investigation material obtained in a post-confiscation hearing or in response to a post-confiscation notice to produce would not be admissible in confiscation hearings. However, this material would be admissible in confiscation proceedings against the witness if it was obtained in a pre-confiscation hearing or in response to a pre-confiscation notice to produce.

155. Further, subclause 109(2) would provide that a person who may lawfully disclose investigation material or derivative material may lawfully disclose that material to a proceeds of crime authority.

156. Ensuring people who have been a subject of the Commissioner's and Inspector's investigations are not able to access the proceeds of their crime is crucial to enabling the Commissioner and Inspector to prevent corrupt conduct and fulfil their statutory functions. Without the use of self-incriminatory pre-confiscation hearing or notice material, the success of the Commissioner's and Inspector's ability to prevent the use of proceeds of corrupt conduct would be significantly hindered. The ability to use such material will assist authorities in both investigating the source of individuals' criminal wealth and in confiscating the profits of their criminal activities. In addition, the measures would be subject to the following safeguards:

•

limits on when self-incriminatory investigation material could be admitted into evidence in a confiscation proceeding (subparagraph 113(3)(b)(i));

•

the ability of a person or body to disclose investigation material or derivative material to a proceeds of crime authority would be subject to a direction issued by the Commissioner or the Inspector (clause 100);

•

a requirement that certain evidence must be given in private, including evidence that would disclose information that, if disclosed, would prejudice the fair trial of any person or the impartial adjudication of a matter (clause 74); and

•

a provision making it an offence if a staff member of the NACC, the Inspector or a person assisting the Inspector discloses information received in the course of their duties that they are not otherwise authorised to disclose (clause 228).

157. Self-incriminatory investigation material would be inadmissible if it came from a post-confiscation application notice or hearing (see subparagraph 113(3)(b)(i)). This material can be used to further the investigation of the witness, but it cannot be used directly to bolster the confiscation proceedings against them.

158. This reinforces that material obtained by a notice to produce or at a hearing is intended to serve the purpose of a corruption investigation or a NACC corruption investigation, and not to bolster a proceeds of crime authority's case in confiscation proceedings.

159. The use and disclosure of self-incriminatory investigation material in relation to confiscation proceedings would be limited by the ability of the Commissioner or Inspector to issue a direction on its use and disclosure (see paragraphs 7.299 to 7.304), the requirement that certain evidence must be given in private (see paragraphs 7.139 to 7.140) and general confidentiality requirements (see paragraph 11.26 to 11.44).

The prohibition against retrospective operation of criminal laws contained in article 15 of the ICCPR

160. Article 15 of the ICCPR prohibits retrospective criminal laws. Relevantly, it provides that laws must not impose criminal liability for acts or omissions that were not criminal offences at the time they were committed.

161. The prohibition against retrospective operation of criminal laws is absolute and may never be justifiably limited.

162. The NACC Bill does not engage the prohibition on the retrospective operation of criminal laws in article 15 of the ICCPR. However, the NACC Bill may be perceived to engage the prohibition against retrospective criminal laws through the definition of corrupt conduct under clause 8.

163. The definition would enable the Commissioner to investigate past conduct that they consider could involve serious or systemic corrupt conduct, including:

•

conduct that occurred prior to the establishment of the NACC (under subclause 8(4));

•

conduct of a former public official while they were a public official (under subclause 8(5)); and

•

misuse of information by a former public official that was acquired by the former public official in the course of their functions or duties as a public official (under paragraph 8(1)(d)).

164. While this definition would enable the Commissioner to investigate serious or systemic corrupt conduct that occurred prior to the establishment of the NACC, the Commissioner would only be able to make a finding of corrupt conduct where the conduct in question, at the time it occurred:

•

adversely affected the honest or impartial performance by a public official of their powers, functions or duties; or

•

constituted an abuse of office, breach of trust, or misuse of information obtained in an official capacity.

165. Further, the definition of corrupt conduct, and the NACC Bill more broadly, would not create any retrospective criminal offences or otherwise impose criminal liability on a person retrospectively. The Commissioner would only be able to conduct a criminal investigation where the conduct in question could have constituted a corruption-related offence at the time it was alleged to have been committed.

166. The definition of corrupt conduct would enable the NACC to effectively investigate past conduct that is serious or systemic, including criminal conduct where appropriate. Investigating conduct of this kind is critical to ensuring the Australian community has confidence in the integrity and effective administration of public institutions.

The prohibition on interference with privacy contained in article 17 of the ICCPR

167. Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person's privacy, family, home and correspondence, and prohibits unlawful attacks on a person's reputation. The United Nations Human Rights Committee has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

168. A number of measures in the NACC Bill would limit this right, including:

•

powers and mechanisms for the Commissioner and Inspector to obtain information relevant to an investigation or public inquiry;

•

information sharing mechanisms allowing for the disclosure of personal information;

•

the reporting framework allowing for the publication of personal information; and

•

measures designed to promote the right to privacy and protect against undue damage to a person's reputation.

169. The right to privacy may be limited where the limitation is lawful and not arbitrary. The use of the term 'arbitrary' means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted 'reasonableness' to imply that any limitation must be proportionate and necessary to achieve a legitimate objective.

Powers and legal mechanisms to obtain information

170. The NACC Bill engages the right to privacy by providing the Commissioner, Inspector and other authorised officers powers to collect information for the purpose of investigating corruption issues that may involve corrupt conduct that is serious or systemic. Some of these powers could also be exercised:

•

by the Commissioner when conducting preliminary investigations (clause 42) and when conducting public inquiries (clause 163); and

•

by the Inspector when conducting investigations, or preliminary investigations, into NACC corruption issues and complaints (see clauses 211 and 214).

171. Table 2 summarises the powers available to the Commissioner and Inspector to obtain information under this Bill. The information that may be obtained by the Commissioner, Inspector or other authorised officers exercising these powers could include personal information, or information subject to the right to privacy.

Table 2-Investigative powers afforded to the Commissioner and the Inspector

Rational connection to a legitimate objective

172. The information-gathering powers that would be granted to the Commissioner by the NACC Bill would be necessary to enable the Commissioner to:

•

detect and investigate corruption issues that could involve serious or systemic corrupt conduct involving public officials; and

•

inquire into corruption risks and vulnerabilities, and measures to prevent corruption, in Commonwealth agencies.

173. The information-gathering powers that would be granted to the Inspector by the NACC Bill would be necessary to enable the Inspector to:

•

detect and investigate corruption issues that could involve serious or systemic corruption involving staff members of the NACC; and

•

investigate complaints made in relation to the conduct or activities of the NACC and its staff members.

174. 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.

175. Similarly, the identification of corruption risks and vulnerabilities, and the assessment of the adequacy of measures to prevent corruption in Commonwealth agencies are legitimate objectives, and would enable the making of recommendations for remedial action to address such risks and vulnerabilities-including those that are identified in the course of an investigation.

176. The need for the Inspector to detect, investigate and address allegations of serious or systemic corrupt conduct, or misconduct more broadly, by staff members of the NACC would be particularly acute. Corruption within, or affecting, the NACC could prejudice anti-corruption investigations across the Commonwealth. Corruption or misconduct by the NACC or its staff could also undermine public and parliamentary trust and confidence in the effectiveness of the Commonwealth's anti-corruption framework-and, as a consequence, in public administration more broadly. The detection and investigation of such matters are also legitimate objectives.

177. 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 and Inspector to receive 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.

178. The information-gathering powers and mechanisms contained in the NACC Bill that would enable the Commissioner and Inspector to obtain information that would not otherwise be available-including information uniquely within the knowledge of the person being questioned-or could only be obtained after long and complex investigations. 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.

Reasonable, necessary and proportionate

179. The information-gathering powers that would be granted to the Commissioner and Inspector under the NACC Bill would be necessary and proportionate to the legitimate objectives outlined above.

180. It is necessary for the Commissioner to have powers to gather information to support their investigation and inquiry functions, and for the Inspector to have such powers to support their investigation functions through the gathering of information.

181. The NACC Bill would provide the Commissioner and Inspector with a graduated suite of powers and mechanisms to obtain information, with less intrusive powers available at the earlier stages of investigations and for the purposes of public inquiries, and the use of more intrusive powers being more tightly controlled.

Requirement for the provision of relevant information with referrals

182. The requirement for agency heads and persons with responsibilities under the PID Act to provide all relevant information as part of the mandatory referral of a corruption issue to the Commissioner or Inspector is a reasonable, necessary and proportionate requirement. The requirement would apply only where:

•

the corruption issue concerns the conduct of person who is, or was, a staff member of the agency; and

•

the agency head or person with PID Act responsibilities suspects that the issue could involve corrupt conduct that is serious or systemic.

183. The requirement to provide all relevant information when referring a corruption issue would be necessary to enable the Commissioner or Inspector to:

•

form a view about whether the issue is within the Commissioner or Inspector's jurisdiction, and if so, whether and how to deal with the issue-including whether the issue might best be investigated by the Commissioner or Inspector alone, as a joint investigation, by the originating agency as an internal investigation, or by another law enforcement or integrity agency;

•

understand the potential harm that may arise from the corruption issue-including whether the corruption issue involves, or is likely to involve prejudice to the privacy or reputation of an innocent party, such as whether the issue involves the misuse of personal information by a public official;

•

have visibility of any investigative steps that the referring agency may have undertaken, or proposes to undertake; and

•

avoid taking unnecessary investigative steps, based on incomplete information.

184. The requirement would be proportionate to the achievement of such objectives. The withholding of relevant information from the Commissioner or Inspector would result in them being less than fully-informed about the above matters, and about the nature and circumstances of the alleged corrupt conduct more broadly. The requirement for the agency or person making the referral to provide all relevant information would reduce the need for the Commissioner or Inspector to exercise their powers to require the production of further information or documents to support their consideration of the issue. A referring agency or person would generally be well-placed to determine which information would be relevant to the issue they are referring, and to provide the Commissioner or Inspector with that information-while reducing the risk that the Commissioner or Inspector may unnecessarily receive or obtain personal information that is not relevant to a corruption issue.

185. The proportionality of the requirement would be reinforced by the requirement being limited to information that is in the person's possession or control, in their capacity as an agency head or person with responsibilities under the PID Act. In practice, this would be limited to:

•

official information, being information generated or obtained by the relevant agency, in connection with the performance of its functions-which may include personal information contained, for example, in official applications relating a program to which the alleged corrupt conduct relates, or concerning the person alleged to have engaged in the corrupt conduct (including information contained in an internal disclosure that has led to the referral); and

•

information held by the agency on its systems or files, or at its premises-which may include personal information where, for example, the person alleged to have engaged in serious or systemic corrupt conduct has used their work email account for non-work-related purposes.

186. A person would have a limited expectation of privacy in such information, being information that is already in the possession or control of a government agency and that could therefore generally be used for the investigation of unlawful activity or misconduct of a serious nature that relates to the agency's functions (see section 16A, Privacy Act 1988). The NACC Bill would exclude certain types of information from the application of this requirement, where persons would have a reasonable expectation of privacy in that information (see the definition of exempt secrecy provision in clause 7) including information that is subject to the My Health Records Act 2012.

Powers to search premises and persons, and to seize evidential material and seizable items

187. The NACC Bill would provide the Commissioner with four sets of powers to undertake searches and seize documents and things, being:

•

a right to enter and search Commonwealth premises without warrant, for the purposes of a preliminary investigation or corruption investigation (see clause 117);

•

powers to obtain search warrants for the purposes of (see clause 119 and Subdivision B of Part 7):

-

a corruption investigation that is also a criminal investigation; or

-

any corruption investigation, where necessary to ensure that persons do not have the opportunity to conceal, lose, mutilate or destroy important evidential material pertaining to a corruption issue;

•

powers to stop and search conveyances in emergency situations to prevent the destruction of evidence (see clause 119 and Subdivision B of Part 7); and

•

when arresting a person under a warrant to ensure their attendance at a hearing (see clauses 90 and 91).

188. The NACC Bill would provide the Inspector with a more limited set of powers to undertake searches and seize documents and things (see clause 214), being:

•

a right to enter and search Commonwealth premises without warrant, for the purposes of a preliminary investigation or corruption investigation (see clause 117); and

•

when arresting a person under a warrant to ensure their attendance at a hearing (see clauses 90 and 91).

189. The Commissioner and Inspector's powers to require persons to give information, produce documents or things, or to answer questions are reasonable and necessary for the above purposes, as they would enable the Commissioner and Inspector to obtain information that:

•

would not otherwise be available-including information uniquely within the knowledge of the person being questioned, including information about how or why a decision was made that have not been reduced to documentary form; or

•

could only be obtained after long and complex investigations-including, for example, by enabling the Commissioner and Inspector to ask follow-up questions to clarify or expand on information, documents or answers given by a person.

190. There would be appropriate limits on the Commissioner's search powers when conducting public inquiries or preliminary investigations, and the Inspector's powers when conducting preliminary or complaint investigations, given the significant nature of these powers:

•

when conducting a public inquiry or preliminary investigation, the Commissioner would not have powers to enter and search premises or to search persons (whether with or without a warrant); and

•

when conducting a preliminary investigation, the Inspector would not be permitted to enter and search Commonwealth premises; and

•

when conducting a complaint investigation, the Inspector would not be able to obtain a warrant to arrest a person to ensure their attendance at a hearing.

191. These powers would be necessary to enable the Commissioner and Inspector to obtain information relevant to a corruption investigation, or the investigation of a complaint in relation to the conduct or activities of the NACC or a staff member of the NACC. Powers to conduct searches and seize documents and things would, in particular, be necessary in circumstances where it may not be appropriate or practicable to rely on a notice to produce, for example where:

•

the Commissioner or Inspector has reason to doubt that the recipient of a notice would comply with the notice;

•

the service of a notice to produce would prematurely 'tip off' the subject of an investigation; or

•

it would be necessary for the Commissioner or Inspector to employ specialist capabilities to locate and seize relevant documents or things-such as forensic or digital forensic capabilities.

192. There would be safeguards in place to limit the powers of the Commissioner, Inspector and authorised officers, and ensure any impact on the right to privacy is proportionate and not arbitrary. These powers would be available only as part of:

•

a corruption investigation or NACC corruption investigation, where the Commissioner or Inspector are investigating a corruption issue that could involve corrupt conduct that is serious or systemic; or

•

a complaint investigation, where the Inspector is investigating a complaint about the activities or conduct of the NACC or a staff member of the NACC.

193. The NACC's powers to conduct searches under warrant, or of a conveyance in an emergency, would be based on existing powers under the Crimes Act 1914, which apply generally to the investigation of Commonwealth criminal laws.

194. Before issuing a search warrant, an issuing officer would need to be satisfied by information on oath or affirmation that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours (clause 124):

•

in a case where the NACC is investigating a particular offence or offences-any evidential material (within the meaning of the substituted definition outlined in paragraph 7.485) at the premises or in the possession of the person that is subject to the warrant; or

•

in a case where the NACC is investigating a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic, but where no offence, or no specific offence, has been identified:

-

there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises or in the possession of the person that is subject to the warrant; and

-

there are reasonable grounds for believing that, if a person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed.

195. The inclusion of this additional threshold for non-criminal investigations would ensure that search warrants for premises are only available where other means of obtaining the evidential material would be ineffective-because the material might be concealed, lost, mutilated or destroyed if the Commissioner sought to obtain it by serving a person with a summons to produce the material. This is consistent with the approach taken in section 4 of the Royal Commissions Act 1902 and with investigation warrants under subsection 109(1) of the LEIC Act.

196. Similarly, searches conducted by authorised officers of the NACC under a warrant would be subject to the same limits and safeguards to limit any disproportionate impact on privacy as those conducted by constables under the Crimes Act 1914, including:

•

warrants may only be in force for up to seven days after the date of issue (subsection 3E(5A) of the Crimes Act 1914);

•

warrants to search persons must state whether an ordinary or frisk search is authorised, and only that type of search may be conducted (paragraph 3E(7)(b) and subsection 3F(4));

•

warrants cannot authorise a strip search or a search of a person's body cavities (section 3S);

•

ordinary searches and frisk searches of a person must, if practicable, be conducted by a person of the same sex as the person being searched (section 3ZR);

•

the executing officer must identify themselves to, and make a copy of the warrant available to, the person being searched or the occupier of warrant premises (section 3H);

•

if data is accessed from premises other than warrant premises under sections 3L or 3LAA, the executing officer must notify the occupier of those premises as soon as practicable, if it is practicable to notify the occupier (section 3LB); and

•

the occupier of warrant premises or their representative is entitled to observe the search being conducted (section 3P).

197. The NACC's power to stop and search conveyances, without a warrant, would be limited to circumstances where a constable or authorised officer has reasonable grounds to suspect that things relevant to an offence or a corruption investigation are in the conveyance, and conducting the search is necessary to prevent those things from being concealed, lost or destroyed in serious or urgent circumstances. Where any element of the threshold is not met, an authorised officer would instead be required to obtain a search warrant.

198. The Commissioner and Inspector's right to enter and search most Commonwealth premises as part of an investigation would be proportionate, as:

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the exercise of such a power would, in essence, be within the Commonwealth; and

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working for or with the Commonwealth is voluntary-persons who choose to work for or with the Commonwealth choose to be bound by the conduct standards that apply to public officials, and to applicable enforcement frameworks, including the jurisdiction of the Commission.

199. The search powers that arise at the time of executing a warrant for a witness's arrest would also be reasonable and subject to appropriate safeguards. Search and seizure powers at the time of arrest would be limited to circumstances where an authorised officer:

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suspects on reasonable grounds that it would be prudent to search the person to ascertain whether the person is carrying any seizable items (being anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody);

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suspects on reasonable grounds that the person is carrying evidential material or a seizable item; or

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believes on reasonable grounds that a thing in plain view at the premises is evidential material in relation to an offence, or a seizable item (sections 3ZE, 3ZF and 3ZG of the Crimes Act 1914 as applied by clause 91).

Powers to require the giving of information, production of documents and things, and the answering of questions at hearings

200. Corruption investigations conducted by the Commissioner and Inspector, and complaint investigations conducted by the Inspector, would be inherently concerned with how and why public officials have made particular decisions. Such investigations would depend not only on access to contemporaneous documents and records supporting decision-making process, but also understanding the state of mind of, and considerations taken into account by a decision-maker.

201. Similarly, public inquiries conducted by the Commissioner to identify corruption risks and vulnerabilities, and assess the adequacy of measures to prevent corruption in Commonwealth agencies, would require not only detailed information on agencies' corruption detection and prevention frameworks, but also information on how those frameworks operate in practice-and how they integrate with other systems and processes.

202. Hearings would be a key power available to the Commissioner and Inspector. Hearing powers would enable the Commissioner and Inspector to obtain information that would not otherwise be available-including information uniquely within the knowledge of the person being questioned-or could only be obtained after long and complex investigations. Material gathered in hearings would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

203. The Commissioner and Inspector's powers to require persons to give information, produce documents or things, or to answer questions are reasonable and necessary for the above purposes, as they would enable the Commissioner and Inspector to obtain information that:

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would not otherwise be available-including information uniquely within the knowledge of the person being questioned, including information about how or why a decision was made that have not been reduced to documentary form; or

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could only be obtained after long and complex investigations-including, for example, by enabling the Commissioner and Inspector to ask follow-up questions to clarify or expand on information, documents or answers given by a person.

204. Material gathered in hearings would play a key role in furthering investigations of corruption issues and NACC corruption issues, and in identifying and reducing corruption risks, thereby protecting public order.

205. There would be appropriate limits on the Commissioner's coercive information-gathering powers when conducting a public inquiry, and the Commissioner and Inspector's powers when conducting preliminary investigations, given the significant nature of these powers:

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when conducting a public inquiry, the Commissioner's notice to produce powers could only be exercised in relation to a Commonwealth agency head; and

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when conducting a complaint investigation, the Inspector would not be permitted to issue notices to produce or summons persons to attend headings post-charge and post-confiscation application.

206. The exercise of the Commissioner and Inspector's coercive powers could result in a person being compelled to provide personal information. The NACC Bill would ensure that such powers would be proportionate. In certain circumstances, personal information would be directly relevant to an investigation or inquiry-for example, where it is alleged that a public official has engaged in serious or systemic corrupt conduct to obtain a benefit or advantage for another person to whom they have a family or other personal relationship, personal information about the existence and nature of that relationship, and communications between the official and the person in connection with the benefit, would potentially be directly relevant to the investigation.

207. The NACC Bill would contain a number of additional safeguards to ensure that the Commissioner and Inspector's powers to obtain personal information under a notice to produce or at a hearing are proportionate.

208. Hearings would, by default, be held in private, preventing any personal information that arises in evidence from being publicly disclosed. The NACC Bill would provide the Commissioner with the discretion to hold public hearings only where the Commissioner decides that exceptional circumstances justify holding the hearing in public and it is in the public interest to do so (see Division 3 of Part 5, clause 161 and clause 214).

209. The factors that may be considered when determining whether to hold a hearing in public would include:

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the extent to which the corruption issue could involve corrupt conduct that is serious or systemic;

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whether certain evidence is of a confidential nature; and

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whether a person giving evidence has a particular vulnerability.

210. Certain sensitive information would also be required to be heard in private. In particular, information that would unreasonably disclose a person's personal affairs would be required to be heard in private (see clause 74 and the definition of sensitive information in clause 227). Where such information is heard in private, the Commissioner or Inspector would be required to issue a direction under clause 100 (which has the effect that specified investigation material must not be used or disclosed, or may only be used by or disclosed to specified person in specified ways or on specified conditions) if the Commissioner is satisfied that the failure to give such a direction might lead to the publication of sensitive information that would unreasonably disclose a person's personal affairs.

211. The NACC Bill would also provide for non-disclosure notations where hearings, investigations or inquiries are held in private, and create an offence for breaches of these notations (Subdivision A, Division 4 of Part 7, clause 163 and clause 214). Non-disclosure notations would ensure the Commissioner can limit the spread of information relating to investigations or inquiries being held in private. The notation would protect the disclosure of information relating to a notice to produce information or a private hearing summons, for example, that the notice or summons exists or has been served on a particular person. Grounds for issuing a notice would include to the protect a person's reputation, to prevent prejudice to an investigation or inquiry, or to prevent harm to an individual.

Use and disclosure of information obtained through the exercise of powers

212. The NACC Bill engages the right to privacy in that the Commissioner, Inspector, and entrusted persons may disclose personal information or documents relating to individuals to other. The information that may be shared through these arrangements may include personal information, or information considered to fall within the scope of the right to privacy.

213. Clause 228 would impose confidentiality obligations on entrusted persons (being staff members of the NACC, the Commissioner, the Inspector, and persons assisting the Inspector), that would generally prohibit them from disclosing information they obtain in the course of their duties. Clause 229 would then authorise the disclosure of such information in limited circumstances.

214. For example, clause 229 would allow an entrusted person to disclose information for purposes connected with the functions, power and duties of the Commissioner or the Inspector. This would allow, for example, an entrusted person to make a disclosure or share information for the purpose of conducting a corruption investigation or public inquiry.

215. Clause 229 would also allow the Commissioner and the Inspector to disclose information to the head of a Commonwealth agency, or of a State or Territory government entity, where satisfied that it is appropriate to do so, having regard to the functions of the person or entity concerned. This would allow, for example, the Commissioner to provide information to the head of an agency conducting a criminal investigation. Similarly, this would allow the Commissioner to share information with the head of an agency conducting a joint corruption investigation with the NACC.

Rational connection to a legitimate objective

216. The information sharing mechanisms provided for under the NACC Bill would be critical to supporting both the Commissioner's and the Inspector's investigation and other functions, including by enabling the disclosure of information for purposes including:

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an investigation conducted by the Commissioner or Inspector, including disclosures between agencies as part of joint investigations conducted with other Commonwealth, State or Territory agencies;

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referring corruption issues to other agencies for their investigation or consideration; and

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referring evidence of criminal corrupt conduct to the CDPP or another prosecutorial agency, for prosecution.

217. This recognises the Commissioner and Inspector's functions as part of a broader Commonwealth integrity framework, and their role in supporting the proper enforcement of the law.

218. The Commissioner and Inspector would also have the ability to disclose information to a particular person, if they are satisfied that it is necessary to do so in order to protect that or any other person's life or physical safety. This recognises that the Commissioner and Inspector may come into possession of information that indicates that a person may harm themselves or another person, and would enable the Commissioner and Inspector to disclose such information in the course of seeking to protect against such harm.

Reasonable, necessary and proportionate

219. Information sharing is particularly necessary, given the nature of the matters that the Commissioner may work on and the potential for overlap with the work of State, Territory and Commonwealth integrity agencies and law enforcement bodies such as the AFP.

220. Effective information sharing mechanisms would be necessarily dependent on partial limitations to the right to privacy. It would be necessary at times to share personal information, including identifying information and information regarding a person's conduct, to ensure integrity agencies can carry out their investigations and law enforcement activities effectively.

221. Such limitations to the right to privacy would be proportionate, in that exceptions allowing for the disclosure of information would be limited, under clause 229, to:

•

disclosures for purposes connected with the exercise of powers, or the performance of the functions or duties, of the Commissioner or Inspector-which relate to the detection, investigation and prevention of corruption; and

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disclosures to the head of a Commonwealth agency, or a State or Territory government entity, that are authorised by the Commissioner or Inspector on the basis that they are satisfied that the disclosure is appropriate, having regard to the functions of the agency or entity-this could include, for example:

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disclosing evidence of criminal corrupt conduct to the CDPP to consider prosecution;

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disclosing evidence of serious corrupt conduct by a public official to the head of that public official's agency, to consider disciplinary or administrative action against the public official-as well as any necessary remedial action to address corruption risks or vulnerabilities identified by the Commissioner or Inspector; or

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disclosing information about sophisticated money laundering activities detected in the course of a corruption investigation to the CEO of AUSTRAC, which is responsible for preventing, detecting and responding to criminal abuse of the financial system to protect the community from serious and organised crime;

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disclosures between the Commissioner and Inspector-which reflect the Inspector's functions to oversee the Commissioner and the NACC;

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disclosures that are required by another Commonwealth law; and

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disclosures to protect life or physical safety.

222. Where no exception authorising disclosure applies, the confidentiality requirements under clause 228 would make it an offence for entrusted persons to disclose information they obtain in the course of their duties.

223. Clause 233 would enable the Commissioner or the Inspector to impose confidentiality requirements on information shared with a person through this framework. That clause would make it an offence for the person to disclose information in breach of a confidentiality requirement.

224. The NACC Bill would impose additional restrictions on the disclosure of certain information. Clauses 77, 100 and 214 would set out a confidentiality framework to ensure appropriate protection of particularly sensitive investigation material-including information the disclosure of which would unreasonably disclose a person's personal affairs-and would require the Commissioner or the Inspector to issue a confidentiality direction in certain circumstances where evidence is obtained at a private hearing. Contravention of such a direction would be an offence under clause 101.

225. Clauses 95 and 96 would also enable the Commissioner and the Inspector to issue non-disclosure notations, prohibiting the disclosure of information about a notice to produce or summons. The Commissioner and Inspector would be required to do so if satisfied that failure to issue a non-disclosure notation would reasonably be expected to prejudice a person's reputation, and would have a discretion to do so if satisfied that not doing so might prejudice a person's reputation.

226. Several measures in the NACC Bill would provide protections around the use and disclosure of information that is gathered through the exercise of powers and conduct of hearings, ensuring that any limitation on the right is reasonable and proportionate.

227. The Commissioner, staff members of the NACC, the Inspector, and persons assisting the Inspector would generally not be compellable to give evidence, disclose information or produce documents in proceedings. This would protect against the disclosure of information or documents that were acquired under the NACC Bill for unintended purposes, and would reduce the risk that third parties may improperly obtain personal information obtained by the Commissioner or Inspector through discovery in proceedings-other than proceedings:

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to which a Commissioner, delegate or authorised officer, the CEO or the Inspector are party in their official capacity-for example, a challenge to the exercise of a power by the Commissioner;

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brought for the purposes of carrying into effect a provision of the NACC Bill-for example, a contempt proceeding against a person for failing to comply with a summons to appear before the Inspector; or

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being criminal, civil penalty or confiscation proceedings, brought as a result of an investigation under the NACC Bill or the referral of a corruption issue to another agency or entity.

228. The NACC Bill would further protect information that may arise in an investigation or inquiry by enabling the Commissioner and Inspector to impose confidentiality requirements on persons who receive information about investigations and inquiries-for example, where a staff member of the NACC discloses information to another law enforcement agency as part of a joint investigation. Clause 233 would enable the Commissioner or the Inspector to impose conditions on the making of a record of the information by the recipient, and any on-disclosure of the information. This would include, for example, any condition considered appropriate to protect the identity of any person of interest to an investigation or inquiry. Non-compliance with a condition would be an offence under clause 233.

Public reporting

229. The NACC Bill further engages the right to privacy by allowing for the potential disclosure of personal information contained in reports through the tabling or publication of those reports. The NACC Bill would require the tabling of reports in Parliament where a public hearing has been held in the course of an investigation, NACC investigation, or public inquiry, or where public submissions were invited on matters that were the subject of a public inquiry (clauses 155, 168 and 221). The Minister would also be able to table reports at their discretion, and the Commissioner and the Inspector would be able to publish reports and disclose other information relevant to the NACC, if satisfied it is in the public interest to do so (clauses 156, 169, 222 and 230).

Rational connection to a legitimate objective

230. Any limitation of the right to privacy as a result of the robust reporting requirements in the NACC Bill would be directed towards the legitimate objective of promoting transparency and accountability to the public. Limiting the right to privacy through the public reporting of information that identifies persons connected with corruption investigations will promote transparent reporting of findings of corrupt conduct in the Commonwealth public sector. Public reporting would also enhance the NACC's educational function by bringing to light the circumstances that contribute to corruption, and the detrimental effects of corruption on public administration and the Australian community.

Reasonable, necessary and proportionate

231. Robust and transparent reporting will at times require the tabling and publication of reports, particularly where the matters dealt with in reports are already in the public domain.

232. The disclosure of personal information in reports would be limited to circumstances to where its inclusion is necessary to ensure transparency and accountability, and would be subject to strong safeguards.

233. For example, the Commissioner and the Inspector would be required to exclude information from reports they are satisfied is sensitive information (as defined under clause 227) and that is subject to a section 235 certificate. Sensitive information would include, in particular, information the disclosure of which would involve unreasonably disclosing a person's personal affairs. Such information would instead be included in a protected information report and protected from disclosure to the public (see clauses 151 and 152 in relation to the Commissioner's investigation reports, clauses 217 and 218 in relation to the Inspector's NACC investigation reports, and clauses 199 and 272 in relation to annual reports). Clause 234 would make it a criminal offence for a person to disclose a protected information report, or information contained in a protected information report, to the public.

234. In addition, a number of reputational safeguards would prevent certain information from being reported.

Measures to protect an individual's reputation

235. The NACC Bill contains a number of measures designed to protect an individual's reputation and promote the right to privacy. These measures would balance the NACC Bill's key objective, to expose corruption in public administration, with the need to protect against undue prejudice to a person's reputation. Measures would include specific requirements when conducting corruption investigations and inquiries, and when preparing reports.

236. As set out, above, hearings would, by default, be held in private, preventing any personal information that arises in evidence from being publicly disclosed. The NACC Bill would provide the Commissioner with the discretion to hold public hearings only where the Commissioner decides that exceptional circumstances justify holding the hearing in public and it is in the public interest to do so (see Division 3 of Part 5, clause 161 and clause 214).

237. Where hearings, investigations or inquiries are held in private, the NACC Bill would also provide for non-disclosure notations and create an offence for breaches of these notations (Subdivision A, Division 4 of Part 7, clause 163 and clause 214). Non-disclosure notations would ensure the Commissioner can limit the spread of information relating to investigations or inquiries being held in private. The notation would protect the disclosure of information relating to a notice to produce information or a private hearing summons, for example, that the notice or summons exists or has been served on a particular person. Grounds for issuing a notation would include to the protect a person's reputation, to prevent prejudice to an investigation or inquiry, or to prevent harm to an individual.

238. Where hearings are held in public, the Commissioner and Inspector would have the discretion to make a statement clarifying the capacity in which a witness is appearing, in particular, whether they are appearing voluntarily or in response to a summons, and whether their conduct is the subject of the corruption investigation (clause 73). This would assist to avoid harm to a person's reputation that might arise, if there was public misunderstanding about the capacity in which the person has appeared as a witness. It would be open to a person appearing before the Commissioner or Inspector to request that they make such a statement.

239. The NACC Bill would also allow the Commissioner to issue public statements on corruption issues at any time (for example, where a person has been incorrectly identified as the subject of a corruption investigation). The NACC Bill would require certain statements be included in reports, if it would be appropriate and practicable to do so to avoid damage to a person's reputation (see subclause 149(5)).

240. The NACC Bill would further promote the right to privacy and protect against reputational risk by ensuring the NACC would operate with procedural fairness for individuals who are to be the subject of a critical finding, opinion or recommendation. Such individuals would be afforded an opportunity to respond to the adverse comment before its inclusion in a report, or prior to its publication (clauses 153, 157, 170, 166, 219, 223 and 231.)

241. These measures would ensure an appropriate balance is achieved between the exposure and prevention of corruption, and protecting against undue damage to a person's reputation.

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

242. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media.

243. However, Article 19(3) of the ICCPR provides that the exercise of the rights provided for in article 19(2) carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for the protection of national security and for the respect of individuals' rights or reputations.

244. The NACC Bill would limit the right to freedom of expression by restricting a person's ability to refer and disclose certain sensitive information. For example:

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the Attorney-General would be able to restrict a person's ability to refer information that is subject to an international relations certificate to the NACC or the Inspector (under clause 236);

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the Attorney-General would be able to restrict a person's ability to disclose information that is subject to an Attorney-General's certificate issued under clause 235;

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it would be an offence to disclose whole or part of a protected information report (under clause 234);

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the NACC would be able to restrict a person's ability to disclose certain information and material, including information subject to non-disclosure notations (under Division 4 of Part 7 (including as applied by Parts 9 and 10)).

245. The NACC Bill would also limit the right to freedom of expression by applying confidentiality requirements to certain people. For example:

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an offence for an entrusted person to make a record or disclose information obtained because of their role or in the course of their duties (clause 228);

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an offence for a person who has received information from an entrusted person relating to certain investigations and inquiries from disclosing the information (clause 233).

246. 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.

247. 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.

248. Under article 19(3) of the ICCPR, the right to freedom of expression may be subject to limitations where those limitations are provided for by law and are necessary for the protection of national security and for the respect of individuals' rights and reputations.

Rational connection to a legitimate objective

Restricting a person's ability to refer and disclose certain sensitive information

249. In the course of performing its functions, the NACC would obtain a range of sensitive information that could, if released, prejudice Australia's national security, its relationships with foreign governments, and individuals' rights to privacy and reputation. These adverse consequences would be avoided or mitigated by the limitations on the disclosure and referral of certain sensitive information contained in the NACC Bill.

250. It is necessary for the NACC to be able to prohibit the referral and disclosure of certain secret or sensitive information in its remit. The NACC Bill would not restrict the referral or disclosure of information generally; only the most sensitive information would be subject to referral or disclosure prohibitions under the NACC Bill. This includes information that, if publicly released or handled inappropriately, could harm or prejudice Australia's national security, Australia's international relations and the privacy of individuals.

251. For example, information contained in international relations certificates generally includes information communicated in confidence to Australia by foreign governments under international agreements. The referral or disclosure of the information contained in an international relations certificate could therefore significantly damage Australia's reputation and ongoing partnerships with foreign governments. Preventing the referral or disclosure of information contained in these certificates without appropriate consent is a legitimate object of the NACC Bill.

252. It is also necessary for the NACC Bill to prevent the disclosure of sensitive information pertaining to the NACC's functions, including its powers under Part 7. Permitting information contained in a notice or summons issued by the NACC, for example, could prejudice investigations and inquiries, in addition to causing harm to individuals' reputations and privacy. Ensuring this type of information is protected from disclosure under a non-disclosure notation (and under similar directions) is a legitimate object of the NACC Bill.

253. 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.

Requiring certain people to abide by confidentiality requirements

254. The NACC Bill recognises that staff members of the NACC and people conducting oversight of the NACC would have access to a range of sensitive information in the course of their duties, and that the improper use and disclosure of this information could significantly damage public trust in the NACC and the Inspector and their ability to protect confidential information they receive.

255. The NACC Bill applies a range of confidentiality requirements to entrusted persons (see clause 227), which refers to staff members of the NACC, the Inspector, and persons assisting the Inspector. If an entrusted person were to make a record of or disclose sensitive information otherwise than in the course of their duties, this could irreparably damage the NACC's reputation and significantly deter people from providing sensitive information to the NACC in future. If entities, members of the public and public officials are not willing to make disclosures or otherwise provide assistance to the NACC due to fear the information they impart would not be dealt with confidentially, the NACC would be significantly inhibited in performing its statutory functions. The restrictions on entrusted persons making records of and disclosing sensitive information-except in connection with the exercise of their powers-is a legitimate object of this Bill.

256. Requiring staff members of the NACC, and the Inspector and persons assisting them, to only handle certain sensitive information for purposes connected with their functions, powers and duties under the NACC Bill would ensure that the NACC remains a trusted recipient of sensitive information.

257. Additionally, enabling the NACC to make third parties subject to confidentiality requirements when receiving sensitive information about certain NACC investigations and inquiries would deter third parties from improperly recording or disclosing the sensitive information, thereby safeguarding NACC processes from prejudice.

258. The NACC Bill would also apply confidentiality requirements to people who receive information from entrusted persons about certain NACC corruption investigations and public inquiries. This would not be an absolute restriction on a person's ability to make records of or disclose information received from entrusted persons, but would instead provide entrusted persons with a mechanism for imposing conditions on the use of sensitive information pertaining to the NACC's processes, as appropriate in the circumstances. This would ensure that sensitive information capable of prejudicing a NACC investigation or inquiry is protected from improper use and communication by third parties. These restrictions on freedom of expression are therefore a legitimate object of the NACC Bill.

Search warrants in relation to journalists and their employers

259. 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.

260. 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.

261. 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.

262. 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.

263. 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.

264. 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

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

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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;

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disrupt a hearing; or

•

threaten a person present at a hearing.

266. 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.

Reasonable, necessary and proportionate

267. The limitations on freedom of expression outlined above would be necessary to protect information obtained by the Commissioner from inappropriate referral and disclosure. These measures are particularly important given the covert nature of investigations, inquiries and other processes undertaken by the Commissioner and the Inspector, the coercive nature of the powers available to support these functions, and the sensitive nature of information they gather from entities and individuals.

268. The NACC Bill also contains safeguards to ensure that limitations on the right to freedom of expression are necessary. For example, an Attorney-General's certificate could only be issued if the information contained in the certificate was sufficiently sensitive (see clause 235). This would include information pertaining to communications between the Commonwealth Government and the Government of a State or Territory, and information that could reveal the existence or identity of a confidential source or a staff member of an Australian intelligence entity. The referral or disclosure of information contained in an Attorney-General's certificate could have serious ramifications for Australia's national security, and restricting the communication of information contained in these certificates is therefore a legitimate object of the NACC Bill.

269. Only sufficiently sensitive information may be restricted from being recorded, referred and disclosed, including information relating to Australia's national security, international relations, the privacy and reputation of individuals, and the performance of the NACC's statutory functions generally. The limitations on the right to freedom of expression contained in the NACC Bill are therefore reasonable, necessary and proportionate.

270. Further, the penalties attaching to breaches of these restrictions under the NACC Bill are reasonable and proportionate. In the absence of serious consequences for breaches, unauthorised disclosures of certain information may undermine and jeopardise the effectiveness of the NACC or be detrimental to the operations of other regulated entities. In many cases, publicly releasing the information that is the subject of these measures could have serious ramifications beyond the functions of the NACC, including for Australia's national security. The primary effect of the penalties would therefore be to act as a deterrent, and would correlate to the seriousness of the offences.

271. To ensure that the offences are sufficiently precise and do not unnecessarily limit a person's right to freedom of expression where a disclosure is in fact permitted, many of the offences include exceptions.

272. 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.

273. 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.

274. 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.

275. 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 enjoyment of the highest attainable standard of physical and mental health contained in article 12 of the ICESCR

276. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) protects the right to the enjoyment of the highest attainable standard of physical and mental health.

277. Clauses 98 and 101 would promote this right, by ensuring appropriate safeguards are in place to protect the mental health and wellbeing of those who are the subject of, or otherwise involved in, corruption investigations. This includes ensuring that persons are able to disclose relevant information for the purposes of accessing support from a medical practitioner or psychologist.

278. Clause 98 would establish an offence for disclosing information in contravention of a non-disclosure notation attached to a notice to produce issued by the Commissioner or Inspector under clause 58, or a summons to attend a private hearing issued under clause 63.

279. Clause 101 would establish an offence for an offence to use or disclose investigation material in contravention of a direction under clause 100, and the use or disclosure was not authorised by or under the NACC Bill.

280. The offences established under both clause 98 and clause 101 would provide an exception to each offence where the disclosure was made to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

281. The availability of such an exception recognises the importance of ensuring that persons involved in corruption investigations can access mental health care, and protects the right to enjoy the highest attainable standard of mental health under Article 12 of the ICESCR.

Conclusion

282. The NACC Bill would be compatible with human rights. To the extent that the measures in the NACC Bill may limit human rights, each of those limitations are necessary, reasonable and proportionate.

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

283. The Consequential Bill would be compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Consequential Bill

284. The NACC Bill would be supported by the Consequential Bill, which would amend various Acts to give effect to the NACC.

285. Schedule 1 to the Consequential Bill would repeal the LEIC Act. That Act established ACLEI, which would transition to become part of the NACC. The Consequential Bill would repeal references to ACLEI and the LEIC Act currently contained in legislation. These would be replaced with references to the NACC and the NACC Bill. The effect of these amendments would be to support the transition of ACLEI to the NACC and confer powers on the NACC that are currently conferred on ACLEI. Many of these powers would be significant components of the NACC's overall investigative powers and would complement the powers conferred by the NACC Bill (in particular Part 7).

286. The arrangements for the NACC that are dealt with in the Consequential Bill would generally apply to the NACC in the way they currently apply to ACLEI. Exceptions to this are:

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certain decisions made by the Commissioner from review under the ADJR Act, including decisions made under Part 6 (dealing with corruption issues) and Part 7 (investigating corruption issues) of the NACC Bill;

•

allowing the NACC to undertake integrity testing of staff members of all Commonwealth agencies under Part IABA of the Crimes Act 1914, in accordance with the NACC's broader jurisdiction;

•

allowing the IGIS or the staff of the IGIS to disclose information to a staff member of the NACC if the information being disclosed is relevant to the NACC's functions or powers, and the IGIS is satisfied on reasonable grounds that the NACC has satisfactory arrangements in place to protect the information;

•

enabling a disclosure for the purposes of the PID Act to be made directly to the NACC, and enabling the NACC to issue a stop action direction to 'freeze' PID Act processes;

•

providing the NACC with access to the industry assistance framework under Part 15 of the Telecommunications Act 1997 so the agency can obtain reasonable assistance from communications providers to support the agency's powers (such as those under the TIA Act);

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authorising the Inspector-General of Taxation to make a disclosure to the NACC under the Taxation Administration Act 1953 and enabling the NACC to disclose information received from the Inspector-General for the purposes of the NACC Bill; and

•

ensuring that the Ombudsman does not have to decide not to investigate before they can make a referral to the NACC under the Ombudsman Act 1976.

287. The Consequential Bill would provide the NACC with a range of covert investigative powers consistent with those currently available to ACLEI and other law enforcement agencies. This would mean those powers may only be used to investigate criminal offending, and would be subject to thresholds concerning the seriousness of the offence and reasonableness and appropriateness of the particular power.

288. Schedule 2 to the Consequential Bill would outline the transitional arrangements necessary to support the establishment of the NACC. These arrangements would ensure the effective transition of ACLEI's existing roles and functions to the NACC.

Human rights implications

289. The measures in the Consequential Bill would engage the following human rights contained in the ICCPR:

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the right to an effective remedy contained in article 2(3);

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the right to a fair trial under article 14(1);

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the right to the presumption of innocence under article 14(2);

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the prohibition on interference with privacy, and right to reputation, under article 17;

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the right to freedom of expression under article 19(2).

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

290. Article 2(3) of the ICCPR guarantees the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities. The content of the right also includes an obligation to ensure that the competent authorities enforce such remedies when they are granted.

291. This Consequential Bill would not limit the right to an effective remedy for violations of the rights and freedoms under the ICCPR. Instead, the Consequential Bill would engage the right to an effective remedy by ensuring:

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findings and decisions of the Commissioner can be subject to judicial review;

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the NACC's use of coercive powers are subject to oversight; and

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protections for public officials under the PID Act continue to apply for disclosures made directly to the NACC (see items 163,165, 166, 167 and 168).

Judicial review

292. The Consequential Bill would protect the right to an effective remedy by ensuring findings and decisions of the Commissioner are reviewable under the ADJR Act.

293. A person would be able to seek judicial review in relation to findings and decisions under Part 8 of the NACC Bill, and judicial review more broadly under the Judiciary Act 1903 or in the High Court's original jurisdiction. For example, a finding of corrupt conduct contained in a report could be subject to judicial review. These measures would promote the right to an effective remedy. While decisions made regarding intermediate steps leading up to the commencement of an investigation or inquiry (for example, under Part 6) would not be reviewable under the ADJR Act (item 2 of Schedule 1), these are interim decisions that are excluded to ensure the NACC's statutory functions are not undermined and that investigations can be conducted in a timely manner.

Oversight of the NACC's covert powers

294. The Consequential Bill would promote the right to an effective remedy by ensuring that the NACC would be subject to effective oversight mechanisms. As is the case with other law enforcement agencies that are authorised to exercise covert powers, the NACC's use of the following covert powers would be subject to oversight by the Commonwealth Ombudsman:

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the NACC's authorisation and conduct of controlled operations under Division 4 Part IAB of the Crimes Act;

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surveillance devices and computer access powers under the SD Act;

•

telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the TIA Act; and

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the NACC's access to industry assistance framework under Part 15 of the Telecommunications Act 1997 to obtain reasonable assistance from communications providers to support the NACC's powers.

295. The NACC would also be conducted overseen by a Parliamentary Joint Committee and an independent Inspector of the NACC, to provide assurance to the Parliament, Government and the public that the NACC is performing its functions fairly and effectively.

Disclosures to the NACC

296. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information. The Consequential Bill would promote the right to an effective remedy by amending the PID Act to ensure public officials could make direct disclosures to the NACC and, in doing so, would continue to be afforded the protections available to them under the PID Act for these disclosures (items 163, 165, 166, 167and 168). These protections include protection from liabilities and reprisal actions. This amendment would ensure that public officials who refer corruption issues to the NACC do not experience detriment on the basis of the agency that they make their disclosures and are able to freely impart relevant information to the NACC.

The right to a fair trial contained in article 14(1) of the ICCPR

297. Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, and public hearing in civil proceedings. It provides that all persons shall be equal before the courts and tribunals, and, in the determination of criminal charges, or any suit at law, the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

298. The following measures in the Consequential Bill may limit the right to a fair trial:

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enabling the NACC to authorise controlled operations under Part IAB of the Crimes Act 1914 (see items 42 to 62);

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enabling the NACC to authorise integrity testing operations and to undertake integrity testing of staff members in any Commonwealth agency within the meaning of the NACC Bill (see items 63 to 88); and

•

a measure to make it a function of the ACIC to assist the NACC in making applications for integrity testing authorities and related authorities to conduct controlled operations under the Crimes Act 1914 (see item 14).

Controlled operations

299. Controlled operations under Part IAB of the Crimes Act 1914 are covert law enforcement operations conducted for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious criminal offence. For example, a controlled operation could involve a person receiving currency and providing that currency to another person to obtain evidence to be used against persons involved in money laundering.

300. ACLEI is currently one of the agencies able to authorise controlled operations under Part IAB of the Crimes Act 1914, along with the AFP and the ACIC.

301. Items 42 to 62 of the Consequential Bill would amend Part IAB to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC and the NACC Bill. Items 35 to 39 would make related amendments to the definitions in section 3 of the Crimes Act 1914.

302. These amendments would enable the NACC to authorise controlled operations under Part IAB of the Crimes Act 1914. Specifically, the amendments would allow:

•

staff members of the NACC to apply to an appropriate authorising officer for an authority to conduct a controlled operation under section 15GH; and

•

the NACC Commissioner and SES staff members of the NACC authorised in writing by the NACC Commissioner to:

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authorise controlled operations in accordance with section 15GI where those operations relate to the conduct of a corruption investigation within the meaning of the NACC Bill; and

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vary and cancel operations in accordance with sections 15GO and 15GY.

303. The gathering of evidence through a controlled operation may limit the choices a person has in defending the charges at trial.

Rational connection to a legitimate objective

304. The measures outlined above would serve the legitimate objective of facilitating the prevention and investigation of corrupt conduct. Allowing the NACC to authorise controlled operations would assist in ensuring the NACC can receive sufficient evidence to inform its investigations. The types of conduct the Commissioner would be tasked with investigating would often involve corrupt relationships and may be easy to conceal. Without such covert powers, the NACC may not receive sufficient evidence to effectively expose corrupt conduct that could be serious or systemic, frustrating the purpose of the NACC, and leaving it unable to fulfil its statutory functions.

Reasonable, necessary and proportionate

305. These measures are reasonable, necessary and proportionate to achieve the legitimate objective of facilitating the investigation and prosecution of criminal offences. Without all relevant information, the NACC may not be able to perform its functions as effectively. Conducting controlled operations would be subject to a number of limitations under the Crimes Act 1914, which would ensure that any limitation of the right to a fair trial would be proportionate.

306. The ability to authorise controlled operations is reasonable and necessary given the very nature of corrupt conduct, as public officials involved may be able to easily conceal their behaviour. For example, corrupt public officials may be in positions of power, which could make it difficult for junior officers to come forward and provide evidence. Controlled operations and integrity testing may be the only avenue to collect evidence in relation to such conduct. The power to authorise controlled operations is therefore reasonable and necessary to ensure the Commissioner can effectively facilitate the prevention and investigation of corrupt conduct.

307. The measures would be limited by appropriate safeguards, for example, a NACC authorising officer would only be able to grant authority to conduct a controlled operation if they are satisfied on reasonable grounds:

•

that either:

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a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or

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an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency; and

•

the restrictions on controlled operations and controlled conduct outline in paragraphs 15GI(2)(b) to (h) of the Crimes Act 1914 apply (these include a requirement to not conduct a controlled operation in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit, and a requirement that the nature and extent of the suspected criminal activity justify the controlled operation).

308. The admissibility of evidence gathered through a controlled operation would be subject to the rules of evidence and a court's discretion - the court would retain the discretion to exclude the evidence if it considered it had been obtained through entrapment, and where the evidence is intended to be used in proceedings it would be made available to the defendant.

309. As is the case with other law enforcement agencies that are authorised to exercise covert powers, the Commonwealth Ombudsman would oversee the NACC's authorisation and conduct of controlled operations under Division 4 of Part IAB of the Crimes Act 1914.

Integrity testing

310. Part IABA of the Crimes Act 1914 provides a framework for operations that are designed to test the integrity of staff members of the ACIC, the AFP and the Department of Home Affairs, using controlled or simulated situations. Operations may involve offering a staff member an opportunity to engage in conduct, whether lawful or unlawful, so as to contravene principles of behaviour required of persons occupying the position of such a staff member. For example, an integrity test could involve putting false information in a database to catch a person suspected of unlawfully disclosing information.

311. Integrity testing operations may currently be authorised by the agency concerned or, where a corruption issue is involved, by ACLEI. The amendments in items 63 to 88 would enable the NACC to authorise such operations and allow the NACC to undertake integrity testing of staff members in any Commonwealth agency within the meaning of the NACC Bill. Further, item 14 would amend the Australian Crime Commission Act 2002 making it a function of the ACIC to assist the NACC in making applications for integrity testing authorities and related controlled operations authorities under the Crimes Act 1914.

Rational connection to a legitimate objective

312. The measures outlined above would serve the legitimate objective of facilitating the prevention and investigation of corrupt conduct. Allowing the NACC to conduct integrity testing would act as a deterrent, furthering the NACC's legitimate objective of preventing corrupt conduct. The measures would also provide the Commissioner with another means of investigating suspected corrupt conduct that would constitute an offence. Integrity testing would allow the Commissioner to receive evidence in relation to corrupt conduct that it would likely not otherwise receive.

Reasonable, necessary and proportionate

313. The measures are reasonable and necessary to achieve the legitimate objective of investigating, exposing, and preventing corrupt conduct. Integrity testing would provide an avenue to reveal corrupt conduct in circumstances where it may be difficult to otherwise obtain evidence. As outlined above, corrupt public officials may be in positions of power, which could make it difficult for junior officers to come forward and provide evidence. The measures would enable the deterrence of corrupt conduct by encouraging public officials to consider their actions before they engage in potentially corrupt conduct, such as accepting a bribe.

314. The measures would be limited by the following safeguards:

•

the Commissioner, a Deputy Commissioner, or an SES employee of the NACC would only be permitted to authorise an integrity testing operation if they are satisfied that (sections 15JC, 15JE and 15JG of the Crimes Act 1914, as amended by items 65 to 75 and 77 to 80);

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there are reasonable grounds to suspect that an offence punishable on conviction by imprisonment for 12 months of more has been, is being, or is likely to be committed by a staff member of the target agency;

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it is appropriate in all the circumstances to conduct the operation; and

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the operation is part of a corruption investigation (within the meaning of the NACC Bill);

•

the admissibility of evidence gathered through an integrity testing operation would be subject to the rules of evidence and a court's discretion - the court would retain the discretion to exclude the evidence if it considered it had been obtained through entrapment and where the evidence is intended to be used in proceedings it would be made available to the defendant.

315. Further, authorised integrity testing operations would not constitute entrapment. The operations would be designed to ensure that the subject of the test is provided with an equal opportunity to pass or fail the test, rather than be induced to fail the test.

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

316. Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

317. The Consequential Bill would limit the right to the presumption of innocence under article 14(2) of the ICCPR, because it would place a reversed evidential burden on defendants with respect to certain offences.

318. Limitations on the right to be presumed innocent must be reasonable, necessary and proportionate to achieve a legitimate objective.

Offences containing reversed evidential burden provisions

319. Offences that contain a 'reversed evidential burden' in the Consequential Bill may amount to a limitation on the right to be presumed innocent. This includes provisions where an evidential burden is created by expressing a matter to be a defence, an exception to an offence or providing that the defendant must prove the matter. Reversing the evidential burden in this way may limit article 14(2), as a defendant's failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt. However, under international human rights law, a 'reversed evidential burden' will not necessarily limit the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification.

320. The following amendments in the Consequential Bill would introduce new offences with offence-specific defences, and new circumstances in which an existing offence containing a reversed evidential burden would apply. This would reverse the evidential burden, as the defendant would bear the burden of proving the elements of each new or amended defence.

•

Item 10 would amend the existing defence in subsection 121(2) of the Anti-Money-Laundering and Counter-Terrorism Financing Act 2006 to allow AUSTRAC entrusted persons to record, access or disclose protected information for the purposes of the NACC Bill. A defendant would bear an evidential burden of proving that the record, access or disclosure was made for the purposes of the NACC Bill.

•

Items 15 and 16 would amend the defences in subsections 21C(2) and 21C(4) of the Australian Crime Commission Act 2002 to provide that it is not an offence to disclose the existence of or information about a notice containing a non-disclosure notation if the disclosure is made as a NACC disclosure. A defendant would bear the burden of proving the disclosure was made as a NACC disclosure.

•

Items 83 to 86 would amend the defences in sections 15JQ and 15JR of the Crimes Act 1914. Under these existing provisions, it is an offence to disclose information relating to an integrity testing operation (subsection 15JQ(1)) or to disclose information relating to an integrity testing operation with the intention to endanger the health and safety of any person or to prejudice the effective conduct of an integrity testing operations. It would be a defence to both offences if the disclosure was made in connection with the administration or execution of the NACC Bill, or to the Commissioner concerning a corruption issue or misconduct in relation to an integrity testing operation. A defendant would bear the burden of proving the disclosure was made in connection with administering or executing the NACC Bill, or to the Commissioner for the specified purpose.

•

Item 201 would amend section 355-65 in Schedule 1 to the Taxation Administration Act 1953 to allow a taxation officer to make a record of and disclose protected information to the Commissioner in relation to taxation matters acquired in the course of performing their duties. It would otherwise be an offence for a taxation officer to disclose protected information. The exemption would apply if the defendant could prove that the disclosure was made to the Commissioner, for the purposes of the NACC Bill, in relation to a corruption issue relating to the ATO or the Inspector-General of Taxation.

•

Item 202 would amend the existing exception in section 355-70 in Schedule 1 to the Taxation Administration Act 1953 to the offence in section 355-25, to authorise taxation officers to disclose protected information to the NACC as a listed law enforcement agency. A defendant would bear the burden of proving the disclosure was made to an officer of the NACC as an authorised law enforcement agency, and was for the purpose of investigating a serious offence, enforcing a law the contravention of which would be a serious offence, or making, supporting or enforcing a proceeds of crime order.

•

Item 203 would insert new section 355-192, which would create two new exceptions to the offence in Section 355-155 in Schedule 1 to the Taxation Administration Act 1953. This offence prohibits on-disclosure of protected information by specified persons who have received protected information from a taxation officer for a permitted purpose. The first new exception would apply to the Inspector-General of Taxation, if they made the record or disclosure to the Commissioner or a staff member of the NACC for the purposes of the NACC Bill in relation to a corruption issue relating to the ATO or the Inspector-General of Taxation. The second new exception would apply to the Commissioner or another staff member of the NACC if they received the protected information from the Inspector-General of Taxation, and made the record or disclosure for the purpose of performing a function or duty of the Commissioner or another staff member of the NACC under the NACC Bill. A defendant would bear the burden of proving that the record or disclosure was made in the circumstances permitted by the relevant new exception.

•

Item 262 would amend the offence-specific defences in paragraphs 22(5)(c), 22A(5)(c) and 22B(3)(c) of the Witness Protection Act 1994 to provide that it is not an offence to disclose information about individuals who are participants in the National Witness Protection Program if the disclosure is made as a NACC disclosure. A defendant would bear the burden of proving the disclosure was made as a NACC disclosure.

Rational connection to a legitimate objective

321. The reversed evidential burden provisions in items 10, 15, 16, 83-86, 201-203 and 262 requiring a defendant to prove that their alleged unlawful recording or disclosure of sensitive information was in fact permitted or authorised serve the legitimate objective of:

•

preventing the disclosure of sensitive information that could, for example, harm or prejudice a criminal investigation, an integrity testing operation, or the safety of a person;

•

preventing the disclosure of sensitive information that would unreasonably interfere with a person's privacy, or that could reveal the identity of a person where this is not appropriate or safe; and

•

preventing the disclosure of information that could prejudice a NACC or Inspector's investigation or inquiry.

322. Requiring a defendant to prove that an alleged unlawful recording or disclosure of sensitive information was in fact permitted or authorised would put persons subject to non-disclosure obligations on notice to ensure they only disclose protected information if they have appropriate authorisation. This is likely to encourage persons subject to non-disclosure obligations to properly apprise themselves of when a recording or disclosure is or is not permitted under the Consequential Bill. This would reduce the risk of harm or prejudice to criminal investigations, integrity testing operations, and the safety and privacy of individuals.

Reasonable, necessary and proportionate

It is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant 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 (as in items 10, 15, 16, 83-86, 201-203 and 262). 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.

323. Reversed evidential burden provisions are proportionate because, consistent with section 13.3 of the Criminal Code, this burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that a particular matter exists or does not exist. It does not require the defendant to prove those matters beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will also be required to disprove those matters beyond reasonable doubt. The reversed evidential burden provisions in the Consequential Bill also create or amend offence-specific defences that operate in addition to, not instead of, the general defences available at criminal law.

The prohibition on interference with privacy contained in article 17 of the ICCPR

324. Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person's privacy, family, home and correspondence, and prohibits unlawful attacks on a person's reputation.

325. The Human Rights Committee has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy may be limited where the limitation is lawful and not arbitrary, and where it is reasonable, necessary and proportionate to achieve a legitimate objective.

326. A number of measures in the Consequential Bill would engage this right, by providing for amendments to a number of Commonwealth Acts that would:

•

provide the NACC with information gathering powers;

•

provide the NACC with covert investigation powers; and

•

allow for further information sharing mechanisms (in addition to those provided for under the NACC Bill).

Information gathering powers under existing legislation

327. This Consequential Bill would also engage the right to privacy, by amending relevant legislation to provide the Commissioner with a number of information gathering powers. These powers would allow for interference with individual's privacy through the gathering of personal information.

328. Items 4 to 10 and 112 to 116 of Schedule 1 would give the NACC further powers to compel information from reporting entities and cash dealers under the AML/CTF Act and the Financial Transactions Reports Act 1988. Amendments to these Acts would allow the Commissioner to obtain information about financial transactions that may be relevant to a corruption issue under investigation by the NACC.

329. The Consequential Bill would also make a number of amendments to the POC Act (items 158 to 162), including giving the Commissioner powers to:

•

obtain information under a notice to a financial institution;

•

access property-tracking documents under a production order;

•

obtain information under a monitoring order;

•

apply for a search warrant; and

•

exercise search powers without a warrant in emergency situations.

330. Generally, these amendments would provide the Commissioner (and other staff members of the NACC) with powers to seek information about accounts held by a person of interest to a corruption investigation and to search for and seize tainted property (such as proceeds of an offence) and evidential material (such as benefits derived from commission of an offence).

Rational connection to a legitimate objective

331. Limitations on the right to privacy through allowing the NACC to obtain information under existing laws would be necessary to achieve to the fundamental aim of the NACC to investigate, expose and prevent corruption.

332. Serious and systemic corruption have significant detrimental impacts on public administration and can erode trust in the Government, Parliament and democracy. Vesting the NACC with these powers would ensure the Commissioner can investigate serious or systemic corruption within the Commonwealth public sector.

333. The ability to exercise information gathering powers ensures the Commissioner can obtain material relevant to the NACC's objectives. Enabling the NACC to receive all relevant information would be critical for making findings of fact in relation to corruption issues and making robust recommendations directed at preventing corruption or mitigating against any adverse consequences of corruption. These powers would enable the Commissioner to access information and data that would not otherwise be available, and may be critical to an investigation.

Reasonable, necessary and proportionate

334. To undertake its key function of investigating corrupt conduct, the NACC would necessarily be invested with a range of information gathering powers - similar to other investigative bodies. These powers would be limited to situations in which it would be relevant to an investigation into suspected serious or systemic corruption of a criminal nature, and where relevant thresholds are met for use of each power.

335. Money laundering is a key enabler of criminal activity, including offending related to corruption. Information obtained under the AML/CTF Act and the Financial Transactions Reports Act 1988 should be available to assist the investigation of corruption issues involving corrupt conduct that may be serious or systemic.

336. Providing the NACC with the powers available under the POC Act are reasonable in that these powers are intended to prevent a person who has committed an offence from being able to enjoy the benefit, or reinvest the proceeds, of their criminal conduct. These powers act as a disincentive to possible criminal corrupt actors by minimising any profit motive.

337. The oversight arrangement set out under the NACC Bill would play a critical role in ensuring the exercise of these powers is reasonable, necessary and proportionate. Oversight through a Parliamentary Joint Committee and an independent Inspector of the NACC would provide assurance to the Parliament, Government and the public that the NACC is performing its functions fairly and effectively.

Covert investigative powers

338. This Consequential Bill would also engage the right to privacy, by amending relevant legislation to provide the Commissioner with a number of covert investigative and electronic surveillance powers. These powers would allow for interference with individual's privacy through the surveillance and gathering of personal information.

339. These measures would engage the right to privacy, by allowing the collection, use and storage of personal data related to individuals.

340. In particular, the Consequential Bill would engage the right to privacy through amendments to the SD Act (items 188 to 204) and the TIA Act (see items 206 to 260). This would provide the NACC:

•

surveillance device powers under the SD Act;

•

computer access powers under the SD Act;

•

interception powers for serious offences under the TIA Act;

•

access to stored communications (for example emails, SMS or voice messages stored on equipment) under the TIA Act; and

•

access to telecommunications data under the TIA Act.

341. Information gathered using these powers may consist of personal information. The use of information gathered under these Acts would be subject to the limitations of each Act around the use or disclosure of this information.

342. In addition, items 263 to 270 would amend the Telecommunications Act 1997 to give the NACC and certain state agencies access to the industry assistance framework under Part 15 of the Act. This would provide the NACC and state agencies with ancillary powers to request assistance from communications providers to access encrypted information stored on devices gathered through the NACC's exercise of other powers.

Rational connection to a legitimate objective

343. Limitations on the right to privacy through obtaining information through covert investigative powers would be necessary to achieve the fundamental aim of the NACC to investigate, expose and prevent corrupt conduct.

344. Serious and systemic corruption have significant detrimental impacts on public administration and can erode trust in the Government, Parliament and democracy. Vesting the NACC with these powers would ensure the Commissioner can investigate serious or systemic corruption within the Commonwealth public sector.

345. The ability to exercise covert investigative and surveillance powers ensures the Commissioner can obtain material relevant to the NACC's objectives. Enabling the NACC to receive relevant information would be critical for making findings of fact in relation to corruption issues and making robust recommendations directed at preventing corruption or mitigating against any adverse consequences of corruption. These powers would enable the Commissioner to access information and data that would not otherwise be available, and may be critical to an investigation.

346. Vesting certain state agencies with industry assistance powers would ensure state-based anti-corruption agencies can obtain reasonable assistance from communications providers to support their investigation functions.

Reasonable, necessary and proportionate

347. The NACC would be invested with a range of investigative powers in order to effectively undertake its key function of investigating corrupt conduct. These covert powers would be limited to situations in which it would be relevant to an investigation into suspected serious or systemic corruption of a criminal nature, and where the offence is of sufficient seriousness to meet the threshold for use of each power.

348. Decisions about the issuing of warrants and orders to the NACC authorising the use of covert electronic surveillance powers under the SD Act and TIA Act would need to be made by an eligible Judge of a federal superior court of record-being the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 1). Restricting the power to issue electronic surveillance warrants to the NACC to senior members of the federal judiciary would provide greater assurance that any exercise of the powers authorised by those warrants would meet the statutory criteria for the issue of those warrants.

349. Thresholds would apply for the issuing of surveillance device and computer access warrants under the SD Act. An eligible Judge of a federal superior court of record may grant such warrants for a corruption investigation by the Commissioner if satisfied that there are reasonable grounds for the Commissioner's suspicions that:

•

one or more relevant offences have been, are being, are about to be, or are likely to be, committed;

•

an investigation into those offences is being, will be, or is likely to be, conducted; and

•

the use of a surveillance device, or access to data held in a computer, is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders.

350. Similarly, under the TIA Act, an eligible Judge of a federal superior court of record may grant an interception warrant if satisfied that, among other things, there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the relevant telecommunications service, and that the information obtained would be likely to assist in connection with the investigation of a serious offence in which the person (or a person with whom they are communicating) is involved. A serious offence is defined in section 5D of the TIA Act.

351. In addition, in determining whether a warrant or production order should be issued under the SD Act or the TIA Act, the issuing Judge would also be required to have regard to the extent to which the privacy of any person is likely to be interfered with as a result of exercising the warrant, and the existence of any alternative means of obtaining the evidence or information (subsections 16(2) and 27C(2) of the SD Act, subsections 46(2), 46A(2), 116(2) and 180F of the TIA Act, and subclauses 30(5), 39(5) and 48(5) of Schedule 1 to the TIA Act).

352. The oversight arrangement set out under the NACC Bill would play a critical role in ensuring the exercise of these powers is reasonable, necessary and proportionate. Oversight through a Parliamentary Joint Committee and an independent Inspector of the NACC would provide assurance to the Parliament, Government and the public that the NACC is performing its functions fairly and effectively.

353. These oversight mechanisms would operate in addition to the Commonwealth Ombudsman's oversight of the NACC's exercise of covert investigative powers. As is the case with other law enforcement agencies that are authorised to exercise covert powers, the Ombudsman would oversee the NACC's use of the following mechanisms:

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surveillance devices and computer access powers under the SD Act;

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telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the TIA Act; and

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industry assistance under the Telecommunications Act 1997.

354. The Commonwealth Ombudsman would also provide oversight of state-based anti-corruption commissions to the extent they exercise industry assistance powers.

355. Oversight by the Commonwealth Ombudsman would provide further assurance that the exercise of powers that limit the right to privacy are reasonable, necessary and proportionate.

Information sharing

356. The Consequential Bill would further engage the right to privacy in that it would allow for reciprocal information sharing between the Commissioner and relevant agencies. The information that may be shared through these arrangements may include personal information, or information considered to fall within the scope of the right to privacy.

357. A number of measures in Schedule 1 Part 2 of the Consequential Bill would provide for reciprocal information sharing between agencies and the Commissioner.

358. For example, items 4 to 10 would amend the AML/CTF Act to provide that information may be shared between the Commissioner (and other staff members of the NACC) and AUSTRAC for the purposes of the Consequential Bill, or in connection with the performance or exercise of the person's functions, powers or duties. Similar information sharing arrangements would be made for the AFP Act (items 20 to 33), the IGIS Act (items 117 to 121) and the Data Availability and Transparency Act 2021 (items 108 to 111).

359. Schedule 1 of the Consequential Bill would also amend the Crimes Act 1914, to allow constables and Commonwealth officers to use and share documents and things that have been seized or produced under the Crimes Act 1914 for corruption investigations, public inquiries, NACC corruption investigations and NACC complaint investigations (items 40 and 41).

Rational connection to a legitimate objective

360. The information sharing mechanisms provided for under the Consequential Bill would be critical to supporting both the Commissioner's and the Inspector's investigation and inquiry functions, by allowing other agencies to refer relevant information and material where appropriate.

361. Limiting the right to privacy through the disclosure of personal information, including identifying information, would enable the Commissioner or the Inspector to aid a corruption investigation being undertaken jointly with another agency, or a related investigation being undertaken by a Commonwealth agency, or a State or Territory government entity. This recognises the NACC's prevention functions as part of a broader integrity framework, and its role in supporting the proper enforcement of the law.

Reasonable, necessary and proportionate

362. Information sharing is particularly necessary, given the nature of the matters that the Commissioner may work on and the potential for overlap with the work of other Commonwealth integrity agencies and law enforcement agencies such as the AFP.

363. Effective information sharing mechanisms would be necessarily dependent on partial limitations to the right to privacy. It would be necessary at times for agencies to share personal information, including identifying information and information regarding a person's conduct, with the NACC to support its anti-corruption functions.

364. Such limitations to the right to privacy would be proportionate, in that exceptions allowing for the disclosure of information are limited to targeted anti-corruption and law enforcement purposes under the Consequential Bill and other Acts of the Commonwealth. For example, such purposes would include allowing the AFP to share a document obtained in the course of a criminal investigation with the NACC where it is relevant to a corruption investigation.

365. On this basis, limitations to the right to privacy are reasonable, necessary and proportionate to achieve the legitimate objective of conducting investigations or inquiries under the Consequential Bill, while preventing the disclosure of sensitive information and ensuring relevant powers are exercised with proper authority and subject to appropriate safeguards and oversight.