Senate

Revised Explanatory Memorandum

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

PART 5 REFERRING CORRUPTION ISSUES

5.1 This Part would create voluntary and mandatory pathways for the referral of corruption issues to the Commissioner. A broad pathway for voluntary referrals and targeted requirements for mandatory referrals would ensure the Commissioner receives sufficient information to identify potential corrupt conduct and deal with corruption issues.

5.2 The voluntary pathway would provide for referrals to be made to the Commissioner by any person, including members of the public. This broad voluntary referral pathway would ensure the Commissioner can receive information critical to its functions, regardless of its source.

5.3 The mandatory referral obligations would apply to Commonwealth agencies. It would generally be a requirement for the heads of Commonwealth agencies and certain staff members of Commonwealth agencies to refer corruption issues involving a current or past staff member of their agency where they suspect it could involve corrupt conduct that is serious or systemic.

Division 1-Voluntary referrals

Clause 32-Any person may refer corruption issue

5.4 This clause would allow any person to voluntarily refer a corruption issue or provide information about a corruption issue to the Commissioner. This would ensure that all people, including members of the public, are able to refer corruption issues to the Commissioner. This is appropriate to ensure that anyone can refer a potential corruption issue to the Commissioner without limitation.

5.5 Under this clause, the Commissioner would be able to request that a referral or information is to be provided to the Commissioner in a particular way. For example, the Commissioner would be able to request that a referral be given in writing rather than orally.

5.6 The Commissioner would also be able to request the referral or information be accompanied or supported by further information. For example, information given to the Commissioner may be insufficient to allow the Commissioner to determine whether the corruption issue being referred is serious or systemic for the purposes of clause 41. In this situation, the Commissioner could request further information be included in the referral or be provided to support their consideration of a matter. However, a person would not be required to comply with the request.

5.7 The ability to request further information is appropriate to enable the Commissioner to receive as much relevant information as possible about a potential corruption issue to support their assessment of how to deal with a corruption issue.

Division 2-Mandatory referrals

5.8 This Division would create mandatory referral obligations for:

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a head of a Commonwealth agency, including specific obligations for the head of an intelligence agency;

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staff members of Commonwealth agencies who have certain responsibilities under the PID Act; and

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the IGIS.

5.9 The obligation on a head of an agency or relevant staff members to refer matters to the Commissioner (or alternatively to the IGIS in the case of intelligence agencies) would arise where the person becomes aware that there is a corruption issue:

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that concerns the conduct of a person who is, or was, a staff member of their agency while that person is, or was, a staff member; and

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they suspect the issue could involve corrupt conduct that is serious or systemic.

5.10 This would ensure that mandatory referrals received by the Commissioner are aligned as much as possible with the Commissioner's threshold for commencing an investigation (see paragraphs 6.13 to 6.25). This complements the voluntary referral pathway that allows any person to refer a corruption issue to the Commissioner (see clause 32).

5.11 The meaning of the term serious or systemic is discussed further in paragraphs 6.17 to 6.20. The Commissioner would also be permitted to issue guidance to agencies to, among other things, assist agencies to determine whether alleged conduct would constitute serious or systemic corrupt conduct (see clause 279). It is expected that this guidance would be developed and updated over time and in response to the nature and volume of referrals that agencies make, agencies' experiences with complying with this Division, and the Commissioner's assessment of risk.

5.12 The requirement for the agency head or relevant staff member to 'suspect' that the issue could involve corrupt conduct that is serious or systemic is a lower threshold than 'belief' or 'knowledge'. 'Suspicion' necessarily connotes the existence of uncertainty and it is immaterial whether the suspected serious or systemic nature of the alleged conduct exists. Further, the test would be subjective, going to the genuinely held suspicions of the person potentially subject to the referral obligation.

Clause 33-Mandatory referral-Commonwealth agencies other than intelligence agencies

5.13 This clause would create an obligation for a head of a Commonwealth agency to refer corruption issues to the Commissioner. Commonwealth agencies and the head of those agencies are defined in clause 11.

5.14 The mandatory referral obligation applies where an agency head becomes aware of a corruption issue concerning the conduct of a person who was a staff member of the agency at the time of the alleged conduct. As defined in clause 9, a corruption issue is an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct. Corrupt conduct is defined in clause 8.

5.15 The obligation to refer the issue only arises if the agency head suspects that the issue could involve corrupt conduct that is serious or systemic. This is appropriate to ensure that referrals that are unlikely to be dealt with by the Commissioner are not required to be referred and continue to be dealt with by the relevant agency.

5.16 The meaning of the term serious or systemic is discussed further in paragraphs 6.17 to 6.20. The Commissioner would also be permitted to issue guidance to agencies to, among other things, assist agencies to determine whether alleged conduct would constitute serious or systemic corrupt conduct (see clause 279). This guidance would be likely to be developed and updated over time and in response to the nature and volume of referrals that agencies make, agencies' experiences with complying with this Division, and the Commissioner's assessment of risk.

5.17 The requirement for the agency head to 'suspect' that the issue could involve corrupt conduct that is serious or systemic would be intended to operate as a low threshold, and can be contrasted with the other common legislative standards requiring a higher threshold, such as 'belief' and 'knowledge'. 'Suspicion' necessarily connotes the existence of uncertainty and it is immaterial whether the suspected serious or systemic nature of the alleged conduct exists. Further, the test would be subjective, going to the genuinely held suspicions of the person potentially subject to the referral obligation.

5.18 The mandatory referral obligations would only arise when the agency head becomes personally aware of the corruption issue, regardless of how this awareness occurs. The obligation would apply regardless of when the relevant conduct occurred, including if it occurred prior to the agency head joining the agency or prior to establishment of the NACC.

5.19 The mandatory referral obligations would only arise when the agency head becomes aware of the corruption issue after the commencement of this clause. The obligation would not apply to corruption issues that the agency head may have already been aware of prior to the commencement of this clause. This is intended to ensure that agency heads are not required to refer corruption issues to the Commissioner that may already be under investigation or that have previously been fully investigated, or that have been otherwise dealt with. This would not preclude an agency head from referring a corruption issue that they are already aware of to the Commissioner under clause 32.

5.20 Where a mandatory referral is made under this clause, the agency head must state in the referral the reasons why they suspect that the issue could involve corrupt conduct that is serious or systemic. This will assist the Commissioner to determine whether the corrupt conduct being referred is likely to meet the Commissioner's threshold for commencing an investigation.

5.21 The requirements under this clause would not apply to the head of an intelligence agency as this is instead dealt with in clause 34.

5.22 Exceptions to the mandatory referral obligation in clause 37 provide that the agency head is not required to refer a corruption issue to the Commissioner if they believe on reasonable grounds that the Commissioner is already aware of this issue or a determination made by the Commissioner provides that a referral is not required.

Clause 34-Mandatory referral-intelligence agencies

5.23 This clause would create an obligation for the head of an intelligence agency to refer corruption issues to the Commissioner or the IGIS. Consistent with the definition in clause 7 (see paragraph 1.90), intelligence agencies covered by this obligation are:

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the Australian Geospatial-Intelligence Organisation;

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ASIS;

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ASIO;

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the Australian Signals Directorate;

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the Defence Intelligence Organisation; and

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the Office of National Intelligence.

5.24 The heads of these agencies are defined in clause 11.

5.25 The mandatory referral obligation applies where the head of an intelligence agency becomes aware of a corruption issue concerning the conduct of a person who was a staff member of the intelligence agency at the time of the alleged conduct. As defined in clause 9, a corruption issue is an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct. Corrupt conduct is defined in clause 8.

5.26 The obligation to refer the issue only arises if the head of the intelligence agency suspects that the issue could involve corrupt conduct that is serious or systemic. This is appropriate to ensure that referrals that are unlikely to be dealt with by the Commissioner are not required to be referred and continue to be dealt with by the relevant agency.

5.27 The meaning of the term serious or systemic is discussed further in paragraphs 6.17 to 6.20. The Commissioner would also be permitted to issue guidance to agencies to, among other things, assist agencies to determine whether alleged conduct would constitute serious or systemic corrupt conduct (see clause 279). This guidance would likely be developed and updated over time and in response to the nature and volume of referrals that agencies make, and agencies' experiences with complying with this Division, and the Commissioner's assessment of risk.

5.28 The requirement for the head of the intelligence agency to 'suspect' that the issue could involve corrupt conduct that is serious or systemic would be intended to operate as a low threshold, and can be contrasted with the other common legislative standards requiring a higher threshold, such as 'belief' and 'knowledge'. 'Suspicion' necessarily connotes the existence of uncertainty and it is immaterial whether the suspected serious or systemic nature of the alleged conduct exists. Further, the test would be subjective, going to the genuinely held suspicions of the person potentially subject to the referral obligation.

5.29 The mandatory referral obligations would only arise when the head of the intelligence agency becomes personally aware of the corruption issue, regardless of how this awareness occurs. The obligation would apply regardless of when the relevant conduct occurred, including if it occurred prior to the head joining the intelligence agency or prior to establishment of the NACC.

5.30 The mandatory referral obligations would only arise when the agency head becomes aware of the corruption issue after the commencement of this clause. The obligation would not apply to corruption issues that the agency head may have already been aware of prior to the commencement of this clause. This is intended to ensure that agency heads are not required to refer corruption issues to the Commissioner or the IGIS that may already be under investigation or that have previously been fully investigated, or have been otherwise dealt with. This would not preclude an agency head from referring a corruption issue that they are already aware of to the Commissioner under clause 32, or to the IGIS under the IGIS Act.

5.31 Providing intelligence agency heads with a discretion to refer a matter to either the Commissioner or to the IGIS would enable the head of an intelligence agency to determine which is the most appropriate body to refer the corruption issue to on a case-by-case basis. For example, there may be circumstances where it is more appropriate for a referral to be made to the IGIS given its oversight role and extensive experience in relation to the legality and propriety of the conduct of intelligence agencies.

5.32 Where a referral is made under this clause, the head of the intelligence agency must state in the referral the reasons why they suspect that the issue could involve corrupt conduct that is serious or systemic. This will assist the IGIS and the Commissioner to determine whether the corrupt conduct being referred is likely to meet the Commissioner's threshold for commencing an investigation.

5.33 Exceptions to the mandatory referral obligation in clause 37 provide that the agency head is not required to refer a corruption issue to the Commissioner or the IGIS if they believe on reasonable grounds that the Commissioner or the IGIS is already aware of this issue or a determination made by the Commissioner provides that a referral is not required.

5.34 This clause would provide that when the head of an intelligence agency refers a corruption issue to the Commissioner, they must notify the IGIS of the referral as soon as reasonably practicable. As the standing oversight body for intelligence agencies, this provides visibility to the IGIS of allegations of corruption, allowing the IGIS to effectively perform their oversight role.

5.35 If the head of an intelligence agency refers the corruption issue to the IGIS, the IGIS would be required to consider the issue. If the IGIS is satisfied that the issue is likely to involve corrupt conduct that is serious or systemic, the IGIS would be required to refer the issue to the Commissioner. This ensures that all issues likely to involve serious or systemic corruption make their way to the Commissioner, who may then decide how to deal with the issue (see Part 6). It also provides the Commissioner with comprehensive visibility of the nature of corruption issues arising across the Commonwealth.

5.36 For the referral obligation to arise for the IGIS, the IGIS would require a higher level of certainty than a suspicion that the issue involves corrupt conduct that is serious or systemic. The IGIS must be satisfied that the issue is likely to involve corrupt conduct that is serious or systemic. This higher threshold recognises the oversight role and extensive experience of the IGIS in relation to the legality and propriety of the conduct of intelligence agencies.

5.37 The IGIS would not be required to consider the likelihood that the alleged conduct occurred, as that is a matter for any investigation. A corruption issue would concern serious or systemic corrupt conduct if the alleged conduct is serious or systemic, regardless of whether that conduct is likely to have occurred.

Clause 35-Mandatory referral-Public Interest Disclosure Act disclosures

5.38 This clause would create a mandatory referral obligation for staff members of a Commonwealth agency with certain responsibilities under the PID Act (a PID officer). This would ensure that corruption issues that come to the attention of a Commonwealth agency through a PID Act process are referred to the Commissioner at the earliest possible opportunity.

5.39 This clause recognises that there would be overlap between the types of disclosable conduct that can be dealt with under the PID Act and alleged corrupt conduct that can be dealt with under the NACC Bill. Under the PID Act, a public official can make an internal disclosure to their supervisor or an authorised officer. An authorised officer must allocate an internal disclosure to an agency for investigation unless satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure (section 43 of the PID Act). Subject to certain exceptions, the principal officer of that agency or their delegate must investigate the internal disclosure (section 47 of the PID Act).

PID officers

5.40 The mandatory referral obligation would apply to PID officers, which would include:

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authorised officers who have functions and powers in relation to the allocation of internal disclosures under Division 1 of Part 3 of the PID Act; and

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other persons (in this Explanatory Memorandum, investigating officers), who have functions and powers in relation to the investigation of internal disclosures under Division 2 of Part 3 of the PID Act.

Authorised officers

5.41 Division 1 of Part 3 of the PID Act details the functions and powers conferred on an authorised officer when an internal disclosure is made to that officer. Section 36 of the PID Act provides that an authorised officer is the principal officer of the agency or a public official of that agency appointed as an authorised officer by the principal officer. Under the PID Act, authorised officers may receive an internal disclosure and allocate the disclosure to another person for investigation.

5.42 If an authorised officer, in the course of performing their functions under the PID Act, received an internal disclosure under the PID Act that raised a corruption issue they suspect could involve corrupt conduct that is serious or systemic and that concerns the conduct of a person who was a staff member of the agency at the time of the alleged conduct, the authorised officer would be required to refer the issue to the Commissioner. This obligation on authorised officers applies even if the authorised officer considers the disclosure was not an internal disclosure under the PID Act, provided the information raising the corruption issue came to them in their capacity as an authorised officer.

5.43 If the authorised officer is a staff member of an intelligence agency, they would be required to refer the issue to either the Commissioner or the IGIS, consistent with the obligation on the heads of those agencies.

5.44 If an authorised officer handling the corruption issue is unsure whether the issue involves serious or systemic corruption, the officer would be able to have regard to any guidelines issued by the Commissioner under clause 279.

5.45 The obligation would arise once the authorised officer became aware of the corruption issue and suspected that it involved corrupt conduct that is serious or systemic, including after receiving an internal disclosure.

Investigating officers

5.46 Division 2 of Part 3 of the PID Act confers functions and powers on the principal officer of an agency and their delegates (an investigating officer) to investigate an internal disclosure allocated under Division 1 of that Part. The principal officer of an agency is defined in section 73 of the PID Act.

5.47 Generally, the principal officer is the same person as the head of a Commonwealth agency under the NACC Bill. However, the heads of agencies may have delegated their powers and functions under the PID Act and the NACC Bill to different officers. As a result, those officers investigating internal disclosures under the PID Act (investigating officers) may have greater awareness of corruption issues.

5.48 If an internal disclosure made or investigated under the PID Act raises a corruption issue, an investigating officer who suspects the issue could involve corrupt conduct that is serious or systemic and that concerns a person who was a staff member of the agency at the time of the alleged conduct, would be required to refer the issue to the Commissioner. If the principal officer is a staff member of an intelligence agency, they would be required to refer the issue to either the Commissioner or the IGIS. This requirement on investigating officers applies even if they consider the disclosure was not an internal disclosure under the PID Act, provided the information raising the corruption issue came to them in their capacity as an investigating officer.

5.49 The obligation would arise once the investigating officer became aware of the corruption issue, including after receiving a disclosure from an authorised officer or during the course of a disclosure investigation.

The mandatory referral obligation

5.50 The obligation arises where a PID officer becomes aware of a corruption issue that concerns the conduct of a person who was a staff member of the agency at the time of the alleged conduct. As defined in clause 9, a corruption issue is an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct. Corrupt conduct is defined in clause 8.

5.51 The obligation to refer the issue only arises if the PID officer suspects that the issue could involve corrupt conduct that is serious or systemic. This is appropriate to ensure that referrals that are unlikely to be dealt with by the Commissioner are not required to be referred and continue to be dealt with by the relevant agency under the PID Act.

5.52 The meaning of the term serious or systemic is discussed further in paragraphs 6.17 to 6.20. The Commissioner would also be permitted to issue guidance to agencies to, among other things, assist agencies to determine whether alleged conduct would constitute serious or systemic corrupt conduct (see clause 279). This guidance would likely be developed and updated over time and in response to the nature and volume of referrals that agencies make, and agencies' experiences with complying with this Division.

5.53 The requirement for the PID officer to 'suspect' that the issue could involve corrupt conduct that is serious or systemic would be intended to operate as a low threshold, and can be contrasted with the other common legislative standards requiring a higher threshold, such as 'belief' and 'knowledge'. 'Suspicion' necessarily connotes the existence of uncertainty and it is immaterial whether the suspected serious or systemic nature of the alleged conduct exists. Further, the test would be subjective, going to the genuinely held suspicions of the person potentially subject to the referral obligation.

5.54 The obligation would apply regardless of when the relevant conduct occurred, including if it occurred prior to establishment of the NACC. The obligation would not arise if the corruption issue did not relate to the person's agency. However, the mandatory referral obligations would only arise when the PID officer becomes aware of the corruption issue after the commencement of this clause. The obligation would not apply to corruption issues that the PID officer may have already been aware of prior to the commencement of this clause. This is intended to ensure that PID officers are not required to refer corruption issues to the Commissioner or the IGIS (as the case may be) that may already be under investigation or that have previously been fully investigated, or have been otherwise dealt with. This would not preclude a PID officer from referring a corruption issue that they are already aware of to the Commissioner under clause 32, or to the IGIS under the IGIS Act or PID Act.

5.55 The mandatory referral obligation would apply to relevant corruption issues that form all or part of a PID made to the PID officer, or a corruption issue that the PID officer becomes aware of in the course of performing their functions under the PID Act. This is appropriate to ensure that the Commissioner still receives referrals relating to corruption issues, even where the corruption issue forms part of a PID that also concerns other alleged misconduct, for example, maladministration.

5.56 Exceptions to the mandatory referral obligation in clause 37 provide that the PID officer is not required to refer a corruption issue to the Commissioner if they believe on reasonable grounds that the Commissioner is already aware of this issue (for example if it has already been referred by the agency head responsible for the PID officer's agency) or a determination made by the Commissioner provides that a referral is not required.

5.57 In addition, a referral to the Commissioner would not prevent a PID officer from being able to continue to handle the disclosure in accordance with the PID Act (see clause 39 and paragraphs 5.91 to 5.95), unless the Commissioner has issued a stop action direction (see clause 43). This is appropriate to ensure that PID officers are still able to meet their obligations under the PID Act following a referral.

Additional steps for corruption issues concerning intelligence agencies

5.58 If a PID officer refers a corruption issue concerning an intelligence agency under this clause, additional requirements would apply.

5.59 If the PID officer referred the issue to the Commissioner, the PID officer would be required to notify the IGIS as soon as practicable. As the standing oversight body for intelligence agencies, this provides visibility to the IGIS of allegations of corruption, allowing the IGIS to effectively perform their oversight role.

5.60 If the PID officer referred the issue to the IGIS, the IGIS would be required to consider the issue. If the IGIS is satisfied that the issue is likely to involve corrupt conduct that is serious or systemic, the IGIS would be required to refer the issue to the Commissioner. This ensures that all issues involving serious or systemic corruption make their way to the Commissioner, who may then decide how to deal with the issue (see Part 6). It also provides the Commissioner with comprehensive visibility of the nature of corruption issues arising across the Commonwealth.

5.61 For the referral obligation to arise for the IGIS under this clause, the IGIS would require a higher level of certainty than a suspicion that the issue involves corrupt conduct that is serious or systemic. The IGIS must be satisfied that the issue is likely to involve corrupt conduct that is serious or systemic. This higher threshold recognises the oversight role and experience of the IGIS in relation to the conduct of intelligence agencies, agencies' compliance with the law and the propriety of agencies' activities.

5.62 The IGIS would not be required to consider the likelihood that the alleged conduct occurred, as that is a matter for any investigation. A corruption issue would concern serious or systemic corrupt conduct if the alleged conduct is serious or systemic, regardless of whether that conduct is likely to have occurred.

Notification to discloser

5.63 This clause would also provide that where a PID officer refers a corruption issue that arose from an internal disclosure made under the PID Ac t, the PID officer must, as soon as reasonably practicable, notify the discloser that their disclosure has been referred to the Commissioner or to the IGIS. Ensuring the discloser is notified of such a referral is consistent with a PID officer's obligations under the PID Act to keep disclosers informed of how their disclosure is being dealt with (see for example subsection 44(2) and section 50 of that Act). The obligation to notify the discloser does not create a requirement for the Commissioner or the IGIS to deal with the issue, or create a requirement for the PID officer to cease dealing with the disclosure under the PID Act.

Clause 36-Mandatory referral-secrecy protection provisions

5.64 This clause would ensure the obligation to refer a corruption issue under this Division would still apply despite any secrecy provision, with the exception of an exempt secrecy provision (see paragraph 1.72). This is appropriate to enable the Commissioner to receive as much information about a corruption issue as possible-including where that information is subject to a secrecy provision-which would be critical for the efficacy of the NACC's investigation function.

5.65 Arrangements in Part 11 of the NACC Bill concerning the NACC's confidentiality, consultation and information-sharing requirements would ensure that any information received by the Commissioner would be subject to appropriate confidentiality requirements and would be securely handled.

5.66 Part 11 of the NACC Bill would not impose confidentiality requirements on the IGIS in relation to information provided to the IGIS under clause 34 or 35. However, the IGIS is already subject to the confidentiality requirements in section 34 of the IGIS Act. This means that information provided to the IGIS under those clauses despite a secrecy provision would be protected from inappropriate on-disclosure.

Other ways information could be provided to the Commissioner or the IGIS

5.67 There is no requirement for a person under a mandatory referral obligation to disclose information to the Commissioner where that information is subject to an exempt secrecy provision. However, a person could still disclose such information to the Commissioner on a voluntary basis under Division 1 of this Part. In those circumstances, a person could rely on clause 24 (protection of persons from liability) to avoid civil, criminal or administrative liability in respect of their disclosure.

5.68 These arrangements reflect the established approach in section 34B of the IGIS Act, which ensures that a person who voluntarily provides information to the Inspector-General is not liable to penalties under Commonwealth laws for making a disclosure for certain IGIS Act purposes. That section may also apply to disclosures concerning corruption issues that are made to the IGIS.

Clause 37-Mandatory referral-exceptions

5.69 This clause would provide for two exceptions to the mandatory referral obligations under this Division:

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where the Commissioner or the IGIS (as appropriate) is already aware of the issue; and

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in accordance with a determination made by the Commissioner.

Exception where Commissioner or the IGIS already aware

5.70 A person subject to a mandatory referral obligation is not required to refer a matter if they believe on reasonable grounds that the Commissioner or the IGIS (as appropriate) is already aware of the corruption issue.

5.71 This exception would ensure that mandatory referral obligations do not result in duplication by requiring multiple people to refer the same issue to the Commissioner or the IGIS. For example, the obligation to refer a single corruption issue may apply to multiple persons who become aware of the issue, including:

•

an agency head and an authorised officer of an agency; or

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in the case of the conduct of a secondee-the head of the secondee's home agency and the head of the host agency to which the services of the secondee have been made available. In these circumstances, it does not matter in which capacity of the secondee the corruption issue arises.

5.72 Once one person has made a referral, any person who believes on reasonable grounds that the Commissioner or the IGIS (as relevant) is already aware of the referred corruption issue will be relieved of the obligation to refer the corruption issue.

5.73 For example, an authorised officer under the PID Act would not be required to refer a corruption issue if they believed on reasonable grounds that the principal officer of their agency had already referred the corruption issue to the Commissioner. The PID officer would equally be relieved of a mandatory referral obligation if they believed on reasonable grounds that the person who made the internal disclosure had already made a voluntary referral to the Commissioner.

Commissioner's determinations

5.74 The second exception arises where the Commissioner has made a determination that the referral is not required because of the kind of corruption issue involved or the circumstances in which the issue arose. A determination need not relate to a specific corruption issue and may be made to provide a prospective exception to a class of corruption issues.

5.75 The ability for the Commissioner to make determinations would assist the NACC and the relevant agency by ensuring that referrals that are unlikely to be dealt with by the Commissioner are not required to be referred. For example, the Commissioner may receive large volumes of referrals regarding misuse of information where the conduct involves inappropriate browsing of internal database that may be more appropriately dealt with by the relevant agency rather than the NACC. The determination power would allow the Commissioner to relieve Commonwealth agencies of their mandatory referral obligations in relation to this conduct.

5.76 This clause would provide that the Commissioner's determinations are not legislative instruments. This declaration would operate as an exception to section 8(1) of the Legislation Act 2003 (see paragraph 8(6)(a) of that Act). As a consequence of this declaration, a determination would not need to be published on the Federal Register of Legislation, or be subject to parliamentary disallowance or sunsetting under Parts 2 and 3 of Chapter 3 of the Legislation Act 2003.

5.77 It is appropriate that Commissioner's determinations not be legislative instruments, and be excepted from tabling, publication, disallowance and sunsetting. As a preliminary matter, determinations would not narrow the Commissioner's jurisdiction to investigate corruption issues, or remove the ability for any person to voluntarily refer a corruption issue to the Commissioner (notwithstanding that the issue may be covered by a determination). A determination would only narrow the referral obligation imposed on agency heads and persons with responsibilities under the PID Act, by setting out:

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kinds of corruption issues that are not required to be referred to the Commissioner; and

•

circumstances in which corruption issues are not required to be referred to the Commissioner.

5.78 In some circumstances, the details of a determination may be inherently sensitive-for example, if the Commissioner were to make a determination to give effect to an agreement with another oversight or integrity authority (such as the IGIS or Inspector-General of the Australian Defence Force) about the efficient division of responsibility between their agencies, and that division of responsibility were made by reference to particular operational circumstances in which a corruption issue may arise.

5.79 Although the Commonwealth has a robust, multi-agency integrity framework, the publication of a determination could also result in public officials and third parties perceiving that they are less likely to be detected or investigated if they engage in corrupt conduct of a kind set out in a determination. In such circumstances, the publication of a determination could have the adverse effect of reducing deterrence of corruption risks in areas covered by a determination.

5.80 Each of the above risks would be a material barrier to the Commissioner making a determination, and could prevent the Commissioner from using the determination-making power to efficiently and effectively manage their pipeline of incoming mandatory referrals, or to give effect to sensible divisions of responsibility with other Commonwealth law enforcement, oversight and integrity agencies.

5.81 It would be open to the Commissioner to publish determinations on their website where the Commissioner determines it is appropriate to do so.

Clause 38-Mandatory referral-timing and information requirements

5.82 This clause would set out requirements for making a mandatory referral and providing relevant information to the Commissioner or the IGIS (as appropriate).

Timing requirements

5.83 This clause would provide that a person who is required to refer a corruption issue must make the referral as soon as reasonably practicable after becoming aware of the issue, or within such later time as is allowed by the Commissioner.

5.84 It is important that there is flexibility in the timing of referrals. The person who is subject to the requirement to make the referral will need sufficient time to obtain relevant information, consult with relevant stakeholders and obtain advice as to whether the referral threshold is met. On the other hand, it is important for the referral to be made to the NACC as quickly as possible, so that it can take any necessary investigative steps to capture relevant evidence. The requirement for the referral to be made as soon as reasonably practicable achieves an appropriate balance between these competing interests.

Information requirements

5.85 This clause would outline the information that must be included when a person makes a mandatory referral of a corruption issue to the Commissioner or to the IGIS. A person making a referral would be required to include all information relevant to the corruption issue that is in their possession or control at the time the referral is made.

5.86 Where a person becomes aware of further information that is relevant to the corruption issue after a referral has been made, the person would be required to give that information to the recipient of the referral as soon as reasonably practicable.

5.87 These requirements are appropriate to enable the Commissioner or the IGIS to receive all relevant information about a corruption issue that an agency has in its possession. This means that the Commission can proceed efficiently to decide how to deal with the corruption issue, without needing to request basic information from the relevant agency.

Exceptions to information requirements

5.88 The information requirements under this clause would not apply if the person has reasonable grounds to believe that the recipient of the referral is already aware of the information, for example if the information has already been provided by another person within the agency who has a mandatory referral obligation.

5.89 Further, the recipient of the information may advise the person that they no longer require additional information to be provided. In these circumstances, the person's obligation to continue providing relevant information would cease. For example, the Commissioner may have decided to deal with the corruption issue by referring it to another agency for consideration, in which case the Commissioner would not need to receive further information on that matter.

5.90 This clause is subject to the requirements contained in clause 236 (Attorney-General's certificate in relation to international relations).

Division 3-Other matters relating to referrals

Clause 39-Effect of referral on continued actions

5.91 This clause would confirm that, in the absence of a stop action direction given by the Commissioner under clause 43, the referral of a corruption issue under Part 5 has no effect on the ability of a Commonwealth agency or the IGIS to take action in relation to the relevant conduct.

5.92 Any obligation on the relevant agency or the IGIS to handle the corruption issue under any other law also remains unaffected by a referral to the Commissioner. Except where provided for in other legislation, a referral to the Commissioner or the IGIS does not transfer a matter to the Commissioner such that it is no longer a matter for the referring agency to deal with under relevant legislation.

5.93 This is appropriate to ensure that persons with obligations under any other law continue to meet those obligations after making a referral to the NACC.

5.94 For example, after a PID officer refers a disclosure that raises a corruption issue to the Commissioner, the officer would need to continue to handle the disclosure in accordance with the PID Act unless the Commissioner has issued a stop action direction.

5.95 If the Commissioner decides to conduct a corruption investigation, this may permit a PID officer to discontinue any investigation under the PID Act (see subparagraph 48(1)(f)(i) of that Act).