Senate

Revised Explanatory Memorandum

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

PART 6 DEALING WITH CORRUPTION ISSUES

6.1 This Part would provide for the Commissioner to manage incoming referrals and other information by deciding how to deal with corruption issues.

6.2 The Commissioner would have a broad discretion to decide how to deal with a corruption issue that they become aware of, whether as the result of a referral from a Commonwealth agency or another person, or that the Commissioner becomes aware of in any other way. The ability for the Commissioner to deal with corruption issues that they become aware of, otherwise than as the result of a referral, would ensure that the Commissioner can deal with corruption issues on their own initiative.

6.3 The Commissioner would have a range of options when dealing with a corruption issue. The Commissioner would be able to investigate the issue, either by themselves or jointly with another agency, provided they are of the opinion that the corruption issue could involve corrupt conduct that is serious or systemic. Further, the Commissioner could refer any corruption issue to an agency to which the corruption issue relates for internal investigation-which would facilitate the timely investigation of less serious or isolated corruption issues-or to another independent investigative agency, such as the AFP, for its consideration.

6.4 To ensure the Commission can effectively manage its workload, the Commissioner would also have discretion to take no action in relation to a corruption issue. This would allow the Commissioner to not investigate or otherwise deal with an unmeritorious referral or allegation.

Division 1-Dealing with corruption issues

Clause 40-Commissioner may deal with corruption issues

6.5 This clause would provide that the Commissioner may deal with a corruption issue that is formally referred to the Commissioner under Part 5 or that the Commissioner otherwise becomes aware of, including on their own initiative.

6.6 This clause would only allow the Commissioner to deal with matters that fall within their jurisdiction. This would mean there must be a corruption issue, which would be defined by clause 9 to mean an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct. Corrupt conduct would be defined in clause 8.

6.7 Part 5 would provide for the Commissioner to receive voluntary referrals of corruption issues from any person as well as mandatory referrals of corruption issues from agency heads and certain staff with responsibilities under the PID Act. This clause would allow the Commissioner to deal with corruption issues that are referred in this way.

6.8 The Commissioner would also be able to deal with corruption issues that the Commissioner becomes aware of in any other way, for example through media reporting on the issue. This would ensure the Commissioner would have own motion powers to deal with a corruption issue, irrespective of how the corruption issue has come to their attention.

6.9 The clause would expressly provide, to avoid doubt, the Commissioner may deal with a corruption issue on the Commissioner's own initiative.

6.10 The Commissioner would be able to conduct a preliminary investigation to confirm whether a corruption issue exists (see clause 42) to enable them to make an informed decision about whether, and if so how, to deal with the issue.

Clause 41-How Commissioner deals with corruption issues

6.11 This clause would provide a discretion for the Commissioner to deal with a corruption issue in one or more of the following ways:

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by investigating the issue themselves;

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by investigating the issue jointly with a Commonwealth agency, for example the AFP, or a State or Territory government entity, such as an anti-corruption commission;

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by referring the issue to a Commonwealth agency to which the issue relates for investigation by that agency, but only if the Commissioner is satisfied the agency has appropriate capabilities to investigate the issue-this would enable the Commissioner to refer less serious corruption issues to the relevant Commonwealth agency and to require the agency to conduct an internal investigation; or

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by referring the issue to a Commonwealth agency or a State or Territory government entity for its consideration-this would enable the Commissioner to refer a corruption issue to another investigative agency for their consideration, ensuring that issues can be drawn to the attention of the most-appropriate investigative agency. This would not require the investigative agency to conduct an investigation, noting that decision would be a matter for that agency.

6.12 An investigation conducted by the Commissioner, including a joint investigation, would be a corruption investigation.

Corruption investigation threshold-serious or systemic corrupt conduct

6.13 The Commissioner would only be able to conduct, or continue to conduct, a corruption investigation if the Commissioner is of the opinion that the corruption issue (being an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct) could involve corrupt conduct that is serious or systemic.

Opinion is subjective

6.14 The requirement that the Commissioner be 'of the opinion' that the corruption issue could involve corrupt conduct that is serious or systemic is a requirement that the Commissioner subjectively hold that state of mind. It is in the public interest that credible reports and allegations of serious or systemic corrupt conduct be investigated, that unfounded allegations be dispensed with, and minor matters be handled by the agency is which they arose. The requirement is not intended to impose an onerous or impracticably high bar to the Commissioner commencing a corruption investigation.

Threshold applies throughout investigation

6.15 The objects of this Bill, as would be set out by clause 3, include the timely investigation of corruption issues that involve, or potentially involve, corrupt conduct that is serious or systemic. The Commissioner's functions would be to conduct corruption investigations into corruption issues that could involve serious or systemic corrupt conduct.

6.16 Therefore, the 'serious or systemic' threshold would be ongoing throughout an investigation. For example, if evidence received during the investigation caused the Commissioner to no longer hold the opinion that the corruption issue could involve serious or systemic corrupt conduct, the Commissioner would not be able to continue investigating the corruption issue.

Meaning of serious

6.17 The term serious is intended to take its ordinary meaning. Corruption issues may arise in a wide range of contexts, may be criminal or non-criminal in nature, and may affect any aspect of public administration. Multiple factors may contribute to the question of whether particular corrupt conduct could be 'serious', including both the substance of the conduct and its result. It would not be appropriate to attempt to define these factors exhaustively, but they may include:

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where the corrupt conduct could involve the commission of a criminal offence-the seriousness of that offence, including by reference to the maximum penalty set by the Parliament for the offence;

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where the corrupt conduct involves corruptly causing a financial loss or gain-the quantum of that financial loss or gain;

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where the corrupt conduct involves the misuse of information-the sensitivity of that information, and the harm that may result from its misuse;

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where the corrupt conduct involves an abuse of office-the nature of the office, the manner in which the person is alleged to have abused their office, and the nature and extent of the improper benefit or loss that has resulted or that may result;

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whether the conduct was done covertly or involved deception; or

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whether the conduct was done in a planned and deliberate fashion.

6.18 The fact that a person holds a particular office or appointment will not, of itself, be relevant to the question of whether particular corrupt conduct could be serious-the focus of the threshold would be on the conduct in question, rather than on the identity or characteristics of the office-holder. However, where a person holds a position or office of particular trust or sensitivity, and is alleged or suspected of having used or abused that office to engage in the conduct, their use or abuse of that office in the course of their conduct may also be relevant to the question of whether that corrupt conduct could be 'serious'.

6.19 For example, a senior official who knowingly misuses a corporate credit card for a small personal expense, without more, may not be considered serious-notwithstanding their seniority. However, if the senior official also misused their seniority to pressure a departmental fraud control officer to ensure their credit card statement is not audited or reviewed, this additional abuse of office would be relevant to determining whether the conduct is serious.

Meaning of systemic

6.20 The term systemic is intended to take its ordinary meaning. An instance of corrupt conduct would be systemic where, on its ordinary meaning, it occurs as part of a pattern of corrupt conduct, for example in one or more Commonwealth agencies. The pattern of conduct need not be coordinated in any way. For example, the Commissioner may receive multiple referrals relating to different staff members of the same agency engaging in similar corrupt conduct that does not appear to be coordinated. The first referral of conduct would raise a corruption issue. As there is information available to the Commissioner pointing to multiple instances of similar conduct in the agency, it would be open to the Commissioner to form the opinion that the corruption issue in question could involve corrupt conduct that is systemic.

Opinion concerns the nature of alleged conduct

6.21 The opinion required would go to the nature of the alleged conduct and whether that conduct-if established in a corruption investigation-could involve serious or systemic corrupt conduct. This clause would not require the Commissioner to form an opinion about whether the alleged conduct occurred; that is a matter for an investigation.

6.22 The Commissioner's discretion to investigate a corruption issue that they consider could involve serious or systemic corrupt conduct would not depend on the probative value of the allegation. For an allegation, or other information, to give rise to a corruption issue, the allegation or information would need to give rise to, bring up, or put forward all of the essential elements of a corruption issue, as defined (see clause 9). Similarly, the allegation, or other information, would need to include, either explicitly or implicitly, coherent grounds on which the Commissioner could form the opinion that the corruption issue could-if established in a corruption investigation-involve corrupt conduct that is serious or systemic.

6.23 It would not be necessary, however, for the allegation or information to prove that there is a corruption issue that could involve serious or systemic corrupt conduct. The purpose of a corruption investigation would be to test the accuracy of the allegation or information.

6.24 Where the information before the Commissioner is incomplete or is otherwise not sufficient for the Commissioner to form the requisite opinion, it would be open to the Commissioner to conduct a preliminary investigation for the purposes of (see clause 42):

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confirming the existence or nature of a corruption issue (including whether a corruption issue could involve corrupt conduct that is serious or systemic); or

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to assist the Commissioner to decide whether or how to deal with a corruption issue.

6.25 The Commissioner would not be obliged to investigate if the allegation raises a corruption issue that could be serious or systemic. For example, the Commissioner may be disinclined to investigate an issue, if the Commissioner is aware that another agency is already investigating the issue.

Other corruption issues may be dealt with in other ways

6.26 Where the Commissioner is of the opinion that a corruption issue does not meet the threshold for the Commissioner to commence or continue a corruption investigation themselves, the Commissioner would have the power, under this clause, to refer the issue to the relevant agency for internal investigation, or to another Commonwealth, State or Territory agency for its consideration.

General matters

6.27 The Commissioner would be able to investigate particular corruption issues together. This is intended to enable the Commissioner to investigate related corruption issues in the most efficient and effective manner including, for example:

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where the Commissioner has received multiple referrals in relation to conduct that may demonstrate a systemic issue within an agency or multiple agencies-by allowing the Commissioner to investigate these issues together and establish whether a pattern of corrupt conduct has occurred;

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where the Commissioner has received referrals alleging multiple instances of corrupt conduct by the same public official-by allowing the Commissioner to investigate those issues together, if they appear to be related, to enable the Commissioner to form a complete picture of the official's conduct, and to enable an efficient approach to investigating conduct by the same person; or

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where the Commissioner has received a referral alleging that multiple persons have engaged in corrupt conduct as part of a conspiracy-by allowing the Commissioner to investigate each of those corruption issues (being an issue of whether each person has engaged, is engaging, or will engage in corrupt conduct) together.

6.28 The Commissioner would also be able to reconsider whether or how to deal with a corruption issue at any time. For example, if the Commissioner ceases an investigation as they no longer hold the opinion that the corruption issue could involve serious or systemic corrupt conduct, the Commissioner could decide to deal with the corruption issue in another way under this clause, including by making a referral to the relevant Commonwealth agency.

Commissioner may decide to take no action

6.29 The Commissioner would also be able to decide to take no action in relation to a corruption issue. This decision would be at the discretion of the Commissioner and is not subject to additional criteria or a mandatory process. This is intended to provide the Commission with flexibility to manage its workload, maintain its focus on serious or systemic corruption issues, and to dispense with referrals in a timely fashion in circumstances where, for example:

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the referral is unsubstantiated or unmeritorious; or

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the referring agency has advised that it, or another investigative agency, is already investigating the corruption issue.

6.30 The Commissioner would not be under a duty to consider whether to deal with a corruption issue, whether it is requested to do so by the person who referred the issue or by any other person, or in any other circumstances.

6.31 Regardless of whether the Commissioner deals with a corruption issue, the Commissioner may refer an allegation or other information to another person or body that could more appropriately deal with the matter (see paragraph 6.11).

Clause 42-Preliminary investigations by Commissioner

6.32 This clause would provide the Commissioner with the power to conduct a preliminary investigation for the purposes of:

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confirming the existence or nature of a corruption issue (including whether a corruption issue could involve corrupt conduct that is serious or systemic); or

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to assist the Commissioner to decide whether or how to deal with a corruption issue.

6.33 Referrals to the Commissioner will often not contain sufficient information for the Commissioner to form an opinion as to whether there is a corruption issue, or whether a corruption issue could involve corrupt conduct that is serious or systemic. For example, a referral may allege that a public official has exercised a particular statutory power for an improper purpose, but may not be accompanied by relevant information that would enable the Commissioner to understand the facts and circumstances of the case, or the purposes for which that power may be exercised. The ability to conduct preliminary investigations is intended to enable the Commissioner to seek information to assist them to decide whether or how to deal with a matter based on credible and sufficient information.

Exercise of certain Part 7 powers for preliminary investigations

6.34 For the purposes of preliminary investigations, the Commissioner would be able to exercise the following investigative powers in Part 7:

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the power to direct the head of a Commonwealth agency to give information, or a document or a thing, to the Commissioner;

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the power to serve a notice to produce on any person requiring the person to give information, or a document or thing, to a specified staff member of the NACC.

6.35 The Commissioner would not be able to issue a post-charge or post-confiscation notice to produce for the purposes of a preliminary investigation.

6.36 This means that in issuing a notice to produce, the Commissioner may not require the person to give the information, document or thing to the Commissioner that includes:

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the subject matter of any charge, or imminent charge, against the person; or

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the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the person.

6.37 It is not appropriate or necessary for the Commissioner to have access to all of the coercive powers available under Part 7 for the purposes of preliminary inquiries. The intrusive nature of some of these powers means that they are not appropriate in the context of confirming the existence of or nature of a corruption issue or assisting the Commissioner to decide how to deal with the corruption issue.

6.38 The availability of these particular statutory powers for the purposes of a preliminary investigation would not preclude the Commissioner from seeking or obtaining information through other means-for example, by requesting the person who made an initial referral to provide further information on a voluntary basis. This clause would not limit the information, documents or things to which the Commissioner may have regard in making a decision about whether or how to deal with a corruption issue.

6.39 The provisions in Part 7 would specify:

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the mode in which information must be provided;

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how a notice is served;

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the period for compliance;

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compliance with a direction or notice (including an offence and provision for extension of time); and

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the retention of documents and things would also apply in relation to the exercise of these powers for preliminary investigations.

Commissioner may have regard to other information

6.40 This clause would provide that it does not limit the information, documents or things to which the Commissioner may have regard in making a decision about whether or how to deal with a corruption issue. This would ensure that the Commissioner can make decisions about how to deal with a corruption issue regardless of whether a preliminary investigation has been undertaken.

Clause 43-Commissioner's directions about further actions

6.41 This clause would permit the Commissioner to direct a Commonwealth agency to stop taking specified action in relation to a corruption issue that concerns the agency.

6.42 The Commissioner would be able to direct an agency head to stop taking action in relation to a corruption issue that concerns the agency, unless the action is permitted by the Commissioner. The Commissioner would only be able to give a direction to an agency where the corruption issue concerns the agency-for example, where there is an issue of whether a staff member of that agency has engaged in corrupt conduct. This power would not enable the Commissioner to direct other independent agencies to stop conducting a separate or related investigation or inquiry, in parallel to the Commissioner. For example, this power would not enable the Commissioner to direct the Auditor-General to stop or defer an audit. This is appropriate, as the Commissioner should not have the power to direct other independent statutory office-holders, or independent officers of the Parliament, in the performance of their functions.

6.43 The Commissioner would only be able to give this direction if it is required to ensure the effectiveness of any action the Commissioner has taken, or might take, in relation to the corruption issue, or any other corruption issue. A direction could direct the agency not to take particular actions set out in the direction, or not to take action of any kind in relation to a corruption issue. This power could be used to prevent an agency from taking action that may, for example, alert a suspect to the existence of a corruption investigation, or result in the loss of evidence. In particular, the Commissioner could use this power to intervene to halt standard agency practices that could inadvertently prejudice a corruption investigation.

6.44 For example, where an agency has referred a suspected serious or systemic corruption issue to the Commissioner it could also, depending on the facts and circumstances of the case, be appropriate for the agency to suspend the staff member who is suspected of having engaged in corrupt conduct from work, with or without pay. It could also be the case that the agency has a standard administrative practice to require staff who will be absent from work for an extended period to return their electronic devices so that they can be reset and reissued to other staff members. In such circumstances, the Commissioner could direct the agency to not reset and reissue the staff member's devices, to ensure that potential evidence is not inadvertently lost as a result of the application of standard administrative practices.

6.45 The Commissioner would be required to revoke a direction if it is no longer required.

Permission to take other action

6.46 An agency would be able to take actions in relation to a corruption issue if the Commissioner gives permission for those actions to be taken. Certain actions can also be taken without seeking permission from the Commissioner or despite a direction under this clause (see clause 44).

6.47 If an agency head needs to take action in relation to a corruption issue following the Commissioner giving a direction, they could make a request to the Commissioner. For example, an agency head may request to remove a person's access from certain IT systems if they are suspected of engaging in corrupt conduct. If such a request is made, the Commissioner would be required to, as soon as practicable, decide whether the entity can take the requested action. The Commissioner would be required to provide a written explanation if they refuse to grant permission for the entity to take action, unless doing so would prejudice any action the Commissioner has taken or might take in relation to a corruption issue, or any action taken as a result of a NACC Act process (see paragraph 1.104).

6.48 The agency head will only need to make such a request to take action if a stop action direction is in place. If there is no such direction in place, the agency can continue to take any action it is otherwise permitted to take.

Interaction with other laws

6.49 A direction by the Commissioner would apply broadly and override any other law of the Commonwealth. Therefore, if a direction conflicted with a requirement in another statute to perform an action, the direction would prevail. For example, an internal disclosure investigation required under the PID Act could be stopped using this power. Where a stop action direction is issued that has the effect of stopping an investigation under the PID Act, an investigating officer would not be required to complete an investigation under the PID Act. Once the stop action direction is revoked, the PID Act timeframes would restart again.

6.50 A stop action direction would not be a legislative instrument. The NACC Bill states this to assist readers, as a direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Clause 44-Action that can be taken without permission

6.51 This clause would outline actions that Commonwealth agencies can take despite any stop action direction issued by the Commissioner.

6.52 There are some circumstances in which it is appropriate and justifiable for an agency to take actions in relation to a corruption issue, even if those actions could affect a corruption investigation. This clause would allow an agency to take action if the action is:

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taken to prevent or lessen an imminent risk to a person's safety or life;

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taken in the interests of the security, defence or international relations of Australia;

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taken to prevent loss to the Commonwealth of an amount greater than the amount (if any) prescribed by the regulations that cannot be recovered; or

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otherwise unreasonable in the circumstances to await any necessary permission (for example, immediately removing IT access if there is an imminent risk that the person subject to the investigation is about to use that access for corrupt purposes that could have a significant impact on the agency).

6.53 If such action is taken, the agency head would be required to provide details of the action to the Commissioner. The agency head must provide these details as soon as practicable, but at least within 48 hours after the action is taken. This would ensure that the Commissioner has visibility of any actions that have been taken.

6.54 The agency head would be required to take reasonable steps to:

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ensure that the action does not prejudice the investigation of a corruption issue or any other NACC Act process (see paragraph 1.104); and

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preserve evidence that is, or could be, relevant for the purposes of conducting such a NACC Act process (see paragraph 1.104).

Clause 45-Previous investigations by Commonwealth integrity agencies

6.55 This clause would provide for an additional threshold to the commencement of a corruption investigation where the Commissioner is aware that a Commonwealth integrity agency (as defined in clause 15) has previously concluded an investigation into a matter regarding the conduct of a public official. The Commissioner would only be able to commence a corruption investigation into a corruption issue involving the conduct if the Commissioner is satisfied that it is in the public interest to do so.

6.56 The Commissioner would have broad jurisdiction and independence in performing their functions. However, this clause reflects the fact the NACC would also fit within an existing Commonwealth integrity architecture, with specialised agencies performing complementary functions. As such, it is likely that there would be circumstances in which:

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another Commonwealth integrity agency may have completed an investigation into a matter before it comes to the attention of the Commissioner-for example, a performance audit by the Auditor-General may reveal information that may give rise to a corruption issue in relation to a particular Commonwealth agency; or

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the Commissioner may have made an active decision to await the outcome of another Commonwealth integrity agency's investigation, before deciding whether and how to deal with a corruption issue.

6.57 There is a clear public interest in the effective investigation of allegations of serious or systemic corrupt conduct. Other Commonwealth integrity agencies may not have the jurisdiction or expertise to investigate or make findings in relation to a corruption issue, or have the necessary investigative powers to fully investigate the issue-in particular, if the issue appears to involve serious, criminal corrupt conduct. However, successive investigations relating to the same or substantially similar matter may, in some circumstances, be a disproportionate response.

The public interest test

6.58 In deciding whether it is in the public interest to commence the investigation, the Commissioner would be permitted to have regard to the following matters:

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the significance of the corruption issue;

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the details of the investigation undertaken by the Commonwealth integrity agency (to the extent that those details are known by, or made available to, the Commissioner and the Commissioner considers them relevant);

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any conclusions or findings of the integrity agency in relation to the corruption issue;

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whether the Commissioner has any new evidence in relation to the corruption issue that was not available to the integrity agency, and would not have been obtainable by the exercise of reasonable diligence by that agency;

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any unfairness to a person that may arise as a result of the Commissioner conducting a further investigation into the corruption issue;

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the need to ensure that the corruption issue is fully investigated.

6.59 These factors are non-exhaustive and the Commissioner may consider other appropriate matters when considering whether it is in the public interest to commence a corruption investigation into a matter previously investigated by a Commonwealth integrity agency.

Clause 46-Matters dealt with by Independent Parliamentary Expenses Authority

6.60 This clause would limit the circumstances in which the Commissioner could investigate a corruption issue involving the conduct of a parliamentarian or staff member of a parliamentary office where that conduct falls within the jurisdiction of IPEA.

6.61 This clause would apply to conduct that has been, is or could be the subject of either of the following by IPEA:

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an audit, or a review for the purpose of preparing a report, under the Independent Parliamentary Expenses Authority Act 2017 into the use, by the parliamentarian or the staff member, of work resources or travel resources;

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a ruling, under subsection 37(1) of the Parliamentary Business Resources Act 2017, concerning conduct by the parliamentarian or the staff member in relation to expenses or allowances.

6.62 Where this clause applies, the Commissioner would only be permitted to commence a corruption investigation if IPEA has referred the corruption issue to the Commissioner accompanied by a statement that the Authority considers the issue could involve serious or systemic corrupt conduct. The Commissioner would also be required to be of that opinion to conduct a corruption investigation.

6.63 IPEA was established as an independent authority, responsible for auditing and reporting on parliamentarian's work expenses and those of their staff, as well to provide advice, monitor and administer claims for travel expenses and allowances. IPEA is intended to provide a single, consistent source of guidance, advice and rulings on these matters. This clause is intended to preserve the role of IPEA as the Commonwealth agency with lead responsibility for the parliamentary expenses framework.

Clause 47 - Matters dealt with by Electoral Commissioner

6.64 This clause would limit the circumstances in which the Commissioner could investigate a corruption issue that falls within the jurisdiction of the Electoral Commissioner.

6.65 The clause would apply to conduct of a person that has been, is, or could be the subject of an investigation by the Electoral Commissioner under, or into compliance with the Commonwealth Electoral Act 1918-unless the conduct is of an officer or a member of staff of the Australian Electoral Commission.

6.66 The Australian Electoral Commission is established as an independent oversight authority responsible for delivering Australian citizens' right to vote. This clause is intended to preserve the role of the Electoral Commissioner as the Commonwealth agency with lead responsibility for ensuring compliance with electoral obligations, including:

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alleged contraventions of the election funding and financial disclosure requirements in Part XX of the Commonwealth Electoral Act 1918, as well as offences under the Criminal Code in relation to that Part; and

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electoral offences under Part XXI of that Act.

6.67 This clause would not apply in relation to the conduct of an officer or a member of the staff of the Australian Electoral Commission, within the meaning of the Commonwealth Electoral Act 1918. If there were an allegation of serious or systemic corrupt conduct involving an officer or a staff member of the Australian Electoral Commission, it would be appropriate that the Commissioner could commence a corruption investigation without the requirement for a referral from the Electoral Commissioner.

Clause 48-Public statements about corruption issues

6.68 This clause would allow the Commissioner to make a public statement about a corruption issue at any time. Generally, any public statements by the Commissioner about a particular corruption investigation, other than those made in the course of a public hearing, would be contained in an investigation report prepared under Part 8 after the conclusion of the investigation. However, there may be circumstances where it is appropriate or necessary for the Commissioner to make a public statement about a corruption issue during the course of an investigation or otherwise.

When a public statement may be appropriate

6.69 The circumstances in which the Commissioner considers it would be appropriate, desirable or necessary to make a public statement could include, for example, circumstances where the statement would:

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confirm that the Commissioner has commenced a corruption investigation into a particular corruption issue;

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explain why the Commissioner has decided to deal with a corruption issue in a particular way, including by commencing a corruption investigation or referring the issue to another agency for investigation or consideration;

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explain why the Commissioner has decided not to take any further action in relation to a corruption issue;

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explain particular actions by the Commissioner in the course of a corruption investigation;

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correct factually inaccurate information that is in the public domain about a corruption issue; or

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make a public statement to avoid damage to a person's reputation, where the Commissioner is satisfied that it is appropriate and practicable to do so. These circumstances would include those where a person has been incorrectly identified as the subject of a corruption investigation.

When a public statement may not be appropriate

6.70 The Commissioner would have a discretion as to whether to make a public statement about a corruption issue, including to avoid damage to a person's reputation. It is not intended that the Commissioner would be required or expected to make public statements responding to any and every issue concerning a corruption issue that may be in the public domain. There would also be circumstances in which it would be inappropriate or impracticable for the Commissioner to make a public statement. These circumstances could include, for example, where:

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making a public statement could prejudice the conduct of a corruption investigation or other action that might be taken in connection with a corruption issue;

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making a public statement could compound the damage to a person's reputation by calling greater attention to an issue that is only marginally in the public domain;

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the Commissioner considers it would be more appropriate to allow a matter to be addressed in another way, including by allowing a corruption investigation or other process to reach its conclusion.

Limitations on Commissioner's discretion to make public statements

6.71 The Commissioner's ability to make public statements would be limited by the limitations in clauses 230 and 231 as if the statement were a disclosure under clause 230 (see paragraphs 11.73 to 11.88). The Commissioner would therefore be restricted from making a public disclosure that includes:

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an opinion or finding about whether a particular person engaged in corrupt conduct;

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section 235 certified information; and

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information that the Commissioner is satisfied is sensitive information (as defined in clause 227).

6.72 The Commissioner would be required to consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates about whether the information is sensitive information. This recognises that the Commissioner may not be best placed to identify whether information is sensitive in circumstances where the information relates to the functions or activities of another agency.

6.73 If the public statements included an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, the Commissioner would be required give the head of the agency or entity or other person concerned a reasonable opportunity to respond to the opinion, finding or recommendation and the proposed disclosure.

Division 2-Investigations conducted by Commonwealth agencies

6.74 This Division would outline the Commissioner's powers in relation to a corruption issue it has referred to a Commonwealth agency for investigation. The Commissioner would be able to oversee the investigation, request and comment on the agency's reports, make additional recommendations and follow-up on the agency's implementation of recommendations.

Clause 49-Application

6.75 This clause would provide that this Division applies if the Commissioner decides to deal with a corruption issue by referring it to a Commonwealth agency for investigation under paragraph 41(1)(c). Under that clause the Commissioner may only refer a corruption issue to a Commonwealth agency to which the corruption issue relates.

Clause 50-Commissioner may oversee investigation

6.76 This clause would enable the Commissioner to oversee an investigation conducted by a Commonwealth agency into a corruption issue relating to that agency following a referral from the Commissioner. This is intended to allow the Commissioner to provide investigative support to agencies that are investigating a corruption issue following a referral but do not have the same level of investigative expertise or capability as the NACC. This would assist the Commissioner to appropriately manage the NACC's resources and allow the Commissioner to focus on the most serious or systemic corruption issues, while providing support to agencies to investigate minor or lower-level corruption issue.

6.77 The Commissioner's ability to oversee investigations conducted by Commonwealth agencies is limited to a corruption issue that the Commissioner decides to deal with under clause 41 by referring the issue back to the agency to which the issue relates for investigation. Where the Commissioner has decided to deal with a corruption issue under clause 41 by referring it to another Commonwealth, State or Territory body for consideration, the Commissioner would not be able to oversee any investigation that the other agency then decided to undertake. This ensures that other independent investigative or oversight bodies (such as the AFP or the Commonwealth Ombudsman) cannot be the subject of direction by the Commissioner when performing their own investigative functions in relation to other Commonwealth agencies.

6.78 If the Commissioner decides to oversee the investigation, the Commissioner must notify the agency head.

Clause 51-Commissioner may give directions

6.79 This clause would provide that the Commissioner may give the agency directions about the planning and conduct of the investigation. The Commissioner may give such directions to the agency's nominated contact for the investigation. However, the agency head has an obligation to ensure the agency follows the Commissioner's directions. Directions would be the main statutory mechanism for the Commissioner to provide investigative support to agencies that are investigating a corruption issue following a referral but do not have the same level of investigative expertise or capability as the NACC. The Commissioner may also share with the agency information that is relevant to the investigation or the conduct of investigations generally (see for example clause 229).

Clause 52-Commissioner may require reports

6.80 This clause would provide that the Commissioner may require the agency head to provide either or both of the following:

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progress reports from time to time;

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a completion report on the completion of the investigation.

6.81 The Commissioner may require such reports regardless of whether they decide to oversee the investigation.

Progress reports

6.82 The ability for the Commissioner to require an agency to provide progress reports would assist the Commissioner to maintain visibility of the progress of the investigation and, where appropriate, could result in the Commissioner:

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where the Commissioner is overseeing the investigation, providing further directions to the agency about the planning and conduct of the investigation;

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revisiting their decision about whether or not to oversee the investigation; or

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revisiting their decision about how to deal with the corruption issue, including by commencing a corruption investigation and directing the agency to stop its internal investigation.

Completion reports

6.83 Completion reports, when required by the Commissioner, would provide the Commissioner with visibility of the outcome of an investigation and the incidence of corrupt conduct within Commonwealth agencies.

6.84 This clause would not prescribe the form and content of completion reports. This would be a matter for the Commissioner to determine through guidance or directions to an agency when they oversee an investigation. Subject to those directions and guidance, it is envisaged that reports would deal with similar matters as reports prepared by the Commissioner under Part 8.

Clause 53-Commissioner's comments and recommendations

6.85 This clause would provide that, where the Commissioner has required an agency head to provide a completion report, the Commissioner may comment on the report or provide additional recommendations in relation to the report. The Commissioner may choose to do this when they consider the agency's completion report or the recommendations it makes are deficient.

Opportunity to respond must be given before including certain information in completion reports

6.86 The Commissioner would be required to comply with certain procedural fairness requirements prior to making comments or recommendations on a completion report that are critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person.

6.87 In such circumstances, the Commissioner would be required to provide the head of the agency, the head of the entity or the other person concerned with a statement setting out the comments or recommendations, a reasonable opportunity to respond to the comments or recommendations. This would ensure that persons who are subject to critical comments or recommendations have the opportunity to respond.

6.88 In relation to a critical comment or recommendation about a Commonwealth agency or a State or Territory entity, the response may be given by the head of the agency or entity. In relation to a critical comment made about another person, the response may be given by the person or, with approval of the person, their representative (for example, a person might give approval for their legal practitioner to provide a response on their behalf).

6.89 This clause would not prescribe what constitutes a reasonable opportunity to comment given this will vary depending on the circumstance. A reasonable opportunity to comment on a single adverse comment would be different to a case involving lengthy critical comments and recommendations.

Clause 54-Follow-up action on completion report

6.90 This clause would enable the Commissioner, in circumstances where the Commissioner has requested a completion report, to request an agency head to provide the details of any action that the agency head has taken, or proposes to take, with respect to:

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a recommendation included in the report; or

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a recommendation made by the Commissioner in relation to the report.

6.91 The agency head would be required to comply with request. This would allow the Commissioner to ensure their recommendations are being implemented satisfactorily and, if they are not, to escalate the matter to the relevant minister or presiding officer.

6.92 If the Commissioner is not satisfied with the response, the Commissioner may refer the matter to specified persons who have oversight of the Commonwealth agency. Those persons are outlined in the following table by reference to the type of agency concerned.

Table 4-Referral of unsatisfactory response to request relating to a completion report

6.93 If the Commissioner decides to refer the matter to such a person, the Commissioner may also provide a copy of the material referred to:

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the President of the Senate for presentation to the Senate; and

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the Speaker of the House of Representatives for presentation to the House of Representatives.

6.94 Given information presented to a House of Parliament would become public, the Commissioner must exclude certain information from the copy of the material sent to Parliament. Specifically, the Commissioner would be required to exclude section 235 certified information and information that the Commissioner is satisfied is sensitive information (see paragraphs 11.9 to 11.25).

6.95 Clause 235 certificates permit the Attorney-General to prevent the disclosure of certain information that would be contrary to the public interest, and would otherwise be required to be disclosed under the NACC Bill (see paragraphs 11.124 to 11.148). A clause 235 certificate would seek to protect this information and mitigate against the prejudicial consequences that may arise from its disclosure.

6.96 In determining whether the Commissioner is satisfied that information constitutes sensitive information for the purpose of its exclusion from the material sent to Presiding Officers, the Commissioner would be required to consult with the head of each Commonwealth agency or State or Territory government entity to which the material relates. This ensures that the Commissioner is fully informed of the sensitivity of particular information based on the experience and expertise of agencies that are more familiar with the relevant context, relationships and risks associated with disclosure.

6.97 If the Commissioner would ordinarily refer a matter under this clause to a presiding officer-for example because the corruption issue concerns a parliamentary department-the Commissioner could choose to give the relevant presiding officer or officers two sets of material, one for their own use in overseeing the department and another, with the relevant exclusions made, for presentation to the Parliament.