Senate

Revised Explanatory Memorandum

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

PART 7 INVESTIGATING CORRUPTION ISSUES

7.1 This Part would set out the powers available to the Commissioner under the NACC Bill for the purposes of the Commissioner's investigation of a corruption issue that could, in the Commissioner's opinion, involve corrupt conduct that is serious or systemic, and how those powers are to be exercised. It would:

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permit the Commissioner to investigate such a corruption issue in the manner the Commissioner thinks fit, with this general power operating subject to the thresholds that apply to the use of specific powers (Division 1);

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allow the Commissioner to obtain information, documents and things through directions to Commonwealth agency heads and notices to produce that may be issued to any person (Division 2);

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allow the Commissioner to hold private and public hearings and to summon persons to give evidence, information, documents and things at a hearing; and regulate how hearings will operate (Division 3);

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include offences to protect the integrity and effectiveness of investigations and ensure persons issued with a notice to produce or summonsed to a hearing provide accurate and complete evidence, information, documents and things as required (Divisions 2 and 3);

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include a process for dealing with contempt of the NACC and orders and warrants in relation to potentially absconding or uncooperative witnesses, to ensure persons summonsed to a hearing attend and cooperate with investigations (Subdivisions D and E of Division 3);

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regulate the use and disclosure of information about certain notices to produce and summonses, and of investigation material and material derived from that material (Division 4);

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set out the privileges and protections that apply to persons giving evidence or information, or producing documents or things to the Commissioner, including limits on certain privileges and protections (Division 6);

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allow authorised officers of the NACC to:

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enter premises occupied by most Commonwealth agencies without a warrant, exercise inspection powers, and, in limited circumstances, seize things;

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conduct a search of a premises or person under an independently issued search warrant; and

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stop and search conveyances for things relevant to an indictable offence or to a corruption issue the Commissioner is investigating, without a warrant, in limited circumstances (Division 7); and

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regulate the retention and return of documents and things produced to the Commissioner under the NACC Bill; and the use and sharing of documents, things, copies and photographs seized or made, and the return of things seized, under Division 7 (Divisions 5 and 7).

7.2 Some of the above powers would also be available for the purposes of preliminary investigations, public inquiries and the Inspector's functions under Parts 6, 9 and 10 of the NACC Bill respectively.

Powers under other legislation

7.3 The Consequential Bill would also provide for the Commissioner to have:

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additional information-gathering and investigative powers under other Acts, including the AML/CTF Act, POC Act, the SD Act and the TIA Act; and

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the power to conduct controlled operations and integrity testing operations, acquire and use assumed identities and issue witness identity protection certificates for operatives under the Crimes Act 1914.

7.4 Those powers would be subject to the existing thresholds and safeguards that apply under those Acts.

Division 1-General

Clause 55-Application of Part

7.5 This clause would provide that Part 7 applies to the Commissioner's investigation of a corruption issue that could, in the Commissioner's opinion, involve corrupt conduct that is serious or systemic. This is consistent with the scope of the Commissioner's jurisdiction to investigate corruption issues as set out in the functions of the Commissioner (under Part 3, see paragraphs 3.4 to 3.7) and the corruption investigation threshold (under Part 6, see paragraphs 6.13 to 6.23).

7.6 This clause would also clarify that Part 7 applies whether the investigation is conducted solely by the Commissioner or jointly by the Commissioner and a Commonwealth agency or a State or Territory government entity. For example, the Commissioner may decide under Part 6 to jointly investigate a corruption issue with the agency concerned or with one of the NACC's State and Territory counterpart agencies (see paragraph 6.11).

7.7 In a joint investigation, only the Commissioner, any delegates (see clause 276) and authorised officers (see clause 267) would be able to exercise powers under this Part. The other investigating agency would need to rely on powers conferred on that agency under other legislation, including its enabling legislation.

7.8 Some of the above powers would also be available for the purposes of preliminary investigations, public inquiries and the Inspector's functions under Parts 6, 9 and 10 of the NACC Bill respectively.

Clause 56-Conduct of corruption investigations generally

7.9 This clause would permit the Commissioner to investigate a corruption issue in such manner as the Commissioner thinks fit. This general power would operate subject to the thresholds that apply to the use of specific powers.

7.10 This would ensure that the Commissioner has discretion as to the appropriate approach to a corruption investigation, including decisions about which powers should be used and in which order. This is appropriate to support the independence of the Commissioner.

Division 2-Requiring information, documents and things

7.11 This Division would provide two mechanisms for the Commissioner to obtain information, documents and things relevant to a corruption investigation:

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directions to the heads of Commonwealth agencies; and

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notices to produce, which may be served on any person.

7.12 This Division would also create two offences related to notices to produce:

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failure to comply with a notice; and

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providing false or misleading information or documents in response to a notice.

Subdivision A-Directions to agency heads

Clause 57-Directions to agency heads

7.13 This clause would allow the Commissioner to obtain information, documents and things relevant to a corruption investigation from a Commonwealth agency.

7.14 Where the Commissioner has reasonable grounds to suspect that a Commonwealth agency has information or a document or thing relevant to a corruption investigation, the Commissioner would be able to direct the head of the agency to provide that information, document or thing to a specified staff member of the NACC. These directions to produce must be in writing.

7.15 Agency heads would be required to comply with such requests as soon as practicable. This requirement is intended to balance:

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the importance of the timely investigation of corruption issues that could involve serious or systemic corrupt conduct, consistent with the objects of the NACC Bill;

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the legitimate need for agencies to have sufficient time to comply with directions, based on the volume and accessibility of the information, documents or things required to be given-for example, where relevant documents are held in hard copy at an archival facility; and

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where relevant, the time that may be required for an agency head to request that the Attorney-General give a certificate to protect particular information, under Subdivision A of Division 3 of Part 11 of the NACC Bill.

7.16 Under clause 114, the agency head would not be excused from providing the required information, documents or things on grounds of public interest immunity or, in most cases, legal professional privilege.

7.17 Directions under this clause would provide non-enforceable means for the Commissioner to seek information directly from another Commonwealth entity. The full process associated with a notice to produce is not needed where one Commonwealth entity is seeking information from another and the Commonwealth is wearing the cost burden of complying with that notice.

7.18 If an agency head failed to provide the information, document or thing requested under this clause, the Commissioner could issue a notice to produce for the information, document or thing under clause 58 (which carries a penalty for non-compliance).

Subdivision B-Notices to produce

Clause 58-Notices to produce

7.19 This clause would allow the Commissioner to compel a person to provide information, or produce documents or things that are relevant to a corruption investigation. The Commissioner could use this mechanism either in conjunction with their power to hold hearings or independently of that power (see subclause 58(7)).

7.20 The power to require a person to give information or produce documents or things would facilitate access to information, documents or things with the assistance of the recipient of the notice. For example, it may be easier for both the recipient of a notice and the Commissioner to obtain information from a database under a notice to produce that requires and enables staff members of that agency-with existing access to, and familiarity with, that database-to extract information that is responsive to the notice, than it would be for staff members of the NACC to do so under a search warrant.

7.21 Where the Commissioner has reasonable grounds to suspect that a person has information or a document or thing relevant to a corruption investigation, the Commissioner would be able to require the person to provide that information, document or thing to a specified staff member of the NACC. For example, the Commissioner might issue a notice requiring a financial institution to provide the financial records of a person under investigation for engaging in corrupt conduct for financial gain.

7.22 The Commissioner would need to serve a notice on the person in writing (for methods of service, see section 28A of the Acts Interpretation Act 1901). The notice must be signed by the Commissioner and specify the period within which, and the manner in which, the person must comply with the notice. The Commissioner may require that the information sought be given in writing. This would ensure that the person who needs to respond to the notice has clear, written information about the requirements imposed. This is appropriate given offences apply for non-compliance with a notice. The requirement for the notice to be signed by the Commissioner would ensure that the person can identify that the notice has been properly authorised.

7.23 Under clause 113, the privilege against self-incrimination would be abrogated for notices to produce, but information, documents and things a person provides would not be admissible against that person in most proceedings. Under clause 114, the person would not be excused from providing the required information, documents or things on grounds of public interest immunity or, in most cases, legal professional privilege. Restrictions would also apply to the disclosure of investigation material, including information, documents and things provided in response to a notice to produce, under Division 4 of this Part.

7.24 Offences would apply under clauses 60, 61 and 70 for failing to comply with a notice, producing false or misleading information or documents in response to a notice, or destroying documents or things required under a notice. Disclosing the existence of a notice, or information about the notice, may also constitute an offence in certain circumstances (see clause 98).

Post-charge and post-confiscation application notices

7.25 The Commissioner would be permitted to issue a notice to a person charged with an offence, facing confiscation proceedings, or where a charge or proceeding is imminent (these are referred to as post-charge or post-confiscation application notices: see the definitions in Division 8 of this Part). Further, the matters in relation to which the Commissioner may require the person to give the information, document or thing to the NACC would include the subject matter of any charge, confiscation proceeding, or imminent charge or proceeding. The ability to issue a post-charge or post-confiscation application notice would ensure that corruption investigations are not delayed while charges or proceedings are resolved.

7.26 An additional threshold would apply before the Commissioner may issue a post-charge or post-confiscation application notice. The Commissioner could only issue such a notice if they had reasonable grounds to suspect the information, document or thing is necessary for the purposes of the investigation despite the person having been charged or the confiscation proceeding having commenced, or the charge or proceeding being imminent.

7.27 Express provisions of this kind, and the higher threshold that applies before a post-charge or post-confiscation application notice may be issued, are necessary because of the effect such a notice has on a person in a proceeding for a related criminal offence or related confiscation proceeding. These provisions provide additional assurance that the Commissioner's powers are appropriately balanced and that, in deciding to issue a notice, the Commissioner must pay due regard to the fact that the person has been charged with an offence or is the subject of confiscation proceedings. This reinforces the point that a notice is to be issued for the purposes of a relevant corruption investigation and not to bolster confiscation action or the prosecution of a person to whom a notice is issued.

Clause 59-Period for complying

7.28 The Commissioner would generally be required to allow a person served with a notice at least 14 days to comply with the notice. This balances the need for corruption investigations to be conducted in a timely manner, consistent with the objects of the NACC Bill, with the need to ensure a person is given a reasonable opportunity to respond to a notice.

7.29 If the Commissioner considers that allowing a 14-day period would significantly prejudice an investigation, the Commissioner would be authorised to specify a shorter period of time. If a shorter period of time is specified, the Commissioner would be required to record, in writing:

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the name of the corruption investigation that would be prejudiced; and

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why a 14-day period would significantly prejudice the investigation.

7.30 This would ensure that there is an appropriate record of the Commissioner's reasons for the shorter period.

7.31 The Commissioner would also be able to extend the period allowed for complying with a notice, including in response to a written application by the person served with a notice. This clause would require this application to be made in writing, before the end of the period specified in the notice or as soon as possible after that. This ensures any application is made in a timely way and in order to allow the person to comply with the notice, rather than seeking to excuse non-compliance with a notice after the period for compliance has long expired.

7.32 The Commissioner may also extend the period for compliance of their own initiative, regardless of whether an application has been made. This allows the Commissioner to reach an agreement to an extended timeframe without requiring the person to go through the process of making an application.

7.33 The flexibility for the Commissioner to extend the period for compliance with a notice is important because some notices may require the production of voluminous documents or information. If this is not immediately apparent to the Commissioner when first issuing the notice, they may not realise that the person has been given insufficient time to comply with the notice. It may also be reasonable for a recipient of a notice to obtain an extension to consult with a third party who has an interest in a document sought before producing it. Where relevant, it may also be reasonable for a recipient of a notice to request an extension to allow sufficient time for the Attorney-General to issue a certificate to protect particular information sought under the notice (see clauses 235 and 236).

7.34 If a person served with a notice has given the specified information, or produced the specified documents or things, the Commissioner would be required to make and retain a written record of that fact. The Commissioner would also be required to give a copy of the record to the person if the person so requests. This ensures there is a clear record that the notice has been complied with, ensuring the person has certainty that they have no remaining obligations and that the criminal offences for non-compliance will not apply.

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

7.35 This clause would make it an offence if a person served with a notice to produce does not comply with the notice. This offence would ensure that the requirement to respond to a notice can be effectively enforced so that the Commission can gain timely access to the information it needs to fulfil its investigatory functions.

7.36 The offence would consist of the following physical elements:

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the person is served with a notice to produce;

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the person fails to comply with the notice within the period specified in the notice, or such further time as the Commissioner has allowed.

7.37 The fault elements for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

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for the circumstance that a notice has been served on the person, recklessness would be the fault element (meaning proof of intention, knowledge or recklessness will satisfy this fault element; in practice, where a notice has been served personally, the person would know of that service); and

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for the conduct of failing to comply with the notice, intention would be the fault element.

7.38 A note to subclause 60(1) includes cross-references to protections for journalists' informants in clause 31 and Attorney-General's certificates in relation to international relations, which may be issued under clause 236. In some circumstances, those clauses might provide grounds for a person to rely on the defence of lawful authority under section 10.5 of the Criminal Code. The note also cross references Division 6 of Part 7, which deals with privileges and protections.

7.39 The maximum penalty for the offence is imprisonment for two years, consistent with the equivalent offence in the LEIC Act. This penalty is appropriate to enforce the NACC's coercive information-gathering powers and ensure they are effective in allowing the NACC to obtain material relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

Defence

7.40 A specific defence would be available in relation to this offence, in addition to the standard defences available under the Criminal Code which include mistake or ignorance of fact, and intervening conduct or event. These standard or general defences would not be sufficient to excuse a person from criminal liability in circumstances where they accurately understand the requirement to give information, or produce documents or things, and there is no third party or external factor that prevents their compliance with the requirement, but the person is nevertheless unable to comply either within the timeframe specified or at all. The defence would apply if it is not reasonably practicable for the person to comply with the notice to produce within the period specified in the notice (or any further time as the Commissioner allows). For example, the defence may apply where the person does not have the information, document or thing that is required for the purposes of the notice, or where it is not possible to compile all of the relevant information or documents in the time allowed.

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

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

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

7.42 A defendant would bear an evidential burden in relation to this defence (see subsection 13.3(3) of the Criminal Code). It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe, because:

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

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

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

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

7.43

7.44 To rely on the defence, the person would only need to adduce or point to evidence suggesting a reasonable possibility that compliance was not reasonably practicable. If the person does so, and in order for the offence to apply, the prosecution would then need to discharge its legal burden to negate that possibility beyond reasonable doubt.

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

7.45 The effectiveness of the Commissioner's powers will depend on people providing honest and complete information. To incentivise honest and complete responses to notices, this clause would make it an offence to provide false or misleading information or documents in response to a notice to produce.

7.46 The offence would consist of the following physical elements:

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the person is served with a notice to produce;

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the person gives information or a document as required by the notice;

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the information or document:

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is false or misleading, or

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omits a matter or thing without which the information or document is misleading.

7.47 The fault elements for the first two physical elements would be determined in accordance with section 5.6 of the Criminal Code:

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for the circumstance that a notice has been served on the person, recklessness would be the fault element; and

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for the conduct of giving information or documents, intention would be the fault element.

7.48 For the third physical element-the circumstance that the information is false or misleading, or omits a matter or thing without which the information or document is misleading-the fault element is specified in the offence as knowledge.

7.49 The maximum penalty for the offence is imprisonment for five years. ACLEI currently relies on the general offences in the Criminal Code for providing false or misleading information to a Commonwealth official, which are punishable by a maximum penalty of 12 months' imprisonment. However, in practice this maximum penalty has often been too low to incentivise honesty. The five-year penalty for this offence is the same as applies under the Australian Crime Commission Act 2002 for giving false or misleading evidence at an examination.

7.50 This penalty reflects the seriousness of deliberately misleading the NACC in relation to an investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic. It is appropriate that the deliberate giving of false or misleading information or production of false or misleading documents be subject to this higher penalty. If not detected by the Commissioner, the giving of false or misleading evidence would have the potential to significantly undermine the integrity of a corruption investigation including for example, by:

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preventing the Commissioner from following lines of inquiry that would have been available had the person not given false or misleading evidence; or

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causing the Commissioner to form an unsound opinion, or make an unsound finding or recommendation based on that false or misleading evidence.

Defence

7.51 A specific defence would be available in relation to this offence, in addition to the standard defences available under the Criminal Code. It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility the evidence was not false or misleading in a material particular because:

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

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

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

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

7.52

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

Division 3-Hearings

7.54 This Division would allow the Commissioner to hold private and public hearings, and to summon persons to give evidence, information, documents and things at a hearing, for the purpose of a corruption investigation concerning conduct the Commissioner is of the opinion could involve serious or systemic corrupt conduct. This Division would also regulate how hearings operate, including providing for the legal representation of witnesses, the examination and cross-examination of witnesses and the taking of evidence on oath or affirmation.

7.55 The Division would also include offences and a process for dealing with contempt of the NACC. This would protect the integrity of hearings and ensure persons summonsed to hearings attend and provide accurate and complete evidence, information, documents and things as required. The Division would further include orders and warrants in relation to witnesses who are likely to abscond. This would assist the effectiveness of the Commissioner's hearing powers, by ensuring that witnesses who are summonsed to attend hearings cannot evade that obligation.

7.56 Hearings would be a key power available to the Commissioner. Hearing powers would enable the Commissioner to obtain information that would not otherwise be available-in particular where it is uniquely within the knowledge of a person-or could only be obtained after long and complex investigations. Material gathered in hearings would significantly assist the Commissioner in furthering corruption investigations.

7.57 This Division would contain clear provisions about the scope of the Commissioner's powers with respect to hearings. These provisions ensure that the Commissioner is exercising their powers for a proper purpose and that, where relevant, the Commissioner has paid due regard to the fact that the person has been charged with an offence or is the subject of confiscation proceedings. These provisions would reinforce that hearings are to be held for the purposes of a relevant corruption investigation and not to bolster confiscation action or the prosecution of a witness.

Subdivision A-Commissioner may hold hearings

7.58 This Subdivision would allow the Commissioner to hold hearings for the purposes of a corruption investigation and to summon a person to appear at a hearing to give evidence and to provide information, documents and things. It would also allow the Commissioner to require a person at a hearing to give information, or produce a document or thing not specified in the summons and provide for legal representation at, and records of, hearings. The Subdivision also includes several offences related to hearings.

7.59 Subdivision B would allow for private and public hearings, and regulate private hearings and investigation material obtained at private hearings.

Clause 62-Commissioner may hold hearings

7.60 This clause would provide authority for the Commissioner to hold hearings for the purpose of a corruption investigation, and, subject to this Division, to conduct the hearing in such a manner as they think fit.

7.61 This clause would also require that if the Commissioner considers that a person appearing at a hearing may disclose intelligence information (as defined in clause 239) relating to an intelligence agency, the Commissioner must conduct the hearing in a manner consistent with any arrangement in force between the Commissioner and the head of the agency under that clause.

7.62 These arrangements are intended to ensure the method used by the Commissioner to obtain, store, access, use and disclose intelligence information are appropriate and reflect the need to protect that information. In the context of a hearing concerning intelligence information, an arrangement under clause 239 may provide, for example, that:

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the hearing should be conducted in private in a secure facility that is appropriate for discussions of intelligence information; or

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there should be protective measures in place to ensure that a witness who may be a staff member of ASIO or ASIS can arrive at, and depart from, a private hearing in a manner that ensures the protection of their identity.

Clause 63-Commissioner may summon persons

7.63 This clause would allow the Commissioner to summon a person to attend a hearing to give evidence. The summons may also require the person to give the Commissioner information, or produce documents or things, at the hearing.

Summons to give evidence

7.64 The Commissioner would be permitted to summons a person to attend a hearing at a specified time and place to give evidence. The Commissioner could only issue a summons if they had reasonable grounds to suspect the person had evidence relevant to a corruption investigation.

7.65 The person must attend a hearing from day to day unless excused or released from further attendance by the Commissioner. A hearing may take place over several days, and the Commissioner may not know how long the hearing will take at the outset. The duration of a hearing may depend, to some extent, on the cooperation of, and the answers provided by, the witness. The summons may specify just the day on which the hearing begins, with the summons requiring the person to continue attending until excused or released.

Other things that may be required under a summons

7.66 If the Commissioner summons a person to attend a hearing and give evidence, and has reasonable grounds to suspect that the person has particular information or a particular document or thing relevant to the corruption investigation, the summons may also require the person to give that information or produce the document or thing at the hearing. Although it would also be open to the Commissioner to require the person to give the same information, or produce the same document or thing, under a notice to produce under clause 58, the ability to include the requirement in a summons would enable all relevant requirements to be set out in a single document served on the person.

Post-charge and post-confiscation application summonses

7.67 The Commissioner would be permitted to issue a summons to a person charged with an offence, the subject of confiscation proceedings, or against whom such a charge or proceeding was imminent. These are referred to as post-charge or post-confiscation application summonses (see the definitions in Division 8 of this Part). Further, the matters in relation to which the Commissioner may require the person to give evidence or information, or produce documents or things, to the Commissioner at a hearing would include the subject matter of any charge, confiscation proceeding, or imminent charge or confiscation proceeding. The ability to issue a post-charge or post-confiscation application summons would ensure that corruption investigations are not delayed while charges or confiscation proceedings are resolved.

7.68 An additional threshold would apply before the Commissioner may issue a post-charge or post-confiscation application notice. The Commissioner could only issue such a notice if they had reasonable grounds to suspect the evidence, information, document or thing is necessary for the purposes of the investigation even though the person has been charged or the confiscation proceeding has commenced, or the charge or proceeding is imminent.

7.69 Express provisions of this kind, and the higher standard of necessity that applies before a post-charge or post-confiscation application summons may be issued, are necessary because of the effect such a summons has on a witness in a proceeding for a related criminal offence or related confiscation proceeding.

7.70 These provisions ensure that, in deciding to issue a summons, the Commissioner has paid due regard to the fact that the person has been charged with an offence or is the subject of confiscation proceedings. These provisions would reinforce the point that a hearing is intended to be held for the purposes of a relevant corruption investigation and not to bolster confiscation action or the prosecution of a witness.

Other matters relating to a summons

7.71 The summons would need to be in writing, signed by the Commissioner and served on the person required to attend the hearing. This would ensure that the person who is summonsed has clear, written information about the requirements imposed. This is appropriate given offences apply for non-compliance with a summons. The requirement for the summons to be signed by the Commissioner would ensure that the person can identify that the notice has been properly authorised.

7.72 The Commissioner would need to record in writing the reasons for the summons at or before the time the summons is issued. This would ensure that there is an appropriate and contemporaneous record of the Commissioner's reasons for the summons.

7.73 This clause would require the summons to be served on the person required to attend the hearing (for methods of service, see section 28A of the Acts Interpretation Act 1901).

7.74 Without limiting subsection 33(3) of the Acts Administration Act 1901 (which provides that a power to make an instrument includes the power to vary or revoke the instrument), the Commissioner would be able to vary the time or place for the hearing that is specified in the summons.

7.75 Under Division 6 of this Part, the privilege against self-incrimination, among others, would be abrogated for hearings, but information, answers, documents and things a person provides would not be admissible against them in most proceedings. Limits will also apply to the disclosure of investigation material, including information, answers, documents and things provided at a hearing, under Division 4 of this Part.

7.76 Offences would apply under clauses 68, 69, 70, 71 and 81 for failing to attend a hearing; failing to provide information, or an answer, document or thing; giving false or misleading information or documents; or destroying documents or things required. Disclosing the existence of a private hearing summons, or information about the summons, may also constitute an offence in certain circumstances: see clause 98.

Commissioner must notify Inspector of summons

7.77 This clause would require the Commissioner to provide to the Inspector, within 3 business days of the summons being issued, the following documents:

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a copy of the summons; and

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a copy of the written record of the reasons for the summons.

7.78 The Inspector would be able to review the information provided to assess the NACC's compliance with the law and to make recommendations to the NACC based on the outcome of those reviews (see clause 184 and paragraph 10.60).

7.79 A summons would not be invalid merely because the Commissioner failed to provide the Inspector with the summons and reasons within 3 business days. This is appropriate, as a failure on the Commissioner's behalf to notify the Inspector of the issue of the summons would have no bearing on the validity of the Commissioner's decision to issue the summons.

Clause 64-Summons must set out matters for questioning

7.80 This clause would require the Commissioner in most cases to set out in a summons, so far as is reasonably practicable, the general nature of the matters in relation to which the Commissioner intends to question the person. This would assist a person summonsed to prepare for attending a hearing.

7.81 The requirement to set out the general nature of matters would not apply if the Commissioner is satisfied that setting out that information is likely to prejudice:

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the corruption investigation to which the hearing relates or any other NACC Act process (see paragraph 1.104); or

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any action taken as a result of a NACC Act process.

7.82 This limitation is appropriate to ensure the integrity of an investigation and subsequent processes, and could be used if the Commissioner is satisfied that setting out the general nature of the matters in relation to which the Commissioner intends to question the person is likely to prejudice the corruption investigation or a subsequent proceeding. For example, this may apply where the Commissioner is satisfied that it is likely that the person would use that information to coordinate their answers with other persons whom the Commissioner has summonsed to give evidence at other hearings, or who may be required to answer questions or give evidence in a related proceeding.

7.83 If information about proposed matters for questioning is set out in a summons, the Commissioner is not prevented from questioning the summonsed person in relation to any aspect of any corruption investigation. This is appropriate to ensure that the Commissioner can follow lines of questioning that:

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arise during the course of the hearing, as a result of the person's answers to questions, or information given, or documents or things produced, in accordance with the summons;

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arise between the time that the Commissioner issues the summons and the time of the hearing including, for example, answers given by another person at a hearing in the intervening period; and

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involve matters the Commissioner was satisfied could not be set out in the summons.

Clause 65-Commissioner may require information, documents and things

7.84 This clause would allow the Commissioner to require a witness to give information, or produce a document or thing, at a hearing, including where it was not already specified in the summons.

7.85 Allowing the Commissioner to require the production of items and information at a hearing and without notice would support the Commissioner's investigative capabilities, including by enabling the Commissioner to require the person to give information, or produce a document or thing, to validate or follow up on an answer given in response to a question, and reduce the scope for witnesses to tamper with or destroy information.

Clause 66-Legal representation

7.86 This clause would allow a person giving evidence at a hearing to be represented by a legal practitioner. This is appropriate to ensure the person has independent advice available to them about the requirements imposed on them, and the consequences of compliance and non-compliance.

7.87 The Commissioner would also be able to consent to the legal representation of a person who is not giving evidence if special circumstances exist. For example:

•

if a person was giving evidence relating to another person who was present at the hearing but not giving evidence, that other person may wish to have their legal practitioner present; or

•

if the hearing was likely to involve the disclosure of sensitive information, information covered by a certificate issued by the Attorney-General under clause 235, or intelligence information that is subject to an arrangement under clause 239, or was likely to involve lines of questioning that may risk the disclosure of information covered by a certificate issued by the Attorney-General under clause 236, it may be appropriate for the Attorney-General or the agency concerned (acting on behalf of the Commonwealth where appropriate) to be legally represented.

7.88 This clause would apply subject to clause 75, which would allow the Commissioner to determine whether a person other than the legal representative of a witness may be present at a private hearing.

Clause 67-Record of hearings

7.89 This clause would require the Commissioner to ensure a hearing is recorded.

7.90 The record would be required to include any statements made by the Commissioner under clause 73 about the circumstances, and capacity, in which a witness is participating in a hearing.

7.91 The record would generally need to include documents produced at the hearing and a description of other things produced at the hearing. However, the Commissioner would have the discretion to direct that a document or description is not to be included in the record. This discretion would be appropriate to protect, for example, a legally-privileged document that is given by a person as required by a summons at a public hearing-consistent with the requirement in clause 74 that evidence that discloses legal advice given to a person must be given in private.

7.92 This clause would not stipulate the manner in which the hearing must be recorded-for example, by a stenographer, or by audio or video recording. It is appropriate that the Commissioner have the discretion to determine the manner in which a hearing is recorded, taking into account all of the circumstances. However, this clause would require a complete and accurate record of the hearing-subject to the Commissioner's discretion to direct that a document or description is not to be included in the record.

Clause 68-Offence-failure to attending hearing

7.93 This clause would make it an offence if a person summonsed to attend a hearing fails to attend as required by the summons, or fails to appear and report from day to day during the hearing. The inclusion of this offence would ensure that the requirement to attend a hearing can be effectively enforced.

7.94 The offence would consist of the following physical elements:

•

the person is served with a summons to attend a hearing;

•

the person fails to either:

-

attend as required by the summons, or

-

appear and report at the hearing from day to day;

•

the person has not been excused or released from further attendance by the Commissioner.

7.95 The fault elements for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

•

for the circumstance that the person was served with a summons to attend a hearing, recklessness would be the fault element (meaning proof of intention, knowledge or recklessness will satisfy this fault element; in practice, where a summons has been served personally, the person would know of that service);

•

for the conduct of failing to attend or appear, intention would be the fault element; and

•

for the circumstance that the person had not been excused or released from further attendance, recklessness would be the fault element.

7.96 The maximum penalty for the offence is imprisonment for two years. This is higher than the equivalent offence in the LEIC Act (which has a maximum penalty of 12 months' imprisonment). However, it would bring the potential punishment for this offence into line with penalties for similar offences of non-compliance in the NACC Bill and in the LEIC Act, such as failure to comply with a notice to produce or failure to answer a question or provide something at a hearing.

7.97 This penalty is appropriate to enforce the NACC's coercive information-gathering powers and ensure they are effective in allowing the NACC to obtain material relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

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

7.98 This clause would make it an offence for a person to fail to give information or produce a document or thing when required to do so (whether by a summons or by the Commissioner under clause 65). The inclusion of this offence would ensure that these requirements to provide information or produce documents or things can be effectively enforced. A separate offence would apply to failure to answer a question under clause 81.

7.99 The offence would consist of the following physical elements:

•

the person is required to give information or produce a document or thing at a hearing;

•

the person fails to give the information or produce the document or thing.

7.100 The fault elements for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

•

for the circumstance that the person was required to give information, or produce a document or thing at a hearing, recklessness would be the fault element (meaning proof of intention, knowledge or recklessness will satisfy this fault element; in practice, where a notice has been served personally, the person would know of the requirement); and

•

for the conduct of failing to provide the information or produce the document or thing, intention would be the fault element.

7.101 The maximum penalty for the offence is imprisonment for two years, consistent with the equivalent offence in the LEIC Act. This penalty is appropriate to enforce the NACC's coercive information-gathering powers and ensure they are effective in allowing the NACC to obtain material relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

Defence

7.102 A specific defence will be available in relation to this offence, in addition to the standard defences available under Part 2.3 of the Criminal Code which include mistake or ignorance of fact, and intervening conduct or event. These standard or general defences would not be sufficient to excuse a person from criminal liability in circumstances where they accurately understand the requirement to give information, or produce documents or things, and there is no third party or external factor that prevents their compliance with the requirement, but the person is nevertheless unable to comply either within the timeframe specified or at all. The defence will apply if it is not reasonably practicable for the person to give the information or produce the document or thing. For example, the defence may apply where:

•

for a requirement set out in the summons-it is not reasonably practicable to compile all of the relevant information or documents in the period between receiving the summons and attending the hearing; or

•

for a requirement given in the course of a hearing-the person does not have the information, document or thing that is required at the hearing.

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

•

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

•

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

7.104 A defendant would bear an evidential burden in relation to this defence (see subsection 13.3(3) of the Criminal Code). It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe, because:

•

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

•

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

•

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

•

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

7.105

Clause 70-Offence-destroying documents or things

7.106 This clause would make it an offence for a person engaged in conduct that results in a document or thing that is, or is likely to be, required by the Commissioner under a notice to produce or at a hearing (whether by a summons or by the Commissioner under clause 65). This offence is intended to ensure the Commissioner is able to access all documents and things relevant to a corruption investigation and deter people from destroying or tampering with documents or things that have been or are likely to be sought in the course of an investigation. It is similar to offences relating to the destruction of documents and things in section 39 of the Crimes Act 1914 and section 6K of the Royal Commissions Act 1902.

7.107 The offence would consist of the following physical elements:

•

the person acts or omits to act;

•

the act or omission results in a document or thing being:

-

concealed, mutilated or destroyed, or

-

rendered incapable of identification, or

-

in the case of a document, rendered illegible or indecipherable;

•

the document or thing is, or is likely to be, required by the Commissioner under a notice to produce or at a hearing.

7.108 The fault elements for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

•

for the conduct of acting or omitting to act, intention would be the fault element;

•

for the result of the act or omission, recklessness would be the fault element; and

•

for the circumstance that the document or thing is, or is likely to be, required by the Commissioner, recklessness would be the fault element.

7.109 The offence would apply in circumstances where a person is aware of a substantial risk that a document or thing will be required by the Commissioner, and a substantial risk that failure to act will result in the document's or thing's destruction. For example, a document might be destroyed through an automatic process unless a person intervenes. The person would then be subject to the offence where they are reckless as to the circumstance and result and intentionally fail to take action that could prevent that result.

7.110 Hearings before the Commissioner would be judicial proceedings under Part III of the Crimes Act 1914 (as a consequence of the power of the Commissioner to compel a witness to take an oath or affirmation at a hearing). Given the offence in section 39 of the Crimes Act 1914 applies to evidence that is, or may be, required in evidence in a judicial proceeding, there would be some circumstances where both that offence and an offence under clause 70 could apply. In those circumstances, it would be up to a prosecutor to determine with which of those offences a person should be charged.

7.111 The maximum penalty for the offence is five years' imprisonment, consistent with that which applies to the similar offence in section 39 of the Crimes Act 1914. This penalty is appropriate to ensure the integrity of investigations of corruption issues which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic, and to deter witnesses from destroying material in order to impede such investigations. The destruction of evidence would have the potential to significantly impede the conduct of a corruption investigation, by placing evidence permanently beyond the reach of the NACC.

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

7.112 The effectiveness of the Commissioner's powers will depend on witnesses providing honest and complete information. This clause would make it an offence to provide false or misleading evidence, information or documents at a hearing, and would incentivise honest and complete responses.

7.113 The offence would consist of the following physical elements:

•

the person gives evidence or information or produces a document as required at a hearing (whether by a summons or by the Commissioner under clause 65);

•

the evidence, information or document:

-

is false or misleading, or

-

omits a matter or thing without which the evidence, information or document is misleading.

7.114 The fault element for the first physical element (the conduct of the person giving evidence or information or producing a document) would be determined in accordance with section 5.6 of the Criminal Code and would be intention.

7.115 For the circumstance that the evidence, information or document is false or misleading, or omits a matter or thing without which it is misleading, the fault element is specified in the offence as knowledge.

7.116 The maximum penalty for the offence is imprisonment for five years. ACLEI currently relies on the general offences in the Criminal Code for providing false or misleading information to a Commonwealth official, which are punishable by a maximum penalty of 12 months' imprisonment. However, in practice the maximum penalty has often been too low to incentivise honesty.

7.117 The five-year penalty for this offence is the same as the penalty that applies to the equivalent offence in section 33 of the Australian Crime Commission Act 2002. This penalty reflects the seriousness of deliberately misleading the Commissioner in relation to an investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic. It is appropriate that the deliberate giving of false or misleading evidence be subject to this higher penalty. If not detected by the Commissioner, the giving of false or misleading evidence would have the potential to significantly undermine the integrity of a corruption investigation including for example, by:

•

preventing the Commissioner from following lines of inquiry that would have been available had the person not given false or misleading evidence; or

•

causing the Commissioner to form an unsound opinion, or make an unsound finding or recommendation based on that false or misleading evidence.

Defence

7.118 A specific defence would be available in relation to this offence, in addition to the standard defences available under the Criminal Code. The offence would not apply if the information or document is not false or misleading in a material particular. It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility the evidence was not false or misleading in a material particular because:

•

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

•

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

•

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

•

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

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

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

7.120 This clause would create three offences designed to ensure the effective operation of hearings and protect witnesses.

Obstructing or hindering the conduct of a hearing

7.121 The first offence would consist of the following physical elements:

•

the person engages in conduct;

•

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

7.122 The fault elements for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

•

for the conduct element, intention would be the fault element; and

•

for the result of obstruction or hindrance of a staff member of the NACC in the performance or exercise of the staff member's functions, powers or duties in connection with a hearing, recklessness would be the fault element.

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

•

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

•

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

•

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

7.124 The maximum penalty for the offence is imprisonment for two years, consistent with the equivalent offence in the LEIC Act. Hearings would be a key information-gathering power for the Commissioner. Obstructing or hindering a staff member of the NACC in the performance or exercise of their functions, powers or duties in connection with a hearing may have significant consequences, including:

•

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

•

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

•

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

7.125 The maximum penalty of imprisonment for two years is appropriate to protect the effective operation of hearings so the Commissioner can obtain material relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

Disrupting a hearing

7.126 The second offence would consist of the physical element of disrupting a hearing. The fault element would be determined in accordance with section 5.6 of the Criminal Code and would be intention.

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

•

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

•

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

•

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

7.128 The maximum penalty for the offence is imprisonment for two years, consistent with the equivalent offence in the LEIC Act. Hearings would be a key power available to the Commissioner. Hearings would generally require extensive planning, preparation and logistical support, and can place significant pressure on witnesses and the subjects of investigations. Disrupting a hearing may have significant consequences, including:

•

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

•

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

7.129 The maximum penalty of imprisonment for two years is appropriate to the need to protect the effective operation of hearings so the Commissioner can obtain material relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

Threatening a person present at a hearing

7.130 The third offence would consist of the physical element of threatening any person present at a hearing. The fault element would be determined in accordance with section 5.6 of the Criminal Code and would be intention.

7.131 The maximum penalty for the offence is imprisonment for five years. This reflects the higher seriousness of this offence compared to obstructing or hindering a hearing. Threatening a person at a hearing could cause a person threatened to fear for their safety, deter a person who is a witness (at that hearing, or at a later hearing) from giving honest and complete evidence, and may deter other witnesses from coming forward with information about a corruption issue.

Subdivision B-Private and Public hearings

7.132 This Subdivision would:

•

allow the Commissioner to hold private and public hearings;

•

require certain evidence to be given in private;

•

allow a witness to request to give particular evidence in private and make submissions to the Commissioner as to why the evidence should be given in private; and

•

regulate private hearings and the use of investigation material obtained during private hearings.

Clause 73-Private and public hearings

7.133 This clause would require that hearings are to held in private by default. However, the Commissioner would have the discretion to hold a hearing, or part of a hearing, in public if they are satisfied that exceptional circumstances justify holding the hearing, or part of the hearing, in public and it is in the public interest to do so.

7.134 This clause would set out a non-exhaustive list of the following matters to which the Commissioner may have regard in determining whether to hold a hearing, or part of a hearing, in public:

•

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

•

whether certain evidence is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence;

•

any unfair prejudice to a person's reputation, privacy, safety or wellbeing that would be likely to be caused if the hearing, or the part of the hearing, were to be held in public;

•

whether a person giving evidence has a particular vulnerability, including that they are under the direct instruction or control of another person in a relative position of power;

•

the benefits of exposing corrupt conduct to the public, and making the public aware of corrupt conduct.

7.135 This list highlights some of the factors that may mean a public hearing is either more (in the case of the benefits of making the public aware of corrupt conduct) or less (in the case of prejudice to a person's reputation, privacy, safety or wellbeing) appropriate, or that otherwise go to the public interest. The Commissioner could also take account of other matters when considering whether to hold a hearing, or part of a hearing, in public.

7.136 This general discretion would be subject to the requirement that some evidence must be given in private (see clause 74).

Public statements about witnesses

7.137 This clause would also allow the Commissioner to make a statement about the circumstances and capacity in which a witness is giving evidence at a hearing before the witness gives evidence, if the Commissioner thinks it appropriate to do so. This is one of a number of measures included in the NACC Bill to protect a witness from reputational harm that could otherwise arise from public association with a corruption investigation or hearing.

7.138 For example, a statement by the Commissioner at a public hearing that a witness is appearing voluntarily and is not the subject of the corruption investigation should make it clear to anyone present or reporting on the hearing that the witness's appearance should not be taken to mean they have engaged in, or are suspected of having engaged in, corrupt conduct.

Clause 74-Evidence that must be given in private

7.139 This clause would require certain evidence to be given in private, specifically where the evidence would:

•

breach a secrecy provision; or

•

disclose any of the following:

-

legal advice protected by legal professional privilege;

-

a communication that is protected against disclosure by legal professional privilege;

-

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

-

section 235 certified information (the Attorney-General may certify that particular disclosures of certain information would be contrary to the public interest);

-

intelligence information (as defined in clause 239).

7.140 This clause would ensure appropriate protection of classes of evidence that are not suitable to be made publicly available. Evidence that would breach a secrecy provision, or disclose legal advice protected by legal professional privilege or a communication that is protected against disclosure by legal professional privilege, has been included here because clause 114 would provide that a person is not excused from giving an answer or information, or producing a document or thing, on the grounds that doing so would:

•

disclose legal advice given to a person;

•

disclose a communication that is protected against disclosure by legal professional privilege; or

•

breach a secrecy provision (other than an exempt secrecy provision).

Clause 75-Presence of others at private hearings

7.141 This clause would enable the Commissioner to determine who, other than the Commissioner, staff members of the NACC, and the witness, may be present at a private hearing. This clause would also make it an offence for a person to be present at a private hearing without authority. Attendance at private hearings would be limited to protect the witness and the evidence given.

7.142 Persons giving evidence at a hearing would be entitled to legal representation, so a legal practitioner representing a person would be entitled under this clause to be present whenever that person is giving evidence at a hearing in private. It would otherwise be up to the Commissioner to determine whether another person may be present.

7.143 It is appropriate for the Commissioner to have the power to determine that other persons may be present at a private hearing. This would enable the Commissioner to authorise, for example:

•

the person who is the subject of the corruption investigation, and their legal representative, to be present to hear evidence from another witness, where the Commissioner considers it is appropriate and practicable for them to do so-it may be inappropriate or impracticable where, for example, the witness's identity is protected, or the witness is providing confidential evidence; or

•

a member of the AFP to be present to provide physical security during the hearing.

7.144 This clause would require that if the Commissioner determines that a person (other than a staff member of the NACC) is to be present while a witness is giving evidence at a private hearing, the Commissioner must inform the witness that the person is to be present and give the witness an opportunity to comment on the person's presence.

7.145 However, if the Commissioner has determined that another person may be present, that person is entitled to be there even if the Commissioner fails to inform the witness of the person's presence or the witness comments adversely on the person's presence. This would ensure that:

•

the person is not inadvertently exposed to criminal liability-where the Commissioner has previously approved them to be present-if the Commissioner fails to inform the witness of their presence; and

•

the Commissioner's arrangements to conduct the hearing in the manner the Commissioner thinks fit-for example by having an AFP member present to provide physical security-are not inadvertently disrupted, if the Commissioner fails to inform the witness of a person's presence.

7.146 Similarly, it would be appropriate that the person be entitled to be present even if the witness has commented adversely on their presence, to ensure that the Commissioner is able to conduct the hearing in the manner the Commissioner thinks fit.

Offence-person present without authority

7.147 To enforce this protection of witnesses and evidence given at private hearings, it would be an offence under this clause for a person to be present at a private hearing except where authorised under this clause.

7.148 The offence would consist of the following physical elements:

•

the person attends a hearing while evidence is being given in private at the hearing;

•

the person is not:

-

the person giving evidence;

-

the legal practitioner representing the person giving evidence;

-

a staff member of the NACC; or

-

a person the Commissioner has determined may be present while the person is giving evidence.

7.149 The fault elements for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

•

for the conduct element that the person attends a hearing while evidence is being given in private, intention would be the fault element; and

•

for the circumstance of the person not being one of the persons mentioned, recklessness would be the fault element.

7.150 The maximum penalty for the offence is imprisonment for two years, consistent with the equivalent offence in the LEIC Act. This penalty is appropriate to the need to protect the effective operation of hearings and ensure appropriate protection of investigation material given or produced at a private hearing.

Clause 76-Request to give evidence in private

7.151 This clause would allow a witness to request to give particular evidence in private and make submissions to the Commissioner as to why the evidence should be given in private. This provision would ensure that a person summonsed to a hearing has the opportunity to put forward a case for giving part or all of their evidence in private if they so wish.

7.152 The Commissioner would be required to consider a request and any submissions when determining whether to hold a hearing, or part of a hearing, in public or in private under clause 73. However, this clause would not limit the Commissioner's general discretion under that clause.

Clause 77-Investigation material from private hearings

7.153 This clause would require the Commissioner to issue a confidentiality direction under clause 100 in certain circumstances where evidence is taken in private. Clause 100 would allow the Commissioner to issue directions prohibiting or limiting the use of investigation material (such as evidence given at a hearing). Contravention of such a direction would be an offence under clause 101.

7.154 If all or part of a hearing is held in private, Commissioner would be required to give a direction under clause 100 if the Commissioner is satisfied that the failure to give such a direction:

•

might prejudice a person's safety;

•

would reasonably be expected to prejudice a witness's fair trial, if the witness has been charged with a relevant offence or such a charge is imminent;

•

might lead to the publication of section 235 certified information (the Attorney-General may certify that particular disclosures of certain information would be contrary to the public interest); or

•

might lead to the publication of sensitive information (as defined in clause 227).

7.155 This clause would ensure appropriate protection of particularly sensitive investigation material, and the rights and safety of a witness, where that material has been provided in a private hearing and therefore not made public.

Subdivision C-Evidence and procedure

7.156 This Subdivision would provide for matters relating to evidence and procedure for hearings held under this Division. It also contains an offence for a person failing to take an oath, make an affirmation or answer a question at a hearing when required to do so.

Clause 78-Evidence on oath or by affirmation

7.157 This clause would permit the Commissioner to administer an oath or affirmation to a witness. An oath or affirmation administered by the Commissioner would be an oath or affirmation that the evidence the witness will give will be true. Conferring power on the Commissioner to compel a witness to take an oath or affirmation aims to ensure the reliability of evidence given in a hearing.

7.158 The consequence of the power of the Commissioner to compel a witness to take an oath or affirmation is that hearings held by the Commissioner under the NACC Bill would be characterised as 'judicial proceedings' under Part III of the Crimes Act 1914. This would mean that the offences attaching to judicial proceedings as set out in Part III of that Act are applicable to hearings conducted under the NACC Bill. These offences include, for example, giving false testimony, fabricating or destroying evidence, and intimidating, corrupting or deceiving witnesses.

7.159 The Commissioner would be able to allow a person who is attending a hearing, and who has been sworn or has made an affirmation, to give evidence at the hearing by tendering a written statement and verifying it by oath or affirmation. This would improve the efficiency of hearings by allowing evidence to be provided in writing when appropriate, such as when it is of a technical nature, while still requiring that evidence to be affirmed as true.

7.160 A failure to take an oath or make an affirmation if required by the Commissioner would be an offence against clause 81.

Clause 79-Commissioner may take evidence outside Australia

7.161 This clause would permit the Commissioner to take evidence outside Australia on oath or by affirmation, or under a similar obligation, caution or admonition, in certain circumstances. This clause has been included because some public officials are located and perform functions outside Australia. This clause would enable the Commissioner to obtain evidence from those persons and others who may have information about their conduct even though they are overseas, similar to section 7B of the Royal Commissions Act 1902 and section 84 of the LEIC Act.

How evidence may be taken outside Australia

7.162 If arrangements are made between Australia and another country in relation to the taking of evidence in that country by the Commissioner for a hearing under this Division, this clause would allow evidence to be given in that country:

•

on oath or affirmation;

•

under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the other country; or

•

under such caution or admonition as would be accepted, by courts in the other country, for the purposes of giving testimony in proceedings before those courts.

7.163 For hearings in Australia, the Commissioner may take evidence on oath or affirmation under clause 78. Alternative obligations to tell the truth and cautions and admonitions, have been provided in this clause because some countries' laws do not provide for oaths or affirmations.

7.164 The oath, affirmation, obligation, caution or admonition must be administered in accordance with the arrangements made between Australia and the other country and the laws of that other country.

The use of evidence taken outside Australia

7.165 This clause would allow the Commissioner to use any evidence taken under this clause for the purpose of performing any function, or exercising any power, under this Bill. This would include, for example, the conduct of a corruption investigation, and the preparation of an investigation report under Part 8.

Making arrangements for the taking of evidence outside Australia by the Commissioner

7.166 The Commissioner would not enter into arrangements for the taking of evidence overseas for a hearing under this Division. Given such arrangements are between Australia and another country, they would be made by a Minister or their delegate. This clause is confined to allowing the Commissioner to take evidence overseas where such arrangements are already in place.

7.167 The arrangement would not be required to be a treaty level arrangement.

Clause 80-Examination and cross-examination of witnesses

7.168 This clause would allow the Commissioner to authorise a person to examine or cross-examine a witness during a hearing as the Commissioner thinks appropriate, on any matters that the Commissioner considers relevant. However, the only persons who the Commissioner could authorise to conduct examination and cross-examination would be:

•

counsel assisting the Commissioner;

•

persons summonsed, or otherwise authorised, to appear before the Commissioner at the hearing; and

•

legal practitioners representing persons at the hearing.

7.169 This clause would provide a way for evidence of a witness to be adduced and tested during a hearing. It would be appropriate for the Commissioner to have a discretion as to whether to permit cross-examination of a particular witness, and if so by whom. It would be desirable for the Commissioner to be able to operate with flexible procedures and not as a body with technical rules of evidence required of the courts. In particular, this would enable the Commissioner to, for example:

•

protect the identities of confidential sources of evidence;

•

hear evidence on matters that would ordinarily be protected by public interest immunity or legal professional privilege, to ensure that the Commissioner is fully-informed, without exposing that information to a third party; and

•

conduct corruption investigations in a timely fashion, consistent with the objects of the NACC Bill (see clause 3).

Clause 81-Offence-failure to take an oath, make an affirmation or answer a question

7.170 This clause would create an offence in order to ensure that those summonsed to give evidence comply with their obligations at a hearing. This offence would ensure that the requirement for persons to take an oath, make an affirmation, or answer a question that the Commissioner requires them to answer can be enforced.

7.171 The offence would consist of the following physical elements:

•

the person is served with a summons to attend a hearing;

•

the person fails to either:

-

take an oath or make an affirmation at the hearing when required to do so under clause 78, or

-

answer a question at the hearing that the Commissioner requires the person to answer.

7.172 The fault element for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

•

for the circumstance that a person was served with a summons, recklessness would be the fault element (meaning proof of intention, knowledge or recklessness will satisfy this fault element; in practice, where a notice has been served personally, the person would know of the requirement); and

•

for the conduct of failing to comply with the relevant requirement, intention would be the fault element.

7.173 A note to this clause includes cross-references to protections for journalists' informants in clause 31, and Attorney-General's certificates in relation to international relations, which may be issued under clause 236. In some circumstances, those clauses might provide grounds for a person to rely on the defence of lawful authority under section 10.5 of the Criminal Code. The note also cross references Division 6 of Part 7, which deals with privileges and protections.

7.174 The maximum penalty for the offence is imprisonment for two years, consistent with the equivalent offence in the LEIC Act. This penalty is appropriate to enforce the Commissioner's hearing powers and ensure they are effective in allowing the Commissioner to obtain material relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

Subdivision D-Contempt of the NACC

7.175 This Subdivision would define when a person is in contempt of the NACC, and provide for the Commissioner to apply to a court to have a person dealt with in relation to the contempt. It would allow a person in contempt to be detained for the purpose of bringing them before a court to which an application is made and set out how a court may deal with an application.

7.176 The LEIC Act currently contains a framework for contempt of ACLEI (see Subdivision EA of Division 2 of Part 9), as does the ACC Act (see sections 34A to 34F). The ability to bring contempt proceedings is important because relying on criminal proceedings alone may mean investigations are compromised by the delay in the commencement of court proceedings. Witnesses may be aware that they can substantially delay or frustrate an investigation by refusing to provide certain evidence or information. Further, the penalty or consequence resulting from criminal proceedings may seem distant and relatively minor. In contrast, contempt provisions motivate an uncooperative witness to reconsider their position and comply with the requirements of a hearing, as the witness is immediately subject to the possibility of being taken into custody before a superior court.

Clause 82-Contempt of the NACC

7.177 This clause would outline the conduct that would amount to contempt of the NACC, which would broadly mirror the terms of offences relating to hearings in this Division.

7.178 A person summonsed to attend a hearing would be in contempt of the NACC if the person:

•

fails to attend as required by the summons;

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

disrupts a hearing; or

•

threatens a person present at a hearing.

7.179 The conduct listed in this clause would significantly impede the Commissioner's ability to conduct corruption investigations and frustrate the objects of the NACC Bill, including to facilitate the timely investigation of corruption issues that involve, or potentially involve, corrupt conduct that is serious or systemic (clause 3).

7.180 A note to this clause includes cross-references to protections for journalists' informants in clause 31, and Attorney-General's certificates in relation to international relations, which may be issued under clause 236. Those clauses provide exceptions where failure to give an answer or information, or produce a document or thing, may be permitted so would not constitute contempt. The note also cross references Division 6 of Part 7, which deals with privileges and protections.

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

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

Legal practitioners and legal privilege

7.183 Consistent with clause 115, a legal practitioner would not be in contempt of the NACC because they fail to comply with a requirement in circumstances where the Commissioner could not insist on that requirement because of the application of legal professional privilege. For example, a legal practitioner may refuse to answer a question that would disclose legal advice given to a person in connection with that person attending a hearing.

7.184 However, a legal practitioner could be required to give the Commissioner the name and address of the person who is able to waive the legal professional privilege concerned. If the practitioner refuses to comply with this requirement, the practitioner would be in contempt of the NACC.

Clause 83-Application for court to deal with contempt

7.185 The Commissioner would be able to apply to either the Federal Court or the Supreme Court of the State or Territory in which the contempt occurs to deal with the contempt.

7.186 The Commissioner would be required to inform the person alleged to be in contempt of the NACC of the Commissioner's intention to make an application before the Commissioner makes the application. This would ensure that a person is given early notification of the consequences of their conduct, giving them an opportunity to comply with the requirements of the Commissioner.

7.187 The application would need to be accompanied by a certificate setting out the grounds for the application and the supporting evidence.

7.188 A copy of the certificate would need to be given to the person alleged to be in contempt of the NACC at or before the time the Commissioner makes the application. This is a necessary and important safeguard to ensure that the person is made aware of the reasons why the Commissioner believes the person to be in contempt and is given an opportunity to prepare their own case that they are not in contempt. This would also assist to facilitate the timely resolution of the contempt application, and thereby the timely resolution of the Commissioner's corruption investigation, consistent with the objects of the NACC Bill (see clause 3).

Clause 84-Conduct of contempt proceedings

7.189 This clause would provide for court proceedings when a court deals with an application made under clause 83.

7.190 Proceedings in relation to the application would be instituted, carried on, heard and determined in accordance with the laws (including any rules of court) that apply in relation to the punishment of a contempt of the court to which the application was made. This would ensure that the court will retain overall control of the contempt proceedings from the time the person is brought before that court until the application is disposed of.

7.191 The Commissioner's certificate that is lodged with the application would be prima facie (or rebuttable) evidence of the matters specified in the certificate. The use of prima facie evidentiary certificates for substantive matters in contempt proceedings facilitates their prompt resolution, by enabling the Commission to place evidence before the court and enabling the court to treat that evidence as correct unless it is rebutted.

7.192 The use of a prima facie evidentiary certificate would allow the court to find the facts of the alleged contempt without necessarily having to rely on oral testimony. This approach minimises the potential delay associated with calling witnesses or adducing evidence to establish uncontested facts, or negotiating an agreed statement of facts. This is important to facilitate the timely investigation of corruption issues that could involve serious or systemic corrupt conduct, consistent with the objects of the NACC Bill set out in clause 3. This is particularly important in cases of contempt by non-compliance, to mitigate the risk that an alleged contemnor may draw out contempt proceedings to further delay and frustrate an ongoing investigation. The use of a prima facie evidentiary certificate would not prevent the defendant from challenging the evidence. However, if there is no dispute as to the facts, the certificate would expedite the contempt proceedings. The use of a prima facie evidentiary certificate framework for contempt proceedings in this clause is consistent with existing approaches in the Law Enforcement Integrity Commissioner Act 2006 and the Australian Crime Commission Act 2002.

7.193 This clause would require the court to:

•

consider the matters specified in the certificate;

•

hear or receive any evidence or statements by or in support of the application; and

•

hear or receive any evidence or statements by or in support of the person.

7.194 After considering the application and any further evidence adduced by the Commissioner or the relevant person, the court would be able to find that the person was in contempt of the NACC and, if it makes such a finding, to deal with the person as if the person's conduct constituted a contempt of that court.

7.195 The principles of criminal responsibility, set out in Chapter 2 of the Criminal Code, would apply for the purposes of determining whether a person was responsible for the conduct that constitutes a contempt of the NACC. For example, this would mean that the circumstances in which there is no criminal responsibility, set out in Part 2.3 of the Criminal Code, would apply to the contempt proceeding. This is necessary because the contempt provisions are not statutory offences to which the Criminal Code would otherwise apply.

Clause 85-Person in contempt may be detained

7.196 This clause would allow the Commissioner to detain a person the Commissioner considers is in contempt of the NACC for the purpose of bringing the person before the court for the hearing of the application.

7.197 While it is anticipated that in most instances, uncooperative witnesses will voluntarily attend court, there may be some instances where the assistance of law enforcement is necessary to bring the alleged contemnor to the court. This could include, for example, where a person has failed to attend a hearing as required by a summons and has been located attempting to abscond, giving rise to a significant risk that the person would also fail to attend a court hearing.

7.198 The Commissioner would be authorised to direct a constable or an authorised officer to detain the person. The Commissioner may do so if, during a hearing, the Commissioner proposes to make an application for the person to be dealt with for contempt of the NACC. The purpose of the person's detention must be for the Commissioner to bring the person before a court in connection with a contempt application made under clause 83. The Commissioner would be required to make the contempt application and ensure the person is brought before the relevant court as soon as practicable after detaining the person.

7.199 Before determining the contempt application, the court would be able to direct that a detained person be released on the condition the person appear before the court in relation to the application or order the person continue to be detained during the contempt proceedings.

7.200 If the court directs the release of the person, the court would be able to impose any additional conditions, including for example, that the person:

•

surrenders any Australian or foreign travel documents;

•

give an undertaking as to the person's living arrangements; or

•

report as required to police or another law enforcement agency.

7.201 The court would be able to, at any time, vary or revoke an additional condition it imposes.

Clause 86-Commissioner may withdraw contempt application

7.202 This clause would permit the Commissioner to withdraw a contempt application at any time. This would give a person who initially refuses to comply with the Commissioner a further opportunity to cooperate.

7.203 If the Commissioner withdraws an application, any person detained in connection with the application would be required to be released immediately.

Clause 87-Double jeopardy

7.204 This clause would uphold the principle of double jeopardy in relation to contempt by preventing a person being subject to multiple punishments (criminal and contempt proceedings) in respect of the same conduct. This clause would:

•

prevent a person who has been dealt with by a court for being in contempt of the NACC from being prosecuted for an offence in relation to the same conduct; and

•

prevent a person who is first prosecuted for an offence from being subject to a contempt application in relation to the same conduct.

7.205 This clause does not limit the application of section 4C of the Crimes Act 1914, which prevents a person from being subject to punishment for the same conduct in connection with two offences (including through the concurrent application of Commonwealth and State or Territory offences).

Subdivision E-Travel documents and arrest of witnesses

7.206 This Subdivision would allow the Commissioner to, in certain circumstances, apply to a judge for:

•

an order requiring a person to deliver a travel document to the Commissioner; and

•

a warrant to arrest a person to ensure their attendance at a hearing.

7.207 These powers are based on those currently available under the LEIC Act. They are intended to ensure that witnesses attend or continue to attend a hearing as required for the purposes of investigating a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

7.208 A person summonsed to attend a hearing might, for example, attempt to evade service of a summons or to flee the country once summonsed to avoid having to give evidence at a hearing. The Commissioner may become aware of such attempts though various means, including, where the corrupt conduct constitutes a serious offence, through covert powers available under other Acts (provided for under the Consequential Bill). The powers in this Subdivision would provide a means by which the person's attendance can be assured in such circumstances.

Clause 88-Applying for orders to deliver travel documents

7.209 This clause would permit the Commissioner to apply to a Judge of the Federal Court for an order that a witness deliver their travel documents to the Commissioner. An application would seek to preserve the evidence of witnesses by ensuring their attendance at a hearing to provide information, documents, things or evidence where there is a reasonable suspicion that the witness intends to leave Australia (which is defined in clause 7 to include the external Territories) before providing that material.

7.210 The Commissioner would be able to apply for an order if the Commissioner has summonsed the person to attend a hearing (regardless of whether the summons has been served) or the person has attended a hearing. The Commissioner could only make such an application if they had reasonable grounds to:

•

believe the person can give evidence or produce documents or things relevant to the corruption investigation concerned; and

•

suspect that the person has a travel document and intends to leave Australia.

7.211 The Commissioner must give the Judge information on oath, or by affirmation, in support of the grounds for the application.

7.212 A 'travel document' would include a passport or other travel document issued to the person by Australia or another country.

Clause 89-Orders to deliver travel documents

7.213 This clause would allow the Federal Court to make a decision on an application under clause 88 about whether a person's travel documents should be delivered to the Commissioner.

Court order for a witness to appear before the court

7.214 If a Judge of the Federal Court, while sitting in Chambers, is satisfied on the evidence that the requirements in clause 88 are met, the Judge would be able to make an order that requires the person to appear before the Federal Court at a specified time and place to show cause for why they should not be ordered to deliver their travel documents to the Commissioner.

7.215 The power for the Federal Court to order a person to deliver their travel documents to the Commissioner would be a significant power. It is appropriate that the NACC Bill require a show cause hearing, prior to the Federal Court making such an order. This would allow the person the opportunity to show cause why the person should not be required to deliver their travel document to the Commissioner which may include, for example:

•

evidence that the person intends to depart Australia on a temporary basis-for example, for a family holiday that was planned before the person became aware that they were likely to be summonsed to give evidence before the NACC;

•

evidence that the person intends to return to Australia, including to attend the hearing; or

•

evidence of substantial hardship or other harm that may result, to that or any other person, if the person is not permitted to temporarily depart Australia-for example, to attend a time-critical meeting or negotiation that cannot reasonably be undertaken from Australia.

Court order that a witness deliver a travel document to the Commissioner

7.216 The Federal Court would have the authority to make an order, if it thinks fit, requiring a person to deliver a travel document that is within the person's possession, custody or control to the Commissioner.

7.217 The Court would also be able to make an order that authorises the Commissioner to retain the document for a period not exceeding one month from the date the order is made. The Court could, on application by the Commissioner, extend the period one month at a time up to a maximum period of three months.

7.218 Although the Commissioner is authorised to retain the travel document for this period, they are not required to do so. It would be open to the Commissioner to return a travel document to the person prior to the expiry of this period where, for example:

•

the hearing at which the person is required to appear before the Commissioner is completed; or

•

the Commissioner is satisfied that there are extenuating circumstances that would justify returning the person's travel document to them, and the person being permitted to depart Australia.

7.219 The Federal Court could only make an order if the person has appeared before the court pursuant to an initial order requiring their attendance. The Federal Court could deal with a person's failure to appear before the court pursuant to its initial order, or a failure to deliver a travel document to the Commissioner pursuant to an interlocutory or final order, as a contempt of court in accordance with the Federal Court Rules.

Revocation of court order

7.220 If the Federal Court makes an order authorising the Commissioner to retain a person's travel document, the person would be able to apply to the Federal Court for the order to be revoked. If the Court revokes the order, the Commissioner would be required to return the document to the person immediately.

Jurisdiction of the Federal Court

7.221 This clause clarifies that the Federal Court would have jurisdiction in respect of matters that arise from the operation of this clause. For example, if a person failed to comply with an order made under this clause, the Federal Court could deal with the person for contempt of Court.

Clause 90-Warrant to arrest witness

7.222 This clause would allow an authorised officer to apply to a superior court judge (defined to mean a Judge of the Federal Court or a Judge of the Supreme Court of a State or Territory) for a warrant to arrest a person the Commissioner has summonsed to appear at a hearing. Authorised officers of the NACC would not have general powers of arrest. The arrest of a person would only be justified if it occurs under a warrant and for the purposes of ensuring the person attends a hearing as required.

7.223 An authorised officer (defined in clause 7 to mean the Commissioner, a Deputy Commissioner or a person appointed under clause 267) would be authorised to apply for a warrant to arrest a person in three situations.

7.224 The first situation is where:

•

the person has been ordered to deliver a travel document to the Commissioner (whether or not the person has complied with the order); and

•

the authorised officer has reasonable grounds to believe that the person is likely to leave Australia (including the external Territories) for the purpose of avoiding giving evidence at a hearing before the Commissioner.

7.225 The second situation is where the person is to be served with a summons to attend a hearing under clause 63 and the authorised officer has reasonable grounds to believe that the person has absconded or is likely to abscond or is otherwise attempting, or likely to attempt, to evade service of the summons.

7.226 The third situation is where the authorised officer has reasonable grounds to believe that the person has committed an offence concerning failure to attend a hearing, or is likely to do so.

7.227 An authorised officer would be required to give the judge information on oath, or by affirmation, in support of the grounds for the application.

Clause 91-Warrant for arrest

7.228 This clause would provide for the issue and execution of a warrant for a witness's arrest.

7.229 A superior court judge (defined in clause 76 to mean a Judge of the Federal Court or a Judge of the Supreme Court of a State or Territory), sitting in Chambers, would be able to issue a warrant authorising the arrest of the person if satisfied, on the evidence, that there are reasonable grounds for believing that:

•

the person has been ordered to deliver a travel document to the Commissioner (whether or not the person has complied with the order) and the person is likely to leave Australia for the purpose of avoiding giving evidence at a hearing before the Commissioner;

•

the person is to be served with a summons to attend a hearing under clause 63 and the person has absconded or is likely to abscond or is otherwise attempting, or likely to attempt, to evade service of the summons; or

•

the person has committed an offence concerning failure to attend a hearing, or is likely to do so.

Powers on arrest

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

•

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

•

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

•

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

•

a member of the AFP.

7.231 Authorised officers who are members of the AFP or a State or Territory police force would be constables. This clause would provide that for the purposes of executing the arrest warrant, an authorised officer of the NACC who is not a constable would have the same powers and duties as a constable has in arresting a person for an offence under Divisions 4 and 5 of Part IAA of the Crimes Act 1914.

7.232 This would provide authorised officers with appropriate powers to execute an arrest warrant issued under this clause, specifically powers to:

•

enter premises the officer believes on reasonable grounds the person is on, using necessary and reasonable force (section 3ZB of the Crimes Act 1914);

•

use necessary and reasonable force to execute the arrest (section 3ZC);

•

conduct a frisk search of the person being arrested at or soon after arrest and seize any seizable items, if they consider on reasonable grounds that it is prudent to do so (section 3ZE);

•

conduct an ordinary search of the person being arrested at or soon after arrest, if they suspect on reasonable grounds that the person is carrying evidential material or a seizable item (section 3ZF); and

•

seize things in plain view at the premises where the arrest takes place that they believe on reasonable grounds to be evidential material or a seizable item (section 3ZG).

7.233 This clause would also apply appropriate safeguards to the exercise of powers on arrest, specifically:

•

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

•

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

•

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

•

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

•

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

•

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

7.234 This clause would clarify that the warrant may be executed by an authorised officer other than the authorised officer who applied for the warrant. This would allow the NACC the flexibility needed to manage its operations by using different authorised officers to obtain and execute the warrant.

Commissioner must notify Inspector of arrest warrant

7.235 This clause would require the Commissioner to provide to the Inspector, within 3 business days of the warrant being issued, the following documents:

•

a copy of the warrant;

•

a copy of the application for the warrant; and

•

if the information provided on oath or by affirmation in support of the grounds is in writing, a copy of that information.

7.236 The Inspector would be able to review the information provided to assess the NACC's compliance with the law and to make recommendations to the NACC based on the outcome of those reviews (see clause 184 and paragraph 10.60).

7.237 A warrant would not be invalid merely because the Commissioner failed to provide the Inspector with the summons and reasons within 3 business days. This is appropriate, as a failure on the Commissioner's behalf to notify the Inspector of the issue of the warrant would have no bearing on the validity of the issuing officer's decision to issue the warrant.

Clause 92-Powers of judge in relation to person arrested

7.238 A person arrested under a warrant issued under clause 91 would be required to be brought, as soon as practicable, before a superior court judge (defined in clause 90 to mean a Judge of the Federal Court or a Judge of the Supreme Court of a State or Territory).

7.239 The judge would be able to grant the person bail on such security and conditions as the judge thinks fit. Alternatively, the judge would be able to order the person:

•

continue to be detained for the purpose of ensuring that the person appears as a witness at a hearing before the Commissioner; or

•

be released unconditionally.

7.240 If a judge orders that a person continue to be detained, the person would be required to be brought back before a superior court judge within 14 days (or a different period fixed by the judge on the person's last previous appearance). This would provide an opportunity for the judge to reconsider the issue of the person's detention and exercise any of the powers outlined above.

Subdivision F-Miscellaneous

7.241 This Subdivision would provide for the payment of allowances for travelling and other expenses and protections for the Commissioner and legal practitioners assisting the Commissioner.

Clause 93-Allowances for travelling and other expenses

7.242 This clause would provide that a witness appearing at a hearing would be entitled to be paid by the Commonwealth any allowances for travelling and other expenses that are prescribed by the regulations. This is consistent with arrangements for the payment of travel and other expenses for persons appearing at a hearing under the LEIC Act, or at an examination under the ACC Act.

7.243 Financial assistance in relation to a person's representation at a hearing by a legal practitioner may be provided in accordance with arrangements prescribed under clause 280 (see paragraph 13.53).

Clause 94-Protection of Commissioner and legal practitioners assisting

7.244 This clause would provide protections to participants in a hearing equivalent to those applying in judicial proceedings.

7.245 The Commissioner would have, in exercising the power to hold a hearing, the same protection and immunity as a Justice of the High Court.

7.246 A legal practitioner assisting the Commissioner, or representing a person, would have the same protection and immunity as a barrister appearing for a party in proceedings in the High Court.

7.247 This would mean, for example, that those persons could not be sued for defamation for their actions during a hearing (see also clause 269).

7.248 This clause would clarify that this would not limit the powers of the Inspector, or the powers of the Commonwealth Ombudsman under the Ombudsman Act 1976, to investigate issues of administrative practice in relation to a hearing. This ensures that any complaints about the Commissioner can be dealt with appropriately by relevant oversight bodies.

7.249 Clause 116 and Part 4 would provide protections for persons who give answers or information, or produce documents or things under this Part.

Division 4-Use and disclosure of certain information and material

7.250 This Division would regulate the use and disclosure of information relating to a corruption investigation or another NACC Act process (see paragraph 1.104). This Division is necessary to preserve:

•

the integrity of corruption investigations and other processes;

•

the reputations and safety of witnesses;

•

the confidentiality of certain types of information from public disclosure; and

•

the fairness of any criminal proceedings that may take place following a corruption investigation or other NACC Act process.

7.251 This Division would also include offences to prevent the improper use or disclosure of the information.

Subdivision A-Non-disclosure notations

7.252 This Subdivision would establish non-disclosure notations and create an offence for breaches of these notations. Non-disclosure notations are necessary for the purposes of corruption investigations the Commissioner conducts in private. Similar notation frameworks are currently contained in Subdivision AA of Division 1, and Subdivision D of Division 2 of Part 9 of the LEIC Act, in relation to notices to produce and summonses to attend private hearings, respectively. This Division would ensure the Commissioner can limit the spread of information relating to a notice or summons for reasons including the protection of reputations, the prevention of prejudice to an investigation, inquiry or subsequent trial, and the prevention of harm to an individual.

Clause 95-Non-disclosure notations

7.253 This clause would set out the meaning of a non-disclosure notation. These notations would enable the Commissioner to limit the disclosure of information about a notice to produce or private hearing summons, or any official matter connected with such a notice or summons.

7.254 A non-disclosure notation may prohibit the disclosure of information, or limit disclosure in specified circumstances (for example, for specified purposes or to specified people). Information about a notice to produce or a private hearing summons that may be prohibited from being disclosed could include the fact that the notice or summons exists or has been served on a particular person.

7.255 A non-disclosure notation would only be included in a notice to produce or a summons to attend a private hearing. However, the notation may encompass other official matters connected with the notice or summons, including a corruption investigation, any other processes under the NACC Bill (such as a public inquiry), or a legal matter that is the subject of court proceedings.

7.256 For example, the Commissioner may be holding a private hearing for the purpose of a public inquiry (as provided for under Part 9 of the NACC Bill) concerning corruption risks within a particular agency. As a result of information obtained during the course of the public inquiry, the Commissioner may commence a corruption investigation into the conduct of a particular individual at that agency, and issue a summons to attend a private hearing in connection with that investigation. If a non-disclosure notation were included in the private hearing summons, it may prohibit or limit disclosure about the corruption investigation or the public inquiry, as official matters connected with the summons.

7.257 Where a non-disclosure notation is included in a notice or summons, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by clause 98. This would include an explanation that a failure to comply with a non-disclosure notation would be a criminal offence, unless the disclosure was otherwise permitted. For the offence, and the circumstances in which disclosure may be permitted, see clause 98.

Clause 96-When non-disclosure notations must or may be included

7.258 This clause would set out the specific circumstances in which the Commissioner must or may include a non-disclosure notation.

7.259 The Commissioner would be required to include a non-disclosure notation in the notice or summons if the Commissioner is satisfied that not doing so would reasonably be expected to prejudice:

•

a person's safety or reputation;

•

a person's fair trial, if the person has been charged with an offence or such a charge is imminent;

•

a NACC Act process (as defined in clause 7, see paragraph 1.104); or

•

any action taken as a result of a NACC Act process.

7.260 The Commissioner would have the discretion to include a non-disclosure notation in a notice or summons if satisfied that not doing so might prejudice one of the matters listed above. This would mean that, in circumstances where the Commissioner is not satisfied that prejudice may be reasonably expected to occur, the Commissioner would retain a discretion to include the non-disclosure notation if satisfied that prejudice might occur.

7.261 This clause would also provide a discretion for the Commissioner to include a non-disclosure notation in a notice or summons if the Commissioner is satisfied that not doing so might otherwise be contrary to the public interest. For example, as part of a corruption investigation, the Commissioner may issue a private hearing summons to an officer of an intelligence agency. Notwithstanding the fact the officer may be subject to a separate non-disclosure obligation under existing intelligence legislation, the Commissioner could consider that it might be contrary to the public interest if the fact of the summons was publicly disclosed. The Commissioner could therefore include a non-disclosure notation in the summons.

7.262 The Commissioner would not be authorised to include a non-disclosure notation in a notice or summons unless required or permitted to do so as outlined by this clause. This would ensure that information about the NACC's processes is not subject to inappropriate secrecy and persons involved in NACC processes are not burdened by these limitations unnecessarily, especially given that criminal penalties attach to breaches of such notations.

Vulnerable persons and persons with disabilities

7.263 The Commissioner would have an additional obligation in relation to non-disclosure notations that will apply to vulnerable persons and persons with disabilities.

7.264 The obligation would apply if the Commissioner is aware that a non-disclosure notation will apply to a person who has a disability or other vulnerability that may affect their ability to comply with the notice or summons. The Commissioner may be 'aware' that a person has a disability or other vulnerability based on their existing knowledge of the person or, for example, because the person or their representative draw the matter to the Commissioner's attention. The concept of a 'vulnerability' should be interpreted broadly and in the context of a person's ability to comply with a notice or summons, or to otherwise engage fairly with the Commission's processes. For example, a person's limited proficiency in English would constitute a vulnerability if it may affect their ability to understand and respond to questions during a hearing. In such circumstances, the Commissioner would be required to consider permitting the person to disclose information to obtain assistance necessary to comply with the notice or summons, or to otherwise engage fairly with the Commission's processes. Circumstances in which the Commissioner may decide not to permit any further disclosure may include:

•

where the Commission itself has made arrangements to provide the person with assistance to comply with a summons-for example, where the Commission has provided an interpreter or sign language interpreter to ensure that a witness can understand and respond fully to questions, and to ensure procedural fairness, removing the need for the Commissioner to permit further disclosures; or

•

the Commissioner has provided the person with sufficient additional time to comply with a notice to produce, so as to enable them to comply without assistance.

Clause 97-Cancelling non-disclosure notations

7.265 This clause would permit the Commissioner to cancel a non-disclosure notation if the reason for originally including the notation in the notice or summons ceased to exist.

7.266 The Commissioner would be required to advise the person on whom the notice or summons was served in writing if they cancel the non-disclosure notation. The cancellation of a non-disclosure notation would only have effect once that person is notified of its cancellation.

7.267 The approach to the cancellation of non-disclosure notations is a departure from the automatic cancellation approach adopted in sections 77A and 77B of the LEIC Act. This departure appropriately responds to comments made in relation to equivalent provisions of the Independent Commission Against Corruption Act 2012 (SA) by the South Australian Supreme Court in Bell v The Queen (2020) 286 A Crim R 501, 561.

Reconsideration of non-disclosure notation

7.268 If a non-disclosure notation has not been cancelled within five years, the Commissioner would be required to consider its cancellation. If the Commissioner deems that the non-disclosure notation should continue to apply, the Commissioner will be required to reconsider the cancellation of the non-disclosure notation every two years while it remains in effect.

7.269 It may be appropriate for some non-disclosure notations to continue in force for an extended period of time. For example, a notation may have been included to protect the life or safety of a witness who is a confidential source of information in relation to an organised criminal group, and the risk to that person's life or safety if their cooperation with the NACC was exposed may endure for an extended period of time. The requirement for regular re-consideration would ensure that a non-disclosure notation does not operate in perpetuity without ongoing justification.

Relationship of notation with the Privacy Act 1988

7.270 A credit reporting body may be required to provide credit reporting information to the Commissioner under a notice or summons. If the notice or summons includes a non-disclosure notation, the body would be prevented from complying with existing legal obligations in relation to the disclosure of its information. To address this, this clause would provide that the credit reporting body would not be required, under subsection 20E(5) of the Privacy Act 1988, to make, and must not make, a note about the disclosure of the information until the non-disclosure notation is cancelled.

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

7.271 This clause would create a criminal offence for the disclosure of information in contravention of a non-disclosure notation attached to a notice or summons. The offence would extend to the disclosure of information about the notice or summons or any official matter connected with the notice or summons.

7.272 The offence would consist of the following physical elements:

•

a notice to produce (issued under clause 58) or a private hearing summons (issued under clause 63) includes a non-disclosure notation (made under clause 96);

•

a person discloses information about the notice or summons (including any official matter connected with the notice or summons);

•

the non-disclosure notation has not been cancelled.

7.273 The fault elements for the first two physical elements would be determined in accordance with section 5.6 of the Criminal Code:

•

for the circumstance element that the notice or summons includes a non-disclosure notation, the fault element of recklessness would apply (meaning proof of intention, knowledge or recklessness will satisfy this fault element);

•

for the conduct element that the person discloses information, intention would be the fault element; and

•

for the circumstance that the non-disclosure notation has not been cancelled, strict liability would apply meaning that no fault element would need to be proved.

7.274 Strict liability is justified in this circumstance because, if a person discloses information reckless to the fact that it is subject to a non-disclosure notation, it would be inappropriate to further consider the extent to which they knew the non-disclosure notation had not been cancelled.

7.275 Requiring the prosecution to establish fault in relation to this specific element would not be practical and would undermine the deterrent effect of the offence. The offence is intended to cover persons who disclose information while being aware of a substantial risk that the information is subject to a non-disclosure notation but who may be unaware whether the non-disclosure notation remains in force (because they are not the direct recipient of the notation). The defence of mistake of fact under section 9.2 of the Criminal Code would still be available in relation to this element.

7.276 The maximum penalty for the offence would be imprisonment for five years. This penalty is higher than the equivalent offence in the LEIC Act which provides a maximum penalty of two years. A maximum penalty of five years is appropriate to reflect the serious consequences that may arise from the relevant conduct, as breach of a non-disclosure notation may place a person's life or safety at risk, or significantly undermine a corruption investigation by alerting corrupt actors to the fact of the notice or hearing.

7.277 In addition to the standard defences available under the Criminal Code, the offence would not apply if the disclosure is made:

•

in the circumstances, if any, permitted by the terms of the non-disclosure notation;

•

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

•

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

•

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

•

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

•

if the person is a legal practitioner-for the purpose of obtaining the agreement of another person to the legal practitioner disclosing advice or a communication (see clause 115), or to give legal advice to, or make representations on behalf of, the person on whom the notice or summons was served; or

•

after the information has already been lawfully published.

7.278 A defendant would bear an evidential burden in relation to these matters (see subsection 13.3(3) of the Criminal Code). It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by subclause 98(3) because:

•

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

•

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

•

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

•

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

7.279 For the purposes of this offence, information about an official matter could be disclosed indirectly because a person disclosed other information from which another person could reasonably be expected to infer the information about the official matter.

7.280 This clause defines legal aid officer to mean a member, or member of staff, of an authority established by or under a law of a State or Territory for purposes that include providing legal assistance. The regulations would be able to prescribe additional legal aid officers in connection with legal financial assistance provided under the regulations (see paragraph 13.53).

Subdivision B-Use and disclosure of investigation material

7.281 This Subdivision is intended to ensure, among other things, that material obtained by a notice to produce or a summons, or in a hearing, does not prejudice the fair trial of a witness for a relevant offence. This outcome would be achieved in a number of ways. For example, the Commissioner would be able to issue a confidentiality direction (see clause 100) to ensure the confidentiality of investigation material (defined in clause 99) where its disclosure would, amongst other things, prejudice the witness's fair trial in circumstances where they have been charged with a relevant offence, or such a charge is imminent.

7.282 This Subdivision would place a range of limitations on the circumstances in which investigation and derivative material may be disclosed. Particularly strict limits would apply to the disclosure of material to a prosecutor of the witness in some circumstances.

7.283 This Subdivision does not set out all permitted uses and disclosures of investigation material. Independently of this Subdivision, authorised persons may lawfully use or disclose investigation material-see for example, clause 229. Rather, this Division sets additional limits on certain uses of such material to ensure the fairness of any trial of a witness, and provides explicit authorisation for use and disclosure, consistent with the principle of legality as applied by the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92, 86.

Limitations on disclosures of investigation material and derivative material to a prosecutor of the witness

7.284 The limitations that would apply to the disclosure of investigation material and derivative material to a prosecutor of the witness depend on the time at which the notice was issued, or the hearing occurred, and the time at which the material is disclosed, with the determining factor being whether or not the person had been charged with a relevant offence (or such a charge was imminent). These limitations are summarised in Table 5.

Table 5-Disclosure of investigation material and derivative material

Disclosures of investigation material and derivative material relating to confiscation proceedings

7.285 This Subdivision would also deal with investigation material and derivative material that relates to a confiscation proceeding or imminent confiscation proceeding. A court order would not be required for the use or disclosure of pre-confiscation application material or post-confiscation application material. However, the use or disclosure of investigation material would be subject to any direction given under clause 100.

7.286 Further, under clause 113, answers and information given, and documents and things produced under this Part:

•

would be admissible in confiscation proceedings if given or produced at a time when the proceeding had not commenced and was not imminent; and

•

would not otherwise be admissible in a confiscation proceeding.

7.287 The limitations in the NACC Bill reflect the limitations that currently apply to other investigative bodies, including the ACIC and ACLEI, taking into account amendments made by the Law Enforcement Legislation Amendment (Powers) Act 2015.

Clause 99-Meaning of investigation material

7.288 This clause would define the terms investigation material and witness.

Investigation material

7.289 The first three categories of the definition of investigation material are:

•

particular information given, or a document or thing produced, by a person as required by a notice to produce;

•

particular information or evidence given by a person at a hearing; and

•

a document or thing produced by a person at a hearing.

7.290 These categories are intended to support the regulation of the use and disclosure of evidence that may be self-incriminatory in nature. This includes evidence, information, documents or things given or produced by a person at a hearing, or in response to a notice.

7.291 The Commissioner would only be permitted to provide investigation material of this kind to a prosecutor of the witness in certain circumstances (see clause 105).

7.292 To the extent that material is obtained by a notice or in a hearing, but also obtained through some other means, such as the execution of a search warrant, the material would not be considered investigation material. Such evidence is not capable of being self-incriminatory in nature and, as such, would not require the same level of protection as evidence that is only available because it was obtained under a notice or in a hearing.

7.293 This clause is also intended to support the Commissioner's control over the use of information concerning a hearing in order to prevent prejudice to an investigation or an adverse effect to a person's reputation. Investigation material would therefore consist of a range of additional material, capable of being subject to a direction made by the Commissioner regarding the use or disclosure of the material under clause 100. Some forms of investigation material would not be self-incriminatory in nature and could therefore be disclosed to a prosecutor of the witness without the same limits (see clause 107).

7.294 Investigation material would also include:

•

information that may reveal the identity of a person who has given evidence at a hearing;

•

the identity of a person about whom allegations have been raised at a hearing or who is a person of interest in a corruption investigation;

•

the fact that a person has given or may give evidence at a hearing;

•

information, documents or things given to a witness by the NACC during the course of a hearing, to the extent that the witness only obtained the material because it was provided to them during a hearing; and

•

the fact that a private hearing has been or may be held.

7.295 This clause would also provide that investigation material includes copies, contents or descriptions of that material.

Witnesses

7.296 A witness, in relation to investigation material, would be a person referenced in the definition of investigation material, including a person called to give evidence during the course of a hearing, a person required to produce material by a notice, a person about whom allegations have been raised or a person of interest to an investigation.

7.297 However, the definition of witness would not apply to investigation material that consists of the fact that a private hearing has been or may be held. This is because there is no person referenced in this aspect of investigation material.

7.298 If material is derived from investigation material, the witness in relation to that derivative material, would be the same person as the witness in relation to the investigation material.

Clause 100-Directions about use or disclosure of investigation material

7.299 This clause would permit the Commissioner to issue a confidentiality direction to limit the use or disclosure of investigation material (as defined in clause 99).

7.300 A confidentiality direction may include terms that limit the use or disclosure of the material to specified persons or for specified purposes. The Commissioner would be required to issue a direction in certain circumstances under clause 77 and would otherwise have discretion to issue a direction as appropriate.

7.301 A confidentiality direction would have effect despite other clauses that permit material to be used or shared (see in particular, clauses 104, 105, 107, 108, 109, and 229).

7.302 The Commissioner would have a discretion to vary or revoke a confidentiality direction, but must do so in writing. However, the Commissioner must not vary or revoke the direction if the Commissioner is satisfied that such an action could prejudice a person's safety, could reasonably be expected to prejudice a fair trial, or might lead to the publication of information that is certified by the Attorney-General under clause 235 or information that is sensitive within the meaning of clause 227 of the NACC Bill.

7.303 This clause would ensure that the Commissioner turns their mind to these issues prior to varying or revoking a confidentiality direction. These considerations mirror the circumstances in which the Commissioner would be required by clause 77 to issue a direction under this clause.

7.304 A direction issued under this clause would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 (see item 23 of the table in subsection 6(1) of the Legislation (Exemptions and Other Matters) Regulation 2015).

Vulnerable persons and persons with disabilities

7.305 The Commissioner would have an additional obligation in relation to confidentiality directions that will apply to vulnerable persons and persons with disabilities.

7.306 The obligation would apply if the Commissioner is aware that a confidentiality direction will apply to a person who has a disability or other vulnerability that may affect their ability to comply with the notice or summons. In such circumstances, the Commissioner would be required to consider permitting the person to disclose information to obtain assistance necessary to comply with the direction, or to otherwise engage fairly with the Commission's processes.

7.307 Circumstances in which the Commissioner may decide not to permit any further disclosure may include, for example, where the Commission itself has made arrangements to provide the person with assistance to comply with a summons, such as by providing a sign language translator or closed captioning device during a hearing, removing the need for the Commissioner to permit further disclosures.

Clause 101-Offence-use or disclosure of investigation material

7.308 This clause would create an offence for the use or disclosure of investigation material in contravention of a confidentiality direction issued under clause 100.

7.309 The offence would consist of the following physical elements:

•

the person uses or discloses investigation material;

•

the use or disclosure contravenes a confidentiality direction;

•

the use or disclosure is not authorised by or under the NACC Bill.

7.310 The fault elements for the first two physical elements would be determined in accordance with section 5.6 of the Criminal Code:

•

for the conduct element that the person uses or discloses investigation material, intention would be the fault element; and

•

for the first circumstance element that use or disclosure is in contravention of a direction, recklessness would be the fault element (meaning proof of intention, knowledge or recklessness will satisfy this fault element); and

•

for the second circumstance element that use or disclosure of the material is not otherwise authorised under this Bill, strict liability would apply meaning that no fault element would need to be proved.

7.311 Strict liability is justified in this circumstance because, if a person is reckless as to whether their conduct contravenes a direction, it is inappropriate to further consider the extent (if any) to which they considered the possible authorisation of their conduct despite the existence of the direction. Requiring the prosecution to establish fault in relation to this specific element would not be practical and would undermine the offence's deterrent effect. The defence of mistake of fact under section 9.2 of the Criminal Code would still be available in relation to this element.

7.312 This offence would apply to disclosures regardless of whether the person who discloses the information is the first person to do so. This is appropriate, as further disclosures of information may compound the harm of an original disclosure-for example, where a further disclosure results in investigation material that has only been disclosed to a single person becoming known to a wider circle of people or to the public.

7.313 This offence would be punishable by a maximum penalty of two years' imprisonment, consistent with the equivalent offence in the LEIC Act. This penalty is appropriate to ensure the Commissioner is able to restrict the use of investigation material and avoid possible prejudice to a subsequent prosecution, or the disclosure of sensitive or certified information. This is important to ensure the NACC is able to effectively fulfil its statutory functions.

7.314 In addition to the standard defences available under the Criminal Code, the offence would not apply if the disclosure is made:

•

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

•

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

•

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

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

•

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

•

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

7.316 A defendant would bear an evidential burden in relation to these matters (see subsection 13.3(3) of the Criminal Code). It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by subclause 101(2A) or (2B) because:

•

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

•

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

•

requiring the prosecution to prove matters relating to the relationship between two private parties, including a between a legal practitioner and their client, would also create a risk to successful prosecution and affect the deterrent effect of the offence; and

•

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

7.317 This offence would override the immunity conferred by section 34B of the IGIS Act such that a person would not be able to rely on section 34B to justify breach of a confidentiality direction. This is necessary to ensure the effective operation of a confidentiality direction, which is qualified by clause 102, and which facilitates disclosure to the IGIS.

Clause 102-Disclosure to IGIS and Ombudsman officials

7.318 This clause would ensure that a confidentiality direction issued under clause 100 would not prevent:

•

a person from disclosing investigation material (as defined in clause 99) to an IGIS official (as defined in clause 7: see paragraph 1.81) or staff member of the Office of the Commonwealth Ombudsman; or

•

an IGIS official or staff member of the Office of the Commonwealth from using investigation material for the purpose of performing their functions.

7.319 This is intended to provide IGIS and Commonwealth Ombudsman officials with access to confidential information required to fulfil their statutory functions. Additionally, in relation to the Commonwealth Ombudsman, this is necessary because the Ombudsman would have jurisdiction to investigate complaints about the NACC.

7.320 Where access to investigation material by an IGIS official or staff member of the Office of the Commonwealth Ombudsman could prejudice an investigation by the Commissioner, this clause would confer a power on the Commissioner to issue a confidentiality direction to limit the disclosure of investigation material to, or use of such material by, the IGIS or Ombudsman. Such a direction could be issued in conjunction with a direction under clause 100. This clause may be used, for example, where a corruption investigation involves the conduct of a public official who is an IGIS official or staff member of the Office of the Commonwealth Ombudsman.

7.321 The Commissioner would be required to consult with the IGIS or the Commonwealth Ombudsman as soon as practicable after giving a direction under this clause.

7.322 A direction issued under this clause would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. This is because the direction would be covered by item 23 of subsection 6(1) of the Legislation (Exemptions and Other Matters) Regulation 2015.

Clause 103-Making investigation material available to courts

7.323 This clause would allow a court to access investigation material and provide it to a person being prosecuted for a relevant offence (or their lawyer) where the court considers it in the interests of justice to do so.

7.324 This clause would apply where:

•

a person has been charged with an offence before a federal, State or Territory court; and

•

the court considers it desirable, in the interests of justice, that the investigation material be made available to the person or a legal practitioner representing the person.

7.325 In these circumstances, the court may issue a certificate to the Commissioner and the Commissioner will be required to make the investigation material available to the court.

7.326 The court may examine the material before deciding whether to provide it to the person or their lawyer. The court would also be able to make the material available to a prosecutor of the person under this clause, provided the person is not the witness for the purposes of the material (see definition of witness in clause 99).

7.327 A defendant in a criminal proceeding would be able to make a request to the court to access investigation material if, for example, the material would be exculpatory evidence in their proceeding and was provided by another person to the Commissioner at a hearing.

7.328 This clause would apply despite any confidentiality direction issued under clause 100 because the court's decisions under this clause would constitute an authorisation of the disclosure of investigation material for the purposes of the offence in clause 101.

7.329 Clause 232 (Entrusted persons generally not compellable in proceedings) would not affect the powers of a court under this clause.

Clause 104-Obtaining derivative material

7.330 This clause would authorise particular entities who are in lawful possession of investigation material (as defined in clause 99), such as evidence given by a witness, to use and disclose that investigation material in order to obtain other material (derivative material).

7.331 Derivative material (as defined in clause 133) would be admissible in a prosecution of a witness. However there would be restrictions on the circumstances in which some types of derivative material could be provided to a prosecutor of the witness (see clause 105).

7.332 The entities authorised to use or disclose investigation material for the purpose of obtaining derivative material would be:

•

a staff member of the NACC (as defined in clause 266);

•

a person or body investigating whether the witness committed an offence against a law of the Commonwealth of a State or Territory;

•

a prosecutor (as defined in clause 105(4)) of the witness;

•

a prosecuting authority (as defined in clause 105(5));

•

a proceeds of crime authority (as defined in clause 138);

•

the Inspector (see clause 182);

•

a person assisting the Inspector (see clause 195); and

•

any other person or body lawfully in possession of the investigation material.

7.333 For example, a person or body investigating an offence would include the AFP. An authorised discloser would be able to provide investigation material to the AFP under clause 229 (authorisations to record or disclose information). So long as it would not be prevented by a confidentiality requirement imposed under clause 233 or by another legal barrier, the AFP could use that material for the purposes of its functions, including to obtain derivative material relevant to a criminal investigation.

7.334 Investigation material would be allowed to be used or disclosed regardless of whether the witness has been charged with a relevant offence (or whether such a charge is imminent) or whether confiscation proceedings have commenced against the witness (or whether such proceedings are imminent).

7.335 However, a post-charge disclosure (see clause 130) of investigation material to the prosecutor of the witness who provided the material could only be made under a court order under clause 106 (see clause 105).

7.336 The authorisation in this clause would also be subject to any confidentiality direction issued by the Commissioner under clause 100.

Clause 105-Disclosing investigation and derivative material to prosecutors of the witness

7.337 This clause would set out the circumstances in which investigation material and derivative material could be disclosed to a person prosecuting the witness for a relevant offence, consistent with Table 5.

7.338 This clause would apply to any disclosure of investigation material or derivative material from one person to a prosecutor, even if both persons are in the same agency. It would not affect the disclosure of investigation material or derivative material to a prosecutor engaged in the prosecution of a person other than the witness. It would not affect or limit the disclosure of material to other persons or bodies for purposes other than the prosecution of the witness.

7.339 The material would be able to be disclosed to a prosecutor before the witness has been charged with a relevant offence (that is, to a person making a decision whether or not to prosecute the witness, or a person assisting with that decision), when such a charge is imminent and after they have been charged with an offence. The conditions that the person or body would need to satisfy before making that disclosure would depend on the time of the disclosure (see summary at Table 5).

7.340 Disclosure under this clause would be subject to the terms of a confidentiality direction issued by the Commissioner under clause 100, except where the disclosure occurs under a court order made under clause 106.

Pre-charge disclosure of investigation material

7.341 This clause would permit the pre-charge disclosure of investigation material to a prosecutor. This would include a person who is making a decision about whether or not to prosecute a witness, and would allow for a prosecutor to give advice about the charges that may ultimately be laid against the witness.

7.342 Investigation material would still be inadmissible in most criminal proceedings against the witness under clause 113 (concerning self-incrimination).

7.343 If the witness is later charged with a relevant offence, it is expected that the prosecuting authority would take steps to ensure that the material is not available to the prosecutors of the witness who conduct that prosecution. This would minimise the risk that the witness's fair trial may be prejudiced by the prosecutors accessing relevant investigation material.

Post-charge disclosure of investigation material

7.344 Once the person has been charged with a relevant offence, or where such a charge is imminent, this clause would allow the post-charge disclosure of investigation material to a prosecutor only where the disclosure is authorised by a court order made under clause 106. That clause would allow a court to authorise the post-charge disclosure of investigation material to a prosecutor of the witness where disclosure is in the interests of justice.

7.345 The court's control over the circumstances in which investigation material can be provided to a prosecutor once the witness has been charged with a relevant offence (or such charges are imminent) is appropriate. A person cannot rely on the privilege against self-incrimination to refuse to answer questions or produce documents or things during a hearing or in compliance with a notice to produce. Giving the court control in this context is intended to ensure the witness receives a fair trial and that the prosecutor is given access to all relevant and appropriate material (including where the investigation material is exculpatory or where the witness wants the prosecutor to take matters uncovered in an investigation into account in making decisions about whether to prosecute or continue a prosecution).

Disclosure of derivative material generally

7.346 This clause would also set out the circumstances in which derivative material could be disclosed to a person prosecuting the witness for a relevant offence.

7.347 This clause would allow the disclosure (at any time) of derivative material derived from pre-charge investigation material (see clause 129) to a prosecutor for use in any prosecution of the witness. Derivative material would be admissible in the prosecution (see clause 113).

7.348 It is appropriate that material derived from a pre-charge hearing or notice to produce is able to be provided to a prosecutor without additional restrictions. The NACC Bill would override the privilege against self-incrimination in relation to material obtained in a hearing or by a notice to produce, but provide that investigation material over which the witness has claimed privilege would be inadmissible in most criminal proceedings against the witness.

7.349 While it is appropriate to ensure that there are strict limits on the disclosure of investigation material to a prosecutor of the witness, material derived from a pre-charge hearing or notice to produce stands in a different category. The intention is to authorise the derivative use of investigation material for a number of purposes, including for use in the investigation and prosecution of the witness and other people. This is an important part of enabling the NACC to fulfil its statutory role in detecting and preventing corrupt conduct, in investigating corruption issues that, in the opinion of the Commissioner, could involve corrupt conduct that is serious or systemic, and to enable the referral of persons for criminal prosecution.

7.350 In light of the subject matter of investigations and the gravity of the corruption activities involved, it is important that material derived from such investigations can be used to disrupt and prevent serious harm to the community and the proper administration of government, including by prosecuting persons who have been witnesses.

7.351 These powers are not intended to derogate from a court's overriding power to make any orders necessary to ensure that the witness receives a fair trial (see clause 106).

Post-charge disclosure of material derived from post-charge investigation material

7.352 In the case of a post-charge disclosure of derivative material derived from post-charge investigation material (see clause 130), a disclosure to a prosecutor of the witness would require a court order made under clause 106.

7.353 The order would only be made if the court is satisfied that the disclosure is in the interests of justice. This provision is intended to ensure that the court controls the circumstances in which material derived from a post-charge hearing or notice to produce can be provided to a prosecutor.

7.354 Giving the court control of the circumstances in which this type of derivative material may be provided to a prosecutor of the witness is intended to ensure the witness's fair trial and that the prosecutor is given access to all relevant and appropriate material. For example, where the derivative material is exculpatory or where the witness wants the prosecutor to take matters from the investigation into account in making decisions about whether to prosecute.

7.355 Derivative material would generally be admissible in proceedings against the witness where it is disclosed pursuant to a court order (see clause 113).

Definitions

7.356 This clause would define the terms prosecutor and prosecuting authority.

7.357 A prosecuting authority means an individual or authority, authorised by or under a law of the Commonwealth or of a State or Territory to prosecute an offence. The term is intended to include the CDPP and their State and Territory counterparts. It is also intended to extend to other bodies that may have prosecutorial functions, such as State or Territory police.

7.358 A prosecutor of a witness means an individual who is a prosecuting authority or is employed or engaged by a prosecuting authority who:

•

makes, or is involved in the making of, a decision whether to prosecute the witness for a relevant offence; or

•

is one of the individuals engaging in such a prosecution of the witness.

7.359 The definition is intended to cover only the persons who are directly involved in the prosecution of a witness for a relevant offence or the decision about whether to prosecute the witness. This would include:

•

the Director of Public Prosecutions;

•

the prosecutors who have carriage of the prosecution of the witness, and other prosecutors who assist that prosecutor in the prosecution of the witness or who assist in making the decision to prosecute the witness;

•

counsel engaged to assist in the prosecution of the witness; and

•

support staff who assist in the prosecution of the witness.

7.360 The definition is not intended to capture the following:

•

police or law enforcement officers involved in the investigation which led to the witness being charged;

•

police or law enforcement officers who are witnesses in a prosecution of the witness for a relevant offence;

•

persons involved in the prosecution of the witness for unrelated offences (whether that prosecution is by the same prosecuting authority or another prosecuting authority);

•

persons involved in the prosecution only of persons other than the witness (including for offences that are related to the witness's conduct).

7.361 Consistent with the definition of prosecutor, this clause would only apply where the subject matter of the investigation from which the material came is relevant to the subject matter of the offence.

Clause 106-Court's powers to order disclosure and to ensure a fair trial

7.362 This clause would clarify a court's powers with respect to investigation material and derivative material. This clause is intended to be protective and ensure that a person's fair trial is not prejudiced by a hearing or the use of investigation material or derivative material.

Court orders for disclosure of material

7.363 This clause would allow a person or body in possession of investigation material or derivative material to apply to a court for an order authorising the disclosure of that material to a prosecutor of the witness in accordance with clause 105. A court could also make such an order on its own initiative.

7.364 A court would be able to order disclosure of the material to the prosecutor if it were satisfied that the disclosure is in the interests of justice, and despite any direction under clause 100. This provision would allow the court flexibility in determining whether or not potentially prejudicial material should be disclosed to a prosecutor of the witness.

7.365 Whether or not a disclosure would be in the interests of justice would depend, for example, on the nature and content of the material sought to be disclosed, the circumstances of the case and the extent to which disclosure of the material could prejudice the witness's fair trial or safety.

7.366 This clause would allow a court to specify the prosecutors to whom the material may be disclosed either by class or position, or individually. The clause also allows the court to place appropriate limits on the prosecutors' use of the material to ensure that they use it consistently with the interests of justice.

7.367 This clause would set out the courts to which a person may apply for an order. If the witness is charged with an offence, the person or body should seek the order of the court hearing those charges. Where charges against a person are imminent but have not yet been laid, it is anticipated that a person or body would apply to the court that is likely to be hearing those charges for an order that material may be disclosed to the prosecution. A person would not be able to apply to the Federal Circuit and Family Court of Australia (Division 1), which deals with family law matters.

Orders necessary to ensure a fair trial

7.368 This clause would make it explicit that nothing in this Subdivision limits a court's power to make all orders necessary to ensure the fair trial of the witness, including to limit or remove any prejudice from the prosecution's lawful possession or use of investigation material or derivative material.

7.369 This is intended to make it clear that this Subdivision is not to be regarded as inhibiting a court's ability to manage its own procedures and to make orders to prevent prejudice to a trial that is inconsistent with a witness's fair trial.

7.370 This clause would clarify that a trial is not to be considered unfair merely because the Commissioner has conducted a hearing in relation to the witness. This would apply whether the hearing occurred pre-charge or post-charge (including where charges were imminent). This would apply to Commonwealth and Territory offences, and State offences with a federal aspect.

7.371 State offences have a federal aspect in the circumstances set out in section 3AA of the Crimes Act 1914. Among other circumstances, a State offence would have a federal aspect where the offence falls within Commonwealth legislative power because of:

•

the elements of the State offence;

•

the circumstances in which the offence was committed; or

•

because the AFP investigation of the offence is incidental to the investigation of a Commonwealth offence.

7.372 Clause 232 (Entrusted persons generally not compellable in proceedings) would not affect the powers of a court under this clause.

Clause 107-Certain material may always be disclosed to prosecutors of the witness

7.373 This clause would provide that certain types of investigation material and derivative material may always be provided to the prosecution without a court order under clause 106.

Disclosure of material that is not self-incriminatory

7.374 Only certain types of investigation material-concerning evidence provided by a witness, or documents or things produced by a witness-are capable of being self-incriminatory in nature. It is investigation material of this kind that is subject to the limitations outlined in clauses 104 and 105 due to the prejudice such material may have on a witness's fair trial.

7.375 Other types of investigation material do not raise this issue and are appropriate to be disclosed to a prosecutor where relevant. For example, this clause would allow a person or body to disclose to the prosecutor of a witness the fact that a person has or may be about to give evidence at a hearing, or any information that may reveal the identity of a witness or person of interest to a corruption investigation. This reflects the fact that the prosecution's knowledge that a person has given or will give evidence should not affect the fairness of the trial. Further, that knowledge is necessary to allow the prosecutor to understand the risks involved in the trial of the person, including the fact that there may be applications for stays or to exclude particular evidence.

7.376 This clause would not apply to one type of investigation material: the fact that a hearing has been, or may be, held in private. This material does not concern a particular witness. No specific authorisation is required for the use or disclosure of that material, including by or to a prosecutor.

Disclosure of material for prosecution offences in relation to notices and hearings

7.377 This clause would allow the disclosure of all categories of investigation material and derivative material to the prosecutor of a witness for the purposes of prosecuting an offence set out in Table 7.2.

Table 7.2-Offences for which disclosure of material is always permitted

7.378 This clause would only allow disclosure of all categories of investigation material where the offence concerns the hearing or notice itself. It would allow the disclosure of essential information about the witness's conduct, answers, non-compliance with a direction, or non-attendance at a hearing.

7.379 A person or body could disclose material as outlined in this clause at any time. It would not matter when the relevant hearing occurred or when the disclosure is to be made.

7.380 This clause would operate subject to a confidentiality direction issued by the Commissioner under clause 100.

Clause 108-Use of material by prosecutors

7.381 This clause would clarify how prosecutors may use investigation material and derivative material.

7.382 This clause would allow a prosecutor of a witness who is lawfully in possession of investigation material or derivative material to use that material for any lawful purpose. A prosecutor's use of investigation material would always be subject to the terms of a clause 100 direction and the admissibility of such material under clause 113 (self-incrimination).

7.383 This clause would clarify that investigation material and derivative material lawfully possessed by a prosecutor of the witness could be used in criminal proceedings against the witness. This provision would be intended only to allow the material to be tendered as evidence, subject to other clauses that may make the material inadmissible (for example, clause 113). Whether the material is ultimately admitted into evidence would be a matter for the court, to be decided according to the applicable laws of evidence.

7.384 Nothing in the Subdivision would, by implication, limit the circumstances in which investigation material or derivative material could be provided to an individual who is not prosecuting the witness. This would include investigators of the witness (for their involvement in a relevant offence), prosecutors of other persons (including for offences related to those with which a witness is charged), and persons prosecuting the witness for unrelated offences.

7.385 This clause would operate subject to other laws of the Commonwealth, or laws of a State or Territory, which may affect the way in which investigation material or derivative material can be used in trial.

Clause 109-Making material available to proceeds of crime authorities

7.386 This clause would authorise the disclosure of investigation material and derivative material to a proceeds of crime authority (as defined in clause 138) at any time, and would set out the circumstances in which the material is admissible in confiscation proceedings against the witness.

7.387 This clause would clarify that a person or body could disclose investigation material or derivative material to a proceeds of crime authority at any time, including after the authority had commenced confiscation proceedings. It would not matter when the relevant hearing occurred or material was produced, or when the disclosure was made.

7.388 This clause would clarify that the ability of a person or body to disclose investigation material or derivative material to a proceeds of crime authority would be subject to a direction issued by the Commissioner under clause 100.

7.389 This clause would provide that investigation material and derivative material lawfully possessed by a proceeds of crime authority could be used as evidence in confiscation proceedings against the witness. Whether it is ultimately admitted into evidence would be a matter for the court, to be decided according to the applicable laws of evidence and, in some cases, the use immunity in clause 113.

7.390 This clause, and the exceptions to the use immunity in clause 113, would not limit a court's power to make all orders necessary to ensure the administration of justice in a particular case. These clauses would not inhibit a court's ability to manage its own procedures and to make orders to prevent prejudice to the administration of justice, for example, by acting to prevent an abuse of process or contempt of court.

Division 5-Retention and return of documents and things

7.391 This Division would set out the circumstances in which the Commissioner may retain, or otherwise return, material that has been produced under the NACC Bill.

7.392 A document or thing may be produced under the NACC Bill in a number of ways, including in response to a direction to an agency head under clause 57, a notice to produce under clause 58, a witness summons under clause 63, or a direction during a hearing under clause 65.

7.393 In the absence of an order by a magistrate under clause 112, a reason to retain material for the purposes of a NACC Act process (see paragraph 1.104), or an exception set out in clause 111, the Commissioner would be required to return the material under clause 111.

Clause 110-Commissioner may retain documents and things

7.394 This clause would permit the Commissioner to retain possession of a document or thing produced under the NACC Bill for particular purposes.

7.395 The Commissioner would be authorised to retain the document or thing for as long as is necessary for the purposes of a relevant NACC Act process (defined in clause 7, see paragraph 1.104), or any action taken as a result of a NACC Act process. For example, a document obtained at a hearing may be used through the relevant corruption investigation, including as evidence to support findings made in an investigation report prepared under Part 8. Further, if a corruption investigation results in criminal proceedings being commenced against a person, the Commissioner could retain the document for use by the CDPP as evidence in the proceedings (if the document would otherwise be admissible). This is appropriate in light of the object of the NACC Bill to enable, after investigation of a corruption issue, the referral of persons for criminal prosecution.

7.396 A document or thing may also be used in a different NACC Act process. For example, a document obtained under a notice to produce issued for the purposes of a corruption investigation could be retained for use in a related corruption investigation or public inquiry. Further, if the Inspector had reason to access the document for the purposes of a NACC complaint investigation (see subclause 212(2)), the Commissioner could retain the document to facilitate the Inspector's access to the document for the purposes of that investigation.

7.397 The Commissioner would also be authorised to make copies of the document or thing, or take extracts from the document.

Providing access to retained documents and things

7.398 While the Commissioner retains the document or thing, the Commissioner would be required to allow a person who would otherwise have access to the document or thing:

•

to inspect or view the document or thing at all reasonable times; and

•

to copy the document or thing.

7.399 However, the Commissioner would not be required to provide this access if:

•

possession of the document or thing by the person could constitute an offence;

•

inspecting or copying the document or thing would compromise or damage the document or thing; or

•

the Commissioner is satisfied that allowing the person to inspect the document or view the thing would prejudice a NACC Act process, or any action arising from a NACC Act process.

Clause 111-When documents and things must be returned

7.400 This clause would require the Commissioner to take reasonable steps to return materials produced under the NACC Bill to the person who produced the materials, or to the owner of the materials if the person who produced the materials is not entitled to possess them.

7.401 This requirement would apply where the Commissioner is satisfied the materials are no longer required for the purposes of a NACC Act process (see clause 110) or any action taken as a result of a NACC Act process.

7.402 The requirement to return documents and things applies to the return of the original document or thing-it does not apply to a copy of a document or thing made by the Commissioner. This is appropriate to ensure that persons are not deprived of their property for any longer than is required, while ensuring that the Commissioner can continue to retain copies of documents and things where necessary for the performance by the NACC of its functions and for compliance with the its legal obligations, including under the Archives Act 1983.

Exceptions

7.403 The Commissioner would also be authorised not to return the materials if:

•

possession of the item by the person could constitute an offence;

•

the item could otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or

•

the item could be forfeited or is forfeitable to the Commonwealth or is the subject to a dispute as to ownership.

Clause 112-Magistrate may permit documents and things to be retained, forfeited etc

7.404 This clause would authorise the Commissioner to apply to a magistrate for a document or thing to be retained, forfeited, sold or destroyed.

7.405 Before making such an application, the Commissioner would be required to take reasonable steps to discover who has an interest in the document or thing and, if practicable to do so, notify each person the Commissioner believes to have an interest in the proposed application.

7.406 This clause would authorise a magistrate to order that:

•

a thing or document be retained for a specified period of time;

•

a thing or document be forfeited to the Commonwealth;

•

a thing be sold and the proceeds given to the owner of the thing; or

•

a thing or document be destroyed or otherwise disposed of.

7.407 A magistrate would be authorised to make such an order on application by the Commissioner if the magistrate is satisfied there are reasonable grounds to suspect that, if the document or thing is returned, it is likely to be used in the commission of a serious offence by the owner of the document or thing, or the person who produced the document or thing.

7.408 The ability for the Commissioner to apply for and obtain an order for the retention, forfeiture, sale or destruction of documents and things that are likely to be used in the commission of a serious offence reflects the similar power in section 3ZQZB of the Crimes Act 1914, in relation to documents and things seized or produced under search warrants and notices to produce under that Act. The power is appropriate, to ensure that the Commissioner is not required to return documents and things to a person that are likely to then be used in the commission of a serious offence.

7.409 A magistrate would be required to allow a person who has an interest in the document or thing to appear and be heard before determining the application.

Meaning of magistrate and serious offence

7.410 For the purposes of this clause, a magistrate means a magistrate who is remunerated by salary or otherwise, and includes a Judge, or acting Judge, of the Local Court of the Northern Territory.

7.411 For the purposes of this clause, a serious offence would mean:

•

an offence against a law of the Commonwealth punishable by imprisonment for 2 years or more;

•

an offence against either of the following provisions of the Charter of the United Nations Act 1945:

-

Part 4 of that Act,

-

Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions-ISIL (Da'esh) and Al Qaida) Regulations 2008;

•

an offence against a law of a State that:

-

has a federal aspect (see paragraph 7.371), and

-

is punishable by imprisonment for 2 years or more.

Division 6-Privileges and protections

7.412 This Division would set out various privileges and protections available, or not available, to a person compelled to provide material to the NACC during an investigation. This Division does not deal with parliamentary privilege, which is dealt with in clause 274.

7.413 This Division would complement other protections available under the NACC Bill, including for those who provide information to the Commission (under clause 24), and for journalists' informants (under clause 31).

Clause 113-Self-incrimination

7.414 This clause would abrogate the privilege against self-incrimination in the context of giving evidence at a hearing or producing material in response to a notice to produce.

7.415 The privilege provides that a person generally cannot be required to testify to the commission of an offence by that person. Nor can a person suspected of, but not charged with, an offence, generally be required to provide a statement about the commission of the offence.

7.416 The abrogation of the privilege would mean that a person would be unable to refuse to comply with a summons under clause 63, or a notice to produce under clause 58 on the grounds that doing so could incriminate them.

7.417 The abrogation would be accompanied by an important safeguard: a use immunity in relation to criminal proceedings, proceedings for the imposition or recovery of a penalty, and confiscation proceedings. This would mean that the relevant material would not be admissible as evidence in court against the person who provided the material.

7.418 The use immunity would not extend to material derived from investigation material. That is, derivative material would be admissible as evidence against the person from which the investigation material was obtained, in criminal proceedings, proceedings for the imposition or recovery of a penalty, and confiscation proceedings. This is consistent with the LEIC Act, which permits the derivative use of hearing material for a range of purposes-including use in the investigation and prosecution of the witness and other persons.

7.419 This is appropriate to ensure the Commissioner can fulfil their statutory functions of detecting, preventing and investigating corrupt conduct that could be serious or systemic. Such conduct causes significant harm, including:

•

direct harm to individual victims of serious or systemic corrupt conduct;

•

broader, direct harms across the Australian community and economy-for example, through the corrupt diversion of public resources; and

•

harm to public confidence in government and public administration.

7.420 It is important that material derived from investigation material can be used to investigate, disrupt and-where appropriate-prosecute persons involved in serious or systemic corrupt conduct, including by prosecuting persons who have been witnesses before the Commissioner. For example, material provided by a witness in a hearing may lead the Commissioner to pursue new lines of investigation, which ultimately culminate in a brief of evidence against the witness. It is critical that such evidence can be used to disrupt corrupt conduct, including by prosecuting persons who have been witnesses.

7.421 Further, it would open court proceedings up to inappropriate delay, and be contrary to the interests of justice, if evidence referred by the NACC could not be admitted until the prosecution had established its provenance. Previous experience under the former National Crime Authority Act 1984 demonstrated that providing a derivative use immunity for examination material was inappropriate as it undermined the capacity of the National Crime Authority to assist in the investigation of serious criminal activities. Prior to its removal under the National Crime Authority Legislation Amendment Act 2001, the derivative use immunity in the National Crime Authority Act required the prosecution to prove the provenance of each piece of evidence in the trial of a person that the National Crime Authority had examined before it could be admitted. This position was unworkable and did not advance the interests of justice as pre-trial arguments could be used to inappropriately delay the resolution of charges against the accused.

7.422 Importantly, the NACC Bill would preserve the inherent power of the courts to make orders that are necessary to ensure a fair trial of the witness (see clause 106). This could include orders to limit or remove any prejudice from the prosecution's lawful possession or use of investigation material or derivative material.

7.423 The use immunity would not be applicable to documents that form part of a record of an existing or past business. This is appropriate, as business records are not records of a natural person-they are records of a company or other entity. Compulsory access to business records, and the ability to rely on those records as part of an investigation and any subsequent prosecution or proceeding, does not place the fair trial of a natural person at risk and serves public interests in:

•

ensuring that corporate and business structures are not used by officers, employees or agents of the business to engage in serious or systemic corrupt conduct; and

•

protecting the interests of shareholders, partners and creditors (as the case may be) in a business involved in allegations of serious or systemic corrupt conduct.

7.424 The use immunity would also not be available in proceedings set out in Table 7.3.

Table 7.3-Offences for which use immunity not available

7.425 It is appropriate that the use immunity not extend to pre-confiscation application material because a confiscation proceeding is a civil proceeding. Despite this, it is appropriate the use immunity applies to post-confiscation application material so that a hearing or notice could not be used to undermine civil procedure.

7.426 The other exceptions to the use immunity are appropriate because the subject matter of those exceptions would necessarily depend on evidence relating to the witness's compliance (or lack of compliance) with a notice or summons or interference with the performance of the NACC's functions.

7.427 The exceptions to the use immunity would not affect the admissibility of material for any other purpose.

Clause 114-Public interest grounds

7.428 This clause would require a person to give an answer or information, or produce a document or thing, in compliance with a direction or a notice to produce, or at a hearing, despite certain other laws and privileges that might otherwise excuse the person from the obligation to comply.

Legal professional privilege

7.429 This clause would abrogate legal professional privilege in the context of providing investigation material in response to a direction to produce, a notice to produce or at a hearing. The privilege would be abrogated for any person, including a Commonwealth agency or a company, except where the privilege applies to advice or a communication relating to a person's compliance with a notice to produce or attendance (or anticipated attendance) at a hearing.

7.430 It is appropriate to abrogate legal professional privilege in this way due to the significant impact that corrupt conduct can have in eroding the community's trust in public administration. Privileged information can provide valuable insight into conduct, and be important evidence in a corruption investigation. This clause would prevent corrupt actors from relying on legal professional privilege as a shield from investigation by the Commissioner.

7.431 Further, legal advice will often be an integral component of a decision-making process that gives rise to a corruption issue that, in the Commissioner's opinion, could involve corrupt conduct that is serious or systemic. For example, access to legal advice provided to a decision-maker that indicates a particular decision would be inconsistent with the proper exercise of a power would be important to the Commissioner distinguishing a decision made by mistake from an improper decision that constitutes corrupt conduct.

Legal professional privilege relating to journalists

7.432 Legal professional privilege would not be abrogated in relation to advice or a communication given for the purposes of, or in the course of, a person's work as a journalist. This clause is intended to uphold the public interest associated with a free press by:

•

recognising the importance of protecting the independence of journalists; and

•

reflecting the probability that legal advice relating to the work of a journalist is likely to deal with matters including the identity and conduct of confidential sources.

7.433 If privileged material is required to be provided at a hearing, the hearing would be required to be held in private (see clause 74).

7.434 Although a person may not be able to rely on legal professional privilege to withhold material at a hearing or in response to a direction to produce or a notice to produce, this clause would not affect a claim of legal professional privilege over that material in any other context. That is, a person providing privileged material to the Commissioner would not be taken to have waived the privilege.

Requirement to give information subject to legal professional privilege would not otherwise affect the privilege

7.435 This clause would provide that the requirement for a person to answer a question, give information, or produce a document or thing in a manner that abrogates legal professional privilege would not otherwise affect any claim of legal professional privilege that the person, or any other person, may make. This would ensure that, while the Commissioner would be able to obtain and rely on legally privileged material for the purposes of a corruption investigation, including in a private hearing (see clause 74), the material would remain privileged. As such, a person could claim legal professional privilege to prevent:

•

the admission of the material in a subsequent prosecution or other proceeding;

•

the publication of the material, including in an investigation report; or

•

the disclosure of the material, for a purpose unrelated to the corruption investigation.

Secrecy provisions

7.436 This clause would also prevent an individual from relying on a secrecy provision (other than an exempt secrecy provision: see paragraph 1.72) to withhold material at a hearing or in response to a direction to produce or a notice to produce.

7.437 The Commissioner's information-gathering powers would not be limited by the provisions of any other law unless that law is an exempt secrecy provision, which would include a law that expressly excludes the Commissioner's power to obtain information or expressly excludes the operation of the Act to be enacted by the NACC Bill. This requirement is intended to ensure that Parliament is expressly alerted to any restrictions that might be sought in the future that would limit the Commissioner's capacity to carry out their statutory functions including the investigation of corruption issues that, in the Commissioner's opinion, could involve corrupt conduct that is serious or systemic. That is, it is not intended that laws that contain merely general or blanket privacy provisions, restricting access to information other than to specified persons, should apply to the Commissioner. This approach reflects the approach to the relationship between the Auditor-General Act 1997 and other laws.

7.438 This clause would have the effect that a person would not commit an offence or be liable to any penalty under any other enactment if an individual is complying with a requirement in a notice to produce or at a hearing.

7.439 This approach is appropriate, to ensure that the Commissioner may obtain all information relevant to an investigation into a corruption issue that could involve corrupt conduct that is serious or systemic.

Public interest immunity

7.440 This clause would provide that a claim that complying with an obligation to provide material in a hearing or in response to a direction to produce or a notice to produce would be contrary to the public interest would not be a legitimate reason to refuse to comply. That is, a person could not refuse to comply with an obligation by claiming public interest immunity.

7.441 Public interest immunity is a principle at common law that provides that information may be protected from disclosure if the public interest in disclosing a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document.

7.442 Providing that a person could not refuse to comply with an obligation on public interest grounds would reflect the public interest in ensuring that the Commissioner may obtain all relevant information as part of an investigation into a corruption issue that could involve corrupt conduct that is serious or systemic.

7.443 Clause 236 would allow the Attorney-General to certify that disclosure to the Commissioner (or the Inspector) of information and documents, which are subject to a binding international agreement between Australia and another country, would be contrary to the public interest. Only where a certificate is in force under that clause could a person refuse to provide material to the Commissioner on public interest grounds.

Clause 115-Material sought from legal practitioners

7.444 Clause 113 abrogates claims of legal professional privilege in most circumstances, but preserves those claims in certain circumstances. For example, a legal practitioner within a media organisation may be entitled to claim legal professional privilege in respect to advice they have given for the purpose of a journalist's work. Further, a practitioner could claim the privilege in relation to their representation of a person for the purposes of that person's appearance before the Commissioner at a hearing or compliance with a notice to produce or direction to produce.

7.445 Where a legal practitioner is asked to provide material and (despite clause 113) is able to claim legal professional privilege, the legal practitioner would be able withhold the privileged material. In these circumstances, this clause would permit the Commissioner to instead require the practitioner to provide the name and address of their client. Identifying the client would enable the Commissioner to deal with the client directly, either by requesting their voluntary waiver of the privilege for the purposes of the investigation, or compelling the client to provide the material under a notice to produce or summons, or to request the client agree to the disclosure of the material.

Obtaining material from a client

7.446 Whether the client would be required to provide that material would depend on whether the client (as opposed to the practitioner) could rely on legal professional privilege or another protection. For example, if a practitioner's client had sought legal advice about their attendance at a hearing and, for the purposes of obtaining that advice, had provided incriminating records of their conduct to the practitioner, it is more appropriate that the Commissioner obtain those documents from the client rather than the practitioner. The Commissioner would be free to do so because, in the hands of the client, those documents would generally not be subject to an enduring claim of legal professional privilege. However, the client could not be required to provide a copy of any advice they received from their practitioner to assist them to prepare for their hearing because the privilege would be appropriately preserved in relation to that advice to facilitate the fair conduct of the hearing.

Interaction with journalist protection

7.447 None of a journalist, their employer or a legal practitioner representing either the journalist or the employer could be compelled to reveal a journalist's informant. The legal practitioner would be excused from revealing that information under this clause, assuming legal professional privilege applied to any identifying information in their possession. The Commissioner could ask the legal practitioner to identify the journalist or employer who owned the privilege. However, even with that information, the Commissioner could not compel either the journalist or the employer to reveal that identifying information because of the protection provided for in clause 43.

Client consent to disclosure of privileged material

7.448 A client would be able to consent to their legal practitioner disclosing the relevant material to the Commissioner. Such consent, and the subsequent disclosure to the Commissioner, would not otherwise affect a claim of legal professional privilege that anyone may make in relation to that material. That is, a person consenting to the disclosure of privileged material to the Commissioner would not be taken to have waived the privilege.

Clause 116-Other protections

7.449 This clause would outline protections available to a person providing information, or producing a document or thing, in response to a direction to produce or a notice to produce, or as a witness at a hearing.

7.450 The person would have the same protections as a witness in proceedings in the High Court. This would extend protections afforded by the relevant criminal offences under Part III of the Crimes Act 1914 to witnesses, including intimidating or deceiving witnesses.

7.451 The Commissioner would be authorised to make arrangements to protect the safety of a person, or to protect the person from intimidation or harassment. The Commissioner would have a discretion to make any such arrangements as are necessary. This clause would not require that there be an imminent risk of prejudice to the person's safety, or evidence that the person has been intimidated or harassed-the Commissioner would be authorised to proactively make such arrangements as are necessary to prevent or protect against such eventualities. The nature of these arrangements will depend on the particular risks the Commissioner identifies in relation to the notice to produce or hearing. For example, the Commissioner could make arrangements with the Minister, the AFP Commissioner, or the head of a police force of a State or Territory.

7.452 These powers would be distinct from the protection that may be available under the Witness Protection Act 1994 and this Bill would not affect any additional arrangements that could be made under that Act.

7.453 This clause would operate in conjunction with other protections in the NACC Bill, including clause 113, which would provide that a person does not commit an offence, and is not liable to any penalty, under the provisions of any other enactment (other than an exempt secrecy provision) because the person gives information, or produces a document or thing in response to a notice to produce. Further, no action, suit or proceeding in respect of loss, damage or injury would lie in relation to the evidence given by the person (see clause 24).

7.454 These protections are qualified by, for example, the offences in sections 137.1 and 137.2 of the Criminal Code (about false or misleading information or documents) as they apply in relation to obligations under this Part.

Division 7-Search powers

7.455 This Division would provide three search-related powers to the NACC for the purposes of its corruption investigations:

•

the power to enter most places occupied by Commonwealth agencies without a warrant, exercise inspection powers, and, in limited circumstances, seize things;

•

the ability to conduct a search of a premises or person under a search warrant; and

•

the power to stop and search conveyances for things relevant to an indictable offence or to a corruption issue the Commissioner is investigating, without a warrant, in limited circumstances.

7.456 Search powers could be exercised by authorised officers of the NACC, which would include the Commissioner, any Deputy Commissioners and persons appointed under clause 267. Clause 267 seeks to ensure that authorised officers possess skills and experience that reflect the significant and coercive nature of their powers under the NACC Bill. It would allow the Commissioner to appoint a person to be an authorised officer if the person is:

•

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

•

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

•

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

•

a member of the AFP.

7.457 This Division would also provide for use and sharing of documents, things, copies and photographs seized or made under the Division, and the return of things seized under the Division.

Subdivision A-Search powers

7.458 This Subdivision would allow authorised officers of the NACC to:

•

enter most places occupied by Commonwealth agencies without a warrant, exercise inspection powers, and, in limited circumstances, seize things;

•

conduct a search of a premises or person under a search warrant; and

•

stop and search conveyances without a warrant, in limited circumstances, for things relevant to an indictable offence or a corruption issue the Commissioner is investigating.

7.459 The second and third of these powers would be provided by applying relevant provisions of the Crimes Act 1914. Subdivision B would set out modifications to the application of those provisions to ensure they operate appropriately and effectively for corruption investigations.

7.460 This Subdivision would also make provision for use and sharing of documents, things, copies and photographs seized or made under Division 7, and the return of things seized under that Division.

Clause 117-Entering certain places without a search warrant

7.461 This clause would permit the Commissioner or another authorised officer of the NACC to enter and search a place occupied by a Commonwealth agency (with some exceptions) without a search warrant for the purposes of a corruption investigation.

7.462 As a Commonwealth entity itself, the NACC should not require external approval to enter and search the premises of Commonwealth agencies for the purposes of a corruption investigation. To search any other premises, for example the home of a public official, a warrant would be required under the Crimes Act 1914, including as applied by clause 119.

7.463 The search powers available under this clause would be more limited than those available under a search warrant, and consistent with those currently available to ACLEI in relation to law enforcement agencies.

7.464 The Commissioner or authorised officer would be authorised to:

•

enter any place occupied by a Commonwealth agency (as defined in clause 11) at any reasonable time of the day;

•

carry on the corruption investigation at that place;

•

inspect any documents relevant to the investigation that are kept at that place;

•

make copies of, or take extracts from, any documents so inspected;

•

for the purpose of making a copy of, or taking an extract from, a document, remove the document from that place; and

•

seize documents or things found at that place if the Commissioner or other authorised officer believes on reasonable grounds that:

-

the document or thing is relevant to an indictable offence, and

-

seizure of the document or thing is necessary to prevent its concealment, loss or destruction or its use in committing an indictable offence.

7.465 A place occupied by a Commonwealth agency would include any premises at which the agency exercises a right of occupancy (such as where the agency owns, leases or is otherwise entitled to and does occupy the premises). A Commonwealth agency would also occupy any premises that it controls. An agency will necessarily exercise rights or occupancy and control through its staff members, including employees of contracted service providers where appropriate. Where premises are occupied by a contracted service provider in connection with a Commonwealth contract, it may be necessary to determine whether the provider occupies the premises in their own right or on behalf of a Commonwealth agency.

Exceptions

7.466 A search could not be conducted without a warrant at:

•

premises occupied by the High Court or a court created by the Parliament (which would include the registry of any such court);

•

any place in the Parliamentary precincts (within the meaning of the Parliamentary Precincts Act 1988)-this would include parliamentary offices and parliamentary departments located in Parliament House;

•

premises made available to a parliamentarian under the Parliamentary Business Resources Act 2017-this would include Commonwealth Parliamentary Offices located in most capital cities for use by parliamentarians and parliamentarians' electorate offices; or

•

any premises occupied by the ABC or SBS.

7.467 The first of these exceptions reflects the separation of powers between the Executive Government and the Judiciary, and ensures that a search of a court registry may only be conducted under a warrant. The second and third ensure that where a claim of parliamentary privilege is likely to arise, a search may only be conducted under a warrant. The fourth ensures appropriate protection of press freedoms for the public broadcasters by allowing a search of ABC or SBS premises only under a warrant, where an additional threshold must be met for the issue of a warrant to search premises of a journalist's employer. Other media organisations would not be Commonwealth agencies within the scope of this clause.

7.468 In addition, powers under this clause would not be available at:

•

a place that is a prohibited area used or occupied for the purposes of a special defence undertaking for the purposes of the Defence (Special Undertakings) Act 1952 under section 7 of that Act; or

•

an area of land or water, or an area of land and water, that is declared under section 14 of that Act to be a restricted area for the purposes of that Act,

unless the Minister administering that Act has approved the person entering the place or area. If the Minister imposes any conditions on the approval, the Commissioner or authorised officer would be required to comply with those conditions in order to enter and search the premises.

7.469 Further, if the Attorney-General is satisfied that carrying on an investigation of a corruption issue at a place might prejudice the security or defence of the Commonwealth, the Attorney-General would be able to, by written notice to the Commissioner, declare a place to be prohibited for the purposes of this clause.

7.470 Where a declaration by the Attorney-General is in force, the Commissioner or an authorised officer would only be able to enter and search such a place if a Minister specified in the declaration has approved the person entering the place or area (and in compliance with any conditions that Minister imposes). The Attorney-General's declaration would not be a legislative instrument because it would apply the relevant provisions of this clause to a particular place that is important to the security or defence of the Commonwealth.

7.471 The limitations under this clause on the ability for the Commissioner or authorised officers to enter premises covered by the Defence (Special Undertakings) Act 1952 or a declaration given by the Attorney-General would be appropriate, as they would have the limited effect of enabling the Minister for Defence and Attorney-General, respectively, to mitigate any risks to national security that may arise from the Commissioner and authorised officers accessing highly sensitive facilities without a warrant. The limitations under this clause would not apply to the Commissioner or an authorised officer's ability to enter such premises under warrant.

Clause 118-Receipts of things seized without warrant

7.472 This clause would provide that, if a document or thing is seized or removed from a place under clause 117, the Commissioner (or an authorised or assisting officer) would be required to provide a receipt to the relevant Commonwealth agency. If two or more documents or things are seized or moved, they may be covered by a single receipt.

Clause 119-Search warrants, and stopping and searching conveyances

7.473 This clause would provide that, for the purposes of a corruption investigation, an authorised officer of the NACC who is not a constable for the purposes of the Crimes Act 1914 would have the same powers and duties under Divisions 2 (search warrants), 3 (stopping and searching conveyances) and 5 (general) of Part IAA of the Crimes Act 1914 as a constable has under those Divisions. Those provisions of the Crimes Act 1914 would have effect with the modifications set out in Subdivision B.

Search warrants

7.474 This clause, in combination with Subdivision B, would ensure that authorised officers of the NACC have access to comprehensive and up to date search powers for the purposes of investigating a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

7.475 ACLEI's search powers are currently provided for in the LEIC Act. When originally passed, these powers were consistent with those provided for policing agencies under the Crimes Act 1914. However, the LEIC Act powers have fallen out of date in intervening years and have not been updated to mirror amendments made to the Crimes Act 1914 in response to advances in technology. To avoid similar issues arising for the NACC in future, the NACC Bill would allow the NACC to instead be able to use the Crimes Act 1914 search warrant framework as in force from time to time. The Crimes Act 1914 would apply with modifications to ensure that warrants are available for non-criminal corruption investigations, subject to an additional threshold concerning loss of evidence being met (as provided for by the modifications in Subdivision B outlined below).

7.476 Authorised officers of the NACC would be able to apply for and obtain search warrants in relation to premises and persons under the Crimes Act 1914 with modified thresholds. Authorised officers would then have the same powers available to constables in executing those warrants, including, subject to relevant thresholds:

•

conducting a search of the premises or person specified in the warrant (paragraphs 3F(1)(a) to (c) and (2)(a) of the Crimes Act 1914);

•

seizing material specified in the warrant (paragraphs 3F(1)(c) and (2)(b));

•

seizing certain other evidential material to prevent its concealment, loss or destruction, or use in the commission of an offence (paragraphs 3E(6)(a) and (7)(a), and 3F(1)(d) and (2)(c));

•

conducting an ordinary or frisk search of a person at or near warrant premises if the relevant threshold is met and the warrant so allows (paragraph 3F(1)(f));

•

using a computer or data storage device found during a search, a telecommunications facility operated or provided by the Commonwealth or a carrier, any other electronic equipment, or a data storage device to access data held in a computer or data storage device found during a search (subsections 3F(2A) and 3K(5));

•

using a computer found during a search, a telecommunications facility operated or provided by the Commonwealth or a carrier or any other electronic equipment to access account-based data related to certain persons, such as the owner or user of the computer (subsections 3F(2B) and 3K(6));

•

using equipment brought to or found at warrant premises to examine or process things at the premises (subsections 3K(1) and (4));

•

moving things to another place for examination or processing for a limited period (subsections 3K(2) to (3D));

•

operating electronic equipment at warrant premises, moved from warrant premises or the search of a person, or seized, to access data (sections 3L, 3LAA and 3ZQV); and

•

obtaining an order from a magistrate requiring a specified person to provide information or assistance reasonable and necessary to allow an authorised officer to access data held in or accessible from certain computers and data storage devices (such as providing a password or access code) (section 3LA).

7.477 Similarly, searches conducted by authorised officers of the NACC would be subject to the same limits and safeguards as those conducted by constables, including:

•

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

•

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

•

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

•

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

•

executing officers and authorised officers assisting may only use such force against persons and things as is necessary and reasonable in the circumstances (section 3G);

•

persons assisting who are not constables or authorised officers may only use such force against things as is necessary and reasonable in the circumstances, and may not use force against persons (section 3G);

•

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

•

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

•

if a thing is moved for examination or processing, the relevant person must generally be informed of the address and time at which the examination or processing will take place and allowed to be present, if practicable (subsections 3K(3) and (3AA));

•

things may only be moved for examination or processing for a limited period (subsections 3K(3B), (3C) and (3D));

•

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

•

the Commonwealth must pay compensation for damage to equipment or related data or programs if the damage resulted from insufficient care being exercised when the equipment was operated under sections 3K, 3L, 3LAA or 3ZQV (see sections 3M and 3ZQW);

•

copies of documents, films, computer files, contents of storage devices or other things that can readily be copied that are seized from warrant premises must generally be provided to the occupier or their representative on request (section 3N);

•

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

•

the executing officer or a constable or authorised officer assisting must provide receipts for things seized under a warrant or moved for examination or processing under section 3K (section 3Q);

•

parliamentary privilege is preserved (section 3SA) (see also clause 274); and

•

offences apply for making a false or misleading statement in a warrant application and certain actions relating to warrants obtained by telephone or other electronic means (sections 3ZT and 3ZU).

Stopping and searching conveyances

7.478 This clause, in combination with Subdivision B, would ensure that authorised officers of the NACC are able to stop and search conveyances (aircraft, vehicles or vessels) for things relevant to an indictable offence or a corruption issue the Commissioner is investigating, without a warrant, in limited circumstances. Further detail is set out below in the description of the modifications to Crimes Act 1914 search powers in Subdivision B.

Clause 120-Use and return of documents and things

7.479 This clause would apply use, sharing and return provisions in Division 4C of Part IAA of the Crimes Act 1914 to documents, things, copies and photographs seized or made under Division 7 of Part 7 of the NACC Bill. It would mean that, subject to the modifications outlined below:

•

Subdivision A of Division 4C of Part IAA of the Crimes Act 1914 (which deals with purposes for which things may be used and shared, and regulates the operation of seized electronic equipment) would apply to:

-

a document, thing or copy seized or made under clause 117 (entering certain places without a warrant), and

-

a document, thing, copy or photograph seized or made under Divisions 2, 3 and 5 of Part IAA of the Crimes Act 1914 as applied by clause 119 (search warrants, and stopping and searching conveyances);

•

Subdivision B of Division 4C of Part IAA of the Crimes Act 1914 (which deals with return of things) would apply to things seized under clause 117 (entering certain places without a warrant) as if they were seized under Division 2 of Part IAA of the Crimes Act 1914 (meaning sections 3ZQX (return) and 3ZQZB (magistrate orders) would apply); and

•

Subdivision B of Division 4C of Part IAA of the Crimes Act 1914 would apply to things seized under Division 2 and 3 of the that Act as applied by clause 119, meaning:

-

sections 3ZQX (return) and 3ZQZB (magistrate orders) would apply to things seized under Division 2 (search warrants) as applied by clause 119, and

-

sections 3ZQY (return) and 3ZQZB (magistrate orders) would apply to things seized under Division 3 (stopping and searching conveyances) as applied by clause 119.

Modification of the Crimes Act 1914

7.480 Subclause 120(4) would provide for two modifications to the application of Crimes Act 1914 provisions by clause 120.

7.481 Division 4C of Part IAA of the Crimes Act 1914 would have effect for this clause as if a reference to the Commissioner (which in the Crimes Act 1914 means the AFP Commissioner) were a reference to the National Anti-Corruption Commissioner. This would ensure that:

•

obligations concerning the return of things seized by authorised officers of the NACC would fall to the National Anti-Corruption Commissioner, not the AFP Commissioner; and

•

the National Anti-Corruption Commissioner would be able to apply to a magistrate for an order permitting retention or forfeiture of a seized thing in certain circumstances under section 3ZQZB of the Crimes Act 1914 as applied by clause 120.

7.482 Section 3ZQU sets out the purposes for which things seized under Part IAA of the Crimes Act 1914 may be used and shared. Subsection 3ZQU(5) allows officers to make those things available to State, Territory and foreign agencies, including State or Territory law enforcement agencies, for certain purposes. This clause would modify that subsection as it applies for the purposes of the NACC Bill to also allow for things to be made available to State or Territory anti-corruption agencies.

Subdivision B-Modifications of Crimes Act 1914

search powers

7.483 This Subdivision would set out modifications of Divisions 2, 3 and 5 of Part IAA of the Crimes Act 1914 for the purposes of their application to corruption investigations under clause 119 (search warrants, and stopping and searching conveyances) to ensure that those Divisions operate appropriately and effectively for corruption investigations. These modifications would apply only for the purposes of clause 119; the Crimes Act 1914 itself will not be amended by these provisions.

Clause 121-Application of Subdivision

7.484 This clause would provide that Subdivision B applies for the purposes of clause 119 (search warrants, and stopping and searching conveyances).

Clause 122-Subsection 3C(1)-definition of evidential material

7.485 This clause would provide that the Crimes Act 1914 has effect as if the definition of evidential material in subsection 3C(1) of that Act was substituted so that the term means the following, including in electronic form:

•

a thing relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic; and

•

a thing relevant to an indictable offence or a thing relevant to a summary offence.

7.486 This definition is relevant to the threshold for the issue of search warrants for the purposes of a corruption investigation (see further clause 124 below) and the material able to be seized under those warrants (see further clause 126 below).

7.487 The first aspect of the substituted definition would allow authorised officers of the NACC to obtain warrants to search for material that is not relevant to an offence but is relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic. As outlined below, an additional threshold would apply where warrants are not for the purpose of investigating an offence. It is appropriate that the NACC be able to apply for a search warrant in relation to non-criminal corrupt conduct provided that, in the opinion of the Commissioner, the corruption issue could involve corrupt conduct that is serious or systemic, and an additional threshold (see for example paragraph 7.499) is met.

7.488 The second aspect of the substituted definition, relating to things relevant to indictable offences and summary offences, is consistent with the existing Crimes Act 1914 definition. It is retained in the substituted definition, meaning the NACC can obtain warrants to search for material that is relevant to such an offence as ACLEI can currently.

Clause 123-Divisions 2, 3 and 5 of Part IAA-references to constable and Commissioner

7.489 This clause would provide that references in Division 2, 3 or 5 of Part IAA of the Crimes Act 1914, and any related definitions in that Act, to a constable have effect as if they also included a reference to an authorised officer. The one exception is subsection 3ZW(1) of the Crimes Act 1914 where references to a constable should be read as if they were only a reference to an authorised officer.

7.490 Divisions 2, 3 and 5 of Part IAA of the Crimes Act 1914 confer powers and duties on constables for the purpose of applying for and executing search warrants and stopping and searching conveyances in certain circumstances. They also include general provisions such as safeguards that apply across Part IAA.

7.491 This clause (in combination with clause 119) would ensure that, for the purposes of corruption investigations of corruption issues that could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic, authorised officers of the NACC (as defined in clause 7) would have access to the powers, and be subject to the duties, in those Divisions. It would mean, for example, that an authorised officer may apply for and execute a search warrant, and that, in doing so, would be subject to safeguards under Division 5 such as the offence for making false statements in warrant applications. The inclusion of related definitions in other parts of the Crimes Act 1914 would mean, for example, that references to a constable in the definitions of 'constable assisting' and 'executing officer' in section 3C of the Crimes Act 1914 are taken to include a reference to an authorised officer.

7.492 This clause would also provide that Divisions 2, 3 and 5 of Part IAA of the Crimes Act 1914 (as applied by clause 119) have effect as if a reference to the Commissioner (which in the Crimes Act 1914 means the AFP Commissioner) was a reference to the National Anti-Corruption Commissioner. This would ensure that obligations imposed on the AFP Commissioner to destroy copied data once no longer required (under subsections 3L(1B) and 3LAA(3)) would instead fall to the National Anti-Corruption Commissioner where they relate to the exercise of powers by authorised officers.

7.493 Finally, this clause would ensure that the National Anti-Corruption Commissioner may only delegate their Part IAA powers, functions and duties under subsection 3ZW(1) as applied by clause 119 to an authorised officer, not a constable.

Clause 124-Subsections 3E(1) and (2)-when search warrants can be issued

7.494 Subsections 3E(1) and (2) of the Crimes Act 1914 set out the thresholds for the issue of search warrants in relation to premises and persons respectively. This clause would substitute those provisions to provide tailored thresholds for the issue of NACC search warrants and include a protection for journalists' sources.

Warrants to search premises

7.495 An issuing officer would be permitted to issue a warrant to search premises for the purposes of a corruption investigation. Under section 3C of the Crimes Act 1914, an issuing officer is a magistrate, a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants.

7.496 To search for evidence relevant to a particular offence or offences, the issuing officer would need to be satisfied by information on oath or affirmation that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material (within the meaning of the substituted definition outlined in paragraph 7.485) at the premises. This test is consistent with the Crimes Act 1914 and offence warrants under subsection 109(2) of the LEIC Act.

7.497 Where the investigation concerns a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic, but where no offence, or no specific offence, has been identified, the issuing officer would need to be satisfied by information on oath or affirmation that:

•

there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material (within the meaning of the substituted definition outlined in paragraph 7.485) at the premises; and

•

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

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

Warrants to search persons

7.499 To issue a warrant to conduct an ordinary search or a frisk search of a person to locate evidence relevant to a particular offence or offences, an issuing officer would need to be satisfied by information on oath or affirmation that there are reasonable grounds for suspecting that the person has in their possession, or will within the next 72 hours have in their possession, any evidential material (within the meaning of the substituted definition outlined in paragraph 7.485). This test is consistent with the Crimes Act 1914 and offence warrants under subsection 109(4) of the LEIC Act.

7.500 Where the investigation concerns a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic, but where no offence, or no specific offence, has been identified, the issuing officer would need to be satisfied by information on oath or affirmation that

•

there are reasonable grounds for suspecting that the person has in their possession, or will within the next 72 hours have in their possession, any evidential material (within the meaning of the substituted definition outlined in paragraph 7.485); and

•

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

7.501 The inclusion of this additional threshold for non-criminal investigations would ensure that search warrants to search persons are only available where other means of obtaining the evidential material would be ineffective-because the material might be concealed, lost, mutilated or destroyed if the Commissioner sought to obtain it by serving a person with a summons to produce the material. This is consistent with the approach taken in section 4 of the Royal Commissions Act 1902 and with investigation warrants under subsection 109(3) of the LEIC Act.

Protection for journalists' sources

7.502 An additional threshold would apply for the issue of a search warrant if the warrant is to search a person (a journalist) who works in a professional capacity as a journalist, a journalist's employer, or premises occupied or controlled by a journalist or a journalist's employer.

7.503 A journalist would be a person working in a professional capacity as a journalist. Indicators that a person is acting in a professional capacity as a journalist include regular employment, formal qualifications, adherence to enforceable ethical standards and membership of a professional body.

7.504 The issuing officer would be required to weigh the public interest in issuing a warrant against the public interest in protecting the confidentiality of the identity of the journalist's source. They would also be required to weigh the public interest issuing a warrant against the public interest in facilitating the exchange of information between journalists and the public so as to facilitate reporting of matters in the public interest.

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

7.506 This safeguard is separate to broader measures to respond to the recommendations of the Parliamentary Joint Committee on Intelligence and Security and the Senate Standing Committee on Environment and Communications in their recent reports on press freedoms, but consistent with recommendations for additional protections in those reports.

Clause 125-Subsection 3E(4)-previous warrants

7.507 Subsection 3E(4) of the Crimes Act 1914 requires members and special members of the AFP to include-in the information provided to an issuing officer-details of any previous search warrant applications concerning the same person or premises, and the outcomes of those applications. This clause would ensure that the same obligation applies to authorised officers of the NACC.

7.508 This clause would only apply to previous applications that were made in relation to a corruption issue. This limitation is appropriate to ensure that a member or special member of the AFP who is assisting the Commissioner to conduct a corruption investigation is not required to list all search warrants relating to the same person or premises that the member or special members has applied for in their capacity as an AFP member, unless those warrants also related to a corruption issue.

Clause 126-Provisions of sections 3E, 3F, 3L and 3LAA

Offence to include corruption issue

7.509 Division 2 of Part IAA of the Crimes Act 1914 includes numerous references to 'an offence'. Some of these references remain appropriate as they stand for search warrants issued in relation to a corruption investigation. However, in certain provisions, specific references to corruption issue, are required. This clause would provide that certain provisions of the Crimes Act 1914 as applied by clause 119 have effect as if references they include to an offence included a reference to a corruption issue. This would mean that for search warrants issued for corruption investigations:

•

issuing officers must state in a warrant the offence or corruption issue to which the warrant relates (under paragraph 3E(5)(a));

•

issuing officers must state in a warrant that it authorises seizure of a thing (other than evidential material to be searched for under the warrant) that is believed on reasonable grounds to be evidential material in relation to an offence or corruption issue to which the warrant relates, if the executing officer, constable or authorised officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence (under subparagraphs 3E(6)(a)(i) and (7)(a)(i)); and

•

a warrant in force authorises the executing officer, a constable or authorised officer assisting to seize things (other than evidential material specified in the warrant) that are believed on reasonable grounds to be evidential material in relation to an offence or corruption issue to which the warrant relates, if the officer or constable believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence (under subparagraphs 3F(1)(d)(i) and (2)(c)(i)).

Relevant things under section 3E of the Crimes Act 1914

7.510 Subparagraph 3E(6)(a)(ii) of the Crimes Act 1914 provides that the issuing officer must state in a warrant that it authorises the seizure of a thing (other than evidential material to be searched for under the warrant) found at warrant premises that is believed on reasonable grounds to be 'a thing relevant to another offence that is an indictable offence'. This requires the executing officer or constable assisting to believe on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

7.511 This clause would substitute the reference to 'a thing relevant to another offence that is an indictable offence' with a reference to 'a thing relevant to an offence that is an indictable offence, or to a corruption issue that the Commissioner is investigating'. The reference to a corruption issue that the Commissioner is investigating will mean that things relevant to a corruption issue may only be seized under this provision where the corruption issue could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

7.512 It would also make an equivalent substitution for warrants in relation to persons (in relation to subparagraph 3E(7)(a)(ii)).

Evidential material and relevant things under section 3F of the Crimes Act 1914

7.513 Subparagraph 3F(1)(d)(ii) of the Crimes Act 1914 provides that a warrant in force in relation to premises authorises the executing officer or a constable assisting to seize things (other than evidential material specified in the warrant) found at warrant premises. They must have reasonable grounds to believe the thing is to be 'evidential material in relation to another offence that is an indictable offence' and that the seizure is necessary to prevent their concealment, loss or destruction or their use in committing an offence.

7.514 This clause would substitute the reference to 'evidential material in relation to another offence that is an indictable offence' with a reference to 'evidential material in relation to an offence that is an indictable offence, or to a corruption issue that the Commissioner is investigating'. The reference to a corruption issue that the Commissioner is investigating and the substituted definition of evidential material will mean that things relevant to a corruption issue may only be seized under this provision where the corruption issue could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

7.515 It would also make a similar substitution for warrants in relation to persons (in relation to subparagraph 3F(2)(c)(ii)).

References to the AFP

7.516 Subsections 3L(1B) and 3LAA(3) of the Crimes Act 1914 require the AFP Commissioner to arrange for the removal of copied data and the destruction of any other reproduction of it from any device in the control of the AFP once they are satisfied that the data is no longer required for certain purposes.

7.517 This clause, together with clause 123, would require the National Anti-Corruption Commissioner to arrange for removal of copied data and destruction of any other reproduction of it from any device in the control of the NACC once they are satisfied that the data is no longer required for those purposes.

Clause 127-Subparagraph 3LA(2)(b)(i)-accessing computer systems

7.518 Section 3LA of the Crimes Act 1914 allows a constable to apply to a magistrate for an order requiring a specified person to provide information or assistance that is reasonable and necessary to allow a constable to access and do certain things with data held in, or accessible from, a computer or data storage device that is on warrant premises, found in a search of a person under a premises warrant or moved or removed with appropriate authority. Orders may, for example, require a person to provide a password or access code required to access data.

7.519 A magistrate may grant the order under section 3LA if they are satisfied that:

•

there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device;

•

the specified person has relevant knowledge of the computer or device or a computer network of which the computer or device forms or formed a part or measures applied to protect data held in, or accessible from, the computer or device; and

•

the specified person is one of a number of persons listed in paragraph 3LA(2)(b).

7.520 This clause would substitute two subparagraphs in place of subparagraph 3LA(2)(b)(i) for the purposes of NACC search warrants, so that the list of specified persons would include both:

•

a person who is reasonably suspected of having committed the offence stated in the relevant warrant; and

•

a person who is reasonably suspected of having engaged in the corrupt conduct which is the subject of the corruption issue stated in the relevant warrant.

7.521 This substitution is necessary to allow for both purposes for which NACC search warrants may be issued: to obtain evidential material relevant to an offence, and to obtain evidential material relevant to an investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic. The list of persons who may be specified would be otherwise unchanged.

Clause 128-Provisions of section 3T

7.522 Section 3T of the Crimes Act 1914 allows constables to stop and detain a conveyance, and to search the conveyance and any container in or on the conveyance, for certain things and seize those things if they find them there (subsection 3T(2)). Constables may only do so if the threshold set out in subsection 3T(1) is met.

7.523 This clause would substitute paragraph 3T(1)(a) so that for the purposes of a NACC corruption investigation, section 3T would apply if a constable or authorised officer suspects on reasonable grounds that:

•

a thing relevant to an indictable offence, or to a corruption issue that the Commissioner is investigating, is in or on a conveyance;

•

it is necessary to exercise a power under subsection 3T(2) (see paragraph 7.522) in order to prevent the thing from being concealed, lost or destroyed; and

•

it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.

7.524 Subsection 3T(3) allows a constable to seize another thing located in a search conducted under subsection 3T(2) that is relevant to an offence in certain circumstances. This clause would also substitute subsection 3T(3) so that, for the purposes of a corruption investigation if, in the course of searching for the thing, the constable finds another thing relevant to an offence, or to a corruption issue that the Commissioner is investigating, the constable may seize that thing if the constable suspects, on reasonable grounds, that:

•

it is necessary to seize it in order to prevent its concealment, loss or destruction; and

•

it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.

7.525 This clause, together with clauses 119 and 123, would ensure constables and authorised officers of the NACC can stop and search conveyances for things relevant to an offence or a corruption investigation where necessary to prevent those things from being concealed, lost or destroyed in serious or urgent circumstances. Where any element of the threshold is not met, an authorised officer would instead be required to obtain a search warrant.

7.526 The references to a corruption issue that the Commissioner is investigating would mean that things relevant to a corruption issue may only be searched for and seized under section 3T of the Crimes Act 1914 as incorporated by the NACC Bill where the corruption issue could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic.

7.527 The exercise of powers under section 3T of the Crimes Act 1914 as incorporated by the NACC Bill would be subject to the limits set out in section 3U of the Crimes Act 1914. For example, the search must be conducted in a place to which members of the public have ready access and that the conveyance must not be detained for longer than is necessary and reasonable to search it and any container found in or on the conveyance.

Division 8-Interaction with criminal procedure and confiscation proceedings

7.528 This Division would define key concepts for the purposes of the NACC Bill and set out limited operation provisions. These provisions would ensure the Commissioner is able to continue to exercise their powers, and entities are able to continue to use and share investigation material or derivative material, even if particular uses of those powers, or some uses of that material, are declared to be invalid by a court.

Subdivision A-Key concepts

Clause 129-Meaning of pre-charge

7.529 This clause would define the term pre-charge for the purposes of the NACC Bill. An event would be pre-charge if it occurs when a witness has not been charged with a relevant offence (see clause 131) and no such charge is imminent (see clause 132) or all such charges have been resolved (see clause 139).

7.530 The collection, use and disclosure of pre-charge investigation material is subject to less stringent rules than post-charge investigation material. The collection, use and disclosure of investigation material before a person is charged with a relevant offence (or before such a charge is imminent) is less likely to affect a subsequent fair trial of a witness.

7.531 A notice to produce would be a pre-charge notice if the notice is issued at a time when the witness has not been charged with a relevant offence (and no such charge is imminent), or all such charges have been resolved.

7.532 A summons would be a pre-charge summons if the summons is issued to a person at a time when the witness has not been charged with a relevant offence (and no such charge is imminent), or all such charges have been resolved.

7.533 A hearing would be a pre-charge hearing if the hearing commences at a time when the witness has not been charged with a relevant offence (and no such charge is imminent), or all such charges have been resolved.

7.534 Investigation material would be pre-charge investigation material if the material becomes investigation material at a time when the witness has not been charged with a relevant offence (and no such charge is imminent), or all such charges have been resolved.

7.535 A use or disclosure of investigation material or derivative material would be a pre-charge use or disclosure if the use or disclosure happens at a time when the witness has not been charged with a relevant offence (and no such charge is imminent), or all such charges have been resolved.

Clause 130-Meaning of post-charge

7.536 This clause would define the term post-charge for the purposes of the NACC Bill. An event would be post-charge if it occurs at a time when a witness has been charged with a relevant offence (see clause 131) and that charge is still to be resolved (see clause 139) or such a charge is imminent (see clause 132). Additional rules apply to the collection, use or disclosure of investigation material if they occur in post-charge circumstances. This reflects the fact that those events are more likely to affect a person's trial for a relevant offence in those circumstances.

7.537 A notice to produce would be a post-charge notice if the notice is issued to a person at a time when the witness has been charged with a relevant offence and that charge is still to be resolved (or such a charge is imminent).

7.538 A summons would be a post-charge summons if the summons is issued to a person at a time when the witness has been charged with a relevant offence and that charge is still to be resolved (or such a charge is imminent).

7.539 A hearing would be a post-charge hearing if the hearing commences at a time when the witness has been charged with a relevant offence and that charge is still to be resolved (or such a charge is imminent).

7.540 Investigation material would be post-charge investigation material if the material becomes investigation material at a time when the witness has been charged with a relevant offence and that charge is still to be resolved (or such a charge is imminent).

7.541 A use or disclosure of investigation material or derivative material would be a post-charge use or disclosure if the use or disclosure happens at a time when the witness has been charged with a relevant offence and that charge is still to be resolved (or such a charge is imminent).

Clause 131 - Meaning of relevant offence

7.542 This clause would define the term relevant offence. An offence would be a relevant offence if:

•

for investigation material, derivative material or a witness-the subject matter of the relevant notice to produce or hearing relates to the subject matter of the offence; or

•

for a summons-the subject matter of the relevant summons relates to the subject matter of the offence.

7.543 There would need to be a connection between the activity or conduct that is the subject of the notice to produce, hearing or summons and those that constitute or are the subject of the offence.

7.544 If an offence is relevant to a notice or hearing, this will affect how investigation material and derivative material can be used in relation to the prosecution of the witness for that offence.

Clause 132 - Meaning of imminent and protected suspect

7.545 This clause would define the term imminent in relation to a charge or confiscation proceedings, and define the related term protected suspect.

Imminent

7.546 A charge against a person would be imminent if:

•

the person is a protected suspect (see paragraphs 7.551 to 7.553); or

•

the person is under arrest for an offence, but has not been charged with the offence.

7.547 A charge would also be imminent it a person with authority to commence a process for prosecuting the person for an offence has decided to commence, but not yet commenced, the process. For example, a person with authority to lay a charge may have decided to lay the charge but may not yet have laid the charge. This is intended to cover circumstances where there is sufficient evidence to initiate the relevant criminal process for the person's prosecution (for example to lay a charge or issue a court attendance notice), and a person with authority (such as a senior officer) has decided to do so, but that process has not yet been initiated against the person. It is also intended to cover circumstances where a court has decided not to commit a person on a charge, but where the Director of Public Prosecutions has decided to file an ex officio indictment.

7.548 It is not intended to cover circumstances where a junior officer has formed a view that a criminal process for the prosecution of a person should be initiated, or made a preliminary decision to initiate a criminal process for the prosecution of a person, but a person with appropriate authority to initiate the process has not yet made a final decision.

7.549 A confiscation proceeding against a person would be imminent if a person with authority to commence the proceeding has decided to commence, but has not yet commenced, the proceeding. As with a charge, those proceedings would be imminent where an officer within the relevant authority has decided to commence them, but where the proceedings have not yet been instituted.

7.550 A charge or confiscation proceeding that is imminent is treated consistently with a charge or proceeding that has commenced.

Protected suspects

7.551 The term protected suspect would take the meaning it has in Part IC of the Crimes Act 1914. It would also apply to a person who would fall within that definition if it applied to State and Territory offences in the same way as Commonwealth offences. Broadly, it means a person being questioned about a Commonwealth, State or Territory offence that has not been arrested for the offence by, or in the presence of, an official with the power to arrest or detain that person, where the official with that power:

•

believes that there is sufficient evidence to establish that the person has committed the offence;

•

would not allow the person to leave, if the person wished to do so; or

•

has given the person reasonable grounds to believe that they would not be allowed to leave, if they wished to do so.

7.552 The definition of protected suspect excludes a person being questioned by an official exercising a law of the Commonwealth to require the person to provide information or answer questions. As such, a witness at a hearing before the Commissioner or Inspector would not be a protected suspect on that basis.

7.553 If a person is a protected suspect, it indicates a charge against them is imminent (see paragraph 7.546).

Clause 133 - Meaning of derivative material

7.554 This clause would define the term derivative material. That term would mean any evidence, information, document or thing obtained directly or indirectly from investigation material.

7.555 It is intended to be a broad definition, and to apply to all evidence, information, documents or things that have been obtained from investigation material, including:

•

things obtained directly from investigation material (for example a thing whose existence and location the Commissioner revealed in the hearing, or an understanding of a particular set of financial transactions based on an explanation given at the hearing);

•

things obtained from a combination of investigation material and other material (for example illicit drugs uncovered once evidence directly derived from investigation material is fused and analysed with other relevant information); and

•

things obtained indirectly from investigation material (for example digital records uncovered from a laptop after the witness revealed the location of a storage facility, and the storage facility contained a document that recorded the password to the laptop).

7.556 The use and disclosure of derivative material would be subject to restrictions in some circumstances (see clause 105).

Clause 134-Meaning of pre-confiscation application

7.557 This clause would define the term pre-confiscation application for the purposes of the NACC Bill. An event is pre-confiscation application if it occurs when a relevant confiscation proceeding (see clause 137) has not been commenced and no such proceeding is imminent (see clause 132) or all such proceedings have been resolved (see clause 139). The collection of pre-confiscation application investigation material is subject to less stringent rules than the collection of post-confiscation application investigation material (see clauses 58 and 63). The collection of investigation material before a person is the subject of relevant confiscation proceedings (or such proceedings are imminent) is less likely to affect those proceedings.

7.558 A notice to produce is a pre-confiscation application notice if the notice is issued to a person at a time when a relevant confiscation proceeding has not commenced against the witness (and no such proceeding is imminent), or all such proceedings have been resolved.

7.559 A summons is a pre-confiscation application summons if the summons is issued to a person at a time when a relevant confiscation proceeding has not commenced against the witness (and no such proceeding is imminent), or all such proceedings have been resolved.

7.560 A hearing is a pre-confiscation application hearing if the hearing commences at a time when a relevant confiscation proceeding has not commenced against the witness (and no such proceeding is imminent), or all such proceedings have been resolved.

7.561 Investigation material is pre-confiscation application investigation material if the material becomes investigation material at a time when a relevant confiscation proceeding has not commenced against the witness (and no such proceeding is imminent), or all such proceedings have been resolved.

7.562 A use or disclosure of investigation material or derivative material is a pre-confiscation application use or disclosure if the use or disclosure happens at a time when a relevant confiscation proceeding has not commenced against the witness (and no such proceeding is imminent), or all such proceedings have been resolved.

Clause 135-Meaning of post-confiscation application

7.563 This clause would define the term post-confiscation application for the purposes of the NACC Bill. An event is post-confiscation application if it occurs at a time when a relevant confiscation proceeding (see clause 137) has commenced against a witness and that proceeding is still to be resolved (see clause 139) or such a proceeding is imminent (see clause 132). Additional rules apply to the collection of post-confiscation application investigation material (see clauses 58 and 63). This reflects the fact that those events are more likely to affect a person's trial for a relevant offence in those circumstances.

7.564 A notice to produce is a post-confiscation application notice if the notice is issued to a person at a time when a relevant confiscation proceeding has commenced against the witness and that proceeding is still to be resolved (or such a proceeding is imminent).

7.565 A summons is a post-confiscation application summons if the summons is issued to a person at a time when a relevant confiscation proceeding has commenced against the witness and that proceeding is still to be resolved (or such a proceeding is imminent).

7.566 A hearing is a post-confiscation application hearing if the hearing commences at a time when a relevant confiscation proceeding has commenced against the witness and that proceeding is still to be resolved (or such a proceeding is imminent).

7.567 Investigation material is post-confiscation application investigation material if the material becomes investigation material at a time when a relevant confiscation proceeding has commenced against the witness and that proceeding is still to be resolved (or such a proceeding is imminent).

7.568 A use or disclosure of investigation material or derivative material is a post-confiscation application use or disclosure if the use or disclosure happens at a time when a relevant confiscation proceeding has commenced against the witness and that proceeding is still to be resolved (or such a proceeding is imminent).

Clause 136 - Meaning of confiscation proceeding

7.569 This clause would define the term confiscation proceeding. That term would mean a proceeding under:

•

the POC Act; or

•

a corresponding State or Territory law prescribed in the regulations made under that Act.

7.570 A confiscation proceeding would not include a criminal prosecution for an offence under that Act or a corresponding law.

Clause 137-Meaning of relevant confiscation proceeding

7.571 This clause would define the term relevant confiscation proceeding. A confiscation proceeding would be a relevant confiscation proceeding if:

•

for investigation material, derivative material or a witness-the subject matter of the relevant notice to produce or hearing relates to the subject matter of the proceeding; or

•

for a summons-the subject matter of the summons relates to the subject matter of the proceeding.

7.572 There would need to be a connection between the activity or conduct that is the subject of the notice to produce, hearing or summons, and those that are the subject the confiscation proceedings.

Clause 138-Meaning of proceeds of crime authority

7.573 This clause would define the term proceeds of crime authority. A proceeds of crime authority means:

•

a proceeds of crime authority within the meaning of the POC Act (currently the AFP Commissioner or the Director of Public Prosecutions); or

•

an authority of a State or Territory responsible for conducting a confiscation proceeding under a corresponding State or Territory law prescribed in the regulations made under that Act.

7.574 This term is relevant to the use and disclosure of investigation material (see clauses 104 and 109).

Clause 139-When a charge or confiscation proceeding is resolved

7.575 This clause would outline when a charge or confiscation proceeding is taken to be resolved. This is relevant to the collection, use and disclosure of investigation material. For example, the disclosure of investigation material when a charge has been laid and not resolved would be a post-charge disclosure. A disclosure made after all charges are resolved would be a pre-charge disclosure because there is no charge on foot.

7.576 A charge for an offence would generally be resolved when:

•

the charge is withdrawn;

•

the charge is dismissed;

•

the person is not committed on the charge following a committal hearing;

•

the person is acquitted of the offence;

•

the person is sentenced for the offence;

•

the person is dealt with by being the subject of an order made as a consequence of a finding of guilt; or

•

the charge is otherwise finally dealt with.

7.577 A confiscation proceeding would generally be resolved when the proceeding is discontinued.

7.578 Despite this, a charge or proceeding would not be resolved if an appeal can be lodged, or has been lodged, in relation to the charge or proceeding. A charge or proceeding would be resolved when the period to lodge an appeal ends or, if an appeal is lodged, when the appeal lapses or is finally determined. If an appeal is lodged after the end of the period for lodging an appeal, the charge or proceeding would cease to be resolved until the appeal lapses or is finally determined.

Subdivision B-Commissioner's powers-limited operation provisions

7.579 This Subdivision would set out limited operation provisions to ensure the Commissioner is able to continue to exercise its powers, and entities are able to continue to use and share investigation material or derivative material, in the event that some exercise of those powers, or some uses of that material, are declared to be invalid by a court.

Clause 140-Limited operation-Commissioner's power to issue notices to produce

7.580 This clause would ensure that the Commissioner's general power to issue notices to produce (see clause 58) remains valid even if particular uses of that power were declared by a court to be invalid, including:

•

post-charge and post-confiscation application notices to produce;

•

post-charge notices to produce about the subject matter of the charge or imminent charge; and

•

post-confiscation application notices to produce about the subject matter of the confiscation proceeding or imminent confiscation proceeding.

Clause 141-Limited operation-Commissioner's power to hold hearings

7.581 This clause would ensure that the Commissioner's general power to hold hearings (see clause 62) remains valid even if particular uses of that power were declared by a court to be invalid, including post-charge hearings and post-confiscation application hearings.

Clause 142-Limited operation-Commissioner's power to summon person

7.582 This clause would ensure that the Commissioner's general power to issue a summons (see clause 63) remains valid even if particular uses of that power were declared by a court to be invalid, including:

•

post-charge summonses;

•

post-confiscation application summonses;

•

post-charge summonses about the subject matter of the charge or imminent charge; and

•

post-confiscation application summonses about the subject matter of the confiscation proceeding or imminent confiscation proceeding.

Clause 143-Limited operation-obtaining derivative material

7.583 This clause would ensure that the use of some investigation material to obtain derivative material in accordance with clause 104 remains valid even if:

•

particular uses may be declared by a court to be invalid, including post-charge use or disclosure and post-confiscation application use or disclosure; or

•

use or disclosure by particular entities may be declared by a court to be invalid.

7.584 Clause 144-Limited operation-disclosing investigation material to prosecutors of the witness

7.585 This clause would ensure that the disclosure of some investigation material to prosecutors of the witness in accordance with see clause 105 remains valid even if particular uses may be declared by a court to be invalid, including post-charge disclosures or certain types of post-charge disclosures.

Clause 145-Limited operation-disclosing derivative material to prosecutors of the witness

7.586 This clause would ensure that some disclosures of derivative material to a prosecutor of the witness in accordance with clause 105 remain valid even if particular disclosures may be declared by a court to be invalid, including post-charge disclosure or certain types of post-charge disclosures.

Clause 146-Limited operation-material that may always be disclosed to prosecutors of the witness

7.587 This clause would ensure that some disclosures of certain types of investigation material to a prosecutor of the witness (see clause 107) remain valid even if particular disclosures may be declared by a court to be invalid, including post-charge disclosures or certain types of post-charge disclosures.

Clause 147-Limited operation-disclosing material to proceeds of crime authorities

7.588 This clause would ensure that some disclosures of investigation material and derivative material to proceeds of crime authorities (see clause 109) remain valid even if particular disclosures may be declared by a court to be invalid, including post-confiscation application disclosures or certain types of post-charge or post-confiscation application disclosures.

Subdivision C-Witness' fair trial-limited operation

Clause 148-Limited operation-witness' fair trial

7.589 This clause would ensure that the court's powers to order that material may be disclosed under clause 106 remain valid even if the statement in subclause 106(4) that a person's trial for an offence is not unfair merely because the person has been a witness, or particular parts of that statement, may be declared by a court to be invalid.