Senate

Revised Explanatory Memorandum

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

PART 8 REPORTING ON CORRUPTION INVESTIGATIONS

8.1 This Part would set out the requirements for reporting on corruption investigations by the Commissioner. Reporting by the Commissioner on public inquiries is dealt with separately under Part 9, at paragraph 9.1. Reporting by the Inspector following a NACC corruption investigation or a NACC complaint investigation is dealt with separately under Division 4 of Part 10, at paragraph 10.295.

8.2 The Commissioner would be required to prepare reports on all completed investigations and provide these reports to the Minister (or the Prime Minister in certain circumstances). The Commissioner would be able to make findings of fact in investigation reports, including findings of corrupt conduct, but not make determinations of criminal liability.

8.3 This Part would require the tabling of investigation reports in Parliament where a public hearing is held in the course of the investigation to which the report relates. It would be open to the Minister or Prime Minister (as the case may be) to table other investigation reports. The Commissioner would also be able to publish other investigation reports if satisfied it is in the public interest to do so.

8.4 Given the scope of the NACC's jurisdiction and the nature of the information contained in investigation reports, safeguards would apply to protect sensitive information (see clause 227) and information subject to an Attorney-General's certificate issued under clause 235.

8.5 The NACC would be required to operate with procedural fairness, by ensuring individuals or agencies that are to be the subject of an adverse finding, opinion or recommendation are given an opportunity to respond prior to that finding, opinion or recommendation being included in an investigation report.

Clause 149-Report on corruption investigation

8.6 This clause would require reports to be prepared on all completed investigations, provide that certain content must be included in those reports and set out some of the matters on which recommendations may be made.

Commissioner must prepare an investigation report

8.7 This clause would require the Commissioner to prepare an investigation report after completing a corruption investigation.

8.8 It would be a matter for the Commissioner to determine when an investigation is completed. It would be an object of the NACC Bill to facilitate the 'timely' investigation of corruption issues that involve, or potentially involve, corrupt conduct that is serious or systemic. However, there would be circumstances in which it is appropriate for the Commissioner to defer the completion of an investigation and the subsequent preparation of the report-for example, pending the outcome of a related criminal, disciplinary or administrative process, so as to not prejudice that process.

Contents of an investigation report

8.9 Reports prepared under this clause would be required to set out:

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the Commissioner's findings or opinions on the relevant corruption issue;

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a summary of the evidence and other material on which those findings or opinions are based;

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any recommendations that the Commissioner thinks fit to make; and

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if recommendations are made-the reasons for those recommendations.

8.10 Clause 153 would require the Commissioner to give certain persons an opportunity to respond before including any critical opinions, findings or recommendations in the report. Clause 153 may also require additional information to be included in an investigation report in certain circumstances.

8.11 In setting out the Commissioner's findings or opinions on the corruption issue, if the Commissioner forms the opinion that a person whose conduct has been investigated has engaged in corrupt conduct of a serious or systemic nature, the Commissioner must include a statement to that effect in the investigation report. This reflects the relevant 'serious or systemic' threshold required for the Commissioner to decide to investigate a corruption issue under clause 41. The Commissioner would therefore be required to clarify the nature of the corrupt conduct in their report.

8.12 For the avoidance of doubt, if the Commissioner forms the opinion that a person whose conduct has been investigated has not engaged in corrupt conduct, the Commissioner must set out that opinion in the report. This would balance the Commissioner's function to investigate serious or systemic corruption with the need to protect against undue reputational damage where a person's conduct has been investigated and no findings of corrupt conduct have been made.

8.13 This clause would also assist in safeguarding against reputational damage in circumstances where a person gives evidence at a hearing and is not the subject of any findings or opinions in relation to the corruption investigation. Under subclause 149(5), the Commissioner may include a statement to that effect in the investigation report if the Commissioner is satisfied that it is appropriate and practicable to do so to avoid damage to the person's reputation.

8.14 The Commissioner may include such a statement, for example, in circumstances where a person's involvement in a corruption investigation is publicly known, and their mere involvement in the investigation puts their reputation at risk. This may arise in circumstances where a person has given evidence at a public hearing, or where a person's involvement in a private hearing was reported on in the media. Such a statement would likely not be appropriate in circumstances where its inclusion would draw attention to the person's involvement in the investigation, and their involvement would not otherwise have been publicly known.

8.15 The protection against reputational damage would extend to protecting the reputation of corporations and other legal persons, as well as their representatives. For example, the head (or another representative) of a corporation may give evidence at hearing in relation to the manner in which the corporation's services were engaged by a public official. Where either or both of the corporation, or the head of the corporation, are not the subject of any findings or opinions in relation to the corruption investigation, the Commissioner may include a statement to that effect in the investigation report if the Commissioner is satisfied that it is appropriate and practicable to do so to avoid damage to the person's reputation.

Recommendations that may be made

8.16 This clause would set out the kinds of recommendations that may be included in an investigation report, without limiting the recommendations that may be made.

8.17 In addition to any other recommendations the Commissioner sees fit to make, the Commissioner could make recommendations on one or more of the following matters:

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taking action in relation to a person, in accordance with relevant procedures, with a view to improving their performance;

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terminating the employment of a person in accordance with relevant procedures;

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taking action to rectify or mitigate the effects of the conduct of a person;

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adopting measures to remedy deficiencies in the policy, procedures or practices that facilitated:

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the employment or engagement of an unsuitable person;

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a person engaging in corrupt conduct; or

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the failure to detect corrupt conduct engaged in by a person.

Section does not limit what may be included in an investigation report

8.18 This clause would not limit what may be included in an investigation report. This provides the Commissioner with the flexibility to tailor findings, opinions and recommendations in the context of the specific investigation, noting the diverse nature of corruption issues that may come before the Commissioner due the NACC's broad jurisdiction.

8.19 For example, paragraphs 149(6)(a) and (b) would enable the Commissioner to make recommendations to take action or terminate the employment of a person 'in accordance with relevant procedures'. This would be subject to any procedural fairness requirements that may apply under those procedures. Where the relevant procedures require that further procedural fairness steps be taken, it would be open to the Commissioner to instead recommend that an agency:

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consider taking action or terminating the employment of a person; or

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consider the person's conduct and any appropriate action or sanction including termination.

Clause 150-Effect of findings or opinions about corrupt conduct

8.20 This clause would apply if an investigation report includes a finding or opinion that a person has engaged, is engaging or will engage in corrupt conduct, or conduct that could constitute or involve corrupt conduct. This clause would provide the finding or opinion does not constitute a finding or opinion that the person is guilty of or has committed, is committing or will commit an offence.

8.21 This recognises that the Commissioner would not be able to make findings of criminal guilt or liability. Such a finding would be a matter for a court to determine.

Clause 151-Excluding certain information from investigation report

8.22 This clause would require the Commissioner to exclude certain material from an investigation report. Exclusion of this information would protect information that ought not to be made public, or disclosed more widely, from being disclosed in circumstances where an investigation report is:

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required to be tabled or is tabled at the discretion of the Minister (see clause 155);

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published by the Commissioner (see clause 156); or

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given to a person other than the Minister (see clause 154).

8.23 Any information that is excluded from an investigation report must be included in a protected information report under clause 152.

8.24 The Commissioner would be required to exclude the following types of information from an investigation report:

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section 235 certified information (see clause 235); and

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

8.25 Clause 235 would allow the Attorney-General to certify that the disclosure of particular information to certain persons would be contrary to the public interest. The Commissioner would be required to exclude information that is subject to such a certificate from an investigation report. This would ensure that certain classes of information would be protected from disclosure, without requiring the Commissioner to be satisfied that the information is sensitive information.

8.26 The definition of sensitive information is explained at paragraph 11.9, including, for example, information the disclosure of which:

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could prejudice the security, defence or international relations of Australia;

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would prejudice the proper enforcement of the law or the fair trial of any person; or

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would unreasonably disclose a person's personal affairs.

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

Clause 152-Protected information report

8.28 This clause would require the Commissioner to prepare a protected information report, where the Commissioner has excluded information from an investigation report under clause 151. The preparation of the report would allow all information relevant to the corruption investigation to be provided to the Minister, and certain other recipients where relevant (see clause 154), without disclosing its content to the public.

8.29 The protected information report must set out the excluded information, and the reasons for excluding the information from the investigation report. The requirement to include the reasons for excluding the information from the investigation report would ensure any decision to protect information from disclosure is appropriately justified.

8.30 The requirement for certain information to be included in a protected information report would not impliedly preclude the Commissioner from including other information in the protected information report. For example, the Commissioner could:

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prepare a short protected information report that consists solely of the excluded information and the reasons why that information was excluded from the investigation report-which could be appropriate where there is only a small volume of excluded information;

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include contextual information that would assist a reader to understand how the information that has been excluded from the investigation report relates to or informs the matters dealt with in the investigation report; or

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prepare the protected information report in a manner that replicates the investigation report, with the addition of the excluded information and the required reasons as to why that information was excluded from the investigation report.

8.31 If a protected information report is given to a person, the person must not disclose the report, or information contained in the report, to the public or a section of the public. This would be an offence under clause 234.

Clause 153-Opportunity to respond must be given before including certain information in investigation report

8.32 This clause would require the Commissioner to comply with certain procedural fairness obligations before including an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity, or any other person in an investigation report.

8.33 The Commissioner would be required to provide the head of the agency, the head of the entity, or the person concerned, with a statement setting out the opinion, finding or recommendation, and a reasonable opportunity to respond to the opinion, finding or recommendation. This would ensure that persons who are subject to findings of corrupt conduct or other critical findings, opinions or recommendations have the opportunity to respond. This requirement is intended to extend to an opinion, finding or recommendation that is critical of a corporation, noting a corporation's status as a legal person.

8.34 This clause would not prescribe what constitutes a reasonable opportunity to comment given this will vary depending on the circumstances-for example a reasonable opportunity to comment on a single adverse opinion in a very short report will be different to a case involving a lengthy report and multiple, inter-connected adverse findings.

8.35 This clause would provide the response may be given by the head of the Commonwealth agency or of the State or Territory government entity concerned, or a person authorised by the head. Where the critical opinion, finding or recommendation relates to another person, the response may be given by the person concerned, or a person representing the person concerned, with their approval.

8.36 Where the opinion or finding is that a person has engaged in corrupt conduct, and the person provides a response to the finding or opinion, the Commissioner must include in the investigation report a summary of the substance of the response, if the person requests the Commissioner to do so. This requirement limits the Commissioner's summary to the substance of the person's response, noting a person's response may identify other individuals or raise information that would be inappropriate to include in an investigation report.

8.37 The requirement is intentionally limited to circumstances where the person requests a summary of their response be included, noting a person's response may raise information they do not wish to be made public. For example, a person's response may refer to their mental health, financial circumstances, or other personal information as factors contributing to or explaining their conduct, or as factors that the Commissioner should consider before finalising or publishing their report.

8.38 Subclause 153(4) would apply where the Commissioner includes a summary of the substance of a person's response in the investigation report. The requirement to publish the summary would be subject to clause 151, which would require certain information to be excluded from investigation reports. The Commissioner would be required to exclude section 235 certified information (see clause 235), and information that the Commissioner is satisfied is sensitive information (defined under subclause 227(3)) from the summary. The Commissioner would also be required to comply with the consultation requirements under clause 151, in determining whether the Commissioner is satisfied that information is sensitive information for the purpose of excluding the information from an investigation report.

8.39 Subclause 153(5) would apply where the Commissioner includes a summary of the substance of a person's response in the investigation report. The Commissioner must not include any information in the summary that would identify any person who, in the opinion of the Commissioner, has not engaged in corrupt conduct. This would avoid risking undue damage to the person's reputation as a result of being associated with a finding of corrupt conduct in the report.

8.40 However, the Commissioner may include information that would identify such a person if the Commissioner:

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is satisfied that it is necessary to do so in the public interest;

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is satisfied that doing so will not cause unreasonable damage to the reputation, safety or wellbeing of the person; and

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includes in the report a statement that, in the opinion of the Commissioner, the person has not engaged in corrupt conduct.

8.41 This clause would not by implication limit, exclude or exhaust the requirements of procedural fairness that would apply to an investigation generally, for example in connection with the making of an adverse statement of opinion in relation to a person at a public hearing.

Clause 154-Commissioner to give copies of reports to certain persons

8.42 This clause would require the Commissioner to provide investigation reports to the Minister. If a protected information report is prepared in relation to the investigation, the Commissioner must also provide the protected information report to the Minister. Where an investigation report relates to an investigation concerning the conduct of the Minister, the investigation report and any protected information report would instead be given to the Prime Minister.

8.43 Subclause 154(3) would set out a list of additional recipients who must receive a copy of an investigation report, and may receive a copy of a protected information report in certain cases. The persons are:

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for a corruption investigation concerning the conduct of a current Minister-the Prime Minister;

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for a corruption investigation concerning the conduct of a staff member of a Commonwealth agency (including a parliamentary office)-the head of the agency and the person mentioned in subclause 154(4);

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for a corruption investigation concerning the conduct of the head of a Commonwealth agency:

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the person mentioned in subclause 154(4); and

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where the head of the Commonwealth agency is an Agency Head (within the meaning of the Public Service Act 1999) the Australian Public Service Commissioner;

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for a corruption investigation concerning the conduct of a senator-the President of the Senate; or

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for a corruption investigation concerning the conduct of a member of the House of Representatives-the Speaker of the House of Representatives.

8.44 Subclause 154(4) would provide, for the purposes of subclause 154(3), the person to which the report is to be given is:

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if the Commonwealth agency is a Department of the Parliament established under the Parliamentary Service Act 1999 (paragraph (a)):

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for the Department of the Senate-the President of the Senate;

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for the Department of the House of Representatives-the Speaker of the House of Representatives; or

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otherwise-both the President of the Senate and the Speaker of the House of Representatives; or

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if the Commonwealth agency is established or continued in existence by an Act and paragraph (a) does not apply-the Minister administering that Act (paragraph (b)); or

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if the Commonwealth agency is a Commonwealth entity and neither paragraph (a) nor paragraph (b) applies-the Minister having general responsibility for the activities of the entity (paragraph (c)).

8.45 The effect of subclauses 154(3) and (4) is to ensure a copy of the investigation report is given to other persons who have responsibility or oversight for an agency, where it is appropriate and necessary for them to receive a copy of the findings or recommended action contained in the report. For example, recommendations contained in the report may relate to taking action in relation to a staff member of a Commonwealth agency, or adopting measures to remedy deficiencies in the policy, procedures or practices of a Commonwealth agency. Providing a copy of the investigation report to the head of that agency and the relevant Minister would ensure findings and recommendations are brought to the attention of those responsible for the agency and able to action them.

8.46 In some circumstances, the Commissioner may decide that it would be appropriate for the recipient of a copy of an investigation report to also receive a copy of a related protected information report. For example, the Commissioner may consider it appropriate for the head of a Commonwealth agency to receive a copy of a protected information report, where the information in that report relates to the functions or operations of that agency.

8.47 If the recipient receives a copy of the protected information report, the person must not disclose the report, or information contained in the report, to the public or a section of the public. This would be an offence under clause 234.

Exclusion of certain information from copies of reports

8.48 This clause would require the exclusion of certain material from a protected information report given to a person under paragraph 154(3)(b).

8.49 The Commissioner must exclude section 235 certified information (see clause 235), if the disclosure of the information would contravene the certificate.

8.50 Clause 235 would allow the Attorney-General to certify that the disclosure of particular information to certain persons would be contrary to the public interest. A certificate issued under clause 235 may allow for the disclosure of certain protected information to certain persons, including, for example, Commonwealth agency heads who may receive a copy of a protected information report under subclause 154(3).

8.51 This subclause would also require the Commissioner to exclude information from a protected information report if the Commissioner is satisfied:

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that the information is sensitive information (defined under clause 227), and

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it is desirable in the circumstances to exclude from the report.

8.52 For example, where the sensitive information relates to the functions or activities of another Commonwealth agency, and it is not necessary for the person to receive the information in order to understand and act on findings and recommendations, it would be appropriate to exclude the relevant sensitive information.

8.53 This clause would also provide, in deciding whether to exclude sensitive information from a protected information report, the Commissioner must seek to achieve an appropriate balance between the person's interest in having the information included in the report, and the prejudicial consequences that might result from including the information in the report. This would ensure information regarding the outcome of investigations can be shared, within the Commonwealth, when it is appropriate in the circumstances, without resulting in prejudicial consequences.

Clause 155-Tabling of investigation report in Parliament

8.54 This clause would require the Minister or the Prime Minister to table investigation reports received under clause 154, where one or more public hearings were held in the course of the investigation to which the investigation report relates. This approach would be consistent with the existing arrangements for the tabling of reports prepared by ACLEI and would ensure transparent reporting where matters dealt with in a corruption investigation are in the public domain.

8.55 The Minister or Prime Minister must table the report in each House of the Parliament within 15 sitting days of that House receiving it. This would ensure there is a permanent, public record of investigation reports where the matters considered are already in the public domain. The requirement to table the report within 15 sitting days provides for an appropriately timely tabling process, while also allowing sufficient time for the Minister to consider the report prior to tabling.

8.56 Where an investigation report is not required to be tabled, the Minister or Prime Minister would have the discretion to table the report in each House of the Parliament under the usual Parliamentary procedures.

Clause 156-Publishing investigation report in whole or part

8.57 This clause would allow the Commissioner to publish investigation reports in certain circumstances.

8.58 The Commissioner would be able to publish the whole or part of an investigation report where the report has been given to the Minister or the Prime Minister under clause 154, and the Commissioner is satisfied that it is in the public interest to publish the report (or part of the report). The Commissioner may choose to publish a report by, for example, making it available on the NACC's website.

8.59 This clause would allow for transparent reporting where a report is not required to be tabled by the Minister or Prime Minister, but the Commissioner is of the opinion that it is in the public interest to make the findings of the report public. This would be consistent with the objects of the NACC Bill, which include educating and providing information about corruption and the detrimental effects of corruption on public administration and the Australian community (clause 3).

8.60 Allowing the Commissioner to publish part of a report would allow, for example, the Commissioner to remove identifying information, or information that the Commissioner does not consider would be in the public interest to publish.

8.61 This clause would be subject to additional procedural fairness requirements under clause 157, which require the Commissioner to give certain persons an opportunity to respond before publishing an investigation report containing critical opinions, findings or recommendations.

Clause 157-Opportunity to respond must be given before publishing an investigation report containing critical opinions etc.

8.62 This clause would require the Commissioner to comply with further procedural fairness obligations before publishing, under clause 156, an investigation report that includes an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity, or any other person. This requirement would apply in addition to the procedural fairness requirements that apply under clause 153 and must be fulfilled before critical opinions, findings or recommendations are included in the investigation report.

8.63 This clause would recognise that investigation reports may be published some time after they are first prepared-for example, where the Commissioner elects to defer the publication of a report until after all criminal, disciplinary or administrative proceedings arising from the investigation are finalised. In such cases, the agency, entity or person should be afforded a further opportunity to respond to the critical opinion, finding, or recommendation, as well as the proposed publication of the investigation report. This would enable the agency, entity or person to make further representations as to whether the report should be published, and the timing of that publication. For example, if a person had suffered a bereavement, or was suffering from a serious health condition (including a mental health condition), that may weigh in favour of deferring the publication of a report.

8.64 The Commissioner would be required to provide the head of the agency, the head of the entity, or the person concerned a statement setting out the opinion, finding or recommendation, and a reasonable opportunity to respond to the opinion, finding or recommendation, and its proposed publication. This clause would not prescribe what constitutes a reasonable opportunity to comment given this will vary depending on the circumstances-for example a reasonable opportunity to comment on a single adverse opinion in a very short report will be different to a case involving a lengthy report and multiple, inter-connected adverse findings.

8.65 The requirement would not apply where the investigation report has been tabled in Parliament and therefore already made public.

8.66 Equally, the requirement would not apply if the Commissioner publishes whole or part of the investigation report within 3 months of the report being given to the Minister or the Prime Minister under subclause 154(1). This recognises that the opportunity to respond under clause 153 would be sufficient where there is no substantial delay between that initial opportunity and the publishing of the investigation report. A period of 3 months reflects the period within which the Minister would generally table investigation reports, as required by clause 155 or at their discretion.

8.67 The response may be given by the head of the Commonwealth agency or of the State or Territory government entity concerned, or a person authorised by the head. Where the critical opinion, finding or recommendation relates to another person, the response may be given by the person concerned, or, with approval, a person representing the person concerned.

Clause 158-Advising person who referred corruption issue of outcome of the investigation

8.68 This clause would enable persons to be informed of the outcome of an investigation into a corruption issue, where the corruption issue was raised by the person in a referral under Part 5, including:

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clause 32 (voluntary referrals to be made by any person);

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clause 33 (mandatory referrals by agency heads);

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clause 34 (mandatory referrals by intelligence agencies); or

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clause 35 (mandatory referrals by PID officers).

8.69 The Commissioner would be able to advise the person, or a representative nominated by the person, of the outcome of the investigation. This would ensure that information regarding the outcome of investigations can be shared when it is appropriate in the circumstances. This may include, for example, where the head of a Commonwealth agency has referred an allegation of corruption to the Commissioner, and the Commissioner investigates the conduct of one or more staff members of that agency.

8.70 The Commissioner would be able to advise the person, or the person's representative, of the outcome of the investigation by providing the person or representative with a copy of all or part of the investigation report prepared in relation to the investigation. However, this would not be the only means of advising a person of the outcome-for example, the Commissioner might choose to send a letter summarising the outcome, rather than providing a copy of the report itself.

8.71 The Commissioner would be prohibited from disclosing certain information when advising the person of the outcome of the investigation. The Commissioner would be unable to disclose information that is subject to a certificate under clause 235, if the disclosure of the information to the person would contravene the certificate. The Commissioner would also be unable to disclose information if satisfied that the information was sensitive information (as defined under clause 227) and that it was desirable in the circumstances to exclude the information from the advice.

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

8.73 In practice, the Commissioner could consult with the heads of relevant agencies or entities for the purpose of some or all of the consultation requirements under clauses 151, 158, 159 and 230 simultaneously, if the Commissioner proposed to undertake the relevant steps set out in each of those clauses in close succession. This would allow the Commissioner to consult with the head of an agency to establish whether information is sensitive information for the purpose of its exclusion from an investigation report under clause 151, for the purpose of advising persons of the outcome of an investigation under clauses 158 and 159, and for the purpose of making a public statement accompanying the publication of the report under clause 230.

8.74 In deciding whether to exclude sensitive information from the advice, the Commissioner must seek to achieve an appropriate balance between the person's interest in having the information included in the advice, and the prejudicial consequences that might result from including the information in the advice. This would ensure information regarding the outcome of corruption investigations can be shared when it is appropriate in the circumstances, without resulting in prejudicial consequences.

Clause 159-Advising person whose conduct is investigated of outcome of the investigation

8.75 This clause would ensure persons whose conduct is investigated are informed of the outcome of an investigation, unless such a notification would not be practicable or appropriate.

8.76 This clause provides that the Commissioner must advise a person of the outcome of a corruption investigation if the Commissioner investigates a corruption issue concerning the conduct of the person. The requirement would apply in circumstances where the Commissioner has made a finding that the person has engaged in corrupt conduct, or where no such finding has been made.

8.77 It would be important to inform a person that the Commissioner has made a finding that the person has engaged in corrupt conduct given that such a finding would affect the person's standing, career prospects and reputation, as well as potential criminal liability. Equally, it would often be important to inform a person that the Commissioner has formed the opinion or made a finding that the person has not engaged in corrupt conduct, to ensure the person is aware they have been exonerated by the Commissioner from any findings of corruption.

8.78 However, subclause 159(7) addresses circumstances where the Commissioner would not be required to advise a person of the outcome of a corruption investigation. The requirement would not apply if advising the person is not reasonably practicable, for example, where the person has left the country or are otherwise uncontactable.

8.79 The requirement would also not apply where advising the person would be contrary to the public interest, including because it might prejudice:

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a person's fair trial;

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a NACC Act process (see paragraph 1.104);

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any other investigation that is being undertaken by a Commonwealth agency or a State or Territory government entity; or

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any action taken as a result of a NACC Act process or an investigation.

8.80 This is appropriate to ensure that notifying a person to the existence of an investigation does not prejudice a separate, ongoing investigation or trial, such as in circumstances where the subject has not been aware of the Commission's investigation and notification would alert a person to the fact that they have been-and may continue to be-under investigation.

8.81 The Commissioner would be able to advise the person of the outcome of the investigation by providing the person with a copy of all or part of the investigation report prepared in relation to the investigation. However, this would not be the only means of advising a person of the outcome-for example, the Commissioner might choose to send a letter summarising the outcome, rather than providing a copy of the report itself.

8.82 The Commissioner would be prohibited from disclosing certain information when advising the person of the outcome of the investigation. The Commissioner must not disclose information that is subject to a certificate under clause 235, if the disclosure of the information to the person would contravene the certificate. The Commissioner must also exclude information from the advice if the Commissioner is satisfied that the information is sensitive information (as defined under clause 227) and that it is desirable in the circumstances to exclude the information from the advice.

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

8.84 In practice, the Commissioner could consult with the heads of relevant agencies or entities for the purpose of some or all of the consultation requirements under clauses 151, 158, 159, 230 and 231 simultaneously, if the Commissioner proposed to undertake the relevant steps set out in each of those clauses in close succession. This would allow the Commissioner to consult with the head of an agency to establish whether information is sensitive information for the purpose of its exclusion from an investigation report under clause 151, for the purpose of advising persons of the outcome of an investigation under clauses 158 and 159, and for the purpose of making a public statement accompanying the publication of the report under clause 230.

8.85 In deciding whether to exclude sensitive information from the advice, the Commissioner must seek to achieve an appropriate balance between the person's interest in having the information included in the advice, and the prejudicial consequences that might result from including the information in the advice. This would ensure information regarding the outcome of investigations can be shared when it is appropriate in the circumstances, without resulting in prejudicial consequences.

Clause 160-Follow-up action on investigation report

8.86 This clause would empower the Commissioner to follow up action taken in response to recommendations directed to Commonwealth agencies in investigation reports. To achieve the objects of the NACC Bill to prevent corrupt conduct, the Commissioner's recommendations would be expected to be actioned by Commonwealth agencies in order to address risks and vulnerabilities that give rise to corruption. The Commissioner's ability to follow up how a recommendation has been implemented is critical to ensure recommendations are appropriately considered and addressed and the relevant corruption risk is reduced or eliminated.

8.87 This clause is consistent with equivalent provisions in State and Territory integrity commission legislation.

8.88 The Commissioner would be able to request that the head of a Commonwealth agency, to whom an investigation report is given, give the Commissioner, within a specified time, details of any action that the head of the Commonwealth agency has taken, or proposes to take, with respect to a recommendation included in the report. The head of the Commonwealth agency would be required to comply with the request.

8.89 If the Commissioner is not satisfied with the response of the head of the Commonwealth agency, the Commissioner may refer the recommendation and the reasons for the recommendation, the response of the head of the agency, and the Commissioner's reasons for not being satisfied with that response, to the relevant Minister or Presiding Officer of a House of the Parliament mentioned in subclause 160(4).

8.90 Subclause 160(4) would set out the relevant persons to whom the Commissioner may refer the material. This would be:

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if the Commonwealth agency is a parliamentary office (paragraph (a)):

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for a parliamentarian who is a senator-the President of the Senate; or

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for a parliamentarian who is a member of the House of Representatives-the Speaker of the House of Representatives; or

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if the Commonwealth agency is a Department of the Parliament established under the Parliamentary Service Act 1999 (paragraph (b)):

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for the Department of the Senate-the President of the Senate;

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for the Department of the House of Representatives-the Speaker of the House of Representatives; or

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otherwise-both the President of the Senate and the Speaker of the House of Representatives; or

•

if the Commonwealth agency is established or continued in existence by an Act and paragraph (b) does not apply-the Minister administering that Act (paragraph (c)); or

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if the Commonwealth agency is a Commonwealth entity and neither paragraph (b) nor paragraph (c) applies-the Minister having general responsibility for the activities of the entity (paragraph (d)).

8.91 Where the Commissioner has referred material to a person under this clause, the Commissioner may also send a copy of that material to:

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

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

8.92 The effect of this clause is to allow the Commissioner to bring unactioned recommendations, or unsatisfactorily implemented recommendations, to the attention of other persons who have responsibility or oversight for an agency. This allows those persons to inform or involve themselves, as they see fit, in the proper implementation of the Commissioner's recommendations and, ultimately, the proper management of corruption risks and vulnerabilities.

8.93 The ability for the Commissioner to also send a copy of material to both Houses of Parliament would strengthen accountability for and oversight of any inadequate action, or lack of action, taken by Commonwealth agencies in response to recommendations.

8.94 This clause would require the exclusion of certain material from the copy of the material given to the Presiding Officers, noting this material would be presented to each House of Parliament and therefore be made public. The Commissioner must exclude section 235 certified information (see clause 235), and information that the Commissioner is satisfied is sensitive information (as defined under clause 227).

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

8.96 In practice, the Commissioner could consult with the heads of relevant agencies or entities for the purpose of the consultation requirements under clauses 151 and 160 simultaneously, where no new information that may constitute sensitive information is raised in the material provided under this clause. This would allow the Commissioner to consult with the head of an agency to establish whether information is sensitive information for the purpose of its exclusion from an investigation report under clause 151 as well as its exclusion from the material provided to the Presiding Officers under clause 160.