Senate

Revised Explanatory Memorandum

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

PART 9 PUBLIC INQUIRIES

9.1 This Part would provide the Commissioner with a discretion to conduct public inquiries into corruption risks, vulnerabilities and measures to prevent corruption in Commonwealth agencies. The Commissioner would be able to:

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commence a public inquiry on their own initiative; and

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report on and make recommendations in relation to these inquiries.

9.2 Public inquiries would have a broader focus than a corruption investigation under Part 7 of the NACC Bill, which would target specific serious or systemic corruption issues concerning the conduct of an individual. In contrast, a public inquiry could not be conducted for the purposes of investigating or inquiring into a particular corruption issue.

9.3 This Part would authorise the Commissioner to use powers available under Part 7 for the purposes of conducting a public inquiry, subject to certain limitations. The limitations would prevent the Commissioner from exercising powers under Division 3, Subdivision E of Part 7 (delivery of travel documents and arrest of witnesses), Division 7 of Part 7 (search powers) and powers in relation to post-charge and post-confiscation applications.

Clause 161-Commissioner may conduct public inquiries

9.4 This clause would provide the Commissioner with a discretion to conduct a public inquiry into:

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corruption risks and vulnerabilities in Commonwealth agencies; and

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measures to prevent corruption in Commonwealth agencies.

9.5 The Commissioner could commence such an inquiry on their own initiative.

9.6 Conducting public inquiries would be a function of the Commissioner under clause 17 and would ensure the Commissioner can consider broader systemic corruption issues in the Commonwealth public sector, assess the effectiveness of corruption prevention arrangements, and make recommendations about enhancing these arrangements.

9.7 For example, the Commissioner would be able to undertake a public inquiry into the processes agencies have in place to monitor and control known corruption vulnerabilities in Commonwealth agencies, such as:

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the unauthorised access, modification and disclosure of sensitive information;

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grooming of public officials by organised crime and commercial entities; and

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the misuse of public positions or Commonwealth property to gain a benefit.

9.8 Following the conclusion of a public inquiry into corruption risks and vulnerabilities, the Commissioner would be able to make recommendations to agencies on actions they could take to improve corruption prevention in these areas. For example, regular auditing of systems or databases to protect the misuse of information, training and support to public officials to mitigate the risk of grooming, and enhancing pre-employment screening to mitigate integrity and security risks in employing public officials.

9.9 This clause would make it clear that a public inquiry is distinct from a corruption investigation conducted under Part 7 of the NACC Bill, and that the Commissioner would be unable to use this inquiry function to inquire into or investigate a particular corruption issue.

9.10 This clause would allow the Commissioner to conduct a public inquiry in a manner they see fit, allowing them the flexibility to adopt an approach that is appropriately targeted to the scope and scale of the inquiry.

Clause 162-Commissioner may invite submissions

9.11 This clause would provide the Commissioner with the ability to invite submissions from particular individuals or organisations, or the public on matters that are the subject of a public inquiry. For example, the Commissioner may wish to invite experts and academics to make submissions to a public inquiry to better understand certain corruption risks and vulnerabilities.

Clause 163-Commissioner's powers

9.12 This clause would provide that Part 7 (investigating corruption issues) applies to a public inquiry in the same way as it applies to the investigation of a corruption issue.

9.13 However, it is not appropriate or necessary for the Commissioner to have access to all of the coercive powers available under Part 7 for the purposes of public inquiries. The intrusive nature of some of these powers means that they are appropriate in the context of investigating specific corruption issues involving corrupt conduct that could be serious or systemic, but not in the context of a public inquiry into broader corruption risks and vulnerabilities.

9.14 This clause would authorise the Commissioner to use a number of powers under Part 7 for the purposes of conducting a public inquiry, including to:

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

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serve a notice to produce on a head of a Commonwealth agency to produce information, or a document or thing, to the Commissioner;

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hold public or private hearings;

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summon any person to attend a hearing to give evidence or information, or produce a document or thing;

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require a person attending a hearing to give information, or produce a document or thing;

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apply to a court to have a person dealt with in relation to contempt of the NACC; and

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make directions about the use or disclosure of material produced or given as evidence.

9.15 For the purpose of conducting public inquiries, the Commissioner would be unable to exercise the following powers available under Part 7:

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powers to apply to a court for the delivery of travel documents or a warrant to arrest a witness (see Subdivision E of Division 3 of Part 7);

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powers to enter and search premises or persons with or without a warrant (see Division 7 of Part 7);

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the power to issue a notice to produce under clause 58 to anyone other than a Commonwealth agency head;

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the power to take any action in relation to a post-charge or post-confiscation application event, for example to issue a post-charge notice to produce or conduct a post-charge summons.

9.16 The limited powers available to the Commissioner under this Part are appropriate to ensure the NACC is able to obtain information about corruption risks and vulnerabilities to enable it to make informed findings and recommendations, without inappropriately impacting on the rights and liberties of individuals.

Clause 164-Reporting on public inquiries

9.17 This clause would require the Commissioner to prepare a report (an inquiry report) after completing a public inquiry. Without limiting what the report may include, the inquiry report would be required to include:

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the Commissioner's findings or opinions on corruption risks, vulnerabilities and the effectiveness of corruption prevention arrangements in Commonwealth agencies;

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a summary of the evidence and other materials on which the Commissioner's findings or opinions are based;

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any recommendations concerning the need for, or desirability of, legislative or administrative reform to prevent corruption; and

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if recommendations are made, the reasons for those recommendations.

9.18 However, the Commissioner would not be able to include in an inquiry report findings or opinions about specific instances of corrupt conduct or a particular corruption issue. This is appropriate given that the purpose of a public inquiry is not to investigate allegations of corrupt conduct by an individual. If the NACC uncovers information about possible corruption issues in the course of conducting a public inquiry, it would be open to it to commence a corruption investigation under clause 41 if the corruption issue could involve corrupt conduct that is serious or systemic.

9.19 The report also could not include information specified in a certificate issued by the Attorney-General under clause 235. This ensures that information cannot be made public in an inquiry report if the Attorney-General has certified that its disclosure would be contrary to the public interest.

9.20 This clause would also provide that an inquiry report must not include information that the Commissioner is satisfied is sensitive information (as defined under clause 227). This ensures that information the disclosure of which could be harmful is not made public. For example, an inquiry report could not include information the disclosure of which could prejudice the security, defence or international relations of the Commonwealth or disclose the deliberations or decisions of Cabinet.

9.21 When determining whether to exclude sensitive information, the Commissioner would be required to consult with the head of each Commonwealth agency or State or Territory Government entity to which the information relates. This ensures that the views of relevant agencies, who will have deeper insight into the context and sensitivities associated with the disclosure of particular information, are available to the Commissioner when they are determining whether they are satisfied that particular information is sensitive information.

Clause 165-Protected information report

9.22 This clause would require the Commissioner to exclude clause 235 certified information or sensitive information from an inquiry report. In these cases, this clause would require the Commissioner prepare another report-a protected information report-that sets out the excluded information and the reasons for excluding the information from the inquiry report.

9.23 Under clause 167, this protected information report would be provided to the Minister, to ensure they have complete visibility of the outcome of the public inquiry, but not be made public. 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 to a section of the public (see clause 234).

Clause 166-Opportunity to respond must be given before including certain information in inquiry report

9.24 This clause would require the Commissioner to provide a reasonable opportunity to respond to critical findings, opinions or recommendations, whether express or implied, in relation to a Commonwealth agency, a State or Territory government entity or any other person. The opportunity to respond must be given to the head of the agency or entity, or other person concerned before the findings, opinions or recommendations are included in an inquiry report. To facilitate the opportunity to respond, the Commissioner must also provide the person with a statement setting out the Commissioner's finding, opinion or recommendation.

9.25 If the critical opinion, finding or recommendation relates to a Commonwealth agency or a State or Territory Government entity, only the head of that agency or entity, or a person authorised by the head may give a response to the Commissioner's statement.

9.26 If the adverse opinion, finding or recommendation relates to a person, only the person or their representative may provide a response.

Clause 167-Commissioner to give copies of reports to certain persons

9.27 This clause would require the Commissioner to give the inquiry report, and any protected information report prepared in relation to the public inquiry, to the Minister responsible for administering the NACC Bill. This provides the Minister with a complete picture of the public inquiry, including the information obtained and the findings and recommendations made. This enables the Minister to take action, in collaboration with other Ministers as required, to respond to any corruption risks or vulnerabilities identified in the report.

9.28 This clause would require the Commissioner to give a copy of an inquiry report concerning a Commonwealth agency to the agency's head and the Minister responsible for the relevant agency, or if the report relates to a Department of the Parliament, the relevant Presiding Officer. The Commissioner would have the discretion to provide a copy of a protected information report to the agency head and the Minister responsible for the relevant agency, or if the report relates to a Department of the Parliament, the relevant Presiding Officer.

9.29 This provides visibility to relevant agencies, and their responsible Ministers (or the Presiding Officer as relevant), about the findings and recommendations made in an inquiry report. This allows agencies to take appropriate steps to address any corruption risks and vulnerabilities and improve corruption prevention efforts.

9.30 It is appropriate for the Commissioner to have a discretion as to whether to provide a copy of a protected information report to these recipients, allowing the Commissioner to make case by case decisions depending on the nature and sensitivity of the information involved. If the Commissioner does provide a copy of a protected information report, the Commissioner would be required to exclude information covered by a certificate issued by the Attorney-General under clause 235 from the protected information report if the disclosure of the information would contravene the certificate.

9.31 The Commissioner would also be required to exclude information which the Commissioner is satisfied is sensitive information (as defined under clause 227) from a protected information report provided under this clause, where the Commissioner is satisfied it is desirable in the circumstances to exclude the information from the report. In deciding whether to exclude such information from a protected information report, the Commissioner would seek to achieve an appropriate balance between ensuring complete visibility of the information informing an inquiry report and the need to protect sensitive information to avoid harm flowing from its disclosure.

9.32 This would ensure information regarding the outcome of a public inquiry can be shared when it is appropriate under the circumstances.

Clause 168-Tabling of inquiry report in Parliament

9.33 This clause would require the Minister to table an inquiry report in each House of the Parliament if public submissions were invited on matters that were the subject of the inquiry, or if one or more public hearings were held in the course of the inquiry.

9.34 If an inquiry report is required to be tabled under this clause, the inquiry report would be required to be tabled within 15 sitting days of that House after the Minister receives the report.

9.35 This would ensure there is a permanent, public record of inquiry reports where the matters considered in the inquiry 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.

Clause 169-Publishing inquiry report in whole or in part

9.36 This clause would authorise the Commissioner to publish the whole or part of an inquiry report. The Commissioner would be able to publish all or part of an inquiry report if:

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the Minister has been provided with the report under subclause 167(1), and

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the Commissioner is satisfied that publishing the report is in the public interest.

9.37 This clause would provide that the Commissioner's ability to publish all or part of an inquiry report is subject to the procedural fairness requirements set out in clause 170. This means that the Commissioner must give the head of a relevant Commonwealth agency, entity or other person an opportunity to respond to any critical findings, opinions or recommendations included in the report before the report is published.

Clause 170-Opportunity to respond must be given before publishing an inquiry report containing critical opinions etc.

9.38 This clause would require the Commissioner to provide a further reasonable opportunity to respond to an inquiry report that contains critical findings, opinions or recommendations, whether express or implied, in relation to a Commonwealth agency, a State or Territory Government entity or any other person before the inquiry report is published.

9.39 This clause would recognise that inquiry reports may be published some time after they are originally prepared and provided to a Minister or Presiding Officer, and after the first opportunity to respond under clause 166 has been provided. In such cases, this clause would ensure that procedural fairness is afforded to affected Commonwealth agencies, State or Territory government entities or other persons by permitting a further opportunity to respond and provide updated information before the inquiry report containing critical findings is published.

9.40 The requirement to provide a further opportunity to respond under this clause only applies where the inquiry report is published, whether whole or in part, under clause 169. It does not apply where the inquiry report has been tabled in Parliament.

9.41 Equally, the requirement would not apply if the Commissioner publishes whole or part of the inquiry report within 3 months of the report being given to the Minister under clause 167. This recognises that the opportunity to respond under clause 166 would be sufficient where there is no substantial delay between that initial opportunity and the publishing of the inquiry report. A period of 3 months reflects the period within which the Minister would generally table inquiry reports, as required by clause 168 or at their discretion.

9.42 The opportunity to respond must be given to the head of the agency, entity or other person concerned before the findings, opinions or recommendations are included in an inquiry report. To facilitate the opportunity to respond, the Commissioner must also provide the person with a statement setting out the Commissioner's opinion, finding or recommendation.

9.43 If the critical opinion, finding or recommendation relates to a Commonwealth agency or a State or Territory Government entity, only the head of that agency or entity, or a person authorised by the head, may give a response to the Commissioner's statement.

9.44 If the critical opinion, finding or recommendation relates to a person, only the person or their representative may provide a response.

Clause 171-Follow-up action on inquiry report

9.45 This clause would authorise the Commissioner to require the head of a Commonwealth agency to provide details of any action they have taken or propose to take with respect to a recommendation set out in a relevant inquiry report. The Commissioner would be authorised to request that such details be provided by an agency head within a specified timeframe.

9.46 This clause would ensure that the Commissioner has the power to monitor the actions taken by Commonwealth agencies to address public inquiry recommendations for legislative or administrative reform. It would promote agency consideration of the Commissioner's recommendations and increase accountability for responding to identified corruption vulnerabilities. This clause is consistent with equivalent provisions in State and Territory integrity commission legislation.

9.47 An agency head would be required to comply with a request made by the Commissioner under this clause.

9.48 This clause would authorise the Commissioner to refer a response received by an agency head to the relevant Minister or Presiding Officer if the Commissioner is not satisfied with their response.

9.49 In making a referral under this clause to the relevant Minister or Presiding Officer, the Commissioner may also include the Commissioner's recommendation, the reasons for that recommendation, and the Commissioner's reasons for not being satisfied with the response.

9.50 The Commissioner would also have the discretion to provide a copy of the relevant material contained in the referral to a Presiding Officer for presentation in the relevant House.

9.51 However, if the Commissioner refers material to a Presiding Officer for presentation in the relevant House, the Commissioner would be required to exclude clause 235 certified information and information that the Commissioner is satisfied is sensitive information from the material. The Commissioner would be required to consult with the head of the relevant Commonwealth agency or entity in determining whether information is sensitive information.