Senate

Revised Explanatory Memorandum

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

PART 10 OVERSIGHT OF THE NATIONAL ANTI-CORRUPTION COMMISSION

10.1 This Part would set out the oversight arrangements for the NACC.

10.2 It is crucial that the NACC operates, and is seen to operate, independently of Government by those within its jurisdiction, the Parliament, and the public. To undertake the Commissioner's key function of investigating corruption issues that could involve serious or systemic corrupt conduct, the Commissioner would necessarily be invested with broad powers.

10.3 The oversight arrangements set out in this Part would provide assurance to the Parliament and the public that the Commissioner is performing their functions fairly, effectively, appropriately and independently.

10.4 This Part would provide for two separate mechanisms to oversee the NACC:

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a Parliamentary Joint Committee on the National Anti-Corruption Commission (the Committee); and

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an Inspector of the National Anti-Corruption Commission (the Inspector).

The Committee

10.5 Firstly, the Committee would be responsible for approving the appointments of proposed Commissioners, Deputy Commissioners and Inspectors nominated by the Minister. This would ensure that appointments are subject to appropriate oversight, and the recommended candidates for these important roles have the confidence of the Parliament.

10.6 Secondly, the Committee would ensure the Commissioner, Deputy Commissioners and Inspector are accountable to Parliament by:

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monitoring and reviewing the Commissioner and Inspector's performance of their functions, and reporting to Parliament on any matter connected with this role, with any comments it sees fit;

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examining investigation reports and annual reports prepared by the Commissioner and Inspector, and reporting to Parliament on any matter arising out of this examination; and

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examining trends and changes in corruption among the persons regulated by the NACC Bill, and reporting to Parliament on any changes to the NACC or Inspector's functions, powers, procedures, staffing or structure the Committee considers appropriate.

10.7 Thirdly, the Committee would review the NACC's budget and finances and report to Parliament on the sufficiency of the NACC's resourcing to effectively perform its functions. This would ensure a regular mechanism for external review of the sufficiency of the NACC's budget and staffing levels, ensuring the government and Parliament have clear advice on the sufficiency of the NACC's budget over time. It would also be an additional safeguard to hold future governments accountable for budget decisions regarding the NACC.

The Inspector

10.8 This Part would also establish the Inspector. The Inspector would be a standing oversight mechanism dedicated to investigating corruption issues that arise in relation to the NACC itself, and investigating complaints about the conduct of the NACC or its staff.

10.9 The oversight mechanisms established under this Part would operate in addition to the Commonwealth Ombudsman's oversight of the NACC, including the NACC's exercise of covert powers. The Consequential Bill would provide for the Ombudsman to oversee the NACC's use of the following powers and mechanisms:

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controlled operations under Part IAB of the Crimes Act 1914;

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surveillance devices and computer access powers under the SD Act; and

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telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the TIA Act;

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the NACC's access to the industry assistance framework under Part 15 of the Telecommunications Act 1997 to obtain reasonable assistance from communications providers to support the NACC's powers.

10.10 Further information on covert powers and the Commonwealth Ombudsman's oversight is at paragraphs 14.45 to 14.54, 14.182 to 14.199, and 14.208 to 14.241.

Division 1-Parliamentary Joint Committee on the National Anti-Corruption Commission

10.11 This Division would provide for the establishment of the Committee, and outline its functions. The Committee would oversee the Commissioner, the operation of the NACC and the Inspector, and ensure they are accountable to the Parliament. The Committee would also be responsible for confirming Commissioners, Deputy Commissioners, and Inspectors the Minister nominates for appointment.

10.12 To support its oversight role, the Committee's functions would include reviewing, examining and inquiring into the performance of the functions of the Commissioner and the Inspector.

Clause 172-Parliamentary Joint Committee on the National Anti-Corruption Commission

10.13 This clause would provide for the establishment of the Committee as soon as practicable after the first session of each Parliament. The Committee would be a joint Committee, appointed according to the practice of the Parliament, with multi-partisan representation.

10.14 The Committee would consist of 12 members: six Senators appointed by the Senate and six members of the House of Representatives. The six members to be appointed by each of the Senate and House of Representatives must consist of three members of the Government, two members of the Opposition, and one member of the Parliament who is a member of neither the Government nor the Opposition.

10.15 This would ensure that members of minor parties and independent members of Parliament would be eligible to serve on the Committee, allowing the Committee to take a multi-partisan approach to its work.

Clause 173 - Chair of the Committee

10.16 This clause would provide that there must be a Chair of the Committee, who must be a member of the Government elected by the members of the Committee from time to time. This is consistent with arrangements for other legislated joint committees, such as the Parliamentary Joint Committee on Intelligence and Security.

10.17 This clause would provide that a person holding office as Chair would no longer hold the office if they cease to be a member of the Committee or resign the office. The Chair of the Committee may resign the office by giving a signed notice of resignation to a meeting of the Committee. In such cases, a new Chair would need to be appointed.

10.18 At meetings of the Committee at which the Chair is present, the Chair would have a deliberative vote, and would have a casting vote if votes are equal. If the Chair was absent, it would be the case that either a casting vote would not be needed if there was an odd number of Committee members left, or a vote could be delayed until the Chair returned.

Clause 174-Eligibility for appointment as a Committee member

10.19 This clause would provide that a member of the Parliament would not be eligible for appointment as a member of the Committee if the member holds any of the following offices:

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a Minister;

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the President of the Senate;

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the Speaker of the House of Representatives;

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the Deputy-President and Chair of Committees of the Senate;

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the Deputy Speaker of the House of Representatives.

10.20 Consistent with parliamentary practice, Ministers are precluded from membership of the Committee because their presence could give rise to questions of conflict of interest or bias where the Committee may be inquiring into actions of government for which those Ministers may be collectively or individually responsible.

10.21 The Committee is expected to have a substantial workload given the broad scope of the matters under its oversight. Accordingly, the President of the Senate and Speaker of the House, along with their Deputies, are also not eligible for appointment to the Committee due to their existing commitments.

Clause 175-Terms of office of Committee members

10.22 This clause would provide that a member of Parliament would cease to be a member of the Committee if:

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the House of Representatives expires by the passing of time or is dissolved, in which case the Committee would be dissolved;

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the member becomes the holder of an office specified in paragraph 10.19;

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the member ceases to be a member of the relevant House of Parliament; or

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a member appointed by a House of Parliament resigns their position in writing to the Presiding Officer of that House.

10.23 Either House of the Parliament would be able to appoint one of its members to fill a vacancy among the members of the Committee appointed by that House.

Clause 176-Powers and proceedings of the Committee

10.24 This clause would provide that all matters relating to the powers and proceedings of the Committee are to be determined by resolution of both Houses of Parliament.

Clause 177-Functions of the Committee

10.25 This clause would set out the Committee's functions, as follows:

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consider proposed recommendations for the appointment of the Commissioner, a Deputy Commissioner and the Inspector, in accordance with clause 178;

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monitor and review the performance of functions by the Commissioner and the Inspector;

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report to both Houses of the Parliament, with such comments as it thinks fit, on any matter connected with the performance of the functions of the Commissioner or the Inspector;

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examine and report to the Parliament on any matter in, or arising out of:

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an investigation report (see clause 155) or a NACC investigation report (see clause 221) that is laid before the Houses of the Parliament;

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an annual report prepared by the Commissioner (see clause 271) or the Inspector (see clause 198);

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examine trends and changes in corruption among those who are subject to this Bill and report to both Houses of the Parliament on any change that the Committee thinks desirable to the following:

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the functions or powers of the Commissioner or the Inspector;

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the procedures followed by the Commissioner or the Inspector;

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the NACC's staffing or structure;

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the staffing arrangements for the Inspector;

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inquire into any question in connection with the Committee's functions that is referred to it by either House of the Parliament, and to report to that House on that question;

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review the NACC's budget and finances, and report to both Houses of the Parliament on the following matters:

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whether the NACC has sufficient finances and resources to effectively perform its functions;

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whether the NACC's budget should be increased to ensure that it will have sufficient finances and resources to effectively perform its functions;

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any other matter arising out of the review that the Committee considers relevant.

10.26 Under this clause the Committee would be able to request the Inspector's assistance with the Committee's review of the NACC's budget and finances.

10.27 Similar functions are conferred on comparable Parliamentary Joint Committees, for example the Parliamentary Joint Committee on Law Enforcement and the Parliamentary Joint Committee on the Australian Commissioner for Law Enforcement Integrity.

10.28 This clause would outline the functions which the Committee is not authorised to undertake. It would provide that the Committee would not be authorised to do any of the following:

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investigate a corruption issue or a NACC corruption issue;

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reconsider a decision or recommendation made by the Commissioner or the Inspector in relation to a corruption issue, a NACC corruption issue or a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC;

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review a decision made, or an operational activity carried out, in relation to a corruption investigation, a public inquiry, a NACC corruption investigation or a NACC complaint investigation that is still being conducted;

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review an operational activity undertaken or proposed to be undertaken by the NACC, the Inspector, a Commonwealth agency or a State or Territory government entity;

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review any of the following insofar as they are available to the NACC, the Inspector, a Commonwealth agency or a State or Territory government entity:

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sensitive operational information;

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operationally sensitive information (within the meaning of Schedule 1 to the Intelligence Services Act 2001);

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operational methods;

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operational assistance;

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review information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information;

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review an aspect of the activities of an intelligence agency that does not affect an Australian person;

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review the content of, or conclusions reached in, assessments or reports made by an intelligence agency, or review sources of information on which such assessments or reports are based;

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review anything done by the ONI in carrying out its function of evaluating matters relating to the national intelligence community (see section 9 of the Office of National Intelligence Act 2018).

10.29 'Operationally sensitive information' is defined in Schedule 1 to the Intelligence Services Act 2001 and covers sources of information available to, and particular operations that are, have been or are proposed to be undertaken by, specific intelligence agencies set out in that Act. 'Sensitive operational information' is intended to apply to operations and sources of information available to the NACC itself and other agencies within the NACC's jurisdiction not covered by Schedule 1 to the Intelligence Services Act 2001.

10.30 This clause would prevent the Committee from interfering with operational decisions made by the NACC or any other jurisdictional agency in the course of its investigations and inquiries, or raise the risk of compromising confidential sources or investigative techniques. These limitations are consistent with those that apply to the Parliamentary Joint Committee on Intelligence and Security, the Parliamentary Joint Committee on Law Enforcement, and the Parliamentary Joint Committee on the Australian Commissioner for Law Enforcement Integrity.

10.31 Despite this limitation on its functions, the Committee may nevertheless request access to certain sensitive information in the course of performing its other functions. To mitigate this risk, clauses 180 and 181 would set out requirements for the protection and security of information disclosed to the Committee, and restrict the Committee's access to certain classes of other information (see paragraph 10.41-10.49).

Clause 178-Committee may approve or reject recommendation for appointment

10.32 This clause would provide for the Committee to approve or reject the Minister's recommendation for the appointment of the Commissioner, a Deputy Commissioner and the Inspector.

10.33 The role of the Committee in considering proposed recommendations for appointments would ensure that the Commissioner, Deputy Commissioners and the Inspector would have the confidence of the Parliament. This is particularly important given the jurisdiction of the NACC will include Commonwealth parliamentarians.

10.34 If the Minister refers a proposed recommendation for an appointment of the Commissioner, a Deputy Commissioner or the Inspector, the Committee would be required to decide whether to approve or reject the recommendation:

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within 14 calendar days after the referral of the appointment; or

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if, within the first 14 calendar days after the referral, the Committee notifies the Minister that it requires additional time to consider the referral-44 calendar days after the referral.

10.35 The Committee's decision whether to approve or reject a proposed recommendation for an appointment would need to be made by a majority.

10.36 As soon as practicable after making the decision, the Committee would need to give notice in writing to the Minister and report to both Houses of the Parliament.

10.37 The Committee would be taken to have approved a proposed recommendation for an appointment if the Committee had not given notice within the required timeframe. This would ensure the Committee could not unnecessarily delay the appointment of candidates to these roles, which could affect the NACC's operations.

10.38 The Committee would not be required to approve the appointment of the NACC CEO. This reflects the function of the CEO would be to manage the affairs of the NACC and ensure the NACC performs its functions. It is the Commissioner and the Deputy Commissioners who would be responsible for the exercise of investigative powers under the NACC Bill and other legislation.

Clause 179-Staff of the Committee must be cleared for security purposes

10.39 This clause would provide that staff of the Committee would be required to possess a security clearance that is appropriate, having regard to the information the staff member will deal with in that capacity.

10.40 The NACC's jurisdiction would cover intelligence agencies and the NACC will deal with sensitive and highly classified information. It is essential that such information is appropriately protected and not handled by Committee staff who do not have the requisite security clearance. This is consistent with arrangements for the Parliamentary Joint Committee on Intelligence and Security, which also oversees intelligence agencies, under clause 21 of Schedule 1 to the Intelligence Services Act 2001.

Clause 180-Protection of information and documents

10.41 This clause would require the Committee to have arrangements in place for the protection and security of all information held, and all records made, by the Committee while such information and records remained in the Committee's possession.

10.42 The Committee would need to ensure that any documents having a security classification of 'SECRET' or 'TOP SECRET' that had been provided to the Committee by a person are returned to the person as soon as possible after the members had examined the documents.

10.43 The NACC's jurisdiction would cover intelligence agencies and the NACC will deal with sensitive and highly classified information. It is essential that such information is appropriately stored and handled. These arrangements are consistent with those that apply to the Parliamentary Joint Committee on Intelligence and Security under clause 22 of Schedule 1 to the Intelligence Services Act 2001.

Clause 181-Committee's access to certain information

10.44 This clause would provide that a person who would otherwise be required to provide information or a document to the Committee would be prohibited from doing so if the information or document was subject to a clause 235 or clause 236 certificate, and the disclosure would contravene the terms of the certificate.

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

10.46 Clause 236 certificates would permit the Attorney-General to prevent the disclosure of information to the Commissioner or the Inspector from the outset, where the Australian Government has given a legally binding undertaking to a foreign government about the use and disclosure of particular information.

10.47 Restricting the Committee's access to clause 235 and 236 certified information is consistent with the rationale for the certificate regime - namely, to protect the public interest in preventing the disclosure of certified information.

10.48 To issue either certificate, the Attorney-General would need to be satisfied, on reasonable grounds, that disclosure would be contrary to the public interest. The Attorney-General may not issue a certificate on grounds that are irrational, absurd or ridiculous, fanciful, imaginary or contrived, or merely on the grounds that disclosure would cause embarrassment or prejudice to a person's reputation (see paragraph 11.124).

10.49 The effect of this clause is to act as a declaration for the purposes of section 49 of the Constitution (see paragraphs 13.2 to 13.10). That section permits the Parliament to make laws declaring the powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House.

Division 2-The Inspector of the National Anti-Corruption Commission

10.50 This Division would establish the Inspector of the National Anti-Corruption Commission.

10.51 The Inspector would play a key role in the oversight of the NACC. The Inspector would be able to deal with NACC corruption issues, issues concerning potential corrupt conduct occurring within the NACC, having an adverse effect on the NACC or that may otherwise be inappropriate for the Commissioner to deal with. The Inspector would be able to investigate a NACC corruption issue if the Inspector was of the opinion that the issue could involve corrupt conduct that is serious or systemic.

10.52 The Inspector would investigate external complaints about the conduct and activities of the NACC or its staff members, where this fell short of the standard of corrupt conduct.

10.53 Further, the Inspector would be able to review the NACC's conduct in exercising its powers to summon persons to give evidence at hearings and to obtain warrants to arrest witnesses who have failed or are likely to fail to appear in response to a summons. The Inspector would be able to make recommendations to the NACC on the outcomes of those reviews.

10.54 This Division would provide for:

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the Inspector's functions;

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the administrative arrangements of the Inspector including their appointment and the circumstances in which that appointment could be terminated;

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arrangements for persons assisting the Inspector to perform their functions;

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the Inspector's immunity from liability to civil proceedings where they have acted in accordance with their functions and powers; and

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the Inspector's annual reporting arrangements.

10.55 Division 3 would set out when and how the Inspector may deal with a corruption issue occurring within or affecting the NACC (known as a NACC corruption issue).

10.56 Division 4 would set out the Inspector's powers to investigate NACC corruption issues and complaints against the NACC (known as a NACC complaint investigation) and conduct reviews into the conduct of the NACC in issuing summonses and applying for and executing arrest warrants, and would provide for the Inspector to produce reports on these investigations.

Subdivision A-Functions and powers of the Inspector

Clause 182-The Inspector

10.57 This clause would provide that there is to be an Inspector of the NACC. The Inspector would be an independent officer of the Parliament in recognition of the role of the Inspector in complementing the oversight of the NACC provided by the Committee, and the Inspector's independence from the Commissioner and the government of the day (see clause 183).

10.58 There are no implied functions, powers, rights, immunities or obligations arising from the Inspector being an officer of the Parliament. Instead, the Inspector's functions, powers, rights, immunities or obligations would be set out in the NACC Bill, or in any other Act that conferred them on the Inspector.

Clause 183-Independence

10.59 This clause would provide for the Inspector's independence. The Inspector would have complete discretion in performing their functions and carrying out their duties. The Inspector would not be subject to direction from anyone in doing so, including the government of the day, or the Commissioner.

Clause 184-Functions of the Inspector

10.60 This clause would set out the functions of the Inspector. The Inspector would have the following functions:

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to detect corrupt conduct within, and relating to, the NACC;

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to undertake preliminary investigations into NACC corruption issues or possible NACC corruption issues;

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to investigate NACC corruption investigations that could involve corrupt conduct that is serious or systemic;

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to refer NACC corruption issues to the NACC, Commonwealth agencies and State or Territory government entities;

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to investigate complaints made in relation to the conduct or activities of:

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the NACC; or

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a staff member of the NACC;

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to review the conduct of, and determine the extent of compliance with the law, by the NACC in issuing summonses and in applying for and executing warrants for arrest;

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to make recommendations to the NACC on the outcome of such reviews;

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to provide relevant information and documents to the Committee;

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to receive and deal with PIDs;

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to report, and make recommendations, to both Houses of the Parliament on the results of performing any of its functions;

10.61 These functions would enable the Inspector to effectively investigate or otherwise deal with NACC corruption issues (in accordance with Divisions 3 and 4), conduct NACC complaint investigations (in accordance with Division 4), and review the NACC's conduct in relation to issuing summonses and applying for and obtaining arrest warrants, and are consistent the Inspector's role as a key oversight mechanism.

10.62 The NACC Bill would not specify any requirements for referring complaints about the NACC to the Inspector. Neither would it prescribe any requirements for the Inspector to deal with complaints, or to deal with them in a particular way. This ensures the Inspector has appropriate flexibility to determine the best approach to dealing with any NACC complaints it receives, using the powers conferred by Division 4.

Subdivision B-Appointment of the Inspector

Clause 185-Appointment of the Inspector

10.63 This clause would provide for the appointment of the Inspector, including the appointment process, requisite qualifications, period of appointment, and basis of appointment.

Appointment

10.64 The arrangements for the Inspector's appointment would be consistent with those for appointing the Commissioner (see paragraphs 12.4 to 12.15). It is appropriate for the Inspector to be appointed in the same manner as the Commissioner as the Inspector would exercise many of the same powers as are available to the Commissioner in performing their oversight role. For this reason, it is appropriate for the Inspector's appointment to have the confidence of the Parliament, as demonstrated by the approval of the Committee, and for the appointment to be made by the Governor-General.

10.65 The Inspector would be appointed by the Governor-General by written instrument on the recommendation of the Minister, after approval of the appointment by the Committee.

10.66 Before the Minister makes a recommendation to the Governor-General regarding the Inspector's appointment, the Minister must have referred the proposed recommendation to the Committee under clause 178. Approval of the appointment may be obtained either by the Committee notifying the Minister that it has decided to approve the proposed recommendation, or by being taken to have approved the proposed recommendation.

10.67 Where the Minister refers a proposed recommendation for the appointment of the Inspector, the Committee would be required to decide whether to approve or reject the recommendation:

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within 14 calendar days after the referral of the appointment; or

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if, within the first 14 calendar days after the referral, the Committee notifies the Minister that it requires additional time to consider the referral-44 calendar days after the referral.

10.68 The Committee's decision whether to approve or reject a proposed recommendation for an appointment would need to be made by a majority. As soon as practicable after making the decision, the Committee would need to give notice in writing to the Minister and report to both Houses of the Parliament.

10.69 The Committee would be taken to have approved a proposed recommendation for an appointment if the Committee does not give notice within the required timeframe.

10.70 Requiring the appointment to be approved by the Committee would ensure that the appointment is subject to appropriate oversight, and the recommended Inspector has the confidence of the Parliament.

Qualifications for the Inspector

10.71 This clause would set out the minimum requirements for a person to be appointed as the Inspector. The Inspector would be required to have the same minimum qualifications as the Commissioner. This would ensure that the Inspector has the appropriate skills to oversee the use of powers by the NACC.

10.72 To be eligible for appointment as the Inspector, a person must be:

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a retired judge of a federal court or a court of a State or Territory; or

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enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory, and has been enrolled for at least 5 years.

10.73 The role of Inspector is a significant statutory appointment. To effectively discharge the functions of the Inspector, a person would be required to have specialist skills and expertise in applying statutory frameworks. These skills will be possessed by a former judge of a federal, State or Territory court. Experienced legal practitioners will also have these skills, and the requirement for them to have enrolled as a legal practitioner for at least 5 years is consistent with the qualification requirements for Justices of the High Court as set out in section 7 of the High Court of Australia Act 1979.

10.74 In addition, a person would not be eligible for appointment as the Inspector if they had previously been appointed as the Commissioner. This would reduce the risk of a conflict of interest arising out of a previous role as Commissioner, and would ensure the Inspector's independence from the NACC when carrying out their functions.

Period and basis for appointment

10.75 The Inspector would hold office for a single fixed term specified in the instrument of appointment. The period must not exceed ten years.

10.76 A ten-year term is appropriate given the Inspector's role in overseeing the NACC. The longer maximum term for the Inspector would provide consistent oversight across the appointment of multiple Commissioners (whose term would be limited to five years).

10.77 The Inspector would not be able to be reappointed. This ensures the Inspector's independence, as they would not be concerned about their reappointment when conducting investigations, with no incentive to consider the regard in which they are held by the government of the day.

10.78 The Inspector could be appointed on either a full-time or a part-time basis. This reflects the fact that there may be inconsistency in the Inspector's workload, with more or fewer investigations on foot at any one time. Depending on the circumstances, the role could be effectively performed in either a full-time or a part-time capacity.

Clause 186-Acting appointments

10.79 This clause would enable the Minister to appoint a person as the Inspector on an acting basis, by written instrument, in certain circumstances.

10.80 An acting appointment could be made:

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during a vacancy in the office of the Inspector (whether or not an appointment has previously been made to the office); or

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during any period, or during all periods, when the Inspector is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

10.81 Over the course of a ten-year appointment, it will be essential for the Inspector to have regular leave for rest and recreation, as well as personal leave for any illness or injury. Given that appointments processes can be lengthy, and the approval of the Committee will also be needed for appointments to the position of the Inspector, it is also possible that the position could be vacant following the end of an Inspector's appointment. This clause would ensure that a suitable and appropriate person occupies the role of Inspector across all of these circumstances.

10.82 Sections 33AB and 33A of the Acts Interpretation Act 1901 provide further rules that apply to acting appointments. These rules relate to the validity of things done under appointments and provide for the terms, conditions and duration of acting appointments.

Qualification for acting appointments

10.83 A person would be required to have the requisite qualifications for an acting appointment. The qualification requirement for acting appointments reflect those for substantive appointments.

10.84 If a person is to act as the Inspector, they must meet the qualification requirements, as set out in paragraph 10.71, for the Inspector (that is, they must be a former judge or experienced legal practitioner).

Clause 187-Remuneration

10.85 This clause would set out the means for determining the remuneration and allowances for the Inspector.

10.86 The Inspector would be paid the remuneration that is determined by the Remuneration Tribunal. In the absence of a determination by the Tribunal, the Inspector would be paid the remuneration that is prescribed by the regulations.

10.87 It is appropriate for the remuneration of the Inspector to be determined by the Remuneration Tribunal as it is an independent statutory body that handles the remuneration of key Commonwealth offices. Given the significant responsibilities of the office of the Inspector, it is desirable for the remuneration to be determined by an experienced, independent authority. Such a determination would be a disallowable instrument under the Legislation Act 2003. This means that the determination would be required to be tabled in both Houses of Parliament, and either House may pass a resolution disallowing the determination within 15 sittings days of the determination being tabled.

10.88 The ability to prescribe the remuneration in the regulations allows flexibility to ensure the Inspector can be appropriately remunerated if there is any delay in the making or a determination by the Tribunal, or if a determination is disallowed by either House of Parliament.

10.89 The regulations would also be able to prescribe the allowances that the Inspector would be paid.

10.90 The scope of the regulation-making power conferred by this clause would be subject to the Remuneration Tribunal Act 1973. This means that the remuneration prescribed in the regulations could only be enforced where no determination by the Tribunal is in operation.

Clause 188-Leave of absence

10.91 This clause would set out the leave arrangements for the Inspector when appointed on a full-time or part-time basis.

10.92 If the Inspector is appointed on a full-time basis, they would have the recreation leave entitlements that are determined by the Remuneration Tribunal. It is appropriate for the recreation leave entitlements for the Inspector, when appointed on a full-time basis, to be determined by the Remuneration Tribunal as it is an independent statutory body that handles the remuneration and allowances of key Commonwealth offices. Given the significance of the responsibilities of the office of the Inspector, particularly when appointed on a full-time basis, it is desirable for the recreation leave entitlements to be determined by an experienced, independent authority.

10.93 The Minister would be able to grant the Inspector (when appointed on a full-time basis) leave of absence, other than recreation leave, on any terms and conditions that the Minister determines. This provides flexibility for the Minister to consider requests from the Inspector for other types of leave-for example discretionary leave to attend a funeral where it may not be desirable for the Inspector to use their recreation leave entitlements for this purpose.

10.94 If the Inspector is appointed on a part-time basis, the Minister would be able to grant a leave of absence to the Inspector on the terms and conditions that the Minister determines.

Clause 189-Other paid work

10.95 This clause would provide that the Inspector is not permitted to engage in paid work outside their office unless they receive approval from the Minister. This would minimise the likelihood of conflicts of interests arising, and ensure their independence and performance are not compromised by outside commitments.

Clause 190-Disclosure of interests to the Minister

10.96 The Inspector would be required to disclose conflicts of interest to the Minister. This refers to a situation where the Inspector has, or acquires, an interest that may conflict with the performance of their functions. The Inspector must give the Minister written notice of all interests as and when they arise, whether these interests are pecuniary or otherwise.

Clause 191-Other terms and conditions

10.97 This clause would allow the Minister to determine additional terms and conditions of the Inspector's appointment, to the extent those terms and conditions are not otherwise covered by the NACC Bill. This could include matters such as the location where the duties of the office are to be performed.

Clause 192-Resignation

10.98 This clause would permit the Inspector to resign in writing to the Governor-General. Such a resignation would take effect on the day it is received by the Governor-General, or on a later date specified in the resignation.

Clause 193-Termination of appointment

10.99 This clause would set out the circumstances in which the Inspector's appointment could be terminated by the Governor-General.

10.100 The Governor-General would have the discretion to terminate the appointment of the Inspector on certain grounds where each House of the Parliament, in the same session of the Parliament, presents an address to the Governor-General praying for the removal of the Inspector. Such a removal could be on the grounds of misbehaviour or that the Inspector is unable to perform their duties because of physical or mental incapacity.

10.101 This clause would ensure the independence of the Inspector by ensuring they cannot be removed from office by the government of the day without the agreement of the Parliament. The grounds for removal are extremely limited, ensuring that the Inspector can undertake corruption investigations without fear of removal from office due to potentially making findings of corruption involving the NACC and current government officials, or persons with close connections to the government of the day.

10.102 Requiring an address from both Houses of the Parliament before the termination of the Inspector is consistent with the arrangements for the removal of federal judges under the Constitution.

10.103 The Governor-General would be required to terminate the appointment of the Inspector in circumstances where they become financially compromised. This would include circumstances where the Inspector:

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becomes bankrupt;

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applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;

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compounds with the Inspector's creditors; or

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makes an assignment of the Inspector's remuneration for the benefit of Inspector's creditors.

10.104 This provision would guard against the potential for the Inspector to become financially vulnerable to corruption. These circumstances would be sufficiently objective and serious so as to warrant termination of an appointment without discretion or parliamentary consideration. This is consistent with arrangements for the Auditor-General under the Auditor-General Act 1997.

Subdivision C-Persons assisting the Inspector

Clause 194-Persons assisting the Inspector

10.105 This clause would provide for persons to assist the Inspector in performing their functions. The services of the following persons would be able to be made available to the Inspector:

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APS employees in the Attorney-General's Department;

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officers and employees of agencies (within the meaning of the Public Service Act 1999);

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persons employed under the Intelligence Services Act 2001;

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Parliamentary Service employees (within the meaning of the Parliamentary Service Act 1999);

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members of the ADF;

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members of the AFP.

10.106 Persons performing services for the Inspector would be subject to directions of the Inspector.

10.107 The Inspector may also engage a consultant, on behalf of the Commonwealth, to assist in the performance of their functions. For example, the Inspector could engage an IT specialist to assist with a NACC corruption investigation. The consultants would be engaged on the terms and conditions the Inspector determines in writing. Ordinarily, this would be the written agreement providing for the engagement of the consultant.

10.108 The Inspector may, in relation to a particular NACC corruption investigation, appoint a legal practitioner to assist the Inspector.

10.109 This clause would provide the necessary flexibility for the Inspector to increase or decrease their capacity as required. For example, if the Inspector is conducting a large number of investigations, they may need to increase the number of persons assisting them at short notice. It also provides for the Inspector to recruit for specialised expertise.

10.110 Persons assisting the Inspector from within the public service, Intelligence Services Act 2001 framework, parliamentary service, AFP or ADF would be made available as secondees from their home organisation.

Clause 195-Meaning of person assisting the Inspector

10.111 This clause would provide that all persons referred to in clause 194 would be persons assisting the Inspector. This would be the case regardless of whether they were engaged as a consultant from the private sector, appointed as legal counsel or otherwise made available to the Inspector from within the public service, Intelligence Services Act 2001 framework, parliamentary service, ADF or AFP.

Subdivision D-Immunity from civil proceedings for the Inspector and persons assisting

10.112 This Subdivision would provide certain immunities for the Inspector and persons assisting the Inspector. It is important that appropriate arrangements are in place to protect the Inspector and persons assisting the Inspector in the performance of their duties.

10.113 Further, the Inspector and persons assisting the Inspector would be taken not to engage in corrupt conduct while performing those roles. This is important to ensure that the NACC could not frustrate the Inspector's oversight of the NACC by investigating the Inspector or persons assisting the Inspector (see paragraph 2.27).

Clause 196-Immunity from civil proceedings for the Inspector and persons assisting

10.114 This clause would outline the immunity from civil proceedings afforded to the Inspector and persons assisting the Inspector.

10.115 The Inspector would not be liable to civil proceedings in relation to acts or omissions done in good faith, in the performance or exercise, or purported performance or exercise, of their functions, powers or duties under the NACC Bill.

10.116 Persons assisting the Inspector would also be immune from liability to civil proceedings in the same way as the Inspector. This immunity would also extend to persons from whom the Inspector has requested assistance, in writing. This means that if a person had not been formally engaged as a consultant, appointed as a legal counsel, or otherwise made available to the Inspector, but had received a written request for assistance, they would be immune from liability in the same way as the Inspector or a person assisting the Inspector.

10.117 This clause would ensure that the Inspector and persons assisting the Inspector are able to perform their functions and duties under the NACC Bill without fear of personal liability for any actions they perform in good faith. Without immunity from civil proceedings, the Inspector or a person assisting may be exposed to civil liability in the performance of their duties-and may therefore improperly and excessively limit or curtail their conduct to protect their personal interests. For example, the Inspector may be exposed in circumstances where a staff member of the NACC wishes to bring legal action to seek compensation for damage to their reputation as a result of allegedly defamatory statements contained in report finding the staff member of the NACC has engaged in corrupt conduct, or maladministration that enabled corrupt conduct to occur. Such an outcome would be likely to create an actual or perceived risk that the Inspector may improperly constrain their findings to avoid any risk to their personal interests. By providing an immunity from civil liability for acts or omissions done in good faith in the performance or exercise, or purported performance or exercise, of their functions, powers or duties under the NACC Bill, this clause would reduce the risk that the Inspector or persons assisting the Inspector would adopt a less rigorous approach to the performance of their functions to protect their personal interests at the expense of the public interest.

10.118 The immunities would not apply to conduct engaged in other than in good faith. The mere purported performance or exercise of functions, powers or duties requires more than the absence of dishonesty or malice by the relevant person. Rather, there must be a genuine attempt to perform the function correctly, having regard to the caution and diligence that is expected of an honest person of ordinary prudence.

10.119 The immunities would not prevent an affected person from bringing an action to seek a remedy where the Inspector or persons assisting acted in good faith. The immunities are conferred on the individuals, not on the Commonwealth. It would be open to an affected person to seek a remedy from the Commonwealth, but not from the Inspector or a person assisting where they have acted in good faith.

Clause 197-Immunities from certain State and Territory Laws

10.120 This clause would outline the immunities from certain State and Territory laws available to the Inspector and persons assisting the Inspector. The Inspector and persons assisting the Inspector would not be required to:

•

obtain or have a licence or other official permission for doing any act or thing in the exercise of their powers or performance of their duties as the Inspector; or

•

to register any vehicle, vessel, animal or article belonging to the Commonwealth.

10.121 This clause is intended to prevent the Inspector and persons assisting the Inspector being restricted in the performance of their functions, powers or duties because of different State and Territory regulatory requirements.

Subdivision E-Annual report by Inspector

10.122 This Division would outline the requirements for annual reporting by the Inspector. Annual reports would be intended to provide general information on the operations of the Inspector, rather than detailed information on particular NACC corruption investigations or NACC complaint investigations. That information would be included in specific reports of those investigations.

Clause 198-Annual report

10.123 This clause would set out the requirements for the Inspector to produce an annual report at the end of each financial year.

10.124 As soon as practicable after the end of each financial year, the Inspector must prepare an annual report relating to the performance of the Inspector's functions during the financial year.

10.125 The Inspector must also cause a copy of the annual report to be tabled in each House of the Parliament. The copy of the annual report must be tabled as soon as practicable after the end of the financial year, and in any case, by the following 31 December of that year.

10.126 The Governor-General would be able to make regulations prescribing the required content of the Inspector's annual report. The Inspector's annual report must include such information as is prescribed by the regulations.

10.127 Allowing for the regulations to prescribe the matters to be included in the Inspector's annual report would provide greater flexibility for those matters to be determined over time once the NACC is operational. This could be adjusted over time, including in response to views from the Committee and the Parliament to on what it considers useful for the Inspector to report on annually.

10.128 As the Inspector would not be an accountable authority under the PGPA Act, they would not be required to adhere to the financial reporting requirements under that regime. However, the Inspector must include such information as prescribed by the regulations in their annual report.

10.129 The Inspector would be a secondary statutory structure rather than its own primary body for the purposes of the PGPA Act. The Inspector's activities require independence from the responsible Minister and are included within the NACC Bill to achieve higher levels of accountability and transparency for the NACC. This means that, from a financial perspective, the Inspector would operate within the Attorney-General's Department but would carry out its functions independently.

10.130 Annual reports would be intended to provide general information on the operations of the Inspector, and an overview of the exercise of its powers and functions. The contents of the Inspector's annual reports would also inform the Committee in its oversight role of the NACC and Inspector. One of the Committee's functions would include examining information set out in annual reports and reporting to the Parliament on matters arising out of this examination (see paragraph 10.25).

Clause 199-Exclusion of certain information from annual report

10.131 This clause would require certain material to be excluded from annual reports prepared under this Division, noting annual reports would be tabled in each House of the Parliament and therefore made public (see paragraph 10.125). The Inspector must exclude section 235 certified information, and information that the Inspector is satisfied is sensitive information (as defined under clause 227).

10.132 This clause would provide that section 235 certified information and sensitive information must in all cases be excluded from the Inspector's annual report. Further, the regulations made for the purposes of clause 198 would not be able to require the annual report to include section 235 certified information or sensitive information.

10.133 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 Inspector 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 Inspector's satisfaction that the information constitutes sensitive information.

10.134 The definition of sensitive information is set out in clause 227 and explained at paragraph 11.9. It would broadly include, for example:

•

information the disclosure of which would prejudice the security, defence or international relations of Australia;

•

information that may prejudice an investigation or fair trial;

•

information that would unreasonably disclose a person's personal affairs; and

•

other types of confidential information.

10.135 In determining whether the Inspector is satisfied that information constitutes sensitive information for the purpose of its exclusion from an investigation report, the Inspector must consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates. This recognises that the Inspector may not be best placed to identify whether information is sensitive in circumstances where the information relates to the functions or activities of another agency. Excluding sensitive information and clause 235 certified information from the Inspector's annual report is consistent with other reports by the Inspector or Commissioner that must be tabled or published.

Clause 200-Effect of findings or opinions about corrupt conduct

10.136 This clause would apply if an annual 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.

10.137 This clause would provide that the finding or opinion included in the annual report would not constitute a finding or opinion that a person is guilty of, has committed, is committing or will commit an offence. This recognises that the Inspector would not be able to make findings of criminal liability. Such a finding would be a matter for a court to determine.

Division 3-NACC corruption issues

10.138 This Division would establish the concept of a NACC corruption issue and would set out the arrangements for the Inspector to manage incoming referrals and other information by deciding how to deal with NACC corruption issues.

10.139 The Inspector would be able to deal with NACC corruption issues-being whether a person has engaged, is engaging, or will engage in corrupt conduct that occurs within the NACC, adversely affects the NACC or that may otherwise be inappropriate for the Commissioner to deal with.

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

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

Subdivision A-Meaning of NACC corruption issue

Clause 201-Meaning of NACC corruption issue

10.142 This clause would set out the definition of a NACC corruption issue as an issue of corrupt conduct that occurs within, is connected to, or adversely affects the NACC. This is consistent with the definition of a corruption issue set out in clause 9, but applies to conduct within the NACC itself. A NACC corruption issue is not a corruption issue and would only be dealt with under this Part. This is appropriate to ensure a NACC corruption issue does not form part of the Commissioner's jurisdiction absent a referral of the issue by the Inspector.

10.143 A NACC corruption issue would be an issue of whether a person, in certain circumstances:

•

has already, at some time in the past, engaged in corrupt conduct;

•

is currently engaging in corrupt conduct; or

•

will, at any time in the future, engage in corrupt conduct.

10.144 The definition would incorporate the definition of corrupt conduct in clause 8. Corrupt conduct is defined in subclause 8(1) as follows:

(a)

any conduct of any person (whether or not a public official) that adversely affects, or could adversely affect, either directly or indirectly:

(i)

the honest or impartial exercise of any public official's powers as a public official; or

(ii)

the honest or impartial performance of any public official's functions or duties as a public official;

(b)

any conduct of a public official that constitutes or involves a breach of public trust;

(c)

any conduct of a public official that constitutes, involves, or is engaged in for the purpose of abuse of the person's office as a public official;

(d)

any conduct of a public official, or former public official, that constitutes or involves the misuse of information or documents acquired in the person's capacity as a public official.

10.145 This is the same definition of corrupt conduct that defines the NACC's jurisdiction, and its operation is explained in further detail at paragraph 2.8. However, for an instance of corrupt conduct to give rise to a NACC corruption issue, the corrupt conduct must arise under the following circumstances:

•

the person who was, is or may be engaging in the corrupt conduct is a staff member of the NACC (as defined in clause 266); or

•

the corrupt conduct adversely affects, or could adversely affect, either directly or indirectly:

-

the honest or impartial exercise of the powers of a staff member of the NACC; or

-

the honest or impartial performance of the functions or duties of a staff member of the NACC; or

•

the person's corrupt conduct occurs in conspiracy with a staff member of the NACC.

10.146 The second dot point would, for example, apply to a person who is the subject of a corruption investigation by the Commissioner seeking to adversely affect the honest performance of that investigative function. Regardless of whether that adverse effect occurs, it would be more appropriate for that conduct to be dealt with by the Inspector in the first instance given the potential for the conduct to relate to a NACC corruption issue concerning the conduct of the NACC staff member who the individual sought to influence.

10.147 Corrupt conduct giving rise to a NACC corruption issue could arise before the individual concerned became a staff member of the NACC, or while they are or were a staff member of the NACC. This is intended to apply in situations where, for example, a person engages in corrupt conduct at one Commonwealth agency and later gains employment as a staff member of the NACC. Even though the relevant conduct would not necessarily affect the individual's conduct as a staff member of the NACC, it would not necessarily be appropriate for the Commissioner to deal with the conduct of a person who is now a staff member of the NACC.

10.148 The effect of this provision is that once a person becomes a staff member of the NACC, all prior corrupt conduct they engaged in before that time, and all future corrupt conduct they may engage in as a staff member of the NACC, gives rise to a NACC corruption issue and is within the Inspector's jurisdiction. The allocation of this conduct to the Inspector's jurisdiction would not change if the individual ceased to be a staff member of the NACC. This is appropriate to provide clarity and certainty as to which jurisdiction can deal with any corrupt conduct involving a person who is or has been a staff member of the NACC. It would prevent confusion arising from a matter being passed between the NACC's and Inspector's jurisdiction. However, it would be open to the Inspector to refer such a NACC corruption issue back to the NACC for internal investigation, or to refer it to another Commonwealth agency for their consideration.

10.149 If a former staff member of the NACC engages in corrupt conduct after ceasing to be a staff member of the NACC, that conduct would give rise to a corruption issue within the Commissioner's jurisdiction.

10.150 Consistent with the definition of a corruption issue in clause 9, for an allegation or other information to give rise to a NACC corruption issue, the allegation or information would need to give rise to, bring up, or put forward all of the essential elements of a NACC corruption issue, as defined by this clause.

10.151 If an allegation or information concerns conduct that would not satisfy the definition of corrupt conduct, the allegation would not give rise to a NACC corruption issue that is within the Inspector's power to deal with as a NACC corruption issue. This is the case even if an allegation raises an issue concerning some other form of misconduct.

10.152 However, if the Inspector received a complaint about conduct of the NACC or a staff member of the NACC that falls short of the definition of corrupt conduct, it would be open to the Inspector to investigate it with a NACC complaint investigation.

Subdivision B-Referring NACC corruption issues

10.153 This Subdivision would create voluntary and mandatory pathways for the referral of NACC corruption issues to the Inspector. A broad pathway for voluntary referrals and targeted requirements for mandatory referrals would ensure the Inspector receives sufficient information to identify potential corrupt conduct occurring within or adversely affecting the NACC and deal with NACC corruption issues.

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

10.155 The mandatory referral obligations would apply to the Commissioner and to staff members of the NACC with responsibilities under the PID Act. These persons would generally be required to refer NACC corruption issues involving a current or past staff member of the NACC if they become aware of such an issue.

Clause 202-Any person may refer NACC corruption issue

10.156 This clause would provide that any person may refer a NACC corruption issue or provide other information about a NACC corruption issue to the Inspector.

10.157 This clause would also provide for the Inspector to be able to request the referral or information to be given in a particular way (including in writing), or be accompanied or supported by further information.

Clause 203-Mandatory referral-Commissioner

10.158 This clause would require the Commissioner to refer a NACC corruption issue to the Inspector if the Commissioner became aware of a NACC corruption issue.

10.159 Unlike the equivalent mandatory referral provisions for Commonwealth agencies (see paragraphs 5.8 to 5.68), the threshold of serious or systemic corruption does not apply to the Commissioner's mandatory referral obligation. This means that if the Commissioner becomes aware of any NACC corruption issue, the Commissioner must refer it to the Inspector. This obligation applies regardless of whether the Commissioner considers the NACC corruption issue to be serious or systemic.

10.160 This would allow the Inspector to have oversight of any corrupt conduct occurring within or adversely affecting the NACC, regardless of its severity, and allows the Inspector to decide whether a NACC corruption issue meets the serious or systemic threshold to warrant an investigation. This is appropriate given the NACC's central role in detecting and investigating corruption issues within the Commonwealth public sector. Providing this broader visibility of potential NACC corruption issues to the Inspector will support the NACC to achieve the objects of the NACC Bill, as set out in clause 3, and have the confidence of the public and those falling within its jurisdiction.

Clause 204-Mandatory referral-Public Interest Disclosure Act disclosures

10.161 Once the NACC is established, the Commissioner, Deputy Commissioners, CEO, staff members of the NACC and other secondees, consultants and legal practitioners would fall within the definition of 'public official' under section 69 of the PID Act. This would mean that the PID Act framework would apply to the NACC.

10.162 Staff members of the NACC would be able to make disclosures under the PID Act, and have those disclosures dealt with in accordance with that Act. The NACC would be required to ensure relevant officers have or are given responsibility for handling PIDs raised within the NACC. This would include allocating internal disclosures (under Division 1 of Part 3 of the PID Ac), and investigating internal disclosures (under Division 2 of Part 3 of the PID Act).

10.163 This clause would require staff members of the NACC who become aware of a NACC corruption issue in the course of exercising powers or performing functions under Divisions 1 or 2 of Part 3 of the PID Act to refer that NACC corruption issue to the Inspector.

10.164 Unlike the equivalent mandatory referral provisions for authorised officers or investigating officers outside of the NACC, staff members of the NACC with PID Act responsibilities are not required to assess whether the NACC corruption issue is serious or systemic before referring it to the Inspector.

10.165 This means that a staff member of the NACC with PID Act responsibilities who becomes aware of any NACC corruption issue in the course of carrying out functions under the relevant PID Act provisions must refer that NACC corruption issue to the Inspector. This is consistent with the Commissioner's mandatory referral obligations set out at clause 203 (see paragraph 10.160), and would ensure the Inspector has oversight of all corrupt conduct, regardless of its severity.

10.166 Further information on the overlap between disclosable conduct under the PID Act and corrupt conduct under this Bill is at paragraph 5.38.

10.167 If the staff member of the NACC:

•

becomes aware of a NACC corruption issue because of an internal disclosure made under the PID Act; and

•

refers that NACC corruption issue to the Inspector;

they must notify the person who made the internal disclosure that they have done so, as soon as reasonably practicable.

10.168 This notification obligation would ensure the discloser is kept informed of the progress of their PID, including that it was referred to the Inspector. This would be consistent with a PID officer's obligations under the PID Act to keep disclosers informed of how their PID is being dealt with, for example, to notify a discloser of an allocation decision or an investigation decision under sections 44(2) and 50, respectively, of the PID Act.

Clause 205-Mandatory referral-secrecy provisions

10.169 This clause would operate to override any secrecy provision (other than an exempt secrecy provision) that may interfere with the Commissioner's or a NACC staff member's obligation to refer NACC corruption issues to the Inspector once they become aware of them.

10.170 This would mean that the Commissioner or staff member of the NACC must still refer a NACC corruption issue to the Inspector, even if a secrecy provision applies.

Clause 206-Mandatory referral-exceptions

10.171 This clause would provide that the Commissioner or staff member of the NACC is not required to refer a NACC corruption issue to the Inspector if they believe on reasonable grounds that the Inspector is already aware of the NACC corruption issue.

10.172 This would ensure that mandatory referral obligations do not result in duplication by requiring multiple people to refer the same issue to the Inspector. This could arise where, for example, the Commissioner became aware of corrupt conduct within the NACC shortly before a staff member of the NACC made an internal disclosure of the same conduct under the PID Act. If the Commissioner had already referred the NACC corruption issue to the Inspector, the staff member of the NACC to whom the internal disclosure was made would not need to refer the same issue to the Inspector if they were aware the Commissioner had already made the referral.

10.173 Unlike the equivalent exemptions for Commonwealth agencies and the IGIS (see paragraph 5.69), the Inspector would not have a power to determine other circumstances in which the Commissioner does not have to refer a NACC corruption issue to the Inspector. This reflects the level of seriousness with which NACC corruption issues would be treated and is consistent with the Commissioner's obligation to refer all NACC corruption issues to the Inspector.

Clause 207-Mandatory referral-timing and information requirements

10.174 This clause would set out requirements for making a mandatory referral and providing relevant information to the Inspector.

Timing requirements

10.175 This clause would provide that the Commissioner or staff member of the NACC who is required to refer a NACC corruption issue must do so as soon as reasonably practicable after becoming aware of the issue, or within such other time as is allowed by the Inspector.

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

Information requirements

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

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

10.179 These requirements are appropriate to enable the Inspector to receive all relevant information about a corruption issue that the NACC has in its possession. This means that the Inspector can proceed efficiently to make a decision about how to deal with the corruption issue, without needing to request basic information from the NACC.

Exceptions to information requirements

10.180 The information requirements under this clause would not apply if the Commissioner or staff member of the NACC has reasonable grounds to believe that the Inspector is already aware of the information, for example if the information has already been provided by another person within the NACC who has a mandatory referral obligation.

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

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

Clause 208-Effect of referral on continued actions

10.183 This clause would confirm that, in the absence of a stop action direction given by the Inspector under clause 43 (as modified by clause 211, see paragraphs 5.91 and 10.214), the NACC could continue to take action in relation to the conduct giving rise to the NACC corruption issue.

10.184 This clause would also provide that having referred a NACC corruption issue to the Inspector would not affect any other obligations the NACC may have in relation to the conduct giving rise to the NACC corruption issue under any other law, for example the PID Act.

10.185 The effect of a referral on continued actions under this clause operates in the same way as the equivalent provision for Commonwealth agencies and the IGIS referring corruption issues to the NACC (see paragraph 5.91).

Subdivision C-Dealing with NACC corruption issues

Clause 209-Inspector may deal with NACC corruption issues

10.186 This clause would provide that the Inspector may deal with a NACC corruption issue if it is formally referred or notified to the Inspector under Subdivision B, or that the Inspector otherwise becomes aware of through other means.

10.187 This clause would allow the Inspector to deal with NACC corruption issues falling within their jurisdiction. This means there must be an issue of whether a person is, has or may engage in corrupt conduct within the NACC, that adversely affects the NACC or that may otherwise be inappropriate for the Commissioner to deal with. Corrupt conduct would be defined in clause 8.

10.188 Subdivision B would provide for the Inspector to receive voluntary referrals of NACC corruption issues from any person as well as mandatory referrals of NACC corruption issues from the NACC. This clause would allow the Inspector to deal with NACC corruption issues that are referred in this way.

10.189 The Inspector would also be able to deal with NACC corruption issues that they become aware of in any other way, for example, through media reporting on the issue. This would allow the Inspector to act on their own initiative. The Inspector could deal with a NACC corruption issue on their own initiative in any circumstance.

Clause 210-How Inspector deals with NACC corruption issues

10.190 This clause would outline the ways in which the Inspector may decide to deal with a NACC corruption issue.

10.191 The arrangements for how the Inspector may deal with a NACC corruption issue would be broadly similar to how the Commissioner may deal with a corruption issue under Part 6.

10.192 As is the case for the Commissioner with corruption issues, there would be no requirement that the Inspector deal with every NACC corruption issue that is brought to their attention. There would be no circumstances in which the Inspector must decide not to deal with a NACC corruption issue. Instead, the Inspector may choose those issues that it is appropriate for the Inspector to deal with in some way.

10.193 This clause would provide a broad discretion for the Inspector to deal with NACC corruption issues in one or more of the following ways:

•

by investigating the NACC corruption issue themselves;

•

by investigating the NACC corruption issue jointly with a Commonwealth agency or a State or Territory government entity;

•

by referring, for investigation, the corruption issue to the NACC, if the Inspector is satisfied that it is appropriate for the NACC to investigate the issue-for example, the Inspector could refer less serious NACC corruption issues, such as low-level unauthorised access to information, to the NACC and require the NACC to conduct an internal investigation; or

•

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

10.194 This broad discretion to deal with NACC corruption issues in different ways is suitable to provide the Inspector with flexibility to consider the most appropriate approach to a NACC corruption issue. For example, the Inspector may have limited capacity to investigate all NACC corruption issues brought to its attention, and may have to prioritise according to the seriousness or urgency of particular matters. This discretion would ensure there are still suitable options to deal with other NACC corruption issues.

10.195 An investigation, including a joint investigation or an investigation referred to a Commonwealth agency would be defined as a NACC corruption investigation.

Serious or systemic threshold

10.196 As is the case for the Commissioner to investigate a corruption issue, the Inspector may only conduct, or continue to conduct, a NACC corruption investigation if the Inspector is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

10.197 The serious or systemic threshold applies to NACC corruption issues in the same way as it does to corruption issues. This includes the terms 'serious' and 'systemic' having their ordinary meaning, and the ongoing threshold applying at all stages of a NACC corruption investigation. Further information about this threshold is outlined at paragraphs 6.13 to 6.25.

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

Dealing with NACC corruption issues together

10.199 The Inspector may decide to investigate certain NACC corruption issues together. For example, the Inspector may receive multiple referrals in relation to conduct that may suggest systemic corruption within the NACC. This would allow the Inspector to investigate these issues together and establish whether there is systemic corruption. This would also allow the Inspector to investigate multiple instances of conduct by the same staff member of the NACC together.

Taking no action in relation to a NACC corruption issue

10.200 The Inspector may also decide to take no action in relation to a NACC corruption issue. This decision would be at the full discretion of the Inspector and is not subject to additional criteria or a mandatory process. This is intended to provide the Inspector with flexibility to manage their workload, maintain their focus on serious or systemic NACC corruption issues and promptly exclude unsubstantiated or unmeritorious referrals. This is consistent with equivalent provisions for the Commissioner in dealing with corruption issues (see clause 41 and paragraph 6.29).

10.201 The Inspector would not be under a duty to consider whether to deal with a NACC corruption issue, whether they are requested to do so by the person who referred the issue or by any other person, or in any other circumstances.

10.202 Regardless of whether the Inspector deals with a NACC corruption issue, the Inspector may refer an allegation or other information to another person or body that could more appropriately deal with the matter.

Clause 211-Other matters related to dealing with NACC corruption issues

10.203 This clause would set out:

•

the Inspector's powers to conduct preliminary investigations for a NACC corruption issue;

•

requirements for the NACC to stop taking action with respect to NACC corruption issues in some circumstances;

•

the Inspector's power to oversee NACC corruption investigations conducted by the NACC;

•

restrictions on the Inspector conducting investigations into NACC corruption issues where another Commonwealth integrity agency has previously concluded an investigation into the same conduct; and

•

the Inspector's power to make a public statement about a NACC corruption issue if they consider it is appropriate to avoid damage to a person's reputation.

10.204 This clause would provide that Part 6 (other than clauses 40 and 41) applies to the Inspector when dealing with a NACC corruption issue. Clauses 40 and 41 only apply to the Commissioner because they provide the Commissioner with discretion to deal with corruption issues, matters that are dealt with for the Inspector and NACC corruption issues in clauses 209 and 210.

10.205 This clause applies the remainder of Part 6-which outlines the actions that can be taken by the Commissioner in dealing with corruption issues-to the Inspector when dealing with NACC corruption issues using a table of substituted references.

10.206 These substitutions enable the Inspector to step into the shoes of the Commissioner and use the same powers conferred on the Commissioner by Part 6 in a NACC corruption investigation. The substitutions also provide that the same restrictions imposed on the Commissioner in Part 6 apply to the Inspector.

Inspector may conduct preliminary investigations into NACC corruption issues

10.207 Clause 42 would apply to the Inspector as if they were the Commissioner.

10.208 The Inspector may conduct a preliminary investigation for the purposes of:

•

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

•

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

10.209 As is the case for the Commissioner, the preliminary investigations power would allow the Inspector to seek information to assist them to decide how to deal with a matter based on credible and sufficient information.

Inspector may exercise certain Part 7 powers for preliminary investigation

10.210 For the purpose of a preliminary investigation, the Inspector would be able to exercise the following powers available to the Commissioner in Part 7:

•

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

•

the power to serve a notice to produce on a person requiring the person to give information, or a document or thing, to the Inspector.

10.211 However, the Inspector would not be able to issue a post-charge or a post-confiscation notice to produce to conduct a preliminary investigation into a NACC corruption issue. This is consistent with the equivalent arrangements for the Commissioner, who also may not issue a post-charge or post-confiscation notice to produce for the purposes of a preliminary investigation into a corruption issue or potential corruption issue (see paragraphs 6.34 to 6.38 regarding the Commissioner's preliminary investigation powers).

10.212 This means that the Inspector may not require the person to give the information, document or thing if it includes:

•

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

•

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

10.213 It is not appropriate or necessary for the Inspector to have access to all of the Commissioner's powers available under Part 7, including the power to issue post-charge or post-confiscation application notices. The intrusive nature of these powers means that they are not appropriate in the context of confirming the existence of or nature of a NACC corruption issue or assisting the Inspector to decide how to deal with the issue.

Inspector may direct the Commissioner about further action

10.214 Clauses 43 and 44 would apply to the Inspector as if they were the Commissioner, and to the NACC as if it were a Commonwealth agency.

10.215 This means the Inspector would be able to direct the Commissioner to stop the NACC from taking action in relation to a NACC corruption issue, unless that action was permitted by the Inspector (see paragraphs 6.41 to 6.54 regarding the operation of clauses 43 and 44).

10.216 The Inspector would only be able to give this direction if it is required to ensure the effectiveness of any action the Inspector has taken, or might take, in relation to the NACC corruption issue, or any other NACC corruption issue. A direction could direct the NACC not to take particular actions set out in the direction, or not to take action of any kind in relation to a NACC corruption issue. This power could be used to prevent the NACC from taking action that may, for example, alert a suspect to the existence of a NACC corruption investigation, or result in the loss of evidence.

10.217 Where a stop action direction is issued that has the effect of stopping an investigation under the PID Act, an investigating officer of the NACC would not be required to complete an investigation under the PID Act (see paragraph 6.49).

Previous investigations into NACC corruption issues by another Commonwealth integrity agency

10.218 Clause 45 would apply to the Inspector as if they were the Commissioner. Clause 45, as it applies to the Commissioner, provides an additional threshold to the commencement of a corruption investigation where the Commissioner is aware that a Commonwealth integrity agency has previously concluded an investigation into a matter regarding the same conduct involving a public official that the Commissioner may investigate (see paragraphs 6.55 to 6.59 regarding clause 45 as it applies to the Commissioner).

10.219 This means that if another Commonwealth integrity agency has concluded an investigation into conduct giving rise to a NACC corruption issue, the Inspector may only investigate that same conduct if they are satisfied that it is in the public interest to do so.

10.220 To avoid doubt, the NACC is not a Commonwealth integrity agency. An investigation into conduct by the NACC itself would not enliven this additional public interest test.

Inspector may make public statements about NACC corruption issues.

10.221 Clause 48 would apply to the Inspector as if they were the Commissioner. This clause allows the Commissioner to make a public statement about a corruption issue at any time, where it is appropriate, desirable or necessary in the Commissioner's opinion to avoid damage to a person's reputation (paragraphs 6.68 to 6.73 elaborate further on the operation of this clause).

10.222 This means the Inspector would be able to make public statements about a NACC corruption issue if the Inspector were satisfied that it is appropriate and practicable to do so to avoid damage to a person's reputation.

10.223 The Inspector's ability to make public statements would be limited by the limitations in clauses 230 and 231 as if the statement were a disclosure under clause 230 (see paragraphs 11.78 to 11.82) The Inspector would therefore be restricted from making a public disclosure that includes:

•

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

•

section 235 certified information; and

•

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

10.224 The Inspector would be required to:

•

consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates about whether the information is sensitive information; and

•

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

Investigations conducted by the NACC

10.225 Division 2 of Part 6 would apply to the Inspector as if they were the Commissioner, and to the Commissioner and NACC as if they were an agency head and a Commonwealth agency. Division 2 of Part 6, as it applies to the Commissioner, allows the Commissioner to oversee investigation corruption investigations conducted by Commonwealth agencies following a referral from the Commissioner, request and comment on the agency's reports, make additional recommendations and follow-up on the agency's implementation of recommendations (see paragraph 6.74-6.97).

Overseeing NACC investigation

10.226 This means the Inspector may, if they decide to deal with a NACC corruption issue by referring it to the NACC for investigation, oversee the Commissioner's investigation of the NACC corruption issue. The Inspector would be permitted to direct the Commissioner in relation to the investigation (see clause 51).

Progress reports and completion reports

10.227 As is the case for the Commissioner with Commonwealth agencies (see clause 52 and paragraph 6.80), the Inspector may require the Commissioner to provide:

•

progress reports from time to time; or

•

a completion report at the end of the investigation.

Comments and recommendations of the Inspector

10.228 The Inspector may, consistent with the equivalent provisions for the Commissioner, comment on a completion report provided by the Commissioner and may provide additional recommendations in relation to the report. The Inspector may choose to do this if they consider the Commissioner's completion report or the recommendations they make are deficient (see clause 53 and paragraph 6.85).

10.229 The Inspector would have to give any person or entity (including the NACC) that is the subject of an adverse comment or recommendation the opportunity to be heard in relation to that comment or recommendation.

Follow-up action by the Inspector

10.230 The Inspector may also request the Commissioner to provide the details of any action the Commissioner has taken, or proposes to take, in relation to:

•

a recommendation included in the report; or

•

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

10.231 The Commissioner would be required to comply with the request (clause 54). This would allow the Inspector to ensure their recommendations are being implemented satisfactorily, and if they are not, to escalate the matter to the Minister.

10.232 If the Inspector is not satisfied with the Commissioner's response, the Inspector may refer the matter to the Minister. The Inspector may also provide information (other than sensitive information or section 235 certified information) about the matter to the President of the Senate and the Speaker of the House of Representatives for presentation to the Parliament.

Division 4-Investigating and reporting by Inspector

10.233 This Division would set out:

10.234 the Inspector's powers to conduct NACC corruption investigations, NACC complaint investigations, and reviews under paragraph 184(1)(ea); and

•

the requirements for reporting on NACC corruption investigations and NACC complaint investigations.

10.235 The preceding Division set out the Inspector's discretion and powers to deal with NACC corruption issues. This Division would set out the Inspector's powers to investigate NACC corruption issues involving serious or systemic corrupt conduct, and to investigate external complaints regarding the conduct or activities of the NACC or its staff.

10.236 Investigating external complaints against the NACC would be another of the Inspector's key functions. There may be instances where, for example, the NACC or its staff may not have engaged in corrupt conduct, but may have exercised the NACC's powers unfairly or without proper authorisation. Alternatively, witnesses may be dissatisfied with their treatment during a corruption investigation. It is appropriate to provide an avenue for external parties to bring a complaint about such conduct, and for the Inspector to have oversight over these matters, because it would ensure the Commissioner is accountable for exercising their extraordinary powers fairly, proportionately, and lawfully.

10.237 The Inspector would have full discretion to decide whether to deal with a complaint it receives about the NACC or its staff. While this Division would set out the Inspector's powers to investigate a complaint, there would be no requirement for the Inspector to deal with a complaint, or to deal with them in a particular way. This would provide flexibility for the Inspector to determine the most appropriate approach to each particular complaint (including by taking no action).

10.238 The Inspector would be able to exercise certain powers conferred on the Commissioner under Part 7 to investigate NACC corruption issues and complaints about the conduct of the NACC or its staff members. These investigations would be referred to as NACC corruption investigations and NACC complaint investigations, respectively.

10.239 To undertake NACC corruption investigations, the Inspector has the power to:

•

direct the Commissioner or an agency head to produce information, documents or things;

•

issue a notice to produce, including post-charge and post-confiscation application notices, to any person;

•

hold hearings, including issuing summonses and requiring witnesses to answer questions or produce information, documents or things;

•

apply for orders to hold a person in contempt of the Inspector;

•

apply for orders requiring a person to deliver up their travel documents;

•

apply for a warrant to arrest a witness; and

•

enter and search Commonwealth premises (including those of the NACC) without a warrant.

10.240 To undertake NACC complaint investigations, the Inspector has the power to:

•

direct the Commissioner or an agency head to produce information, documents or things;

•

issue a notice to produce to any person, but not a post-charge or post-confiscation application notice;

•

hold hearings, including issuing summonses and requiring persons to answer questions or produce information, documents or things;

•

apply for orders to hold a person in contempt of the Inspector; and

•

enter and search Commonwealth premises without a warrant.

10.241 The Inspector would not have access to the full suite of investigation powers available to the Commissioner to conduct NACC corruption investigations and NACC complaint investigations. The Inspector would not be able to use:

•

the Commissioner's coercive search powers under Division 7 of Part 7. This means the Inspector could not apply for a warrant to enter and search any premises. However, the Inspector may enter and search certain Commonwealth premises without a warrant; and

•

the Commissioner's covert investigation powers, for example under the TIA Act and the SD Act. The intrusive nature of these covert powers, and the risks of compromising sensitive operational information of the NACC or other Commonwealth agencies through their use, means they are not appropriate in the context of investigating corruption issues pertaining only to the NACC. They are also not appropriate to use to conduct NACC complaint investigations, because their intrusiveness is disproportionate to the seriousness of the conduct under investigation.

10.242 The Commonwealth Ombudsman would retain an oversight role over the NACC's use of covert powers.

10.243 The Inspector would have more limited powers to conduct a NACC complaint investigation as compared to a NACC corruption investigation. In particular, the Inspector could not use the full range of coercive powers available to investigate NACC corruption issues to investigate a complaint. This would ensure the Inspector's powers to investigate are proportionate to the seriousness of the conduct under investigation.

10.244 The Inspector would be required to prepare reports on all completed NACC corruption investigations and NACC complaint investigations. Both types of reports would be referred to as a NACC investigation report. The Inspector would be able to make findings of fact in NACC investigation reports, including findings of corrupt conduct where the report relates to a NACC corruption investigation, but not make determinations of criminal liability.

10.245 Arrangements for preparing, distributing and tabling reports would be consistent, regardless of whether the report was on a NACC corruption investigation or a NACC complaint investigation. The Inspector's reporting regime would also broadly mirror the Commissioner's reporting regime. However, a key difference between the Inspector's and Commissioner's reporting regime is that where a report is required to be tabled in Parliament, the Inspector is responsible for causing the report to be tabled. This means that, unlike the Commissioner's investigation reports, the Minister has no role in causing a NACC investigation report to be tabled in Parliament. This reflects the Inspector's role as an independent officer of the Parliament.

10.246 NACC investigation reports would be required to be tabled in Parliament where a public hearing is held in the course of the investigation to which the report relates. The Inspector would also be able to publish reports if satisfied it is in the public interest to do so.

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

10.248 The Inspector would be required to comply with procedural fairness requirements, by ensuring individuals or agencies (including the NACC) 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 a NACC investigation report.

Subdivision A-Investigations by Inspector

Clause 212-Application of Division

10.249 This clause would provide that this division would apply to:

•

the Inspector's investigations of NACC corruption issues that could, in the Inspector's opinion, involve corrupt conduct that is serious or systemic, whether conducted by the Inspector or jointly by the Inspector and a Commonwealth agency, the NACC or a State or Territory government entity; and

•

an investigation into a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC. Such an investigation would be a NACC complaint investigation.

10.250 As outlined in paragraph 10.243, this Division would confer more limited powers on the Inspector to conduct NACC complaint investigations than NACC corruption investigations.

Clause 213-Conduct of investigations generally

10.251 This clause would provide for the Inspector to conduct NACC corruption investigations and NACC complaint investigations in such manner as they see fit. This would ensure the Inspector has independence to determine how to conduct their investigations.

Clause 214-Inspector's powers to investigate

10.252 This clause would set out the Inspector's powers in performing NACC corruption investigations and NACC complaint investigations.

10.253 This clause would set out:

•

the Inspector's powers to issue directions to produce and notices to produce for the purpose of a NACC corruption investigation and a NACC complaint investigation;

•

the Inspector's powers to hold hearings and summon persons to appear at hearings to conduct a NACC corruption investigation and a NACC complaint investigation;

•

the Inspector's obligations regarding the use and disclosure of investigation materials;

•

the Inspector's obligations regarding the retention and return of documents and things produced; and

•

the Inspector's powers to enter and search certain Commonwealth premises without a warrant, including the seizure and return of documents and things from those premises.

10.254 Certain powers would only be available for the Inspector to conduct a NACC corruption investigation, and would not be available for a NACC complaint investigation. These powers are:

•

the ability to issue post-charge and post-confiscation application notices to produce and summons; and

•

the ability to apply for warrants requiring the delivery of travel documents or the arrest of witnesses.

10.255 These powers would not be available to the Inspector because their intrusive nature means they are disproportionate to the seriousness of the conduct under examination in a NACC complaint investigation.

10.256 A NACC complaint investigation, for example, would inquire into the conduct of staff members of the NACC in their treatment of witnesses during a corruption investigation. As an alternative example, it may inquire into the conduct of a corruption investigation where a person who made a NACC disclosure is dissatisfied with the way the matter was handled. The powers made available to the Inspector to conduct NACC complaint investigations are sufficient for this purpose. Conversely, the Inspector may exercise more coercive powers to conduct NACC corruption investigation because of the increased seriousness of the conduct under investigation - which may include criminal conduct.

10.257 This clause would apply Divisions 2 to 6 and 8 of Part 7, and clauses 117, 118, 120, and 267, to the Inspector, NACC corruption investigations and NACC complaint investigations using a table of substituted references.

10.258 These substitutions would enable the Inspector to step into the shoes of the Commissioner to exercise certain Part 7 powers in order to conduct a NACC corruption investigation or a NACC complaint investigation.

10.259 This clause would not apply the remainder of Division 7 of Part 7, except for clauses 117, 118 and 120. This is because Division 7 provides for the Commissioner's coercive search powers. As outlined above (at paragraph 10.241), the Inspector will not have access to the full suite of the Commissioner's search powers, but will have limited powers to enter and search Commonwealth premises without a warrant.

Inspector may direct the Commissioner to produce information, documents or things

10.260 Clause 57 would apply to the Inspector as if they were the Commissioner and to the Commissioner as if they were an agency head. As it applies to the Commissioner, clause 57 allows the Commissioner to obtain information, documents and things relevant to a corruption investigation from a Commonwealth agency (see paragraph 7.13 regarding the operation of clause 57).

10.261 This means the Inspector may, by writing, direct the Commissioner to produce information, documents or things if the Inspector has reasonable grounds to believe the Commissioner has information, documents or things relevant to a NACC corruption investigation or NACC complaint investigation.

10.262 The Commissioner would be required to comply with the request as soon as practicable.

Inspector may issue notices to produce

10.263 Clauses 58 to 61 would apply to the Inspector as if they were the Commissioner, and to NACC corruption investigations and NACC complaint investigations as if they were corruption investigations. These clauses, as they apply to the Commissioner, allow the Commissioner to compel a person to provide information, documents or things relevant to a corruption investigation, and specify the period in which a person must comply with the notice. The provisions also set out offences for failure to comply with a notice or providing false or misleading information in response to a notice (refer to paragraphs 7.19-7.53 regarding the operation of clauses 58 to 61).

10.264 This means the Inspector may, by writing, require a person to give the Inspector information, documents or things if the Inspector has reasonable grounds to suspect the person has information, documents or things relevant to a NACC corruption investigation or NACC complaint investigation.

10.265 Clauses 60 to 61 would apply to notices to produce issued by the Inspector. This means that it would be an offence to fail to comply with an Inspector's notice to produce, or to provide false or misleading information or documents in response to a notice to produce (see in particular paragraphs 7.35 to 7.53 for the operation of these offences).

10.266 The offence in clause 70 would also apply to the Inspector's notices to produce. This means it would be an offence to destroy evidence, information, documents or things required in an Inspector's notice to produce (see paragraph 7.106 for an explanation of this offence).

Post-charge or post-confiscation application notices not available for NACC complaint investigations

10.267 This clause would not permit the Inspector to issue a post-charge or a post-confiscation application notice for the purpose of a NACC complaint investigation. The Commissioner and Inspector may, for the purposes of corruption investigations and NACC corruption investigations, require a person to provide information, documents or things that would disclose the subject matter of any charge or confiscation proceeding against the person, or where such a charge or proceeding were imminent. These powers are necessary to ensure that corruption investigations and NACC corruption investigations are not delayed while charges or proceedings are resolved (see paragraphs 7.25 to 7.27 regarding post-charge and post-confiscation application notices, including why they are necessary to conduct these investigations).

10.268 It is not necessary for the Inspector to issue post-charge and post-confiscation application notices for a NACC complaint investigation because a NACC complaint investigation would look into, for example, the NACC's processes and procedures in conducting a corruption investigation where a complainant is dissatisfied with the way that investigation was conducted, but no corrupt conduct is alleged. A NACC complaint investigation, while potentially serious, would not be expected to have the same level of urgency as a NACC corruption investigation. The Inspector would still be able to effectively conduct a NACC complaint investigation if they needed to wait to access certain information until charges or proceedings against a person were resolved. Accordingly, the Inspector's powers to investigate are proportionate to the seriousness and urgency of the conduct under investigation.

Inspector may hold hearings

10.269 Clauses 62 to 81 would apply to the Inspector as if they were the Commissioner and to NACC corruption investigations and NACC complaint investigations as if they were corruption investigations. These provisions allow the Commissioner to hold hearings for the purposes of a corruption investigation, including issuing summonses and requiring information, documents or things (see paragraphs 7.60 to 7.131 regarding the operation of clauses 62 to 81).

10.270 This means the Inspector may hold a hearing for the purposes of a NACC corruption investigation or a NACC complaint investigation in the same way as the Commissioner could.

10.271 The Inspector may summon persons to attend a hearing for the purpose of a NACC corruption investigation or a NACC complaint investigation.

10.272 The offences in clauses 68 to 72, and clause 81, would apply to summonses and hearings issued or held by the Inspector (see, in particular, paragraphs 7.93 to 7.131 for the operation of these offences). This means that it would be an offence to:

•

fail to attend a hearing if summonsed by the Inspector;

•

fail to give information, or produce documents or things, at a hearing if summonsed by the Inspector;

•

destroy documents or things if the Inspector requires those documents or things at a hearing; or

•

fail to take an oath, make an affirmation or answer a question at a hearing if the Inspector so requires.

Post-charge or post-confiscation application summons not available for NACC complaint investigations

10.273 This clause would not permit the Inspector 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, for the purpose of a NACC complaint investigation.

10.274 However, the Inspector 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 for the purposes of a NACC corruption investigation. This is necessary to ensure NACC corruption investigations are not delayed while charges or confiscation proceedings are resolved (see paragraphs 7.67 to 7.70 regarding post-charge and post-confiscation application summons powers).

10.275 Due to the nature of the conduct being examined in a NACC complaint investigation (see paragraphs 10.256 and 10.268), it is not necessary for the Inspector to issue post-charge and post-confiscation application summonses for this purpose. The Inspector could still effectively investigate NACC complaints if required to wait until charges or confiscation proceedings were resolved. This limitation ensures the Inspector's powers to investigate are proportionate to the seriousness of the conduct under investigation and the urgency of the circumstances.

Inspector may apply for orders to hold a person in contempt

10.276 Clauses 82 to 86 would apply to the Inspector as if they were the Commissioner or the NACC. Clauses 82 to 83 set out the conduct that would amount to contempt of the NACC and provide for the Commissioner to apply to a court to hold a person in contempt of the NACC. Clauses 84 to 86 provide for how the contempt proceedings may be conducted, allow the Commissioner to direct a constable or authorised officer to detain a person in contempt, and permit the Commissioner to withdraw a contempt application at any time (see paragraphs 7.177 to 7.203 regarding the provisions for contempt of the NACC).

10.277 This would allow the Inspector to apply for orders to hold a person in contempt of the Inspector under the same circumstances, in the same manner, and with the same consequences, as for the Commissioner under clauses 82 to 86.

10.278 A reference to an authorised officer in clause 85 would be taken to be a reference to an authorised officer appointed by the Inspector under clause 267, as modified by clause 214 (see paragraphs 12.109 to 12.113 regarding the operation of clause 267). As a consequence, clause 268 (concerning the identity cards of authorised officers) would apply to authorised officers of the Inspector.

NACC corruption investigations-Inspector may apply for orders requiring delivery of travel documents

10.279 Clauses 88 and 89 would apply to the Inspector as if they were the Commissioner, only for the purpose of a NACC corruption investigation. Clause 88 permits the Commissioner to apply to a Judge of the Federal Court for an order that a witness deliver their travel documents to the Commissioner. Clause 89 permits a Judge to make certain orders, including that a witness show cause as to why they should not have to deliver their documents, and that a witness must deliver their travel documents to the Commissioner (see paragraphs 7.209 to 7.221 regarding the operation of these clauses).

10.280 This means that the Inspector may apply for orders requiring a person to deliver up their travel documents under the same circumstances and in the same manner as the Commissioner under clauses 88 and 89.

10.281 The power for the Federal Court to order a person to deliver their travel documents to the Inspector would be a significant power. It would affect a person's freedom of movement, and has the potential to cause hardship if the person were prevented from leaving Australia. It is appropriate that the Inspector may only apply for these orders for the purpose of investigating serious or systemic corrupt conduct within or adversely affecting the NACC (which could include criminal conduct).

10.282 This power would not be available to the Inspector for the purpose of a NACC complaint investigation. The Inspector is able to effectively investigate conduct or activities of the NACC that do not constitute serious or systemic corrupt conduct without the ability to prevent persons from leaving Australia. This is proportionate to the seriousness and urgency of the circumstances under investigation.

NACC corruption investigations-an authorised officer may apply for a warrant to arrest a witness

10.283 Clauses 90 to 92 would apply to a NACC corruption investigation as if it was a corruption investigation. These clauses permit an authorised officer (appointed by the Commissioner) to apply to a superior court judge for a warrant to arrest a person who may abscond, evade service or leave Australia to avoid appearing at a hearing, and provide for the execution of the warrant and the judge's powers in relation to the person arrested (see paragraphs 7.222 to 7.240 regarding provisions for the arrest of witnesses).

10.284 An authorised officer appointed by the Inspector would be able to apply for a warrant to arrest a witness for a NACC corruption investigation under the same circumstances, and in the same manner, as would be the case for a corruption investigation.

10.285 A reference to an authorised officer would be taken to be a reference to a person appointed by the Inspector under clause 267, which provides for the Commissioner to appoint an authorised officer. Clause 214 would modify clause 267 to allow the Inspector to also appoint an authorised officer under that clause (see paragraphs 12.109 to 12.113).

10.286 An authorised officer would only be permitted to apply for a warrant to arrest a witness for the purpose of a NACC corruption investigation. This power would not be available for the purpose of a NACC complaint investigation because the Inspector would not be investigating serious or systemic corrupt conduct. This would ensure the Inspector's powers to investigate are proportionate to the seriousness of the conduct under investigation.

Inspector may enter certain premises without a warrant

10.287 Clauses 117, 118 and 120 would apply to the Inspector as if they were the Commissioner, and to NACC corruption investigations or NACC complaint investigations as if they were corruption investigations. Clauses 117 and 118, as they apply to the Commissioner, permit the Commissioner or another authorised officer of the NACC to enter and search a place occupied by a Commonwealth agency and require the Commissioner to issue receipts for items seized without a warrant. Clause 120 sets out requirements for the Commissioner to return items seized without a warrant (see paragraphs 7.461 to 7.472, and 7.479 to 7.506 regarding the operation of these provisions).

10.288 This clause would permit the Inspector, for the purpose of a NACC corruption investigation or a NACC complaint investigation, to exercise the power to enter places occupied by Commonwealth agencies and the NACC, and carry on an investigation without a warrant, in the same manner as the Commissioner may under clause 117. Authorised officers of the Inspector would also be permitted to exercise this power.

10.289 The Inspector must issue recepts for documents and things seized without a warrant in the same manner as the Commissioner must under clause 118.

10.290 The Inspector must comply with clause 120, regarding the use and return of documents and things seized without a warrant under clause 117, in the same manner as the Commissioner must when conducting a corruption investigation.

Clause 214A-Inspector's powers to conduct reviews

10.291 This clause would set out powers available to the Inspector, when carrying out their function under paragraph 184(1)(ea), to review the NACC's exercise of its powers to summon persons and to obtain and execute arrest warrants. For the purposes of conducting a review, the Inspector:

•

may, at all reasonable times, enter and remain on any premises occupied by the NACC; and

•

is entitled to all reasonable facilities and assistance that the Commissioner is capable of providing; and

•

is entitled to full and free access at all reasonable times to any information, documents or other property of the NACC; and

•

may require a staff member of the NACC to provide any relevant information within the staff member's possession or to which the staff members has access that the Inspector considers necessary; and

•

may examine, make copies of or take extracts from any information or documents.

10.292 These powers would provide the Inspector with comprehensive access to the NACC's records and facilities, and the ability to require staff members of the NACC to provide information in their possession. These powers are similar to the powers afforded to the Commonwealth Ombudsman when conducting inspections under Chapter 4A of the Telecommunications (Interception and Access) Act 1979, or the Inspector-General of Intelligence and Security when conducting inspections under section 9A of the Inspector-General of Intelligence and Security Act 1986.

10.293 The reference to the Inspector being entitled to 'all reasonable facilities and assistance' would enable the Inspector to request, for example, an office at the NACC's premises for use during an inspection, or access to the NACC's systems to enable the Inspector to directly access records held by the NACC that are relevant to a review.

Subdivision B-Reporting on NACC corruption investigations and NACC complaint investigations

Clause 215-Report on NACC corruption investigation or NACC complaint investigation

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

Inspector must prepare a NACC investigation report

10.295 This clause would require the Inspector to prepare a report after completing a NACC corruption investigation or a NACC complaint investigation. Both types of reports would be referred to as a NACC investigation report.

10.296 It would be a matter for the Inspector to determine when a NACC investigation is completed. There would be circumstances in which it is appropriate for the Inspector 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 a NACC investigation report

10.297 NACC investigation reports would be required to set out:

•

the Inspector's findings or opinions on the NACC corruption issue or the complaint;

•

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

•

any recommendations that the Inspector thinks fit to make; and

•

if recommendations are made-the reasons for those recommendations.

10.298 Clause 219 would require the Inspector to give certain persons an opportunity to respond before including any critical opinions, findings or recommendations in the report. Clause 219 may also require additional information to be included in a NACC investigation report in certain circumstances.

10.299 Subclauses 215(3) and (4) would apply to NACC investigation reports relating to a NACC corruption investigation.

10.300 In setting out the Inspector's findings or opinions on the NACC corruption issue, if the Inspector forms the opinion that a person whose conduct has been investigated has engaged in corrupt conduct of a serious or systemic nature, the Inspector must include a statement to that effect in the NACC investigation report. This reflects the relevant 'serious or systemic' threshold required for the Inspector to investigate a corruption issue (see Inspector's functions under clause 184 and at paragraph 10.60). The Inspector would therefore be required to clarify the nature of the corrupt conduct in their report.

10.301 For the avoidance of doubt, if the Inspector forms the opinion that a person whose conduct has been investigated has not engaged in corrupt conduct, the Inspector must set out that opinion in the report. This would balance the Inspector's function to investigate serious or systemic corruption in, or adversely affecting, the NACC 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.

10.302 Subclause 215(5) would apply to NACC investigation reports relating to both NACC corruption investigations and NACC complaint investigations. This subclause would 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. The Inspector may include a statement to that effect in the NACC investigation report if the Inspector is satisfied that it is appropriate and practicable to do so to avoid damage to the person's reputation.

10.303 The Inspector may include such a statement, for example, in circumstances where a person's involvement in a NACC corruption investigation is publicly known, and their mere involvement in the investigation put 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.

10.304 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 staff member of the NACC. 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 NACC corruption investigation, the Inspector may include a statement to that effect in the NACC investigation report if the Inspector is satisfied that it is appropriate and practicable to do so to avoid damage to the person's reputation.

Recommendations that may be made

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

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

•

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

•

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

•

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

•

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

-

the employment or engagement of an unsuitable person;

-

a person engaging in corrupt conduct; or

-

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

Section does not limit what may be included in a NACC investigation report

10.307 This clause would not limit what may be included in a NACC investigation report. This provides the Inspector with the flexibility to tailor findings, opinions and recommendations in the context of the specific investigation, noting the diverse nature of NACC corruption issues that may come before the Inspector.

10.308 For example, paragraphs 215(6)(a) and (b) would enable the Inspector 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 Inspector to instead recommend that an agency:

•

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

•

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

Clause 216-Effect of findings or opinions about corrupt conduct

10.309 This clause would apply if a NACC 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.

10.310 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. This recognises that the Inspector 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 217-Excluding certain information from NACC investigation report

10.311 This clause would require the Inspector to exclude certain material from a NACC 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 a NACC investigation report is:

•

required to be tabled or is tabled at the discretion of the Inspector or the Minister (see clause 221);

•

published by the Inspector (see clause 222); or

•

given to a person other than the Commissioner, CEO or Minister (see clause 220).

10.312 Any information that is excluded from a NACC investigation report must be included in a protected information report under clause 218.

10.313 The Inspector would be required to exclude the following types of information from a NACC investigation report:

•

section 235 certified information (see clause 235); and

•

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

10.314 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 Inspector would be required to exclude information that is subject to such a certificate from a NACC investigation report. This would ensure certain classes of information would be protected from disclosure, without requiring the Inspector to be satisfied that the information is sensitive information.

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

•

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

•

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

•

would unreasonably disclose a person's personal affairs.

10.316 In determining whether the Inspector is satisfied that information constitutes sensitive information for the purpose of its exclusion from a NACC investigation report, the Inspector must consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates. Where the information relates to the NACC or a staff member of the NACC, the Inspector must instead consult with the Commissioner. This ensures that the Inspector 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 218-Protected information report

10.317 This clause would require the Inspector to prepare a protected information report, where the Inspector has excluded information from a NACC investigation report under clause 217. The preparation of the report would allow all information relevant to the corruption investigation to be provided to the Commissioner, the CEO, the Minister and certain other recipients where relevant (see clause 220), without disclosing its content to the public.

10.318 The protected information report must set out the excluded information, and the reasons for excluding the information from the NACC 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.

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

•

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;

•

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

•

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.

10.320 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 219-Opportunity to respond must be given before including certain information in NACC investigation report

10.321 This clause would require the Inspector 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, the NACC, or any other person in a NACC investigation report.

10.322 The Inspector would be required to provide the head of the agency, the head of the entity, the Commissioner, 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. 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.

10.323 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.

10.324 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 the NACC, the response may be given by the Commissioner, or a person authorised to respond by the Commissioner. 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.

10.325 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 Inspector must include in the NACC investigation report a summary of the substance of the response, if the person requests the Inspector to do so. The requirement limits the Inspector'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 a NACC investigation report.

10.326 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 Inspector should consider before finalising or publishing their report.

10.327 Subclause 219(4) would apply where the Inspector includes a summary of the substance of a person's response in the NACC investigation report. The requirement to publish the summary would be subject to clause 217, which would require certain information to be excluded from NACC investigation reports. The Inspector would be required to exclude section 235 certified information (see clause 235), and information that the Inspector is satisfied is sensitive information (defined under subclause 227(3)) from the summary. The Inspector would also be required to comply with the consultation requirements under clause 217, in determining whether the Inspector is satisfied that information is sensitive information for the purpose of excluding the information from a NACC investigation report.

10.328 Subclause 219(5) would apply where the Inspector includes a summary of the substance of a person's response in the NACC investigation report. The Inspector must not include any information in the summary that would identify any person who, in the opinion of the Inspector, 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.

10.329 However, the Inspector may include information that would identify such a person if the Inspector:

•

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

•

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

•

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

10.330 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 finding in relation to a person at a public hearing.

Clause 220-Inspector to give copies of reports to certain persons

10.331 This clause would require the Inspector to provide NACC investigation reports to the Commissioner, the CEO, and the Minister. If a protected information report is prepared in relation to the investigation, the Inspector must also provide the protected information report to the Commissioner, the CEO, and the Minister. Where a NACC investigation report relates to a NACC corruption investigation concerning the conduct of the Minister, the NACC investigation report and any protected information report would instead be given to the Prime Minister. This would occur in limited circumstances, for example, where the investigation concerns whether the Minister has engaged in corrupt conduct adversely affecting the honest or impartial exercise of powers of the NACC.

10.332 Subclause 220(3) would set out a list of additional recipients who must receive a copy of a NACC investigation report, and may receive a copy of a protected information report in certain cases. The persons are:

•

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

•

for a NACC corruption investigation concerning the conduct of a staff member of a Commonwealth agency (including a parliamentary office)-the head of the agency and the relevant Minister or presiding officer, as set out in subclause 220(4);

•

for a NACC corruption investigation concerning the conduct of the head of a Commonwealth agency-the relevant Minister or presiding officer, as set out in subclause 220(4) and, 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;

•

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

•

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

10.333 Subclause 220(4) would provide, for the purposes of subclause 220(3), the person to which the report is to be given is:

•

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

-

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

-

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

-

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

•

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

•

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)).

10.334 The effect of subclauses 220(3) and (4) is to ensure a copy of the NACC 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. In many cases, it would only be appropriate for the report to be provided to the Minister, the Commissioner and the CEO, given a report's findings and recommendations will most often focus on the NACC and its staff members. However, there may be instances where the findings and recommended action are relevant to another Commonwealth agency, for example, where a staff member has engaged in corrupt conduct adversely affecting the honest or impartial exercise of the powers of a staff member of the NACC.

10.335 Recommendations contained in the report may relate to taking action in relation to the staff member of the other Commonwealth agency, or adopting measures to remedy deficiencies in the policy, procedures or practices of the 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.

10.336 In some circumstances, the Inspector may decide that it would be appropriate for the recipient of a copy of a NACC investigation report to also receive a copy of a related protected information report. For example, the Inspector 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.

10.337 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

10.338 Subclause 220(5) would require the exclusion of certain material from a protected information report given to a person under subclause 220(3).

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

10.340 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 220(3).

10.341 Subclause 220(5) would also require the Inspector to exclude information from a protected information report if the Inspector is satisfied:

•

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

•

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

10.342 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.

10.343 Subclause 220(6) would provide that, in deciding whether to exclude information from a protected information report, the Inspector 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 221-Tabling of NACC investigation report in Parliament

10.344 This clause would require the Inspector to cause a copy of a NACC investigation report to be tabled where the report has been provided to the Commissioner, the CEO, and the Minister (or the Prime Minister) under clause 220, and one or more public hearings were held in the course of the investigation to which the NACC investigation report relates. This approach would be consistent with the proposed arrangements for the Commissioner to report on corruption investigations (see clause 155) and would ensure transparent reporting where matters dealt with in a corruption investigation are in the public domain.

10.345 The copy of the report would be required to be tabled in each House of the Parliament within 15 sitting days of that House after the report has been given to the Commissioner, the CEO and the Minister. 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.

10.346 Where a NACC investigation report is not required to be tabled, the Inspector and the Minister would not be restricted from seeking to table the report in each House of the Parliament under the usual Parliamentary procedures.

Clause 222-Publishing NACC investigation report in whole or in part

10.347 This clause would allow the Inspector to publish NACC investigation reports in certain circumstances.

10.348 The Inspector would be able to publish the whole or part of a NACC investigation report where the report has been given to the Commissioner under clause 220, and the Inspector is satisfied that it is in the public interest to publish the report (or part of the report).

10.349 This clause would allow for transparent reporting where a report is not required to be tabled under clause 221, but the Inspector 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).

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

10.351 This clause would be subject to additional procedural fairness requirements under clause 223, which require the Inspector to give certain persons an opportunity to respond before publishing an investigation report containing critical opinions, findings or recommendations.

Clause 223-Opportunity to respond must be given before publishing a NACC investigation report containing critical opinions etc.

10.352 This clause would require the Inspector to comply with further procedural fairness obligations before publishing, under clause 222, a NACC 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, the NACC, or any other person.

10.353 This clause would recognise that NACC investigation reports may be published some time after they are first prepared-for example, where the Inspector 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.

10.354 The Inspector would be required to provide the head of the agency, the head of the entity, the Commissioner, 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.

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

10.356 Equally, the requirement would not apply if the Inspector publishes whole or part of the NACC investigation report within 3 months of the report being given to the Commissioner under subclause 220(1). This recognises that the opportunity to respond under clause 219 would be sufficient where there is no substantial delay between that initial opportunity and the publishing of the NACC investigation report. A period of 3 months reflects the period within which NACC investigation reports would generally be tabled, as required by clause 221.

10.357 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 the NACC, the response may be given by the Commissioner, or a person authorised to respond by the Commissioner. 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 224-Advising person who referred NACC corruption issue or made complaint of outcome

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

•

clause 202 (voluntary referrals to be made by any person);

•

clause 203 (mandatory referrals by the Commissioner); or

•

clause 204 (mandatory referrals by PID officers).

10.359 This clause would also enable persons to be informed of the outcome of a NACC complaint investigation, where the person made the relevant complaint.

10.360 The Inspector 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 a person made a complaint in relation to a staff member of the NACC, and the Inspector considers the person should be informed that no findings of misconduct have been made.

10.361 The Inspector would be able to advise the person, or the representative, of the outcome of the investigation by providing the person or representative with a copy of all or part of the NACC 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 Inspector might choose to send a letter summarising the outcome, rather than providing a copy of the report itself.

10.362 The Inspector would be prohibited from disclosing certain information when advising the person of the outcome of the investigation. The Inspector 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 Inspector 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.

10.363 In determining whether the information constitutes sensitive information for the purpose of its exclusion from the advice, the Inspector must consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates. This ensures that the Inspector 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.

10.364 In practice, the Inspector could consult with the heads of relevant agencies or entities for the purpose of some or all of the consultation requirements under clauses 217, 224, 225 and 230 simultaneously, if the Inspector proposed to undertake the relevant steps set out in each of those clauses in close succession. This would allow the Inspector to consult with the head of an agency to establish whether information is sensitive information for the purpose of its exclusion from a NACC investigation report under clause 217, and for the purpose of advising persons of the outcome of an investigation under clauses 224 and 225, and for the purpose of making a public statement accompanying the publication of the report under clause 230.

10.365 In deciding whether to exclude sensitive information from the advice, the Inspector 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 225-Advising person whose conduct is investigated of outcome of the investigation

10.366 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.

10.367 This clause provides that the Inspector must advise a person of the outcome of a NACC corruption investigation if the Inspector investigates a NACC corruption issue involving 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.

10.368 It would be important to inform a person that the Inspector 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 Inspector 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 Inspector from any findings of corruption.

10.369 This clause provides that the Inspector must advise a person of the outcome of a NACC complaint investigation if the Inspector investigates a complaint and forms an opinion or makes a finding about the complaint (for example, a finding that in effect substantiates or dismisses the complaint).

10.370 However, subclause 225(8) addresses circumstances where the Inspector would not be required to advise a person of the outcome of a NACC corruption investigation or NACC complaint 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.

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

•

a person's fair trial;

•

a NACC Act process (see paragraph 1.104);

•

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

•

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

10.372 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 Inspector's investigation and notification would alert a person to the fact that they have been-and may continue to be-under investigation.

10.373 The Inspector 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 NACC 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 Inspector might choose to send a letter summarising the outcome, rather than providing a copy of the report itself.

10.374 The Inspector would be prohibited from disclosing certain information when advising the person of the outcome of the investigation. The Inspector 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 Inspector 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.

10.375 In determining whether the information constitutes sensitive information for the purpose of its exclusion from the advice, the Inspector must consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates. This ensures that the Inspector 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.

10.376 In practice, the Inspector could consult with the heads of relevant agencies or entities for the purpose of some or all of the consultation requirements under clauses 217, 224, 225 and 230 simultaneously, if the Inspector proposed to undertake the relevant steps set out in each of those clauses in close succession. This would allow the Inspector to consult with the head of an agency to establish whether information is sensitive information for the purpose of its exclusion from a NACC investigation report under clause 217, and for the purpose of advising persons of the outcome of an investigation under clauses 224 and 225, and for the purpose of making a public statement accompanying the publication of the report under clause 230.

10.377 In deciding whether to exclude sensitive information from the advice, the Inspector 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 226-Follow-up on NACC investigation report

10.378 This clause would empower the Inspector to follow up action taken in response to recommendations directed to the NACC, or Commonwealth agencies, in NACC investigation reports. To achieve the objects of the NACC Bill to prevent corrupt conduct, the Inspector's recommendations would be expected to be actioned by the NACC or Commonwealth agencies in order to address risks and vulnerabilities that give rise to corruption or (in the case of a NACC complaint investigation) misconduct. The Inspector'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.

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

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

10.381 If the Inspector is not satisfied with the response of the Commissioner or the head of the Commonwealth agency, the Inspector may refer the recommendation and the reasons for the recommendation, the response, and the Inspector'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 226(4).

10.382 Subclause 226(4) would set out the relevant persons to whom the Inspector may refer the material. This would be:

•

if the response was made by the Commissioner-the Minister (paragraph (a));

•

if the response was made by the head of a Commonwealth agency that is a parliamentary office (paragraph (b)):

-

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

-

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

•

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

-

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

-

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

-

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 (c) does not apply-the Minister administering that Act (paragraph (d)); or

•

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

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

•

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

•

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

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

10.385 The ability for the Inspector 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 the NACC or Commonwealth agencies in response to recommendations.

10.386 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 Inspector must exclude section 235 certified information (see clause 235), and information that the Inspector is satisfied is sensitive information (as defined under clause 227).

10.387 This clause would further provide that in determining whether the Inspector is satisfied that information constitutes sensitive information for the purpose of its exclusion from the copy of material sent to the Presiding Officers, the Inspector must consult with the head of each Commonwealth agency or State or Territory government entity to which the material relates. Where the material relates to the NACC or a staff member of the NACC, the Inspector must consult with the Commissioner. This ensures that the Inspector 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.

10.388 In practice, the Inspector could consult with the heads of relevant agencies or entities for the purpose of the consultation requirements under clauses 217 and 226 simultaneously, where no new information that may constitute sensitive information is raised in the material provided under this clause. This would allow the Inspector to consult with the head of an agency to establish whether information is sensitive information for the purpose of its exclusion from a NACC investigation report under clause 217 as well as its exclusion from the material provided to the Presiding Officers under clause 226.