Senate

Revised Explanatory Memorandum

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

PART 11 CONFIDENTIALITY, CONSULTATION AND INFORMATION SHARING

11.1 This Part would set out:

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the confidentiality requirements that would apply to information obtained for the purposes of the NACC Bill;

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how information that has been obtained by the NACC and the Inspector may be recorded and disclosed; and

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arrangements for the protection of certain information, including information provided by foreign governments and international organisations that the Australian Government has a legal obligation to protect, and information relating to the activities of intelligence agencies.

Division 1-Confidentiality requirements

11.2 This Division would outline the confidentiality requirements that would apply to information obtained for the purposes of the NACC Bill and the specific circumstances in which information could be disclosed under the NACC Bill. The Commissioner and the Inspector would have significant powers to obtain information, including information that would otherwise be protected by non-disclosure obligations under other Commonwealth laws. In turn, it is appropriate that information is subject to ongoing protection under the NACC Bill with disclosure of information permitted only in appropriate circumstances.

11.3 Generally, the NACC Bill would provide that any information obtained during an investigation or an inquiry could not be disclosed to another person. Exceptions would apply, including where that information is provided to another person:

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for the purposes of performing functions under the NACC Bill;

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to support the functions of another agency; or

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where it is required by another law of the Commonwealth.

11.4 The Commissioner and the Inspector are the only persons (authorised disclosers) who would be able to publicly disclose information under the NACC Bill and would only be permitted to do so in appropriate circumstances and subject to certain limitations. The disclosure of any information that included critical findings or opinions made against a person would be subject to procedural fairness requirements and other safeguards.

Clause 227-Key concepts

Authorised disclosers and entrusted persons

11.5 This clause would define the two categories of persons to whom the confidentiality requirements under this Part would apply: authorised disclosers and entrusted persons. Both authorised disclosers are also entrusted persons.

11.6 The Commissioner and the Inspector would be authorised disclosers for the purposes of the NACC Bill. Only an authorised discloser would be permitted to make disclosures:

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to protect life or physical safety (see clause 229); and

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in the public interest (see clause 230).

11.7 An entrusted person would be:

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a staff member of the NACC (which includes the Commissioner: see clause 266);

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the Inspector; or

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a person assisting the Inspector (see clause 195).

11.8 An entrusted person or former entrusted person is subject to confidentiality requirements in relation to information they obtained as an entrusted person (see clause 228).

Sensitive information

11.9 This clause would also define a class of information to be known as sensitive information, being information the disclosure of which:

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

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would prejudice relations between:

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the Commonwealth Government and the Government of a State or Territory, or

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the Government of a State or Territory and the Government of another State or Territory;

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would involve disclosing:

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deliberations or decisions of the Cabinet, or of any committee of the Cabinet, of the Commonwealth or of a State,

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deliberations or advice of the Federal Executive Council or the Executive Council of a State or the Northern Territory, or

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deliberations or decisions of the Australian Capital Territory Executive or of a committee of that Executive;

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could reveal, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to:

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the enforcement of the criminal law of the Commonwealth, a State or Territory or a foreign country, or

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

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could reveal, or enable a person to ascertain, the identity of a person who is, or has been, a staff member of ASIO or ASIS;

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could reveal, or enable a person to ascertain, the identity of a person who is, or has been, an agent of ASIO, ASIS, the Australian Geospatial-Intelligence Organisation, or the Australian Signals Directorate;

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could reveal information:

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about the capabilities of, or information sources or operational activities or methods available to, a law enforcement agency, intelligence agency or the ADF,

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about particular operations that have been, are being or are proposed to be undertaken by a law enforcement agency, intelligence agency or the ADF, or about proceedings relating to those operations, or

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provided by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country, or an international organisation, where that government or organisation does not consent to the public disclosure of the information;

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would prejudice the proper performance of the functions of the IGIS;

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could endanger a person's life or physical safety;

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could prejudice the protection of public safety;

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would prejudice the fair trial of any person or the impartial adjudication of a matter;

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would prejudice the proper enforcement of the law (including through corruption investigations, NACC corruption investigations or NACC complaint investigations);

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would involve disclosing information whose disclosure is prohibited (absolutely or subject to qualifications) by or under another law of the Commonwealth;

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would involve unreasonably disclosing a person's personal affairs; or

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would involve unreasonably disclosing confidential commercial information.

11.10 The relevant authorised discloser would need to be satisfied that information fell within the definition of sensitive information for associated restrictions on the disclose of that information to arise. Once the authorised discloser is satisfied, there would be restrictions on the disclosure of the information. For example:

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evidence at a hearing would need to be given in private if it would disclose sensitive information (see clause 74);

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sensitive information could not be included in the Commissioner's annual report (see clause 272); and

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sensitive information would be required to be excluded from an investigation report (which is able to be tabled in Parliament or published) and included in a protected information report (see for example clause 152).

11.11 In assessing whether information is sensitive or not, the relevant authorised discloser may be required to consult with relevant officials (see, for example, clause 151 (excluding certain information from investigation report)).

11.12 Paragraphs (n) and (o) of the definition of sensitive information refer to information the disclosure of which 'would involve unreasonably disclosing' a person's personal affairs or confidential commercial information. A person's 'personal affairs' means the affairs of or relating to the private aspects of an individual's life. It would not be possible or desirable to define the concept exhaustively, as what constitutes a person's personal affairs will depend on that person's circumstances. The concept would include, but would not be limited to information relating to a person's:

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health and wellbeing, including information of a medical or psychiatric nature;

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family, marital and other intimate relationships;

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domestic responsibilities or financial obligations;

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financial situation or affairs;

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date of birth and government identifiers; or

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criminal history or mentions in police records.

11.13 Information about an individual's work or business would not usually qualify as information about their personal affairs. However, information that relates both to an individual's work or business and matters such as those listed above-such as reasonable adjustments made to a person's role or workspace to enable a person with a disability or medical condition to participate equally in work-may be information about a person's personal affairs. Information about a person's conduct as a public official would not qualify as information about their personal affairs.

11.14 The concept of a person's personal affairs is not limited to information that is confidential or not widely known-although whether particular information is confidential or not widely known may be relevant to the question of whether it would be unreasonable to disclose the information.

11.15 The concept of a person's personal affairs would not extend to legal persons.

11.16 The concept of confidential commercial information is self-explanatory.

11.17 When determining whether they are satisfied that disclosing particular information would 'unreasonably' disclose a person's personal affairs or confidential commercial information, the Commissioner or Inspector will need to consider all of the relevant circumstances including, in particular:

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the public interest in the disclosure of the information, which would often turn on the relevance and salience of that information to the corruption investigation or process being conducted by the Commissioner or Inspector-there is a strong public interest in the public exposure of serious or systemic corrupt conduct, and the provision of information to enable people to understand how such conduct has arisen and may arise in the future; and

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the impact or consequences-adverse or beneficial-that would reasonably be expected to occur, were the information to be disclosed.

11.18 In circumstances where a particular aspect of a person's personal affairs is directly relevant to their corrupt conduct, it may be reasonable for the Commissioner or Inspector to disclose information about that aspect of the person's personal affairs. For example, where an official engages in corrupt conduct to benefit a person with whom the official is in a relationship, or to obtain a corrupt benefit to cover a significant personal debt, it may be reasonable for the Commissioner or Inspector to disclose information about the relationship or debt because that information would be central to understanding the reasons for the person's corrupt conduct.

11.19 Where the information relates to the personal affairs of a person who is not the subject of the investigation or an adverse finding, the public interest in any disclosure of that person's personal affairs would generally be reduced. For example, in the case where an official has engaged in corrupt conduct to benefit a person with whom the official is in a relationship, and that person was not involved in or aware of the corrupt conduct, it may be unreasonable for the Commissioner or Inspector to disclose that person's identity-it may instead be reasonable to disclose only more limited information about the fact that the official engaged in corrupt conduct to benefit the person with whom they were in a relationship, as well as the details of the official's own conduct.

11.20 As noted above, the question of whether information about a person's personal affairs is confidential or not widely known may be relevant to the question of whether it is unreasonable to disclose the information, and the extent of any such disclosure, as it would go to the impact or consequences that would reasonably be expected to occur, would the information to be disclosed. For example, in the case of a public official who has engaged in corrupt conduct to benefit a person with whom the person is in a relationship without that person's knowledge or involvement, if the other person's identity is not widely known, it may be unreasonable for the Commissioner or Inspector to disclose their identity-and it may be sufficient for the Commissioner or Inspector to merely disclose the fact of a personal relationship. On the other hand, where the relationship was public and widely known (even if not publicly notorious) it may be reasonable for the Commissioner or Inspector to include the other person's identity, as the information would be both relevant and salient to the Commissioner or Inspector's findings.

11.21 It may be reasonable for the Commissioner or Inspector to disclose information about a person's personal affairs that the person has revealed in evidence where the information provides an explanation or context for the person's conduct, and disclosing the information would protect that person from undue reputational harm. For example, where the Commissioner intends to publish a report containing a finding that an omission or failing by an official enabled corrupt conduct to occur or continue, and an aspect of that official's personal affairs provides some explanation or context, if not an excuse, for how that omission or failing occurred, such as a recent bereavement or an ongoing illness that affected the official's capacity, then it may be reasonable to include some information about that aspect of the person's personal affairs in the report.

11.22 Similar considerations would apply to the question of whether the disclosure of particular confidential commercial information would be 'unreasonable', with the exception that the concept is inherently limited to information that is confidential. For example, where confidential commercial information is central to understanding why a person engaged in corrupt conduct, it may be reasonable to disclose that information. It would also not be unreasonable to disclose the fact that a person or business had corruptly obtained a commercial benefit or advantage, even if that information was not previously publicly known and would have significant commercial sensitivity. On the other hand, where the confidential commercial information-such as a trade secret or non-public, market-sensitive information-is of only passing relevance to a matter, it may be unreasonable for the Commissioner or Inspector to disclose details of the information either beyond a general reference as to its existence, or at all.

Threshold for the relevant harm

11.23 There would be a lower threshold for whether information falls within the definition of sensitive information where:

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the harm resulting from disclosure could be particularly grave (for example, where the disclosure could endanger a person's life or physical safety); or

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the realisation of that harm would be partly dependent on the knowledge or conduct of a third party (for example, whether a third party could use the information to identify a confidential source).

11.24 In these circumstances, the information would fall within the definition of sensitive information if disclosure could result in the harm. This lower threshold would be appropriate, as it applies only to disclosures that could result in particularly serious harms, or where the discloser could not reasonably be expected to reach a greater degree of certainty about whether the specified harm would occur.

11.25 Where the authorised discloser, in consultation with relevant officials, would be well placed to ascertain whether the harm would arise (for example, whether the disclosure would reveal Cabinet deliberations), the information would only fall within the definition of sensitive information if its disclosure would result in the harm.

Clause 228-Confidentiality requirements for entrusted persons

11.26 This clause would make it an offence for a current or former entrusted person to make a record of, or disclose, any information that they obtained because of being an entrusted person or in the course of performing their duties as an entrusted person. This clause is subject to other provisions of the NACC Bill, particularly clauses 229 and 230, which outlines when a disclosure is authorised.

11.27 The inclusion of this offence would ensure that investigations and inquiries conducted by the NACC and the Inspector as well as proceedings arising from those investigations and inquiries, the operations of the NACC and the Inspector, and public confidence in the NACC and the Inspector are not prejudiced by unauthorised disclosures of information.

11.28 The offence would consist of the following physical elements:

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the person is or was an entrusted person;

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the person (whether directly or indirectly and whether while or after ceasing to be an entrusted person) either:

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makes a record of information, or

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discloses information; and

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the person obtained the information either:

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because of the person being an entrusted person, or

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in the course of carrying out the person's duties as an entrusted person.

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

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for the circumstance that the person was or is an entrusted person-recklessness is the fault element;

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for the conduct of making a record or disclosure-intention is the fault element;

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for the circumstance that the person acquired the information as an entrusted person-recklessness is the fault element.

11.30 Proof of intention or knowledge would also satisfy the fault elements for the first and third physical elements (see subsection 5.4(4) of the Criminal Code). A person would generally know that they were or had been an entrusted person, for the purposes of the first element of the offence-as the definition of entrusted person is limited to persons who are a staff member of the NACC, the Inspector, or a person assisting the Inspector. Similarly, a person would generally know whether they acquired particular information as an entrusted person-effectively, whether they acquired particular information at work.

11.31 This offence would apply to a person who obtained information because of their status as an entrusted person, and would not require proof that harm had, or could have, occurred if the information was disclosed. This is appropriate, as:

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the offences would apply to a limited number of entrusted persons voluntarily working in that capacity, who occupy positions of significant public trust and responsibility;

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the unauthorised disclosure of information from the NACC or Inspector could reasonably be expected to cause a range of significant harms-even where the information disclosed is not inherently sensitive; and

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it would not be possible to limit the scope of the offence to particular categories of information, without leaving certain, significant categories of harms unprotected.

11.32 The entrusted persons subject to the offence-the Commissioner and staff members of the NACC, and the Inspector and persons assisting the Inspector, would hold positions of significant public trust, being charged to undertake significant and sensitive investigations into allegations of serious or systemic corrupt conduct involving public officials. Entrusted persons would be vested with extraordinary powers that exceed those granted to Commonwealth Royal Commissions to undertake those investigations-including covert surveillance powers, and powers to compel persons to give information and answer questions that may be self-incriminating or protected by legal professional privilege, or that would ordinarily be amenable to a claim of public interest immunity.

11.33 The unauthorised disclosure of information from the NACC or Inspector could result in significant, direct harms, including the prejudice of investigations into serious or systemic corrupt conduct, damage to a person's reputation and mental health, or the compromise of the identity of a whistleblower or confidential source-which could expose those persons to significant risks to their life, safety or wellbeing.

11.34 The powers that would be conferred on the Commissioner and Inspector would be exceptional. The NACC and the Inspector must be able to be trusted to carry out their functions in an effective and impartial manner, and to protect the kinds of highly sensitive information they obtain. The unauthorised disclosures of information by the Commissioner or staff members of the NACC, or the Inspector or persons assisting the Inspector-even where those disclosures do not cause one of the aforementioned harms-would risk serious damage to that trust, and therefore to the sustainability of the powers and functions vested in those offices.

11.35 The unauthorised disclosure of information from the NACC or Inspector could prejudice current and future operations, even where the information in question is not inherently sensitive. The Commissioner and the Inspector will depend on the trust and confidence of whistleblowers, confidential informants and other persons who may voluntarily disclose information, to detect and investigate serious or systemic corrupt conduct. Any perception that the Commissioner or Inspector are unable to safeguard information in their possession, even where that information may not be inherently sensitive, is likely to undermine that trust and confidence.

11.36 This harm is likely to arise notwithstanding that the Bill would contain strong protections for whistleblowers and other persons providing information to the Commissioner and Inspector (see Part 4)-it is self-evidently the case that many such persons would be less likely to provide information to the Commissioner or Inspector if they perceived there was any risk that their identity would not be protected. This would particularly be the case in significant or high-profile investigations, and investigations with any connection to organised criminal groups, where persons may reasonably be concerned about sustained public scrutiny and abuse, or criminal retaliation.

11.37 It would not be possible to limit the scope of the offence to apply to only particular categories of information, or to information the disclosure of which would cause particular categories of harm-such as information the disclosure of which would be likely to prejudice a particular investigation, or the security or defence of Australia. Such a limitation would risk allowing the disclosure of information that would result in a wider range of harms such as those outlined above.

11.38 The Bill would provide multiple avenues for information about investigations and public inquiries, and the activities of the NACC and Inspector more broadly, to be made public, including:

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the Bill would enable the Commissioner and Inspector to hold public hearings, where satisfied that exceptional circumstances justify holding the hearing in public and it would be in the public interest to do so (see clauses 73 and 214, and require their reports to be tabled in Parliament where an investigation has been conducted in public (see clauses 155 and 221);

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the Commissioner and Inspector will have a discretion to publish their reports in all cases, in the public interest (see clauses 156 and 222);

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the Commissioner and Inspector would have discretion to make public statements and release information to the public on public interest grounds at any time (see clauses 48 and 230), subject to appropriate safeguards against the premature disclosure of corruption findings or opinions;

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it would be open to staff members of the NACC to make public interest disclosures under the PID Act and refer corruption issues and complaints to the Inspector, and for persons assisting the Inspector to make Public Interest Disclosures; and

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the NACC and the Inspector would be overseen by the Parliamentary Joint Committee on the National Anti-Corruption Commission, with functions to monitor and review the performance by the Commissioner and Inspector of their functions, and to report to the parliament on any matter connected with the performance of those functions (see Division 1 of Part 10).

11.39 The NACC and the Inspector would also be subject to other transparency frameworks, including the Freedom of Information Act 1982.

11.40 In light of all of the above, it would be appropriate to require the publication or disclosure of information from the NACC or Inspector to be done only in an authorised manner.

11.41 The maximum penalty for this offence would be two years imprisonment. The penalty for this offence is appropriate given the harm that may flow from an unauthorised disclosure, and is consistent with comparable offences in section 122.4 of the Criminal Code and section 207 of the LEIC Act.

11.42 This offence would not apply if the exceptions and authorisations to record or disclose information in clauses 229 or 230 apply, for example where the person records or discloses the information for the purposes of performing a function or duty under the NACC Bill. The defendant would bear an evidential burden in relation to these defences (see subsection 13.3(3) of the Criminal Code). It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by clause 229 or 230, because:

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the reasons why an entrusted person obtained, recorded or disclosed information would be solely and entirely within the knowledge of the entrusted person, and it would not be onerous for the person to adduce or point to evidence that suggests a reasonable possibility of that purpose;

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it would be onerous for the prosecution to disprove matters peculiarly within the knowledge of a defendant, including the reasons why an entrusted person obtained, recorded or disclosed information and whether the Commissioner or Inspector were satisfied of the appropriateness of a disclosure; and

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

11.43 To rely on the defence, the person would only need to adduce or point to evidence suggesting a reasonable possibility that the information was recorded or disclosed for purposes connected with the exercise of the powers, or the performance of the functions or duties, of the Commissioner or the Inspector under the NACC Bill. If the person does so, and in order for the offence to apply, the prosecution would then need to discharge its legal burden to negate that possibility beyond reasonable doubt for the offence to apply.

Clause 229-Authorisations to record or disclose information

11.44 This clause would authorise entrusted persons to record or disclose information in appropriate circumstances, for example in the course of their duties or for the purposes of another government agency. In authorising the use and disclosure of information, this clause operates as an exception to the offence in clause 228 that requires an entrusted person to keep information confidential. Clause 229 would also provide positive authority for uses and disclosures that may otherwise be the subject of restriction under other laws (for example, the Privacy Act 1988).

11.45 This clause would-subject to appropriate additional restrictions outlined below-have effect despite any other clause in the NACC Bill. This would ensure that the permitted disclosures are not impliedly constrained by limitations on specific disclosure obligations or permissions located elsewhere in the NACC Bill.

11.46 This clause would allow an entrusted person to make a record or disclose information without committing an offence under clause 228. A defendant would bear an evidential burden in relation to the matters relied on in this clause. This is appropriate as the defendant would be best placed to identify whether a disclosure was authorised under this clause, for example by reference to the functions of the defendant as an entrusted person, and the purpose for which they engaged in particular conduct.

Disclosures for purposes connected with the functions, powers and duties of the entrusted person

11.47 An entrusted person would be able to make a record of, or disclose information, that they acquired because of being an entrusted person, or in the course of carrying out their duties as an entrusted person, for purposes connected with the exercise of the powers or the performance of the functions or duties of the Commissioner or the Inspector under the NACC Bill.

11.48 For example, this exception would enable a staff member of the NACC to disclose information to another Commonwealth agency or a State or Territory entity for the purposes of a joint investigation. This exception serves a different purpose to the exception at paragraph 11.52, which is directed towards disclosure of information for the recipient agency's functions, irrespective of whether there is a joint investigation occurring with the NACC.

11.49 The following additional restrictions would apply to a disclosure for purposes connected with the functions, powers and duties of an entrusted person:

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an entrusted person would not be able to disclose to the public or a section of the public, the whole or part of a protected information report, or information contained in such a report; and

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the disclosure would need to:

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comply with an Attorney-General's certificate issued under clause 235 unless the disclosure is made to an IGIS official;

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be consistent with an arrangement entered into under clause 239 (which deals with intelligence information);

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be in accordance with any direction about use and disclosure of investigation material or derivative material (see clause 100); and

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comply with the additional provisions concerning the use and disclosure of that material (see Subdivision B of Division 4 of Part 7).

11.50 If the information being disclosed was subject to a clause 235 certificate and the recipient of the information was an IGIS official, the entrusted person would need to notify the Attorney-General.

Disclosures to other entities by an authorised discloser

11.51 An authorised discloser (defined in subclause 227(1) to mean the Commissioner or the Inspector) would be permitted to disclose information to the head of a Commonwealth agency, or of a State or Territory government entity, if the authorised discloser is satisfied that it is appropriate to do so. The authorised discloser would need to have regard to the functions of the person or entity concerned.

11.52 The requirement for the authorised discloser to 'have regard to' the functions of the person or entity concerned would not require the authorised discloser to be certain that the disclosure of the information would assist the recipient in the performance of its functions. For example, this category of disclosure would permit the following disclosures:

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disclosures of evidence to the AFP or the CDPP for the purposes of considering a further criminal investigation or whether to institute a prosecution of a Commonwealth criminal offence (see paragraphs 11.57 to 11.61);

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the referral of information relevant to an integrity agency to that agency where the information does not raise a corruption issue for the purposes of clause 41, but may raise an issue that could be within the integrity agency's functions to consider (see paragraph 6.11).

11.53 It is appropriate that only an authorised discloser (or any delegate provided for in a delegation made under clause 276 or 276A) rather than all entrusted persons, would be able to make disclosures to other agencies, for the purposes of the other agency's functions. Such disclosures would involve the transfer or handing over of information to another for a purpose that is separate to the Commissioner or Inspector's functions-as distinct to disclosures to assist or enable entrusted persons to perform their day-to-day functions and duties. There would be many circumstances in which such a disclosure would be appropriate-including, for example, disclosing information to the CDPP as part of a referral of a matter for prosecution. However, as these disclosures are not required for the day-to-day performance of functions or duties by most entrusted persons, it is fitting that the discretion for disclosure of this information be exercised at a higher level.

11.54 Additional restrictions would apply to a disclosure to another entity for that entity's functions. The disclosure would need to

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comply with an Attorney-General's certificate issued under clause 235 unless the disclosure is made to an IGIS official;

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be consistent with any arrangement entered into under clause 239 (which deals with intelligence information);

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be in accordance with any direction about use and disclosure of investigation material or derivative material (see clause 100); and

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comply with the additional provisions concerning the use and disclosure of that material (see Subdivision B of Division 4 of Part 7).

11.55 If the information being disclosed was subject to a clause 235 certificate and the recipient of the information was an IGIS official, the authorised discloser would need to notify the Attorney-General.

11.56 For example, this clause would permit the Commissioner to share evidence collected during an investigation or inquiry with the head of a police force or a director of public prosecutions for the purposes of considering a further criminal investigation or whether to institute a criminal prosecution. The Commissioner would also be able to share evidence with other investigative and prosecuting bodies in appropriate circumstances. The Commissioner would also be able to share evidence with a Commonwealth agency for the purposes of the agency considering whether to take disciplinary action against a staff member.

11.57 This is consistent with the objects of the NACC Bill. The relevant objects of the NACC Bill in clause 3 are to facilitate the timely investigation of corruption issues that involve or potentially involve corrupt conduct that is serious or systemic, and to enable, after investigation of a corruption issue, the referral of persons for criminal prosecution, civil proceedings or disciplinary action.

11.58 For the purposes of a further criminal investigation, a disclosure would be able to include investigation or derivative material (subject to the additional restrictions outlined in Subdivision B of Division 4 of Part 7). Where an agency, for example the AFP, has received investigation or derivative material from the NACC, directions made under that Subdivision and conditions imposed under clause 233 would outline parameters for the use and further disclosure of investigation and derivative material.

11.59 The relevant parameters would include the circumstances when an agency may use investigation material to obtain derivative material (clause 104), when such material could then be disclosed to a prosecutor (clause 105), and then used by a prosecutor (clause 108). Compulsorily obtained information would not be admissible in evidence against a person, except in certain circumstances (clause 113).

11.60 Subject to parameters of that kind, any material or other information disclosed to an entity on this basis would be able to be used by the entity for its functions and subject to confidentiality requirements imposed on that entity, for example under its enabling legislation. This would enable a law enforcement agency to use or disclose investigation material, including for the purposes of obtaining derivative material under clause 104.

Disclosures between the Commissioner and the Inspector

11.61 This clause would allow the Commissioner and the Inspector to disclose information to each other if the Commissioner or the Inspector (as the case may be) is satisfied that it is appropriate to do so. This is appropriate, to enable a seamless flow of information between the NACC and the Inspector to support the Inspector's oversight of the NACC and the effective investigation of NACC corruption issues.

11.62 The disclosure would need to:

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be consistent with any arrangement entered into under clause 239 (which deals with intelligence information);

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be in accordance with any direction about use and disclosure of investigation material or derivative material (see clause 100); and

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comply with the additional provisions concerning the use and disclosure of that material (see Subdivision B of Division 4 of Part 7).

11.63 The Commissioner and the Inspector would be permitted-unlike disclosures to Commonwealth and State and Territory government entities-to disclose information to each other that is subject to an Attorney-General's certificate under clause 235. An Attorney-General's certificate is only intended to protect the disclosure of certain information to persons who are not entrusted persons. The Commissioner and the Inspector would not be prevented from receiving this information where it is appropriate.

Disclosures required by another Commonwealth law

11.64 This clause would permit the disclosure of information if the disclosure was required under another law of the Commonwealth. This would ensure that entrusted persons would be able to comply with other legislative requirements.

11.65 For example, the Freedom of Information Act provides a legally enforceable right for an individual to request access to documents held by a Commonwealth agency, and, subject to any applicable exemptions and exceptions under the Freedom of Information Act, an obligation on the agency to comply with the request. A disclosure of this nature would not contravene clause 232-which provides that entrusted persons would generally not be compellable in court proceedings-as the Commissioner would likely be listed a respondent to the freedom of information request.

11.66 Similarly, the Commonwealth Ombudsman has a range of powers to obtain information and documents, and to inspect records, when conducting an investigation or inspection-including, for example, the power to obtain information or documents relevant to an investigation under the Ombudsman Act 1976 (section 9 of that Act), a suite of powers to inspect records and obtain information to determine the compliance of an agency with the Surveillance Devices Act 2004 (sections 55 to 57 of that Act), and a legal right to inspect records to determine the compliance of an agency with Part 15 of the Telecommunications Act 1997 (section 317ZRB of that Act). A disclosure in compliance with such a power or right would not contravene clause 232, as the Commonwealth Ombudsman is a Commonwealth integrity agency (see paragraph 232(1)(b)).

11.67 The disclosure under this clause would need to be consistent with an arrangement entered into under clause 239, which deals with intelligence information. If an arrangement under clause 239 prevented the disclosure of information, the agency administering the relevant Commonwealth law would need to seek the intelligence information directly from the relevant intelligence agency.

11.68 Information subject to an Attorney-General's certificate under clause 235 would also be able to be disclosed under this clause. It is intended that an Attorney-General's certificate under clause 235 would only be able to limit the disclosure of information for the purposes of this Bill, and would not be able to override other legislation. While this clause would permit disclosures that are required by or under another Commonwealth law, it would not displace the operation of other secrecy provisions that may restrict the secondary disclosure of the information, or public interest immunity or other grounds on which disclosure may be resisted in appropriate circumstances.

Disclosures to protect life or physical safety

11.69 This clause would permit an authorised discloser (or any delegate provided for in a delegation made under clause 276 or 276A) to disclose information to a particular person if the authorised discloser is satisfied that doing so would be necessary to protect that or another person's life or physical safety. It is appropriate that additional restrictions do not apply to disclosures under this clause, and for there to be a subjective test for such disclosures, given the importance of protecting life and physical safety and the likelihood that such disclosures will be required in exigent circumstances.

Disclosures of publicly available information

11.70 This clause would permit a person to make a record of information, or disclose information, if the information has already been lawfully made available to the public.

11.71 Once information is lawfully made available to the public, for example during a public hearing, in an investigation report that has been tabled in Parliament or published, or by the Commissioner or the Inspector making a public statement, any non-disclosure requirements under the NACC Bill would cease to apply. This is because this clause would apply despite any other clause in the NACC Bill, and would apply broadly to 'a person' rather than a category of persons. This exception to the secrecy offence in clause 228 would affect, for example, non-disclosure notations for a notice to produce or a private hearing summons (clause 95).

Clause 230-Disclosure by authorised discloser in public interest

11.72 This clause would allow the Commissioner and the Inspector to publicly disclose information about the performance of their functions and the exercise of their powers, and the conduct of investigations and inquiries, in certain circumstances and subject to certain safeguards. This would enable the Commissioner and the Inspector to operate transparently, while preserving procedural fairness and appropriately protecting sensitive information obtained by the NACC and Inspector.

11.73 Under this clause, the Commissioner and the Inspector would be able to, if satisfied that it was in the public interest to do so, disclose information to the public or a section of the public about:

•

the performance of their functions and the exercise of their powers;

•

for the Commissioner:

-

a corruption investigation (see subclause 41(2)), whether conducted alone or jointly with a Commonwealth agency or a State or Territory government entity, and

-

a public inquiry (see clause 161).

•

for the Inspector:

-

a NACC corruption investigation (see subclause 210(2), whether conducted alone or jointly with a Commonwealth agency, the NACC or a State or Territory government entity), and

-

a NACC complaint investigation (see subclause 212(2)).

11.74 The Commissioner and the Inspector would perform the majority of their functions and activities in private, consistent with other investigative and law enforcement agencies. However, there may be circumstances where it would be in the public interest to make certain disclosures. For example, where those disclosures would support the efficient and effective performance of functions under the NACC Bill, and ensure the community has confidence in the integrity of Australia's institutions.

11.75 The disclosure of information under this clause would be subject to a number of limitations, and the Commissioner, or the Inspector as the case may be, would also need to comply with certain pre-disclosure obligations. Aside from these limitations and pre-disclosure obligations, this clause would not be limited by any other clause in the NACC Bill. This would ensure that the Commissioner and the Inspector have the discretion to determine whether to make a disclosure in the public interest.

11.76 This clause would not be intended to impliedly limit the Commissioner or the Inspector's ability to conduct public hearings in the manner they see fit, including the ability to make disclosures in the course of such hearings.

Opinions and findings

11.77 An authorised discloser would not be permitted to disclose information that includes an opinion or finding about whether a particular person engaged in corrupt conduct, unless the information was already contained in a report prepared by the Commissioner under Part 8 of the NACC Bill, or by the Inspector under Subdivision B of Division 4 of Part 10. It would not be appropriate for the Commissioner or the Inspector to make a public finding, or express a public opinion, about whether a particular person has engaged in corrupt conduct without having undertaken the rigorous process of preparing a report and providing the person in question with an opportunity to respond to the opinion or finding, in accordance with the procedural fairness requirements set out in Part 8 and Subdivision B of Division 4 of Part 10 of the NACC Bill, as the case may be.

Clause 235 certified and sensitive information

11.78 An authorised discloser would not be able to make a public disclosure under this clause if it would contravene a certificate issued under clause 235, or if the authorised discloser was satisfied that the information was sensitive information. This is appropriate, to ensure that the making of a public statement by an authorised discloser does not result in harm-for example, by revealing the identity of a confidential source.

11.79 An authorised discloser would need to consult with the head of each Commonwealth agency or State or Territory government entity to which the information that is proposed to be disclosed relates, about whether the information is sensitive information. This consultation requirement would apply for each disclosure under this clause, not just in situations where an authorised discloser suspects the information may fall within the definition of sensitive information. This ensures that the Commissioner or the Inspector, as the case may be, are 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.

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

Other limitations on disclosure

11.81 A disclosure under this clause would also be limited by:

•

any direction about the use or disclosure of investigation material under clause 100, and other limitations on the disclosure of such material under Subdivision B of Division 4 of Part 7;

•

the procedural fairness obligations under clause 231; and

•

any arrangement entered into under clause 239, which deals with intelligence information.

Clause 231-Opportunity to respond must be given before disclosure of critical opinions, findings and recommendations

11.82 This clause would require an authorised discloser to comply with certain procedural fairness obligations before disclosing 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 person, to the public under clause 230.

11.83 This clause would recognise that the publication of a critical opinion, finding or recommendation by an authorised discloser would have the potential to damage the reputation of the agency, entity, NACC, or person, as the case may be. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 56 4, the Court held that reputation is an interest that may attract the protection of the rules of procedural fairness.

Opportunity to appear and make submissions

11.84 The authorised discloser 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 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.

11.85 The requirement would not apply where the head of the agency, the head of the entity, the Commissioner or the person concerned had already been given the opportunity to respond to the opinion, finding or recommendation, prior to the information being included in an investigation report (see clause 153). This is appropriate as it would avoid an unnecessarily duplicative consultation requirement.

11.86 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;

•

in relation to the NACC-the Commissioner or a person authorised by the Commissioner; or

•

in relation to any other person concerned-the person concerned, or, with approval, a person representing the person concerned.

11.87 Where a person has provided a response to the opinion, finding or recommendation the common law rules of procedural fairness (see paragraph 11.84) would require the relevant authorised disclosure to consider the response in deciding whether and how to publicly disclose information under clause 230.

Clause 232-Entrusted persons generally not compellable in proceedings

11.88 This clause would provide that an entrusted person would generally not be able to be compelled to give evidence in proceedings that would involve the disclosure of information or documents obtained by that person in their capacity as an entrusted person.

11.89 This clause would recognise that the NACC and the Inspector would receive, and be able to obtain highly sensitive information from a variety of sources, including whistleblowers and confidential informants, Commonwealth agencies, and third parties. This would include national security information and information that would ordinarily be protected by public interest immunity. This is necessary to enable the Commissioner and Inspector to perform their functions. This clause would ensure that the Commissioner, the Inspector, and persons assisting the Commissioner and the Inspector cannot be required to disclose this information in proceedings that are unrelated to the NACC or the Inspector.

11.90 Similar protections appear in other Commonwealth legislation: section 211 of the LEIC Act, subsection 34(5) of the IGIS Act and section 35 of the Ombudsman Act.

11.91 A current or former entrusted person would not be compellable to disclose information or produce documents that were collected, obtained or produced under the NACC Bill, and which were acquired because of the person being, or having been, an entrusted person or in the course of carrying out the person's duties as an entrusted person.

11.92 This protection would apply to any proceedings of any court (whether exercising federal jurisdiction or not), tribunal, authority or person authorised to require the production of documents or the answering of questions. This includes a person who is authorised to hear, receive and examine evidence.

11.93 However, the protection would not prevent a Commonwealth integrity agency or a member of a Royal Commission from exercising their statutory powers to obtain documents and information from the NACC or the Inspector for the purposes of the agency or Royal Commission. This is appropriate to ensure the NACC Bill does not impede the functions of integrity agencies, including those agencies that have oversight over the functions of the NACC, for example the Commonwealth Ombudsman and the Auditor-General.

11.94 For the avoidance of doubt, this clause would confirm that produce includes permit access to, and that production has a corresponding meaning.

11.95 This clause contains a number of exceptions to this limitation, to ensure that entrusted persons can be compelled to give evidence in appropriate circumstances, being where:

•

the disclosure is in proceedings before a Commonwealth integrity agency or a Royal Commission-this clause is not intended to prevent or limit the investigation of a matter by another Commonwealth integrity agency, or the conduct of a Royal Commission;

•

one or more of the following entrusted persons are a party to the proceeding (such as where they are seeking an injunction or order for contempt, or are the respondent to a challenge against an exercise of a power):

-

a NACC Commissioner,

-

a delegate of the Commissioner,

-

a person appointed or authorised by the Commissioner to exercise a power or perform a function under the NACC Bill,

-

the Inspector,

-

the CEO;

•

the proceeding is brought for the purpose of carrying into effect a provision of the NACC Bill-for example, where a staff member of the NACC is charged with an offence; or

•

the proceeding is a criminal proceeding, civil penalty proceeding or confiscation proceeding brought as a result of:

-

a corruption investigation or a public inquiry;

-

a NACC corruption investigation or a NACC complaint investigation;

-

an investigation of a corruption issue that the Commissioner oversees; or

-

a referral of a corruption issue to a Commonwealth agency or a State or Territory government entity under paragraph 41(1)(d).

11.96 This clause would not limit the power of a court to obtain information and documents under the NACC Bill in the interests of justice. That is, this clause would not limit clauses 103 (concerning the disclosure of investigation material available to courts) or 106 (the court's powers to order a disclosure).

Clause 233-Confidentiality requirements for persons who receive information about investigations and inquiries

11.97 This clause would enable the Commissioner and Inspector to impose confidentiality requirements when an entrusted person is disclosing information to someone who is not an entrusted person. This would ensure that the Commissioner and Inspector can appropriately protect information that is disclosed, for example, as part of a joint investigation.

11.98 This clause would apply where an entrusted person (defined in subclause 227(2) to mean a staff member of the NACC, the Inspector or a person assisting the Inspector) discloses information to a person who is not an entrusted person, the information has not been lawfully made available to the public, and the information relates to:

•

a preliminary investigation conducted by the Commissioner in performing the Commissioner's function mentioned in paragraph 17(b);

•

a preliminary investigation undertaken by the Inspector in performing the Inspector's function mentioned in paragraph 184(1)(b);

•

a corruption investigation;

•

a NACC corruption investigation;

•

a NACC complaint investigation; or

•

a public inquiry.

11.99 The classes of information that may be protected under this clause would be limited to information that relates to an investigation or inquiry conducted by the NACC or Inspector. This would be a subset of information obtained or produced by the NACC and Inspector, and would not include, for example, information relating to the day-to-day administration of the NACC or Inspector.

11.100 In these circumstances, the authorised discloser (defined in subclause 227(1) to mean the Commissioner or the Inspector) would be able to, in writing, impose conditions on the making of a record of the information by the recipient or another person, and any on-disclosure of that information. The authorised discloser would be able to impose any condition they consider appropriate to:

•

prevent prejudice to the investigation or inquiry, or any action taken as a result of the investigation or inquiry;

•

prevent further disclosure of information contained in a protected information report; or

•

protect the identity of:

-

any person of interest to the investigation or inquiry; and

-

the person who has given, or who the authorised discloser reasonably believes may give, information to the authorised discloser in connection with the investigation or inquiry (including by giving evidence at a hearing).

11.101 The authorised discloser would have a discretion as to whether to impose a condition on the making of a record of the information or the further disclosure of the information, and if they do decide to impose conditions, the nature of the conditions. This discretion is appropriate, as it would provide the authorised discloser with flexibility to tailor non-disclosure conditions depending on:

•

the nature of the information (for example, whether the compromise of the information would prejudice an ongoing investigation or reveal the identity of a confidential source, or is of a less sensitive nature);

•

the recipient of the information (for example, whether they are a member of the public or another Government entity);

•

the statutory framework, if any, under which the recipient of the information operates (for example, whether the recipient would be legally required to protect information received from the NACC or Inspector in the performance of the recipient's functions); and

•

the circumstances surrounding the disclosure of the information (for example, whether the information is being disclosed in the context of a joint investigation).

11.102 This clause would only apply if the relevant information had not already been lawfully disclosed to the public, including in a public hearing, a report that is tabled or published, or in a public statement by the Commissioner or Inspector. This will ensure that any confidentiality condition imposed by the Commissioner or Inspector will automatically be lifted, if and when the information that is covered by the condition is lawfully made public.

11.103 A confidentiality notice given under this clause would be able to be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

Offence

11.104 This clause would make it a criminal offence to breach a direction issued by an authorised discloser under this clause.

11.105 The offence would consist of the following physical elements:

•

the person engages in conduct;

•

the person breaches a condition under subclause 233(2).

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

•

for the element of engaging in conduct-intention is the fault element; and

•

for the result element of the person's conduct breaches a condition imposed by the authorised discloser-recklessness is the fault element.

11.107 A person could only be aware of a substantial risk that their conduct will breach a condition imposed by the Commissioner or Inspector, if they are aware of a substantial risk that the information that they are dealing with is the subject of a condition. As recklessness is the fault element for the second physical element, proof of intention (that the person means to bring about the result is aware that the result will occur in the ordinary course of events) or knowledge (if the person is aware that the result exists or will exist in the ordinary course of events) will also satisfy the fault element (see subsection 5.4(4) of the Criminal Code).

11.108 The maximum penalty for this offence would be two years imprisonment. This penalty is appropriate given the serious consequences of a breach of a direction, including prejudicing an investigation or threatening the safety of a person whose identity is protected. The penalty for this offence is the same as a similar offence under the Criminal Code (see subsection 122.4(2) of the Criminal Code). The penalty is also consistent with the offence under clause 228 of the NACC Bill, which imposes confidentiality requirements on entrusted persons.

Division 2-Protected information reports

Clause 234-Public disclosure of protected information reports prohibited

11.109 This clause would make it a criminal offence for a person to disclose a protected information report, or information contained in a protected information report, to the public. This would ensure that sensitive information contained in these reports is appropriately protected against unauthorised disclosure.

11.110 The offence would consist of the following physical elements:

•

the person discloses the whole or part of a report, or information contained in a report;

•

the report is, or the information is contained in, a protected information report;

•

the disclosure is to the public, or a section of the public.

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

•

for the conduct of disclosing the whole or part of a report or information contained in a report-intention is the fault element;

•

for the circumstance that the report is, or the information is contained in, a protected information report-recklessness is the fault element. Proof of intention or knowledge would also satisfy this fault element (see subsection 5.4(4) of the Criminal Code). In practice, a person would know whether the report was a protected information report, or the information was contained in a protected information report, as such reports would be clearly titled and bear protective markings; and

•

for the circumstance that the disclosure was to the public, or a section of the public-recklessness is the fault element.

11.112 The maximum penalty for this offence would be two years imprisonment. This penalty is appropriate to ensure the protection of the kind of information subject to a protected information report, which is sensitive information (as defined in clause 227) and information subject to a certificate under clause 235 (see clauses 151 and 152). The public release of this information could have harmful ramifications, including for Australia's national security.

11.113 This offence would not apply if the exceptions and permitted disclosures in subclause 229(4) or clause 230 apply (set out below).

11.114 A defendant would bear an evidential burden in relation to this defence (see subsection 13.3(3) of the Criminal Code). It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by subclause 229(4) or clause 230, because:

•

in relation to subclause 229(4), which requires the disclosure to be both required by another law of the Commonwealth, and not inconsistent with an arrangement under clause 239:

-

the basis on which the person has been required to disclose the information and the reason why the disclosure is consistent with any arrangement under clause 239 is likely to be peculiarly within the knowledge of the person;

-

it would be an onerous task for the prosecution to prove the absence of a requirement for the person to disclose the information;

-

requiring the prosecution to disprove the existence of any possible requirement on the person would create a significant risk to successful prosecution and affect the deterrent effect of the offence; and

-

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

•

in relation to clause 230, which allows an authorised discloser to disclose information publicly if they are satisfied it is in the public interest:

-

whether the authorised discloser was so satisfied is likely to be solely and entirely within their knowledge, as the element turns on the subjective state of mind of the authorised discloser;

-

it would be an onerous task for the prosecution to disprove that an authorised discloser held the requisite state of mind; and

-

it would be highly unlikely that a prosecution would be brought where information indicating the availability of the defence-being information indicating that the authorised disclosure was satisfied that the disclosure was in the public interest-was available to the prosecution.

Permissible disclosures of protected information reports

11.115 Protected information reports and information contained in a protected information report would be able to be disclosed if the disclosure was required by another Commonwealth law (see clause 229). This is appropriate, as it would preserve the operation of other Commonwealth laws and would ensure, for example, that:

•

the AFP could exercise its powers to obtain information contained in a protected information report, as part of a joint investigation with the Inspector into a suspected unauthorised disclosure of information contained in a protected information report from the Commission; or

•

the Auditor-General could obtain a copy of a protected information report, as part of a performance audit relating to the NACC.

11.116 However, clause 229 would not displace the operation of other secrecy provisions that may restrict the secondary disclosure of the information, or public interest immunity or other grounds on which disclosure may be resisted in appropriate circumstances. Additionally, an arrangement between the Commissioner or Inspector and the head of an intelligence agency under clause 239 could prevent or regulate the further disclosure of information under clause 229.

11.117 Protected information reports would be prepared at a particular point in time. The Commissioner and Inspector would be required to exclude information from an investigation report and include it in a protected information report if, at the time of preparing those reports:

•

the Commissioner or Inspector (as the case may be) was satisfied that the information was sensitive information; or

•

the information was subject to an Attorney-General's certificate given under clause 235.

11.118 After a period of time, it is possible that particular information contained in a protected information report may cease to be sensitive information, or that the Attorney-General may revoke or vary a certificate to narrow the range of information it covers. In such circumstances, it would be open to the Commissioner or Inspector (as the case may be), after consulting with the relevant agency head, to disclose that information if they thought it was in the public interest to do so (see clause 230).

Division 3-National security and related matters

11.119 This Division would outline the processes and arrangements for dealing with corruption issues, NACC corruption issues, and complaints made in relation to the conduct of the NACC or a staff member of the NACC, where they also relate to national security and other related matters.

11.120 Subdivision A would enable the Attorney-General to give two types of certificates:

•

a clause 235 certificate, which would allow the Attorney-General to certify that the further disclosure of certain information and documents that have been obtained by the Commissioner or Inspector would be contrary to the public interest; and

•

an international relations certificate, given under clause 236, which would allow the Attorney-General to certify that disclosure of information and documents to the Commissioner or the Inspector, that are subject to a binding international agreement between Australia and another country, would be contrary to the public interest.

11.121 Subdivision B would set out additional processes for dealing with corruption issues that have any connection with intelligence agencies or their functions. These processes would include certain mandatory consultation requirements, and a requirement for the Commissioner and Inspector to take all reasonable steps to enter into arrangements to protect intelligence information relating to an intelligence agency.

11.122 This Division would not exempt or otherwise exclude intelligence agencies and the IGIS from the Commissioner's jurisdiction. Rather, these arrangements would facilitate the performance by the Commissioner and the Inspector of their functions under the NACC Bill while protecting Australia's national security.

Subdivision A-Attorney-General's certificates about release of information

Clause 235-Attorney-General's certificate in relation to particular information

11.123 This clause would enable the Attorney-General to certify that the further disclosure of certain information and documents that have been obtained by the Commissioner or the Inspector would be contrary to the public interest. A certificate would protect this information and mitigate against the prejudicial consequences that may arise from its disclosure.

11.124 The NACC will have comprehensive jurisdiction over the Commonwealth public sector, including jurisdiction to investigate serious or systemic corruption issues relating to the most sensitive or classified Australian Government programs and activities. Corruption investigations and NACC corruption investigations are inherently concerned with how and why public decisions have been made, and so involve information relevant to decision-making processes.

11.125 The Commissioner and the Inspector will therefore have comprehensive access to information in the course of conducting a corruption investigation or a NACC corruption investigation, including powers to obtain information from intelligence agencies and the ADF that would ordinarily be protected by public interest immunity.

11.126 While it is essential that the Commissioner and the Inspector have full access to information to investigate serious or systemic corruption, it is also appropriate that there are controls on the further disclosure or publication of sensitive information.

11.127 The Attorney-General may issue a certificate that provides that it would be contrary to the public interest on one or more specified grounds (outlined at paragraph 11.131) to:

•

disclose specified information, or the contents of specified documents; or

•

provide information or documents to the Committee in relation to a specified matter.

11.128 Similar public interest certificate mechanisms exist in other legislation to limit the disclosure of certain information. For example, section 149 of the LEIC Act allows for the Attorney-General to issue a certificate which limits the disclosure of information by the Integrity Commissioner. Section 36 of the AAT Act allows for the Attorney-General to issue a certificate which limits the disclosure of certain information in the AAT, and section 4 of Schedule 1 to the Intelligence Services Act 2001 allows for a responsible Minister to issue a certificate which limits the disclosure of operationally sensitive information to the Parliamentary Joint Committee on Intelligence and Security.

Grounds for issuing a certificate

11.129 The Attorney-General would only be able to issue a certificate if:

•

the disclosure of the information or the contents of a document specified in the certificate would be contrary to the public interest on one or more of the grounds set out at paragraph 11.131; and

•

the Attorney-General is satisfied on reasonable grounds that issuing the certificate would be appropriate and is necessary to protect the public interest.

11.130 The grounds on which the Attorney-General could issue a certificate would be that the disclosure would:

•

prejudice the security, defence or international relations of Australia;

•

involve the disclosure of communications between a Minister and a Minister of a State or Territory, or between a Minister of a State or Territory and a Minister of another State or Territory, and would prejudice:

-

relations between the Commonwealth Government and the Government of a State or Territory, or

-

relations between the Government of a State or Territory and the Government of another State or Territory;

•

involve the disclosure of deliberations or decisions of the Cabinet or of any committee of the Cabinet;

•

reveal, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to:

-

the enforcement of the criminal law of the Commonwealth, a State or Territory or a foreign country,

-

a corruption investigation,

-

a NACC corruption investigation,

-

a NACC complaint investigation, or

-

a public inquiry;

•

reveal, or enable a person to ascertain, the identity of a person who is, or has been, a staff member of ASIO or ASIS;

•

reveal, or enable a person to ascertain, the identity of a person who is, or has been, an agent of:

-

ASIO,

-

ASIS,

-

the Australian Geospatial-Intelligence Organisation, or

-

the Australian Signals Directorate;

•

reveal information:

-

about the capabilities of, or information sources or operational activities or methods available to, a law enforcement agency, intelligence agency or the ADF,

-

about particular operations that have been, are being or are proposed to be undertaken by a law enforcement agency, intelligence agency or the ADF, or about proceedings relating to those operations, or

-

provided by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation, where that government or organisation does not consent to the public disclosure of the information;

•

prejudice the proper performance of the functions of the IGIS;

•

endanger a person's life or physical safety;

•

prejudice the protection of public safety;

•

prejudice the fair trial of any person or the impartial adjudication of a matter; or

•

prejudice the proper enforcement of the law (including through corruption investigations, NACC corruption investigations or NACC complaint investigations).

11.131 This clause would make it clear, for the avoidance of doubt, that the Attorney-General would not be able to issue a certificate if it was merely for the purposes of avoiding embarrassment or prejudice to a person's reputation.

11.132 It is appropriate that the Attorney-General be responsible for giving certificates on behalf of the Commonwealth. The Attorney-General is the Government's principal legal adviser and has a duty to maintain public confidence in the administration of justice and uphold the rule of law. The giving of a certificate would involve a balancing of competing public interests, in promoting transparency in relation to serious or systemic corrupt conduct and the performance by the Commissioner and the Inspector of their functions, and the protection of essential public interests including the security, defence and international relations of Australia, and the protection of the life and safety of individuals who may be endangered should particular information-including, for example, their cooperation with a corruption investigation-be revealed. The Attorney-General would be well-placed to appropriately balance these interests.

11.133 The Attorney-General would be able to seek and receive advice on whether the disclosure of particular information or the contents of a particular document would result in one or more of the listed harms and would be contrary to the public interest. This clause does not prescribe a process by which the Attorney-General must or could seek or obtain such advice. The need for the Attorney-General to consider the giving of a certificate could arise in a wide range of circumstances, requiring advice from any number and combination of Ministers, Commonwealth agencies, and other persons. Prescribing a particular process for the Attorney-General to request and receive advice would risk establishing an inflexible process that may be inefficient or ineffective in practice.

Contents of a certificate and obligations when a certificate is issued

11.134 If the Attorney-General issued a certificate, it would need to specify the kinds of disclosures that would be contrary to the public interest. This could include the disclosure of certain information generally, only in specific circumstances or where the disclosure is made to a specified class of person. The requirement for the Attorney-General to specify the kinds of disclosure that would be contrary to the public interest would:

•

ensure that a certificate would only prohibit disclosures that would be contrary to the public interest, guarding against the risk that a certificate may be overbroad-for example, a certificate might specify that disclosing the identity of a current ASIO staff member the public or to a wide range of Commonwealth public officials would be contrary to the public interest, while continuing to permit the disclosure of that staff member's identity in the version of the protected information report provided to Minister and the Director-General of Security, as the staff member's agency head; and

•

in a corresponding fashion, enable the Attorney-General to appropriately tailor the controls on the disclosure of particular information.

11.135 A certificate could also specify that the disclosure of the existence or non-existence of particular information, documents or things is itself contrary to the public interest because it would:

•

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

•

prejudice the proper performance of the functions of the IGIS.

11.136 The ability for a certificate to specify that the disclosure of the existence or non-existence of particular information, documents or things would be contrary to the public interest is appropriate, as it is limited to these narrow grounds. This would enable the Attorney-General to issue a certificate that would protect information relating to the existence or non-existence of, for example:

•

a classified military capability, where confirming the existence or non-existence of a particular capability would prejudice the defence of Australia by providing foreign militaries with insight into advanced or non-public capabilities;

•

an ongoing security intelligence investigation, where confirming the existence or non-existence of the investigation would prejudice the security of Australia by providing persons engaged in activities prejudicial to security, such as espionage or politically motivated violence, with insight into whether their activities have been detected; or

•

information in the possession of the Office of the IGIS, which has unfettered access to information and documents in the possession of Australia's intelligence agencies when investigating issues of legality and propriety in those agencies, subject to appropriate safeguards around the further disclosure or publication of that information-confirming the existence or non-existence of particular information held by the Office of the IGIS would, in particular circumstances, prejudice the proper performance of the functions of the IGIS.

11.137 The Attorney-General would be required to give a copy of a certificate to:

•

the Commissioner;

•

the Inspector; and

•

the person who holds the relevant information or document, or where a Commonwealth agency holds the information or document, the head of the agency.

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

Effect of a certificate and obligations under the NACC Bill

11.139 An Attorney-General's certificate under this clause would limit the disclosure of information by the Commissioner and the Inspector but would not prevent the Commissioner or the Inspector from receiving certified information for the purposes of, for example, a corruption investigation, a NACC corruption investigation or a NACC complaint investigation.

11.140 A disclosure made under the NACC Bill would contravene a certificate issued under this clause if the disclosure is contrary to the public interest according to the terms of the certificate. Accordingly, disclosures of information would be restricted or prevented if that information has been certified under this clause.

11.141 Table 6 lists the clauses in the NACC Bill that would prohibit or regulate the disclosure of information, documents or things covered by a certificate.

Table 6-Provisions in the NACC Bill that would give effect to a clause 235 certificate

Relationship between sensitive information under clause 227 and information subject to an Attorney-General's Certificates given under clause 235

11.142 The Commissioner and Inspector would be subject to a number of obligations to protect information that they are satisfied, after consulting with the relevant agency head, is sensitive information. A number of these obligations would mirror the obligations that could be imposed by the Attorney-General to protect information under a certificate given under clause 235. However, there are a number of differences between the two frameworks. In general terms, the Attorney-General would be able to impose greater and more targeted controls on the disclosure of a narrower range of information under a clause 235 certificate, than would apply to the disclosure of sensitive information.

11.143 It is intended that the Commissioner and Inspector would, in consultation with relevant agency heads, have primary responsibility for the protection of sensitive information. The clause 235 certificate framework is intended to enable the Attorney-General, on behalf of the Commonwealth, to impose additional or more specific protective requirements, in circumstances where there is a high degree of certainty that a specified disclosure would cause a particular prejudice or harm.

11.144 An Attorney-General's certificate under clause 235 would be capable of protecting a narrower range of information than could be covered by the definition of sensitive information. For example, to issue a certificate under clause 235, the Attorney-General would need to be satisfied that disclosure of the information would cause the prejudice in each of the listed circumstances. For sensitive information, the threshold differs between would and could causing prejudice, depending on the type of information, as set out above (see paragraphs 11.23 and 11.25).

11.145 Additionally, there would be two categories of sensitive information that could not be subject to an Attorney-General's Certificate under clause 235-information that would involve unreasonably disclosing a person's personal affairs or confidential commercial information whereas such information cannot be the subject of an Attorney-General's Certificate. The Attorney-General would not be likely to be better-placed than the Commissioner or the Inspector to determine whether information falling into these categories should be published.

11.146 The Commissioner and Inspector would generally be precluded from publishing sensitive information. However, they would generally be permitted to disclose that information to other Commonwealth, State or Territory agencies-including as part of a joint investigation, or when referring a corruption issue to them for investigation or consideration. The sensitive information framework would be primarily directed at mitigating harms that may arise from the publication of such information.

11.147 By comparison, the Attorney-General could provide that information covered by a clause 235 certificate cannot be disclosed to another agency (see clause 229). This would enable the Commissioner or Inspector to obtain and use particular, highly sensitive information as part of corruption investigation, while enabling the Attorney-General to mitigate harm or prejudice that would arise if that information were disclosed beyond the NACC or Inspector.

Clause 236-Attorney-General's certificate in relation to international relations

11.148 This clause would enable the Attorney-General to certify that the disclosure to the Commissioner or Inspector of specified information or documents communicated in confidence by a foreign government or international organisation, under a legally-binding agreement, would be contrary to the public interest. This would be appropriate, to ensure that the Australian Government complies with its international legal obligations.

11.149 The Australian Government, and Australia, benefit from foreign governments and international organisations sharing information with our agencies, in confidence-including, for example, highly sensitive intelligence information, and information relating to military technologies and capabilities. Such information is often shared under legally-binding agreements, that require the consent of the originating party before the information may be used for any purpose other than that for which it was originally provided. If the Australian Government breached legally-binding obligations of confidence to a foreign government or international organisations, it is likely that those-and other-governments and organisations would be less willing or unwilling to share such information with the Australian Government in the future.

Grounds for issuing a certificate

11.150 The Attorney-General would have the discretion to issue a certificate that provides that it would be contrary to the public interest (according to the ground outlined in paragraph 11.153) to disclose specified information or the contents of specified documents.

11.151 The Attorney-General would only be able to issue a certificate if they are satisfied on reasonable grounds that issuing the certificate would be appropriate and necessary to protect the public interest.

11.152 The Attorney-General would only be able to issue a certificate under this clause on the grounds that disclosure would be contrary to the public interest on the grounds the disclosure would harm or prejudice Australia's international relations in relation to information that was communicated in confidence, under an international agreement:

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by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and

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to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth.

11.153 A key consideration as to whether the Attorney-General should exercise their discretion to issue a certificate on the ground that a disclosure of information would harm or prejudice Australia's international relations, would be whether:

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the Australian Government has sought the consent of the foreign government to disclose the information to the NACC; and

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the foreign government has refused to give that consent.

11.154 The grounds on which the Attorney-General can issue a certificate under this clause would be especially limited, as the certificate would prevent the Commissioner or the Inspector from receiving or obtaining information, compared to a clause 235 certificate which restricts the disclosure of information by the Commissioner and the Inspector.

11.155 For the avoidance of doubt, this clause makes it clear that the Attorney-General would not be able to issue a certificate if it was merely for the purposes of avoiding embarrassment or prejudice to a person's reputation.

Contents of a certificate and obligations when a certificate is issued

11.156 A certificate under this clause must be given in writing, and would certify that the disclosure of information or the contents of documents specified to the certificate would be contrary to the public interest.

11.157 A certificate could also specify that the disclosure of the existence or non-existence of particular information, documents or things is itself contrary to the public interest because it would contravene the ground outlined in paragraph 11.153. This would be appropriate, to ensure that the Australian Government does not breach its international legal obligations by disclosing the existence or non-existence of a matter that it has undertaken to keep confidential.

11.158 The Attorney-General would be required to give a copy of the certificate to:

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the Commissioner;

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the Inspector; and

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the person who holds the relevant information or document, or where a Commonwealth agency holds the information or document, the head of the agency.

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

Effect of a certificate and obligations under the NACC Bill

11.160 This clause is self-executing and would operate despite any other provision of the NACC Bill. A person would be prohibited from disclosing information or documents under the NACC Bill if doing so would contravene an international relations certificate issued under this clause.

Subdivision B-Arrangements relating to intelligence agencies and the IGIS

Clause 237-Person investigating or inquiring must consult-security matters

11.161 This clause would require the Commissioner and the Inspector to consult the head of ASIO, if they become aware that a corruption issue or inquiry relates in any way to a security matter.

11.162 A security matter would be defined-consistent with the definition in section 4 of the ASIO Act-as:

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espionage;

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sabotage;

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politically motivated violence;

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promotion of communal violence;

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an attack on Australia's defence system;

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an act of foreign interference; or

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a serious threat to Australia's territorial and border integrity.

11.163 This clause would require consultation where a corruption issue or inquiry relates 'in any way' to a security matter, and would impose an ongoing consultation obligation that would be triggered at any point in time at which the Commissioner or Inspector 'become aware' of that relationship. This would be an intentionally broad requirement, to ensure that any potential security matter is brought to ASIO's attention-for example, where a corruption issue involves an issue of whether the misuse of classified information may have exposed that information to a foreign power.

11.164 If the issue or inquiry relates to the head of ASIO, the Commissioner or Inspector would be required to consult with the head of ONI instead. This would be appropriate, to avoid any risk of prejudice to a corruption investigation that might arise, if there were a mandatory requirement for the Commissioner or Inspector to consult with a person to whom a corruption issue or investigation relates.

11.165 It is intended that the Commissioner or Inspector would consider any advice provided by the head of ASIO or ONI, as the case may be, when considering:

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whether to commence or continue a corruption investigation or public inquiry-including, for example, where the security matter is already being investigated by ASIO and the conduct of a simultaneous corruption investigation or inquiry may be unnecessary, or may risk prejudice to security; and

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how to conduct a corruption investigation or inquiry in a manner that mitigates any risk of prejudice to security-including, for example, whether to canvass particular issues at a public hearing, or to confine the investigation or inquiry to areas that would not intersect with the security matter.

Clause 238-Consultation before requiring information, documents or things from IGIS officials

11.166 This clause would outline a requirement for the Commissioner and the Inspector to consult with the head of an intelligence agency when exercising a power to require an IGIS official to give information, documents or things that originated from or were collected by an intelligence agency, or that otherwise concerns the activities of an intelligence agency.

11.167 The IGIS has unfettered access to information and documents held by Australia's intelligence agencies, to ensure that the IGIS can effectively investigate complaints and provide the Government with assurances as to the legality and propriety of those agencies' conduct. IGIS officials are subject to strict confidentiality obligations to protect this information, and are generally not compellable to produce information or documents to any court, tribunal, authority or person with powers to require the production of documents or the answering of questions.

11.168 Item 121 of the Consequential and Transitional Amendments Bill would amend the IGIS Act to authorise IGIS officials to provide information to the Commissioner and Inspector, including in response to notices to produce or in evidence at a private hearing. This amendment is necessary and appropriate to ensure that:

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the IGIS may provide the Commissioner with all relevant information, when referring a corruption issue that relates to an intelligence agency that the IGIS considers is likely to involve serious or systemic corrupt conduct to the Commissioner, in accordance with clause 34; and

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relevantly to this clause, the Commissioner or Inspector can require IGIS officials to give information, documents or things when, in particular, conducting a corruption investigation or NACC corruption investigation that relates to an IGIS official.

11.169 This clause would require the Commissioner or Inspector to consult with the head of the relevant intelligence agency, before requiring an IGIS official to give information, documents or things that originated from or were collected by the intelligence agency, or that otherwise relate to the agency's activities. This would ensure that the head of the intelligence agency is aware that their agency's information may be obtained by the Commissioner or Inspector, and would enable the agency head to:

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provide the Commissioner or Inspector with advice as to whether it is necessary or appropriate to obtain the information, document or thing in question-for example, where the information, document or thing would be of limited investigative value to the Commissioner or Inspector, but would be highly sensitive;

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provide the Commissioner or Inspector with advice as to protective security measures that ought to be put in place, to protect the information, document or thing while it is in the Commissioner or Inspector's possession;

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provide the Commissioner or Inspector with broader advice about particular risks to national security that may arise in the course of the investigation; or

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seek a new or varied arrangement under clause 239 to protect the information, document or thing.

11.170 In deciding whether to require the IGIS official to give the information, document or thing, the Commissioner or Inspector must consider the views of the intelligence agency, but would not be bound by them. This is appropriate to preserve the independence of the Commissioner and Inspector.

11.171 The Commissioner or the Inspector would not be required to consult with the head of the intelligence agency before obtaining the information, document, or thing from an IGIS official, if doing so would be likely to prejudice:

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a corruption investigation, a NACC corruption investigation or the conduct of a public inquiry; or

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any action taken as a result of a corruption investigation, a NACC corruption investigation or a public inquiry.

Clause 239-Arrangements for obtaining and protecting intelligence information

11.172 This clause would require the Commissioner and the Inspector to take all reasonable steps to enter into an arrangement with the head of an intelligence agency relating to the obtaining, protection and disclosure of intelligence information relating to that agency.

11.173 As a non-corporate Commonwealth entity, the NACC will be subject to the Protective Security Policy Framework in accordance with the Attorney-General's Directive on the Security of Government Business.

11.174 This clause would enable the Commissioner or Inspector to agree to supplementary controls to those set out in the Protective Security Policy Framework to, for example:

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facilitate appropriate consultation with the intelligence agency to ensure that the Commissioner or Inspector have full access to intelligence information that is relevant to a particular investigation, while minimising access to intelligence information that is not relevant to the investigation;

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enable the intelligence agency to make highly sensitive information and documents available to the NACC or Inspector for inspection at the agency or IGISs premises in the first instance;

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ensure that the NACC and Inspector comply with any special handling requirements that may apply to certain intelligence information; or

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put in place protective arrangements that are tailored to the NACC or Inspector's operations-such as arrangements for protecting the identity of staff members or agents of an intelligence agency when arriving and departing from a private hearing.

11.175 The term 'intelligence information' is defined in the same terms as in Schedule 1 of the Intelligence Services Act 2001 and means any information that:

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was acquired or prepared by or on behalf of an intelligence agency in connection with its functions;

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relates to the performance by an intelligence agency of its functions; or

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identifies a person as being, or having been, a staff member (within the meaning of the Intelligence Services Act 2001) or agent of ASIO or ASIS.

11.176 The Commissioner would be required to take all reasonable steps to ensure that:

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at any time while the Commissioner or a staff member of the NACC are obtaining, storing, accessing, using or disclosing intelligence information relating to an intelligence agency, an arrangement is in force with the head of the intelligence agency; and

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any obtaining, storage, accessing, use or disclosure of intelligence information relating to the agency is done in accordance with the arrangement.

11.177 If the Commissioner had taken all reasonable steps to ensure that an arrangement was in force with the head of the relevant intelligence agency, the fact that an arrangement is not in force would not prevent the Commissioner or a staff member of the NACC from obtaining, storing, accessing, using or disclosing intelligence information relating to the agency at that time.

11.178 Subclause 239(3) imposes similar obligations on the Inspector. This is appropriate to ensure that the absence of an arrangement-which would supplement the Protective Security Policy Framework-does not prevent the Commissioner and Inspector from obtaining intelligence information as part of a corruption investigation or NACC corruption investigation that relates to a staff member of an intelligence agency.

11.179 For the avoidance of doubt, an arrangement entered into by the Commissioner or the Inspector cannot prevent the exercise of their powers, or the performance of their functions under the NACC Bill. An arrangement would allow the Commissioner or Inspector to agree to, for example, consult before obtaining particular intelligence information or to handle particular intelligence information in accordance with particular protective requirements-but it could not prevent the Commissioner or Inspector from obtaining particular intelligence information.

Subdivision C-Arrangements relating to foreign nationals

Clause 240-Person investigating or inquiring must consult-foreign nationals

11.180 This clause would outline a mandatory requirement for the Commissioner and Inspector to consult the Secretary of the Foreign Affairs Department where a corruption issue, a public inquiry, or a NACC corruption issue relates a foreign official, or the conduct of a foreign national that occurred outside Australia.

11.181 The Australian Government has officials posted across the world, and engages in international negotiations and relations. There would be circumstances in which it would be appropriate for the Commissioner or Inspector to undertake a corruption investigation or public inquiry that relates, in some way, to a foreign official, or to the conduct of a foreign national that occurred outside Australia-for example, where an Australian public official and a foreign official have conspired to engage in serious corrupt conduct against the Commonwealth.

11.182 However, the investigation of conduct undertaken by a foreign official may give rise to particular risks-including issues relating to foreign state immunity, or diplomatic privileges or immunities. Similarly, investigating conduct of a foreign national that occurred entirely in a foreign country may give rise to a range of risks and sensitivities-including potential sensitivities relating to any perceived infringement of the sovereignty of the relevant foreign country. This clause would seek to ensure that the Commissioner or Inspector (as the case may be) is positioned to manage any potential international legal risks, as well as international relations risks or sensitivities that may arise in such situations.

11.183 This clause would require the Commissioner and the Inspector to consult the Secretary of the Foreign Affairs Department if they become aware than a corruption issue or inquiry relates in any way to an official of a foreign country, or conduct in a foreign country of a person who is not an Australian citizen or a permanent resident of Australia (see paragraph 1.125). This would be an intentionally broad requirement to ensure that any matter that could prejudice Australia's international relations is brought to the Foreign Affairs Department's attention.

11.184 Consistent with the requirement to consult the head of ASIO under clause 237, it is intended that the Commissioner or Inspector would consider any advice provided by the Secretary of the Foreign Affairs Department when considering:

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whether to commence or continue a corruption investigation or public inquiry; and

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how to conduct a corruption investigation or inquiry in a manner that mitigates any risk of prejudice to Australia's international relations-including, for example, whether particular information would fall within the definition of sensitive information, whether to canvass particular issues at a public hearing, or to confine the investigation or inquiry to areas that would not raise international relations concerns.