Senate

Revised Explanatory Memorandum

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

PART 12 ADMINISTRATIVE PROVISIONS FOR THE NATIONAL ANTI-CORRUPTION COMMISSION

12.1 This Part would set out the administrative arrangements for the NACC, including the appointment and remuneration of NACC officer holders, engagement of NACC staff, immunities of NACC staff members, and annual reporting requirements.

Division 1-Appointment of the NACC Commissioners

12.2 This Division would provide for the appointment, tenure, remuneration and other terms and conditions for NACC Commissioners (including the Commissioner and Deputy Commissioners).

Clause 241-Appointment of the Commissioner

12.3 The Commissioner would be the head of the NACC and exercise a range of functions, as set out in clause 17. This clause would provide for the appointment of the Commissioner, including the appointment process, requisite qualifications, period of appointment, and basis of appointment.

Appointment

12.4 The Commissioner would be appointed by the Governor-General by written instrument on the recommendation of the Minister, after approval of the appointment by the Committee. Given the Commissioner would have significant powers and functions, it is appropriate that they should be appointed by the Governor-General.

12.5 Before the Minister makes a recommendation to the Governor-General regarding the appointment of the Commissioner, the Minister must have referred the proposed recommendation to the Committee for approval under clause 178.

12.6 Approval of the appointment may be obtained either by the Committee notifying the Minister that it has decided to approve the proposed recommendation, or by being taken to have approved the proposed recommendation.

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

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

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

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

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

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

Qualification for appointment

12.11 This clause would set out the minimum qualification requirements for a person to be appointed as the Commissioner. To be eligible for appointment, a person must be:

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

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

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

Period of appointment

12.13 The Commissioner would hold office for a single fixed term specified in the instrument of appointment. The period must not exceed 5 years. A 5-year term is consistent with the Government's Merit and Transparency policy for statutory appointments.

12.14 The Commissioner would not be able to be reappointed. This ensures the independence of the Commissioner, as they would not be concerned about their reappointment when conducting investigations, with no incentive to consider the regard in which they are held by the government of the day. This also ensures there is regular renewal in leadership of the NACC.

12.15 The Commissioner would be required to be appointed on a full-time basis. This reflects the fact that there would be a single Commissioner who would have a range of significant functions and powers associated with their role. This is expected to amount to a full-time workload that could not be effectively performed in a part-time capacity.

Clause 242-Appointment of the Deputy Commissioners

12.16 Deputy Commissioners would assist the Commissioner in the performance of the Commissioner's functions. This clause would provide for the appointment of Deputy Commissioners, including the appointment process, requisite qualifications, period of appointment, and basis of appointment. Consistent with clause 18, there could be up to three Deputy Commissioners.

Appointment

12.17 A Deputy Commissioner would be appointed by the Governor-General by written instrument on the recommendation of the Minister, after approval of the appointment by the Committee. Given a Deputy Commissioner would have significant powers and functions, it is appropriate that they should be appointed by the Governor-General.

12.18 Before the Minister makes a recommendation to the Governor-General regarding the appointment of a Deputy Commissioner, the Minister must have referred the proposed recommendation to the Committee for approval under clause 178.

12.19 Approval of the appointment may be obtained either by the Committee notifying the Minister that it has decided to approve the proposed recommendation, or by being taken to have approved the proposed recommendation.

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

•

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

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

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

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

12.23 Requiring the appointment to be approved by the Committee would ensure that the appointment is subject to appropriate oversight, and any recommended Deputy Commissioner has the confidence of the Parliament.

Qualification for appointment

12.24 This clause would set out the minimum qualification requirements for a person to be appointed as a Deputy Commissioner.

12.25 To be eligible for appointment, the Minister must be satisfied that a person has appropriate qualifications, knowledge or experience to undertake the role.

12.26 It would require at least 2 Deputy Commissioners (or if there is only one Deputy Commissioner-that Deputy Commissioner) to be:

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

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

12.27 This is appropriate because the Commissioner would be able to delegate all of their functions, powers and duties to a Deputy Commissioner (under clause 276), including powers relating to the conduct of hearings. It is also important for Deputy Commissioners to be appropriately skilled and qualified to act in the Commissioner's position when the Commissioner necessarily takes leave. To effectively discharge the powers, duties and functions of a Deputy Commissioner, at least two of the Deputy Commissioners should have the same specialist skills and expertise in applying statutory frameworks as the Commissioner. These skills will be possessed by a former judge of a federal, State or Territory court. Experienced legal practitioners will also have these skills, and the requirement for them to have enrolled as a legal practitioner for at least 5 years is consistent with the qualification requirements for Justices of the High Court as set out in section 7 of the High Court of Australia Act 1979.

12.28 Allowing for the appointment of a third Deputy Commissioner who does not hold the requisite legal qualifications would enable greater diversity in candidates and expertise across Commissioners. For example, it may be appropriate for a third Deputy Commissioner to have skills and experience in education, research or corruption prevention, which may not be skills held by former judges or experienced legal practitioners. In this case, it is appropriate for a person to have appropriate qualifications, knowledge or experience to undertake the role.

12.29 This clause would prevent a person being appointed as a Deputy Commissioner where they have previously been appointed as the Commissioner. This would ensure there is regular renewal in leadership of the NACC, and preserves the independence of the Commissioner that is achieved by the fact that they cannot be appointed to another senior leadership position in the NACC, whether at the Commissioner or Deputy Commissioner level.

Period of appointment

12.30 A Deputy Commissioner would hold office for the period specified in the instrument of appointment. The period must not exceed 5 years.

12.31 A Deputy Commissioner may be reappointed on one occasion after the Deputy Commissioner's first appointment, for an additional period not exceeding 5 years. This would allow for continuity in Deputy Commissioner appointments beyond the expiry of the Commissioner's single fixed term, and avoid all NACC Commissioner appointments expiring at the same time.

12.32 A Deputy Commissioner may be appointed on a full-time or part-time basis. There will be up to three Deputy Commissioners and it therefore may be possible and appropriate for Deputy Commissioners to be appointed on a part-time basis.

Clause 243-Acting appointments

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

12.34 An acting appointment could be made:

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

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

12.35 Over the course of a 5-year appointment, it will be essential for the Commissioner to have regular leave for rest and recreation, as well as personal leave for any periods of illness or injury. Given that appointment processes can be lengthy, and the approval of the Committee will also be needed for appointments to the position of Commissioner, it is also possible that the position could be vacant following the end of a Commissioner's appointment. This clause would ensure that the NACC has appropriate leadership and senior leadership across all of these circumstances.

12.36 Further rules regarding acting appointments are contained in sections 33AB and 33A of the Acts Interpretation Act 1901. These rules relate to the validity of things done under appointments and provide for the terms, conditions and duration of certain acting appointments.

Qualification for acting appointment

12.37 This clause would provide the requisite qualifications for an acting appointment. The qualification requirements for acting appointments reflect those for substantive appointments.

12.38 If the person is to act as the Commissioner, the person must meet the qualification requirements, as set out in paragraph 12.11 for the Commissioner (that is, they must be a former judge or experienced legal practitioner). If the person is to act as a Deputy Commissioner, the person must meet the qualification requirements, as set out in paragraphs 12.26 to 12.29 for Deputy Commissioners (that is, they must be a former judge, experienced legal practitioner, or have appropriate qualifications, knowledge or experience).

Clause 244-Remuneration

12.39 This clause would set out the means for determining the remuneration and allowances for a NACC Commissioner, which is defined in clause 7 to mean a Commissioner or a Deputy Commissioner.

12.40 A NACC Commissioner would be paid the remuneration that is determined by the Remuneration Tribunal. In the absence of a determination by the Tribunal, the NACC Commissioner would be paid the remuneration that is prescribed by the regulations.

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

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

12.43 The regulations would also be able to prescribe the allowances that a NACC Commissioner would be paid.

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

Clause 245-Leave of absence

12.45 This clause would outline the leave arrangements for NACC Commissioners.

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

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

12.48 The Minister would also be able to grant a Deputy Commissioner appointed on a part-time basis leave of absence on the terms and conditions that the Minister determines.

Clause 246-Other paid work

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

Clause 247-Disclosure of interests

12.50 This clause would require NACC Commissioners to disclose conflicts of interest to the Minister. This refers to a situation where a NACC Commissioner has, or acquires, an interest that may conflict with the performance of their functions.

12.51 A disclosure by a NACC Commissioner under section 29 of the PGPA Act must be made to the Minister. Section 29 of the PGPA Act provides that an official of a Commonwealth entity who has a material personal interest that relates to the affairs of the entity must disclose the details of this interest.

12.52 A NACC Commissioner would therefore be required to disclose any material personal interest that relates to the NACC or to an entity they are investigating. A breach of this requirement would be treated as a breach of section 29 of the PGPA Act.

12.53 The requirement in this clause would apply in addition to any rules made for the purposes of section 29 of the PGPA Act. For example, the PGPA Rule currently provides that a person who has disclosed an interest may not be present or vote at a meeting on the matter.

Clause 248-Other terms and conditions

12.54 This clause would enable the Governor-General to determine additional terms and conditions of a NACC Commissioner's appointment, to the extent those terms and conditions are not otherwise covered by the NACC Bill. This could include matters such as the location where the duties of the office are to be performed.

Clause 249-Resignation

12.55 This clause would allow a NACC Commissioner to resign their appointment by giving a written resignation to the Governor-General. The resignation would take effect on the day it is received by the Governor-General, unless a later day is specified in the written resignation. If a later day is specified then the resignation takes effect on that day.

Clause 250-Termination of appointment

12.56 This clause would set out the circumstances in which a NACC Commissioner's appointment could be terminated by the Governor-General.

12.57 The Governor-General would be able to terminate the appointment of a NACC Commissioner on the grounds of misbehaviour, or if the NACC Commissioner is unable to perform their duties because of physical or mental incapacity where each House of the Parliament, in the same session of the Parliament, presents an address to the Governor-General praying for the removal of the NACC Commissioner.

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

12.59 Requiring an address from both Houses of the Parliament before the termination of appointment of a NACC Commissioner is consistent with the arrangements for the removal of federal judges under the Constitution.

12.60 The Governor-General would be required to terminate the appointment of a NACC Commissioner in circumstances where they become financially compromised. This would include circumstances where a NACC Commissioner:

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becomes bankrupt;

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

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compounds with the NACC Commissioner's creditors; or

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

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

Division 2-The CEO, staff etc. and authorised officers

12.62 This Division would provide for the appointment of a CEO, the engagement of staff, consultants, counsel and other persons assisting the NACC, and the appointment of authorised officers.

Subdivision A-Appointment and functions of the CEO

Clause 251-The Chief Executive Officer

12.63 This clause establishes the role of a CEO of the NACC. The CEO would be the accountable authority of the NACC for the purposes of the PGPA Act. This model is consistent with the federal courts as well as State and Territory models (with the exception of Western Australia, Tasmania and the Northern Territory). Given the Commissioner would need to be a former judge or experienced legal practitioner (consistent with clause 241), it is desirable for a CEO to be appointed to manage the corporate and administrative affairs of the NACC, allowing the Commissioner to focus on the significant functions, duties and powers that would be vested in them.

Clause 252-Functions of CEO

12.64 This clause would provide that the functions of the CEO are to manage the affairs of the NACC, and ensure the NACC performs its functions. For example, the CEO would be responsible for managing the NACC's finances, property and assets, overseeing compliance with security requirements and ensuring corporate planning and reporting is effective and timely. This clause would also provide that the CEO has power to do all things necessary or convenient to be done for, or in connection with, the performance of the CEO's functions.

Clause 253-Commissioner may give directions to CEO

12.65 This clause would empower the Commissioner to give directions to the CEO about the performance of the CEO's functions. The CEO would be required to comply with any such direction. However, the CEO would not be required to comply with a direction to the extent the direction relates to the CEO's performance of functions or exercise of powers under the PGPA Act or the Public Service Act 1999. For example, the Commissioner would not be able to direct the CEO to govern the NACC in a way that does not promote the achievement of the NACC's purposes, which is a requirement imposed on accountable authorities by the PGPA Act.

12.66 A direction under this clause would not be a legislative instrument. This statement is included in the NACC Bill to assist readers, as a direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Clause 254-Appointment of CEO

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

Appointment

12.68 The CEO would be appointed by the Governor-General by written instrument on the recommendation of the Minister.

12.69 Before the Minister makes a recommendation to the Governor-General regarding the appointment of the CEO, the proposed recommendation must have been approved by the Commissioner. Requiring the Commissioner's approval would ensure the Commissioner is involved in selecting a suitable candidate, and supports their appointment. The Commissioner and CEO would need to work together closely and effectively, and this consultation would support the Minister to ensure that a candidate for CEO would be in a position to develop an effective working relationship with the Commissioner.

12.70 The Commissioner would not be able to delegate their duty to approve the appointment of the CEO (see clause 276).

12.71 The Committee would not be involved in approving the appointment of the CEO. This is appropriate given the CEO would manage the corporate and administrative affairs of the NACC and would not be involved in corruption investigations.

12.72 Under transitional arrangements, the first CEO would not require the Commissioner's approval. This is to ensure the NACC can be established with the Commissioner and CEO's appointments commencing on the same day.

Qualification for appointment

12.73 This clause would provide that a person must not be appointed as the CEO unless the Commissioner is satisfied that the person has appropriate qualifications, knowledge or experience. This requirement would ensure the person appointed as CEO holds the skillset required to effectively perform the CEO's functions, which may involve leadership and management of complex organisations, including budget and property responsibilities.

Period of appointment

12.74 The CEO would hold office for the period specified in the instrument of appointment. The period must not exceed 5 years. A 5-year term is consistent with the Government's Merit and Transparency policy for statutory appointments.

12.75 The CEO may be reappointed consistent with section 33AA of the Acts Interpretation Act 1901. There would be no compromise to the independence of the NACC if a CEO is reappointed, and it may be desirable to have a single occupant in the position of CEO for more than one term in order to maintain corporate knowledge on administrative matters.

Basis of appointment

12.76 The CEO would be required to be appointed on a full-time basis. The responsibilities of the CEO will be extensive and are expected to occupy a person on a full-time basis.

Clause 255-Acting appointments

12.77 This clause would enable the Commissioner to appoint a person as CEO on an acting basis, by written instrument, in certain circumstances. This ensures the CEO can take recreation or personal leave with appropriate arrangements to manage the responsibilities of the office.

12.78 An acting appointment could be made:

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

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

12.79 Further rules regarding acting appointments are outlined in sections 33AB and 33A of the Acts Interpretation Act 1901. These rules relate to the validity of things done under appointments and provide for the terms, conditions and duration of certain acting appointments.

Clause 256-Remuneration

12.80 This clause would set out the means for determining the remuneration and allowances for the CEO.

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

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

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

12.84 The regulations would also be able to prescribe the allowances that the CEO would be paid.

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

Clause 257-Leave of absence

12.86 This clause would outline the leave arrangements for the CEO.

12.87 The CEO would have the recreation leave entitlements that are determined by the Remuneration Tribunal.

12.88 It is appropriate for the recreation leave entitlements for the CEO to be determined by the Remuneration Tribunal as it is an independent statutory body that handles the remuneration and allowances of key Commonwealth offices. Given the significance of the responsibilities of the office of CEO, it is desirable for the recreation leave entitlements to be determined by an experienced, independent authority.

12.89 The Commissioner would also be able to grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

Clause 258-Other paid work

12.90 This clause would provide that the CEO is not to engage in paid work outside the duties of the CEO's office without the Commissioner's approval. This requirement would minimise the effective performance of the role on a fulltime basis and manage the risk of conflicts of interest occurring.

12.91 It would be appropriate for the Commissioner to approve any outside paid work as the Commissioner would be well-placed to assess whether the work can be managed without compromising the CEO's duties and whether any conflicts of interest would arise from the additional role.

Clause 259-Other terms and conditions

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

Clause 260-Resignation

12.93 This clause would allow the CEO to resign their appointment by giving a written resignation to the Governor-General. The resignation would take effect on the day it is received by the Governor-General, unless a later day is specified in the written resignation. If a later day is specified then the resignation takes effect on that day.

Clause 261-Termination of appointment

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

12.95 The Governor-General would have the discretion to terminate the appointment of the CEO on the grounds of misbehaviour, or if the CEO is unable to perform their duties because of physical or mental incapacity.

12.96 The Governor-General would be required to terminate the appointment of the CEO in certain circumstances. This would include circumstances where the CEO:

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becomes bankrupt;

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

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compounds with the CEO's creditors;

•

makes an assignment of the CEO's remuneration for the benefit of the CEO's creditors;

•

is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

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engages, except with Commissioner's approval, in paid work outside the duties of the CEO's office; or

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fails, without reasonable excuse, to comply with section 29 of the PGPA Act (which deals with the duty to disclose interests) or rules made for the purposes of that section.

12.97 The circumstances outlined above would be sufficiently objective and serious so as to warrant termination of an appointment without discretion, consistent with the termination grounds for the CEOs of the federal courts.

Subdivision B-Staff and consultants etc.

Clause 262-Staff

12.98 This clause would provide that the staff of the NACC must be persons engaged under the Public Service Act 1999. For the purposes of that Act, the CEO would be the head of a statutory agency consisting of the CEO and the APS employees assisting the CEO. As such, the CEO would have all the rights, duties and powers conferred under that Act including, for example, upholding and promoting the APS Values and APS Employment Principles outlined in that Act.

Clause 263-Consultants

12.99 This clause would authorise the CEO to engage consultants, on behalf of the Commonwealth, to assist in the performance of the NACC's functions. This could include, for example, an IT specialist appointed to assist with an investigation.

12.100 The consultants would be engaged on the terms and conditions that the CEO determines in writing, ordinarily the written agreement providing for the engagement of the consultant.

Clause 264-Persons assisting the NACC

12.101 This clause would allow for the NACC to be assisted by officers and employees of Agencies (within the meaning of the Public Service Act 1999), and authorities of the Commonwealth, whose services would be made available to the NACC in connection with the performance of any of the NACC's functions.

12.102 This clause would also authorise the CEO to make arrangements for officers or employees of State or Territory governments or government authorities, or government bodies or authorities of a foreign country, to perform services for the NACC. These arrangements may provide, for example, for police personnel or officers of other oversight or integrity agencies to assist the NACC in connection with the NACC's investigation functions.

12.103 An arrangement under this clause may provide for the Commonwealth to reimburse the State or Territory, or the government of the foreign country, for the services of persons who assist the NACC under an arrangement. This means that the home agency of the person would not necessarily be disadvantaged by making a person available to assist the NACC. The NACC will be able to bear the costs of that person's salary, allowing the home agency the flexibility to backfill the position.

12.104 When performing services for the NACC under this clause, a person is subject to the directions of the CEO and a NACC Commissioner. This is appropriate to ensure persons assisting the NACC comply with the requirements that would apply to staff members of the NACC in relation to the appropriate exercise of functions and powers. This would be particularly critical when a person assisting the NACC is also authorised to exercise powers as an authorised officer under Part 7 (the appointment of authorised officers is explained at paragraphs 12.109 to 12.113).

12.105 A constable (defined in clause 7 and paragraph 1.52) assisting the NACC under this clause would be able to continue to exercise their functions, powers and duties arising from their position as a constable. This will mean, for example, a constable would be able to exercise powers of arrest, however must comply with the relevant duties of a constable while exercising such powers.

Clause 265-Counsel assisting the NACC or a NACC Commissioner

12.106 This clause would authorise the CEO to appoint a legal practitioner to assist the NACC or a NACC Commissioner as counsel. Counsel could be engaged generally or in relation to a particular corruption investigation. For example, the CEO may appoint a legal practitioner as Counsel Assisting the NACC for a particular hearing.

Clause 266-Meaning of staff member of the NACC

12.107 This clause would list the persons who are defined as a staff member of the NACC for the purposes of the NACC Bill. Those persons are:

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the Commissioner;

•

any Deputy Commissioners;

•

the CEO;

•

a member of the staff referred to in clause 262;

•

a consultant engaged under clause 263;

•

a person referred to in clause 264 whose services are made available to the NACC; and

•

a legal practitioner appointed under clause 265.

12.108 The persons captured by this definition would be subject to the requirements (including confidentiality requirements), protections and oversight mechanisms provided for in the NACC Bill.

Subdivision C-Authorised officers

Clause 267-Appointment of authorised officers

12.109 This clause would permit the Commissioner to appoint authorised officers to exercise one or more of the powers conferred on authorised officers by Part 7 (investigating corruption issues), for example the execution of search warrants. This clause seeks to ensure that authorised officers possess skills, training and experience that reflect the significant and coercive nature of their powers under the NACC Bill.

12.110 An authorised officer would be either a staff member of the NACC or a member of the AFP. If the officer is a staff member of the NACC, they must also be a member of the AFP or the police force or police service of a State or Territory, or the Commissioner must consider that they have suitable qualifications or experience for the appointment. The Commissioner and Deputy Commissioners are also authorised officers (see clause 7).

12.111 The requirement that the Commissioner must consider that a staff member of the NACC has suitable qualifications or experience would ensure that staff members have completed appropriate training, or hold suitable qualifications to exercise the powers that would be conferred on authorised officers under the Bill. This could include, for example, training on the use of reasonable and necessary force when arresting, under a warrant, a person who has absconded to avoid appearing at a hearing in response to a summons. The question of what constitutes 'suitable' qualifications or experience to exercise the powers of an authorised officer should be considered in light of any directions given by the Commissioner under this clause. For example, if the Commissioner had given a direction that certain powers or activities must only be exercised or undertaken by a member of the AFP or the police force of a State or Territory-such as powers to arrest or detain a person-then it would not be necessary for a staff member of the NACC to have been trained to undertake those activities before being appointed as an authorised officer. The Commissioner and Deputy Commissioners should also receive appropriate training if they were to exercise a power as an authorised officer.

12.112 Noting the scope of powers that may be exercised by an authorised officer, the Commissioner would only be able to appoint a member of a police force or service (including the AFP) as an authorised officer if the head of the relevant police force or service agrees to the appointment. The head of the member's police force or service would be best placed to confirm that the member is suitably qualified and experienced to exercise such powers.

12.113 When exercising their powers, authorised officers would be required to comply with any directions given by the Commissioner. These directions might provide further guidance for complying with specific requirements under the NACC Bill, for example requirements when conducting a search or when using force. A direction would not be a legislative instrument. This statement is included in the NACC Bill to assist readers, as a direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Clause 268-Identity cards

12.114 This clause would require the Commissioner to issue identity cards to authorised officers. This clause is intended to ensure that authorised officers could identify themselves to persons affected by the exercise of coercive powers-for example the occupier of a premises that is being searched.

12.115 An identity card must be in the form approved in writing by the Minister, and must contain a recent photograph of the authorised officer.

Identity card to be carried and produced on request

12.116 An authorised officer would be required to carry the identity card at all times when exercising powers conferred by Part 7.

12.117 An authorised officer would not be entitled to exercise any powers conferred by Part 7 in relation to a person or premises if they fail to comply with a requirement by the relevant person or the occupier of the premises to produce their identity card for inspection. The occupier of premises is the person who appears to be in charge of the premises.

Offence

12.118 This clause would make it an offence for a person who ceases to be an authorised officer to fail to return their identity card. The offence would have the following physical elements:

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the person has been issued with an identity card;

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the person ceases to be an authorised officer; and

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the person does not return the identity card to the Commissioner within 14 days after ceasing to be an authorised officer.

12.119 The penalty for the offence is 60 penalty units.

12.120 The offence is an offence of strict liability. There are no fault elements for any of the physical elements of the offence. However, the defence of mistake of fact under section 9.2 of the Criminal Code would be available. Strict liability is justified by:

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the low and non-custodial penalty for the offence;

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the need to ensure compliance and, in turn, ensure identity cards are returned when appropriate and are not able to be misused (whether by an authorised officer or another person); and

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the fact that authorised officers can be made aware of their obligation when issued with an identity card.

Defence for lost or destroyed identity cards

12.121 The offence would not apply if the identity card was lost or destroyed. A defendant would bear an evidential burden in relation to the defence (see subsection 13.3(3) of the Criminal Code).

12.122 It is reasonable and necessary for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their identity card was lost or destroyed because that information is likely to be solely and entirely within their knowledge.

12.123 This defence would be in addition to the standard defences available under the Criminal Code.

Division 3-Immunities of staff members of the NACC

12.124 This Division would provide certain immunities for staff members of the NACC. It is important that appropriate arrangements are in place to protect staff members in the performance of their duties.

Clause 269-Immunity from civil proceedings for staff members of the NACC and persons assisting

12.125 This clause would outline the immunity from civil proceedings afforded to staff members of the NACC.

12.126 A staff member of the NACC would not be liable to civil proceedings in relation to an act or omission done in good faith during the actual or purported performance or exercise of their functions, powers or duties under the NACC Bill. This immunity would extend to any person whom the Commissioner requests in writing to assist a staff member.

12.127 This clause would ensure that staff members, and those assisting staff members, are able to perform their functions and duties under the NACC Bill without fear of personal liability for any actions they perform in good faith. Without immunity from civil proceedings, staff members may be exposed to civil liability in the performance of their duties-and may therefore improperly and excessively limit or curtail their conduct to protect their personal interests. For example, staff members may be exposed in circumstances where a person wishes to bring legal action against the staff member as a result of damage to property arising from a search of premises which the person occupies. This clause would protect the staff member from such action. In doing so, this clause would reduce the risk that staff members would conduct less thorough searches-such as by avoiding searching inside fragile objects or locked containers-to the detriment of the conduct of effective and professional investigations, to protect their personal interests.

12.128 The mere purported performance or exercise of functions, powers or duties requires more than the absence of dishonesty or malice by the relevant person. Rather, there must be a genuine attempt to perform the function correctly, having regard to the caution and diligence that is expected of an honest person of ordinary prudence.

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

Clause 270-Immunities from certain State and Territory laws

12.130 This clause would outline the immunities from certain State and Territory laws available to staff members of the NACC. A staff member of the NACC would not be required:

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to obtain or have a licence (for example, a license for a weapon in compliance with State or Territory laws) or permission for doing any act or thing in the exercise of their powers or the performance of duties; or

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

12.131 This clause is intended to prevent staff members being restricted in the performance of their functions, powers or duties because of different State and Territory regulatory requirements.

Division 4-Annual report by Commissioner

12.132 This Division would outline the requirements for annual reporting by the Commissioner. Annual reports would be intended to provide general information on the operations of the NACC, rather than detailed information on particular corruption investigations and public inquiries. That information would be included in specific reports of those investigations and inquiries.

Clause 271-Annual report

12.133 This clause would require the Commissioner to give the Minister an annual report on the performance of the Commissioner's functions during each financial year.

12.134 Further rules regarding annual reports that will apply to the Commissioner are contained in section 34C of the Acts Interpretation Act 1901, such as rules relating to the timing of furnishing reports to the Minister.

12.135 Annual reports would be required to include the particulars prescribed by the regulations about:

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corruption issues referred to the Commissioner during that year;

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corruption issues dealt with by the Commissioner during that year;

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corruption investigations conducted by the Commissioner during that year;

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corruption issues that the Commissioner referred to a Commonwealth agency or State or Territory government entity for investigation during that year;

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public inquiries conducted by the Commissioner during that year; and

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certificates issued by the Attorney General under section 235 during that year; and

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a description of the corruption investigations conducted by the Commissioner during that year that raise significant issues for, or reflect developments in, Commonwealth agencies;

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a description of any patterns or trends, and the nature and scope, of corruption in Commonwealth agencies or by public officials that have come to the Commissioner's attention during that year;

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any recommendations for changes to the laws of the Commonwealth or administrative practices of Commonwealth agencies that the Commissioner considers should be made;

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the extent to which corruption investigations have resulted in the prosecution in that year of persons for offences;

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the extent to which corruption investigations have resulted in confiscation proceedings in that year; and

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the details of the number and results of:

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applications made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under the ADJR Act for orders of review in respect of matters related to the Commissioner's performance of functions or exercise of powers; and

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other court proceedings involving the Commissioner.

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

12.137 The Minister would be required to table the annual report in each House of the Parliament within 15 sittings days of each House after receiving it. This would ensure there is a permanent, public record of inquiry reports where the matters considered in the inquiry are already in the public domain. The requirement to table the report within 15 sitting days provides for an appropriately timely tabling process, while also allowing sufficient time for the Minister to consider the report prior to tabling.

12.138 The CEO, as the accountable authority of the NACC, would be required to provide an annual report to the responsible Minister for tabling in the Parliament in accordance with section 46 of the PGPA Act. The PGPA Rule prescribes standard requirements for the content of annual reports by accountable authorities.

12.139 To avoid duplication in annual reporting between the Commissioner and the CEO, this clause would allow the Commissioner and the CEO to jointly submit an annual report to the Minister that would satisfy the requirements of clause 271 of this Bill and section 46 of the PGPA Act. This is consistent with the approach taken by the federal courts.

Clause 272-Exclusion of certain information from annual report

12.140 This clause would require the Commissioner to exclude certain material from annual reports prepared under this Division, noting reports would be tabled in each House of the Parliament and therefore made public (see paragraph 12.136).

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

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section 235 certified information (see clause 235); and

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

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

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

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

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

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would unreasonably disclose a person's personal affairs.

12.144 In determining whether the Commissioner is satisfied that information constitutes sensitive information for the purpose of its exclusion from an annual report, the Commissioner would be required to consult with relevant agencies and entities at the time of preparing reports on the investigations and inquiries referred to in the annual report (see clauses 151 and 164).

Clause 273-Effect of findings or opinions about corrupt conduct

12.145 This clause would apply if an annual report includes or refers to a finding or opinion that a person has engaged, is engaging or will engage in corrupt conduct, or conduct that could constitute or involve corrupt conduct.

12.146 This clause would provide that the finding or opinion does not constitute a finding or opinion that the person is guilty of or has committed, is committing or will commit an offence. This recognises that the Commissioner would not be able to make findings of criminal guilt or liability. Such a finding would be a matter for a court to determine.