Senate

Revised Explanatory Memorandum

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

PART 13 MISCELLANEOUS

13.1 This Part would address a range of miscellaneous issues. These issues include:

•

the NACC Bill's interaction with parliamentary privilege;

•

delegations by the Commissioner, Inspector and agency heads;

•

a statutory review of the NACC Bill's operation after five years;

•

the creation of guidelines and regulations; and

•

the provision of financial assistance, for example to persons appearing at a hearing.

Division 1-Parliamentary privilege and other protections

Clause 274-Effect of Act on parliamentary privileges and immunities

13.2 This clause would provide that the NACC Bill would not generally affect the privileges and immunities of the Parliament. This clause would extend to the privileges and immunities of each House of Parliament, the members of each House and parliamentary committees.

13.3 The powers, privileges and immunities of the Parliament are set out in the Parliamentary Privileges Act 1987. Subject to that Act, the powers, privileges and immunities of the Parliament are those of the House of Commons of the United Kingdom at the time of Federation (see section 49 of the Constitution). The function of parliamentary privilege is to allow for the proper operation of the Parliament and to protect the ability of legislative Houses, their members and committees to exercise their authority and perform their duties.

13.4 For example, proceedings in Parliament attract the privilege of freedom of speech. A court or tribunal (including the Commissioner) may not impeach or question proceedings in Parliament.

Clause 235 and 236 certificates

13.5 This clause would only be subject to clause 181. That clause would provide that a person would be prohibited from providing the Committee with information, or producing a document to the Committee, if the information or document was subject to a clause 235 or clause 236 certificate, and the disclosure would contravene the terms of the certificate.

13.6 Clause 235 would allow the Attorney-General to certify that the disclosure of particular information, including to the Committee, would be contrary to the public interest.

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

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

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

13.10 The effect of clause 181 is to act as a declaration for the purposes of section 49 of the Constitution. That section permits the Parliament to make laws declaring the powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House.

Clause 275-Protections relating to non-judicial functions and powers

13.11 This clause would enliven certain protections in sections 4AAA and 4AAB of the Crimes Act 1914 in relation to the exercise of non-judicial functions and powers by judges, magistrates and justices of the peace. This clause would do this by clarifying that the NACC Bill would be a law of the Commonwealth relating to criminal matters.

13.12 Sections 4AAA and 4AAB outline the rules applicable to the situation where a Commonwealth law relating to criminal matters confers on State and Territory judges, magistrates or other court employed officers a function or power that is neither judicial nor incidental to a judicial function or power. Section 4AAA clarifies that the function or power is conferred in a personal and voluntary capacity. This is necessary for constitutional reasons. In essence, non-judicial functions or powers must be conferred in a personal capacity because judicial office holders, for example, a magistrate, must only exercise Commonwealth judicial functions in their official capacity.

13.13 Section 4AAB enables the Governor-General to make arrangements with the States and Territories for the performance of functions and the exercise of powers conferred under section 4AAA. The arrangements recognise the fact that the performance of functions and exercise of powers is voluntary.

Division 2-Delegations and review

Clause 276-Delegation by the Commissioner

13.14 This clause would permit the Commissioner to delegate their functions, powers and duties under the NACC Bill. This would ensure the effective and efficient exercise of relevant functions, powers or duties.

General delegation down to Executive Level 2 staff

13.15 Generally, this clause would permit the Commissioner to delegate to the Deputy Commissioners and staff members at or above the Executive Level 2 classification (including staff acting in those positions). Conducting a corruption investigation or public inquiry is a process with a number of decision points that would need to be able to be resolved expeditiously by investigating officers. For example, in the 2020-21 year, the Integrity Commissioner:

•

took action in relation to 116 corruption issues under the LEIC Act; and

•

issued 130 notices to produce under that Act.

13.16 Executive Level 2 staff in the Commission would be expected to lead investigation teams or supporting functions, similar to a Superintendent in the Australian Federal Police or a state or territory police force. It is appropriate that the Commissioner be able to delegate certain statutory powers to the senior official leading investigation teams or supporting functions, subject to appropriate conditions and directions. The jurisdiction of the NACC will also be significantly broader than that of the Integrity Commissioner. Accordingly, the number of decisions of this kind that would need to be taken could reasonably be expected to significantly increase. In these circumstances, it would be appropriate for the Commissioner to be able to delegate certain statutory powers (with the exception of the issuing of summonses and the conduct of hearings)to Executive Level 2 staff in appropriate circumstances and subject to appropriate directions.

Delegation of power to take no action

13.17 This clause would permit the Commissioner to delegate the power to decide to take no action in relation to a corruption issue (see paragraph 6.29) to any member of staff. In the 2020-21 financial year, the Integrity Commissioner decided to take no further action in relation to 222 referrals. It is anticipated that the NACC will receive a larger number of referrals than the Integrity Commissioner, necessitating the need to dispense with unmeritorious referrals in the most expeditious manner available. In turn, this would ensure the Commissioner can devote their resources appropriately to dealing with corrupt conduct that could be serious or systemic.

13.18 The delegation of the decision to take no action would be expected to be accompanied by Guidelines under clause 279 about the kinds of unmeritorious referrals that can be expeditiously dispensed with, and the kinds of referrals that should be elevated for more senior decision making. This could include guidance that, for example referrals that contain no discernible connection with the Commonwealth public sector or corruption of any kind, are nonsensical, are duplicates of a previous referral, or that relate to a matter that a Commissioner or senior delegate has determined should not continue to be escalated (such as continued referrals into a matter that has been fully investigated and that do not contain fresh evidence) can be expeditiously dispensed with by a more junior delegate.

Functions that may only be delegated to Deputy Commissioners

13.19 There are certain functions and powers that the Commissioner would not be able to delegate beyond the Deputy Commissioners. These are the functions and powers to:

•

conduct hearings and issue summonses;

•

conduct searches, and apply for and execute warrants-a separate framework for the appointment of authorised officers applies to searches (see clause 267);

•

finalise and disseminate reports on corruption investigations and public inquiries;

•

decide to conduct a public inquiry;

•

authorise a disclosure in the public interest under clause 230; and

•

make arrangements with the heads of intelligence agencies (see clause 239).

13.20 These limitations reflect the significance of the relevant powers and functions, and the potential gravity of decisions for individuals.

13.21 In conducting a public inquiry, the Commissioner would be subject to the same delegation limits as when conducting a corruption investigation. For example, the Commissioner could delegate to an Executive Level 2 staff member the power to issue a notice to produce but could only delegate the power to conduct a hearing to a Deputy Commissioner.

Certain functions must not be delegated

13.22 The Commissioner must not delegate their duty to approve the appointment of the Minister's recommended candidate as CEO under subclause 254(3). It is appropriate that this duty must not be delegated, given the significance of this approval for the NACC as a whole.

Subdelegation

13.23 A Deputy Commissioner would be permitted to subdelegate a function or power delegated to them by the Commissioner. No other delegates may subdelegate their delegated functions or powers.

Directions

13.24 This clause would also require all delegates to comply with any directions of the Commissioner. These directions would not be legislative instruments as they would direct a person who has been delegated functions, powers or duties conferred by the NACC Bill. This is appropriate to ensure the independence of the Commissioner.

Clause 276A-Delegation by the Inspector

13.25 This clause would permit the Inspector to delegate their functions, powers and duties under the NACC Bill. This would ensure the effective and efficient exercise of relevant functions, powers or duties.

General delegation down to Executive Level 2 staff

13.26 Generally, the Inspector would be permitted to delegate to persons assisting the Inspector who are SES employees or employees at or above the Executive Level 2 classification (including staff acting in those positions). Executive Level 2 persons assisting the Inspector would be expected to lead investigation teams or supporting functions, similar to a Superintendent in the Australian Federal Police or a state or territory police force. It is appropriate that the Inspector be able to delegate certain statutory powers to the senior official leading investigation teams or supporting functions, subject to appropriate conditions and directions.

Delegation to any person assisting the Inspector

13.27 The Inspector would be permitted to delegate the power to decide to take no action in relation to a NACC corruption issue, and to exercise the Inspector's powers to conduct reviews, to any person assisting the Inspector. This would ensure the Inspector can devote their resources appropriately.

13.28 The delegation of the decision to take no action would be expected to be accompanied by directions under subclause 276A(5) about the kinds of unmeritorious referrals that can be expeditiously dispensed with, and the kinds of referrals that should be elevated for more senior decision making. This could include guidance that, for example referrals that contain no discernible connection with the Commission, the Commonwealth public sector or corruption of any kind, are nonsensical, are duplicates of a previous referral, or that relate to a matter that the Inspector or senior delegate has determined should not continue to be escalated (such as continued referrals into a matter that has been fully investigated and that do not contain fresh evidence) can be expeditiously dispensed with by a more junior delegate.

13.29 The delegation of the power to conduct reviews to any person assisting the Inspector is appropriate because persons assisting the Inspector of all levels of seniority will be involved in the conduct of reviews, and will require the powers conferred by clause 214A to do so. The ability for the Inspector to delegate these powers to any person assisting is consistent with the approach taken to the exercise of comparable review or inspection-related powers in other Commonwealth legislation, such as under section 9A of the Inspector-General of Intelligence and Security Act 1986 (Inspection functions of the Inspector-General) and Chapter 4A of the Telecommunications (Interception and Access) Act 1979 (Oversight by the Commonwealth Ombudsman). The delegation of the power to conduct reviews would similarly be expected to be accompanied by directions under new subclause 276A(5) about the kinds of reviews that can be conducted by more junior officers, and those appropriate to be conducted at a more senior level.

Certain functions must not be delegated

13.30 The Inspector would not be able to delegate any of the following functions, powers or duties:

•

the power to summon persons and conduct hearings under clause 214 of the Bill;

•

reporting on NACC corruption investigations and NACC complaint investigations;

•

the power to disclose information in the public interest under clause 230 of the Bill;

•

their function to make recommendations to the NACC on the outcomes of reviews;

•

any functions, powers or duties in relation to making an arrangement with the head of an intelligence agency for dealing with intelligence information; or

•

their delegation power.

Delegation must be in writing

13.31 The Inspector's delegation would be required to be in writing and signed by the Inspector.

Directions

13.32 A delegate would be required to comply with any directions of the Inspector. These directions would not be legislative instruments as they would direct a person who has been delegated functions, powers or duties by the NACC Bill and the amendments. This is appropriate to ensure the independence of the Inspector.

Clause 277-Delegation by heads of Commonwealth agencies

13.33 This clause would permit the head of an agency to delegate their functions, powers and duties under the NACC Bill.

13.34 This clause would permit an agency head to delegate to:

•

an SES employee or acting SES employee; or

•

an individual who is concerned in, or takes part in, the management of the agency.

13.35 The second class of delegates is outlined for Commonwealth agencies that do not have SES employees, for example parliamentary offices and Commonwealth companies, as well as to enable delegations to statutory office holders in circumstances where an office or entity headed by that statutory office holder forms part of a separate Commonwealth agency within the meaning of the NACC Bill. The concept of being 'concerned with the management of an agency' is inherently limited to senior officials or officers of the agency or Commonwealth company in question, and should be regarded as being comparable to an SES officer.

13.36 The primary duty that an agency head would be able to delegate would be their duty to refer corruption issues to the Commissioner (see clause 42). This would enable, for example:

•

a Minister or other parliamentarian to delegate their duty to refer corruption issues to the Commissioner to their Chief of Staff, where the Chief of Staff is responsible for the management of the parliamentarian's office;

•

an agency head to delegate their duty to refer corruption issues to the SES (or equivalent) officer or officers with responsibility for internal investigations, or SES (or equivalent) officers with responsibility for managing significant programs or contracts on behalf of the agency, to enable the timely referral of suspected serious or systemic corruption to the NACC by requiring those officers to refer such issues, rather than requiring all such issues to be escalated to the agency head; or

•

the Secretary of a department to delegate their duty to refer corruption issues to statutory office holders who head small agencies in their portfolio that are not entities for the purpose of the Public Governance, Performance and Accountability Act 2013 and that are therefore not taken to be separate Commonwealth agencies from the department for the purposes of the NACC Bill, to ensure that those office-holders are required to refer suspected serious or systemic corruption issues to the NACC.

13.37 An intelligence agency head would not be able to delegate their functions in relation to making an arrangement with the Commissioner or the Inspector under clause 239.

Directions

13.38 This clause would also require a delegate to comply with any directions of the agency head. These directions would not be legislative instruments as they would direct a person who has been delegated functions, powers or duties conferred by the NACC Bill.

Clause 278-Review of operation of Act

13.39 This clause would provide for a review of the NACC Bill and the Consequential Bill.

13.40 The Minister would be required to cause a review to be undertaken in the first five years of the operation of the NACC Bill and the amendments made by the Consequential Bill.

13.41 This clause would not apply if a parliamentary committee has reviewed the operation of the Bills, or started such a review, before the end of the five-year period.

Requirements for the review

13.42 The review would need to be undertaken by one or more persons who, in the Minister's opinion, possess appropriate qualifications to undertake the review.

13.43 The review would need to include an opportunity for members of the public and persons who are, or have been, public officials to make written submissions on the operation of the Bills.

13.44 The reviewer would need to give the Minister a written report of the review within 12 months after the end of the five-year review period.

13.45 An entrusted person would need to, if requested, assist the reviewer to conduct the review and prepare the written report. An entrusted person is a staff member of the NACC, the Inspector or a person assisting the Inspector (see clause 227).

13.46 The Minister would need to table a copy of the report of the review in each House of the Parliament as soon as practicable after they receive it.

Division 4-Instruments under the Act

13.47 This Division relates to the processes to issue guidelines and regulations under the NACC Bill. These non-legislative and legislative instruments would support the efficient and effective operation of the NACC Bill.

Clause 279-Guidelines

13.48 This clause would provide the Commissioner with the ability to make written guidelines to assist with anything in connection with the operation of the NACC Bill. These guidelines may be issued to public officials or any other person the Commissioner considers appropriate. The guidelines could be provided for the benefit of specific classes of public officials, for example parliamentarians, PID officers or agency heads.

13.49 Examples of matters that the guidelines could cover include (but are not limited to):

•

the prevention of corrupt conduct;

•

what constitutes serious or systemic corrupt conduct;

•

the preservation of evidence relevant for the purposes of investigating a corruption issue; and

•

procedures relating to appearing before the Commissioner.

13.50 The guidelines would not be a legislative instrument. This statement is included in the NACC Bill to assist readers, as a guideline is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

13.51 In accordance with subsection 33(3) of the Acts Interpretation Act 1901, the power for the Commissioner to make written guidelines under this clause would include the power to repeal, rescind, revoke, amend or vary any such guidelines.

Clause 280-Regulations

13.52 This clause would authorise the Governor-General to make regulations prescribing matters necessary or convenient, or required or permitted, to be prescribed for carrying out or giving effect to the NACC Bill.

Arrangements for financial assistance

13.53 The regulations would be able to prescribe arrangements for the Commonwealth to provide financial assistance in relation to matters arising under, or in relation to, the NACC Bill. Financial assistance that is prescribed could include financial assistance in respect of:

•

a person's representation at a hearing by a legal practitioner; or

•

an application, or proposed application under the ADJR Act for an order of review in respect of a matter arising under the NACC Bill, for example when seeking judicial review of findings made in an investigation report.

Distribution of reports

13.54 The regulations may require that information or reports that are required to be given under prescribed provisions are also to be given to prescribed persons in specified circumstances.

Parliamentary scrutiny

13.55 Any regulations made under this clause would also be subject to normal parliamentary consideration and disallowance under section 42 of the Legislation Act 2003.

Appropriation

13.56 This clause would appropriate the Consolidated Revenue Fund for the purpose of making payments of financial assistance (see paragraph 13.53) to, or for the benefit of, parliamentarians.

13.57 For constitutional reasons, it is appropriate for financial assistance to parliamentarians to be provided by way of a statutory entitlement rather than an agreement between a parliamentarian and the Commonwealth. In these circumstances, it is appropriate that any financial assistance that is prescribed for the benefit of parliamentarians is supported by a legislated standing appropriation. This is consistent with the approach in section 55 of the Parliamentary Business Resources Act 2017, which appropriates the Consolidated Revenue Fund for, among other things, payments for legal assistance to Ministers under Division 2 of Part 5 of the Parliamentary Business Resources Regulations 2017.

13.58 Financial assistance to other persons under prescribed arrangements would be funded by an annual appropriation Bill, consistent with existing arrangements under the LEIC Act.