Senate

Revised Explanatory Memorandum

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

National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022

PRELIMINARY

Clause 1-Short title

14.1 This clause provides for the short title of the Act to be enacted by the Consequential Bill to be the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022.

Clause 2-Commencement

14.2 This clause would provide for the commencement of each provision in the Consequential Bill. The preliminary provisions (clauses 1 to 3) would commence on the day on which the NACC Bill receives Royal Assent.

14.3 The amendments are intended to commence at the same time as the National Anti-Corruption Commission Bill 2022, which would establish the NACC, which will be on a single day to be fixed by Proclamation. However, if the NACC Bills do not commence within the period of 12 months beginning on the day on which the NACC Bill receives Royal Assent, the NACC Bills would commence on the day after the end of that period.

14.4 A 12-month commencement period is appropriate considering the work necessary to stand-up the Commission as a new Commonwealth entity following the passage of the NACC Bill. The 12-month period extends beyond the Government's planned commencement in mid-2023 to address the risk of delay, including a delay outside the Government's control, for example relating to the Committee's approval of a Commissioner.

Clause 3-Schedules

14.5 This clause would provide for the amendments outlined in the Schedule to the Consequential Bill to take effect according to their terms.

SCHEDULE 1-AMENDMENTS

Part 1-Repeals

14.6 Item 1 of Schedule 1 would repeal the LEIC Act. That Act established ACLEI, which would transition to become part of the NACC on commencement of the NACC Bill.

14.7 Schedule 2 of the Consequential Bill outlines transitional arrangements that would support the transfer of ACLEI's functions and powers to the NACC on commencement.

Part 2-Consequential amendments

Overview

14.8 This Part would make consequential amendments to relevant Commonwealth legislation to support the establishment of the NACC. For example, references to ACLEI and the LEIC Act currently contained in legislation would be replaced with references to the NACC and the NACC Act. The effect of these amendments would be to support the transition of ACLEI to the NACC and confer powers on the NACC that are currently conferred on ACLEI. Many of these powers would be significant components of the NACC's overall investigative powers and would complement the powers conferred by the NACC Bill (in particular Part 7).

14.9 The arrangements for the NACC that are dealt with in this Part would generally apply to the NACC in the way they currently apply to ACLEI. Exceptions to this are:

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certain decisions made by the Commissioner from review under the ADJR Act, including decisions made under Part 6 (dealing with corruption issues) and Part 7 (investigating corruption issues) of the NACC Bill;

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allowing the NACC to undertake integrity testing of staff members of all Commonwealth agencies under Part IABA of the Crimes Act 1914, in accordance with the NACC's broader jurisdiction;

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allowing the IGIS or the staff of the IGIS to disclose information to a staff member of the NACC if the information being disclosed is relevant to the NACC's functions or powers, and the IGIS is satisfied on reasonable grounds that the NACC has satisfactory arrangements in place to protect the information;

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enabling a disclosure for the purposes of the PID Act to be made directly to the NACC, and enabling the NACC to issue a stop action direction to 'freeze' PID Act processes;

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authorising the Inspector-General of Taxation to make a disclosure to the NACC under the Taxation Administration Act 1953 and enabling the NACC to disclose information received from the Inspector-General for the purposes of the NACC Bill; and

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ensuring that the Ombudsman does not have to decide not to investigate before they can make a referral to the NACC under the Ombudsman Act 1976.

14.10 This Part would provide the NACC with a range of covert investigative powers consistent with those currently available to ACLEI and other law enforcement agencies. This would include powers to conduct controlled operations and use assumed identities under the Crimes Act 1914, to use surveillance devices and access data in computers under the SD Act and to obtain the content of and data relating to communications under the TIA Act.

14.11 Access to these powers is appropriate because:

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the Commissioner will be investigating corruption issues that could involve corrupt conduct that is serious or systemic. Some such conduct may, if proven, constitute serious criminal conduct; and

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corruption may involve corrupt relationships and individuals with the motive and ability to conceal plans, activities and communications.

14.12 Access to covert investigative powers would enable the collection of information about serious or systemic corruption that would otherwise be unobtainable-for example, by enabling the listening to or recording of a conversation between two officials planning to engage in serious, criminal corruption through use of telecommunications interception or a listening device.

14.13 The NACC's access to covert powers would only be used to investigate criminal offending, and would be subject to the same thresholds that currently apply to other law enforcement agencies concerning the seriousness of the offence and reasonableness and appropriateness of the particular power.

Administrative Decisions (Judicial Review) Act 1977 amendments

14.14 Item 2 would amend Schedule 1 of the ADJR Act. The amendments would exclude the following provisions of the NACC Bill from the operation of ADJR Act:

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provisions in Part 6 (dealing with corruption issues), including that Part as applied-with some modifications-to Part 10 (oversight of the NACC) by clause 211 of the NACC Bill. This would include a decision by the Commissioner to commence a corruption investigation, or a decision to refer a corruption issue to relevant Commonwealth agencies or State and Territory government entities.

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provisions in Part 7 (investigating corruption issues), including that Part as applied to Part 9 (public inquiries) by clause 163 and to Part 10 by clause 214 of the NACC Bill. This would include a decision relating to a notice to produce and a decision to issue a summons to attend a hearing.

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clauses 161 (the power to conduct public inquiries), 162 (the power to invite submissions to public inquiries), 209 (the Inspector may deal with NACC corruption issues), 210 (how the Inspector deals with NACC corruption issues) and 213 of the NACC Bill (how the Inspector may conduct investigations).

14.15 The provisions of the NACC Bill that would be excluded from the operation of the ADJR Act concern intermediate process steps necessary for the NACC to effectively undertake an investigation into a corruption issue. If a person were able to seek review of decisions made under these provisions, this could significantly impede the NACC's ability to fulfil its statutory functions. For example, in the same investigation, a person could seek review under the ADJR Act of each of the Commissioner's decisions to deal with a corruption issue, commence a preliminary investigation, issue a notice to produce seeking foundational information to inform the Commissioner as to whether and how to further deal with the corruption issue, commence an investigation of the corruption issue, and to hold a hearing. The person could also send the Commissioner correspondence requesting that the Commissioner discontinue the investigation, and then seek review under the ADJR Act of the Commissioner's decision to continue the investigation. Excluding decisions made under these provisions from the ADJR Act would ensure that well-resourced subjects of investigations cannot use the ADJR Act to fragment, delay and frustrate corruption investigations by seeking review of the Commissioner's foundational and intermediate decisions on the way to reaching findings.. It is therefore appropriate to exclude these provisions of the NACC Bill from the operation of the ADJR Act.

14.16 These amendments would not limit a person's ability to seek judicial review under the Judiciary Act 1903 or in the High Court's original jurisdiction. This would include the ability for a person to seek a writ of mandamus to compel the performance of a statutory duty by the Commissioner, such as the duty contained in clause 153 to provide a person with an opportunity to respond to certain matters before including them in an investigation report. It would also include the ability for a person to seek a writ of prohibition or an injunction to prevent an excess of power or jurisdiction by the Commission, or to restrain unlawful behaviour.

14.17 Other decisions made under the NACC Bill would still be reviewable under the ADJR Act. Specifically, decisions made under Part 8, which concerns reporting on corruption investigations, including the Commissioner's recommendations in relation to an agency taking action against a person where the Commissioner has found that the person has engaged in corrupt conduct. It is appropriate that such decisions are reviewable under the ADJR Act given the potential for decisions made under Part 8 to adversely and permanently affect a person's reputation or privacy, in contrast to intermediate decisions made in the course of NACC Act processes under, for example, Part 7.

14.18 Item 3 would repeal paragraph (eaa) of Schedule 2 of the ADJR Act. Paragraph (eaa) of Schedule 2 operates to exclude certain decisions under the LEIC Act from section 13 of the ADJR Act, being decisions in connection with corruption investigations and public inquiries. With the amendments proposed under item 2, paragraph (eaa) would no longer be necessary and it is appropriate to repeal the paragraph.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 amendments

14.19 Items 4 to 10 would amend the AML/CTF Act, which includes powers to:

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ensure that agencies including AUSTRAC have the information required to investigate and prosecute money laundering and terrorism financing offences and other serious crimes; and

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support cooperation and collaboration among reporting entities, AUSTRAC and other government agencies, particularly law enforcement agencies, to detect, deter and disrupt money laundering, the financing of terrorism, and other serious crimes.

14.20 Specifically, items 4 to 10 would amend the AML/CTF Act to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC and its establishing legislation in sections 5 (definitions), 49 (notices requiring certain information to be provided) and 121 (offence for disclosure of AUSTRAC information by entrusted persons). The effect of these amendments would be that:

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the Commissioner and staff members of the NACC are 'entrusted investigating officials' under the AML/CTF Act, meaning the exceptions to offences in sections 50A and 121 concerning disclosure of certain information will be available for disclosures to the Commissioner and staff members of the NACC;

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staff members of the NACC are 'investigating officers' under the AML/CTF Act, meaning they may issue notices under section 49 (see further paragraphs 14.22 to 14.23) if they are carrying out an investigation arising from, or relating to the matters mentioned in, information reported to AUSTRAC CEO under sections 41, 43 or 45; and

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the National Anti-Corruption Commissioner may issue a notice under section 49 (see further paragraphs 14.22 to 14.23)

14.21 It is appropriate that officials of other agencies are permitted to share certain information obtained under the AML/CTF Act with NACC officers where it is relevant to the NACC's functions. Money laundering is a key enabler of criminal activity, including offending related to corruption. Information obtained under the AML/CTF Act should be available to assist the investigation of corruption issues involving corrupt conduct that may be serious or systemic.

14.22 Where a reporting entity has communicated information to the AUSTRAC CEO under section 41 (reports of suspicious matters), 43 (reports of threshold transactions) or 45 (reports of international funds transfer instructions), section 49 allows certain officers to issue notices to reporting entities and other persons requiring them to:

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give such further information as is specified in the notice, within the period and in the manner specified in the notice, to the extent to which the reporting entity or other person has that information; or

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produce, within the period and in the manner specified in the notice, such documents as are:

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specified in the notice;

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relevant to the matter to which the communication under section 41, 43 or 45 relates; and

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in the possession or control of the reporting entity or other person.

14.23 Items 7 and 9 will include among the persons able to issue these notices staff members of the NACC who are carrying out an investigation arising from, or relating to the matters mentioned in, information reported to AUSTRAC CEO under sections 41, 43 or 45, and the Commissioner. This is appropriate because reports under sections 41, 43 or 45 may be relevant to a corruption issue under investigation by the NACC. Section 49 as amended would allow the Commissioner, or in certain circumstances a staff member of the NACC, to obtain further information or documents relevant to such reports to further a corruption investigation.

Archives Act 1983 amendments

14.24 Item 11 would amend paragraph 33(1A)(ba) of the Archives Act 1983 to replace references to the Integrity Commissioner, a staff member of ACLEI, and a special investigator (within the meaning of the LEIC Act). The amendment would provide that any confidential information provided to the Inspector, the Commissioner or to a NACC staff member would be characterised as a confidential source of information for the purposes of that Act. This would ensure that the information would be a record that is exempt from being transferred to the Archives, which would otherwise be required under the Archives Act.

14.25 It is appropriate that confidential information provided to the NACC or the Inspector would constitute an exempt record under the Archives Act, as the disclosure of sensitive information could reasonably be expected to prejudice the conduct of NACC Act processes and could have a substantial adverse effect on Australia's interests (including its national security and international relations) and the privacy and reputations of individuals. Further, a person may be deterred from making a disclosure to the NACC or the Inspector if they are aware that information communicated in confidence would be transferred to the Archives.

14.26 In addition, any confidential information that has been provided to the Integrity Commissioner, a staff member of ACLEI, or a special investigator (within the meaning of the LEIC Act) under current paragraph 33(1A)(ba) of the Archives Act would remain an exempt record under that Act. This is because any confidential information provided to those persons would be taken to have been provided to the Commissioner (as outlined in the transitional provision at item 52 in Schedule 2, see also paragraphs 14.380 to 14.381). Paragraph 33(1A)(ba) of the Archives Act would therefore continue to apply to such information.

Australian Border Force Act 2015 amendments

14.27 Items 12 and 13 would amend section 43 of the Australian Border Force Act 2015 to enable an entrusted person under the NACC Bill to make a record of, or disclose, Immigration and Border Protection information (as defined in section 4 of the Australian Border Force Act) for the purposes of the NACC Bill. The amendment would replace existing references to the LEIC Act with references to the NACC Bill.

14.28 It is appropriate that entrusted persons are not constrained in their ability to make records of and disclose Immigration and Border Protection information where doing so is necessary to fulfil their statutory functions under the NACC Bill. Entrusted persons would be subject to a range of confidentiality requirements (see clause 228 of the NACC Bill), which would safeguard this category of information against misuse.

Australian Crime Commission Act 2002 amendments

14.29 Items 14, 15, 16, 17, 18 and 19 would replace references to ACLEI in the Australian Crime Commission Act 2002 (ACC Act) with references to the NACC and its establishing legislation. These amendments would ensure that the ACIC would be able to support the NACC and its processes, including the making of disclosures and applications for integrity authorities.

14.30 Item 14 would amend subparagraph 7A(ca)(iii) of the Act to make it a function of the ACIC to assist the NACC in making applications for integrity authorities. This refers to applications for authority to conduct integrity testing controlled operations under Part IAB of the Crimes Act, or applications for authority to conduct integrity testing operations under Part IABA of the Crimes Act. This amendment would replace the existing reference to ACLEI in this provision.

14.31 Items 15, 16, 17 and 18 would amend the ACC Act to provide that a person who makes a NACC disclosure under the NACC Bill would not be committing an offence of disclosure relating to notices under the ACC Act. This would ensure that a person is not deterred from making a NACC disclosure due to fear of breaching the ACC Act. This in turn would increase the likelihood that the NACC would have access to information critical to performing its statutory functions. Relevant provisions include:

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paragraphs 21C(2)(g) and (4)(e) (concerning notations on notices to give information, or produce documents or things);

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paragraphs 29B(2)(g) and (4)(e) (concerning notations on summonses).

14.32 Item 19 would amend paragraph (c) of the definition of relevant Act in subsection 51(4) (concerning the disclosure of protected information generally), replacing a reference to the LEIC Act with a reference to the NACC Bill.

Australian Federal Police Act 1979 amendments

14.33 Item 20 would amend the definition of corrupt conduct in subsection 4(1) of the Australian Federal Police Act 1979 (AFP Act) to align it with the definition of corrupt conduct in the NACC Bill. Under the AFP Act, the definition of corrupt conduct is tied to the definition of engages in corrupt conduct, which has the same meaning as the definition contained in the LEIC Act. This amendment would not materially alter the scope of the definition. However, aligning the new definition of corrupt conduct in the AFP Act with the NACC Bill's definition would ensure the interoperability of the updated definition with other provisions of the AFP Act, where appropriate.

14.34 Item 22 would repeal the definition of engages in corrupt conduct in subsection 4(1) of the AFP Act. This definition would no longer be necessary because of the new definition of corrupt conduct introduced by item 20.

14.35 Item 23 would amend subsection 4(1) of the AFP Act by introducing a definition of National Anti-Corruption Commissioner that is consistent with the NACC Bill.

14.36 Item 25 would amend paragraphs 40TL(1)(b) and (2)(b) of the AFP Act by expanding the coverage of Subdivision D of Division 3 of Part V (professional standards and AFP conduct and practice issues) of the AFP Act to a corruption issue, per the amended definition of corruption issue in clause 9 of the NACC Bill (see item 21 of this Schedule). The effect of this amendment would be to enable the Commissioner of Police to deal with an AFP conduct issue in accordance with this Subdivision of the AFP Act where the conduct issue is also a corruption issue within the meaning of the NACC Bill. This amendment is appropriate to ensure continuity with the AFP and ACLEI's current arrangements for dealing with AFP conduct issues that also raise corruption issues.

14.37 Item 26 would repeal and substitute subsection 40TL(3) of the AFP Act to provide that Subdivision D of Division 3 of Part V (professional standards and AFP conduct and practice issues) of the AFP Act would apply where the Commissioner refers a corruption issue that relates to the conduct of an AFP appointee to the Commissioner of Police under paragraph 41(1)(c) of the NACC Bill (which authorises the NACC Commissioner to refer, for investigation, corruption issues to Commonwealth agencies possessing the appropriate capabilities).

14.38 This amendment would enable the AFP to deal with an AFP conduct issue in accordance with this Subdivision where the Commissioner has referred a corruption issue relating to the conduct of an AFP appointee to the Commissioner of the Police. The amendment is appropriate to ensure that the AFP can deal with AFP conduct issues that are also corruption issues under its own processes, for example where the Commissioner has declined to commence an investigation and forms the view that it would be more appropriate for the AFP to deal with the issue.

14.39 The following items would replace references to the LEIC Act and the Integrity Commissioner in the AFP Act with references to the NACC Bill and the Commissioner:

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Item 21, which would amend subsection 4(1) (definition of corruption issue);

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Item 24, which would amend section 40RB (simplified outline of Part V);

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Item 27, which would amend subsection 40TO(7) (Commissioner must allocate issue to someone outside unit constituted under section 40RD in certain circumstances);

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Item 28, which would amend paragraph 40UB(1)(b) (Minister to inform certain persons and bodies of inquiry);

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Item 29, which would amend subsections 40UD(3) (reports of special inquiries) and 40WA(4) (record keeping);

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Item 30, which would amend subsection 40WA(4) (record keeping);

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Item 31, which would amend subsection 40WB(1) (records about corruption issues), including its note;

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Item 32, which would amend paragraph 60A(2)(d) (secrecy);

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Item 33, which would amend the definition of prescribed information in subsection 60A(3).

Australian Securities and Investment Commission Act 2001 amendments

14.40 Item 34 would amend section 39H of the Australian Securities and Investment Commission Act 2001 (ASIC Act) to apply a modified version of section 3ZQU of the Crimes Act 1914 to NACC Act processes. This section of the ASIC Act currently outlines the purposes for which documents may be used and shared for the purposes of the LEIC Act. The amendment would allow search warrant material seized under the ASIC Act to be disclosed to certain officials for the purposes of a NACC Act process (defined in clause 7 of the NACC Bill to mean a corruption investigation, a NACC complaint investigation, a NACC corruption investigation or a public inquiry). This amendment is necessary to ensure that the NACC can use all available information and evidence when conducting investigations or public inquiries.

14.41 An equivalent amendment would be made under the Consequential Bill to the National Consumer Credit Protection Act 2009 (see item 123 of Schedule 1 of the Consequential Bill).

Crimes Act 1914 amendments

Definitions

14.42 Section 3 of the Crimes Act 1914 contains definitions for the purposes of that Act. The following items would replace references in those definitions that relate to the LEIC Act, with relevant definitions contained in the NACC Bill:

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Items 35, 36 and 38 would repeal the definition of 'Integrity Commissioner' (relevant to ACLEI) and insert definitions of 'National Anti-Corruption Commissioner', 'National Anti-Corruption Deputy Commissioner', 'Inspector of the National Anti-Corruption Commission' and 'person assisting the NACC Inspector', which would have the same meaning as in the NACC Bill.

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Item 37 would replace 'ACLEI' with 'NACC' in the definition of law enforcement officer.

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Items 38 and 39 would repeal the definition of 'staff member of ACLEI' and replace it with a definition of 'staff member' of the NACC, which would have the same meaning as in the NACC Bill.

Use and sharing of things seized and documents produced under the Crimes Act 1914

14.43 Section 3ZQU of the Crimes Act 1914 sets out the purposes for which things seized and documents produced under Part IAA of the Crimes Act 1914 (search and information gathering powers) may be used and shared. Section 3ZZEA sets out the purposes for which things seized under Part IAAA of the Crimes Act 1914 (delayed notification search warrants) may be used and shared. Both provisions currently include the purpose of investigating or inquiring into a corruption issue under the LEIC Act.

14.44 Items 40 and 41 would replace that purpose in sections 3ZQU and 3ZZEA with a reference to conducting a NACC Act process, which is defined in clause 7 of the NACC Bill to mean a corruption investigation, a NACC complaint investigation, a NACC corruption investigation and a public inquiry.

Controlled operations

14.45 Controlled operations under Part IAB of the Crimes Act 1914 are covert law enforcement operations conducted for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious criminal offence. They may involve one or more persons engaging in otherwise unlawful conduct in order to obtain that evidence. For example, participants might be involved in a controlled delivery of a consignment of illicit drugs in order to obtain evidence to be used against people involved in drug trafficking. For that reason, participants are protected against criminal and civil liability for conduct authorised as part of an operation.

14.46 ACLEI is currently one of agencies able to authorise controlled operations under Part IAB of the Crimes Act 1914, along with the AFP and the ACIC.

14.47 Items 42 to 46, 48 to 54 and 56 to 62 would amend Part IAB to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC and its establishing legislation. These items would update such references in:

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section 15GC, which contains definitions for the purposes of Part IAB;

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section 15GF, which sets out who is an authorising officer for a controlled operation;

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section 15HG, which sets out who must be notified of certain occurrences during controlled operations;

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section 15HK, which contains offences for unauthorised disclosure of information; and

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section 15J, which requires agencies to notify the Secretary of the Immigration and Border Protection Department of authorities granted for certain controlled operations.

14.48 Along with amendments to the definitions contained in section 3 of the Crimes Act 1914 made by items 35 to 39, the amendments made by the items outlined in paragraph 14.42 would allow:

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staff members of the NACC to apply to an appropriate authorising officer for an authority to conduct a controlled operation under section 15GH of the Crimes Act 1914; and

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the NACC Commissioner and SES staff members of the NACC authorised in writing by the NACC Commissioner to:

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authorise controlled operations in accordance with section 15GI of the Crimes Act 1914 (outlined in paragraph 14.50) where those operations relate to the conduct of a corruption investigation within the meaning of the NACC's establishing legislation; and

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vary and cancel operations in accordance with sections 15GO and 15GY of the Crimes Act 1914.

14.49 In addition, items 60 and 61 would also amend subsection 15HK(3) of the Crimes Act 1914 so an exception to the unauthorised disclosure offences in section 15HK would apply for disclosures to the Commissioner or the Inspector about a corruption issue or a NACC corruption issue in relation to a controlled operation.

Threshold for authorising controlled operations

14.50 Under section 15GI, an authorising officer must not grant an authority to conduct a controlled operation unless they are satisfied on reasonable grounds:

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that either:

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a serious Commonwealth offence or a serious state offence that has a federal aspect has been, is being or is likely to be committed; or

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an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency; and

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that restrictions on controlled operations and controlled conduct outlined in paragraphs 15GI(2)(b) to (h) apply.

14.51 The amendments outlined above would ensure that section 15GI would apply to the NACC as it currently does to ACLEI, the ACIC and the AFP.

Amendments related to integrity testing

14.52 The definition of 'disciplinary or legal action' in section 15GC of the Crimes Act 1914 includes a disciplinary proceeding in relation to the staff member, within the meaning of the LEIC Act, or a report of such a proceeding. Item 46 would remove the reference to the LEIC Act given that Act will be repealed by item 1. Item 47 would insert a definition of 'disciplinary proceeding' that is the same as that currently in the LEIC Act so there is no change to that term. The term 'disciplinary or legal action' is relevant to exceptions for disclosures related to integrity testing to offences for unauthorised disclosure in section 15HK.

14.53 Item 55 would make an amendment to the definition of 'target agency' in section 15GC of the Crimes Act 1914 as a consequence of amendments to the integrity testing regime in Part IABA of the Crimes Act 1914 outlined below. Consistent with those amendments, this item would provide that a target agency includes, in addition to the ACC, AFP and Immigration and Border Protection Department, any other Commonwealth agency (within the meaning of the NACC's establishing legislation). The definition of target agency is relevant because a controlled operation may be authorised where an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency. This amendment will ensure that controlled operations are available to support integrity testing operations in relation to any Commonwealth agency.

Oversight of controlled operations

14.54 As is the case for existing authorising agencies, the NACC's authorisation and conduct of controlled operations, including those undertaken for the purposes of integrity testing, would be overseen by the Commonwealth Ombudsman under Division 4 of Part IAB.

Integrity testing

14.55 Part IABA of the Crimes Act 1914 provides a framework for operations (referred to as integrity testing operations) that are designed to test the integrity of staff members of the ACIC, the AFP and the Department of Home Affairs, using controlled or simulated situations. Operations may involve offering a staff member an opportunity to engage in conduct, whether lawful or unlawful, so as to contravene principles of behaviour required of persons occupying the position of such a staff member. For example, an integrity test could involve putting false information in a database to test whether a person suspected of unlawfully disclosing information then discloses the false information.

14.56 Integrity testing operations may currently be authorised by the agency concerned or, where a corruption issue is involved, by ACLEI.

14.57 Items 63 to 88 would amend Part IABA to:

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remove references relevant to ACLEI and the LEIC Act in sections 15JC (definitions), 15JG (authorities for integrity testing operations), 15JI (notice of authorities granted), 15JK (variation of authorities) 15JQ and 15JR (offences for unauthorised disclosures) and 15JS (annual reports) and replace them with references relevant to the NACC and its establishing legislation-items 66 to 74 and 80 to 88; and

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allow the NACC to undertake integrity testing of staff members in any Commonwealth agency (within the meaning of the NACC's establishing legislation)-items 63, 64, 75, 76, 77, 78 and 79 amending sections 15JA (simplified outline), 15JC (definitions, specifically of target agency)15JD (meaning of integrity testing operation) and 15JE (circumstances in which applications may be made).

14.58 Under these amendments, the ACIC, the AFP and the Department of Home Affairs would continue to be the only agencies permitted to conduct operations to test the integrity of staff members within their agencies in the absence of a corruption investigation. Those agencies would also continue to be able to obtain authorisations for integrity testing operations concerned with a corruption investigation in relation to staff members of their agencies (from the NACC in place of ACLEI).

14.59 Under the amendments, the NACC would, similarly to ACLEI, only be able to conduct integrity testing operations concerned with a corruption investigation. However, given the NACC's broader jurisdiction compared to ACLEI, the NACC would be permitted to authorise and conduct such operations in relation to staff members of any agency that is a Commonwealth agency under the NACC Bill. This is intended to have a deterrent effect-staff members should think twice before accepting a bribe if there is a chance the person offering it is a NACC officer working undercover-and to give the NACC another means of investigating suspected corrupt conduct that would constitute an offence. This power would be subject to the existing issue threshold in section 15JG (outlined below).

Threshold for authorising integrity testing operations

14.60 Under sections 15JC, 15JG and 15JE of the Crimes Act 1914 as amended by items 66, 77 and 80, the Commissioner, a Deputy Commissioner or an SES employee of the NACC would only be permitted to authorise an integrity testing operation if they are satisfied that:

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there are reasonable grounds to suspect that an offence punishable on conviction by imprisonment for 12 months or more has been, is being, or is likely to be committed by a staff member of the target agency;

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it is appropriate in all the circumstances to conduct the operation; and

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the operation is part of a corruption investigation (within the meaning of the NACC's establishing legislation).

14.61 Section 15JG of the Crimes Act would apply to the NACC as it currently does to ACLEI, the ACIC, the AFP and the Department of Home Affairs except that the final part of the test would be slightly modified by the items in the NACC Bill: in place of being satisfied that the purpose of the operation is to investigate a corruption issue, the authorising officer must be satisfied that the operation is part of a corruption investigation. This slightly different threshold would ensure that that authorising officers of the NACC may only authorise integrity testing operations for the purposes of corruption investigations (which must concern a corruption issue that could involve corrupt conduct that is serious or systemic), not preliminary investigations (which are not limited in the same way).

Assumed identities

14.62 Part IAC of the Crimes Act 1914 allows the chief officer of a law enforcement or intelligence agency to authorise a law enforcement or intelligence officer or other person to acquire and use an 'assumed identity' (a strong false identity, supported by genuine identity documents) for certain purposes, including the investigation of criminal activity. For example, an officer might use an assumed identity in an undercover operation.

14.63 ACLEI is currently one of five law enforcement agencies able to acquire and use assumed identities under Part IAC of the Crimes Act 1914.

14.64 Items 89 to 93 and 95 to 98 would amend Part IAC of the Crimes Act 1914 to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC and its establishing legislation. These items will update these references in the following sections of the Crimes Act 1914:

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section 15K, which contains definitions for the purposes of Part IAC;

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section 15KB, which concerns determination of applications to acquire or use an assumed identity;

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section 15LD, which sets out the requirements for annual reports about assumed identities; and

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section15LH, which allows chief officers to delegate their functions to senior officers of their agency.

14.65 Along with amendments to definitions contained in section 3 of the Crimes Act 1914 made by items 35 to 39, the amendments made by these items would allow:

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staff members of the NACC to apply for authorities to acquire and use an assumed identity; and

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allow the Commissioner to:

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grant authorities to acquire and use an identity in accordance with section 15KB;

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vary and cancel such authorities in accordance with section 15KE; and

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request an agency that issues evidence of identity to produce evidence of an assumed identity in accordance with an authority and give the evidence to a staff member of the NACC in accordance with section 15KI.

Threshold for granting an assumed identity authority

14.66 A chief officer must not grant an authority to use and acquire an assumed identity under section 15KB unless they are satisfied on reasonable grounds:

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that the assumed identity is necessary for one or more listed purposes (including investigation of criminal activity and the exercise of powers and functions under the National Witness Protection Program);

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that the risk of abuse of the assumed identity by the authorised person is minimal; and

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if the authorised person is not an officer of a law enforcement or intelligence agency, that it would be impossible or impracticable in the circumstances for an officer to acquire or use the assumed identity for the purpose sought.

14.67 The amendments outlined above would ensure that section 15KB would apply to the NACC as it currently does to ACLEI and other law enforcement agencies.

Disclosures to the Inspector

14.68 Section 15LC of the Crimes Act 1914 sets out offences for disclosing information about an assumed identity. Exceptions to the offences are set out in subsection 15LC(4). Item 94 would insert an additional paragraph to subsection 15LC(4) to provide an exception to the disclosure offences for disclosures made in connection with the exercise of a power, or the performance of a function or duty, of the Inspector of the National Anti-Corruption Commission or a person assisting the NACC Inspector. The Inspector may require access to such information, for example, if investigating a NACC corruption issue related to misuse of an assumed identity.

Witness identity protection for operatives

14.69 Part IACA of the Crimes Act 1914 allows witness identity protection certificates to be issued to protect the identity of an 'operative' who is or may be required to give evidence obtained in that capacity in a proceeding. Operatives are participants in controlled operations authorised under Part IAB and persons authorised to acquire and use an assumed identity under Part IAC.

14.70 ACLEI is currently one of five law enforcement agencies able to use this framework under Part IACA of the Crimes Act 1914.

14.71 Items 99 and 100 would amend section 15M to remove references relevant to ACLEI and the LEIC Act in the definitions of chief officer and law enforcement agency and replace them with references relevant to the NACC and its establishing legislation.

14.72 Along with amendments to definitions contained in section 3 of the Crimes Act 1914 made by items 35 to 39, the amendments made by these items would allow the Commissioner to:

•

give a witness identity protection certificate for an operative in relation to a proceeding in accordance with section 15ME; and

•

cancel such a certificate in accordance with section 15MQ.

Threshold for issue of witness identity protection certificate

14.73 Under section 15ME, a chief officer of a law enforcement agency may give a witness identity protection certificate for an operative in relation to a proceeding if:

•

the operative is, or may be required, to give evidence in the proceeding; and

•

the chief officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative's identity or where the operative lives is likely to:

-

endanger the safety of the operative or another person;

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prejudice any current or future investigation; or

-

prejudice any current or future activity relating to security.

14.74 The chief officer must make all reasonable enquiries to enable the chief officer to ascertain the information required to be included in the certificate by section 15MG of the Crimes Act 1914; and cannot give a certificate for an operative until the chief officer has obtained a statutory declaration from the operative under section 15MF of the Crimes Act 1914.

14.75 The amendments outlined above would ensure that section 15ME of the Crimes Act would apply to the NACC as it currently does to ACLEI and other law enforcement agencies.

Spent convictions

14.76 Section 85ZL of the Crimes Act 1914 sets out definitions for the purposes of Part VIIC of the Crimes Act 1914 (which concerns pardons, quashed convictions and spent convictions).

14.77 Item 101 would amend the definition of 'law enforcement agency' in section 85ZL to replace the reference to ACLEI with a reference to the NACC. This would mean that Division 3 of Part VIIC, concerning spent convictions, does not apply to certain uses of information by the NACC or certain disclosures to or by the NACC (in accordance with sections 85ZZH and 85ZZJ).

Criminal Code Act 1995 amendments

14.78 Items 102 and 103 would amend subsection 122.5(3) of the Criminal Code to refer to the Commissioner or another staff member of the NACC, and the Inspector or a person assisting the Inspector, instead of equivalent terms from the LEIC Act. The effect of these amendments would be to ensure that it is a defence to certain secrecy offences for a person to communicate or deal with relevant information for the purpose of communicating it to the Commissioner or to another staff member of the NACC, or the Inspector or a person assisting the Inspector for the purposes of exercising a power, or performing a function or duty.

14.79 Item 104 would amend subparagraph 122.5(12)(b)(ii) of the Criminal Code to refer to the Commissioner or the Inspector, instead of referring to terms included in the LEIC Act. This amendment would provide that a defendant does not bear an evidential burden in relation to the certain defences in subsection 122.5 of the Criminal Code). This is appropriate because the NACC Bill provides that entrusted persons (defined in clause 7 to mean a staff member of the NACC, the Inspector or a person assisting the Inspector) 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 (see clause 232).

14.80 Items 105 and 106 would amend paragraphs (aa) and (ab) of the definition of Commonwealth law enforcement officer in section 146.1 of the Criminal Code to refer to the Commissioner or another staff member of the NACC (instead of equivalent terms under the LEIC Act). This would ensure that the Commissioner and staff members of the NACC are Commonwealth law enforcement officers, and so would be subject to additional penalties if they commit the offences of:

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causing harm to a Commonwealth public official etc. (in section 147.1 of the Criminal Code); and

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threatening to cause harm to a Commonwealth public official etc. (in section 147.2 of the Criminal Code).

14.81 A related amendment, item 107 would insert a new paragraph into the definition of law enforcement officer in section 473.1 of the Criminal Code. The amendment would extend the definition of law enforcement officer to include a staff member of the NACC. This means that certain defences to the telecommunications offences in Division 474 of the Criminal Code will be available in relation to reasonable conduct undertaken by NACC staff members acting in good faith in the course of their duties.

14.82 It is appropriate that staff members of the Commissioner and the NACC are treated as law enforcement officers for the purposes of the Criminal Code in light of their functions under the NACC Bill (see Part 3) and the range of powers-including covert and coercive powers-to which they have access under Part 7 of the NACC Bill. This would be consistent with arrangements for State and Territory anti-corruption commissions, which are currently covered by the definition of law enforcement officer in section 473.1.

Data Availability and Transparency Act 2022 amendments

14.83 Items 108 and 109 would amend the definition of excluded entity in subsection 11(3) of the Data Availability and Transparency Act 2022 (DAT Act). Item 108 would amend paragraph 11(3)(a) to replace the reference to ACLEI with a reference to the NACC. Similarly, item 109 would insert a new paragraph 11(3)(ab) that would provide that the Inspector of the NACC is an excluded entity for the purposes the DAT Act.

14.84 The DAT Act establishes a framework for the sharing of public sector data with accredited entities from all levels of government as well as industry, research and others in the private sector. These amendments would exclude the NACC and the Inspector from the DAT Act's data sharing scheme, with the effect that data originating with, held by or received from the NACC or Inspector of the NACC would not be able to be shared under the DAT Act. This is consistent with the scheme's intention for data held by certain agencies not be shared, for example where that data relates to national security and law enforcement.

14.85 Item 110 would amend paragraph 108(2)(k) to replace the reference to ACLEI with a reference to the NACC. Similarly, item 111 would insert a new paragraph 108(2)(ka) to include reference to the Inspector of the NACC. These amendments would permit the National Data Commissioner to disclose information or documents (including personal information) to the NACC or the Inspector where that disclosure would assist the NACC or the Inspector to perform any of their functions or exercise any of their powers. This amendment would also allow the National Data Commissioner to receive information or a document from the NACC or the Inspector for the purposes of assisting the Commissioner with the performance of their own functions. This would include the NACC and the Inspector alongside other integrity agencies and regulatory bodies, which are able to disclose and receive information for this purpose.

Financial Transaction Reports Act 1988 amendments

14.86 The Financial Transaction Reports Act 1988 imposes an obligation on cash dealers to prepare a report and inform the AUSTRAC CEO in circumstances where the cash dealer is a party to a transaction and has reasonable grounds to suspect that any information regarding that transaction may be relevant to, among other things, the investigation of an offence against a law of the Commonwealth or of a Territory (subsections 16(1) and 16(1A)).

14.87 Items 112 to 116 would amend the Financial Transaction Reports Act 1988 to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC and its establishing legislation, to give the NACC the same powers currently available to ACLEI. These items will update such references in sections 3 (definitions) and 16 (reports of suspect transactions) of the Act.

14.88 Item 115 would extend the definition of investigating officer (in subsection 16(6)) to include a staff member of the NACC, and item 116 would extend the definition of relevant authority to include the Commissioner. These amendments would permit the Commissioner or another staff member of the NACC (under subsection 16(4)) to require further information from a cash dealer where the dealer has provided information to the AUSTRAC CEO in accordance with subsection 16(1) or 16(1A). A staff member of the NACC may only require further information if they are carrying out an investigation arising from, or relating to the matters referred to in, the information contained in the report under subsection 16(1) or (1A).

14.89 These amendments would ensure, consistently with the powers available to ACLEI, that the NACC would have access to information about a financial transaction where relevant to a corruption investigation.

Inspector-General of Intelligence and Security Act 1986 amendments

14.90 Item 117 would amend subsection 3(1) of the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to extend the definition of integrity body to include the National Anti-Corruption Commissioner and the Inspector of the NACC for the purposes of that Act.

14.91 Item 118 would amend the IGIS Act to repeal the definition of Integrity Commissioner for the purposes of the IGIS Act.

14.92 These amendments are relevant to provisions of the IGIS Act that:

•

permit the IGIS to share information with integrity bodies (section 32AC); and

•

prevent the duplication of investigations (subsection 11(4A)).

14.93 Item 119 would repeal subparagraph 11(4A)(a)(iv) of the IGIS Act, which concerns the Inspector's ability to decide not to inquire into, or not to further inquire into, a complaint or part of a complaint received in relation to action taken by an intelligence agency. The amendment would insert two new subparagraphs 11(4A)(a)(iv) and 11(4A)(a)(iva), which would provide that the IGIS may decide not to inquire into, or further inquire into (as the case may be), a complaint in relation to an action taken by an intelligence agency if:

•

the complaint has been, or could have been, made to the NACC or the Inspector of the NACC (as the case may be); and

•

the IGIS is satisfied the subject matter of the complaint could be more effectively or conveniently dealt with by the NACC or the Inspector of the NACC (as the case may be).

14.94 It is appropriate that the IGIS have the discretion to not inquire, or further inquire, into a matter that would be more appropriately considered by the NACC or the Inspector. It would remain open to the IGIS to still decide to inquire into a matter that may be within the NACC's jurisdiction, and for the NACC to refer the issue back to the IGIS.

14.95 Item 120 would remove a reference to the LEIC Act from the note to section 32AD of the IGIS Act (concerning the transfer of complaints to integrity bodies). Although the Commissioner would be an integrity body under the IGIS Act, the IGIS would not transfer complaints to the Commissioner under section 32AD. Instead, the IGIS could refer a corruption issue to the NACC voluntarily under clause 32 of the NACC Bill (voluntary referral obligations). The IGIS would also have mandatory referral obligations under clauses 34 (relating to intelligence agencies) or 35 (relating to PIDs about intelligence agencies) where the IGIS is satisfied that issue is likely to involve corrupt conduct that is serious or systemic.

14.96 Item 121 would insert a new provision 34AB into the IGIS Act. This amendment would permit the IGIS or the staff of the IGIS to disclose information or give documents to a staff member of the NACC or the Inspector of the NACC or a person assisting the Inspector if the information or documents being disclosed is relevant to the NACC's functions or powers, and the IGIS is satisfied on reasonable grounds that the NACC has satisfactory arrangements in place to protect the information or documents. This section would apply despite anything in the IGIS Act or any other Act. This section would also provide that a staff member of the NACC and person assisting the Inspector have the same meaning as under the NACC Bill.

14.97 This amendment is appropriate because it would enable the NACC to receive all relevant information about a potential serious or systemic corruption issue, while ensuring that information provided by the IGIS is appropriately protected.

14.98 Item 122 would insert a note under section 34B of the IGIS Act which concerns protection for persons providing information voluntarily to the IGIS. The note would explain that the immunity conferred by section 34B of the IGIS Act would apply, subject to a confidentiality direction issued by the NACC Commissioner under clauses 100 (directions about use or disclosure of investigation material) and 102 (disclosure to IGIS official and Ombudsman officials) of the NACC Bill, including instances where those clauses are applied by the Inspector under clause 214 (Inspector's powers to investigate).

National Consumer Credit Protection Act 2009 amendments

14.99 Item 123 would amend section 272F of the National Consumer Credit Protection Act 2009 to apply a modified version of section 3ZQU of the Crimes Act 1914 to NACC Act processes. This section of the National Consumer Credit Protection Act currently outlines the purposes for which documents may be used and shared for the purposes of the LEIC Act. The amendment would allow search warrant material seized under the National Consumer Credit Protection Act to be disclosed to certain officials for the purposes of a NACC Act process (defined in clause 7 to mean a corruption investigation, a NACC complaint investigation, a NACC corruption investigation or a public inquiry). This amendment is necessary to ensure that the NACC can use all available information and evidence when conducting investigations or public inquiries.

14.100 An equivalent amendment would be made to the Australian Securities and Investments Commission Act 2001 (see item 34 of Schedule 1 of the Consequential Bill).

National Emergency Declaration Act 2020 amendments

14.101 Item 124 would amend subparagraph 15(8)(ge) of the National Emergency Declaration Act 2020 to exclude the NACC Bill from the operation of section 15 of that Act. Section 15 permits the Minister, during a national emergency, to vary certain legislation by legislative instrument in response to circumstances relating to the emergency. This exemption would ensure that the coercive and intrusive powers contained in the NACC Bill, in addition to the Commissioner's role in addressing corruption across the Commonwealth, remain undisturbed regardless of the surrounding circumstances. This amendment is appropriate in light of the perpetual nature of the NACC as an integrity body.

Ombudsman Act 1976 amendments

14.102 Item 125 would remove the reference in the Ombudsman Act 1976 to the Integrity Commissioner under the LEIC Act, and insert a new definition into the Ombudsman Act to refer to the Commissioner. This definition of the Commissioner would be aligned with the definition contained in the NACC Bill.

14.103 Item 126 would repeal subsection 5(3B) of the Ombudsman Act. This provision clarifies that the Ombudsman is not prevented from investigating actions taken by ACLEI office holders who are also serving judges. A serving judge could not be appointed to be a NACC office holder so this provision would no longer be required.

14.104 Item 127 would repeal subsections 6(16) to (19) of the Ombudsman Act, which allow the Ombudsman to refer a complaint, or information, that raise a corruption issue to ACLEI. Item 126 would insert a new section into the Ombudsman Act to replace the reference to ACLEI with a reference to the NACC, which would provide for the referral of corruption issues by the Ombudsman to the NACC or the Inspector.

14.105 Items 128 and 129 would amend section 6B to substitute references to the Integrity Commissioner with references to the Commissioner. This amendment would mean that if the Ombudsman forms the opinion that a complaint about the Commissioner could have been made to, and would be more conveniently or effectively dealt with by, another Commonwealth or State or Territory authority, the Ombudsman could transfer the complaint to the other, more suitable, authority. If the complaint is transferred, the Ombudsman may decide not to investigate the complaint, or investigate the complaint further.

14.106 Item 130 would create a new section 6G in the Ombudsman Act, providing the Ombudsman with the discretion to refer a complaint that is likely to involve corrupt conduct that is serious or systemic to the NACC, or a NACC corruption issue to the Inspector. The Ombudsman would be able to make a referral to the Commissioner under the voluntary referral provisions in clause 32 of the NACC Bill. This amendment provides the Ombudsman with the ability to continue to investigate a complaint or PID under the PID Act, following a referral of information to the NACC or Inspector. This amendment preserves the Ombudsman's ability to conduct concurrent investigations of complaints and matters once a referral to the NACC has been made. It would ensure the agency is able to continue to comply with requirements under other relevant legislation, including the Ombudsman Act and the PID Act for example. This amendment would also provide the Ombudsman with a discretion to decide not to investigate the complaint, or not to investigate it further. This would ensure that if a complaint or matter was referred to the NACC, the Ombudsman is able to decide to take no further action in relation to the matter. This would reduce duplicate investigations and inquiries into the same matter, where appropriate.

14.107 Subsection 6G(3) would provide that, once the Ombudsman decides to exercise their discretion to make a referral to the NACC or the Inspector under subsection 6G(2), they must refer the information as soon as reasonably practicable. They must include all relevant information to the corruption issue or the NACC corruption issue that is in their possession or control at the time, and, as soon as reasonably practicable, provide any further relevant information of which they subsequently become aware. However, the Ombudsman is not required to provide information if they have reasonable grounds to believe the Commissioner or Inspector is already aware of the information, or they have been advised by the Commissioner or Inspector the provision of information is not required (subsection 6G(4)).

14.108 The Ombudsman would also be required to give the complainant written notice that the complaint has been referred to the Commissioner or the Inspector as soon as reasonably practicable (new subsection 6G(3)(c)). This subsection would also require the Ombudsman to provide the complainant of their decision on whether they will continue to investigate, or continue to investigate, the complaint.

14.109 The Ombudsman would receive protections from liability in respect of a NACC disclosure, as provided for under clause 24 of the NACC Bill (protections for disclosers). This provision would ensure that the Ombudsman, or one of their delegates, would be protected from liability if they breach, for example, a relevant secrecy provision in making a referral of sensitive information to the NACC. This is appropriate to ensure that the Ombudsman and their delegates are not discouraged from making disclosures to the NACC, and so that the NACC is able to receive relevant information to support its statutory functions.

14.110 Items 131 to 135 would substitute references to the Integrity Commissioner and to ACLEI with references to the Commissioner and the NACC. These amendments would allow the Ombudsman to arrange for another Commonwealth, State or Territory authority to investigate action taken by a staff member of the NACC. The amendment to subsection 8C(3) would substitute the reference to the Integrity Commissioner with a reference to the Ombudsman to the effect that the Ombudsman can vary an arrangement struck between the Ombudsman and the head of another authority about an investigation of the Commissioner.

Secrecy provisions

14.111 Item 136 would permit the Attorney-General to issue a certificate preventing the Ombudsman from compelling or on-disclosing particular NACC information (see paragraph 9(3)(f)). Item 136 would substitute the reference to the Integrity Commissioner with a reference to the Commissioner. This would permit the Attorney-General to issue a certificate preventing the Ombudsman from compelling or on-disclosing particular NACC information (see paragraph 9(3)(f)). A certificate may relate to information the disclosure of which would endanger the life of a person or create a risk of serious injury to a person.

14.112 Items 137 to 151 would amend section 35C, subsections 20ZS(1) and 35AA(3), and paragraphs 20ZK(1)(k) of the Ombudsman Act to substitute references to the Integrity Commissioner and to ACLEI with references to the Commissioner and the NACC. These amendments would permit the Ombudsman to disclose information to the Commissioner if the information may be relevant to a corruption issue despite the secrecy provisions of the Ombudsman Act.

14.113 Item 143 would amend subsection 35AA(2) to permit the Ombudsman to disclose information, a statement, or a document to the Inspector (within the meaning of the NACC Bill) if it is relevant to a NACC corruption issue.

Privacy Act 1988 amendments

14.114 Item 152 would repeal paragraph 6(1)(aa) of the definition of enforcement body in the Privacy Act 1988 which refers to the Integrity Commissioner and would substitute it with a reference to the Commissioner and add a reference to the Inspector. Additionally, item 153 would repeal the definition of Integrity Commissioner in subsection 6(1).

14.115 The effect of these amendments would be as follows.

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A credit reporting body would be able to disclose an individual's credit reporting information to the NACC or the Inspector if the credit reporting body believes on reasonable grounds that the individual has committed a serious credit infringement or if the disclosure is otherwise required under a law or regulation (subsection 20E(3)(d) of the Privacy Act).

•

Under paragraph 20R(2)(c) of the Privacy Act, a credit reporting body (under paragraph 20R(2)(c)) or a credit provider (under subsection 21T(2)(c)) would not be able to give to an access seeker (within the meaning of the Privacy Act) access to credit information to the extent that it would be likely to prejudice activities conducted by the NACC or the Inspector.

•

A credit provider who holds information about an individual's credit eligibility information would be able to disclose this information to the NACC or the Inspector if the credit provider believes on reasonable grounds that the individual has committed a serious credit infringement (paragraph 21G(3)(d) of the Privacy Act).

The Commissioner or the Inspector would not need to report a data breach if doing so would be likely to prejudice its enforcement- related activities (see sections 26WN and 26WS of the Privacy Act). Other entities affected by the breach may also not need to report on that basis. However, the Commissioner or the Inspector could provide advice to the Information Commissioner in relation to a data breach (subparagraph 26WQ(3)(b)(i) of the Privacy Act).

•

The NACC or the Inspector would not be able to be a data store administrator in relation to COVIDSafe app data (paragraph 94Z(3)(a) of the Privacy Act), noting that the Minister for Health has determined the end of the COVIDSafe app data period under section 94Y of the Privacy Act (taking effect on 16 August 2022), and this will repeal Part VIIIA of the Privacy Act 90 days after the determination takes effect.

•

The Commissioner or the Inspector would be able to collect sensitive information about an individual where it is reasonably necessary for, or directly related to, one or more of the Commissioner's or the Inspector's functions or activities (subparagraph 3.4(d)(ii) of Schedule 1 of the Privacy Act).

•

An entity would be able to disclose personal information to the Commissioner or the Inspector for the Commissioner's or the Inspector's enforcement-related activities (paragraph 6.2(e) of Schedule 1 of the Privacy Act).

•

An entity would be able to disclose biometric information or biometric templates to the Commissioner or the Inspector in accordance with guidelines made by the Information Commissioner (clause 6.3 of Schedule 1 of the Privacy Act).

•

The Commissioner or the Inspector would be able to share personal information with a foreign body with law enforcement functions for the purpose of the Commissioner's or the Inspector's enforcement-related activities (paragraph 8.2(f) of Schedule 1 of the Privacy Act).

•

The Commissioner or the Inspector would be able to use or disclose a government-related identifier of an individual for the purpose of the Commissioner's or the Inspector's enforcement related activities (paragraph 9.2(e) of Schedule 1 of the Privacy Act).

•

A credit reporting body or credit provider would be able to deny a person access to their personal information if that access would be likely to prejudice one or more enforcement-related activities conducted by the Commissioner or the Inspector (paragraph 12.3(i) of Schedule 1 of the Privacy Act).

14.116 Item 154 would repeal subparagraph 7(1)(a)(iiia) which refers to the Integrity Commissioner and substitute it with a reference to the National Anti-Corruption Commissioner and add a reference to the Inspector. As both the NACC and the Inspector would become enforcement bodies under subsection 6(1) of the Privacy Act following the commencement of the NACC Bill and item 152 of the Consequential Bill, the effect of the amendment to subparagraph 7(1)(a)(iiia) would be that an act or practice of the Commissioner or the Inspector would not be subject to the Privacy Act. This is appropriate given the important role the NACC will play in ensuring effective public administration. Further, the Commissioner and Inspector will both be subject to strict confidentiality requirements (see Part 11 of the NACC Bill).

14.117 Item 155 would repeal paragraph 7(1)(ga) which refers to the Integrity Commissioner or a staff member of ACLEI and substitute it with a reference to the National Anti-Corruption Commissioner or another staff member of the NACC, and add a reference to the Inspector or a person assisting the Inspector. The amendment would provide that a reference in the Privacy Act to an act, or to a practice engaged in, does not include a reference to an act or to a practice engaged in, in relation to a record that has originated with, or has been received from, the Commissioner, another staff member of the NACC or the Inspector.

14.118 Item 156 would substitute the reference to the LEIC Act with a reference to the NACC Bill in subsection 20E(5) (note). Under subsection 20E(5), if a credit reporting body discloses credit reporting information under this section, the credit reporting body must make a written note of that disclosure. The note under that subsection of the Privacy Act states that the LEIC Act provides that this written note must not be made - this amendment is necessary to ensure that this provision would have the same operation for a disclosure to the NACC.

14.119 Item 157 would substitute the reference to the Integrity Commissioner in paragraph 70(2)(c) of the Privacy Act and replace it with a reference to the Commissioner and add a reference to the Inspector. The effect of this amendment would be that the Attorney-General would be able to issue a certificate preventing the Information Commissioner from compelling the production of particular information that would prejudice the proper performance of the functions of the Commissioner or the Inspector. Certificates issued under the Privacy Act are distinct from certificates issued under the NACC Bill (see clauses 235 and 236), but serve a similar purpose.

Proceeds of Crime Act 2002 amendments

14.120 Items 158 to 162 would amend provisions of the POC Act to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC contained in the NACC Bill. The effect of these amendments would be to give the NACC the same powers as those currently available to ACLEI. These items will update references contained in the following sections of the POC Act:

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section 15B (making freezing orders)

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section 15C (affidavit supporting freezing order application made in person)

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section 15D (applying for freezing orders by telephone or other electronic means)

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section 15P (order extending a freezing order)

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section 213 (giving notices to financial institutions), and

•

section 338 (definitions).

14.121 The powers available under the POC Act are intended to prevent a person who has committed an offence from being able to enjoy the benefit, or reinvest the proceeds, of their criminal conduct. These powers act as a disincentive to possible criminal corrupt actors by minimising any profit motive. Item 162 would ensure that the Commissioner, a Deputy Commissioner, or a staff member of the NACC authorised by the Commissioner in writing, would constitute an authorised officer under section 338 of the POC Act.

14.122 These amendments will give authorised officers of the NACC access to certain powers under the POC Act, subject to existing thresholds, as detailed below. Other powers under the POC Act would not be available to the NACC, including those only available to a proceeds of crime authority. This includes powers to apply for a forfeiture order (section 47) or a preliminary unexplained wealth order (section 179B). This is consistent with how the POC Act currently applies to ACLEI.

Freezing orders

14.123 The amendments to the POC Act would allow authorised officers of the NACC to:

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apply for a freezing order (section 15B), and

•

apply for an order extending a freezing order (section 15P).

14.124 A freezing order is an order that a financial institution not allow a withdrawal from an account with the institution unless in circumstances permitted by the order. A magistrate would only grant a freezing order if there are reasonable grounds to suspect that the balance of the account is, among other things, proceeds of an indictable offence.

Notices to financial institutions

14.125 Item 161 would amend section 213 of the POC Act such that the Commissioner would be empowered to issue a notice to a financial institution to provide information or documents. This power would enable the NACC to seek information about accounts held by a specified person.

Production orders

14.126 These amendments would also mean that the NACC is an enforcement agency for the purposes of the POC Act (see definition of that term in section 338), and an authorised officer of the NACC would therefore be permitted to apply for a production order under section 202 of the POC Act.

14.127 A production order is an order that a person produce particular property-tracking documents (defined in section 202(5)) to an authorised officer. A magistrate could only grant a production order where satisfied that a person is reasonably suspected of having possession or control of such documents. This power would assist the NACC in identifying, locating or quantifying an interest in property where relevant to a corruption investigation.

Monitoring orders

14.128 An authorised officer of the NACC would also be permitted to apply for a monitoring order under section 219 of the POC Act.

14.129 A monitoring order is an order that a financial institution provide information about transactions conducted by a particular person or made using a stored value card (defined in section 338 of the POC Act) during a particular period. A judge could only grant a monitoring order where satisfied that there are reasonable grounds to suspect the person who holds the account or stored value card is involved or is about to be involved in the commission of a serious offence (such as an offence carrying a penalty of three or more years imprisonment), or the account is being used to commit an offence against Part 10.2 of the Criminal Code (money laundering). This power would assist the NACC in obtaining financial information relevant to a corruption investigation.

Search warrants

14.130 An authorised officer of the NACC would be permitted to apply for a search warrant under section 225 of the POC Act (or under section 229 in an urgent case). A magistrate could only issue a search warrant if satisfied that there are reasonable grounds for suspecting that there will be tainted property or evidential material (defined in section 338 of the POC Act) at the premises within the next 72 hours (or 48 hours in the case of a section 229 application). The search warrant would authorise the executing officer or person assisting to enter premises, search premises or a person, and seize material as provided in section 228 of the POC Act. This power would assist the NACC to obtain material relevant to a corruption investigation.

Stopping and searching conveyances

14.131 Under section 251, an authorised officer of the NACC would be permitted to stop, detain and search a conveyance and any container in or on the conveyance, and seize material. The officer would only be able to do so in accordance with section 252, and if they suspect on reasonable grounds that material constituting tainted property or evidential material (defined in section 338 of the POC Act) is in or on a conveyance and it is necessary to seize that material to prevent the thing from being concealed, lost or destroyed, and without the authority of a search warrant because the circumstances are serious and urgent.

Public Interest Disclosure Act 2013 amendments

14.132 Items 163 to 183 would amend the PID Act. The PID Act provides a framework for public officials (within the meaning of the PID Act) to make PIDs disclosing suspected wrongdoing within the Commonwealth public sector. PIDs may relate to:

•

a contravention of the law;

•

corruption;

•

perverting the course of justice;

•

maladministration;

•

an abuse of public trust;

•

falsifying scientific research;

•

wastage of public money;

•

conduct that is a danger to health, safety or the environment; or

•

conduct that involves, or is engaged in for the purpose of, corruption of any other kind.

14.133 The PID Act places obligations on departments, agencies and prescribed authorities (including Commonwealth companies) to investigate and take appropriate action in relation to PIDs and provides a range of protections to disclosers, including immunities from liability and protection from reprisal action, or threats of reprisal action.

14.134 The NACC Bill and the Consequential Bill would provide a framework to appropriately protect people who make disclosures to the NACC, and are designed to complement the PID Act scheme. There are a number of areas where the two schemes would closely interact. For example, there would be overlap between the types of disclosable conduct that can be dealt with under the PID Act and alleged corrupt conduct that can be dealt with under the NACC Bill. Under the PID Act, a public official can make an internal disclosure to their supervisor or a PID officer within the agency to which the disclosure relates (or the agency to which the public official belongs or last belonged). In certain circumstances a public official may also make an internal disclosure to the Commonwealth Ombudsman or the IGIS (for disclosures relating to intelligence agencies).

14.135 In some circumstances, this may mean that PID officers receiving internal disclosures within their agencies may discover corruption issues that need to be referred to the Commissioner. PID officers will be required to refer corruption issues to the Commissioner if they suspect the issue could involve corrupt conduct that is serious or systemic (see clause 35). For corruption issues that do not meet that threshold, PID officers may wish to voluntarily refer corruption issues to the Commissioner (see voluntary and mandatory referral provisions in Part 5 of the NACC Bill). This framework would ensure that corruption issues that come to the attention of a Commonwealth agency through a PID Act process are referred to the Commissioner at the earliest opportunity.

14.136 The amendments to the PID Act contained in the Consequential Bill would ensure that public officials within the meaning of the PID Act are able make a PID directly to the NACC (instead of or in addition to making an internal disclosure to their supervisor or a PID officer within their agency). These amendments would also extend protections contained in the PID Act to cover public officials who make a PID directly to the NACC.

14.137 Related measures contained in Part 4 of the NACC Bill would provide similar protections to those available to public officials under the PID Act (see paragraphs 4.22 to 4.79) to all persons, including those who are not public officials (within the meaning of the NACC Bill or the PID Act); and all information provided for the purposes of the NACC Bill, regardless of whether that information concerns disclosable conduct (within the meaning of the PID Act).

14.138 The amendments to the PID Act contained in the Consequential Bill would also address the impact of a stop action direction issued under clause 43 of the NACC Bill on the obligations on authorised officers and principal offers under the PID Act.

Designated publication restriction

14.139 Item 164 would amend the definition of designated publication restriction in section 8 of the PID Act to repeal current references to the LEIC Act and replace them with restrictions imposed by way of:

•

a notation on a notice to produce or a private hearing summons (see clause 98 of the NACC Bill);

•

a direction about the use or disclosure of investigation material (see clause 101 of the NACC Bill); or

•

a confidentiality requirement (see clause 233of the NACC Bill).

14.140 Under the current PID Act framework, a discloser, witness or person with functions under the PID Act are afforded the following immunities:

•

section 10 provides that a person who makes a PID is not subject to any civil, criminal or administrative liability for making the PID. It also provides that no contractual or other remedy may be enforced or sanction imposed on the basis of making the PID;

•

section 57 provides that a person is not subject to any criminal or civil liability because the person gives information, produces a document, or answers a question if they are requested to do so by a person investigating under the PID Act, and the information, document or answer is relevant to the investigation;

•

section 78 provides that a principal officer of an agency (or a delegate) or an authorised officer is not liable to any criminal or civil proceedings, or any disciplinary action for actions undertaken in good faith in the performance of any function or exercise of any power (or purported performance or exercise) under the PID Act.

14.141 However, these immunities do not apply to liability for contravening a designated publication restriction (see section 11A, and subsections 57(3) and 78(2) of the PID Act). The amendment to the definition of designated publication restriction would therefore mean that the immunity conferred on a disclosure, witness or person with functions under the PID Act by sections 10, 57, and 78 of the PID Act would not apply in relation to a breach of clause 98, clause 101, or clause 233 of the NACC Bill.

14.142 The concept of designated publication restriction is not included in the NACC Bill. This means that a person who makes a disclosure to the NACC in contravention of a designated publication restriction under the PID Act would continue to have immunity from civil, criminal and administrative liability arising from the contravention (see paragraphs 4.22 to 4.45). This is appropriate as it is important the NACC can receive information relevant to the exercise of its functions. The NACC Bill also includes strict confidentiality requirements to ensure such information is protected and cannot be disclosed further without authorisation (see paragraphs 11.5 to 11.109).

NACC disclosure

14.143 Items 163, 165, 166, 167 and 168 would collectively provide for a NACC disclosure (as defined in the NACC Bill), to be included and recognised under the PID Act as a PID in certain circumstances. These amendments would enable a PID to be made directly to the NACC and ensure that a public official within the meaning of the PID Act would obtain the protections available under the PID Act regardless of whether they make a PID internally or a NACC disclosure under the NACC Bill.

14.144 Item 163 would amend subsection 7(2) of the PID Act to provide that there are now 5 kinds of PIDs set out in Division 2 of Part 2 of the PID Act (rather than 4).

14.145 Item 165 would insert a definition of NACC disclosure into section 8 of the PID Act. A NACC disclosure would have the same meaning as in the NACC Bill (see paragraphs 4.16 to 4.20). A person makes a NACC disclosure if they referred, or provided information about, a corruption issue or a NACC corruption issue to the Commissioner, the IGIS, or the Inspector. A person would also make a NACC disclosure if they give evidence or information, or produce a document or thing to a NACC Commissioner, the IGIS or the Inspector in relation to:

•

a corruption issue;

•

a NACC Act process, including a corruption investigation;

•

a NACC corruption issue; or

•

a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.

14.146 Division 2 of Part 2 of the PID Act sets out what constitutes a PID under that Act. Item 166 and 167 would amend the simplified outline of these provisions to insert an additional category of PID where a NACC disclosure concerns disclosable conduct, as defined under the PID Act.

14.147 Item 168 would insert a new subsection 26(1A) into the PID Act, which would provide the substance of the new 'NACC disclosure' category of PID. This subsection would provide that a disclosure of information is a PID if:

•

the disclosure is made by a person who is, or has been, a public official; and

•

the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct; and

•

the disclosure is a NACC disclosure.

14.148 These amendments would mean that public officials (within the meaning of the PID Act) would have the option of making a PID that raises a corruption issue directly to the NACC or to an authorised officer within their agency. Public officials are defined in section 69 of the PID Act, and include staff members of departments, executive agencies, contracted service providers and certain statutory office holders. Disclosable conduct is defined in section 29 of the PID Act, and includes conduct that contravenes a law of the Commonwealth, a State or a Territory, conduct that perverts the course of justice, constitutes maladministration, results in the wastage of public money, or is an abuse of public trust.

14.149 A direct disclosure to the NACC by a public official would constitute a NACC disclosure for the purposes of the NACC Bill and the PID Act. Where a public official makes a disclosure and their disclosure meets the requirements to constitute a valid PID under the PID Act, the public official would be afforded protections under the PID Act in addition to the protections under Part 4 of the NACC Bill.

14.150 In particular, the following protections would apply to the public official under the PID Act:

•

immunity from any civil, criminal or administrative liability, or contractual or other remedies, for making a PID (section 10);

•

an offence to take a reprisal, or to threaten to take a reprisal, against a person because of a PID (including a proposed or a suspected PID) (section 19);

•

access to Federal Court or Federal Circuit and Family Court of Australia (Division 2) orders for civil remedies (including compensation, injunctions and reinstatement of employment) if a reprisal is taken against a person because of a PID (including a proposed or a suspected PID) (sections 14 to 16); and

•

an offence to use or disclose identifying information of an individual who makes a PID (section 20).

14.151 For example, if a public official makes a NACC disclosure and the conduct disclosed also constitutes disclosable conduct under the PID Act, the public official would receive the protections contained in the PID Act under these amendments. However, they would also have the option of relying on the protections contained in Part 4 of the NACC Bill for NACC disclosures, if required. As noted above at paragraphs 14.134 to 14.137, Part 4 of the NACC Bill provides similar protections to those contained in the PID Act. These protections apply to all persons who make disclosures to the NACC, including where a person was not a public official for the purposes of the PID Act, or the NACC disclosure did not contain disclosable conduct as defined by the PID Act.

14.152 These amendments are appropriate to ensure a public official is not disadvantaged if they bring their concerns to the NACC rather than raising it internally as a PID, where such concerns relate to disclosable conduct under the PID Act.

14.153 However, a NACC disclosure would not be an internal disclosure for the purposes of the PID Act. This means that the protections afforded under the PID Act would not apply in circumstances where a public official makes a disclosure to the NACC and then subsequently makes an external disclosure (for example, to the media or to another agency), without also first making an internal disclosure within their own agency (and otherwise satisfying the criteria in Item 2 of the table in paragraph 26(1)(c) of the PID Act). An external disclosure made in such circumstances would not be a valid PID for the purposes of the PID Act and therefore the protections under the PID Act would not apply. Similar protections provided under the NACC Bill would only apply to NACC disclosures, so would also not apply to disclosures to the media or another agency.

14.154 Persons with responsibilities under the PID Act (PID officers) who refer PIDs made by public officials within their agency to the NACC would also receive the protections available under the new 'NACC disclosure' category of PID.

How a PID may be made

14.155 Section 28 of the PID Act provides that generally a PID may be made orally or in writing, anonymously, and may be made without the discloser asserting that the disclosure is made for the purposes of the PID Act. Item 169 would insert a new subsection 28(4) into the PID Act clarifying that the section does not apply to a PID that is also a NACC disclosure. The new note to subsection 28(4) would explain that these provisions would not apply to PIDs that are also NACC disclosures as the process to make a NACC disclosure is dealt with under the NACC Bill (see paragraphs 5.4 to 5.7).

Stop action direction

14.156 Items 170 to 183 would insert provisions that deal with how a stop action direction issued by the Commissioner under the NACC Bill would interact with PID Act requirements. Under clause 43 of the NACC Bill, the Commissioner would be able to direct a Commonwealth agency to stop taking specific action in relation to a corruption issue that concerns the agency (see paragraphs 6.41 to 6.50). Such a direction could be issued to stop an agency from taking action in relation to a PID investigation. However, the Commissioner would only be able to give such a direction if it is required to ensure the effectiveness of any action the Commissioner has taken, or might take, in relation to the corruption issue, or any other corruption issue (see clause 43(2)). Without a stop action direction in place, the allocation or investigation of the disclosure could continue alongside the Commissioner's consideration of the corruption issue. The Commissioner must revoke the stop action direction once it is no longer required (see clause 43(3)). The ability for the Commissioner to issue a stop action direction is appropriate to prevent the possibility of parallel investigations under different frameworks that may prejudice each other.

14.157 The amendments contained in the Consequential Bill would clarify that a stop action direction would relieve an authorised officer or a principal officer of their obligations to allocate or investigate a disclosure under the PID Act respectively for as long as the stop action direction is in place. Item 165 would insert the definition of stop action direction under the NACC Act into section 8 of the PID Act. A stop action direction would constitute a direction under clause 43 of the NACC Bill (see paragraphs 6.41 to 6.50) to stop taking action in relation to a corruption issue or a NACC corruption issue.

Preventing allocation of disclosure

14.158 Division 1 of Part 3 of the PID Act provides a framework for allocating the handling of disclosures. Under section 43 of the PID Act, an authorised officer has obligations to allocate the handling of a disclosure to one or more agencies.

14.159 An authorised officer is defined in section 36 of the PID Act to be either the principal officer of the agency or a public official who belongs to the agency and is appointed as an authorised officer by the principal officer. A principal officer is defined in section 73 of the PID Act and includes people such as the Secretary of a department, the head of an executive agency, and the CEO or other relevant person of a prescribed authority.

14.160 Items 170 to 174 would amend the PID Act to clarify the impact of a stop action direction issued under the NACC Bill on the obligations to allocate the handling of a disclosure. In effect, these amendments would:

•

provide that an authorised officer would be relieved of their obligation to allocate the handling of the disclosure while a stop action direction is in place (items 170 to 172); and

•

provide that an authorised officer must notify certain people of the impact of the stop action direction on allocation of the handling of the disclosure (Items 173 and 174).

14.161 Item 170 would amend the simplified outline of Division 1 of Part 3 of the PID Act to provide that a stop action direction under the NACC Bill would prevent the allocation of some or all of a disclosure to relevant agencies, as required under the PID Act.

14.162 Items 171 and 172 would amend section 43 of the PID Act to provide that the obligation on an authorised officer to allocate the handling of a disclosure does not arise, or is paused, if a stop action direction under the NACC Bill is in place in relation to the disclosure. If the Commissioner revokes the stop action direction, the authorised officer would then be required to allocate or continue allocating the disclosure. This is appropriate to ensure that referral to the NACC does not result in significant or unnecessary delay to the allocation and investigation of a PID within an agency. The timely allocation and investigation of PIDs is important to ensure the PID Act remains an effective mechanism to deal with disclosures of suspected wrongdoing within the Commonwealth public sector.

14.163 This new exception to the requirement to allocate a disclosure would be in addition to the existing exception for circumstances where the authorised officer is satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure (see subsection 43(2) of the PID Act).

14.164 Item 173 would amend section 44 of the PID Act to provide that, if an allocation is not made because of a stop action direction under the NACC Bill, the authorised officer must notify the Commonwealth Ombudsman of:

•

the information that was disclosed;

•

the suspected disclosable conduct (if any);

•

if the discloser's name and contact details are known to the authorised officer, and the discloser consents to the Ombudsman being informed-the discloser's name and contact details; and

•

the stop action direction under the NACC Bill that prevents allocation of the disclosure.

14.165 However, if the disclosure concerns conduct relating to an intelligence agency, the IGIS, or the intelligence functions of either ACIC or the Federal Police, the authorised officer must inform the IGIS of the above matters. The purpose of this amendment would be to ensure that the bodies responsible for overseeing PID investigations are kept informed of the status of those investigations and can effectively perform their oversight role where required.

14.166 Item 174 amends section 44 of the PID Act to include a new subsection 44(5). Section 44 of the PID Act provides that an authorised officer must inform certain people of information regarding a disclosure and any decision regarding allocation including the principal officer of the agency to which the PID is allocated, the Commonwealth Ombudsman, the discloser, and in specific circumstances, the IGIS. This new subsection would provide that to avoid doubt, the obligations in section 44 apply despite any stop action direction under the NACC Bill. This promotes transparency in relation to PID Act processes and is appropriate to ensure that people with an interest in the allocation of the PID remain informed of its progress.

Preventing investigation of disclosure

14.167 Division 2 of Part 3 of the PID Act outlines the obligation on a principal officer to investigate a disclosure and prepare a report, within a set time and in accordance with the requirements of the Division. Items 175 to 180 would amend the PID Act to clarify the impact of a stop action direction issued under the NACC Bill on the investigation obligations under the PID Act. In effect, these amendments would:

•

provide that a stop action direction would relieve a principal officer of their obligations to investigate a PID within a certain timeframe, while a stop action direction is in place (items 175 and 176);

•

provide that a principal officer must inform certain people of the impact of a stop action direction on the investigation of a PID (items 177 to 181); and

•

provide that the 90-day timeframe to complete a PID Act investigation restarts once the principal officer becomes aware that the stop action direction no longer applies (item 182).

14.168 Item 175 would amend the simplified outline to Division 2 of Part 3 of the PID Act to provide that a stop action direction under the NACC Bill may prevent the investigation of some or all of the disclosure.

14.169 Item 176 would insert a new subsection into section 47 of the PID Act. Section 47 of the PID Act requires a principal officer of an agency to investigate a disclosure that is allocated to that agency. This item would provide that the effect of section 47 is subject to any stop action direction made under the NACC Bill. This would have the effect of relieving a principal officer of their obligations to investigate, or continue investigating, a disclosure if a stop action direction issued under the NACC Bill prevents the principal officer from investigating the disclosure. This is appropriate to ensure a principal officer does not breach their obligations under a PID Act due to an existing stop action direction issued under the NACC Bill preventing their investigation of a PID.

14.170 Item 177 would amend subsection 50(1) of the PID Act to provide that a principal officer must inform the discloser, as soon as reasonably practicable, that they cannot investigate, or further investigate, a disclosure because of a stop action direction under the NACC Bill. This would provide the discloser with certainty and promote transparency in relation to any future investigation conducted into the matter under the PID Act.

14.171 Similarly, item 179 would insert a new subsection 50(4A) into the PID Act that would require the principal officer to inform the discloser if the principal officer investigates, or further investigates, a disclosure that is no longer subject to a stop action direction under the NACC Bill. Item 178 would amend subsection 50(4) of the PID Act to clarify that the principal officer cannot inform the discloser of an investigation under subsection 50(4A) in the same document that informs the discloser of an allocation decision under subsection 44(2). This is in recognition that, practically, these events would occur at different times.

14.172 Items 180 and 181 would insert new subsection 50A(3) of the PID Act and make an according amendment to the heading of section 50A. The amendments would require the principal officer to inform the Commonwealth Ombudsman of a stop action direction unless the stop action direction concerns conduct relating to an intelligence agency, the IGIS or the intelligence functions of either ACIC or the AFP. In those circumstances, the principal officer must inform the IGIS of the stop action direction. The purpose of this amendment would be to ensure that the bodies responsible for overseeing PID investigations are kept informed of the status of those investigations.

14.173 Item 182 would amend subsection 52(1) of the PID Act to provide that the 90-day statutory timeframe for a disclosure investigation to be completed is reset when the principal officer becomes aware that the stop action direction no longer applies. For example, if the NACC issues a stop action direction in relation to a PID that is already being investigated by an agency, the agency would be required to stop the investigation. Once the stop action direction is revoked, the principal officer would have 90 days to investigate the PID from the time when they became aware that the direction no longer applies. It is appropriate that the timeframe for investigation of a PID resets (rather than continues) once the stop action direction is revoked to ensure the principal officer has enough time to effectively conduct an investigation under the PID Act.

Staff members of the NACC

14.174 The PID Act would apply to the NACC in the same way that it applies to other Commonwealth agencies. The NACC would be a statutory agency within the definition of prescribed authority in paragraph 72(1)(2) of the PID Act. This would mean that the principal officer of the NACC would be the CEO of the NACC, or any other individual prescribed by the Public Interest Disclosure Rules 2019. The principal officer would be responsible for appointing authorised officers within the NACC who would have obligations to allocate the handling of disclosures made within the NACC. An authorised officer would deal with a PID in accordance with the PID Act, and could allocate the PID to the Ombudsman or IGIS under section 43 of the PID Act, if appropriate. If a PID raises a NACC corruption issue, the PID must be referred to the Inspector (subclause 204(1)).

14.175 Item 183 would amend paragraph 69(3)(c) of the PID Act to provide that the staff of the NACC for the purposes of the PID Act are the staff listed in clause 266 of the NACC Bill (see paragraph 12.107). Paragraph 69(3)(c) of the PID Act outlines the definition of a public official under the PID Act, and therefore who can access the protections provided under that Act. The table in paragraph 69(1)(b) provides that a member of the staff of a prescribed authority (including an APS employee) is a public official. Amended paragraph 69(3)(c) would then clarify (with reference to clause 266 of the NACC Bill) that the staff members of the NACC are:

•

the Commissioner;

•

any Deputy Commissioners;

•

the CEO;

•

a member of the staff referred to in clause 262 of the NACC Bill;

•

a consultant engaged under clause 263 of the NACC Bill;

•

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

•

a legal practitioner appointed under clause 265 of the NACC Bill.

14.176 This amendment would ensure that if a NACC staff member makes a NACC disclosure that is also a PID, they would have access to the protections under the PID Act. The reason for this amendment is to ensure broad coverage and that NACC staff members are not disadvantaged when making a NACC disclosure that also constitutes a PID.

Radiocommunications Act 1992 amendments

14.177 Item 184 would amend paragraph 27(1)(baa) of the Radiocommunications Act 1992 to omit the reference to the Integrity Commissioner and replace it with a reference to the National Anti-Corruption Commissioner. This amendment would permit the Australian Communications and Media Authority to determine that a person performing the functions and duties of Commissioner is to be exempt from certain regulations under the Act, being unlicensed radiocommunications, equipment and offences relating to radio emission.

14.178 It is appropriate for the Commissioner to be exempt from these parts of the Act due to their functions in relation to law enforcement. Relevantly, the AFP and other State and Territory integrity bodies are also exempt under this provision.

Royal Commissions Act 1902 amendments

14.179 Items 185 and 186 would amend subsection 6P(2B) of the Royal Commissions Act 1902 to substitute references to the Integrity Commissioner with references to the National Anti-Corruption Commissioner, and adding a reference to the Inspector. These amendments would operate to authorise a Royal Commission to provide information, evidence, documents or things to the Commissioner, or to the Inspector, if the Royal Commission believes it relates to the performance or functions of the NACC or the Commissioner, or the Inspector. As both Royal Commissions and the NACC are integrity-focused bodies of inquiry, it is appropriate that Royal Commissions are empowered to share information with the Commissioner or the Inspector, especially where this would facilitate NACC Act process and avert the potential for duplicative inquiries.

14.180 Item 187 would amend subsection paragraph 9(3)(h) to substitute a reference to ACLEI with a reference to the NACC, and would add a reference to the Inspector. This amendment would allow the Commissioner and the Inspector to be given custody of Royal Commission records set by regulations under the Royal Commissions Act (subsection 9(2)). This would mean the Commissioner or the Inspector could use these records for the purpose of their functions and the exercise of their powers under the NACC Bill. The Commissioner or the Inspector would be able to retain possession of these records for as long as they consider it desirable to do so (subsection 9(10) of the Royal Commissions Act). This would be appropriate because the NACC is a standing body and there would be times where the Commissioner requires access to records following the period in which a Royal Commission is undertaking its inquiry.

Surveillance Devices Act 2004 amendments

14.181 The SD Act provides a framework for:

•

the use of surveillance devices (including optical, listening data surveillance and combination devices) under a warrant, or under an emergency authorisation issued internally by a senior officer;

•

the use of certain surveillance devices without a warrant in limited circumstances;

•

the use of computer access powers (which involve covertly accessing data held in a computer) under a warrant, or under an emergency authorisation issued internally by a senior officer;

•

data disruption warrants; and

•

network activity warrants.

14.182 ACLEI may currently obtain surveillance device and computer access warrants and emergency authorisations, and use certain surveillance devices without a warrant in limited circumstances, but may not obtain data disruption warrants or network activity warrants as a law enforcement agency under the SD Act.

14.183 Items 188, 190 to 191 and 193 to 200 would amend the SD Act to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC and its establishing legislation to give the NACC the same powers currently available to ACLEI. These items would update such references in:

•

section 6 (definitions)

•

section 6A (definition of law enforcement agency, chief officer, law enforcement officer and appropriate authorising officer)

•

section 6B (authorisation of law enforcement officer)

•

section 37 (use of optical surveillance devices without warrant)

•

section 38 (use of surveillance devices without warrant for listening to or recording words in limited circumstances) and

•

section 64 (compensation for loss or injury).

14.184 The amendments made by these items would:

•

allow NACC officers authorised by the National Anti-Corruption Commissioner as law enforcement officers to:

-

apply for surveillance device warrants, retrieval warrants (to retrieve a surveillance device) and computer access warrants under Part 2 of the SD Act;

-

apply for emergency authorisations to use a surveillance device or access data held in a computer under Part 3 of the SD Act; and

-

use of certain surveillance devices without a warrant in limited circumstances under Part 4 of the SD Act;

•

allow the National Anti-Corruption Commissioner, a Deputy Commissioner (within the meaning of the National Anti-Corruption Commission Act 2022) or a NACC officer who is an SES employee authorised by the Commissioner to give an emergency authorisation to use a surveillance device or access data held in a computer under Part 3 when satisfied of the relevant threshold; and

•

require the Commonwealth to pay compensation to a person who suffers loss or injury as a result of unlawful use of a surveillance device, computer, telecommunications facility operated or provided by the Commonwealth or a carrier, any other electronic equipment, or data storage device by the NACC.

14.185 Consistent with existing oversight arrangements under the SD Act, the NACC's use of powers under that Act would be subject to oversight by the Commonwealth Ombudsman. The Commonwealth Ombudsman is the authority to inspect (and report on) agency compliance. Oversight also includes annual reporting requirements on the use of powers.

Issuing authorities for warrants, emergency authorisations and assistance orders to the NACC under the SD Act

14.186 Warrants, emergency authorisations and assistance orders under the SD Act would only be issued to the NACC by eligible judges of federal superior courts.

14.187 Item 191A would amend subsection 6(1) of the SD Act to insert a definition of superior Court Judge, being:

•

a Judge of the Federal Court of Australia; or

•

a Judge of the Federal Circuit and Family Court of Australia (Division 1).

14.188 The Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 1) are each superior courts of record.

Warrants etc issued to law enforcement officers of the NACC

14.189 Item 197A would repeal section 11 of the SD Act (Who may issue warrants?) and substitute a new section (Who may issue etc. warrants) providing that any warrant under Part 2 of the SD Act may be issued by:

•

in the case of an application for a warrant by a law enforcement officer of the NACC-an eligible Judge; or

•

in any other case-an eligible Judge or a nominated AAT member.

14.190 The purpose of this amendment is to provide that surveillance devices warrants, retrieval warrants and computer access warrants may only be issued to the NACC by an eligible Judge.

14.191 New subsection 11(2) would provide that applications made under Part 2 of the SD Act by law enforcement officers of the NACC-including applications for the extension or variation of a warrant under subsections 19(1) and 27F(1) of the SD Act-may be made only to an eligible Judge who is a superior Court Judge.

14.192 New subsection 11(3) would provide that a warrant issued under Part 2 of the SD Act to a law enforcement officer of the NACC may be revoked only by an eligible Judge who is a superior Court Judge.

14.193 The limitations on whom law enforcement officers of the NACC may make applications to under Part 2 of the SD Act, who may issue warrants to law enforcement officers of the NACC, and who may revoke warrants issued to law enforcement officers of the NACC would apply despite any other provision in Part 2 that refers to nominated AAT members or a wider range of eligible Judges.

14.194 The new section would not affect arrangements for warrant applications by, the issue of warrants to, or the revocation of warrants issued to law enforcement officers of agencies other than the NACC.

14.195 Item 197B would repeal the definition of eligible Judge in subsection 12(1) of the SD Act and substitute a new definition, being a person:

•

in relation to whom a consent under subsection 12(2) and a declaration under subsection 12(3) are in force; and

•

in relation any of the following issued to, or applied for by, a law enforcement officer of the NACC-who is a superior Court Judge:

-

a warrant;

-

an emergency authorisation;

-

an assistance order (within the meaning of subsection 64A(1)).

14.196 The effect of this amendment would be to provide that only a subset of all eligible Judges under the SD Act are eligible Judges in respect of the NACC-being superior Court Judges. For example, where:

•

a law enforcement officer of the NACC has applied for a surveillance device warrant under section 14 of the SD Act, that application could only validly be made under subsection 14(4) to, or be determined under subsection 16(1) by, an eligible Judge who is also a superior court judge; and

•

a law enforcement officer of the NACC has applied for and been issued an emergency authorisation by an appropriate authorising officer, and the appropriate authorising officer (or a person on their behalf) applies for the approval of the emergency authorisation under subsection 31(1) of the SD Act, that application could only validly be made to, or determined under subsection 35(1) by, an eligible Judge who is also a superior Court Judge.

14.197 Applications for the extension, variation or revocation of a warrant under the SD Act in relation to a law enforcement officer of the NACC could only be made by an eligible Judge who is a superior Court Judge.

14.198 These amendments to the SD Act would not affect arrangements for warrant applications by, the issue of warrants to, or the revocation of warrants issued to law enforcement officers of agencies other than the NACC.

14.199 Where a person has made an application for a warrant on behalf of a law enforcement officer of the NACC, that application would be taken to be made by the law enforcement officer of the NACC for the purposes of this definition.

14.200 The new definition would not affect the ability of other eligible Judges, or nominated AAT members, to issue warrants to, and exercise powers in respect of, agencies other than the NACC.

Thresholds for surveillance device and computer access warrants

14.201 Surveillance device and computer access warrants may be sought and granted under the SD Act for several purposes. For the NACC, the most relevant of these will be the investigation of a relevant offence (an offence punishable by at least three years imprisonment and certain other offences) and the conduct of integrity operations (under Part IAB and IABA of the Crimes Act 1914).

14.202 Under sections 16 and 27C of the SD Act, an eligible Judge or a nominated AAT member may grant a surveillance device or computer access warrant for an offence investigation if satisfied that there are reasonable grounds for the applicant's suspicions that:

•

one or more relevant offences have been, are being, are about to be, or are likely to be, committed;

•

an investigation into those offences is being, will be, or is likely to be, conducted; and

•

the use of a surveillance device, or access to data held in a computer, is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders.

14.203 Under sections 16 and 27C, an eligible Judge or a nominated AAT member may grant a surveillance device or computer access warrant for an integrity operation if satisfied that:

•

an integrity authority is in effect authorising an integrity operation in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency; and

•

there are reasonable grounds for the applicant's suspicion that:

-

the use of a surveillance device will assist the conduct of the integrity operation by recording or monitoring the operation and enabling evidence to be obtained relating to the commission of the offence or the integrity, location or identity of any staff member of the target agency (where a surveillance device warrant is sought); or

-

access to data held in a computer will assist the conduct of the integrity operation by enabling evidence to be obtained relating to the integrity, location or identity of any staff member of the target agency (where a computer access warrant is sought).

14.204 Sections 16 and 27C would apply to the NACC as they currently do to ACLEI and other law enforcement agencies, with the exception that only superior Court Judges would be eligible issuing authorities for warrants in relation to the NACC.

Emergency authorisations for use of a surveillance device or computer access

14.205 Part 3 of the SD Act allows appropriate authorising officers to grant emergency authorisations to use surveillance devices and access data held in a computer in limited circumstances, specifically where there is a serious risk to a person or property, urgent circumstances relating to a recovery order or a risk of loss of evidence for investigations of certain offences. Part 3 of the SD Act would apply to the NACC as it currently does to ACLEI and other law enforcement agencies, with the exception that only eligible Judges who are superior Court Judges would able to approve emergency authorisations granted by appropriate authorising officers, under section 33 of the SD Act.

Use of certain surveillance devices without a warrant

14.206 Sections 37 to 39 of the SD Act set out the circumstances and purposes for which law enforcement agencies may use certain surveillance devices without obtaining a warrant.

14.207 Section 37 of the SD Act currently allows law enforcement officers who belong to or are seconded to ACLEI to use optical surveillance devices without a warrant where they are acting in the course of their duties for any purpose within the functions of ACLEI if the use of the device does not involve:

•

entry onto premises without permission; or

•

interference without permission with any vehicle or thing.

14.208 Section 38 of the SD Act currently allows law enforcement officers who belong to or are seconded to ACLEI, acting in the course of their duties, to use a surveillance device without a warrant for any purpose involving listening to, or recording, words spoken by a person within the functions of ACLEI if the use of the device is confined to circumstances where:

•

the law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or

•

the law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words under certain provisions.

14.209 Item 198 would amend sections 37 and 38 to instead apply to law enforcement officers who belong to or are seconded to the NACC, and for a purpose within the functions of the National Anti-Corruption Commissioner set out in clause 17 of the NACC Bill.

14.210 Section 39 of the SD Act allows law enforcement officers to use tracking devices under written authorisation of an appropriate authorising officer for certain purposes, including the investigation of a relevant offence or conduct of an integrity operation. Section 39 would apply to the NACC as it currently does to ACLEI and other law enforcement agencies.

Amendments related to integrity testing

14.211 The definition of 'disciplinary or legal action' in section 45A of the SD Act (which allows protected information to be used for purposes relating to integrity operations) includes a disciplinary proceeding in relation to the staff member, or a report of such a proceeding. The definition of 'disciplinary proceeding' in section 6 currently relies on the meaning of the term in the LEIC Act. Given the LEIC Act will be repealed by item 1, item 189 will insert a definition of disciplinary proceeding that is the same as that currently in the LEIC Act so there is no change to the meaning of that term.

14.212 Item 192 would make an amendment to the definition of target agency in section 6 of the SD Act as a consequence of amendments to the integrity testing regime in Part IABA of the Crimes Act 1914 outlined above (see paragraph 14.55 onwards). Consistent with those amendments, this item would provide that target agency includes, in addition to the ACC, AFP and Immigration and Border Protection Department, any other Commonwealth agency (within the meaning of the National Anti-Corruption Commission Act 2022). The effect of these amendments, in conjunction with the amendments to the integrity testing regime in the Crimes Act 1914, would be to enable surveillance device and computer access powers to be used as part of an integrity testing operation conducted by the NACC in relation to any Commonwealth agency. An integrity testing operation could only be authorised by the NACC, under the Crimes Act 1914, where the authorising officer is satisfied that:

•

there are reasonable grounds to suspect that an offence punishable on conviction by imprisonment for 12 months or more has been, is being, or is likely to be committed by a staff member of the target agency;

•

it is appropriate in all the circumstances to conduct the operation; and

•

the operation is part of a corruption investigation (within the meaning of the NACC's establishing legislation).

Oversight of SD Act powers

14.213 As is the case for other law enforcement agencies, the NACC's compliance with the SD Act would be overseen by the Commonwealth Ombudsman under Division 3 of Part 6.

Taxation Administration Act 1953 amendments

14.214 Item 201 would amend the table in subsection 355-65(5) in Schedule 1 of the Taxation Administration Act 1953 to create an exception to the offence under section 355-25 of that Act, which relates to disclosure of protected information by taxation officers.The exception created by the amendment would allow a taxation officer to make a record of and disclose to the Commissioner protected information in relation to taxation matters that they have acquired in the course of performing their duties as a taxation officer. The disclosure must be for the purposes of the NACC Bill and be in relation to a corruption issue that relates to the ATO or the Inspector-General of Taxation.

14.215 The existing reversed evidential burden in section 355-65 would apply when relying on the new exception created by item 201, that is, the defendant bears the burden of proving the they are an eligible whistleblower (within the meaning of the Income Tax Assessment Act 1997), the disclosure was made to an eligible recipient in relation to the entity, and they have reasonable grounds to suspect the information indicates misconduct, or an improper state of affairs or circumstances, in relation to an entity's tax affairs, or the discloser considers the information may assist the eligible recipient to perform functions or duties in relation to the tax affairs of the entity (subsection 14ZZT(2)).

14.216 Item 202 would replace the existing reference to ACLEI under paragraph 355-70(4)(d) with a reference to the NACC. This amendment would authorise the NACC to receive protected information from taxation officers as a listed law enforcement agency. ACLEI is currently able to receive protected information from the ATO for the purpose of investigating and enforcing serious offences, and making and enforcing proceeds of crimes orders. The amendment would preserve this existing arrangement and would ensure that the NACC is able to receive protected information that may be critical to fulfilling NACC Act processes, including investigations.

14.217 Item 203 would insert an exception to the offence in Section 355-155 in Schedule 1 of the Taxation Administration Act (on-disclosure of protected information by other people) for disclosures in relation to the NACC. Subsection (1) of this exception would permit the Inspector-General of Taxation to make a disclosure to the NACC or a staff member of the NACC if the disclosure is for the purposes of the NACC Bill and is in relation to a corruption issue that relates to the ATO or to the Inspector-General of Taxation. The Inspector-General must have acquired the protected information for the purposes of investigating or reporting under, or otherwise administering, the Inspector-General Act (including the relevant provisions of the Ombudsman Act).

14.218 Subsection (2) of the proposed amendment in Item 203 would also create an exception to the offence in Section 355-155 that would operate to authorise the NACC to share protected information provided to them by the Inspector-General of Taxation under subsection (1) if the record or disclosure is for the purpose of performing a function or duty of the NACC or its staff under the NACC Bill.

14.219 A defendant would bear an evidential burden when relying on the exceptions created by Item 203 in proceedings. For example, the Commissioner or staff member of the NACC would bear the burden of proving that they disclosed the protected information in the course of performing a function or duty under the NACC Bill.

Telecommunications Act 1997 amendments

14.220 Division 2 of Part 13 of the Telecommunications Act 1997 contains offences for the unauthorised disclosure or use of certain information, such as information that relates to carriage services provided by carriers or carriage service providers. Division 3 of the same Part contains exceptions to those offences including paragraph 280(1)(a), which creates an exception for the disclosure or use of information in connection with the operation of an enforcement agency. Subsection 280(1A) then provides that, when applying the exception in paragraph 280(1)(a) to ACLEI, a reference to the operation of an enforcement agency is taken to be a reference to a performance of the functions of the Integrity Commissioner within the meaning of the LEIC Act.

14.221 Item 205 of Schedule 1 would repeal and replace subsection 280(1A) to replace references relevant to ACLEI and the LEIC Act with references to the NACC and the NACC Bill.

Telecommunications (Interception and Access) Act 1979 amendments

14.222 Items 206 to 260 would amend the TIA Act to enable the NACC to use the powers that the TIA Act confers on law enforcement bodies. These items would also enable the Inspector to receive information that has been lawfully obtained by another agency under the TIA Act and rely on that information as part of a NACC corruption investigation-but would not enable the Inspector to obtain warrants or give authorisations under the TIA Act. The TIA Act provides a legal framework for national security and law enforcement agencies to access information held by communications providers to investigate criminal offences and other activities that threaten the safety and security of Australians. The access that may be sought under the TIA Act includes access to telecommunications data and stored communications, and the interception of communications in real time.

14.223 Consistent with existing oversight arrangements under the TIA Act, the NACC's use of powers under that Act would be subject to oversight by the Commonwealth Ombudsman. The Commonwealth Ombudsman is the authority to inspect (and report on) agency compliance. Oversight also includes annual reporting requirements on the use of powers.

14.224 Items 206 to 260 would amend the TIA Act to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC contained in the NACC Bill to give the NACC the same powers currently available to ACLEI. These items will update references in:

•

section 5 (definitions)

•

section 5AC (authorisation of certifying officers)

•

section 5B (exempt proceedings)

•

section 6A (meaning of investigation of an offence)

•

section 6L (meaning of relevant proceeding)

•

section 6S (permitted purpose-integrity purposes)

•

section 39 (agency may apply for interception warrant)

•

section 63AB (dealing in general computer access intercept information)

•

section 67 (dealing for permitted purposes)

•

section 68 (chief officer may communicate intercepted information obtained by agency)

•

section 71 (dealing with information where interception suspected to be unlawful)

•

section 110A (meaning of criminal law-enforcement agency)

•

section 140 (dealing with information if access to stored communications suspected to be unlawful), and

•

Schedule 1 (international production orders).

14.225 Powers exercised under the TIA Act are subject to oversight by the Commonwealth Ombudsman, and this would apply to powers exercised under the TIA Act by the NACC following commencement of the NACC Bill and the Consequential Bill. Consistent with other agencies under the TIA Act, the NACC would also be subject to record-keeping obligations under the TIA Act in order to facilitate this oversight.

Issuing Authorities

14.226 Warrants under the TIA Act would only be able to be issued to the NACC by superior Court Judges who have consented to being declared or appointed as an eligible Judge or issuing authority for the purposes of the TIA Act, and whom the Attorney-General has so declared or appointed.

14.227 Item 224A would amend subsection 5(1) of the TIA Act to insert a new definition of 'superior Court Judge', being:

•

a Judge of the Federal Court of Australia; or

•

a Judge of the Federal Circuit and Family Court of Australia (Division).

14.228 The Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 1) are each superior courts of record.

14.229 Item 228A would repeal the definition of 'eligible Judge' in subsection 6D(1) of the TIA Act and substitute a new definition, being a Judge:

•

in relation to whom a consent under subsection 6D(2) and a declaration under subsection 6D(3) are in force; and

•

in relation to a warrant applied for by the NACC-who is a superior Court Judge.

14.230 Item 251B makes a similar amendment to the definition of 'eligible Judge' in subclause 14(1) of Schedule 1 of the TIA Act in relation to international production orders for the interception of communications.

14.231 Eligible Judges under the TIA Act are responsible, along with nominated AAT members, for considering applications for interception warrants by interception agencies, which would include the NACC, under Part 2-5 of the Act.

14.232 The effect of this amendment would be to provide that only a subset of all eligible Judges under the TIA Act are eligible Judges in respect of the NACC-being superior Court Judges. For example, where the NACC has applied for an interception warrant under section 39 of the TIA Act, that warrant could only validly be issued under subsections 46(1) or 46A(1) by an eligible Judge who is also a superior Court Judge.

Definition of 'Issuing Authority'

14.233 Item 213A would repeal the definition of 'issuing authority' in subsection 5(1) of the TIA Act and substitute a new definition that applies across the Act (except when used in Schedule 1, which deals with international production orders and contains its own definitions), being a person:

•

in respect of whom an appointment is in force under section 6DB of the Act; and

•

in relation to a warrant applied for by the NACC-who is a superior Court Judge.

14.234 Item 251A makes a similar amendment to the definition of 'issuing authority' in clause 2 of Schedule 1 of the TIA Act in relation to international production orders for access to stored communications and telecommunications data.

14.235 Issuing authorities under the TIA Act are responsible for considering applications for stored communications warrants by criminal law-enforcement agencies, which would include the NACC, under Part 3-3 of the Act.

14.236 The effect of this amendment would be to provide that only a subset of all issuing authorities under the TIA Act are issuing authorities in respect of the NACC-being superior Court Judges. As such, where the NACC has applied for a stored communications warrant under section 110 of the TIA Act, that warrant could only be validly issued under subsection 116(1) by an eligible Judge who is also a superior Court Judge.

14.237 The new definition would not affect the ability of other issuing authorities to issue stored communications warrants to agencies other than the NACC

Definition of Part 4-1 Issuing Authority

13.59 Item 215A would repeal the definition of 'Part 4-1 issuing authority' in subsection 5(1) of the TIA Act and substitute a new definition, being a person:

•

in respect of whom an appointment is in force under section 6DC of the Act; and

•

in relation to a warrant applied for by the NACC-who is a superior Court Judge.

14.238 The effect of this amendment would be to provide that only a subset of all Part 4-1 issuing authorities under the TIA Act are Part 4-1 issuing authorities in respect of the NACC-being superior Court Judges. As such, where the NACC has applied for a journalist information warrant under section 180Q of the TIA Act, that warrant could only be validly issued under subsection 180T by an issuing authority who is also a superior Court Judge.

14.239 The new definition would not affect the ability of other Part 4-1 issuing authorities to issue journalist information warrants to agencies other than the NACC.

Interception of telecommunications

14.240 Items 235 to 239 would amend paragraph 39(2)(aa) of the TIA Act, which concerns applications for interception warrants. The amendments would remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC contained in the NACC Bill. This would have the effect of permitting the Commissioner, Deputy Commissioner, and staff members of the NACC authorised by the Commissioner in writing, to apply for an interception warrant in relation to:

•

a telecommunications service (a telecommunications service warrant); or

•

a person (a named person warrant).

14.241 Under sections 46 and 46A of the TIA Act, an eligible Judge may grant an interception warrant if satisfied that, among other things, there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the relevant telecommunications service, and that the information obtained would be likely to assist in connection with the investigation of a serious offence (see section 5D of the TIA Act) in which the person (or a person with whom they are communicating) is involved.

14.242 This threshold, and the matters an eligible Judge must consider, would apply to applications by the NACC as they currently do to ACLEI and consistently with other agencies able to apply for warrants.

Access to stored communications

14.243 Item 250 would amend paragraph 110A(1)(c) of the TIA Act to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC contained in the NACC Bill, to provide that the NACC would be a criminal law-enforcement agency under the TIA Act.

14.244 This amendment would permit the Commissioner, Deputy Commissioner, and staff members of the NACC authorised by the Commissioner in writing to apply for a stored communications warrant under section 110 of the TIA Act. Stored communications include communications such as email, SMS, or voice messages stored on a carrier's equipment.

14.245 Under section 116 of the TIA Act, an issuing authority (a Judge appointed by the Attorney-General under section 6DB of the TIA Act) may grant a stored communications warrant if satisfied that, among other things, there are reasonable grounds for suspecting that a particular carrier holds relevant stored communications, and that the information obtained would be likely to assist in connection with the investigation of a serious contravention (including a serious offence).

14.246 A serious contravention is, among other things, a contravention of an Australian law punishable for a maximum period of at least 3 years (see section 5E of the TIA Act).

14.247 This threshold, and the matters an issuing authority must consider, would apply to applications by the NACC as they currently do to ACLEI and consistently with other agencies able to apply for stored communications warrants.

Accessing telecommunications data

14.248 As a criminal law-enforcement agency under paragraph 110A(1)(c) of the TIA Act, the NACC would also be an enforcement agency under section 176A of that Act. As an enforcement agency under section 176A, the NACC would be authorised to obtain telecommunications data under Chapter 4 of the TIA Act.

14.249 Telecommunications data does not include the content of a telecommunications communication, but includes the source and destination of a communication, the time and duration of its connection and the location of the equipment used in connection with a communication.

14.250 An authorised officer of an enforcement agency can internally authorise access to historical telecommunications data if satisfied that it is reasonably necessary for, among other things, enforcing the criminal law (section 178 of the TIA Act).

14.251 In relation to data that comes into existence during the period of authorisation (prospective data), an authorised officer can only authorise access if satisfied the disclosure is reasonably necessary for the investigation of a serious offence, or an offence punishable by imprisonment for at least three years (section 180 of the TIA Act).

14.252 For the purposes of the NACC, an authorised officer would be the Commissioner (as the head of a criminal law-enforcement agency), or a person in a management position authorised by the Commissioner.

14.253 Where the NACC seeks telecommunications data that relates to a person who is working in a professional capacity as a journalist, or their employer, for the purpose of identifying an informant, the NACC would require a journalist information warrant under section 180T prior to making an authorisation under Chapter 4 of the TIA Act.

14.254 This threshold, and the matters an authorised officer must consider, would apply to the NACC as they currently do to ACLEI and consistently with other agencies able to access telecommunications data.

Amendments related to integrity testing

14.255 Interception agencies may only communicate or use lawfully intercepted information for a permitted purpose (section 67 of the TIA Act). Similarly, a criminal law-enforcement agency may only communicate or use lawfully accessed information (from a stored communication) for a permitted purpose (Division 2 of Part 3-4 of the TIA Act).

14.256 Items 230 to 234 would amend section 6S of the TIA Act. These amendments would remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC contained in the NACC Bill. This would have the effect of extending the definition of permitted purpose to include a purpose connected with the NACC's decision-making as to integrity authorities and integrity operations. This is a corollary of separate amendments to Part IABA of the Crimes Act 1914, which would enable integrity testing by the NACC.

14.257 The definition of 'disciplinary or legal action' in subsection 6S(2) of the TIA Act includes a disciplinary proceeding in relation to the staff member, within the meaning of the LEIC Act, or a report of such a proceeding. Item 232 would remove the reference to the LEIC Act given that Act will be repealed by item 1. Item 233 would insert a new definition of 'disciplinary proceeding' that is relevant to the NACC, however is the same as that currently in the LEIC Act so there is no change to that term. The term 'disciplinary or legal action' is relevant to the permitted purposes for which certain information may be disclosed (section 139A).

Other amendments related to disclosure

14.258 Items 244, 245, 246, and 248 would amend section 68 of the TIA Act, and insert new paragraph 68(q), in the TIA Act. The amendments would permit the communication of lawfully intercepted information to the Commissioner if the information appeared to relate to a corruption issue, a NACC corruption issue, or an integrity authority or operation, or to the Inspector if the information appeared to relate to a NACC corruption issue.

14.259 Item 247 would amend paragraph 68(o) of the TIA Act to remove the reference to ACLEI and replace it with a reference to the NACC. This amendment would permit the NACC to disclose information to the Secretary of the Department of Home Affairs if the information appeared to relate to an integrity authority or operation in relation to that Department.

International Production Orders

14.260 Items 252 to 260 would amend Schedule 1 of the TIA Act to remove references relevant to ACLEI and the LEIC Act and replace them with references relevant to the NACC contained in the NACC Bill. These amendments would ensure that the international production order (IPO) framework would apply to the NACC consistently with the way in which it applies to ACLEI, with the exception that only eligible Judges and issuing authorities who are superior Court Judges will be able to issue international production orders to the NACC.

14.261 This framework assists Australian law enforcement agencies to gain access to overseas communications data for law enforcement and national security purposes. This framework will be important for the NACC in circumstances where corrupt actors are accessing communications services that are supplied or operated by entities outside Australia. Rather than accessing communications data through the mutual legal assistance regime, which can be a lengthy process, the IPO framework would enable the NACC to issue orders, through a competent authority (the Australian Designated Authority), for the production of data directed to communications and technology companies in another country's jurisdiction. IPOs may only be issued where a designated international agreement is in place between Australia and the other country.

14.262 Items 252 to 256 would permit the Commissioner, Deputy Commissioner, or a staff member authorised by the Commissioner in writing, to apply for an IPO relating to:

•

interception of communications (Division 2 of Part 2, Schedule 1)

•

access to stored communications (Division 3 of Part 2, Schedule 1), and

•

access to telecommunications data (Division 4 of Part 2, Schedule 1).

14.263 The thresholds for issue of each type of IPO, and the matters an issuer must consider, would apply to applications by the NACC as they currently do to ACLEI and consistently with other law enforcement agencies.

Interception IPOs

14.264 In relation to the interception of communications, clause 22 of Schedule 1 to the TIA Act enables an interception agency to apply for an IPO directing a designated communications provider to provide communications carried by one or more individual transmission or message/call application services during a specified period. An interception agency would include the NACC (section 5 of the TIA Act, as amended by item 211). An IPO may only be issued under clause 30 of Schedule 1 where the issuer is satisfied there are reasonable grounds to suspect that a particular person is using or is likely to use the service, and that the information gathered under the order would be likely to assist the detection, prevention, investigation or prosecution of a serious category 2 offence (including a serious offence under section 5D of the TIA Act).

Stored communications IPOs

14.265 In relation to access to stored communications, clause 33 of Schedule 1 to the TIA Act enables a criminal law-enforcement agency to apply for IPO directing a designated communications provider to provide stored communications. A criminal law-enforcement agency would include the NACC (section 110A of the TIA Act, as amended by item 250). An IPO may only be issued under clause 39 of Schedule 1 to the TIA Act where the issuer is satisfied there are reasonable grounds to suspect that stored communications relevant to a particular person are held by the provider, and that the information gathered under the IPO would be likely to assist the detection, prevention, investigation or prosecution of an offence that carries a penalty of at least 3 years imprisonment.

Telecommunications data IPOs

14.266 In relation to access to telecommunications data, clause 42 of Schedule 1 to the TIA Act enables an enforcement agency to apply for an IPO directing a designated communications provider to obtain telecommunications data. An enforcement agency would include the NACC (section 176A of the TIA Act, as affected by item 250). An IPO may only be issued under clause 48 of Schedule 1 to the TIA Act where the issuer is satisfied that there are reasonable grounds for suspecting that the designated communications provider holds, or is likely to hold, particular types of telecommunications data and that disclosing the data under the IPO would be likely to assist the detection, prevention, investigation or prosecution of an offence that carries a penalty of at least 3 years imprisonment.

Protected information

14.267 Item 258 would amend clause 157 of Schedule 1 to the TIA Act, to remove the reference to ACLEI and replace it with a reference to the NACC. This amendment would ensure that protected information obtained through an IPO may be used, recorded, disclosed or admitted in evidence for the purposes of an eligible purpose of the NACC. Items 259 and 260 would similarly amend clause 157 of Schedule 1 to the TIA Act to replace the reference to ACLEI with the NACC. This would ensure that an eligible purpose of the NACC includes a corruption investigation, or a report on such an investigation.

14.268 Item 257 would amend clause 153 of Schedule 1 of the TIA Act, to ensure that protected information may generally be used, recorded or disclosed, or admitted in evidence for the purpose of the performance of a function or duty, or the exercise of a power, of the Inspector.

Ombudsman oversight

14.269 Consistent with arrangements for other law enforcement agencies, the Commonwealth Ombudsman would inspect and report on the NACC's use of powers under the TIA Act under Part 2-7 (for interception), Chapter 4A (for access to stored communications and telecommunications data) and Part 10 of Schedule 1 to the TIA Act (for IPOs).

Witness protection Act 1994 amendments

14.270 Item 261 would amend paragraph 3(aa) of the Witness Protection Act 1994, which includes the definition of approved authority for the purposes of that Act. This amendment would remove the reference to the Integrity Commissioner and replace it with a reference to the Commissioner. The amendment would ensure a person who gives a statement to the Commissioner in relation to an offence is a witness who may be selected for inclusion in the National Witness Protection Program in appropriate circumstances. This amendment would complement the range of protections afforded to witnesses in the NACC Bill and would further ensure that witnesses are not deterred from providing assistance or information to the NACC due to fear of experiencing detriment on the basis of their assistance.

14.271 Item 262 would amend paragraphs 22(5)(c), 22A(5)(c) and 22B(3)(c) of the Witness Protection Act to remove the reference to a disclosure under the LEIC Act and replace it with a reference to a NACC disclosure within the meaning of the NACC Bill. The amendments would permit a person to disclose information about the National Witness Protection Program where the disclosure was for the purpose of referring a corruption issue to the Commissioner.

Part 3-Other amendments

14.272 This Part would amend the Telecommunications Act 1997 to give the NACC and certain state anti-corruption and investigative commissions access to the industry assistance framework under Part 15 of the Act.

Telecommunications Act 1997 amendments

14.273 Items 263 to 270 would amend the Telecommunications Act 1997 to give the NACC and certain state anti-corruption and investigative commissions access to the industry assistance framework under Part 15 of the Act.

14.274 Part 15 of the Telecommunications Act 1997 provides a framework for national security and law enforcement agencies to seek assistance from the communications industry to support investigations and operations. It provides three mechanisms for certain agencies to obtain assistance from designated communications providers, specifically:

•

technical assistance requests, which may ask a provider to do certain acts or things on a voluntary basis to help an agency for particular purposes, or that are directed towards ensuring that the provider is capable of giving such help;

•

technical assistance notices, which may require a provider to do certain acts or things to help an agency for particular purposes, where the provider is already capable of giving the required assistance; and

•

technical capability notices, issued by the Attorney-General with the approval of the Minister administering the Telecommunications Act 1997, which may require a provider to develop a new capability to ensure the provider is capable of providing certain assistance to an agency.

14.275 These powers are currently available to certain intelligence agencies and to 'interception agencies'. Interception agency for the purposes of Part 15 of the Telecommunications Act 1997 is currently defined to mean the AFP, the ACIC or the police force of a State or the Northern Territory.

14.276 The amendments to Part 15 of the Telecommunications Act 1997 would extend these powers to certain anti-corruption and investigative commissions, including the NACC. This would be consistent with Recommendation 1 of the Independent National Security Legislation Monitor's 2020 Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 and public statements made by the Parliamentary Joint Committee on Intelligence and Security in February 2019. These amendments would ensure that each agency permitted to intercept communications under the TIA Act is also able to obtain the necessary assistance from providers to ensure that encrypted communications can be accessed in an intelligible form.

14.277 These amendments would be appropriate, as they would enable the NACC and other anti-corruption commissions to more effectively investigate serious or systemic corrupt conduct that could constitute a serious criminal offence. Corrupt conduct typically involves multiple people, and is often enabled and facilitated by electronic communication services and devices operated by private providers. Public officials and third parties who deliberately engage in corrupt conduct are more likely to take active steps to conceal their communications. The ability to obtain technical assistance from communications industry participants would greatly facilitate the work of these commissions when exercising investigative powers, including those under the SD Act and TIA Act, to investigate serious, criminal corrupt conduct.

14.278 Consistent with oversight arrangements for existing interception agencies under Part 15 of the Telecommunications Act 1997, the Commonwealth Ombudsman would be responsible for inspections and compliance reporting for the use of powers by the NACC and other anti-corruption commissions. The Commonwealth Ombudsman is the authority to inspect (and report on) agency compliance. Oversight also includes annual reporting requirements on the use of powers. These annual reports are provided to the Attorney-General and tabled in both Houses of Parliament.

Amendments

14.279 Section 317B of the Telecommunications Act 1997 contains definitions for the purposes of Part 15 of that Act. Items 262 to 265 would amend the definition of interception agency and insert new definitions relevant to several state agencies:

•

Items 263 and 264 would amend the definition of interception agency in section 317B of the Telecommunications Act 1997 to list the NACC, the Independent Commission Against Corruption of New South Wales, the New South Wales Crime Commission, the Law Enforcement Conduct Commission of New South Wales, the Independent Broad-based Anti-corruption Commission of Victoria, the Crime and Corruption Commission of Queensland, the Independent Commissioner Against Corruption of South Australia, and the Corruption and Crime Commission of Western Australia as interception agencies for the purposes of Part 15 of that Act. This would provide consistency with definition of 'interception agency' in the TIA Act.

•

Item 265 would insert a definition of member of the staff of the Independent Commission Against Corruption of South Australia into section 317B.

14.280 Section 317ZM sets out who is taken to be the chief officer and an officer of each interception agency for the purposes of Part 15 of the Telecommunications Act 1997. Items 266 and 267 would add new items to the table in section 317ZM to provide that:

•

for the NACC, the National Anti-Corruption Commissioner is the chief officer and officer means a staff member of the NACC within the meaning of the National Anti-Corruption Commission Act 2022;

•

for the Independent Commission Against Corruption of New South Wales, the Chief Commissioner as appointed under the Independent Commission Against Corruption Act 1988 (NSW) is the chief officer and officer means an officer of the Commission within the meaning of that Act, but it does not include a person engaged under section 104B of that Act to provide the Commission with services, information or advice;

•

for the New South Wales Crime Commission, the Commissioner appointed under section 8 of the Crime Commission Act 2012 (NSW) will be the chief officer and officer means an officer of the Commission within the meaning of that Act, but it does not include a person engaged by the Commission as a consultant under subsection 74(2) of that Act;

•

for the Law Enforcement Conduct Commission of New South Wales, the Chief Commissioner appointed under section 18 of the Law Enforcement Conduct Commission Act 2016 (NSW) will be the chief officer and officer means either the Chief Commissioner, or the Commissioner for Integrity appointed under section 18 of that Act, or an Assistant Commissioner appointed under section 20 of that Act, or a member of staff of the Commission within the meaning of section 21 of that Act;

•

for the Independent Broad-based Anti-corruption Commission of Victoria, the Commissioner appointed under section 20 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) will be the chief officer and officer means a sworn IBAC Officer within the meaning of section 3 of that Act;

•

for the Crime and Corruption Commission of Queensland, the chairperson within the meaning of the Crime and Corruption Act 2001 (Qld) will be the chief officer and officer means a commission officer as defined by paragraph (a) of the definition of 'commission officer' in Schedule 2 to that Act. Officer does not mean a person engaged under section 256 of that Act to provide the Commission with services, information or advice;

•

for the Independent Commissioner Against Corruption of South Australia, the Commissioner appointed under section 8 of the Independent Commissioner Against Corruption Act 2012 (SA) will be the chief officer and officer means the Commissioner, or the Deputy Commissioner appointed under section 9 of that Act, or a member of the staff of the Independent Commissioner Against Corruption of South Australia within the meaning of that Act; and

•

for the Corruption and Crime Commission of Western Australia, the Commissioner appointed under section 9 of the Corruption, Crime and Misconduct Act 2003 (WA) will be the chief officer and officer means an officer of the Commission within the meaning of that Act. Officer does not mean a person engaged under section 182 of that Act to provide the Commission with services, information or advice.

14.281 Section 317ZR sets out the officers of each interception agency to whom a chief officer may delegate their functions or powers under Divisions 2 (Voluntary technical assistance), 3 (Technical assistance notices), or 6 (Unauthorised disclosure of information etc.) of Part 15 of the Telecommunications Act 1997. Items 268 and 269 would add new items to the table in section 317ZR to allow:

•

the Commissioner to delegate those functions or powers to a Deputy Commissioner or staff member of the NACC who is an SES employee or acting SES employee;

•

the Commissioner of the Independent Commission Against Corruption of New South Wales to delegate those functions or powers to a Commissioner or Assistant Commissioner within the meaning of the Independent Commission Against Corruption Act 1988 (NSW), or an officer of the Commission within the meaning of section 3 of that Act (other than a person engaged under section 104B of that Act) who is at executive level;

•

the Commissioner of the New South Wales Crime Commission to delegate those functions or powers to an officer of the Commission within the meaning of the Crime Commission Act 2012 (NSW) (other than a person engaged under subsection 74(2) of that Act) who is at executive level;

•

the Commissioner of the Law Enforcement Conduct Commission of New South Wales to delegate those functions or powers to either the Commissioner for Integrity appointed under section 18 of the Law Enforcement Conduct Commission Act 2016 (NSW), or an Assistant Commissioner appointed under section 20 of that Act, or a member of the staff of the Commission within the meaning of section 21 of that Act who is at executive level;

•

the Commissioner of the Independent Broad-based Anti-Corruption Commission of Victoria to delegate those functions or powers to either a Deputy Commissioner of the Commission appointed under section 23 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic), the Chief Executive Officer of the Commission appointed under section 33 of that Act, or a sworn IBAC officer within the meaning of section 3 of that Act who is at executive level;

•

the Chairperson of the Crime and Corruption Commission of Queensland to delegate those functions or powers to a senior executive officer within the meaning of the Crime and Corruption Act 2001 (Qld);

•

the Commissioner of the Independent Commissioner Against Corruption of South Australia to delegate those functions or powers to either the Deputy Commissioner or a member of staff of the Independent Commissioner Against Corruption who is at executive level; and

•

the Commissioner of the Corruption and Crime Commission of Western Australia to delegate those functions or powers to an officer of the Commission within the meaning of the Corruption, Crime and Misconduct Act 2003 (WA) other than a person engaged under section 182 of that Act, who is at executive level.

14.282 Item 270 would insert a definition of executive level into section 317ZR for the purpose of the delegation provisions that apply to the Corruption and Crime Commission of Western Australia.

14.283 The power to delegate these functions and powers is appropriate to ensure that anti-corruption and investigative commissions can exercise their powers in a timely way. For the NACC, this would be consistent with the objects of the NACC Bill. It would also be consistent with the existing powers of delegation for the AFP and ACIC under section 317ZR.

Effect of the amendments

14.284 Making the NACC and state anti-corruption and investigative commissions interception agencies would mean that the respective chief officers could:

•

issue a technical assistance request asking a designated communications provider to do certain acts or things to help the relevant commission to perform a function or exercise a power relating to enforcing the criminal law (where it relates to offences carrying penalties of at least three years imprisonment), or that are directed towards ensuring that the provider is capable of giving such help;

•

issue a technical assistance notice requiring a designated communications provider to do certain acts or things to help the relevant commission to perform a function or exercise a power relating to enforcing the criminal law (where it relates to offences carrying penalties of at least three years imprisonment); and

•

apply to the Attorney-General for a technical capability notice requiring a designated communications provider to do something to ensure the provider is capable of providing certain assistance to the relevant commission so it can perform a function or exercise a power relating to enforcing the criminal law (where it relates to offences carrying penalties of at least three years imprisonment)-the Minister administering the Telecommunications Act 1997 must approve any technical capability notice before it is given to a designated communications provider.

14.285 Enforcing the criminal law, in the context of the NACC and other anti-corruption commissions, would mean investigating corrupt conduct that would, if proven, constitute an offence. While the NACC and some other anti-corruption commissions would have jurisdiction to investigate corrupt conduct whether or not it is criminal, access to the industry assistance framework would only be available where the conduct under investigation is criminal. This could include, for example, conduct that would constitute an offence concerning bribery of Commonwealth public officials or abuse of office under Part 7.6 of the Criminal Code, or a similar offence under State law.

14.286 The NACC would have access to overt powers under the Crimes Act 1914 search powers as applied under the NACC Bill and to covert powers under the SD Act and TIA Act as provided by the Consequential Bill. Access to the industry assistance framework is appropriate to allow the NACC to seek assistance from communications providers where for example it is necessary to obtain information in an intelligible (instead of encrypted) form, so that it can be used to further an investigation. Similarly, anti-corruption and investigative bodies have corresponding powers to access communications, to which assistance from communications providers might be required to process. Section 317ZH of the Telecommunications Act 1997 makes clear that requests and notices under the framework cannot be used in place of an appropriate warrant or authorisation. Rather, these mechanisms ensure that agencies have the support required from communications providers to obtain information they have proper authority to access in an intelligible form.

14.287 The NACC and state anti-corruption and investigative commissions would have access to the industry assistance framework on the same basis as other interception agencies, including the same thresholds, limitations and safeguards. This would include, for example that:

•

requests and notices may only be issued for the purpose of enforcing the criminal law so far as it related to Australian offences punishable by a maximum penalty of at least three years; and

•

a provider must not be requested or required to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection.

14.288 The use of the industry assistance scheme by the NACC and state anti-corruption and investigative commissions would also be overseen by the Commonwealth Ombudsman under section 317ZRB.

SCHEDULE 2-APPLICATION, SAVING AND TRANSITIONAL PROVISIONS

Part 1-Introduction

Item 1-Definitions

14.289 Subitem 1(1) would define the following terms for the purposes of Schedule 2.

14.290 Existing inquiry would be defined in paragraph 2(1)(b) of this Schedule to mean a public inquiry by the Integrity Commissioner under Part 8 of the LEIC Act that has been commenced but is not yet completed at the transition time (as defined in this item).

14.291 Existing investigation would be defined in paragraph 2(1)(a) of this Schedule to mean an investigation of a corruption issue by the Integrity Commissioner, whether alone or jointly with another person or persons, under Part 6 of the LEIC Act that has been commenced but is not yet completed at the transition time (as defined in this item).

14.292 Instrument would be defined to include:

•

a contract, deed, undertaking, arrangement or agreement; and

•

a notice, authority, order or instruction; and

•

an instrument made under an Act or a regulation.

14.293 NACC corruption issue transition notice would be defined in item 36(4). The Inspector may, by notice in writing (the NACC corruption issue transition notice), determine that the new Act applies to:

•

an investigation of an ACLEI corruption issue by the Integrity Commissioner under Division 3 of Part 12 of the LEIC Act; or

•

a special investigation of an ACLEI corruption issue by a special investigator under Division 4 of Part 12 of the LEIC Act.

14.294 The Inspector would be able to make such a determination in relation to the investigation or special investigation if the Inspector considers that:

•

it would be more appropriate to deal with the investigation or special investigation under the NACC Bill; and

•

the investigation or special investigation could involve corrupt conduct that is serious or systemic.

14.295 New Act would be defined to mean the National Anti-Corruption Commission Act 2022.

14.296 Old Act would be defined to mean the Law Enforcement Integrity Commissioner Act 2006, as in force immediately before the transition time (as defined in this item).

14.297 Rules would be defined to mean the rules made under item 57, which would allow the Minister to make rules prescribing further transitional arrangements that are required or permitted by the Consequential Bill, or necessary or convenient for carrying out or giving effect to the Consequential Bill.

14.298 Transition determination would be defined to mean, in relation to an existing investigation or an existing inquiry, a determination under subitem 3(1). Under this item, the National Anti-Corruption Commissioner would be able to, by notice in writing (the transition determination), determine that the new Act applies to an existing investigation or an existing inquiry if the Commissioner considers that:

•

it would be more appropriate to deal with the issues the subject of the existing investigation or existing inquiry under the NACC Bill; and

•

in the case of an existing investigation-the issues could involve corrupt conduct that is serious or systemic.

14.299 Transition time would be defined to mean the time clause 40 of the NACC Bill (which would give the National Anti-Corruption Commissioner the power to deal with a corruption issue) commences. Consistent with clause 2 of the NACC Bill, clause 40 would commence on a single day to be fixed by Proclamation.

14.300 Subitem 1(2) would provide that where the expressions used in Schedule 2 are defined for the purposes of, and used in relation to, the NACC Bill, these expressions are to be interpreted with the same meaning as they have in the NACC Bill, as opposed to any meaning these phrases may have in the LEIC Act or any other Act.

14.301 Subitem 1(3) would provide that where expressions used in Schedule 2 are defined for the purposes of, and used in relation to, the LEIC Act, these expressions are to be interpreted with the same meaning as they have in the LEIC Act, as opposed to any meaning these phrases may have in the NACC Bill, or any other Act.

14.302 The effect of subitem 1(4) would be that when, after the NACC Bill commences, an investigation is being continued under the LEIC Act, the Commissioner may exercise the powers, and perform the functions and duties, of the Integrity Commissioner set out in the LEIC Act. The Inspector under the NACC Bill may also exercise the powers, and perform the functions and duties, of a special investigator under the LEIC Act. The LEIC Act would continue to apply with such further modifications as are necessary for matters under the LEIC Act and would be managed by the NACC, or the Inspector as required. This subitem should be interpreted broadly, consistent with its purpose of facilitating the transition of existing investigations and inquiries, powers, functions and duties from the LEIC Act to the NACC Bill. It should be interpreted as including, for example, modifications to allow references to a 'staff member' of ACLEI in the LEIC Act to be read as a 'staff member' of the NACC-including in instruments made under the LEIC Act, such as in a non-disclosure notation given under section 91, or authorisations given under section 140 (Appointment of authorised officers). Further, the consequential amendments that would replace references to the LEIC Act with references to the NACC Bill would not apply and the investigation would continue to be run as if the amendments had not been made to those provisions.

Part 2- Existing investigations and inquiries

Item 2-Transitional- continuation of existing investigations and inquiries

14.303 The effect of subitems 2(1) and 2(2) would be that, where an investigation (under Part 6 of the LEIC Act) or a public inquiry (under Part 8 of the LEIC Act) has been commenced, but not yet completed, by ACLEI is on foot at the time the NACC Bill commences, the Commissioner may continue the investigation or public inquiry under the LEIC Act, despite its repeal. This would be the default position and would apply whether the investigation was being conducted by ACLEI alone or jointly with another entity.

14.304 Where this default position applies, the powers, rights and obligations that would apply to the NACC and its office holders, as well as other relevant persons such as agency heads, for the purposes of the investigation or public inquiry, would be those in the LEIC Act rather than those under the NACC Bill.

14.305 However, the Commissioner can make a transition determination under item 3 of this Schedule in relation to the existing investigation or public inquiry. A transition determination would mean the investigation would be dealt with under the NACC Bill, where appropriate to do so.

Item 3-Transitional-transition determinations

14.306 Subitem 3(1) would allow the Commissioner to determine, by notice in writing (known as a transition determination), that the NACC Bill is to apply to an existing investigation or public inquiry. The Commissioner could make such a determination if they consider that:

•

it would be more appropriate to deal with the issues in the existing investigation or public inquiry under the NACC Bill; and

•

the issues in the existing investigation could involve conduct that is serious or systemic.

14.307 This would mean the default position under subitem 2(2) would not apply.

14.308 Subitem 3(1) would not prescribe specific factors that the Commissioner must take into consideration when making a transition determination. Factors that may be relevant to the making of such a determination may include the stage of the investigation or inquiry, or a decision on the part of the Commissioner to commence another investigation or inquiry into a related matter under the NACC Bill. It is intended that the Commissioner would give due consideration to which Act would most appropriately govern the continuation of the investigation or inquiry and make a well-reasoned determination.

14.309 Subitem 3(2) would provide that as soon as reasonably practicable after the Commissioner makes a transition determination, they must give a copy of the transition determination to the head of each agency to which the investigation or inquiry relates. This would provide certainty to relevant agency heads about the legislation under which the investigation or inquiry is being continued.

14.310 Subitem 3(3) would clarify when, after a transition determination has been made, the NACC Bill would apply to the investigation or inquiry. It would provide that this would occur, either at the time the transition determination is given to each agency to which the existing investigation or existing inquiry relates (see paragraph 3(3)(a)) or the time specified in the determination (see paragraph 3(3)(b)), whichever comes later. The Commissioner's ability to specify a time in the transition determination would allow them to select an appropriate transition point, in light of the stage of the investigation or inquiry and any hearing or other investigative activities on foot at the time the determination is made.

14.311 Once this occurs, the powers and obligations that would apply to the NACC and its office holders, as well as other relevant persons such as agency heads, for the purposes of the investigation or public inquiry, would be those in the NACC Bill, rather than the LEIC Act.

14.312 Subitem 3(4) would provide that a transition determination 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.

Item 4-Transitional-investigations managed or overseen by Integrity Commissioner

14.313 This item would provide that if, at the time the NACC Bill commences, the Integrity Commissioner is managing or overseeing an investigation of a corruption issue by a law enforcement agency under section 61 or 62 of the LEIC Act, the Commissioner may continue to oversee or manage the investigation in accordance with the LEIC Act, as if it had not been repealed.

14.314 In this situation, the reporting provisions in the LEIC Act that apply to law enforcement agencies would continue to apply during the investigation, notwithstanding the LEIC Act's repeal.

Item 5-Transitional-investigations conducted solely by law enforcement agencies

14.315 This item would provide that if, before the transition time (as defined in item 1 of this Schedule), the Integrity Commissioner had referred a corruption issue to a law enforcement agency for an investigation under subparagraph 26(1)(b)(iii) of the LEIC Act, and the investigation had commenced but had not been completed, then the referral would be taken to have been made by the Commissioner under paragraph 41(1)(c) of the NACC Bill.

Item 6-Transitional-investigation of corruption issues relating to conduct of secondees

14.316 This item would apply if, immediately before the transition time (as defined in item 1 of this Schedule), a government agency or integrity agency for a State or Territory was investigating the conduct of a secondee to a law enforcement agency under an arrangement made under subsection 30(1) of the LEIC Act. In this case, the government agency, or agency for the State or Territory would be able to continue to investigate the corruption issue as if the LEIC Act had not been repealed.

Part 3-Corruption issues previously referred or notified

Item 7-Transitional-referral and notification of corruption issues

14.317 This item would apply if, before the transition time (as defined in item 1 of this Schedule), a person had referred an allegation, or information, that raised a corruption issue, or had notified a corruption issue, to the Integrity Commissioner under the LEIC Act and the Integrity Commissioner had either not yet decided how to deal with the corruption issue, or had decided and not yet commenced action. In this case, the allegation, information or corruption issue would be taken to have been referred to the Commissioner under the NACC Bill after the transition time.

14.318 The effect of this would be that the Commissioner would be responsible for deciding how to deal with the issue as if the issue had been referred to the Commissioner under Part 5 of the NACC Bill. Any decision by the Integrity Commissioner under the LEIC Act would need to be made afresh by the Commissioner under the NACC Bill.

Item 8-Transitional-protection of persons referring or notifying corruption issues

14.319 This item would provide that if subitem 7(1), applies and a person has made a referral or notification to the Integrity Commissioner under the LEIC Act before transition time (as defined in item 1 of this Schedule), the person is taken, after transition time, to have made a NACC disclosure under the NACC Bill.

14.320 This would mean that the person who made the disclosure would receive the protections under the NACC Bill as if they have made a direct disclosure to the NACC. These protections are contained in clauses 24 and 30 of the NACC Bill.

Part 4-Facilitating investigations and inquiries

Item 9-Transitional- notices to give information or produce documents or things

14.321 This item would provide that if, before the transition time (as defined in item 1 of this Schedule), the Integrity Commissioner has issued a notice under subsection 75(1) of the LEIC Act to give information or to produce a document or thing, and the recipient of the notice has not yet complied with it, the notice would continue to be valid, and the recipient would need to comply with the notice in accordance with the LEIC Act as if it had not been repealed.

14.322 If the notice includes a notation under subsection 77A(2) of the LEIC Act prohibiting the disclosure of information about or under that notice, the notation would continue to apply to the notice, and the prohibitions with which the recipient would need to comply would be those under the LEIC Act.

14.323 This means that if the Commissioner is continuing the investigation under the LEIC Act, the recipient would need to comply with the notice in accordance with the relevant provisions of the LEIC Act. If the notice contains a notation, the prohibitions on disclosing information about or under the notice under the LEIC Act would continue to apply.

14.324 However, if the Commissioner makes a transition determination under subitem 3(1) of this Schedule, the notice would be taken to have been issued under subclause 58(2) of the NACC Bill, and the recipient would need to comply with the notice accordingly. If the notice contains a notation, the notation would be taken to have been included in the notice under subclause 95(1) of the NACC Bill, and the prohibitions on disclosing information about or under the notice in the NACC Bill would apply. Any offences in the NACC Bill for non-compliance with the notice or notation would also apply (see clause 60).

14.325 Under items 2 and 3 of this Schedule, the Commissioner may:

•

continue to conduct existing ACLEI investigations under the LEIC Act; or

•

determine that the new Act applies to an existing investigation if they consider that:

-

it is more appropriate to deal with the issues being investigated under the new Act, and

-

the issues could involve corrupt conduct that is serious or systemic.

14.326 Given the NACC would also be able to issue notices to produce, and the Commissioner could continue existing ACLEI investigations, it is appropriate that notices to produce validly issued to ACLEI but not yet complied with at the point of transition can be taken over by the NACC.

Item 10-Transitional- protection of persons who comply with notices and protection of witnesses etc.

14.327 This item would apply if any of the following were in effect at the transition time (as defined in item 1 of this Schedule):

•

an arrangement under subsection 81(3) of the LEIC Act for the protection of a person who complies with a notice served on them;

•

an arrangement under subsection 104A(3) of the LEIC Act for the protection of a person who gives evidence at a hearing, produces a document or thing at a hearing or makes a submission in relation to a public inquiry.

14.328 The effect of the provision would be that, after the NACC Bill commences, any such arrangements would continue in effect as if the arrangement had been made under subclause 116(2) of the NACC Bill. This clause would outline protections available to a person providing information, or producing a document or thing, in response to a direction to produce or a notice to produce, or as a witness at a hearing.

Item 11-Transitional- summons to attend hearings

14.329 This item would provide that summons to attend hearings, and notations included in such summons, issued to a person by the Integrity Commissioner under the LEIC Act would continue in effect after the transition time (as defined in item 1 of this Schedule). It would apply where:

•

a summons to attend a hearing to give evidence or produce a document or thing was issued to a person by the Integrity Commissioner under subsection 83(1) of the LEIC Act before the transition time;

•

a notation is included in such a summons under subsection 91(2) of the LEIC Act that prohibits the disclosure of information.

14.330 Subitem 11(2) would provide that such summons and notations would continue in effect after the transition time as if as if the LEIC Act was not repealed.

14.331 Under items 2 and 3 of this Schedule, the Commissioner may:

•

continue to conduct existing ACLEI investigations under the LEIC Act; or

•

determine that the new Act applies to an existing investigation if they consider that:

-

it is more appropriate to deal with the issues being investigated under the new Act; and

-

the issues could involve corrupt conduct that is serious or systemic.

14.332 Subitem 11(3) would provide that where the Commissioner makes a transition determination (see item 3 of this Schedule) that the existing investigation or inquiry to which the summons and any notation relates is to be dealt within under the NACC Bill, then:

•

the summons is taken to have been issued by the Commissioner under subclause 63(1) of the NACC Bill;

•

the notation is taken to be a non-disclosure notation included in the summons for the purposes of subclause 95(1) of the NACC Bill.

Item 12-Transitional- directions in relation to confidentiality

14.333 This item would provide for the transition of confidentiality directions given by the Integrity Commissioner under section 90 of the LEIC Act before the transition time (as defined in item 1 of this Schedule) occurred.

14.334 The effect of subitems 12(1) and 12(2) would be that if the Integrity Commissioner gave a confidentiality direction to a person under subsection 90(1) of the LEIC Act in relation to the use or disclosure of hearing material before the transition time occurred, the LEIC Act would continue to apply to that direction as if the LEIC Act had not been repealed. This would mean that the direction would continue to be valid, and the recipient of the direction would need to comply with the direction in accordance section 90 of the LEIC Act. It would also mean that the offence for failing to comply with the direction under subsection 90(6) of the LEIC Act would continue to apply after the transition time.

14.335 Under items 2 and 3 of this Schedule, the Commissioner may:

•

continue to conduct existing ACLEI investigations under the LEIC Act; or

•

determine that the new Act applies to an existing investigation if they consider that:

-

it is more appropriate to deal with the issues being investigated under the new Act; and

-

the issues could involve corrupt conduct that is serious or systemic.

14.336 Subitem 12(3) would provide that where the Commissioner makes a transition determination (see item 3 of this Schedule) that the existing investigation or inquiry to which the hearing relates is to be dealt within under the NACC Bill, the direction is taken to be given by the Commissioner under subclause 100(1) of the NACC Bill.

14.337 This item is appropriate to continue to prevent the use or disclosure of hearing material that could prejudice a person's safety, prejudice a fair a trial, or lead to publication of clause 235 certified information as ACLEI transitions to the NACC.

Item 13-Transitional-applications to Court to deal with contempt

14.338 This item would provide for the transition of applications to deal with a person for contempt made before the transition time under section 96B of the LEIC Act, but not yet dealt with by the relevant court.

14.339 The LEIC Act would continue to apply in relation to such applications as if it had not been repealed by item 1 of Schedule 1. This would be the case whether or not the application related to an investigation or inquiry to which a transition determination made under item 3 of this Schedule applies.

14.340 This item, in combination with item 1 of this Schedule, would allow a contempt application to be dealt with under the LEIC Act as if it had not been repealed, with the Commissioner stepping into the shoes of the Integrity Commissioner and the LEIC Act applying with such modifications as are necessary. This would allow a process already underway under the LEIC Act before its repeal to be completed without disruption despite ACLEI transitioning to become part of the NACC.

Item 14-Transitional-directions to detain in relation to contempt

14.341 This item would provide for the transition of directions to detain a person for the purpose of bringing them before the relevant court for the hearing of a contempt application given before the transition time (as defined in item 1 of this Schedule) under subsection 96D of the LEIC Act. It would only apply where the hearing of the contempt application had not occurred before the transition time.

14.342 The LEIC Act would continue to apply in relation to the direction to detain the person as if it had not been repealed by item 1 of Schedule 1. This would be the case whether or not the application related to an investigation or inquiry to which a transition determination made under item 3 of this Schedule applies.

14.343 This item, in combination with item 1 of this Schedule, would facilitate a contempt application being dealt with under the LEIC Act as if it had not been repealed, with the Commissioner stepping into the shoes of the Integrity Commissioner and the LEIC Act applying with such modifications as are necessary. The person could continue to be detained in accordance with the LEIC Act, meaning:

•

the Commissioner would be required to apply to the court as soon as practicable in relation to the contempt, if the Integrity Commissioner had not already done so; and

•

the person would be required to be brought before the court as soon as possible.

14.344 This would allow a process already underway under the LEIC Act before its repeal to be completed without disruption despite ACLEI transitioning to become part of the NACC.

Item 15-Transitional-applications for order to deliver travel documents

14.345 This item would provide for the transition of applications for orders requiring a person to deliver travel documents made before the transition time (as defined in item 1 of this Schedule) under section 97 of the LEIC Act, but not yet dealt with by the Court.

14.346 The LEIC Act would continue to apply in relation to such applications as if it had not been repealed by item 1 of Schedule 1. This would be the case whether or not the application related to an investigation or inquiry to which a transition determination made under item 3 of this Schedule applies.

14.347 This item, in combination with item 1 of this Schedule, would allow an application to be dealt with under the LEIC Act as if it had not been repealed, with the Commissioner stepping into the shoes of the Integrity Commissioner and the LEIC Act applying with such modifications as are necessary. This would allow a process already underway under the LEIC Act before its repeal to be completed without disruption despite ACLEI transitioning to become part of the NACC.

Item 16-Transitional-orders regarding delivery of travel documents

14.348 This item would provide for the transition of two types of order relating to delivery of travel documents made before the transition time (as defined in item 1 of this Schedule) under section 98 of the LEIC Act, specifically:

•

orders made by a Judge under subsection 98(1) of the LEIC Act requiring a person to appear before the Federal Court to show cause why they should not be ordered to deliver a travel document to the Integrity Commissioner, where the day specified in the order for the person to appear occurs after the transition time; and

•

orders made by the Federal Court under subsection 98(4) of the LEIC Act requiring a person to deliver a travel document to the Integrity Commissioner and authorising the Integrity Commissioner to retain the document, where the period specified for retention of the document in an order under subsection 98(4) or 98(5) ends after the transition time.

14.349 The LEIC Act would continue to apply in relation to such orders as if it had not been repealed by item 1 of Schedule 1. This would be the case whether or not the application related to an investigation or inquiry to which a transition determination made under item 3 of this Schedule applies.

14.350 This item in combination with item 1 of this Schedule would allow for delivery and retention of travel documents under the LEIC Act as if it had not been repealed, with the Commissioner stepping into the shoes of the Integrity Commissioner and the LEIC Act applying with such modifications as are necessary. For orders under subsection 98(1), this would allow a process already underway under the LEIC Act before its repeal to be completed without disruption despite ACLEI transitioning to become part of the NACC. For orders under subsection 98(4), this would ensure the Commissioner is not required to return a travel document to a person earlier than the Integrity Commissioner would have needed to where the Court has already determined that retention of the document for a particular period was appropriate.

Item 17-Transitional-applications for revocation of order to deliver travel documents

14.351 This item would provide for the transition of applications under subsection 98(6) of the LEIC Act for revocation of orders made under subsection 98(4) for delivery and retention of a travel document made before the transition time (as defined in item 1 of this Schedule), but not yet considered by the Federal Court.

14.352 The LEIC Act would continue to apply in relation to such applications as if it had not been repealed by item 1 of Schedule 1. This would be the case whether or not the application related to an investigation or inquiry to which a transition determination made under item 3 of this Schedule applies.

14.353 This item, in combination with item 1 of this Schedule, would allow an application to be dealt with under the LEIC Act as if it had not been repealed, with the Commissioner stepping into the shoes of the Integrity Commissioner and the LEIC Act applying with such modifications as are necessary. This would allow a process already underway under the LEIC Act before its repeal to be completed without disruption despite ACLEI transitioning to become part of the NACC.

Item 18-Transitional-applications for arrest warrants

14.354 This item would provide for the transition of applications for arrest warrants made before the transition time (as defined in item 1 of this Schedule) under section 99 of the LEIC Act, but not yet considered by a Judge.

14.355 The LEIC Act would continue to apply in relation to such applications as if it had not been repealed by item 1 of Schedule 1. This would be the case whether or not the application related to an investigation or inquiry to which a transition determination made under item 3 of this Schedule applies.

14.356 This item, in combination with item 1 of this Schedule, would allow an arrest warrant application to be dealt with under the LEIC Act as if it had not been repealed, with the Commissioner stepping into the shoes of the Integrity Commissioner and the LEIC Act applying with such modifications as are necessary. This would allow a process already underway under the LEIC Act before its repeal to be completed without disruption despite ACLEI transitioning to become part of the NACC.

Item 19-Transitional-warrants not executed

14.357 This item would provide for the transition of two types of warrant issued under the LEIC Act before the transition time (as defined in item 1 of this Schedule), specifically:

•

arrest warrants issued by a Judge under section 100 of the LEIC Act, where they had not been executed; and

•

search warrants issued by an issuing officer under section 109 of the LEIC Act, where they had not expired and not been fully executed.

14.358 The LEIC Act would continue to apply in relation to such warrants as if it had not been repealed by item 1 of Schedule 1. This would be the case whether or not the warrant related to an investigation or inquiry to which a transition determination made under item 3 of this Schedule applies.

14.359 This item, in combination with item 1 of this Schedule, would ensure warrants issued by Judges and magistrates on satisfaction of relevant thresholds can continue to be executed under the LEIC Act as if it had not been repealed, with the Commissioner stepping into the shoes of the Integrity Commissioner and the LEIC Act applying with such modifications as are necessary. This would allow processes already underway under the LEIC Act before its repeal to be completed without disruption despite ACLEI transitioning to become part of the NACC.

Part 5-Requirements or permissions etc. under other Acts

Items 20 to 35-Transitional-requirements or permissions under other Acts

14.360 Part 2 of Schedule 1 would replace references to ACLEI and the LEIC Act in the AML/CTF Act, Crimes Act 1914, Financial Transaction Reports Act 1988, POC Act, SD Act and TIA Act with references to the NACC and the NACC Act, to give the NACC the same powers under those Acts currently available to ACLEI.

14.361 Under items 2 and 3 of this Schedule, the Commissioner may:

•

continue to conduct existing ACLEI investigations under the LEIC Act; or

•

determine that the new Act applies to an existing investigation if they consider that:

-

it is more appropriate to deal with the issues being investigated under the new Act; and

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the issues could involve corrupt conduct that is serious or systemic.

14.362 Accordingly, items 20 to 35 of this Schedule would provide for warrants and orders issued to ACLEI, and authorisations made and notices given by ACLEI under the Acts mentioned above and in effect immediately before the transition time to continue in effect as if they had been issued to, or made or given by, the NACC. Given the NACC would have the same powers as ACLEI under those Acts, and the Commissioner could continue existing ACLEI investigations, it is appropriate that warrants, orders, authorisations and notices validly issued to or by ACLEI that are still in effect at the point of transition can be taken over by the NACC.

14.363 The warrants, orders, authorisations and notices that would be transitioned from ACLEI to the NACC are:

•

notices given by the Integrity Commissioner or an ACLEI investigating officer under section 49 of the AML/CTF Act requiring persons to provide certain information or give certain documents (item 20);

•

authorities to conduct controlled operations granted by an ACLEI authorising officer under section 15GI of the Crimes Act 1914 (item 21);

•

authorities to conduct integrity testing operations granted by an appropriate authorising officer of ACLEI under section 15JG of the Crimes Act 1914 (item 22);

•

authorities to acquire or use an assumed identity granted by the Integrity Commissioner under section 15KB of the Crimes Act 1914 (item 23);

•

witness identity protection certificates given by the Integrity Commissioner under section 15ME of the Crimes Act 1914 (item 24);

•

requests for certain information from cash dealers given by the Integrity Commissioner or an ACLEI investigating officer under subsection 16(4) of the Financial Transaction Reports Act 1988 (item 25);

•

freezing orders issued by a magistrate under subsection 15B(1) of the POC Act on application by an authorised officer of ACLEI (item 26);

•

production orders issued by a magistrate under subsection 202(1) of the POC Act on application by an authorised officer of ACLEI (item 26);

•

notices to financial institutions given by the Integrity Commissioner under subsection 213(1) of the POC Act (item 27);

•

monitoring orders made by a judge of a court of a State or Territory under subsection 219(1) of the POC Act on application by an authorised officer of ACLEI (item 28);

•

search warrants issued by a magistrate under section 225 of the POC Act on application by an authorised officer of ACLEI (item 29);

•

surveillance device warrants issued by an eligible Judge or a nominated AAT member under subsection 16(1) of the SD Act on application by a law enforcement officer of ACLEI (item 30);

•

retrieval warrants (authorising retrieval of a surveillance device) issued by an eligible Judge or a nominated AAT member under subsection 24(1) of the SD Act on application by a law enforcement officer of ACLEI (item 30);

•

computer access warrants issued by an eligible Judge or a nominated AAT member under subsection 27C(1) of the SD Act on application by a law enforcement officer of ACLEI (item 30);

•

emergency authorisations for use of a surveillance device or access to data held in a computer given by an appropriate authorising officer of ACLEI under Part 3 of the SD Act (item 31);

•

tracking device authorisations given by an appropriate authorising officer of ACLEI under section 39 of the SD Act (item 31);

•

interception warrants issued to ACLEI by an eligible Judge or nominated AAT member under section 46, 46A or 48 of the TIA Act (item 32);

•

stored communications warrants issued to ACLEI by an issuing authority under section 116 of the TIA Act (item 32);

•

journalist information warrants issued to ACLEI by a Part 4-1 issuing authority under section 180T of the TIA Act (item 32);

•

preservation notices (requiring a carrier to preserve certain stored communications) issued by ACLEI under section 107H of the TIA Act (item 33);

•

telecommunications data authorisations made by an authorising officer of ACLEI under section 178, 179 or 180 of the TIA Act (item 34); and

•

international production orders issued by an eligible Judge or nominated AAT member (for interception orders) or an issuing authority (for stored communications or telecommunications data orders) under Schedule 1 to the TIA Act on application by ACLEI (item 35).

14.364 Some warrants, orders and authorities, such as surveillance device warrants, freezing orders and authorities to conduct controlled operations, may be varied or extended under the relevant Act. Where that is the case, the relevant items clarify that the warrant, order or authority has effect after the transition time as it did immediately beforehand, including because of any variations or extensions made before the transition time.

Part 6-ACLEI corruption issues

Item 36-Transitional-investigations into ACLEI corruption issues

14.365 This item would provide for the transition of ACLEI corruption issue investigations and ACLEI corruption issue special investigations to the NACC.

14.366 Subitems 36(1) and 36(2) would provide that where an investigation of an ACLEI corruption issue has commenced under the LEIC Act and is on foot at the transition time (as defined in item 1 of this Schedule), the Commissioner can continue the investigation in accordance with the LEIC Act as if that Act was not repealed.

14.367 Subitems 36(1) and 36(3) would provide that where a special investigation of an ACLEI corruption issue has commenced under the LEIC Act and is on foot at the transition time, the special investigator can continue the investigation in accordance with the LEIC Act as if the Act was not repealed.

14.368 Subitems 36(4) and 36(5) would permit the Inspector to make a determination (referred to as a NACC corruption issue transition notice) that it is more appropriate to continue an investigation or special investigation under the NACC Bill, rather than the LEIC Act. The notice would need to be given in writing and could only be made in relation to investigations or special investigations that the Inspector considers could involve corrupt conduct that is serious or systemic. This effect of a notice would mean that the investigation or special investigation of an ACLEI corruption issue would become an investigation of a NACC corruption issue, and would require the Inspector to continue the relevant investigation under Division 3 of Part 10 of the NACC Bill. It is appropriate that the Inspector be able to make a NACC corruption issue transition notice consistent with their role in deciding how to deal with NACC corruption issues under the NACC Bill.

14.369 Subitem 36(6) would provide that as soon as reasonably practicable after making the determination, the Inspector must provide a copy of the NACC corruption issue transition notice to the Commissioner and, where the notice relates to an investigation by a special investigator, the special investigator. This is appropriate to ensure that the Commissioner and special investigator (where relevant) are aware that the investigation is being continued by the Inspector under the NACC Bill.

14.370 Subitem 36(7) would clarify when the NACC Bill would apply to an investigation after a NACC corruption issue transition notice has been issued by the Inspector. Relevantly, it would provide that the NACC Bill would apply either at the time the NACC corruption issue transition notice is given to the Commissioner (see paragraph 36(6)(a) of this Schedule); or the time specified in the notice, whichever is later. The Inspector's ability to specify a time in the notice is appropriate as it would allow them to determine an appropriate transition time with consideration of the investigation and any hearing or other investigative activities on foot at the time the notice is given.

14.371 Subitem 36(8) would provide that a NACC corruption issue transition notice 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 on subsection 8(1) of the Legislation Act 2003.

Part 7-Information disclosure-prevention on public interest grounds

Item 37-Transitional-Attorney-General's certificates about release of information

14.372 This item would provide for the transition of certificates issued by the Attorney-General under section 149 of the LEIC Act before the transition time (as defined in item 1 of this Schedule).

14.373 The effect of subitems 37(1) and 37(2) would be that where the Attorney-General has certified that the disclosure of information or the contents of a document would be contrary to the public interest under subsection 149(1) of the LEIC Act, and the certificate has not been revoked before the transition time, the certificate would continue in effect after the transition time as if the LEIC Act was not repealed.

14.374 Subitem 37(3) would provide that if the information or contents (that are the subject of a section 149 certificate under the LEIC Act) relates to an existing NACC investigation or inquiry due to a transition determination (see item 3 of this Schedule), the information or contents are taken to be clause 235 certified information under the NACC Bill.

14.375 This item is appropriate to ensure that controls on the further disclosure or publication of sensitive information remain in place as ACLEI transitions to the NACC, and to effectively protect sensitive information and prevent any prejudicial consequences that may arise from its disclosure.

Part 8-Reporting

Item 38-Transitional-reports on corruption investigations

14.376 This item would provide for the transition of reporting obligations from the Integrity Commissioner to the Commissioner in relation to corruption investigations conducted by the Integrity Commissioner under the LEIC Act.

14.377 The effect of this item would be that if, before the transition time (as defined in item 1 of this Schedule), the Integrity Commissioner has completed an investigation of a corruption issue, but has not yet prepared a report on the investigation under subsection 54(1) of the LEIC Act, the Commissioner would be required to prepare the report in accordance with the LEIC Act.

14.378 This clause is appropriate to ensure that the transparency of investigations conducted by the Integrity Commissioner is maintained by requiring the findings, evidence, action taken or proposed to be taken, recommendations and reasons for those recommendations in relation to a corruption investigation are reported on.

14.379 It is also appropriate to ensure that the report is prepared under the same Act under which the investigation was conducted.

Item 39-Transitional-reports on public inquiries

14.380 This item would provide for the transition of reporting obligations from the Integrity Commissioner to the Commissioner in relation to public inquiries conducted by the Integrity Commissioner under the LEIC Act.

14.381 The effect of this item would be that if, before the transition time (as defined in item 1 of this Schedule), the Integrity Commissioner has completed a public inquiry under Part 8 of the LEIC Act, but has not yet prepared a report on it under subsection 73(1) of the LEIC Act, the Commissioner would be required to prepare the report in accordance with the LEIC Act.

14.382 This clause is appropriate to ensure that the transparency of public inquiries conducted by the Integrity Commissioner is maintained by requiring the findings, evidence, action taken or proposed to be taken, recommendations and reasons for those recommendations in relation to the public inquiry are reported on. It is also appropriate to ensure that the report is prepared under the same Act under which the public inquiry was conducted.

Item 40-Transitional-annual reports for financial year ended before transition time

14.383 This item would provide for the transition of annual reporting obligations from the Integrity Commissioner to the Commissioner in circumstances where an annual report for a financial year ended has not been prepared by ACLEI when the transition time (as defined in item 1 of this Schedule) occurs. This is appropriate to ensure that the NACC meets annual reporting obligations under section 46 of the Public Governance, Performance and Accountability Act 2013 as ACLEI transitions to become part of the NACC.

14.384 Subitems 40(1) and 40(2) would require the Commissioner to prepare an annual report in accordance with section 201 of the LEIC Act if:

•

the transition time occurs after the end of a financial year; and

•

ACLEI had not prepared an annual report for the financial year before the transition time.

14.385 The Commissioner would be required to prepare the report as soon as reasonably practicable.

14.386 Subitem 40(3) would provide that the Parliamentary Joint Committee on the NACC may examine the annual report and report to Parliament on any matter contained in, or arising out of the report. This is appropriate given the Committee's role in overseeing the work of the NACC, and is consistent with the duties of the Parliamentary Joint Committee on ACLEI to examine annual reports prepared by the Integrity Commissioner under section 215 of the LEIC Act.

Item 41-Transitional-annual reports for financial year in which transition time occurs

14.387 This item would provide for the transition of annual reporting obligations from the Integrity Commissioner to the Commissioner in circumstances where the transition time (as defined in item 1 of this Schedule) occurs during a financial year.

14.388 The effect of this item would be that if the transition time occurs part way through a financial year, the Commissioner's first annual report would be required to cover:

•

the performance of the Commissioner's functions in accordance with clause 271 of the NACC Bill; and

•

matters relating to performance of ACLEI which would have been covered by an annual report under section 201 of the LEIC Act for the part of the financial year before the transition time occurred.

14.389 This item is appropriate to ensure that the NACC meets annual reporting obligations set out in section 46 of the Public Governance, Performance and Accountability Act 2013.

Item 42-Transitional-special reports not completed

14.390 This item would provide for the transition of reporting obligations from the Integrity Commissioner to the Commissioner in relation to special reports under section 204 of the LEIC Act.

14.391 The effect of subitems 42(1) and 42(2) would be that if, before the transition time (as defined in item 1 of this Schedule), the Integrity Commissioner had started preparing a special report under section 204 of the LEIC Act, but had not completed the report, the Commissioner may complete the report under the LEIC Act as if it had not been repealed. This is appropriate to ensure that procedural fairness requirements and restrictions on the disclosure of sensitive information in relation to special reports under the LEIC Act are maintained.

14.392 Subitem 42(3) would provide that if the Commissioner completes a special report, the Parliamentary Joint Committee on the NACC may examine the report and report to Parliament on any matter contained in, or arising out of the report. This is appropriate given the Committee's role in overseeing the work of the NACC, and is consistent with the duties of the Parliamentary Joint Committee on ACLEI to examine special reports prepared by the Integrity Commissioner under section 215 of the LEIC Act.

14.393 This item is appropriate to ensure that transparency in relation to the operations and performance of the Integrity Commissioner's functions and powers is maintained as ACLEI transitions to the NACC.

Item 43-Transitional-special reports not tabled

14.394 This item would provide for the transition of special reports that were provided to the Minister under section 204 of the LEIC Act before the transition time (as defined in item 1 of this Schedule), but were not tabled. This item is appropriate to ensure that special reports prepared under the LEIC Act are tabled in a timely manner. It is also important to maintain transparency in relation to the operations and performance of the Integrity Commissioner's functions and powers as ACLEI transitions to the NACC.

14.395 This item would apply where the Integrity Commissioner has prepared and provided a special report to the Minister under section 204 of the LEIC Act, but the Minister has not tabled that report before the transition time occurs. In such cases, the LEIC Act would continue to apply to the special report as if the LEIC Act had not been repealed.

Part 9-Staffing

Item 44-Transitional-current ACLEI staff

14.396 This item would provide for the transition of current ACLEI staff to the NACC. The effect of subitems 44(1) and 44(2) would be that, after the transition time (as defined in item 1 of this Schedule), any current staff of ACLEI engaged under section 197 of the LEIC Act would be taken to be staff of the NACC under clause 262(1) of the NACC Bill on the same terms and conditions. Their conditions of employment would not change.

14.397 This means that provisions that apply to staff of the NACC, including those related to immunities, confidentiality obligations, NACC corruption issues and NACC complaints would apply to these individuals. They would be considered public officials under clause 10 of the NACC Bill, however, they would not be considered a staff member of a Commonwealth agency (subclause 12(5)). It would also engage some of the provisions relating to investigations under Part 7 of the NACC Bill, for example, enabling these individuals to receive information, documents or things under clause 57 or 58.

14.398 Subitem 44(3) would confirm that a person engaged under section 197 of the LEIC Act would not cease to be employed by reason of the LEIC's Act repeal.

14.399 While ACLEI staff would become NACC staff, any delegations made by the Integrity Commissioner to ACLEI staff under section 219 of the LEIC Act would be cancelled by the LEIC Act's repeal. New delegations would need to be made under the NACC Bill.

Item 45-Transitional-consultants to ACLEI

14.400 This item would provide that any current consultants to ACLEI engaged under section 198 of the LEIC Act, would, after the transition time (as defined in item 1 of this Schedule), be taken to be engaged as a consultant to the NACC under clause 263 of the NACC Bill on the same terms and conditions.

Item 46-Transitional-secondees to ACLEI

14.401 This item would provide that any current secondees whose services had been made available to ACLEI under section 199 of the LEIC Act, would, after the transition time (as defined in item 1 of this Schedule), continue as secondees to the NACC as if they had been engaged under clause 264 of the NACC Bill. Such secondees would continue under the same terms and conditions.

Item 47-Transitional-counsel assisting Integrity Commissioner

14.402 This item would provide that any person currently serving as counsel assisting the Integrity Commissioner appointed under section 200 of the LEIC Act, would, after the transition team (as defined in item 1 of this Schedule), be appointed as counsel assisting the National Anti-Corruption Commissioner under clause 265 of the NACC Bill on the same terms and conditions.

Item 48-Transitional-authorised officers of ACLEI

14.403 This item would provide that any person with a current authorisation under section 140 of the LEIC Act would be treated, after the transition time (as defined in item 1 of this Schedule), as if they had been appointed as an authorised officer under clause 267 of the NACC Bill.

14.404 Subitem 48(3) would provide that an identity card issued to the person under section 141 of the LEIC Act is taken, after the transition time, to be an identity card issued to the person under clause 268 of the NACC Bill.

Part 10-Miscellaneous transitional provisions

Item 49-Transitional-pending proceedings

14.405 This item would provide that if, immediately before the transition time (as defined in item 1 of this Schedule), the Integrity Commissioner appointed under the LEIC Act is a party to proceedings in any court or tribunal, the Commissioner appointed under the NACC Bill would be substituted as the relevant party to those proceedings.

Item 50-Transitional-judicial review

14.406 The effect of subitems 50(1) and 50(2) would be to clarify that a person who, immediately before the transition time (as defined in item 1 of this Schedule), was eligible to apply to a court for judicial review of a decision made under LEIC Act, would remain eligible to do so after the transition time.

Item 51-Transitional-transfers of records

14.407 This item would provide that any records or documents that were in the possession of the Integrity Commissioner, an Assistant Integrity Commissioner or ACLEI immediately before the transition time (as defined in item 1 of this Schedule), are to be transferred to the NACC after the transition time.

Item 52-Transitional-confidential information provided under old Act

14.408 This item would provide that any confidential information given to certain individuals under the LEIC Act prior to the transition time (as defined in item 1 of this Schedule), should, after the transition time, be taken to have been provided to the NACC.

14.409 The relevant individuals are listed at subitem 52(1) as follows:

•

the Integrity Commissioner;

•

a staff member of ACLEI; and

•

if the information was provided to a special investigator for the purposes of Division 2 of Part 12 of the LEIC Act-the special investigator.

Item 53-Transitional-references to the Integrity Commissioner etc. in instruments

14.410 This item would provide that if an instrument was in force immediately before the transition time (as defined in item 1 of this Schedule), and the instrument refers to the Integrity Commissioner, an Assistant Integrity Commissioner or ACLEI, the instrument will have effect after the transition time.

14.411 Subitem 53(2) would provide that the relevant instrument would have effect after the transition time with the following substitutions, as if:

•

a reference in the instrument to the Integrity Commissioner were a reference to the Commissioner;

•

a reference in the instrument to an Assistant Integrity Commissioner were a reference to a Deputy Commissioner; and

•

a reference in the instrument to ACLEI were a reference to the NACC.

14.412 Subitem 53(3) would clarify that the rules (see item 57 of this Schedule) could provide that the substitutions do not apply in relation to a specified instrument.

14.413 Subitem 53(4) would provide, for the avoidance of doubt, that item 53 does not prevent the relevant instrument from being amended or repealed after the transition time.

Part 11-Transitional application of certain provisions in new Act

Item 54-Application-protection for journalists' informants

14.414 This item would provide that clause 31 of the NACC Bill would apply in relation to information given by a journalist informant, irrespective of whether the information is given before, on, or after the commencement of clause 31.

14.415 The effect of this item is that if information is provided to the NACC as part of a corruption investigation, and the information was obtained by a journalist prior to the commencement of the NACC Bill, the journalist would not be required to disclose the identity of their informant. This is appropriate as the informant's identity should be protected irrespective of when they provided the relevant information to the journalist.

Item 55-Application-mandatory referrals

14.416 The effect of this item is that the mandatory referral obligations in Division 2 of Part 5 of the NACC Bill would not apply for a one-month period beginning at the transition time (as defined in item 1 of this Schedule).

14.417 This item would apply if, in the 28-day period beginning on the day the transition time occurs, a person becomes aware of a corruption issue and the person would, but for this item, be required to refer the corruption issue to the Commissioner or the IGIS under Division 2 of Part 5 of the NACC Bill.

14.418 Subitem 55(2) would provide that the person would not be required to refer the corruption issue until as soon as is reasonably practicable after the end of the period.

14.419 This is appropriate to allow a brief transition time for the NACC to establish its systems and processes for handling incoming referrals before it is necessary for mandatory referrals to be made.

Item 56-Application-appointment of first CEO

14.420 This item would provide that subclause 254(2) of the NACC Bill would not apply in relation to the appointment of the first CEO of the NACC.

14.421 The note to item 56 would clarify that the effect of this item is that the Commissioner is not required to approve the appointment of the first CEO.

14.422 This is appropriate to ensure that an appointment for the CEO position can occur immediately upon the NACC's establishment, rather than being delayed to allow for formal consultation to occur with the Commissioner, whose appointment would also only be able to commence upon the establishment of the NACC.

14.423 It is expected that consultation with the Commissioner-designate for the appointment of the first CEO would occur administratively.

Part 12-Transitional rules

Item 57-Transitional rules

14.424 Subitems 57(1) would permit the Minister to make rules prescribing further transitional arrangements that are required or permitted by the Consequential Bill, or necessary or convenient for carrying out or giving effect to the Consequential Bill. The Minister would be able to make such rules by legislative instrument.

14.425 Subitem 57(2) would allow the Minister to make rules prescribing transitional arrangements that relate to the enactment of the NACC Bill or provisions of the Consequential Bill which amend or repeal other legislation.

14.426 Subitem 57(3) would place limitations on the rules that may be made under subitem 57(1). Relevantly, it would provide that the Minister is not authorised to make rules that:

•

create an offence or civil penalty;

•

provide powers of arrest or detention or powers of entry, search or seizure;

•

impose a tax;

•

set an amount to be appropriated from the Consolidated Revenue Fund; and

•

directly amend the text of the Consequential Bill or the NACC Bill.

14.427 These limitations are appropriate as these matters would be more appropriately dealt with in primary legislation.

14.428 Subitem 57(4) would clarify that nothing in Schedule 2 of the Consequential Bill would limit the Minister's ability to make rules prescribing transitional arrangements, other than the limitations set out in subclause 57(4) outlined above.