Senate

Revised Explanatory Memorandum

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

National Anti-Corruption Commission Bill 2022 - PART 1 PRELIMINARY

1.1 This Part deals with a number of preliminary matters, including the commencement and general application of the NACC Bill, the objects of the NACC Bill and the definitions.

Clause 1-Short title

1.2 This clause provides for the short title of the Act to be enacted by the NACC Bill to be the National Anti-Corruption Commission Act 2022.

Clause 2-Commencement

1.3 This clause would provide for the commencement of each provision in the NACC Bill.

1.4 The NACC Bill would generally commence on a single day to be fixed by Proclamation. However, provisions for the establishment of the Committee (Division 1 of Part 10) would commence on the day following Royal Assent. This is necessary to ensure the Committee can review and approve candidates for the positions of Commissioner, Deputy Commissioners and the Inspector in advance of the NACC being established (see clause 178).

1.5 It is not necessary to commence provisions relating to the appointment of the Commissioners (Division 1 of Part 12) or the Inspector (Division 2 of Part 10) to facilitate the Committee approval process or, following the Committee's approval, the appointment of the office-holders (see section 4 of the Acts Interpretation Act 1901). Appointments made prior to the day fixed by proclamation would commence on that day.

1.6 The Government intends for the remaining provisions of the NACC Bill to commence by proclamation in mid-2023 and for the NACC to be operational from that time.

1.7 If a provision of the NACC Bill does not commence within the 12-month period beginning on the day on which the NACC Bill receives Royal Assent, it would commence on the day after the end of that period. 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.

1.8 Part 1, including this clause, would commence on the day the NACC Bill receives Royal Assent. This is a formality and would not enable any substantial operation of the NACC Bill.

Clause 3-Objects of this Act

1.9 This clause would outline the objects of the NACC Bill. As section 15AA of the Acts Interpretation Act 1901 provides that statutes should be interpreted in accordance with their objects, all the other provisions of the NACC Bill are to be read, as far as is possible, as being designed to carry out these objects.

Investigating serious or systemic corrupt conduct

1.10 The NACC Bill would facilitate the detection of corrupt conduct and the timely investigation of corruption issues that could involve corrupt conduct that is serious or systemic.

1.11 The NACC would be a specialised investigative body tasked specifically with investigating allegations of serious or systemic corrupt conduct.

1.12 Corrupt conduct may constitute criminal conduct. The NACC and the Inspector would be able to investigate corrupt conduct that may constitute an offence, including as a law enforcement investigation with the primary purpose of gathering evidence to support the prosecution of any offence that is substantiated.

1.13 Corrupt conduct may also involve serious conduct that is incompatible with a public official's position but that is not addressed by the criminal law. In these circumstances, the Commissioner could still exercise most of their powers to investigate the issue but the investigation and any consequences flowing from it would be of an administrative character.

Timeliness of investigations

1.14 The Government expects the NACC to conduct investigations in a timely manner and produce its reports in a timely manner. The timeliness of these processes is an important reputational safeguard and ensures allegations of corruption do not weigh on a person for an excessive length of time. What constitutes the 'timely' investigation of a particular corruption issue will depend on the scale and complexity of the issue, and all of the circumstances of a case. As such, it would be inappropriate for the NACC Bill to direct the Commissioner towards any particular timeframe for investigations. The question of whether an investigation would be capable of being 'timely' would, however, be a relevant consideration for the Commissioner or Inspector when considering whether to commence or continue a corruption investigation.

1.15 This object is not intended to weigh against the investigation of past corruption issues, provided that the investigation is conducted in a timely fashion after the corruption issue comes to the Commissioner or Inspector's attention.

1.16 The importance of the timeliness of investigations is also reflected in the design of the Commissioner and Inspector's powers, and the obligations imposed on Commonwealth agencies and other persons under the NACC Bill, including through:

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requirements for agency heads and persons with responsibilities under the PID Act to refer corruption issues that they suspect may involve corrupt conduct, as soon as is reasonably practicable after becoming aware of the issue, and to include with the referral all information relevant to the issue that is in their possession or control;

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broad discretions for the Commissioner and Inspector to deal with corruption issues, supported by powers to conduct preliminary investigations to confirm the existence or nature of a corruption issue, or assist them to decide whether or how to deal with the issue in a timely fashion;

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powers for the Commissioner and Inspector to obtain information and documents from Commonwealth agencies with a minimum of formality, as well as a broader suite of investigative powers-including, in particular, powers to require the production of information or documents within a specified timeframe, or a person's attendance at a hearing at a particular time; and

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a reporting process that facilitates the timely finalisation and provision of reports, subject to procedural fairness requirements.

Enabling referral for prosecution, civil proceedings or disciplinary action

1.17 The NACC Bill would enable, after investigation of a corruption issue, the referral of persons for criminal prosecution, civil proceedings or disciplinary action. The NACC would be an investigative rather than a judicial body. If, during the course of a corruption investigation or public inquiry, the Commissioner uncovers evidence of criminal conduct-whether that conduct is also corrupt conduct or not-the Commissioner could refer that evidence to prosecuting authorities for criminal prosecution before a court, or to a relevant police force for further investigation. Only a court would be able to make a finding of criminal guilt or impose punishments on an offender.

1.18 Given the broad scope of corrupt conduct within the NACC's jurisdiction, evidence obtained during an investigation or inquiry may not support a criminal prosecution. However, evidence could also be provided to other Commonwealth agencies responsible for commencing civil proceedings or taking disciplinary action against a person. For example, evidence could be referred to a regulator empowered to seek a civil penalty or evidence could be referred to a person's employing agency for appropriate disciplinary action, including the termination of the person's employment.

Preventing corrupt conduct

1.19 The NACC Bill supports the prevention of corruption in a number of ways, including by giving the NACC education and prevention functions.

1.20 By enabling the publication of investigation reports in the public interest, the NACC Bill would enable the public exposure of corrupt conduct in appropriate circumstances. The NACC Bill would also enable the Commissioner to conduct public inquiries into corruption risks and vulnerabilities in the Commonwealth, and measures to prevent corruption in Commonwealth agencies. The Commissioner may invite public submissions and hold public hearings in relation to such inquiries.

1.21 In the course of performing their functions, the Commissioner will obtain valuable information and insights into corruption risks, vulnerabilities and trends, of both a general and specific nature. In addition to using such information for the purpose of corruption investigations, the Commissioner would be able to use this information to provide education and information about corruption, and the detrimental effects of corruption on public administration and the Australian community. Such education and information may be provided to other Commonwealth agencies, as well as more broadly-including to State or Territory government entities, and to the public at large. Providing this education and information would be a function of the Commissioner (see paragraph 17(h)). The Commissioner would also be able to use such information in the performance of their functions of:

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collecting, correlating, analysing and disseminating general information and intelligence about corrupt conduct (see paragraph 17(i)); and

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reporting, and making recommendations, to the Minister concerning the need for, or desirability of, legislative or administrative reform in relation to any matters dealt with by the NACC Bill (see paragraph 17(j)).

Clause 4-Simplified outline of this Act

1.22 This clause would provide a simplified outline of the NACC Bill, including the framework it would create for the Commissioner and the NACC to deal with corruption issues.

1.23 The simplified outline would be included to assist readers to understand the substantive provisions of the NACC Bill. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the NACC Bill.

Clause 5-Application of this Act

1.24 This clause would provide that the NACC Bill applies both within and outside Australia, and to the external territories.

1.25 By providing the Commissioner with jurisdiction within and outside Australia and in every external Territory, the Commissioner would be able to investigate the conduct of public officials located overseas (for example, when travelling or living overseas on posting) and, in limited circumstances, conduct hearings overseas (see also clause 79).

Clause 6-Crown to be bound

1.26 This clause would provide that the NACC Bill will bind Crown in each of its capacities. This reflects the fact that government entities and public officials would be subject to obligations under the NACC Bill. For example, State or Territory government entities may receive information from the NACC or during the course of a joint investigation to which a confidentiality direction or requirement applies (see clauses 100 and 233 respectively).

1.27 This clause would also provide that the Crown would not be liable to a pecuniary penalty or to be prosecuted for an offence under the NACC Bill.

Clause 7-Definitions

1.28 This clause would set out the Dictionary for the NACC Bill and define the following terms.

1.29 Accountable authority has the same meaning as in the PGPA Act. The accountable authority of a Commonwealth entity is responsible for the entity for the purposes of the finance law, including the PGPA Act. Accountable authorities include the secretaries of Departments of State and Parliamentary Departments, the heads of certain statutory authorities and the boards of corporate Commonwealth entities. The accountable authority of many Commonwealth agencies will be the head of the agency for the purposes of the NACC Bill.

1.30 AFP means the Australian Federal Police. The Commissioner may work with the AFP and AFP members to conduct corruption investigations. The AFP is also a Commonwealth agency subject to the NACC's jurisdiction and a Commonwealth integrity agency.

1.31 AFP Commissioner means the Commissioner of Police appointed under the AFP Act. The AFP Commissioner is the head of the AFP.

1.32 Annual report is defined in subclauses 198(1) and 271(1). The Commissioner and the Inspector would be required to report on the performance of their functions during each financial year.

1.33 Agency head is defined in clause 11. The head of an agency would generally be responsible for referring corruption issues arising within their agency to the Commissioner (see clause 33).

1.34 Australia, when used in a geographical sense, includes the external Territories.

1.35 The Australian Geospatial-Intelligence Organisation forms part of the Department of Defence but would be treated as a separate Commonwealth agency for the purposes of the NACC Bill. The Australian Geospatial-Intelligence Organisation would be an intelligence agency, reflecting the nature of its work. Appropriate arrangements would be in place for intelligence agencies, for example to protect sensitive information dealt with by the Australian Geospatial-Intelligence Organisation.

1.36 Australian travel document means an Australian passport or a travel-related document issued under the Australian Passports Act 2005. Under clause 88, the Commissioner may apply for a court order that a witness deliver an Australian travel document or a foreign equivalent to prevent the witness from leaving the country.

1.37 Authorised discloser is defined in clause 227 to include the Commissioner and the Inspector. The confidentiality requirements in Part 11 permit authorised disclosers to disclose information obtained by the NACC and the Inspector in specific circumstances.

1.38 Authorised officer means:

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the Commissioner;

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a Deputy Commissioner; or

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a person appointed as an authorised officer by the Commissioner under clause 267.

1.39 Authorised officers would be able to exercise certain investigative powers on behalf of the NACC, for example, applying for and executing search warrants.

1.40 CEO means the Chief Executive Officer of the NACC, a position established by clause 251.

1.41 Civil penalty proceeding means a proceeding for a civil penalty in relation to a contravention of a law of the Commonwealth or of a State or Territory.

1.42 Commissioner means the National Anti-Corruption Commissioner established by clause 16.

1.43 Committee means the Parliamentary Joint Committee on the National Anti-Corruption Commission (see Division 1 of Part 10). The Committee would oversee the NACC.

1.44 Commonwealth agency is defined in clause 11. Staff members of Commonwealth agencies (see clause 12) would be public officials subject to the NACC's jurisdiction.

1.45 Commonwealth company has the same meaning as in the PGPA Act. A Commonwealth company is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001 that the Commonwealth controls directly (see section 89 of the PGPA Act). Staff members of Commonwealth companies are public officials subject to the NACC's jurisdiction. For example, NBN Co Limited is a Commonwealth company.

1.46 Commonwealth contract is defined in clause 13. A person providing goods or services for a Commonwealth contract may be a contracted service provider or a staff member of a Commonwealth agency.

1.47 Commonwealth entity has the same meaning as in the PGPA Act. In section 10 of that Act, a Commonwealth entity is:

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a Department of State;

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a Parliamentary Department established under the Parliamentary Service Act 1999, for example the Department of Parliamentary Services;

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a listed entity, as prescribed by an Act or Schedule 1 to the PGPA Rule, for example the ATO or the AFP;

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a body corporate that is established by a law of the Commonwealth, for example the Commonwealth Scientific and Industrial Research Organisation; or

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a body corporate that is established under a law of the Commonwealth (other than a Commonwealth company) and is prescribed by an Act or the PGPA Rule to be a Commonwealth entity, for example Land Councils listed in section 7A of the PGPA Rule.

1.48 The High Court and the Future Fund Board of Guardians are not Commonwealth entities. Staff members of the High Court-excluding the Justices of the Court-and members of the Future Fund Board of Guardians are still public officials subject to the NACC's jurisdiction (see paragraphs 2.101 to 2.103).

1.49 Commonwealth integrity agencies are listed in clause 15. The Commissioner may only investigate a corruption issue that a Commonwealth integrity agency has previously investigated if the new investigation is in the public interest (see clause 45).

1.50 Confiscation proceeding is defined in clause 136 to mean a proceeding under the POC Act and equivalent State and Territory legislation. Different rules would apply to the collection, use and disclosure of investigation material that relates to a relevant confiscation proceeding that is on foot (see for example clause 58).

1.51 Completion report means a report prepared by a Commonwealth agency on the completion of an investigation of a corruption issue that was referred to the agency by the Commissioner (see clause 52).

1.52 Constable means:

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a member or special member of the AFP; or

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a member of the police force or police service of a State or Territory.

1.53 The Commissioner would be able direct a constable or an authorised officer to detain a person the Commissioner considers is in contempt of the NACC (see clause 85).

1.54 A container includes:

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a trailer or other like receptacle, whether with or without wheels, that is used for the movement of goods from one place to another, including a shipping container;

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any baggage; and

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any other thing that is or could be used for the carriage of goods, whether or not designed for that purpose.

1.55 A container is included in the definition of premises (see paragraph 1.134) and may be the subject of a search warrant.

1.56 Contract includes any arrangement, agreement, deed or understanding. This extended definition would mean a person may be a contracted service provider even if the person provides services to the Commonwealth without consideration. However, the definition is not intended to cover pre-contractual activities that do not amount to a settled arrangement, agreement, deed or understanding.

1.57 Contracted service provider is defined in clause 13. A provider, or an employee or officer of a provider, may be a staff member of the Commonwealth agency administering the relevant Commonwealth contract.

1.58 Contravene, in relation to a certificate issued under clause 235 or 236, is defined in those clauses. A disclosure would contravene a certificate if the disclosure would be contrary to the public interest according to the terms of the certificate.

1.59 A conveyance includes an aircraft, vehicle or vessel. A conveyance is included in the definition of premises (see paragraph 1.134) and may be the subject of a search warrant.

1.60 Corrupt conduct is defined in clause 8. The existence of a corruption issue (see clause 9) concerning alleged corrupt conduct forms the basis for the NACC's jurisdiction. However, the Commissioner would only be able to investigate a corruption issue if the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

1.61 Corporate commonwealth entity has the same meaning as in the PGPA Act. A corporate Commonwealth entity is a Commonwealth entity that is a body corporate (see paragraph 11(a) of the PGPA Act), for example the Commonwealth Scientific and Industrial Research Organisation. Staff members of corporate commonwealth entities are public officials subject to the NACC's jurisdiction.

1.62 Corruption investigation is defined in clause 41 to mean an investigation of a corruption issue by the Commissioner, including a joint investigation with a Commonwealth agency, or State or Territory Government entity. The Commissioner would only be able to investigate issues if the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

1.63 Corruption issue is defined in clause 9. The existence of a corruption issue concerning alleged corrupt conduct forms the basis for the NACC's jurisdiction. A corruption issue does not include a NACC corruption issue.

1.64 Criminal proceeding means a prosecution for an offence against a law of the Commonwealth or of a State or Territory.

1.65 Defence Department means the Department administered by the Minister administering Part III of the Defence Act 1903.

1.66 The Defence Intelligence Organisation forms part of the Department of Defence but would be treated as a separate Commonwealth agency for the purposes of the NACC Bill. The Defence Intelligence Organisation would be an intelligence agency, reflecting the nature of its work. Appropriate arrangements would be in place for intelligence agencies, for example to protect sensitive information dealt with by the Defence Intelligence Organisation.

1.67 Deputy Commissioner means a National Anti-Corruption Deputy Commissioner, a position established under clause 18.

1.68 Derivative material is defined in clause 133 to mean any evidence, information, document or thing obtained directly or indirectly from investigation material (defined in clause 99).

1.69 Detriment is defined in clause 29. The term has its ordinary meaning and includes disadvantage with respect to a person's employment, including the termination or an alteration of the person's position to their detriment (see paragraph 4.50).

1.70 Direction to produce means a direction issued by the Commissioner to the head of a Commonwealth agency requiring the agency head to produce information, documents or things for the purposes of a corruption investigation (see clause 57).

1.71 Entrusted person is defined in clause 227 to mean staff members of the NACC, the Inspector and a person assisting the Inspector. Entrusted persons are subject to the confidentiality requirements in Part 11.

1.72 Exempt secrecy provision means:

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Part 11 (secrecy and access) of the AML/CTF Act;

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section 34 of the IGIS Act (concerning the secrecy of information held by the IGIS and their staff);

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a secrecy provision (see paragraph 1.150) under the My Health Records Act 2012;

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a secrecy provision in Part VIIIA of the Privacy Act 1988 (concerning COVIDSafe app data);

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section 45 of the SD Act (a prohibition on use, recording, communication or publication of protected information or its admission in evidence);

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section 45B of the SD Act (a prohibition on use, recording, communication or publication of protected network activity warrant information or its admission in evidence);

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section 63 of the TIA Act (a prohibition on dealing in intercepted information or interception warrant information);

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section 133 of the TIA Act (a prohibition on dealing with accessed information); or

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a secrecy provision that is a provision of a taxation law, for example:

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a law of which the Commissioner of Taxation has general administration such as the provisions of Division 355 in Schedule 1 to the Taxation Administration Act 1953 (concerning the protection of information that was disclosed or obtained under or for the purposes of a taxation law); and

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section 70-35 of the Tax Agent Services Act 2009 (concerning the protection of official information that was disclosed or obtained under or for the purposes of that Act);

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a secrecy provision that is expressed to apply despite the NACC Bill; and

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anything done under an exempt secrecy provision.

1.73 An exempt secrecy provision would not be overridden by the NACC Bill. This means a person may not need to provide certain information to the Commissioner or another person for the purposes of the NACC Bill. For example, the Commissioner cannot require a person to provide access to personal medical information protected under the My Health Records Act 2012. There is a compelling individual interest in preserving the privacy of this information, which is unlikely to be particularly relevant to a corruption investigation.

1.74 The distinguishing feature of other exempt secrecy provisions from secrecy provisions more generally (see paragraph 1.150) is that they provide a complete regime for the use and protection of information obtained under relevant Commonwealth law. The NACC Bill preserves the effect of these specific kinds of secrecy provisions by providing exceptions to general secrecy overrides. This does not mean that the Commissioner cannot obtain information subject to an exempt secrecy provision. Rather, the Commissioner must access that information in accordance with those provisions, including as amended by the Consequential Bill.

1.75 Federal Court means the Federal Court of Australia.

1.76 Finance law has the same meaning as in the PGPA Act and is the collective term for that Act, the rules and other instruments made under that Act, and the Appropriation Acts.

1.77 Foreign Affairs Department is defined in clause 240 to mean the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967. Under that clause, the Commissioner or Inspector would be required to consult the Foreign Affairs Department about matters concerning foreign officials and certain conduct of foreign nationals.

1.78 Head is defined as follows:

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in relation to a Commonwealth agency-head is defined in subclause 11(1);

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in relation to a State or Territory government entity-head means the person holding, or performing the duties of, the principal office in respect of the entity;

1.79 Hearing means a hearing held under the NACC Bill (see Division 3 of Part 7).

1.80 The IGIS is the Inspector-General of Intelligence and Security. The IGIS is the head of a Commonwealth agency-the Office of the Inspector-General of Intelligence and Security. The Office is a Commonwealth integrity agency. Further, the IGIS plays an important role in dealing with corruption issues concerning intelligence agencies (see, for example, clause 34).

1.81 IGIS official means the IGIS and staff assisting the IGIS under subsection 32(1) of the IGIS Act.

1.82 A charge for an offence, or a confiscation proceeding, is imminent in the circumstances set out in clause 132. An imminent charge or proceeding is treated in the same way as a charge or proceeding that is on foot. Additional requirements apply to the Commissioner's powers and the use and disclosure of investigation material when they relate to a charge or proceeding that is imminent or on foot.

1.83 Inquiry report means a report prepared following a public inquiry (see clause 164).

1.84 Inspector means the Inspector of the NACC, who is responsible for overseeing the NACC and is established by clause 182.

1.85 Inspector-General of Biosecurity means the person appointed under section 566A of the Biosecurity Act 2015.

1.86 Inspector-General of Live Animal Exports means the office established by section 9 of the Inspector-General of Live Animal Exports Act 2019.

1.87 Inspector-General of the Australian Defence Force means the office established by section 110B of the Defence Act 1903.

1.88 Inspector-General of Water Compliance means the office established by section 215B of the Water Act 2007.

1.89 The four Inspectors-General defined at paragraphs 1.85 to 1.88 above would be treated as independent Commonwealth agencies and as if they do not form part of the Department of Agriculture, Fisheries and Forestry, or the Department of Defence (see paragraphs 2.107 to 2.109). This reflects their independence from the Departments they oversee. The four Inspectors-General and their staff would be Commonwealth integrity agencies.

1.90 Intelligence agency means:

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the Australian Geospatial-Intelligence Organisation;

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ASIS;

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ASIO;

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the Australian Signals Directorate;

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the Defence Intelligence Organisation; or

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the Office of National Intelligence.

1.91 The NACC Bill would establish a number of arrangements for dealing with corruption issues that concern intelligence agencies. These arrangements would be designed to protect sensitive and intelligence information used by those agencies, while allowing corruption issues to be investigated.

1.92 Intelligence information is defined in clause 239. That clause provides for the Commissioner and the Inspector to enter into arrangements with intelligence agencies for obtaining, storing, accessing, using or disclosing intelligence information.

1.93 International relations has the meaning given by section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004: 'political, military and economic relations with foreign governments and international organisations'.

1.94 International relations certificate means a certificate issued by the Attorney-General under clause 236. These certificates may restrict the disclosure of information on the grounds that the disclosure would harm or prejudice Australia's international relations in relation to information that was communicated in confidence to Australia by a foreign government under an international agreement.

1.95 Investigation material is defined in clause 99. Restrictions apply to the use and disclosure of investigation material.

1.96 Investigation report means a report prepared following a corruption investigation (see clause 149).

1.97 Law enforcement agency means an authority or person responsible for the enforcement of the laws of the Commonwealth, or of a State or Territory. This would include the AFP, and the police force or police service of a State or Territory.

1.98 Law of the Commonwealth includes a law in force in an external Territory or the Jervis Bay Territory, so far as the law is in force because of an Act providing for the acceptance, administration or government of that Territory.

1.99 Legal aid officer is defined in clause 98 to mean a member, or member of staff, of an authority established by or under a law of a State or Territory for purposes that include providing legal assistance. The regulations would be able to prescribe additional legal aid officers in connection with legal financial assistance provided under the regulations (see paragraph 13.53).

1.100 Legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner, of the High Court or of the Supreme Court of a State or Territory.

1.101 Magistrate is defined in clause 112 to mean a magistrate who is remunerated by salary or otherwise, and includes a Judge, or acting Judge, of the Local Court of the Northern Territory. That clause permits the Commissioner to apply to a magistrate for the retention, forfeiture, disposal or destruction of a thing produced to the Commissioner if the thing is likely to be used in the commission of a serious offence.

1.102 Medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners. A medical practitioner would include a registered or licensed psychiatrist.

1.103 NACC means the National Anti-Corruption Commission, as established by clause 20.

1.104 NACC Act process means:

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a corruption investigation;

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a NACC complaint investigation;

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a NACC corruption investigation; or

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a public inquiry.

1.105 A NACC Act process does not include:

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an investigation conducted by a Commonwealth agency following a referral of a corruption issue by the Commissioner;

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an investigation of a NACC corruption issue by the Commissioner following a referral of the issue by the Inspector; or

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a preliminary investigation conducted by either the Commissioner or the Inspector.

1.106 NACC Commissioner means the Commissioner or a Deputy Commissioner.

1.107 NACC complaint investigation means an investigation by the Inspector of a complaint against the NACC (see clause 212).

1.108 NACC corruption investigation means an investigation of a NACC corruption issue conducted by the Inspector (see clause 210).

1.109 NACC corruption issue is defined in clause 201. The existence of a NACC corruption issue concerning alleged corrupt conduct with a connection to the NACC (for example because it concerns the conduct of a NACC staff member) forms the basis for the Inspector's jurisdiction. The Inspector would only be able to investigate NACC corruption issues if the Inspector is of the opinion that the issue could involve corrupt conduct that is serious or systemic. A NACC corruption issue is not also a corruption issue.

1.110 NACC disclosure is defined in clause 35 to include the provision of any evidence or information under the NACC Bill to the Commissioner, the IGIS or the Inspector. A person who makes a NACC disclosure receives certain protections, including immunities from liability and protections against reprisals.

1.111 NACC investigation report means a report prepared following a NACC corruption investigation (see clause 215).

1.112 Non-disclosure notation means a requirement attached to a notice to produce or a summons requiring a person not to disclose information about the notice or summons, or other official matters (see clause 81 and paragraph 1.115).

1.113 Notice to produce means a notice issued under clause 58 requiring a person to provide information, documents or things to the Commissioner.

1.114 Occupier of premises is defined in clause 268 to mean the person apparently in charge of the premises.

1.115 Official matter is defined in clause 81 to mean:

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a corruption investigation;

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any other investigation or inquiry under the NACC Bill; or

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court proceedings.

1.116 An official matter may be past, present or contingent. An official matter connected with a summons or notice to produce may be protected by a non-disclosure notation (see clause 95).

1.117 Official of a registered industrial organisation means a person who holds an office (within the meaning of the Fair Work Act 2009) in an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009. Despite holding an office and exercising functions under an Act, these officials are not statutory office holders or staff members of Commonwealth agencies for the purposes of the NACC Bill because their offices and functions are not public in nature. The offices relate to the relevant organisation or association. An official may be a public official for the purposes of the NACC Bill on another basis.

1.118 Paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise). Office holders appointed under the NACC Bill would be subject to restrictions on their ability to undertake other paid work.

1.119 Parliamentarian means:

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a senator;

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a member of the House of Representatives;

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a Minister of State (whether or not the Minister is a senator or a member of the House of Representatives);

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a person who is taken to be the President of the Senate under the Parliamentary Presiding Officers Act 1965 and who is not a senator or member of the House of Representatives;

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a person who is taken to be the Speaker of the House of Representatives under the Parliamentary Presiding Officers Act 1965 and who is not a senator or member of the House of Representatives; or

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any other person to whom remuneration is payable under section 49 of the Parliamentary Business Resources Act 2017.

1.120 The Parliamentary Presiding Officers Act 1965 provides for a person to be deemed the Speaker of the House of Representatives or President of the Senate during vacancies in those offices. For example, section 6 of that Act provides that the Presiding Officer of a House at the time the House is dissolved or expires is deemed to continue to be the Presiding Officer of that House until a new Presiding Officer is chosen. As the person remains able to exercise official powers and perform official functions despite not being a parliamentarian in the ordinary sense, they would be included in the definition to bring their conduct within the NACC's jurisdiction.

1.121 A parliamentarian recontesting an election remains a parliamentarian subject to the NACC's jurisdiction throughout the election period. Section 49 of the Parliamentary Business Resources Act 2017 provides that remuneration is payable to a parliamentarian following the dissolution of the relevant House of Parliament at least until the next election if the person recontests that election (if they are re-elected, their remuneration does not cease). During that time the person is not legally a senator or member of the House of Representatives. However, because the person continues to derive public resources and may influence public affairs using their former position, they would be included in the definition to bring their conduct within the NACC's jurisdiction.

1.122 A Minister of State need not be a senator or member of the House of Representatives for a three-month period, for example when the relevant House of Parliament is dissolved (section 64 of the Constitution). If a Minister was a member of a House of Parliament that is dissolved-and the Minister does not seek re-election to enliven section 49 of the Parliamentary Business Resources Act 2017-the Minister is still taken to be a parliamentarian and a public official while continuing to serve as a Minister.

1.123 A member or senator who is also a Minister is a parliamentarian and a public official with respect to both capacities. Their conduct in either capacity may be subject to the NACC's jurisdiction.

1.124 Parliamentary office means the office of a parliamentarian. Staff members of a parliamentarian are public officials subject to the NACC's jurisdiction.

1.125 A person is a permanent resident of Australia if the person is a permanent resident within the meaning of the Australian Citizenship Act 2007, which generally refers to a person who holds a permanent visa (see clause 240).

1.126 Person assisting the Inspector is defined in clause 195.

1.127 PGPA Act means the Public Governance, Performance and Accountability Act 2013.

1.128 An event is post-charge if it occurs at a time when a witness has been charged with a relevant offence and that charge is still to be resolved (or such a charge is imminent) (see clause 130).

1.129 An event is post-confiscation application if it occurs at a time when a relevant confiscation proceeding has commenced against a witness and that proceeding is still to be resolved (or such a proceeding is imminent) (see clause 135).

1.130 An event is pre-charge if it occurs when a witness has not been charged with a relevant offence (and no such charge is imminent) or all such charges have been resolved (see clause 129).

1.131 An event is pre-confiscation application if it occurs when a relevant confiscation proceeding has not been commenced (and no such proceeding is imminent) or all such proceedings have been resolved (see clause 134).

1.132 For the four definitions outlined above, the events are:

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a notice to produce is issued to the person;

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a summons is issued for the person to attend a hearing as a witness;

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a hearing commences at which the person is to appear as a witness;

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material at a hearing that relates to the person becomes investigation material; or

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such investigation material or derivative material is used or disclosed.

1.133 Additional rules apply to those events if they occur in post-charge or post-confiscation application circumstances. This reflects the fact that those events are more likely to affect a person's trial for a relevant offence, or relevant confiscation proceedings, in those circumstances.

1.134 Premises includes a place, a container or a conveyance (see paragraphs 1.54 and 1.59). This term is used in the context of search warrants issued under the NACC Bill.

1.135 Private hearing summons means a summons to attend a hearing all or part of which is to be held in private (see clause 95).

1.136 A proceeds of crime authority is defined in clause 138 to mean:

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a proceeds of crime authority within the meaning of the POC Act, being the AFP Commissioner or the Director of Public Prosecutions; or

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an authority of a State or Territory responsible for conducting a confiscation proceeding under a corresponding State or Territory law prescribed in the regulations made under that Act.

1.137 This term is relevant to the use and disclosure of investigation material (see clause 109).

1.138 A prosecuting authority is defined in clause 105 to mean an individual or authority, authorised by or under a law of the Commonwealth or of a State or Territory to prosecute an offence. The term is intended to include the CDPP and their State and Territory counterparts. It is also intended to extend to other bodies that may have prosecutorial functions, such as State or Territory police.

1.139 A prosecutor of a witness is defined in clause 105 to mean an individual who is a prosecuting authority or is employed or engaged by a prosecuting authority and who:

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makes, or is involved in the making of, a decision whether to prosecute the witness for a relevant offence; or

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is one of the individuals engaging in such a prosecution of the witness.

1.140 The definition is intended to cover only the persons who are directly involved in the prosecution of a witness for a relevant offence or the decision about whether to prosecute the witness. This would include:

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the Director of Public Prosecutions;

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the prosecutors who have carriage of the prosecution of the witness, other prosecutors who assist that prosecutor in the prosecution of the witness or who assist in making the decision to prosecute the witness;

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counsel engaged to assist in the prosecution of the witness; and

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support staff who assist in the prosecution of the witness.

1.141 The definition is not intended to cover the following:

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police or law enforcement officers involved in the investigation which led to the witness being charged;

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police or law enforcement officers who are witnesses in a prosecution of the witness for a relevant offence;

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persons involved in the prosecution of the witness for unrelated offences (whether that prosecution is by the same prosecuting authority or another prosecuting authority);

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persons involved in the prosecution only of persons other than the witness.

1.142 Protected information report means a report of an investigation or inquiry containing sensitive information or section 235 certified information. Protected information reports are disseminated on a limited basis. The unauthorised disclosure of a protected information report would be an offence against clause 234.

1.143 Protected suspect is defined in clause 132 by reference to Part IC of the Crimes Act 1914, and generally means a person being questioned about a Commonwealth, State or Territory offence that has not been arrested for the offence. If a person is a protected suspect, it indicates a charge against them is imminent (see paragraph 1.82).

1.144 Psychologist means a person registered or licensed as a psychologist under a law of a State or Territory that provides for the registration or licensing of psychologists.

1.145 Public inquiry means a public inquiry conducted under Part 9.

1.146 Public official is defined in clause 10. Public officials are subject to the NACC's jurisdiction.

1.147 Relevant confiscation proceedings are defined in clause 137. The existence of confiscation proceedings relevant to an event (or the imminence of such proceedings) will make the event a post-confiscation application event and additional restrictions will apply to the event.

1.148 Relevant offence is defined in clause 131. The existence of a charge for an offence relevant to an event (or the imminence of such a charge) will make the event a post-charge event and additional restrictions will apply to the event.

1.149 A charge for an offence, or a confiscation proceeding, is resolved in relation to a person, as set out in clause 139 by reference to the relevant proceedings and any appeal proceedings. An event will not be a post-charge event if all charges for relevant offences have been resolved (and no new charges are imminent).

1.150 A secrecy provision is a provision of a law of the Commonwealth (or anything done under such a provision) that purports to prohibit:

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the use of information, or a document or thing;

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dealing with information, or a document or thing;

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making a record of information, or a copy of a document or thing;

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the disclosure or publication of information;

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the production of, or the publication of the contents of, a document;

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the production of a thing; or

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access to information, a document or thing.

1.151 Provisions of the NACC Bill override secrecy provisions (other than exempt secrecy provisions: see paragraph 1.72). This is the case regardless of whether the secrecy provision:

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commenced before the commencement of the NACC Bill; or

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is expressed to apply despite any other law.

1.152 The Commissioner's information-gathering powers would not be limited by the provisions of any other law unless that law is an exempt secrecy provision. This would include a law that expressly excludes the Commissioner's power to obtain information or expressly excludes the operation of the Act to be enacted by the NACC Bill. This requirement is to ensure that Parliament is expressly alerted to any restrictions that might be sought in the future that would limit the Commissioner's capacity to carry out their statutory functions including the investigation of corruption issues that, in the Commissioner's opinion, could involve corrupt conduct that is serious or systemic. That is, it is not intended that laws that contain merely general or blanket privacy provisions, restricting access to information other than to specified persons, should apply to the Commissioner. This approach reflects the approach to the relationship between the Auditor-General Act 1997 and other laws.

1.153 The definition of secrecy provision does not need to apply to State and Territory laws because those laws would not operate to displace a power to obtain-or an obligation to provide-information, documents or things under a Commonwealth law such as the Act to be enacted by the NACC Bill.

1.154 Section 235 certified information means information that is about a matter or contained in a document specified in a certificate in force under clause 235. Section 235 certificates are issued by the Attorney-General to protect against the disclosure of information or documents that would be contrary to the public interest.

1.155 Security matters are defined in clause 237. The Commissioner or Inspector must generally consult with the head of ASIO under that clause if they become aware of a security matter.

1.156 Sensitive information is defined in clause 227. There are restrictions on the disclosure of sensitive information throughout the NACC Bill.

1.157 Serious offence is defined in clause 112. That clause permits the Commissioner to apply to a magistrate for the retention, forfeiture, disposal or destruction of a thing produced to the Commissioner if the thing is likely to be used in the commission of a serious offence.

1.158 A staff member of a Commonwealth agency is defined in clause 12. Staff members of Commonwealth agencies are public officials subject to the NACC's jurisdiction.

1.159 A staff member of the NACC is defined in clause 266.

1.160 State or Territory government entity means:

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a department of a State or Territory; or

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a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory.

1.161 Statutory office holder is defined in clause 14. Statutory office holders would be staff members of Commonwealth agencies and public officials within the NACC's jurisdiction.

1.162 Subsidiary has the same meaning as in the PGPA Act: an entity that is controlled by a corporate Commonwealth entity or Commonwealth company (see section 8 of the PGPA Act).

1.163 Summons means a summons issued under clause 63.

1.164 Superior court judge is defined in clause 90 to mean:

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a Judge of the Federal Court; or

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a Judge of the Supreme Court of a State or Territory.

1.165 Takes a reprisal is defined in clause 29. Taking a reprisal or threatening to take a reprisal against a person for making a NACC disclosure is an offence against clause 30.

1.166 Travel document is defined in clause 88 to mean an Australian travel document or a passport or travel document issued by a foreign country. The Commissioner may apply to a Judge of the Federal Court under that clause for an order that a person surrender a travel document in certain circumstances.

1.167 Witness generally means a person who is required to comply with a notice to produce or a summons, or who gives evidence at a hearing.

1.168 Witness also has a specific meaning in relation to investigation material and derivative material that is provided for in clause 99. There, a witness is a person referenced in the definition of investigation material, which would include a person who complies with a notice to produce or who gives evidence during the course of a hearing, a person about whom allegations have been raised, or a person of interest to an investigation or inquiry.

1.169 However, there would be no witness for investigation material that consists of the fact that a private hearing has been or may be held.