This appendix contains extracts of clauses from the bills for ease of reference.
When referred to the Committee on 28 September 2022, the bills had been introduced into the House of Representatives and read for the first time.
The extracts below reflect the form of the bills on 28 September 2022.
National Anti-Corruption Commission Bill 2022
3 – Objects of this Act
The objects of this Act include the following:
(a)to facilitate:
(i)the detection of corrupt conduct; and
(ii)the timely investigation of corruption issues that could involve corrupt conduct that is serious or systemic;
(b)to enable, after investigation of a corruption issue, the referral of persons for criminal prosecution, civil proceedings or disciplinary action;
(c)to prevent corrupt conduct;
(d)to educate and provide information about corruption and the detrimental effects of corruption on public administration and the Australian community.
8 – Meaning of corrupt conduct
(1)Each of the following is corrupt conduct:
(a)any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly:
(i)the honest or impartial exercise of any public official’s powers as a public official; or
(ii)the honest or impartial performance of any public official’s functions or duties as a public official;
(b)any conduct of a public official that constitutes or involves a breach of public trust;
(c)any conduct of a public official that constitutes, involves or is engaged in for the purpose of abuse of the person’s office as a public official;
(d)any conduct of a public official, or former public official, that constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official;
(e)any conduct of a public official in that capacity that constitutes, involves or is engaged in for the purpose of corruption of any other kind.
(2)However, paragraph (1)(a) does not apply in relation to conduct of the following:
(a)the Governor General;
(b)a Deputy Governor General;
(c)a Justice of the High Court or a judge of a court created by the Parliament;
(d)a judge of a court of a State or Territory;
(e)a member of a Royal Commission;
(f)the Inspector, or a person assisting the Inspector.
(3)To avoid doubt, paragraph (1)(a) covers a public official’s own conduct, if it has, or could have, the specified adverse effects in relation to the public official’s powers, functions or duties.
Conduct before commencement
(4)Conduct may be corrupt conduct even though it occurred before the commencement of this section.
(5)Conduct involving a public official may be corrupt conduct even though the person was no longer a public official when this section commenced.
Judicial powers, functions and duties
(6)Corrupt conduct does not include conduct engaged in by a staff member of the High Court or of a court created by the Parliament to exercise a power, or perform a function or duty, of a judicial nature.
(7)Conduct is not corrupt conduct under paragraph (1)(a) to the extent that it affects the exercise of a power, or the performance of a function or duty, of a judicial nature by a public official who is a staff member of the High Court or of a court created by the Parliament.
Note:A Justice of the High Court or a judge of a court created by the Parliament is not a staff member of a Commonwealth agency: see paragraph 12(5)(d).
Conduct need not be for personal benefit
(8)Conduct involving a public official may be corrupt conduct even if the conduct is not for the person’s personal benefit.
Conduct alone or with others
(9)A person may engage in corrupt conduct alone, or with the agreement or participation of other persons (whether or not those other persons are public officials).
Conduct amounting to conspiracy or attempt
(10)Conduct comprising conspiracy or an attempt to commit or engage in conduct covered by subsection (1) is itself corrupt conduct.
Conducting parliamentary business using public resources
(11)To avoid doubt, the use by a parliamentarian, or a staff member of a Commonwealth agency, of public resources to conduct parliamentary business in accordance with the following does not constitute corrupt conduct:
(a)the Parliamentary Business Resources Act 2017;
(b)the Members of Parliament (Staff) Act 1984.
(12)Terms used in subsection (11) that are defined in the Parliamentary Business Resources Act 2017 have the same meaning in that subsection as they do in that Act.
Political activities
(13)To avoid doubt, conduct engaged in as part of a political activity does not constitute corrupt conduct if the conduct does not involve or affect either of the following:
(a)the exercise of a power, or the performance of a function or duty, by a public official;
(b)the use of public resources (within the meaning of the PGPA Act).
9 – Meaning of corruption issue
(1)A corruption issue is an issue of whether a person:
(a)has engaged in corrupt conduct; or
(b)is engaging in corrupt conduct; or
(c)will engage in corrupt conduct.
(2)A NACC corruption issue is not a corruption issue.
Note:See section 201 for the definition of a NACC corruption issue.
17 – Functions of the Commissioner
The Commissioner has the following functions:
(a)to detect corrupt conduct;
(b)to conduct preliminary investigations into corruption issues or possible corruption issues;
(c)to conduct corruption investigations into corruption issues that could involve corrupt conduct that is serious or systemic;
(d)to report on corruption investigations and public inquiries;
(e)to refer corruption issues to Commonwealth agencies and State or Territory government entities;
(f)to oversee investigations into corruption issues conducted by Commonwealth agencies;
(g)to conduct public inquiries into:
(i)the risk of corrupt conduct occurring; and
(ii)measures directed at dealing with that risk and preventing that conduct;
(h)to provide education and information in relation to corrupt conduct and preventing that conduct;
(i)to collect, correlate, analyse and disseminate general information and intelligence about corrupt conduct;
(j)to report, and make recommendations, to the Minister concerning the need for, or desirability of, legislative or administrative reform in relation to any matters dealt with by this Act;
(k)to provide relevant information and documents to the Committee;
(l)to receive public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013) and to deal with those disclosures;
(m)any other functions conferred on the Commissioner by this Act or another Act;
(n)to do anything incidental or conducive to the performance of any of the above functions.
29 – What constitutes taking a reprisal
(1)A person (the first person) takes a reprisal against another person (the second person) if:
(a)the first person causes (by act or omission) any detriment to the second person; and
(b)when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a NACC disclosure; and
(c)that belief or suspicion is the reason, or part of the reason, for the act or omission.
(2)Detriment includes any disadvantage, including (without limitation) any of the following:
(a)dismissal of an employee;
(b)injury of an employee in their employment;
(c)alteration of an employee’s position to their detriment;
(d)discrimination between an employee and other employees of the same employer.
(3)Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment.
30 – Offences – taking a reprisal or threatening to take a reprisal
Offence—taking a reprisal
(1)A person commits an offence if the person takes a reprisal against another person.
Penalty:Imprisonment for 2 years.
(2)In a prosecution for an offence against subsection (1), it is not necessary to prove that the other person made, may have made or intended to make a NACC disclosure.
Offence—threatening to take a reprisal
(3)A person (the first person) commits an offence if:
(a)the first person makes a threat to another person (the second person) to take a reprisal against the second person or a third person; and
(b)the first person:
(i)intends the second person to fear that the threat will be carried out; or
(ii)is reckless as to the second person fearing that the threat will be carried out.
Penalty:Imprisonment for 2 years.
(4)For the purposes of subsection (3), the threat may be:
(a)express or implied; or
(b)conditional or unconditional.
(5)In a prosecution for an offence under subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
31 – Protection for journalists’ informants
Application
(1)This section applies if:
(a)a person (the informant) gives information, whether directly or indirectly:
(i)to another person who works in a professional capacity as a journalist; and
(ii)the information is given in the normal course of the journalist’s work as a journalist; and
(b)the journalist reasonably believes that the informant has provided the information on the express or implied understanding that the informant’s identity would not be disclosed.
Protection of informant’s identity
(2)Neither the journalist nor the journalist’s employer is required to do anything under this Act that would disclose the identity of the informant or enable that identity to be ascertained.
(3)If the journalist is a staff member of a Commonwealth agency, the reference in subsection (2) to the journalist’s employer is taken to include a reference to the head of the agency.
Search powers exception
(4)However, this section does not prevent an authorised officer from doing anything the authorised officer would otherwise be able to do in exercising powers under Part IAA of the Crimes Act 1914 for the purposes of this Act (see section 119 (search warrants, and stopping and searching conveyances)).
Note:A public interest test applies to the issue of search warrants involving journalists: see the modifications made by section 124 to the applied search powers of the Crimes Act 1914.
40 – Commissioner may deal with corruption issues
The Commissioner may deal with a corruption issue that:
(a)is referred to the Commissioner; or
(b)the Commissioner becomes aware of in any other way.
41 – How Commissioner deals with corruption issues
(1)The Commissioner may deal with a corruption issue in any one or more of the following ways:
(a)by investigating the corruption issue;
(b)by investigating the corruption issue jointly with a Commonwealth agency or a State or Territory government entity;
(c)by referring, for investigation, the corruption issue to a Commonwealth agency to which the corruption issue relates (if the Commissioner is satisfied that the agency has appropriate capabilities to investigate the issue);
(d)by referring, for consideration, the corruption issue to a Commonwealth agency or a State or Territory government entity.
(2)An investigation mentioned in paragraph (1)(a) or (b) is a corruption investigation.
Corruption investigation threshold—serious or systemic corrupt conduct
(3)The Commissioner may conduct, or continue to conduct, a corruption investigation only if the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.
General matters
(4)Corruption issues may be investigated together.
(5)The Commissioner may, at any time, reconsider whether or how to deal with a corruption issue.
Commissioner may decide to take no action
(6)The Commissioner may decide to take no action in relation to a corruption issue.
Commissioner under no duty to consider whether to deal with corruption issue
(7)The Commissioner does not have a duty to consider whether to deal with a corruption issue under this section, whether the Commissioner is requested to do so by the person who referred the issue or by any other person, or in any other circumstances.
58 – Notices to produce
(1)This section applies if the Commissioner has reasonable grounds to suspect that a person has information, or a document or thing, relevant to a corruption investigation.
(2)The Commissioner may, by notice in writing, require the person to give the information, document or thing to a specified staff member of the NACC.
Note:Disclosing the existence of a notice, or any information about it, may be prohibited: see Subdivision A of Division 4 (use and disclosure of certain information and material).
(3)The notice is a notice to produce.
(4)If the notice is a post charge or a post confiscation application notice, the Commissioner must also have reasonable grounds to suspect that the information, documents or things are necessary for the purposes of the investigation even though:
(a)the person has been charged or the confiscation proceeding has commenced; or
(b)that charge or proceeding is imminent.
(5)The notice:
(a)must:
(i)be served on the person; and
(ii)be signed by the Commissioner; and
(iii)specify the period within which, and the manner in which, the person must comply with the notice; and
(b)may require information be given in writing.
(6)The matters in relation to which the Commissioner may require the person to give the information, document or thing include:
(a)the subject matter of any charge, or imminent charge, against the person; and
(b)the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the person.
(7)The Commissioner may serve the notice without holding a hearing.
63 – Commissioner may summons persons
(1)If the Commissioner has reasonable grounds to suspect that a person has evidence relevant to a corruption investigation, the Commissioner may summon the person:
(a)to attend a hearing at a time and place specified in the summons to give evidence; and
(b)to attend from day to day unless excused, or released from further attendance, by the Commissioner.
Note:Disclosing the existence of a private hearing summons, or any information about it, may be prohibited: see Subdivision A of Division 4 (use and disclosure of certain information and material).
(2)If the Commissioner has reasonable grounds to suspect that a person has particular information, or a particular document or thing, relevant to the corruption investigation, the summons may also require the person to:
(a)give the Commissioner the information at the hearing; or
(b)produce the document or thing at the hearing.
(3)If the summons is a post charge or a post confiscation application summons, the Commissioner must also have reasonable grounds to suspect that the evidence, information, document or thing is necessary for the purposes of the investigation even though:
(a)the person has been charged or the confiscation proceeding has commenced; or
(b)that charge or proceeding is imminent.
(4)The summons must:
(a)be in writing and signed by the Commissioner; and
(b)be served on the person required to attend the hearing.
(5)The Commissioner must record in writing the reasons for the summons. The record must be made at or before the time the summons is issued.
(6)The matters in relation to which the Commissioner may summon a person to give evidence or information, or produce a document or thing, at a hearing include:
(a)the subject matter of any charge, or imminent charge, against the person; and
(b)the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the person.
(7)The Commissioner may vary the time or place specified in a summons. This subsection does not limit subsection 33(3) of the Acts Interpretation Act 1901.
73 – Private and public hearings
Hearings to be held generally in private
(1)A hearing must be held in private, unless the Commissioner decides to hold the hearing, or part of the hearing, in public.
When hearing may be held in public
(2)The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that:
(a)exceptional circumstances justify holding the hearing, or the part of the hearing, in public; and
(b)it is in the public interest to do so.
(3)In deciding whether to hold a hearing, or part of a hearing, in public, the Commissioner may have regard to the following:
(a)the extent to which the corruption issue could involve corrupt conduct that is serious or systemic;
(b)whether certain evidence is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence;
(c)any unfair prejudice to a person’s reputation, privacy, safety or wellbeing that would be likely to be caused if the hearing, or the part of the hearing, were to be held in public;
(d)whether a person giving evidence has a particular vulnerability, including that they are under the direct instruction or control of another person in a relative position of power;
(e)the benefits of exposing corrupt conduct to the public, and making the public aware of corrupt conduct.
(4)Subsection (3) does not limit the matters to which the Commissioner may have regard.
Public hearings—Commissioner’s statements about witnesses
(5)Before a witness gives evidence in public at a hearing, the Commissioner may, if the Commissioner thinks it appropriate, make a statement about one or more of the following:
(a)whether the witness appears voluntarily or in response to a summons to attend the hearing;
(b)whether or not conduct of the witness is the subject of the corruption investigation.
74 – Evidence that must be given in private
Evidence must be given in private if giving the evidence would:
(a)breach a secrecy provision; or
(b)disclose any of the following:
(i)legal advice given to a person;
(ii)a communication that is protected against disclosure by legal professional privilege;
(iii)information that the Commissioner is satisfied is sensitive information;
(iv)section 235 certified information;
(v)intelligence information.
98 – Offence – failure to comply with non-disclosure notations
(1)A person commits an offence if:
(a)a notice to produce or a private hearing summons includes a non disclosure notation; and
(b)the person discloses information about the notice or summons, or any official matter connected with the notice or summons; and
(c)the notation has not been cancelled.
Penalty:Imprisonment for 5 years.
(2)Strict liability applies to paragraph (1)(c).
(3)Subsection (1) does not apply if the disclosure is made:
(a)in the circumstances, if any, permitted by the notation; or
(b)to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the notice or summons; or
(c)to a legal aid officer for the purpose of seeking assistance in relation to:
(i)the notice or summons; or
(ii)any other matter arising under, or in relation to, this Act; or
(d)by a body corporate to an officer or agent of the body corporate, or by an officer or agent of a body corporate to another officer or agent of the body corporate, for the purpose of ensuring compliance with the notice or summons; or
(e)by a legal practitioner for the purpose of:
(i)obtaining the agreement of a person as mentioned in subsection 115(3) to the legal practitioner disclosing advice or a communication; or
(ii)giving legal advice to, or making representations on behalf of, the person on whom the notice or summons was served; or
(f)after the information has already been lawfully published.
Note:A defendant bears an evidential burden in relation to the matters in subsection (3): see subsection 13.3(3) of the Criminal Code.
(4)A reference in this section to disclosing information (the primary information) includes a reference to disclosing other information from which a person could reasonably be expected to infer the primary information.
Meaning of legal aid officer
(5)A legal aid officer is:
(a)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; or
(b)a person in a class of persons prescribed by the regulations.
124 – Subsections 3E(1) and (2) – when search warrants can be issued
The Crimes Act 1914 has effect as if subsections 3E(1) and (2) of that Act were substituted with the following subsections:
“(1)An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that:
(a)there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises; and
(b)if the search would not be for the purposes of investigating an offence—there are reasonable grounds for believing that, if a person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed.
(2)An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that:
(a)there are reasonable grounds for suspecting that the person has in their possession, or will within the next 72 hours have in their possession, any evidential material; and
(b)if the search would not be for the purposes of investigating an offence—there are reasonable grounds for believing that, if the person was served with a summons to produce the evidential material, the material might be concealed, lost, mutilated or destroyed.
(2A)Subsection (2B) applies if:
(a)the warrant is to search:
(i)a person (the journalist) who works in a professional capacity as a journalist; or
(ii)the employer of the journalist (working in that capacity); or
(iii)premises occupied or controlled by the journalist or the employer (in the capacities covered by subparagraphs (i) and (ii)); and
(b)the evidential material relates to an alleged offence against a secrecy provision by a person other than the journalist.
(2B)In deciding whether to issue the warrant, the issuing officer must have regard to whether the public interest in issuing the warrant outweighs:
(a)the public interest in protecting the confidentiality of the identity of the journalist’s source; and
(b)the public interest in facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest.”
184 – Functions of the inspector
(1)The Inspector has the following functions:
(a)to detect corrupt conduct within, and relating to, the NACC;
(b)to undertake preliminary investigations into NACC corruption issues or possible NACC corruption issues;
(c)to conduct NACC corruption investigations into NACC corruption issues that could involve corrupt conduct that is serious or systemic;
(d)to refer NACC corruption issues to the NACC, Commonwealth agencies and State or Territory government entities;
(e)to investigate complaints made in relation to the conduct or activities of:
(i)the NACC; or
(ii)a staff member of the NACC;
(f)to provide relevant information and documents to the Committee;
(g)to receive public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013) and to deal with those disclosures;
(h)to report, and make recommendations, to both Houses of the Parliament on the results of performing the functions mentioned in paragraphs (a) to (f).
(2)The Inspector also has such other functions conferred on the Inspector by this Act or by any other Act.
198 – annual report
(1)As soon as practicable after the end of each financial year, the Inspector must:
(a)prepare a report (the annual report) relating to the performance of the Inspector’s functions during the financial year; and
(b)cause a copy of the annual report to be tabled in each House of the Parliament.
(2)The copy of the annual report must be tabled as soon as practicable after the end of the financial year, and in any event, by the following 31 December.
(3)Subject to section 199, the annual report must include the information prescribed by the regulations.
271 – Annual report
(1)The Commissioner must give the Minister, for presentation to each House of the Parliament, a report (the annual report) on the performance of the Commissioner’s functions during each financial year.
Note:See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.
(2)The annual report for each financial year must include:
(a)the particulars prescribed by the regulations about the following:
(i)corruption issues referred to the Commissioner during that year;
(ii)corruption issues dealt with by the Commissioner during that year;
(iii)corruption investigations conducted by the Commissioner during that year;
(iv)corruption issues that the Commissioner referred to a Commonwealth agency or State or Territory government entity for investigation during that year;
(v)public inquiries conducted by the Commissioner during that year;
(vi)certificates issued by the Attorney General under section 235 during that year;
(vii)international relations certificates issued during that year; and
(b)a description of the corruption investigations conducted by the Commissioner during that year that the Commissioner considers raise significant issues for, or reflect developments in, Commonwealth agencies; and
(c)a description of any patterns or trends, and the nature and scope, of corruption in Commonwealth agencies or by public officials that have come to the Commissioner’s attention during that year; and
(d)any recommendations for changes to the laws of the Commonwealth or administrative practices of Commonwealth agencies that the Commissioner, as a result of performing the Commissioner’s functions during that year, considers should be made; and
(e)the extent to which corruption investigations have resulted in the prosecution in that year of persons for offences; and
(f)the extent to which corruption investigations have resulted in confiscation proceedings in that year; and
(g)the details of the number and results of:
(i)applications made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under the Administrative Decisions (Judicial Review) Act 1977 for orders of review in respect of matters arising under this Act in connection with the performance of functions or exercise of powers by the Commissioner; and
(ii)other court proceedings involving the Commissioner;
being applications and proceedings that were determined, or otherwise disposed of, during that year.
(3)The Minister must table the annual report in each House of the Parliament within 15 sitting days of that House after its receipt.
(4)A report prepared under this section may be included in a report prepared and given to the Minister under section 46 of the PGPA Act in relation to the NACC.
274 – Effect of Act on parliamentary privileges and immunities
Apart from section 181 (committee’s access to certain information), this Act does not affect the law relating to the powers, privileges and immunities of any of the following:
(a)each House of the Parliament;
(b)the members of each House of the Parliament;
(c)the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022
Schedule 1, Part 2, Items 2 – At the end of schedule 1 [Administrative Decisions (Judicial Review) Act 1977]
Add:
; (zi)decisions under the following provisions of the National Anti Corruption Commission Act 2022:
(i)provisions in Part 6 (including that Part as applied by section 211 of that Act);
(ii)provisions in Part 7 (including that Part as applied by sections 163 and 214 of that Act);
(iii)sections 161, 162, 209, 210 and 213.
Schedule 1, Part 2, Item 250 – Paragraph 110A(1)(c) [Telecommunications Act 1997]
Repeal the paragraph, substitute:
(c)the National Anti Corruption Commission;