Commonwealth Coat of Arms of Australia

National Anti-Corruption Commission Act 2022

No. 88, 2022

An Act to provide for the establishment of the National Anti‑Corruption Commission, and for related purposes

[Assented to 12 December 2022]

The Parliament of Australia enacts:

Part 1—Preliminary

1 Short title

This Act is the National Anti‑Corruption Commission Act 2022.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. Part 1 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	12 December 2022
2. Parts 2 to 9	A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	1 July 2023 (F2023N00078)
3. Part 10, Division 1	The day after this Act receives the Royal Assent.	13 December 2022
4. Part 10, Divisions 2 to 4	At the same time as the provisions covered by table item 2.	1 July 2023
5. Parts 11 to 13	At the same time as the provisions covered by table item 2.	1 July 2023

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

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;

(d) to educate and provide information about corruption and the detrimental effects of corruption on public administration and the Australian community.

4 Simplified outline of this Act

This Act provides for the appointment of the National Anti‑Corruption Commissioner, and establishes the National Anti‑Corruption Commission.

The Commissioner is able to investigate corruption issues that could involve corrupt conduct that is serious or systemic.

A corruption issue is an issue of whether a person has engaged, is engaging or will engage in corrupt conduct.

Corrupt conduct is defined in section 8, and can only be:

(a) conduct by a public official; or

(b) conduct that adversely affects, or that could adversely affect, the honest or impartial exercise or performance of a public official’s powers, functions or duties.

Part 4 provides special protections for persons who refer corruption issues, or provide other information, under this Act.

Parts 5 to 7 set out processes for referring, dealing with and investigating corruption issues.

Requirements for reporting on corruption investigations are found in Part 8.

The Commissioner can also:

(a) conduct broader public inquiries into corruption risks and prevention measures within Commonwealth agencies; and

(b) provide education and information in relation to corrupt conduct and preventing that conduct.

The work of the Commission is overseen by the Parliamentary Joint Committee on the National Anti‑Corruption Commission.

The Inspector of the National Anti‑Corruption Commission assists with this oversight, in particular with corruption issues and complaints relating to the Commission.

5 Application of this Act

This Act applies both within and outside Australia and extends to the external Territories.

6 Crown to be bound

(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.

7 Definitions

accountable authority has the same meaning as in the PGPA Act.

AFP means the Australian Federal Police.

AFP Commissioner means the Commissioner of Police (within the meaning of the Australian Federal Police Act 1979).

agency head: see subsection 11(1).

annual report: see subsections 198(1) and 271(1).

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

Australian Geospatial‑Intelligence Organisation means that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation.

Australian travel document has the same meaning as in the Australian Passports Act 2005.

authorised discloser: see subsection 227(1).

authorised officer means:

(a) the Commissioner; or

(b) a Deputy Commissioner; or

CEO means the Chief Executive Officer of the National Anti‑Corruption Commission.

Note: See section 251.

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.

Commissioner means the National Anti‑Corruption Commissioner.

Note: See section 16.

Committee means the Parliamentary Joint Committee on the National Anti‑Corruption Commission for the time being constituted under Division 1 of Part 10.

Commonwealth agency: see section 11.

Commonwealth company has the same meaning as in the PGPA Act.

Commonwealth contract: see subsection 13(2).

Commonwealth entity has the same meaning as in the PGPA Act.

Commonwealth integrity agency: see section 15.

completion report: see paragraph 52(b).

confiscation proceeding: see section 136.

constable means:

(a) a member or special member of the AFP; or

(b) a member of the police force or police service of a State or Territory.

container includes:

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

(b) any baggage; and

contract includes any arrangement, agreement, deed or understanding.

contracted service provider: see section 13.

contravenes:

(a) for a certificate issued under section 235—see subsection 235(9); and

(b) for an international relations certificate—see subsection 236(8).

conveyance includes an aircraft, vehicle or vessel.

corporate Commonwealth entity has the same meaning as in the PGPA Act.

corrupt conduct: see section 8.

corruption investigation: see subsection 41(2).

corruption issue: see section 9.

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

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

Defence Intelligence Organisation means that part of the Defence Department known as the Defence Intelligence Organisation.

Deputy Commissioner means a National Anti‑Corruption Deputy Commissioner.

Note: See section 18.

derivative material: see section 133.

detriment: see subsection 29(2).

direction to produce: see subsection 57(3).

entrusted person: see subsection 227(2).

exempt secrecy provision means any of the following secrecy provisions:

(a) Part 11 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006;

(b) section 34 of the Inspector‑General of Intelligence and Security Act 1986;

(d) a secrecy provision in Part VIIIA of the Privacy Act 1988;

(e) sections 45 and 45B of the Surveillance Devices Act 2004;

(f) a secrecy provision that is a provision of a taxation law within the meaning of the Taxation Administration Act 1953;

(g) sections 63 and 133 of the Telecommunications (Interception and Access) Act 1979;

(h) a secrecy provision that is expressed by another law of the Commonwealth to have effect despite this Act;

(i) anything done under a provision referred to in paragraphs (a) to (h).

Federal Court means the Federal Court of Australia.

finance law has the same meaning as in the PGPA Act.

Foreign Affairs Department: see subsection 240(3).

head:

(a) of a Commonwealth agency—see subsection 11(1); and

(b) of a State or Territory government entity—means the person holding, or performing the duties of, the principal office in respect of the entity.

hearing means a hearing held under this Act.

IGIS means the Inspector‑General of Intelligence and Security.

IGIS official means:

(a) the IGIS; or

(b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.

imminent: for when a charge for an offence, or a confiscation proceeding, is imminent, see subsections 132(1) and (2).

inquiry report: see subsection 164(1).

Inspector means the Inspector of the National Anti‑Corruption Commission.

Note: See section 182.

Inspector‑General of Biosecurity means the Inspector‑General of Biosecurity appointed under section 566A of the Biosecurity Act 2015.

Inspector‑General of Live Animal Exports means the Inspector‑General of Live Animal Exports referred to in section 9 of the Inspector‑General of Live Animal Exports Act 2019.

Inspector‑General of the Australian Defence Force means the Inspector‑General of the Australian Defence Force referred to in section 110B of the Defence Act 1903.

Inspector‑General of Water Compliance means the Inspector‑General of Water Compliance referred to in section 215B of the Water Act 2007.

intelligence agency means:

(a) the Australian Geospatial‑Intelligence Organisation; or

(b) the Australian Secret Intelligence Service; or

(d) the Australian Signals Directorate; or

(e) the Defence Intelligence Organisation; or

(f) the Office of National Intelligence.

intelligence information: see subsection 239(6).

international relations has the meaning given by section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004.

international relations certificate: see subsection 236(2).

investigation material: see section 99.

investigation report: see subsection 149(1).

law enforcement agency means:

(a) the AFP; or

(b) a police force or police service of a State or Territory; or

(c) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of a State or Territory.

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

legal aid officer: see subsection 98(5).

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.

magistrate: see subsection 112(5).

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.

NACC means the National Anti‑Corruption Commission.

Note: See section 20.

NACC Act process means:

(a) a corruption investigation; or

(b) a NACC complaint investigation; or

(d) a public inquiry.

NACC Commissioner means:

(a) the Commissioner; or

(b) a Deputy Commissioner.

NACC complaint investigation: see subsection 212(2).

NACC corruption investigation: see subsection 210(2).

NACC corruption issue: see section 201.

NACC disclosure: see section 23.

NACC investigation report: see subsection 215(1).

non‑disclosure notation: see subsection 95(1).

notice to produce: see subsection 58(3).

occupier: see subsection 268(6).

official matter: see subsection 95(5).

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.

paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).

parliamentarian means:

(a) a senator; or

(b) a member of the House of Representatives; or

(d) 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; or

(e) 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

(f) a person to whom remuneration is payable under section 49 of the Parliamentary Business Resources Act 2017.

parliamentary office means the office of a parliamentarian.

Note: A parliamentarian is not a staff member of the parliamentary office (see paragraph 12(5)(c)).

permanent resident of Australia: see subsection 240(4).

person assisting the Inspector: see section 195.

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

post‑charge: see section 130.

post‑confiscation application: see section 135.

pre‑charge: see section 129.

pre‑confiscation application: see section 134.

premises includes a place, a conveyance or a container.

private hearing summons: see subsection 95(4).

proceeds of crime authority: see section 138.

prosecuting authority: see subsection 105(6).

prosecutor: see subsection 105(5).

protected information report: see sections 152, 165 and 218.

protected suspect: see subsection 132(3).

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.

public inquiry means a public inquiry conducted under Part 9.

public official: see section 10.

relevant confiscation proceeding: see section 137.

relevant offence: see section 131.

resolved: for when a charge for an offence, or a confiscation proceeding, is resolved, see section 139.

secrecy provision means:

(a) a provision of a law of the Commonwealth that purports to prohibit; or

(b) anything done, under a provision of a law of the Commonwealth, to prohibit;

any of the following:

(d) dealing with information, or a document or thing;

(e) making a record of information, or a copy of a document or thing;

(f) the disclosure or publication of information;

(g) the production of, or the publication of the contents of, a document;

(h) the production of a thing;

(i) access to information, a document or a thing;

regardless of whether the provision of the law of the Commonwealth:

(j) commenced before the commencement of this definition; or

(k) is expressed to apply despite any other law.

section 235 certified information means:

(a) information that is about a matter specified in a certificate in force under section 235; or

(b) information contained in a document specified in a certificate in force under section 235.

security matter: see subsection 237(4).

sensitive information: see subsection 227(3).

serious offence: see subsection 112(6).

staff member:

(a) of a Commonwealth agency—see section 12;

(b) of the NACC—see section 266.

State or Territory government entity means:

(a) a Department of a State or Territory; or

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

statutory office holder: see section 14.

subsidiary has the same meaning as in the PGPA Act.

summons means a summons issued under section 63.

superior court judge: see subsection 90(3).

takes a reprisal: see section 29.

travel document: see subsection 88(2).

witness:

(a) means a person who:

(i) is required to comply with a notice to produce; or

(ii) is summoned to attend a hearing; or

(iii) gives evidence at a hearing; and

(b) in relation to investigation material, has the meaning given by subsection 99(4); and

Part 2—Key concepts used in this Act

Division 1—Corrupt conduct and corruption issues

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.

(2) However, paragraph (1)(a) does not apply in relation to conduct of the following:

(a) the Governor‑General;

(b) a Deputy Governor‑General;

(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

(2) A NACC corruption issue is not a corruption issue.

Note: See section 201 for the definition of a NACC corruption issue.

Division 2—Public officials

10 Meaning of public official

(1) Each of the following is a public official:

(a) a parliamentarian;

(b) a staff member of a Commonwealth agency;

(2) A person who is acting for and on behalf of, or as a deputy or delegate of, any person or body set out in subsection (1) is also a public official.

Division 3—Commonwealth agencies and the heads of those agencies

11 Commonwealth agencies and the heads of those agencies

(1) A body or office specified in column 1 of an item in the following table is a Commonwealth agency, and the head (or agency head) of that agency is the person specified in column 2 of that item.

Commonwealth agencies and the heads of those agencies
Item	Column 1 Commonwealth agency	Column 2 Head of Commonwealth agency
1	A parliamentary office	The parliamentarian
2	A Commonwealth entity	Whichever of the following applies: (a) if the accountable authority of the entity is a single person—that person; (b) if the accountable authority of the entity is a governing body or other group of persons: (i) the chief executive officer (however described) of the entity (unless subparagraph (ii) applies); or (ii) if the regulations prescribe another person as the head of the entity—that other person
3	A Commonwealth company	Whichever of the following applies: (a) the chief executive officer (however described) of the company (unless paragraph (b) applies); (b) if the regulations prescribe another person as the head of the company—that other person
4	A subsidiary of: (a) a Commonwealth company; or (b) a corporate Commonwealth entity	Whichever of the following applies: (a) the chief executive officer (however described) of the subsidiary (unless paragraph (b) applies); (b) if the regulations prescribe another person as the head of the subsidiary—that other person
5	The High Court	The Chief Executive and Principal Registrar of the High Court
6	The Australian Geospatial‑Intelligence Organisation	The Director of the Australian Geospatial‑Intelligence Organisation
7	The Defence Intelligence Organisation	The Director of the Defence Intelligence Organisation
8	The Inspector‑General of the Australian Defence Force	The Inspector‑General of the Australian Defence Force
9	The Inspector‑General of Biosecurity	The Inspector‑General of Biosecurity
10	The Inspector‑General of Live Animal Exports	The Inspector‑General of Live Animal Exports
11	The Inspector‑General of Water Compliance	The Inspector‑General of Water Compliance
12	A body prescribed by the regulations for the purposes of this item that is established for a public purpose by, or under, a law of the Commonwealth (other than a general law allowing incorporation as a company or body corporate)	The person prescribed by the regulations for the purposes of this item

(2) To avoid doubt, each of the following is taken to be a Commonwealth agency in its own right, and not part of a Department:

(a) the Australian Geospatial‑Intelligence Organisation;

(b) the Defence Intelligence Organisation;

(d) the Inspector‑General of Biosecurity;

(e) the Inspector‑General of Live Animal Exports;

(f) the Inspector‑General of Water Compliance.

(3) Despite subsection (1), the NACC is not a Commonwealth agency.

Division 4—Staff members of Commonwealth agencies

12 Meaning of staff member—Commonwealth agencies

(1) The following are staff members of a Commonwealth agency:

(a) in the case of a parliamentary office:

(i) an individual who is employed by the parliamentarian under Part III or IV of the Members of Parliament (Staff) Act 1984; and

(ii) an individual who is engaged by the parliamentarian as a consultant under Part II of that Act;

(b) in the case of an agency other than a parliamentary office—the head of the agency;

(d) in any case—an individual who is employed by, or engaged in assisting:

(i) the agency; or

(ii) a staff member of the agency on behalf of the agency or the Commonwealth;

(e) a director or officer of the following:

(i) a Commonwealth company;

(ii) a subsidiary of a corporate Commonwealth entity or a Commonwealth company;

(f) if the agency is responsible for administering a Commonwealth contract—an individual who is either of the following:

(i) a contracted service provider for the contract;

(ii) both an officer or employee of a contracted service provider for the contract and someone who provides goods or services for the purposes (whether direct or indirect) of the contract;

(g) in any case—a secondee to the agency.

(2) However, if a Commonwealth agency is covered by an item of the following table then the staff members of the agency are the persons mentioned in paragraphs (1)(b), (f) and (g) and the persons mentioned in column 2 of that item.

Staff members for certain Commonwealth agencies
Item	Column 1 Agency	Column 2 Staff members
1	The High Court	An individual who is appointed or engaged as an officer or employee of the High Court under section 26 of the High Court of Australia Act 1979
2	Either of the following: (a) the Australian Geospatial‑Intelligence Organisation; (b) the Defence Intelligence Organisation	An individual who is employed in the agency or a member of the Australian Defence Force who is engaged in the agency
3	The Inspector‑General of Biosecurity	An individual engaged under the Public Service Act 1999 who is assisting the Inspector‑General of Biosecurity
4	The Inspector‑General of Live Animal Exports	An individual acting under the authority of the Inspector‑General of Live Animal Exports
5	The Inspector‑General of Water Compliance	An individual engaged under the Public Service Act 1999 who is assisting the Inspector‑General of Water Compliance
6	The Inspector‑General of the Australian Defence Force	A member of the staff of the Inspector‑General of the Australian Defence Force
7	The Administrative Appeals Tribunal	Each of the following: (a) a member (within the meaning of the Administrative Appeals Tribunal Act 1975) of the Tribunal who is not a Judge (within the meaning of that Act); (b) a member of the staff of the Tribunal (within the meaning of that Act)

(3) An individual who:

(a) is covered by column 1 of an item of the following table; and

(b) is not a staff member of a Commonwealth agency under subsection (1) or (2);

is a staff member of the agency identified under column 2 of that item.

Staff members of Commonwealth agencies—rules for certain statutory office holders and other individuals
Item	Column 1 Individual	Column 2 Agency
1	An individual who is a statutory office holder	Whichever of the following applies: (a) if the purposes of a Commonwealth entity for the purposes of the finance law include assisting the office holder, or a body (whether incorporated or not) of which the office holder is a member or forms a part—the Commonwealth entity (subject to paragraph (b)); (b) if the primary function of the office holder is to assist a Commonwealth agency, or another staff member of such an agency, in the performance of the agency’s or the other staff member’s functions—that agency; (c) the Department administered by the Minister responsible for administering the provision of the law by or under which the office is established (subject to paragraphs (a) and (b))
2	An individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the individual by or under a provision of a law of the Commonwealth, other than by or under: (a) a general law allowing incorporation as a company or body corporate; or (b) the Australian Capital Territory (Self‑Government) Act 1988; or (c) the Northern Territory (Self‑Government) Act 1978; or (d) a provision of a law prescribed by the regulations for the purposes of this paragraph	Whichever of the following applies: (a) if the power is exercised, or the function is performed, for the purpose of assisting a Commonwealth agency, or another staff member of such an agency, in the performance of the agency’s or other staff member’s functions—that agency; (b) the Department administered by the Minister responsible for administering the provision of the law (subject to paragraph (a))
3	An individual who is a director, officer, employee or contractor of a body corporate that exercises powers, or performs functions, conferred on the body corporate by or under a provision of a law of the Commonwealth, other than by or under: (a) a general law allowing incorporation as a company or body corporate; or (b) the Australian Capital Territory (Self‑Government) Act 1988; or (c) the Northern Territory (Self‑Government) Act 1978; or (d) a provision of a law prescribed by the regulations for the purposes of this paragraph	Whichever of the following applies: (a) if the power is exercised, or the function is performed, for the purpose of assisting a Commonwealth agency, or another staff member of such an agency, in the performance of the agency’s or other staff member’s functions—that agency; (b) the Department administered by the Minister responsible for administering the provision of the law (subject to paragraph (a))
4	An individual who holds an appointment under section 67 of the Constitution	The Department administered by the Prime Minister

Providing for individuals to be staff members of a different agency

(4) The regulations may provide that an individual who would otherwise be a staff member of a particular Commonwealth agency under subsection (1), (2) or (3) is a staff member of a different Commonwealth agency.

Certain individuals are not staff members

(5) Despite anything else in this section, none of the following is a staff member of a Commonwealth agency:

(a) the Governor‑General;

(b) a Deputy Governor‑General;

(d) a Justice of the High Court or a judge of a court created by the Parliament;

(e) a judge of a court of a State or Territory;

(f) a member of a Royal Commission;

(g) a staff member of the NACC;

(h) the Inspector, or a person assisting the Inspector.

13 Meaning of contracted service provider for a Commonwealth contract

(1) A contracted service provider for a Commonwealth contract is:

(a) a person (other than the Commonwealth or a Commonwealth agency) who:

(i) is a party to the Commonwealth contract; and

(ii) is responsible for the provision of goods or services (or both) under the Commonwealth contract; or

(b) a person who:

(i) is a party to a contract (the subcontract) with a person who is a contracted service provider for the Commonwealth contract under paragraph (a) (or under a previous application of this paragraph); and

(ii) is responsible under the subcontract for the provision of goods or services (or both) for the purposes (whether direct or indirect) of the Commonwealth contract.

(2) A Commonwealth contract is a contract:

(a) to which the Commonwealth or a Commonwealth agency is a party; and

(b) under which goods or services (or both) are to be, or were to be, provided:

(i) to the Commonwealth or the Commonwealth agency, as relevant; or

(ii) in connection with the activities of the Commonwealth or the Commonwealth agency, as relevant.

Note: Contract is defined in section 7 to include any arrangement, agreement, deed or understanding.

(3) Despite subsection (1), the following are not contracted service providers for a Commonwealth contract:

(a) a State or Territory government entity;

(b) the government of a foreign country, or of a part of a foreign country;

14 Meaning of statutory office holder

(1) A statutory office holder is an individual (other than an official of a registered industrial organisation) who holds an office or appointment under a law of the Commonwealth, other than under:

(a) a general law allowing incorporation as a company or body corporate; or

(b) the Australian Capital Territory (Self‑Government) Act 1988; or

(d) a provision of a law prescribed by the regulations for the purposes of this paragraph.

(2) Despite paragraph (1)(a), the following offices and appointments are statutory office holders:

(a) the office of Registrar, or Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006;

(b) the office of a member of a committee convened under Part 2 of Schedule 2 to the Corporations Act 2001;

Division 5—Commonwealth integrity agencies

15 Meaning of Commonwealth integrity agency

Each of the following office holders, together with their staff (if any), is a Commonwealth integrity agency:

(a) the Commonwealth Ombudsman, a Deputy Commonwealth Ombudsman, the Defence Force Ombudsman, the Postal Industry Ombudsman, the Overseas Students Ombudsman, the Private Health Insurance Ombudsman and the VET Student Loans Ombudsman;

(b) the Australian Public Service Commissioner;

(d) the Auditor‑General;

(e) the AFP Commissioner;

(f) the Parliamentary Service Commissioner;

(g) the Parliamentary Service Merit Protection Commissioner;

(h) the Australian Information Commissioner;

(i) the CEO of the ACC (within the meaning of the Australian Crime Commission Act 2002);

(j) the IGIS;

(k) the Inspector‑General of Taxation;

(l) the Chief Executive Officer of the Tertiary Education Quality and Standards Agency;

(m) the Inspector‑General of Biosecurity;

(n) the Inspector‑General of Live Animal Exports;

(o) the Inspector‑General of Water Compliance;

(p) the Inspector‑General of the Australian Defence Force;

(q) any other statutory office holder that:

(i) has functions that include investigating, or inquiring into, action taken by public officials; and

(ii) is prescribed by the regulations for the purposes of this subparagraph.

Part 3—The National Anti‑Corruption Commission

Division 1—The Commissioner

16 The Commissioner

There is to be a National Anti‑Corruption Commissioner.

Note: For provisions in relation to the Commissioner’s appointment, see Division 1 of Part 12.

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.

Division 2—The Deputy Commissioners

18 The Deputy Commissioners

There are to be up to 3 National Anti‑Corruption Deputy Commissioners.

Note: For provisions in relation to a Deputy Commissioner’s appointment, see Division 1 of Part 12.

19 Functions of a Deputy Commissioner

(1) The functions of a Deputy Commissioner are:

(a) to assist the Commissioner in performing the Commissioner’s functions; and

(b) any other function conferred on a Deputy Commissioner by this Act or another Act.

(2) In performing those functions, a Deputy Commissioner must comply with any directions of the Commissioner.

(3) A direction under subsection (2) is not a legislative instrument.

Division 3—The National Anti‑Corruption Commission

20 Establishment of the National Anti‑Corruption Commission

(1) The National Anti‑Corruption Commission (the NACC) is established by this section.

(2) For the purposes of the finance law:

(a) the NACC is a listed entity; and

(b) the CEO is the accountable authority of the NACC; and

(d) the purposes of the NACC include:

(i) the functions of the Commissioner referred to in section 17; and

(ii) the functions of a Deputy Commissioner referred to in section 19; and

(iii) the functions of the NACC referred to in section 22; and

(iv) the functions of the CEO referred to in section 252.

21 Constitution of the NACC

The NACC consists of:

(a) the Commissioner; and

(b) any Deputy Commissioners; and

(d) the staff referred to in section 262.

22 Functions of the NACC

The NACC has the following functions:

(a) to assist the Commissioner in performing the Commissioner’s functions;

(b) to assist any Deputy Commissioner in performing the Deputy Commissioner’s functions.

Part 4—Protections for disclosers under this Act

Division 1—Meaning of NACC disclosure

23 Meaning of NACC disclosure

A person makes a NACC disclosure if:

(a) the person refers, or provides other information about, a corruption issue to the Commissioner or the IGIS under Part 5; or

(b) the person refers, or provides other information about, a NACC corruption issue to the Inspector under section 202 or 203; or

(c) the person gives evidence or information, or produces a document or a thing, under this Act to a NACC Commissioner, the IGIS or the Inspector in relation to any of the following:

(i) a corruption issue;

(ii) a NACC Act process;

(iii) a NACC corruption issue;

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

Division 2—Protection of persons from liability

24 Protection of persons from liability

(1) If a person makes a NACC disclosure:

(a) the person is not subject to any civil, criminal or administrative liability (including disciplinary action) for the NACC disclosure; and

(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the NACC disclosure.

(2) Without limiting subsection (1):

(a) the person has absolute privilege in proceedings for defamation in respect of the NACC disclosure; and

(b) a contract to which the person is a party must not be terminated on the basis that the NACC disclosure constitutes a breach of the contract.

25 Liability for false or misleading statements unaffected

(1) Section 24 does not apply to civil, criminal or administrative liability (including disciplinary action) for knowingly making a statement that is false or misleading.

(2) Without limiting subsection (1), section 24 does not apply to liability for an offence against section 137.1, 137.2, 144.1 or 145.1 of the Criminal Code.

26 Person’s liability for own conduct not affected

To avoid doubt, whether the person’s disclosure of their own conduct is a NACC disclosure does not affect the person’s liability for the conduct.

27 Claims for protection

(1) If, in civil or criminal proceedings (the primary proceedings) instituted against a person in a court, the person makes a claim (relevant to the proceedings) that, because of section 24, the person is not subject to any civil, criminal or administrative liability for making a particular NACC disclosure:

(a) the person bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and

(b) if the person discharges that onus—the party instituting the primary proceedings against the person bears the onus of proving that the claim is not made out; and

(d) the court must adjourn the primary proceedings until the claim has been dealt with; and

(e) none of the following:

(i) any admission made by the person in the separate proceedings;

(ii) any information given by the person in the separate proceedings;

(iii) any other evidence adduced by the person in the separate proceedings;

is admissible in evidence against the person except in proceedings in respect of the falsity of the admission, information or evidence; and

(f) if the person or another person gives evidence in the separate proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.

(2) To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.

28 Protection has effect despite other Commonwealth laws

Section 24 has effect despite any other provision of a law of the Commonwealth, unless:

(a) the provision is enacted after the commencement of this section; and

(b) the provision is expressed to have effect despite this Part or that section.

Division 3—Protection from reprisals

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

(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;

(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.

Division 4—Protection for journalists’ informants

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) None of the following is required to do anything under this Act that would disclose the identity of the informant or enable that identity to be ascertained:

(a) the journalist;

(b) the journalist’s employer;

(d) a person assisting the journalist in the person’s professional capacity.

(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.

Part 5—Referring corruption issues

Division 1—Voluntary referrals

32 Any person may refer corruption issue

(1) Any person may refer a corruption issue or provide other information about a corruption issue to the Commissioner.

(2) The Commissioner may request the referral or information to be:

(a) given in a particular way; or

(b) accompanied or supported by further information.

Division 2—Mandatory referrals

33 Mandatory referral—Commonwealth agencies other than intelligence agencies

(1) An agency head who becomes aware of a corruption issue must refer the issue to the Commissioner if:

(a) the issue concerns the conduct of a person who is, or was, a staff member of the agency while that person is, or was, a staff member; and

(b) the agency head suspects that the issue could involve corrupt conduct that is serious or systemic.

(2) The agency head must state in the referral the reasons why the agency head suspects that the issue could involve corrupt conduct that is serious or systemic.

(3) Subsection (1) does not apply in relation to an intelligence agency.

34 Mandatory referral—intelligence agencies

(1) The head of an intelligence agency who becomes aware of a corruption issue must refer the issue to the IGIS or the Commissioner if:

(a) the issue concerns the conduct of a person who is, or was, a staff member of the intelligence agency while that person is, or was, a staff member; and

(b) the head suspects that the issue could involve corrupt conduct that is serious or systemic.

(2) The head must state in the referral the reasons why the head suspects that the issue could involve corrupt conduct that is serious or systemic.

(3) If the head refers the issue to the Commissioner, the head must, as soon as reasonably practicable, notify the IGIS.

(4) If the head refers the issue to the IGIS, and the IGIS is satisfied that the issue is likely to involve corrupt conduct that is serious or systemic, the IGIS must refer the issue to the Commissioner.

35 Mandatory referral—Public Interest Disclosure Act disclosures

(1) This section applies if a staff member of a Commonwealth agency (the PID officer), in the course of performing or exercising functions or powers under Division 1 or 2 of Part 3 of the Public Interest Disclosure Act 2013 (including as a delegate), becomes aware of a corruption issue that:

(a) concerns the conduct of a person who is, or was, a staff member of the agency while that person is, or was, a staff member; and

(b) the PID officer suspects could involve corrupt conduct that is serious or systemic.

(2) The PID officer must refer the corruption issue to:

(a) in the case of a Commonwealth agency other than an intelligence agency—the Commissioner; or

(b) in the case of an intelligence agency—the IGIS or the Commissioner.

Corruption issues that relate to intelligence agencies

(3) If the PID officer refers a corruption issue that relates to an intelligence agency to the Commissioner, the PID officer must, as soon as reasonably practicable, notify the IGIS.

(4) If the PID officer refers a corruption issue that relates to an intelligence agency to the IGIS, and the IGIS is satisfied that the issue is likely to involve corrupt conduct that is serious or systemic, the IGIS must refer the issue to the Commissioner.

Notification to discloser

(5) If the PID officer became aware of the corruption issue as a result of an internal disclosure made under the Public Interest Disclosure Act 2013, the PID officer must, as soon as reasonably practicable, notify the discloser of the PID officer’s referral of the issue under this section.

36 Mandatory referral—secrecy protection provisions

The obligation to refer a corruption issue under this Division applies despite any secrecy provision (other than an exempt secrecy provision).

37 Mandatory referral—exceptions

(1) A person is not required to refer a corruption issue under this Division if:

(a) the person believes on reasonable grounds that the Commissioner or the IGIS, as relevant, is already aware of the issue; or

(b) a determination made by the Commissioner provides that referral is not required because of the kind of corruption issue involved or the circumstances in which it arises.

(2) The Commissioner may, in writing, determine corruption issues and circumstances for the purposes of paragraph (1)(b).

(3) A determination under subsection (2) is not a legislative instrument.

38 Mandatory referral—timing and information requirements

Timing requirements

(1) A person who is required to refer a corruption issue under this Division must do so as soon as reasonably practicable after becoming aware of the issue or within such later time as is allowed by the Commissioner.

Information requirements

(2) A person who is required to refer a corruption issue under this Division must include with the referral all information relevant to the issue that is in the person’s possession or control at the time the referral is made.

(3) If the person subsequently becomes aware of any further information that is relevant to the issue, the person must give the further information to the recipient of the referral as soon as reasonably practicable.

Exceptions to information requirements

(4) A person is not required to provide information under this section if:

(a) the person has reasonable grounds to believe that the recipient of the referral is already aware of the information; or

(b) the recipient of the referral has advised the person that the provision of information about the corruption issue is not required.

Note: This section has effect subject to section 236 (Attorney‑General’s certificate in relation to international relations).

Division 3—Other matters relating to referrals

39 Effect of referral on continued actions

The referral of a corruption issue under this Part does not:

(a) subject to any direction to stop taking action given by the Commissioner under subsection 43(1), prevent a Commonwealth agency or the IGIS from continuing to take any action in relation to conduct that is the subject of the issue; or

(b) affect the obligations of the agency or the IGIS in relation to that conduct under any other law.

Part 6—Dealing with corruption issues

Division 1—Dealing with corruption issues

40 Commissioner may deal with corruption issues

(1) 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.

(2) To avoid doubt, the Commissioner may deal with a corruption issue on the Commissioner’s own initiative.

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.

42 Preliminary investigations by Commissioner

Application

(1) This section applies if the Commissioner considers it necessary or desirable to conduct a preliminary investigation for any of the following purposes:

(a) to confirm the existence or nature of a corruption issue (including whether a corruption issue could involve corrupt conduct that is serious or systemic);

(b) to assist the Commissioner to decide whether or how to deal with a corruption issue.

Exercise of certain Part 7 powers for preliminary investigations

(2) The Commissioner may exercise the following Part 7 powers as if the preliminary investigation mentioned in subsection (1) were a corruption investigation:

(a) the power, under subsection 57(2), to direct the head of a Commonwealth agency to give information, or a document or a thing, to the Commissioner;

(b) the power, under subsection 58(2) as modified by subsection (3) of this section, to serve a notice to produce on a person requiring the person to give information, or a document or thing, to a specified staff member of the NACC.

(3) The modifications are as follows:

(a) the Commissioner may not issue a post‑charge or a post‑confiscation notice to produce under this section; and

(b) subsection 58(6) does not apply to a notice to produce given under this section.

(4) To avoid doubt, the other provisions of this Act continue to apply in relation to the exercise of powers under subsections 57(2) and 58(2) for the purpose of conducting a preliminary investigation under this section.

Commissioner may have regard to other material

(5) This section does not limit the information, documents or things to which the Commissioner may have regard in making a decision about whether or how to deal with a corruption issue.

43 Commissioner’s directions about further action

Directions to stop action

(1) The Commissioner may direct an agency head to stop the agency taking specified action in relation to a corruption issue that concerns the agency, unless the action is permitted by the Commissioner.

(2) However, the direction may be given only if:

(a) the Commissioner has consulted with the agency head about giving the direction; and

(b) the direction is required to ensure the effectiveness of any action the Commissioner has taken, or might take, under this Act in relation to the corruption issue, or any other corruption issue.

(3) The direction must be revoked if it is no longer so required.

Permission to take other action

(4) If the agency head requests the Commissioner to permit the taking of particular action, the Commissioner must:

(a) as soon as practicable after the request is made, decide whether to permit the taking of the action; and

(b) if the Commissioner refuses to permit the taking of the action—give the agency head written reasons for the refusal.

(5) However, the Commissioner need not give the reasons for a refusal if doing so would be likely to prejudice:

(a) any action the Commissioner has taken, or might take, under this Act in relation to the corruption issue, or any other corruption issue; or

(b) any action taken by any person as a result of a NACC Act process.

(6) A direction under subsection (1):

(a) is not a legislative instrument; and

(b) has effect despite any other law of the Commonwealth.

44 Action that can be taken without permission

(1) Despite any direction given by the Commissioner under subsection 43(1), the following action may be taken:

(a) action to prevent or lessen an imminent risk to the safety of a person, or to protect a person’s life;

(b) action that is in the interests of the security, defence or international relations of Australia;

(c) action to prevent loss to the Commonwealth of an amount, greater than the amount (if any) prescribed by the regulations, which could not be recovered;

(d) other action for which it would be unreasonable in the circumstances to await any necessary permission.

(2) If action is taken relying on subsection (1), the agency head must:

(a) as soon as practicable, but no later than 48 hours after the action is taken, provide details of the action to the Commissioner; and

(b) take reasonable steps to:

(i) ensure that the action does not prejudice the investigation of a corruption issue or any other NACC Act process; and

(ii) preserve evidence that is, or could be, relevant for the purposes of conducting a NACC Act process.

45 Previous investigations by Commonwealth integrity agencies

Application

(1) This section applies if the Commissioner is aware that a Commonwealth integrity agency has previously concluded an investigation into a matter regarding the conduct of a public official.

Corruption investigation threshold—public interest

(2) The Commissioner may commence a corruption investigation into a corruption issue involving the conduct only if the Commissioner is satisfied that it is in the public interest to do so.

(3) The Commissioner may have regard to the following matters in making the decision:

(a) the significance of the corruption issue;

(b) the details of the investigation undertaken by the Commonwealth integrity agency (to the extent that those details are known by, or made available to, the Commissioner and the Commissioner considers them relevant);

(d) whether the Commissioner has any new evidence in relation to the corruption issue that:

(i) was not available to the integrity agency; and

(ii) would not have been obtainable by the exercise of reasonable diligence by that agency;

(e) any unfairness to a person that may arise as a result of the Commissioner conducting a further investigation into the corruption issue;

(f) the need to ensure that the corruption issue is fully investigated.

(4) Subsection (3) does not limit the matters to which the Commissioner may have regard in making the decision.

46 Matters dealt with by Independent Parliamentary Expenses Authority

Application

(1) This section applies if conduct of a parliamentarian or a staff member of a parliamentary office has been, is or could be the subject of either of the following by the Independent Parliamentary Expenses Authority:

(a) an audit, or a review for the purpose of preparing a report, under the Independent Parliamentary Expenses Authority Act 2017 into the use, by the parliamentarian or the staff member, of work resources or travel resources;

(b) a ruling, under subsection 37(1) of the Parliamentary Business Resources Act 2017, concerning conduct by the parliamentarian or the staff member in relation to travel, expenses or allowances.

Restriction on corruption investigation by Commissioner

(2) The Commissioner must not commence a corruption investigation into a corruption issue involving the conduct unless:

(a) the Independent Parliamentary Expenses Authority:

(i) refers the issue to the Commissioner; and

(ii) states that the Authority considers that the issue could involve corrupt conduct that is serious or systemic; and

(b) the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

47 Matters dealt with by Electoral Commissioner

Application

(1) This section applies if conduct of a person has been, is or could be the subject of an investigation by the Electoral Commissioner under, or into compliance with, the Commonwealth Electoral Act 1918.

Restriction on corruption investigation by Commissioner

(2) The Commissioner must not commence a corruption investigation into a corruption issue involving the conduct unless:

(a) the Electoral Commissioner:

(i) refers the issue to the Commissioner; and

(ii) states that the Electoral Commissioner considers that the issue could involve corrupt conduct that is serious or systemic; and

(b) the Commissioner is of the opinion that the issue could involve corrupt conduct that is serious or systemic.

Exception—officers and staff members of the Electoral Commission

(3) This section does not apply in relation to conduct of an officer (within the meaning of the Commonwealth Electoral Act 1918), or a member of the staff of the Commission (within the meaning of that Act).

48 Public statements about corruption issues

(1) The Commissioner may make a public statement about a corruption issue at any time (whether or not the Commissioner deals with the issue).

(2) Without limiting subsection (1), the Commissioner may make a public statement if the Commissioner is satisfied that it is appropriate and practicable to do so to avoid damage to a person’s reputation.

(3) Subsection (1) is subject to subsections 230(4) to (6) and section 231 as if a public statement under this section were a disclosure under section 230.

Division 2—Investigations conducted by Commonwealth agencies

49 Application

This Division applies if the Commissioner deals with a corruption issue by referring it to a Commonwealth agency for investigation under paragraph 41(1)(c).

50 Commissioner may oversee investigation

(1) The Commissioner may oversee the investigation.

(2) If the Commissioner decides to oversee the investigation, the Commissioner must notify the agency head.

51 Commissioner may give directions

(1) The Commissioner may give the agency directions about the planning and conduct of the investigation.

(2) The directions may be given to the agency’s nominated contact for the investigation.

(3) The agency head must ensure that the agency follows the Commissioner’s directions.

52 Commissioner may require reports

The Commissioner may require the agency head to provide either or both of the following:

(a) progress reports on the investigation from time to time;

(b) a report (the completion report) on the completion of the investigation.

53 Commissioner’s comments and recommendations

(1) If the Commissioner requires an agency head to provide a completion report, the Commissioner may do either or both of the following:

(a) comment on the report;

(b) provide additional recommendations in relation to the report.

Opportunity to respond must be given before including certain information in completion reports

(2) Before making a comment on, or a recommendation in relation to, a completion report that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, the Commissioner must give the head of the agency, the head of the entity or the other person concerned:

(a) a statement setting out the comment or recommendation; and

(b) a reasonable opportunity to respond to the comment or recommendation.

(3) The response may be given by:

(a) the head of the Commonwealth agency or of the State or Territory government entity concerned, or a person authorised by the head; or

(b) in relation to any other person concerned—the other person concerned, or, with approval, a person representing the other person.

54 Follow‑up action on completion report

(1) If the Commissioner requires an agency head to provide a completion report, the Commissioner may request the head to give the Commissioner, within a specified time, details of any action that the head has taken, or proposes to take, with respect to:

(a) a recommendation included in the report; or

(b) a recommendation made by the Commissioner in relation to the report.

(2) The agency head must comply with the request.

(3) If the Commissioner is not satisfied with the response of the agency head to the request, the Commissioner may refer to the person mentioned in subsection (4):

(a) the recommendation; and

(b) if the recommendation is made by the Commissioner—the reasons for the recommendation; and

(d) the Commissioner’s reasons for not being satisfied with that response.

(4) For the purposes of subsection (3), the person is:

(a) if the Commonwealth agency is a parliamentary office:

(i) for a parliamentarian who is a senator—the President of the Senate; or

(ii) for a parliamentarian who is a member of the House of Representatives—the Speaker of the House of Representatives; or

(b) if the Commonwealth agency is a Department of the Parliament established under the Parliamentary Service Act 1999:

(i) for the Department of the Senate—the President of the Senate; or

(ii) for the Department of the House of Representatives—the Speaker of the House of Representatives; or

(iii) otherwise—both the President of the Senate and the Speaker of the House of Representatives; or

(c) if the Commonwealth agency is established or continued in existence by an Act and paragraph (b) does not apply—the Minister administering that Act; or

(d) if the Commonwealth agency is a Commonwealth entity and neither paragraph (b) nor (c) applies—the Minister having general responsibility for the activities of the entity.

(5) If the Commissioner refers material to a person under subsection (3), the Commissioner may also send a copy of that material to:

(a) the President of the Senate for presentation to the Senate; and

(b) the Speaker of the House of Representatives for presentation to the House of Representatives.

(6) The Commissioner must exclude the following from the copy of the material sent under subsection (5):

(a) section 235 certified information;

(b) information that the Commissioner is satisfied is sensitive information.

(7) Before sending a copy of material under subsection (5), the Commissioner must consult with the head of each Commonwealth agency or State or Territory government entity to which the material relates about whether the material contains sensitive information.

Part 7—Investigating corruption issues

Division 1—General

55 Application of Part

This Part applies:

(a) to the Commissioner’s investigation of a corruption issue that could, in the Commissioner’s opinion, involve corrupt conduct that is serious or systemic; and

(b) whether the investigation is conducted:

(i) by the Commissioner only; or

(ii) jointly by the Commissioner and a Commonwealth agency or a State or Territory government entity.

56 Conduct of corruption investigations generally

The Commissioner may investigate the corruption issue in such manner as the Commissioner thinks fit.

Division 2—Requiring information, documents and things

Subdivision A—Directions to agency heads

57 Directions to agency heads

(1) This section applies if the Commissioner has reasonable grounds to suspect that a Commonwealth agency has information, or a document or thing, relevant to a corruption investigation.

(2) The Commissioner may, by writing, direct the head of the Commonwealth agency to give the information, document or thing to a specified staff member of the NACC.

(3) The direction is a direction to produce.

(4) The agency head must comply with the request as soon as practicable.

Subdivision B—Notices to produce

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.

59 Period for complying

(1) The period specified for complying with a notice to produce must end at least 14 days after the notice is served, unless the Commissioner considers that allowing a 14‑day period would significantly prejudice a corruption investigation.

(2) If a shorter period is specified, the Commissioner must record, in writing:

(a) the name of the investigation; and

(b) why a 14‑day period would significantly prejudice the investigation.

Extending the period

(3) The person on whom the notice is served may apply to the Commissioner, in writing, to extend the period for complying with the notice.

(4) The application must be made before the period specified in the notice expires, or as soon as possible after that.

(5) The Commissioner may extend the period whether or not an application has been made.

Record of compliance

(6) If the person gives the information, document or thing, as required by the notice, the Commissioner must:

(a) keep a written record of that fact; and

(b) give a copy of the record to the person on request.

60 Offence—failure to comply with notice to produce

(1) A person commits an offence if:

(a) the person is served with a notice to produce; and

(b) the person fails to comply with the notice:

(i) unless subparagraph (ii) applies—within the period specified in the notice; or

(ii) if the Commissioner extends the period—within that period as extended.

Note: For protection for journalists’ informants, see section 31, for international relations certificates, see section 236, and for other privileges and protections, see Division 6 of this Part.

Penalty: Imprisonment for 2 years.

(2) Subsection (1) does not apply if it is not reasonably practicable for the person to comply with the notice within the required period.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

61 Offence—producing false or misleading information or documents

(1) A person commits an offence if:

(a) the person is served with a notice to produce; and

(b) the person gives information or a document as required by the notice; and

(i) is false or misleading; or

(ii) omits any matter or thing without which the information or document is misleading.

Penalty: Imprisonment for 5 years.

(2) Subsection (1) does not apply if the information or document is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

Division 3—Hearings

Subdivision A—Commissioner may hold hearings

62 Commissioner may hold hearings

(1) The Commissioner may hold a hearing for the purposes of a corruption investigation.

(2) Subject to this Division, a hearing may be conducted in such manner as the Commissioner thinks fit.

Information relating to intelligence agencies

(3) If the Commissioner considers that a person appearing at a hearing may disclose intelligence information relating to an intelligence agency, the Commissioner must conduct the hearing in a manner consistent with any arrangement in force between the Commissioner and the head of the agency.

63 Commissioner may summon 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.

(8) The Commissioner must give to the Inspector, within 3 business days after the summons is issued:

(a) a copy of the summons; and

(b) a copy of the record made under subsection (5).

(9) A summons is not invalid merely because the Commissioner does not comply with subsection (8).

64 Summons must set out matters for questioning

(1) A summons requiring a person to give evidence must set out, so far as is reasonably practicable, the general nature of the matters in relation to which the Commissioner intends to question the person.

(2) However, subsection (1):

(a) does not apply if the Commissioner is satisfied that complying with that subsection is likely to prejudice:

(i) the corruption investigation to which the hearing relates or any other NACC Act process; or

(ii) any action taken as a result of a NACC Act process; and

(b) does not prevent the Commissioner from questioning the person in relation to any aspect of any corruption investigation.

65 Commissioner may require information, documents and things

(1) The Commissioner may require a witness at a hearing to give information, or produce a document or thing, to the Commissioner.

(2) Subsection (1) applies whether or not the information, document or thing was specified in the summons for the person to attend the hearing.

66 Legal representation

(1) A person giving evidence at a hearing may be represented by a legal practitioner.

(2) A person who is not giving evidence may be represented at a hearing by a legal practitioner if:

(a) special circumstances exist; and

(b) the Commissioner consents to the person being so represented.

(3) To avoid doubt, this section has effect subject to section 75 (presence of others at private hearings).

67 Record of hearings

(1) The Commissioner must cause a record of a hearing to be made.

(2) The record must include, in relation to each witness who gives evidence at a public hearing, any statements made by the Commissioner under subsection 73(5) in relation to the witness.

(3) Unless the Commissioner directs otherwise, the record must include the following:

(a) any document produced to the Commissioner at the hearing;

(b) a description of any thing (other than a document) produced to the Commissioner at the hearing.

68 Offence—failure to attend hearing

A person commits an offence if:

(a) the person is served with a summons to attend a hearing; and

(b) the person:

(i) fails to attend as required by the summons; or

(ii) fails to appear and report from day to day; and

Penalty: Imprisonment for 2 years.

69 Offence—failure to give information, or produce documents or things

(1) A person commits an offence if:

(a) the person is required to give information, or produce a document or thing, at a hearing; and

(b) the person fails to give the information, or produce the document or thing.

Note: For protection for journalists’ informants, see section 31, for international relations certificates, see section 236, and for other privileges and protections, see Division 6 of this Part.

Penalty: Imprisonment for 2 years.

(2) Subsection (1) does not apply if it is not reasonably practicable for the person to give the information, or produce the document or thing.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code.

70 Offence—destroying documents or things

A person commits an offence if:

(a) the person acts or omits to act; and

(b) the act or omission results in a document or thing being:

(i) concealed, mutilated or destroyed; or

(ii) rendered incapable of identification; or

(iii) in the case of a document, rendered illegible or indecipherable; and

(c) the document or thing is, or is likely to be, required by the Commissioner under a notice to produce or at a hearing.

Penalty: Imprisonment for 5 years.

71 Offence—giving false or misleading evidence, information or documents

(1) A person commits an offence if:

(a) the person gives evidence or information, or produces a document, at a hearing; and

(b) the person does so knowing that the evidence, information or document:

(i) is false or misleading; or

(ii) omits any matter or thing without which the evidence, information or document is misleading.

Penalty: Imprisonment for 5 years.

(2) Subsection (1) does not apply if the evidence, information or document is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

72 Offences—obstructing or hindering hearings, threatening persons present

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct obstructs or hinders a staff member of the NACC in the performance or exercise of the staff member’s functions, powers or duties in connection with a hearing.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if the person disrupts a hearing.

Penalty: Imprisonment for 2 years.

(3) A person commits an offence if the person threatens any person present at a hearing.

Penalty: Imprisonment for 5 years.

Subdivision B—Private and public hearings

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 that is protected against disclosure by legal professional privilege;

(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.

75 Presence of others at private hearings

Legal practitioner representing witness

(1) A legal practitioner representing a person is entitled to be present when the person is giving evidence at a hearing in private.

Presence of others

(2) The Commissioner may determine that other persons may be present.

Witness to be informed if others are present

(3) If the Commissioner determines that a person (other than a staff member of the NACC) is to be present while a witness is giving evidence at the hearing, the Commissioner must:

(a) inform the witness that the person is to be present; and

(b) give the witness an opportunity to comment on the person’s presence.

(4) If the Commissioner has determined that another person may be present, the person is entitled to be there even if:

(a) the Commissioner fails to inform the witness of the person’s presence; or

(b) the witness comments adversely on the person’s presence.

Offence—person present without authority

(5) A person commits an offence if:

(a) the person attends a hearing while evidence is being given in private at the hearing; and

(b) the person is not:

(i) the person giving evidence; or

(ii) the legal practitioner representing the person giving evidence; or

(iii) a staff member of the NACC; or

(iv) a person the Commissioner has determined may be present while the person is giving evidence.

Penalty: Imprisonment for 2 years.

76 Request to give evidence in private

(1) A witness may:

(a) request to give particular evidence in private; and

(b) make submissions to the Commissioner as to why the evidence should be given in private.

(2) A request under this section to give evidence in private does not limit the Commissioner’s powers under section 73 (private and public hearings).

77 Investigation material from private hearings

If all or part of a hearing is held in private, the Commissioner must give a direction under section 100 (directions about use or disclosure of investigation material) if the Commissioner is satisfied that the failure to give such a direction:

(a) might prejudice a person’s safety; or

(b) would reasonably be expected to prejudice a witness’ fair trial, if the witness has been charged with a relevant offence or such a charge is imminent; or

(d) might lead to the publication of sensitive information.

Subdivision C—Evidence and procedure

78 Evidence on oath or by affirmation

(1) At a hearing, the Commissioner may:

(a) require a witness to either take an oath or make an affirmation; and

(b) administer an oath or affirmation to the witness.

Note 1: The hearing is a judicial proceeding for the purposes of Part III of the Crimes Act 1914, which creates various offences in relation to such proceedings.

Note 2: Failure to take an oath or make an affirmation is an offence: see section 81.

(2) The oath or affirmation is an oath or affirmation that the evidence the person will give will be true.

(3) The Commissioner may allow a person attending a hearing who has taken an oath, or made an affirmation, to give evidence by tendering a written statement and verifying it by oath or affirmation.

79 Commissioner may take evidence outside Australia

(1) If arrangements have been made between Australia and another country in relation to the taking of evidence in that country by the Commissioner for a hearing under this Division, the evidence may be given in that country:

(a) on oath or affirmation; or

(b) under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the other country; or

(c) under such caution or admonition as would be accepted, by courts in the other country, for the purposes of giving testimony in proceedings before those courts.

(2) The oath, affirmation, obligation, caution or admonition must be administered in accordance with those arrangements and the laws of that other country.

(3) The Commissioner may use any evidence so taken for the purpose of performing any function, or exercising any power, under this Act.

80 Examination and cross‑examination of witnesses

At a hearing, the following persons may, so far as the Commissioner thinks appropriate, examine or cross‑examine any witness on any matter that the Commissioner considers relevant:

(a) counsel assisting the Commissioner;

(b) a person summoned, or otherwise authorised, to appear before the Commissioner at the hearing;

81 Offence—failure to take an oath, make an affirmation or answer a question

A person commits an offence if:

(a) the person is served with a summons to attend a hearing; and

(b) the person:

(i) fails to take an oath or make an affirmation at the hearing when required to do so (see section 78); or

(ii) fails to answer a question at the hearing that the Commissioner requires the person to answer.

Note: For protection for journalists’ informants, see section 31, for international relations certificates, see section 236, and for other privileges and protections, see Division 6 of this Part.

Penalty: Imprisonment for 2 years.

Subdivision D—Contempt of the NACC

82 Contempt of the NACC

A person is in contempt of the NACC if the person:

(a) when served with a summons to attend a hearing:

(i) fails to attend as required by the summons; or

(ii) fails to appear and report from day to day unless excused or released from further attendance by the Commissioner; or

(iii) refuses or fails to take an oath or make an affirmation at the hearing; or

(iv) refuses or fails to answer a question at the hearing that the Commissioner requires the person to answer; or

(v) refuses or fails to give information, or produce a document or thing, as required at a hearing; or

(b) is a legal practitioner who refuses, at a hearing, to give the Commissioner the name and address of a person in accordance with section 115 (material sought from legal practitioners); or

(c) gives evidence or information, or produces a document, at a hearing that the person knows is false or misleading in a material particular; or

(d) insults, disturbs or uses insulting language towards a NACC Commissioner who is holding a hearing in the performance or exercise of the NACC Commissioner’s functions or powers when the person knows that the NACC Commissioner:

(i) holds a position as a NACC Commissioner; and

(ii) is conducting such a hearing; or

(f) obstructs or hinders a staff member of the NACC in the performance or exercise of the staff member’s functions, powers or duties in connection with a hearing; or

(g) disrupts a hearing; or

(h) threatens a person present at a hearing.

Note: For protection for journalists’ informants, see section 31, for international relations certificates, see section 236, and for other privileges and protections, see Division 6 of this Part.

83 Application for court to deal with contempt

(1) The Commissioner may apply to either of the following for a person to be dealt with for contempt of the NACC:

(a) the Federal Court;

(b) the Supreme Court of the State or Territory in which the contempt occurs.

(2) Before making the application, the Commissioner must inform the person that the Commissioner proposes to make the application.

(3) The application must be accompanied by a certificate that states:

(a) the grounds for making the application; and

(b) evidence in support of the application.

(4) A copy of the certificate must be given to the person before, or at the same time as, the application is made.

84 Conduct of contempt proceedings

(1) If the Commissioner makes an application to a court to deal with a person for contempt of the NACC, proceedings are to be instituted, carried on, heard and determined in accordance with the laws (including any rules of court) that apply in relation to the punishment of a contempt of the court.

(2) In those proceedings, the certificate that sets out the grounds for making the application and evidence in support of the application is prima facie evidence of the matters specified in the certificate.

(3) The court must:

(a) consider the matters specified in the certificate; and

(b) hear or receive any evidence or statements by or in support of the application; and

(4) If the court finds that the person was in contempt of the NACC, the court may deal with the person as if the acts or omissions involved constituted a contempt of the court.

(5) For the purposes of determining whether a person is in contempt of the NACC, Chapter 2 of the Criminal Code applies as if:

(a) being in contempt of the NACC were an offence; and

(b) references to a person being criminally responsible for an offence were references to a person being responsible for being in contempt of the NACC.

85 Person in contempt may be detained

(1) If, during a hearing, the Commissioner proposes to make an application for a person to be dealt with for contempt of the NACC, the Commissioner may direct a constable or an authorised officer to detain the person for the purpose of bringing the person before the court for the hearing of the application.

(2) If the person is so detained:

(a) the Commissioner must, as soon as practicable, apply for the person to be dealt with by the court; and

(b) the person must, subject to subsection (3), be brought before the court as soon as practicable.

(3) The court may:

(a) direct that the person be released from detention on condition that the person will appear before the court in relation to the application; or

(b) order that the person continue to be detained until the application is determined.

(4) The court may also impose any other condition on release, including the following:

(a) that the person surrenders the following documents:

(i) any Australian travel document that has been issued to the person;

(ii) any passport or other travel document that has been issued to the person by or on behalf of the government of a foreign country;

(b) that the person give an undertaking as to the person’s living arrangements;

(5) The court may at any time vary or revoke a condition imposed under subsection (4).

86 Commissioner may withdraw contempt application

(1) The Commissioner may, at any time, withdraw an application for a court to deal with a person for contempt of the NACC.

(2) The person must be released immediately if:

(a) the person is in detention in relation to the contempt; and

(b) the Commissioner withdraws the application.

87 Double jeopardy

(1) A person is not liable to be prosecuted for an offence in respect of an act or omission if:

(a) an application is made to the Federal Court or a Supreme Court under subsection 83(1) in respect of the act or omission; and

(b) the person is dealt with by the court under that section in respect of the act or omission.

(2) If a person is prosecuted for an offence in respect of an act or omission referred to in section 82 without an application being made to the Federal Court or a Supreme Court under subsection 83(1) in respect of the act or omission, an application must not be made under subsection 83(1) in respect of the act or omission.

Note: For double jeopardy generally, see section 4C of the Crimes Act 1914.

Subdivision E—Travel documents and arrest of witnesses

88 Applying for orders to deliver travel documents

(1) The Commissioner may apply to a Judge of the Federal Court for an order that a person deliver a travel document to the Commissioner if:

(a) either of the following apply:

(i) a summons has been issued requiring the person to attend a hearing (whether or not the summons has been served);

(ii) the person has appeared at a hearing to give evidence or to produce documents or things; and

(b) there are reasonable grounds to believe that the person may be able:

(i) to give evidence, or further evidence, that is relevant to the corruption investigation concerned; or

(ii) to produce documents or things, or further documents or things, that are relevant to the investigation concerned; and

(2) Each of the following is a travel document:

(a) an Australian travel document that has been issued to the person;

(b) a passport or other travel document that has been issued to the person by or on behalf of the government of a foreign country.

(3) The Commissioner must give the Judge information on oath, or by affirmation, in support of the grounds for the application.

89 Orders to deliver travel documents

Court order for witness to appear before the Court

(1) If a Judge of the Federal Court, sitting in Chambers, is satisfied, on the evidence, that the requirements of paragraphs 88(1)(a), (b) and (c) are met, the Judge may make an order:

(a) requiring the person to appear before the Federal Court on a date, and at a time and place, specified in the order; and

(b) requesting the person to show cause why the person should not be ordered to deliver the travel document to the Commissioner.

Court order that witness deliver travel document to Commissioner

(2) If a person appears before the Federal Court as required by an order made under subsection (1), the Court may, if it thinks fit, make an order:

(a) requiring the person to deliver to the Commissioner a travel document that is in the person’s possession, custody or control; and

(b) authorising the Commissioner to retain the travel document until the end of the period (not exceeding 1 month) that is specified in the order.

Extension of period that Commissioner may retain travel document

(3) The Federal Court may, upon application by the Commissioner, extend for a further period (of not more than 1 month in each case), the period for which the Commissioner is authorised to retain a travel document. However, the total period for which the Commissioner is authorised to retain the travel document must not exceed 3 months.

Revocation of court order

(4) If the Federal Court makes an order authorising the Commissioner to retain a travel document issued to a person, the person may apply to the Federal Court for the order to be revoked.

(5) If the Federal Court revokes the order, the Commissioner must return the travel document to the person immediately.

Jurisdiction of the Federal Court

(6) The Federal Court has jurisdiction with respect to matters arising under this section.

90 Application for warrant to arrest witness

(1) An authorised officer may apply to a superior court judge for a warrant to arrest a person if:

(a) both of the following apply:

(i) the person has been ordered to deliver a travel document to the Commissioner (whether or not the person has complied with the order);

(ii) the authorised officer has reasonable grounds to believe that the person is likely to leave Australia for the purpose of avoiding giving evidence at a hearing; or

(b) the person is to be served with a summons under section 63 and the authorised officer has reasonable grounds to believe that the person:

(i) has absconded or is likely to abscond; or

(ii) is otherwise attempting, or likely to attempt, to evade service of the summons; or

(c) the authorised officer has reasonable grounds to believe that the person has committed an offence under section 68 (failure to attend hearing), or is likely to do so.

(2) An authorised officer must give the judge information on oath, or by affirmation, in support of the grounds for the application.

(3) A superior court judge is:

(a) a Judge of the Federal Court; or

(b) a Judge of the Supreme Court of a State or Territory.

91 Warrant for arrest

(1) If a superior court judge, sitting in Chambers, is satisfied, on the evidence, that there are reasonable grounds for believing that paragraph 90(1)(a), (b) or (c) is met, the judge may issue a warrant authorising the arrest of the person.

(2) For the purposes of executing the warrant, an authorised officer who is not a constable has the same powers and duties as a constable has in arresting a person for an offence under Divisions 4 and 5 of Part IAA of the Crimes Act 1914.

(3) To avoid doubt, the authorised officer executing the warrant need not be the authorised officer who applied for the warrant.

(4) The Commissioner must give to the Inspector, within 3 business days after the warrant is issued:

(a) a copy of the warrant; and

(b) a copy of the application for the warrant; and

(c) if the information given under subsection 90(2) is given in writing—a copy of the document recording that information.

(5) A warrant is not invalid merely because the Commissioner does not comply with subsection (4).

92 Powers of judge in relation to person arrested

(1) A person arrested under a warrant issued under section 91 must be brought, as soon as practicable, before a superior court judge.

(2) The judge may:

(a) grant the person bail:

(i) on such security as the judge thinks fit; and

(ii) on such conditions as the judge thinks are necessary to ensure that the person appears as a witness at a hearing before the Commissioner; or

(b) order that the person continue to be detained for the purpose of ensuring that the person appears as a witness at a hearing before the Commissioner; or

(3) A person who is detained under paragraph (2)(b) must be brought before a superior court judge:

(a) within 14 days after the person was brought, or last brought, before such a judge; or

(b) within such shorter or longer time as a superior court judge fixed on the person’s last previous appearance before such a judge;

and the judge may exercise any of the powers under subsection (2).

Subdivision F—Miscellaneous

93 Allowances for travelling and other expenses

A witness appearing at a hearing is entitled to be paid by the Commonwealth any allowances for travelling and other expenses that are prescribed by the regulations.

94 Protection of Commissioner and legal practitioners assisting

(1) The Commissioner has, in exercising the power to hold a hearing, the same protection and immunity as a Justice of the High Court.

(2) A legal practitioner assisting the Commissioner, or representing a person, at a hearing has the same protection and immunity as a barrister appearing for a party in proceedings in the High Court.

(3) To avoid doubt, this section does not limit the powers of the Inspector, or the powers of the Ombudsman under the Ombudsman Act 1976, to investigate issues of administrative practice in relation to a hearing that has been held under this Act.

Division 4—Use and disclosure of certain information and material

Subdivision A—Non‑disclosure notations

95 Non‑disclosure notations

(1) A non‑disclosure notation is a requirement included in a notice to produce or a private hearing summons that prohibits disclosure of information about the notice or summons, or any official matter connected with the notice or summons.

(2) The notation may permit disclosure of information in specified circumstances.

Information about rights and obligations

(3) The notation must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 98 (failure to comply with non‑disclosure notations).

Meanings of private hearing summons and official matter

(4) A private hearing summons is a summons to attend a hearing all or part of which is to be held in private.

(5) An official matter is any of the following (whether past, present or contingent):

(a) a corruption investigation;

(b) any other NACC Act process;

96 When non‑disclosure notations must or may be included

(1) The Commissioner must include a non‑disclosure notation in a notice to produce or a private hearing summons if the Commissioner is satisfied that not doing so would reasonably be expected to prejudice:

(a) a person’s safety or reputation; or

(b) a person’s fair trial, if the person has been charged with an offence or such a charge is imminent; or

(d) any action taken as a result of a NACC Act process.

(2) The Commissioner may include a non‑disclosure notation in a notice to produce or a private hearing summons if the Commissioner is satisfied that:

(a) not doing so might prejudice:

(i) a person’s safety or reputation; or

(ii) a person’s fair trial, if the person has been charged with an offence or such a charge is imminent; or

(iii) a NACC Act process; or

(iv) any action taken as a result of a NACC Act process; or

(b) not doing so might otherwise be contrary to the public interest.

(3) The Commissioner must not include a non‑disclosure notation in any other case.

Vulnerable persons and persons with disabilities

(4) If the Commissioner is aware that a non‑disclosure notation will apply to a person who has a disability or vulnerability that could affect the person’s ability to comply with the notice or summons concerned, the Commissioner must consider including permission in the notation for the disclosure of information to enable the person to obtain assistance in:

(a) complying with the notice or summons; or

(b) otherwise engaging with the processes of the NACC.

97 Cancelling non‑disclosure notations

(1) The Commissioner may cancel a non‑disclosure notation in a notice to produce or a private hearing summons if the reason for the notation no longer exists.

(2) If the Commissioner cancels the notation:

(a) the Commissioner must advise the person on whom the notice or summons was served in writing; and

(b) the cancellation takes effect when the person is so advised.

(3) Unless it is cancelled earlier, the Commissioner must consider cancelling the notation as follows:

(a) 5 years after the notice or summons is served;

(b) after every following 2 years.

Disclosure under the Privacy Act 1988

(4) A credit reporting body (within the meaning of the Privacy Act 1988) must not make a note under subsection 20E(5) of that Act about the disclosure of credit reporting information until any non‑disclosure notation prohibiting the disclosure of that information is cancelled.

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

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

(i) the notice or summons; or

(ii) any other matter arising under, or in relation to, this Act; or

(ca) to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling); 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.

Subdivision B—Use and disclosure of investigation material

99 Meaning of investigation material

(1) Investigation material is any of the following:

(a) particular information given, or a document or thing produced, by a person as required by a notice to produce;

(b) particular information or evidence given by a person at a hearing;

(d) particular information, or a document or thing, given to a person during a hearing;

(e) the identity, or particular information that may reveal the identity, of a person who has given evidence at a hearing;

(f) the identity, or particular information that may reveal the identity, of a person about whom allegations have been made at a hearing;

(g) the fact that a particular person has given or may be about to give evidence at a hearing;

(h) the identity, or particular information that may reveal the identity, of a person of interest to a corruption investigation, if the identity or information was revealed at a hearing;

(i) the fact that a hearing has been, or may be, held in private.

(2) Investigation material includes copies, contents or descriptions of that material.

(3) To avoid doubt, information, a document or a thing is not investigation material to the extent that it is obtained otherwise than:

(a) as required by a notice to produce; or

(b) at a hearing.

(4) The witness, in relation to investigation material covered by paragraph (1)(a), (b), (c), (d), (e), (f), (g) or (h), is the person mentioned in that paragraph.

(5) The witness, in relation to derivative material, means the person who is the witness in relation to the investigation material from which the derivative material was obtained.

100 Directions about use or disclosure of investigation material

(1) The Commissioner may direct that investigation material:

(a) must not be used or disclosed; or

(b) may only be used by, or disclosed to, specified persons in specified ways or on specified conditions.

Note: For when the Commissioner must give such a direction, see section 77 (investigation material from private hearings).

(2) The Commissioner may, in writing, vary or revoke the direction.

(3) However, the direction must not be varied or revoked if the Commissioner is satisfied that the variation or revocation:

(a) might prejudice a person’s safety; or

(b) would reasonably be expected to prejudice the witness’ fair trial, if the witness has been charged with a relevant offence or such a charge is imminent; or

(d) might lead to the publication of sensitive information.

Vulnerable persons and persons with disabilities

(4) If the Commissioner is aware that the direction will apply to a person who has a disability or vulnerability that could affect the person’s ability to comply with the direction, the Commissioner must consider directing that investigation material may be disclosed to enable the person to obtain assistance in:

(a) complying with the direction; or

(b) otherwise engaging with the processes of the NACC.

101 Offence—use or disclosure of investigation material

(1) A person commits an offence if:

(a) the person uses or discloses investigation material (whether or not the person is the first to do so); and

(b) the use or disclosure contravenes a direction under section 100; and

Penalty: Imprisonment for 2 years.

(2) Strict liability applies to paragraph (1)(c).

(2A) Subsection (1) does not apply in relation to the disclosure of investigation material by the witness:

(a) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the corruption investigation to which the investigation material relates; or

(b) to a legal aid officer for the purpose of seeking assistance in relation to the investigation; or

(c) to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

Note: A defendant bears an evidential burden in relation to the matters in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(2B) Subsection (1) does not apply to the use or disclosure of investigation material by a legal practitioner for the purpose of:

(a) obtaining the agreement of a person as mentioned in subsection 115(3) to the legal practitioner disclosing advice or a communication; or

(b) giving legal advice to, or making representations on behalf of, the witness.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2B): see subsection 13.3(3) of the Criminal Code.

(3) Subsection (1) has effect despite section 34B of the Inspector‑General of Intelligence and Security Act 1986.

102 Disclosure to IGIS officials and Ombudsman officials

(1) A direction given by the Commissioner under section 100 does not prevent:

(a) a person from disclosing investigation material to an IGIS official; or

(b) an IGIS official using investigation material, for the purpose of the IGIS official performing a function, or exercising a power, as an IGIS official; or

(d) a staff member of the Office of the Commonwealth Ombudsman using investigation material for the purposes of that office.

(2) However, the Commissioner may direct that use or disclosure of investigation material is not authorised by this section if the Commissioner is satisfied that using or disclosing the material would be reasonably likely to prejudice the performance or exercise of functions or powers of the Commissioner.

(3) The Commissioner must consult the IGIS or the Ombudsman, as the case requires, as soon as practicable after giving the direction.

(4) A direction given under subsection (2):

(a) has effect accordingly; and

(b) to avoid doubt, may be included in a direction under section 100 (directions about use or disclosure of investigation material).

103 Making investigation material available to courts

(1) This section applies if:

(a) a person has been charged with an offence before a federal court or a court of a State or Territory; and

(b) the court considers it desirable, in the interests of justice, that the investigation material be made available to the person or to a legal practitioner representing the person.

(2) The court may give the Commissioner a certificate to that effect.

(3) If the court does so, the Commissioner must make the investigation material available to the court.

(4) If, after examining the investigation material, the court is satisfied that the interests of justice so require, the court may make the material available to any of the following:

(a) the person or a legal practitioner representing the person;

(b) if the person is not the witness in relation to the material—the prosecutor of the person.

104 Obtaining derivative material

(1) An entity mentioned in subsection (3), that may lawfully use or disclose investigation material, may lawfully use or disclose the material for the purpose of obtaining derivative material.

(2) Subsection (1):

(a) has effect subject to:

(i) any direction given under section 100 (directions about use or disclosure of investigation material), including as affected by subsection 106(1) (court orders); and

(ii) subsection 105(4) (special rule for certain post‑charge disclosure); and

(b) does not, by implication, limit the use or disclosure of the investigation material for any other purpose.

(3) The entities are as follows:

(a) a staff member of the NACC;

(b) a person or body investigating whether the witness committed an offence against a law of the Commonwealth or of a State or Territory;

(d) a prosecuting authority;

(e) a proceeds of crime authority;

(f) the Inspector;

(g) a person assisting the Inspector;

(h) any other person or body lawfully in possession of the investigation material.

105 Disclosing investigation and derivative material to prosecutors of the witness

Investigation material

(1) A person or body, that may lawfully disclose investigation material, may lawfully disclose the material to a prosecutor of the witness.

(2) Subsection (1) has effect subject to section 100 (directions about use or disclosure of investigation material), unless subsection (4) applies.

Derivative material

(3) A person or body, that may lawfully disclose derivative material, may lawfully disclose the material to a prosecutor of the witness.

Special rule for certain post‑charge disclosure

(4) However, if the disclosure is one of the following, it may only be disclosed under a court order made under subsection 106(1):

(a) a post‑charge disclosure of investigation material;

(b) a post‑charge disclosure of derivative material that is obtained from post‑charge investigation material.

Meaning of prosecutor and prosecuting authority

(5) A prosecutor of a witness is an individual:

(a) who is a prosecuting authority or is employed or engaged by a prosecuting authority; and

(b) who:

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

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

(6) A prosecuting authority is an individual, or authority, authorised by or under a law of the Commonwealth or of a State or Territory to prosecute an offence.

106 Court’s powers to order disclosure and to ensure a fair trial

Court may order that material may be disclosed

(1) A court may, on application or on its own initiative, order that investigation material or derivative material may be disclosed to prosecutors of the witness if the court is satisfied that the disclosure is required:

(a) in the interests of justice; and

(b) despite any direction given under section 100.

The order may specify the prosecutors (by any means), and the uses to which they may put the material.

(2) Subsection (1) applies to the following courts:

(a) if the witness has been charged with a relevant offence before a federal court or a court of a State or Territory—that court;

(b) otherwise—a federal court (other than the Federal Circuit and Family Court of Australia (Division 1)) or a court of a State or Territory.

Court’s powers to ensure the witness’ fair trial

(3) This Subdivision does not, by implication, restrict a court’s power to make any orders necessary to ensure that the witness’ fair trial is not prejudiced by the possession or use of investigation material or derivative material by a prosecutor of the witness.

(4) However, a person’s trial for:

(a) an offence against a law of the Commonwealth or of a Territory; or

(b) an offence against a law of a State that has a federal aspect (within the meaning of the Crimes Act 1914);

is not unfair merely because the person has been a witness. This applies whether the person became a witness:

(d) after being charged with the offence or after such a charge was imminent.

107 Certain material may always be disclosed to prosecutors of the witness

(1) A person or body, that may lawfully disclose investigation material of a kind covered by paragraph 99(1)(d), (e), (f), (g) or (h), may lawfully disclose the investigation material, or derivative material obtained from the investigation material, to a prosecutor of the witness.

(2) A person or body, that may lawfully disclose investigation material or derivative material, may lawfully disclose the material to a prosecutor of the witness if the witness is suspected of, or has been charged with:

(a) an offence against this Part, other than an offence against subsection 75(5) (person present at a private hearing without authority); or

(b) an offence against any of the following that relates to a notice to produce or a hearing:

(i) section 137.1 or 137.2 of the Criminal Code (about false or misleading information or documents);

(ii) section 144.1 or 145.1 of the Criminal Code (about forgery); or

(c) an offence against section 149.1 of the Criminal Code (about obstruction of Commonwealth public officials) that relates to this Act.

(3) Subsections (1) and (2) have effect subject to any direction given under section 100, including as affected by subsection 106(1).

108 Use of material by prosecutors

(1) If a prosecutor of the witness lawfully possesses investigation material or derivative material, the prosecutor may use that material for purposes that include:

(a) making a decision whether to prosecute the witness; and

(b) prosecuting the witness.

This use of the investigation material is subject to:

(d) any direction given under section 100 (directions about use or disclosure of investigation material).

(2) If material is lawfully in the possession of a prosecutor of the witness, the fact that the material is investigation material or derivative material does not prevent it from being admissible in evidence against the witness in a criminal proceeding.

Note: The material may be inadmissible for other reasons (for example, because of subsection 113(2)).

(3) This Subdivision does not, by implication, restrict the use of investigation material or derivative material by, or the disclosure of that material to:

(a) a prosecuting authority who is not a prosecutor of the witness; or

(b) an individual employed or engaged by such a prosecuting authority.

(4) This section has effect subject to any law of the Commonwealth, a State or a Territory.

109 Making material available to proceeds of crime authorities

(1) A person or body, that may lawfully disclose investigation material or derivative material, may lawfully disclose the material to a proceeds of crime authority.

(2) Subsection (1) has effect subject to any direction given under section 100 (directions about use or disclosure of investigation material).

(3) If material is lawfully in the possession of a proceeds of crime authority, the fact that the material is investigation material or derivative material does not prevent it from being admissible in evidence against the witness in a confiscation proceeding.

Note: The material may be inadmissible for other reasons (for example, because of subsection 113(2)).

(4) Subsections (3) and 113(3) (self‑incrimination) do not, by implication, restrict a court’s power to make any orders necessary to prevent prejudice to the proper administration of justice.

Division 5—Retention and return of documents and things

110 Commissioner may retain documents and things

(1) This section applies if a document or thing is produced to the Commissioner under this Act.

(2) The Commissioner:

(a) may make copies of the document or thing, or take extracts from the document; and

(b) may retain possession of the document or thing for such period as is necessary for the purposes of:

(i) a corruption investigation or any other NACC Act process; or

(ii) any action taken as a result of a NACC Act process.

(3) While the Commissioner retains the document or thing, the Commissioner must allow a person who would otherwise be entitled to inspect the document or view the thing:

(a) to do so at all reasonable times; and

(b) to copy the document or thing.

(4) Subsection (3) does not apply if:

(a) possession of the document or thing by the person could constitute an offence; or

(b) inspecting or copying the document or thing (as the case requires) would compromise or damage the document or thing; or

(i) a corruption investigation or any other NACC Act process; or

(ii) any action taken as a result of a NACC Act process.

111 When documents and things must be returned

(1) This section applies if the Commissioner is satisfied that a document or thing produced under this Act is not required (or is no longer required) for the purposes of:

(a) a corruption investigation or any other NACC Act process; or

(b) any action taken as a result of a NACC Act process.

(2) The Commissioner must take reasonable steps to return the document or thing to the person from whom it was received, or to the owner if that person is not entitled to possess it.

(3) However, the Commissioner does not have to take those steps if:

(a) possession of the document or thing by a person could constitute an offence; or

(b) the document or thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or

(c) the document or thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

112 Magistrate may permit documents and things to be retained, forfeited etc.

(1) A magistrate may, on application by the Commissioner, make an order under subsection (2) in relation to a document or thing produced under this Act if the magistrate is satisfied that there are reasonable grounds to suspect that, if the document or thing is returned to any of the following persons, it is likely to be used by that person or another person in the commission of a serious offence:

(a) the owner of the document or thing;

(b) the person who produced the document or thing.

(2) The orders are as follows:

(a) an order that the document or thing may be retained for the period specified in the order;

(b) an order that the document or thing is forfeited to the Commonwealth;

(i) the thing be sold and the proceeds given to the owner of the thing; or

(ii) the thing be sold in some other way;

(d) an order that the document or thing is to be destroyed or otherwise disposed of.

Persons with interests in documents or things

(3) Before making an application under this section in relation to a document or thing, the Commissioner must:

(a) take reasonable steps to discover who has an interest in the document or thing; and

(b) if it is practicable to do so, notify each person who the Commissioner believes to have such an interest of the proposed application.

(4) The magistrate must allow a person who has an interest in the document or thing to appear and be heard in determining the application.

Meanings of magistrate and serious offence

(5) A magistrate is a magistrate who is remunerated by salary or otherwise, and includes a Judge, or acting Judge, of the Local Court of the Northern Territory.

(6) A serious offence is:

(a) an offence against a law of the Commonwealth punishable by imprisonment for 2 years or more; or

(b) an offence against either of the following provisions of the Charter of the United Nations Act 1945:

(i) Part 4 of that Act;

(ii) Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions—ISIL (Da’esh) and Al‑Qaida) Regulations 2008; or

(i) has a federal aspect (within the meaning of the Crimes Act 1914); and

(ii) is punishable by imprisonment for 2 years or more.

Division 6—Privileges and protections

113 Self‑incrimination

(1) A person is not excused from giving an answer or information, or producing a document or thing, as required by a notice to produce or at a hearing on the ground that doing so would tend to incriminate the person or expose the person to a penalty.

(2) However, the answer or information given, or the document or thing produced, is not admissible in evidence against the person in:

(a) a criminal proceeding; or

(b) a proceeding for the imposition or recovery of a penalty; or

(3) Subsection (2) does not:

(a) apply to the production of a document that is, or forms part of, a record of an existing or past business; or

(b) affect whether the answer, information, document or thing is admissible in evidence against the person in:

(i) a confiscation proceeding, if the answer or information was given, or the document or thing was produced, at a time when the proceeding had not commenced and was not imminent; or

(ii) a proceeding for an offence against this Part, other than an offence against subsection 75(5) (person present at a private hearing without authority); or

(iii) a proceeding for an offence against section 137.1 or 137.2 of the Criminal Code (about false or misleading information or documents) that relates to a notice to produce or a hearing; or

(iv) a proceeding for an offence against section 144.1 or 145.1 of the Criminal Code (about forgery) that relates to a notice to produce or a hearing; or

(v) a proceeding for an offence against section 149.1 of the Criminal Code (about obstruction of Commonwealth public officials) that relates to this Act.

Note: For subparagraph (b)(i), the court may order otherwise (see subsection 109(4)).

(4) Paragraph (3)(b) does not, by implication, affect the admissibility or relevance of the information, document or thing for any other purpose.

114 Public interest grounds

(1) A person is not excused from giving an answer or information, or producing a document or thing, as required by a direction to produce, a notice to produce, or at a hearing, on the ground that doing so:

(a) would disclose legal advice given to a person; or

(b) would disclose a communication that is protected against disclosure by legal professional privilege; or

(d) would be otherwise contrary to the public interest.

(2) Subsection (1) does not apply in relation to advice or a communication that concerns:

(a) a person’s compliance with:

(i) a direction to produce; or

(ii) a notice to produce; or

(b) a person’s attendance, or reasonably anticipated attendance, at a hearing.

(3) Paragraph (1)(a) does not apply in relation to legal advice given for the purposes of, or in the course of, a person’s work as a journalist in a professional capacity.

(4) Paragraph (1)(b) does not apply in relation to a communication made for the purposes of, or in the course of, a person’s work as a journalist in a professional capacity.

(5) The fact that a person is not excused under subsection (1) from answering a question or giving information, or producing a document or thing, does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that answer, information, document or thing.

(6) A person does not commit an offence, and is not liable to any penalty, under the provisions of any other enactment because the person:

(a) gives information, or produces a document or thing, as required by:

(i) a direction to produce; or

(ii) a notice to produce; or

(b) gives an answer or information, or produces a document or thing, as required at a hearing.

115 Material sought from legal practitioners

(1) This section applies if a legal practitioner refuses to give an answer or information, or produce a document or thing, on the grounds that doing so would disclose advice or a communication to which section 114 (public interest grounds) does not apply.

Note: See the exceptions set out in subsections 114(2), (3) and (4).

(2) The legal practitioner must, if required by the Commissioner, give the Commissioner the name and address of the person (the client) who is able to waive the legal professional privilege concerned.

(3) If the client agrees to disclosure of the advice or communication by the legal practitioner:

(a) the fact that the legal practitioner discloses the advice or communication does not otherwise affect a claim of legal professional privilege that anyone may make in relation to the advice or communication; and

(b) the advice or communication does not cease to be the subject of legal professional privilege merely because it is disclosed.

116 Other protections

(1) A person who gives an answer or information, or produces a document or thing, as required by a direction to produce, a notice to produce, or at a hearing, has the same protection as a witness in proceedings in the High Court.

(2) The Commissioner may make such arrangements as are necessary to do the following:

(a) to prevent prejudice to the safety of a person because the person or another person:

(i) has, or is to, respond to a notice to produce; or

(ii) has been, or is to be, a witness at a hearing;

(b) to protect a person from intimidation or harassment because the person or another person:

(i) has, or is to, respond to a notice to produce; or

(ii) has been, or is to be, a witness at a hearing.

(3) The arrangements include arrangements with:

(a) the Minister; or

(b) the AFP Commissioner; or

(4) This section does not limit the Witness Protection Act 1994.

Division 7—Search powers

Subdivision A—Search powers

117 Entering certain places without a search warrant

General rule—places occupied by Commonwealth agencies

(1) For the purposes of a corruption investigation, the Commissioner (or another authorised officer) may:

(a) enter any place occupied by a Commonwealth agency, at any reasonable time of the day; and

(b) carry on the investigation at that place; and

(d) make copies of, or take extracts from, any documents so inspected; and

(e) for the purpose of making a copy of, or taking an extract from, a document, remove the document from that place; and

(f) seize a document or thing found at that place if the Commissioner (or other authorised officer) believes on reasonable grounds that:

(i) the document or thing is relevant to an indictable offence; and

(ii) seizure of the document or thing is necessary to prevent its concealment, loss or destruction or its use in committing an indictable offence.

Exception—Court premises and places occupied by parliamentarians or their staff, the ABC and SBS

(2) Subsection (1) does not apply in relation to:

(a) premises occupied by the High Court or a court created by the Parliament; or

(b) any place in the Parliamentary precincts (within the meaning of the Parliamentary Precincts Act 1988); or

(d) any premises occupied by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

Exception—prohibited and restricted Defence areas

(3) Subsection (1) does not apply in relation to a place mentioned in subsection (4), unless:

(a) the Minister administering the Defence (Special Undertakings) Act 1952 (or another Minister acting for and on behalf of that Minister) has approved the person entering the place or area; and

(b) the person complies with any conditions imposed by the Minister giving the approval in relation to:

(i) the person entering that place or area; and

(ii) the manner in which the investigation is to be carried on at that place or area.

(4) The places are as follows:

(a) a place that is a prohibited area for the purposes of the Defence (Special Undertakings) Act 1952 under section 7 of that Act;

(b) an area of land or water, or an area of land and water, that is declared under section 14 of that Act to be a restricted area for the purposes of that Act.

Exception—places declared by the Attorney‑General

(5) If the Attorney‑General is satisfied that carrying on an investigation of a corruption issue at a place might prejudice the security or defence of the Commonwealth, the Attorney‑General may, by written notice to the Commissioner, declare the place to be a place to which this subsection applies.

(6) While the declaration is in force, subsection (1) does not authorise a person to do anything at the place unless:

(a) a Minister specified in the declaration (or another Minister acting for and on behalf of that Minister) has approved the person entering the place; and

(b) the person complies with any conditions imposed by the Minister giving the approval in relation to:

(i) the person entering that place; and

(ii) the manner in which the investigation is to be carried on at that place.

(7) A declaration by the Attorney‑General under this section is not a legislative instrument.

118 Receipts for documents and things seized without warrant

(1) If a document or thing is seized, or removed from a place, under section 117 (entering certain places without a search warrant), the Commissioner (or another authorised officer) must provide a receipt for the thing.

(2) If 2 or more documents or things are seized or moved, they may be covered by the one receipt.

119 Search warrants, and stopping and searching conveyances

(1) For the purposes of a corruption investigation, an authorised officer who is not a constable for the purposes of the Crimes Act 1914 has the same powers and duties under Divisions 2, 3 and 5 of Part IAA of that Act as a constable has under those Divisions.

(2) The Crimes Act 1914 has effect for the purposes of this section with the modifications set out in Subdivision B.

120 Use and return of documents and things

Using and sharing documents and things

(1) Subdivision A of Division 4C of Part IAA of the Crimes Act 1914 applies in relation to the following as if they were things seized under Part IAA of that Act:

(a) a document, thing or copy seized or made under section 117 (entering certain places without a search warrant);

(b) a document, thing, copy or photograph seized or made under Part IAA of the Crimes Act 1914 as applied by section 119 (search warrants, and stopping and searching conveyances).

Return of documents and things

(2) Subdivision B of Division 4C of Part IAA of the Crimes Act 1914 applies in relation to a thing seized under section 117 (entering certain places without a search warrant) as if the thing had been seized under Division 2 of Part IAA of the Crimes Act 1914.

(3) Subdivision B of Division 4C of Part IAA of the Crimes Act 1914 applies in relation to a thing seized under that Act as applied by section 119 (search warrants, and stopping and searching conveyances).

Modification of the Crimes Act

(4) For the purposes of this section, the Crimes Act 1914 has effect:

(a) as if a reference to the Commissioner (within the meaning of that Act) were a reference to the National Anti‑Corruption Commissioner; and

(b) as if the following paragraph were inserted after paragraph 3ZQU(5)(a) of that Act:

“(aa) a body (whether incorporated or not) that is established by the law of a State or Territory for purposes that include the purpose of investigating corruption in State or Territory government entities; or”

Subdivision B—Modification of Crimes Act search powers

121 Application of Subdivision

This Subdivision applies for the purposes of section 119 (search warrants, and stopping and searching conveyances).

122 Subsection 3C(1)—definition of evidential material

The Crimes Act 1914 has effect as if the definition of evidential material in subsection 3C(1) of that Act were substituted with the following definition:

“evidential material means the following, and includes such things in electronic form:

(a) a thing relevant to the investigation of a corruption issue which could, in the opinion of the Commissioner, involve corrupt conduct that is serious or systemic;

(b) a thing relevant to an indictable offence or a thing relevant to a summary offence.”

123 Divisions 2, 3 and 5 of Part IAA—references to constable and Commissioner

(1) Divisions 2, 3 and 5 of Part IAA of the Crimes Act 1914 (and any related definitions in that Act) have effect as if:

(a) a reference to a constable included a reference to an authorised officer; and

(b) a reference to the Commissioner (within the meaning of that Act) were a reference to the National Anti‑Corruption Commissioner.

(2) Despite paragraph (1)(a), subsection 3ZW(1) of the Crimes Act 1914 has effect as if the reference in that subsection to a constable were a reference to an authorised officer.

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 the warrant is to search:

(a) a person (the journalist) who works in a professional capacity as a journalist; or

(b) the employer of the journalist (working in that capacity); or

(c) premises occupied or controlled by the journalist or the employer (in the capacities covered by paragraphs (a) and (b)).

(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.”

125 Subsection 3E(4)—previous warrants

The Crimes Act 1914 has effect as if subsection 3E(4) of that Act were substituted with the following subsection:

“(4) If the person applying for the warrant is one of the following and has, at any time previously, applied for a warrant relating to a corruption issue and the same person or premises, the person must state particulars of those applications and their outcomes in the information:

(a) an authorised officer;

(b) a member of the Australian Federal Police;

126 Provisions of sections 3E, 3F, 3L and 3LAA

Offence to include corruption issue

(1) The Crimes Act 1914 has effect as if a reference in the following provisions of that Act to an offence included a reference to a corruption issue:

(a) paragraph 3E(5)(a);

(b) subparagraphs 3E(6)(a)(i) and (7)(a)(i);

Subparagraphs 3E(6)(a)(ii) and (7)(a)(ii)—relevant things

(2) The Crimes Act 1914 has effect as if subparagraphs 3E(6)(a)(ii) and (7)(a)(ii) of that Act were substituted with the following subparagraph:

“(ii) a thing relevant to an offence that is an indictable offence, or to a corruption issue that the Commissioner is investigating; or”

Subparagraph 3F(1)(d)(ii)—evidential material

(3) The Crimes Act 1914 has effect as if subparagraph 3F(1)(d)(ii) of that Act were substituted with the following subparagraph:

“(ii) evidential material in relation to an offence that is an indictable offence, or to a corruption issue that the Commissioner is investigating; or”

Subparagraph 3F(2)(c)(ii)—relevant things

(4) The Crimes Act 1914 has effect as if subparagraph 3F(2)(c)(ii) of that Act were substituted with the following subparagraph:

“(ii) a thing relevant to an offence that is an indictable offence, or to a corruption issue that the Commissioner is investigating; or”

Subsections 3L(1B) and 3LAA(3)

(5) The Crimes Act 1914 has effect as if the references in subsections 3L(1B) and 3LAA(3) of that Act to the Australian Federal Police were references to the National Anti‑Corruption Commission.

127 Subparagraph 3LA(2)(b)(i)—accessing computer systems

The Crimes Act 1914 has effect as if subparagraph 3LA(2)(b)(i) of that Act were substituted with the following subparagraphs:

“(i) reasonably suspected of having committed the offence stated in the relevant warrant; or

(ia) reasonably suspected of having engaged in the corrupt conduct which is the subject of the corruption issue stated in the relevant warrant; or”

128 Provisions of section 3T

Relevant things—indictable offences and corruption issues

(1) The Crimes Act 1914 has effect as if paragraph 3T(1)(a) of that Act were substituted with the following paragraph:

“(a) a thing relevant to an indictable offence, or to a corruption issue that the Commissioner is investigating, is in or on a conveyance; and”

Relevant things—other offences and corruption issues

(2) The Crimes Act 1914 has effect as if subsection 3T(3) of that Act were substituted with the following subsection:

“(3) If, in the course of searching for the thing, the constable or authorised officer finds another thing relevant to an offence, or to a corruption issue that the Commissioner is investigating, the constable or authorised officer may seize that thing if the constable or authorised officer suspects, on reasonable grounds, that:

(a) it is necessary to seize it in order to prevent its concealment, loss or destruction; and

(b) it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.”

Division 8—Interaction with criminal procedure and confiscation proceedings

Subdivision A—Key concepts

129 Meaning of pre‑charge

(1) An event covered by subsection (2) is a pre‑charge event in relation to a person if it happens at a time when:

(a) the person has not been charged with a relevant offence and such a charge is not imminent; or

(b) all such charges have been resolved.

(2) The events are as follows:

(a) a notice to produce is issued to the person;

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

(d) material at a hearing that relates to the person becomes investigation material;

(e) such investigation material or derivative material is used or disclosed.

130 Meaning of post‑charge

(1) An event covered by subsection (2) is a post‑charge event in relation to a person if it happens at a time when:

(a) the person has been charged with a relevant offence and that charge is still to be resolved; or

(b) such a charge is imminent.

(2) The events are as follows:

(a) a notice to produce is issued to the person;

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

(d) material at a hearing that relates to the person becomes investigation material;

(e) such investigation material or derivative material is used or disclosed.

131 Meaning of relevant offence

An offence is a relevant offence if:

(a) in the case of investigation material, derivative material or a witness—the subject matter of the notice to produce or hearing, as relevant, relates to the subject matter of the offence; or

(b) in the case of a summons—the subject matter of the summons relates to the subject matter of the offence.

132 Meaning of imminent and protected suspect

When a charge for an offence is imminent

(1) A charge for an offence is imminent for a person if:

(a) the person is a protected suspect; or

(b) the person is under arrest for the offence, but has not been charged with the offence; or

(c) a person with authority to commence a process for prosecuting the person for the offence has decided to commence, but has not yet commenced, the process.

Note: Paragraph (1)(c) would apply, for example, if a person with authority to lay a charge has decided to lay, but not yet laid, the charge.

When a confiscation proceeding is imminent

(2) A confiscation proceeding against a person is imminent if a person with authority to commence the proceeding has decided to commence, but has not yet commenced, the proceeding.

Meaning of protected suspect

(3) Each of the following is a protected suspect:

(a) a protected suspect (within the meaning of Part IC of the Crimes Act 1914);

(b) a person who would be covered by paragraph (a) if the definition of Commonwealth offence in section 23B of that Act included any offence against a law of a State or Territory.

133 Meaning of derivative material

Any evidence, information, document or thing obtained directly or indirectly from investigation material is derivative material.

134 Meaning of pre‑confiscation application

(1) An event covered by subsection (2) is a pre‑confiscation application event in relation to a person if it happens at a time when:

(a) a relevant confiscation proceeding has not commenced against the person and such a proceeding is not imminent; or

(b) all such proceedings have been resolved.

(2) The events are as follows:

(a) a notice to produce is issued to the person;

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

(d) material at a hearing that relates to the person becomes investigation material;

(e) such investigation material or derivative material is used or disclosed.

135 Meaning of post‑confiscation application

(1) An event covered by subsection (2) is a post‑confiscation application event in relation to a person if it happens at a time when:

(a) a relevant confiscation proceeding has commenced against the person and that proceeding is still to be resolved; or

(b) such a proceeding is imminent.

(2) The events are as follows:

(a) a notice to produce is issued to the person;

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

(d) material at a hearing that relates to the person becomes investigation material;

(e) such investigation material or derivative material is used or disclosed.

136 Meaning of confiscation proceeding

(1) A confiscation proceeding means a proceeding under:

(a) the Proceeds of Crime Act 2002 (the Act); or

(b) a corresponding law within the meaning of the Act.

(2) A prosecution for an offence under the Act or a corresponding law is not a confiscation proceeding.

(3) A proceeding is taken to be a confiscation proceeding against a person if:

(a) for a proceeding under the Act—the person is a suspect (within the meaning of the Act) for the proceeding; or

(b) for a proceeding under a corresponding law—the person is in a corresponding category for that law.

137 Meaning of relevant confiscation proceeding

A confiscation proceeding is a relevant confiscation proceeding if:

(a) in the case of investigation material, derivative material or a witness—the subject matter of the notice to produce or hearing, as relevant, relates to the subject matter of the proceeding; or

(b) in the case of a summons—the subject matter of the summons relates to the subject matter of the proceeding.

138 Meaning of proceeds of crime authority

Each of the following is a proceeds of crime authority:

(a) a proceeds of crime authority within the meaning of the Proceeds of Crime Act 2002;

(b) an authority of a State or Territory responsible for conducting a confiscation proceeding under a corresponding law (within the meaning of the Proceeds of Crime Act 2002).

139 When a charge or confiscation proceeding is resolved

Charge for an offence

(1) A charge for an offence is resolved in relation to a person at the latest of the following times:

(a) when:

(i) the charge is withdrawn; or

(ii) the charge is dismissed; or

(iii) the person is not committed on the charge following a committal hearing; or

(iv) the person is acquitted of the offence; or

(v) the person is sentenced for the offence; or

(vi) the person is dealt with by being the subject of an order made as a consequence of a finding of guilt; or

(vii) the charge is otherwise finally dealt with;

(b) if an appeal relating to a conviction for the offence the subject of the charge is not lodged within the period for lodging such an appeal—when that period ends;

(c) if an appeal relating to a conviction for the offence the subject of the charge is lodged—when the appeal lapses or is finally determined.

(2) Despite paragraph (1)(b), if an appeal relating to a conviction for an offence the subject of the charge is lodged after that period ends, the charge ceases to be resolved until that appeal lapses or is finally determined.

Confiscation proceedings

(3) A confiscation proceeding is resolved in relation to a person at the latest of the following times:

(a) when the proceeding is discontinued;

(b) if an appeal relating to the proceeding is not lodged within the period for lodging such an appeal—when that period ends;

(4) Despite paragraph (3)(b), if an appeal relating to the proceeding is lodged after that period ends, the proceeding ceases to be resolved until that appeal lapses or is finally determined.

Subdivision B—Commissioner’s powers—limited operation provisions

140 Limited operation—Commissioner’s power to issue notices to produce

Limitation to pre‑charge and pre‑confiscation application operation

(1) In addition to its effect apart from this subsection, this Act also has the effect it would have if the Commissioner’s power to issue a notice to produce were, by express provision, confined to a power to issue either or both of the following:

(a) a pre‑charge notice to produce;

(b) a pre‑confiscation application notice to produce.

Limitation of scope of post‑charge notice to produce

(2) In addition to its effect apart from this subsection, this Act also has the effect it would have if the information, documents or things required to be given under a post‑charge notice to produce excluded, by express provision, information, documents or things in relation to the subject matter of the charge or imminent charge.

Limitation of scope of post‑confiscation application notice to produce

(3) In addition to its effect apart from this subsection, this Act also has the effect it would have if the information, documents or things required to be given under a post‑confiscation application notice to produce excluded, by express provision, information, documents or things in relation to the subject matter of the confiscation proceeding or imminent confiscation proceeding.

141 Limited operation—Commissioner’s power to hold hearings

In addition to its effect apart from this subsection, this Act also has the effect it would have if the Commissioner’s power to hold a hearing were, by express provision, confined to a power to hold either or both of the following:

(a) a pre‑charge hearing;

(b) a pre‑confiscation application hearing.

142 Limited operation—Commissioner’s power to summon person

Limitation to pre‑charge and pre‑confiscation application operation

(1) In addition to its effect apart from this subsection, this Act also has the effect it would have if the Commissioner’s power to issue a summons to a person to attend a hearing were, by express provision, confined to a power to issue either or both of the following:

(a) a pre‑charge summons;

(b) a pre‑confiscation application summons.

Limitation of scope of post‑charge summons

(2) In addition to its effect apart from this subsection, this Act also has the effect it would have if the matters in relation to which a person who has been issued a post‑charge summons is required to give evidence or information, or produce a document or thing, at a hearing excluded, by express provision, matters in relation to the subject matter of the charge or imminent charge.

Limitation of scope of post‑confiscation application summons

(3) In addition to its effect apart from this subsection, this Act also has the effect it would have if the matters in relation to which a person who has been issued a post‑confiscation application summons is required to give evidence or information, or produce a document or thing, at a hearing excluded, by express provision, matters in relation to the subject matter of the confiscation proceeding or imminent confiscation proceeding.

Limitation to post‑charge operation

(4) In addition to its effect apart from this subsection, this Act also has the effect it would have if, by express provision:

(a) subsection 63(2) excluded any reference to a post‑confiscation summons or a confiscation proceeding; and

(b) paragraph 63(6)(b) were omitted.

Limitation to post‑confiscation operation

(5) In addition to its effect apart from this subsection, this Act also has the effect it would have if, by express provision:

(a) subsection 63(2) excluded any reference to a post‑charge summons or a charge; and

(b) paragraph 63(6)(a) were omitted.

143 Limited operation—obtaining derivative material

Limitation relating to offences

(1) In addition to its effect apart from this subsection, this Act also has the effect it would have if the use or disclosure by an entity of investigation material under subsection 104(1) in relation to a witness for the purpose of obtaining derivative material were, by express provision, confined to either or both of the following:

(a) a pre‑charge use or disclosure;

(b) a post‑charge use or disclosure of pre‑charge investigation material.

Limitation relating to confiscation proceedings

(2) In addition to its effect apart from this subsection, this Act also has the effect it would have if the use or disclosure by an entity of investigation material under subsection 104(1) in relation to a witness for the purpose of obtaining derivative material were, by express provision, confined to either or both of the following:

(a) a pre‑confiscation application use or disclosure;

(b) a post‑confiscation application use or disclosure of pre‑confiscation application investigation material.

Limitation of entities

(3) In addition to its effect apart from this subsection, this Act also has the effect it would have if the entities that may lawfully use or disclose investigation material in relation to a witness for the purpose of obtaining derivative material were, by express provision, limited to one or more of the following entities:

(a) a staff member of the NACC;

(b) a person or body investigating whether the witness committed an offence against a law of the Commonwealth or of a State or Territory;

(d) a person assisting the Inspector;

(e) a prosecuting authority;

(f) a proceeds of crime authority;

(g) any other person or body, other than a prosecutor of the witness, lawfully in possession of the investigation material;

(h) any other person or body, other than a proceeds of crime authority, lawfully in possession of the investigation material.

144 Limited operation—disclosing investigation material to prosecutors of the witness

In addition to its effect apart from this subsection, this Act also has the effect it would have if the disclosure of investigation material under subsection 105(1) in relation to a witness to a prosecutor of the witness were, by express provision, confined to either or both of the following:

(a) a pre‑charge disclosure;

(b) a post‑charge disclosure of investigation material that is:

(i) pre‑charge investigation material; and

(ii) made under an order made under subsection 106(1).

145 Limited operation—disclosing derivative material to prosecutors of the witness

In addition to its effect apart from this subsection, this Act also has the effect it would have if the disclosure of derivative material under subsection 105(3) in relation to a witness to a prosecutor of the witness were, by express provision, confined to any one or more of the following:

(a) a pre‑charge disclosure;

(b) a post‑charge disclosure of derivative material that is obtained from pre‑charge investigation material (whether from a pre‑charge use of that investigation material or otherwise);

(i) obtained from post‑charge investigation material; and

(ii) made under an order made under subsection 106(1).

146 Limited operation—material that may always be disclosed to prosecutors of the witness

In addition to its effect apart from this subsection, this Act also has the effect it would have if the disclosure of investigation material or derivative material under subsection 107(1) or (2) in relation to a witness to a prosecutor of the witness were, by express provision, confined to any one or more of the following:

(a) a pre‑charge disclosure;

(b) a post‑charge disclosure of pre‑charge investigation material;

(c) a post‑charge disclosure of derivative material that is obtained from pre‑charge investigation material (whether from a pre‑charge use of the investigation material or otherwise);

(d) a post‑charge disclosure of derivative material that is obtained from post‑charge investigation material.

147 Limited operation—disclosing material to proceeds of crime authorities

In addition to its effect apart from this section, this Act also has the effect it would have if the disclosure of investigation material or derivative material under subsection 109(1) in relation to a person were, by express provision, confined to any one or more of the following:

(a) a pre‑confiscation application disclosure;

(b) a post‑confiscation application disclosure of pre‑confiscation application investigation material;

(c) a post‑confiscation application disclosure of derivative material that is obtained from pre‑confiscation application investigation material (whether from a pre‑confiscation application use of the investigation material or otherwise);

(d) a post‑charge disclosure of derivative material that is obtained from post‑confiscation application investigation material.

Subdivision C—Witness’ fair trial—limited operation

148 Limited operation—witness’ fair trial

In addition to its effect apart from this section, this Act also has the effect it would have if subsection 106(4), or paragraph 106(4)(d), had not been enacted.

Part 8—Reporting on corruption investigations

149 Report on corruption investigation

Commissioner must prepare an investigation report

(1) After completing a corruption investigation, the Commissioner must prepare a report (an investigation report) on the investigation.

Contents of an investigation report

(2) Subject to section 151, the investigation report must set out:

(a) the Commissioner’s findings or opinions on the corruption issue; and

(b) a summary of the evidence and other material on which those findings or opinions are based; and

(d) if recommendations are made—the reasons for those recommendations.

Note: See also section 153, which requires the Commissioner to give certain persons an opportunity to respond before including certain information in the report. That section also requires additional information to be included in an investigation report in certain circumstances.

(3) For the purposes of paragraph (2)(a), if the Commissioner forms the opinion that a person whose conduct has been investigated has engaged in corrupt conduct of a serious or systemic nature, the Commissioner must include a statement to that effect in the investigation report.

(4) To avoid doubt, for the purposes of paragraph (2)(a), if the Commissioner forms the opinion that a person whose conduct has been investigated has not engaged in corrupt conduct the Commissioner must set out that opinion in the report.

(5) If:

(a) a person gives evidence at a hearing in relation to a corruption investigation; and

(b) the person is not the subject of any findings or opinions in relation to the corruption investigation;

the Commissioner may include a statement to that effect in the investigation report if the Commissioner is satisfied that it is appropriate and practicable to do so to avoid damage to the person’s reputation.

Recommendations that may be made

(6) Without limiting paragraph (2)(c), the Commissioner may make one or more of the following recommendations:

(a) taking action in relation to a person, in accordance with relevant procedures, with a view to improving their performance;

(b) terminating the employment of a person in accordance with relevant procedures;

(d) adopting measures to remedy deficiencies in the policy, procedures or practices that facilitated:

(i) the employment or engagement of an unsuitable person; or

(ii) a person engaging in corrupt conduct; or

(iii) the failure to detect corrupt conduct engaged in by a person.

Section does not limit what may be included in an investigation report

(7) This section does not limit what may be included in an investigation report.

150 Effect of findings or opinions about corrupt conduct

(1) This section applies if an investigation report includes a finding or opinion that a person has engaged, is engaging or will engage in corrupt conduct or conduct that could constitute or involve corrupt conduct.

(2) The finding or opinion does not constitute a finding or opinion that the person is guilty of or has committed, is committing or will commit an offence.

151 Excluding certain information from investigation report

(1) The Commissioner must exclude the following from an investigation report:

(a) section 235 certified information;

(b) information that the Commissioner is satisfied is sensitive information.

Note: This information must be included in a protected information report (see section 152).

(2) Before including information in the report, the Commissioner must consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates about whether the information is sensitive information.

152 Protected information report

If the Commissioner excludes information from an investigation report under section 151, the Commissioner must prepare another report (a protected information report) that sets out:

(a) the information; and

(b) the reasons for excluding the information from the investigation report.

Note: If a protected information report is given to a person, the person must not disclose the report, or information contained in the report, to the public or a section of the public (see section 234).

153 Opportunity to respond must be given before including certain information in investigation report

(1) Before including in an investigation report an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, the Commissioner must give the head of the agency, the head of the entity or the other person concerned:

(a) a statement setting out the opinion, finding or recommendation; and

(b) a reasonable opportunity to respond to the opinion, finding or recommendation.

(2) The response may be given by:

(a) the head of the Commonwealth agency or of the State or Territory government entity concerned, or a person authorised by the head; or

(b) in relation to any other person concerned—the other person concerned, or, with approval, a person representing the other person.

(3) If:

(a) the opinion or finding is that a person has engaged in corrupt conduct; and

(b) the person provides a response to the finding or opinion;

the Commissioner must include in the investigation report a summary of the substance of the response if the person requests the Commissioner to do so.

(4) Subsection (3) is subject to section 151.

(5) However, the Commissioner must not include in the investigation report any information in a response provided under this section that would identify any person who, in the opinion of the Commissioner, has not engaged in corrupt conduct unless the Commissioner:

(a) is satisfied that it is necessary to do so in the public interest; and

(b) is satisfied that doing so will not cause unreasonable damage to the reputation, safety or wellbeing of the person; and

(c) includes in the report a statement that, in the opinion of the Commissioner, the person has not engaged in corrupt conduct.

154 Commissioner to give copies of reports to certain persons

(1) The Commissioner must give the person referred to in subsection (2):

(a) the investigation report; and

(b) if a protected information report is prepared in relation to the investigation—the protected information report.

(2) For the purposes of subsection (1), the person is:

(a) if the investigation report relates to an investigation that concerned the conduct of the Minister—the Prime Minister; or

(b) otherwise—the Minister.

(3) Subject to subsection (5), the Commissioner:

(a) must give a copy of an investigation report; and

(b) may give a copy of a protected information report;

to the following persons:

(d) for a corruption investigation concerning the conduct of a staff member of a Commonwealth agency—the head of the agency and the person mentioned in subsection (4);

(e) for a corruption investigation concerning the conduct of the head of a Commonwealth agency:

(i) the person mentioned in subsection (4); and

(ii) if the head of the Commonwealth agency is an Agency Head (within the meaning of the Public Service Act 1999)—the Australian Public Service Commissioner;

(f) for a corruption investigation concerning the conduct of a senator—the President of the Senate;

(g) for a corruption investigation concerning the conduct of a member of the House of Representatives—the Speaker of the House of Representatives.

Note: A parliamentary office is a type of Commonwealth agency and the parliamentarian is the head of the agency (see subsection 11(1)).

(4) For the purposes of paragraphs (3)(d) and (e), the person is:

(a) if the Commonwealth agency is a Department of the Parliament established under the Parliamentary Service Act 1999:

(i) for the Department of the Senate—the President of the Senate; or

(ii) for the Department of the House of Representatives—the Speaker of the House of Representatives; or

(iii) otherwise—both the President of the Senate and the Speaker of the House of Representatives; or

(b) if the Commonwealth agency is established or continued in existence by an Act and paragraph (a) does not apply—the Minister administering that Act; or

(c) if the Commonwealth agency is a Commonwealth entity and neither paragraph (a) nor paragraph (b) applies—the Minister having general responsibility for the activities of the entity.

(5) The Commissioner must exclude the following from a protected information report given under paragraph (3)(b):

(a) section 235 certified information, if the disclosure of the information would contravene the certificate issued under section 235;

(b) information that the Commissioner is satisfied:

(i) is sensitive information; and

(ii) is desirable in the circumstances to exclude from the report.

(6) In deciding whether to exclude information from a protected information report under paragraph (5)(b), the Commissioner must seek to achieve an appropriate balance between:

(a) the interest of a person mentioned in paragraphs (3)(c) to (g) or subsection (4), to whom the report is to be given, in having the information included in the report; and

(b) the prejudicial consequences that might result from including the information in the report.

155 Tabling of investigation report in Parliament

If:

(a) the Commissioner gives the Minister or the Prime Minister an investigation report under subsection 154(1); and

(b) one or more public hearings were held in the course of the investigation to which the investigation report relates;

the Minister or Prime Minister (as the case may be) must table the report in each House of the Parliament within 15 sitting days of that House after its receipt.

156 Publishing investigation report in whole or part

(1) The Commissioner may publish the whole or a part of an investigation report if:

(a) the Commissioner has given the Minister or the Prime Minister the investigation report under subsection 154(1); and

(b) the Commissioner is satisfied that it is in the public interest to publish the whole or the part of the report (as the case may be).

(2) This section is subject to section 157.

157 Opportunity to respond must be given before publishing an investigation report containing critical opinions etc.

(1) This section applies to an investigation report that:

(a) has not been tabled in Parliament; and

(b) is published, in whole or in part, under section 156 more than 3 months after the report is given to the Minister or the Prime Minister under subsection 154(1).

(2) The investigation report must not include an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, unless the Commissioner has given the head of the agency, the head of the entity or the other person concerned:

(a) a statement setting out the opinion, finding or recommendation; and

(b) a reasonable opportunity to respond to:

(i) the opinion, finding or recommendation; and

(ii) the proposed publication of the opinion, finding or recommendation.

(3) The response may be given by:

(a) the head of the Commonwealth agency or of the State or Territory government entity concerned, or a person authorised by the head; or

(b) in relation to any other person concerned—the other person concerned, or, with approval, a person representing the other person.

158 Advising person who referred corruption issue of outcome of the investigation

(1) The Commissioner may advise a person (or a representative nominated by the person) of the outcome of an investigation of a corruption issue raised by the person in a referral under Part 5.

(2) One way of advising the person (or the representative) is to give a copy of all or part of the investigation report prepared in relation to the investigation.

(3) In advising the person of the outcome of the investigation, the Commissioner:

(a) must not disclose section 235 certified information to the person if the disclosure of the information to the person would contravene the certificate issued under section 235; and

(b) must exclude information from the advice if the Commissioner is satisfied that:

(i) the information is sensitive information; and

(ii) it is desirable in the circumstances to exclude the information from the advice.

(4) Before giving the person information about the outcome of the investigation, the Commissioner must consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates about whether the information is sensitive information.

(5) In deciding whether to exclude information from the advice under paragraph (3)(b), the Commissioner must seek to achieve an appropriate balance between:

(a) the person’s interest in having the information included in the advice; and

(b) the prejudicial consequences that might result from including the information in the advice.

159 Advising person whose conduct is investigated of outcome of the investigation

(1) The Commissioner must advise a person of the outcome of a corruption investigation if the Commissioner investigates a corruption issue concerning the conduct of the person.

(3) Without limiting subsection (1), the Commissioner may advise the person of the outcome of the investigation by giving the person a copy of the whole or a part of the investigation report prepared in relation to the investigation.

(4) In advising the person under subsection (1), the Commissioner:

(a) must not disclose section 235 certified information to the person if the disclosure of the information to the person would contravene the certificate issued under section 235; and

(b) must exclude information from the advice if the Commissioner is satisfied that:

(i) the information is sensitive information; and

(ii) it is desirable in the circumstances to exclude the information from the advice.

(5) Before giving the person information under subsection (1), the Commissioner must consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates about whether the information is sensitive information.

(6) In deciding whether to exclude information from the advice under paragraph (4)(b), the Commissioner must seek to achieve an appropriate balance between:

(a) the person’s interest in having the information included in the advice; and

(b) the prejudicial consequences that might result from including the information in the advice.

(7) However, subsection (1) does not apply if advising the person of the outcome of the investigation:

(a) is not reasonably practicable; or

(b) would be contrary to the public interest, including because it might prejudice:

(i) a person’s fair trial; or

(ii) a NACC Act process; or

(iii) any other investigation that is being undertaken by a Commonwealth agency or a State or Territory government entity; or

(iv) any action taken as a result of a NACC Act process or an investigation covered by subparagraph (iii).

160 Follow‑up action on investigation report

(1) The Commissioner may request the head of a Commonwealth agency to whom an investigation report is given to give the Commissioner, within a specified time, details of any action that the head of the Commonwealth agency has taken, or proposes to take, with respect to a recommendation included in the investigation report.

(2) The head of the Commonwealth agency must comply with the request.

(3) If the Commissioner is not satisfied with the response of the head of the Commonwealth agency to the request, the Commissioner may refer to the person mentioned in subsection (4):

(a) the Commissioner’s recommendation and the reasons for that recommendation; and

(b) the response of the head of the agency to the recommendation; and

(4) For the purposes of subsection (3), the person is:

(a) if the Commonwealth agency is a parliamentary office:

(i) for a parliamentarian who is a senator—the President of the Senate; or

(ii) for a parliamentarian who is a member of the House of Representatives—the Speaker of the House of Representatives; or

(b) if the Commonwealth agency is a Department of the Parliament established under the Parliamentary Service Act 1999:

(i) for the Department of the Senate—the President of the Senate; or

(ii) for the Department of the House of Representatives—the Speaker of the House of Representatives; or

(iii) otherwise—both the President of the Senate and the Speaker of the House of Representatives; or

(c) if the Commonwealth agency is established or continued in existence by an Act and paragraph (b) does not apply—the Minister administering that Act; or

(d) if the Commonwealth agency is a Commonwealth entity and neither paragraph (b) nor paragraph (c) applies—the Minister having general responsibility for the activities of the entity.

(5) If the Commissioner refers material to a person under subsection (3), the Commissioner may also send a copy of that material to:

(a) the President of the Senate for presentation to the Senate; and

(b) the Speaker of the House of Representatives for presentation to the House of Representatives.

(6) The Commissioner must exclude the following from the copy of the material sent under subsection (5):

(a) section 235 certified information;

(b) information that the Commissioner is satisfied is sensitive information.

Part 9—Public inquiries

161 Commissioner may conduct public inquiries

(1) The Commissioner may, on the Commissioner’s own initiative, conduct a public inquiry into one or more of the following:

(a) corruption risks and vulnerabilities in Commonwealth agencies;

(b) measures to prevent corruption in Commonwealth agencies.

(2) A public inquiry is not a corruption investigation, and must not be, or involve, an inquiry into a particular corruption issue.

(3) The Commissioner may conduct a public inquiry in such manner as the Commissioner thinks fit.

162 Commissioner may invite submissions

The Commissioner may invite submissions on matters that are the subject of a public inquiry.

163 Commissioner’s powers

(1) Part 7 (investigating corruption issues) applies for the purposes of a public inquiry in the same way as that Part applies to the investigation of a corruption issue.

(2) However:

(a) the following provisions of Part 7 do not apply for the purposes of a public inquiry:

(i) Subdivision E of Division 3 (travel documents and arrest of witnesses);

(ii) Division 7 (search powers); and

(b) that Part, as applied by this section, does not authorise:

(i) a notice to produce to be served on a person other than an agency head; or

(ii) the taking of any action in relation to a post‑charge or a post‑confiscation application event.

164 Reporting on public inquiries

(1) After completing a public inquiry, the Commissioner must prepare a report (the inquiry report) on the inquiry.

Contents of inquiry report

(2) Without limiting what the report may include, it must include:

(a) the Commissioner’s findings or opinions on corruption risks, vulnerabilities, and the effectiveness of corruption prevention arrangements in Commonwealth agencies; and

(b) a summary of the evidence and other material on which those findings or opinions are based; and

(c) any recommendations concerning the need for, or desirability of, legislative or administrative reform to prevent corruption; and

(d) if recommendations are made—the reasons for those recommendations.

(3) The report must not include:

(a) findings or opinions about specific instances of corrupt conduct; or

(b) section 235 certified information; or

(4) Before including information in the report, the Commissioner must consult with the head of each Commonwealth agency or State or Territory government entity to which the information relates about whether the information is sensitive information.

165 Protected information report

If the Commissioner excludes section 235 certified information or sensitive information from an inquiry report, the Commissioner must prepare another report (a protected information report) that sets out:

(a) the information; and

(b) the reasons for excluding the information from the inquiry report.

166 Opportunity to respond must be given before including certain information in inquiry report

(1) Before including in an inquiry report an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, the Commissioner must give the head of the agency, the head of the entity or the other person concerned:

(a) a statement setting out the opinion, finding or recommendation; and

(b) a reasonable opportunity to respond to the opinion, finding or recommendation.

(2) The response may be given by:

(a) the head of the Commonwealth agency or of the State or Territory government entity concerned, or a person authorised by the head; or

(b) in relation to any other person concerned—the other person concerned, or, with approval, a person representing the other person.

167 Commissioner to give copies of reports to certain persons

(1) The Commissioner must give the Minister:

(a) the inquiry report; and

(b) if a protected information report is prepared in relation to the inquiry—the protected information report.

(2) For a public inquiry concerning a Commonwealth agency, the Commissioner:

(a) must give a copy of an inquiry report; and

(b) may give a copy of a protected information report;

to the following persons:

(d) if the agency is established or continued in existence by an Act—the Minister administering that Act (subject to paragraph (e));

(e) if the agency is a Department of the Parliament established under the Parliamentary Service Act 1999:

(i) for the Department of the Senate—the President of the Senate; or

(ii) for the Department of the House of Representatives—the Speaker of the House of Representatives; or

(iii) otherwise—both the President of the Senate and the Speaker of the House of Representatives;

(f) if the agency is a Commonwealth entity—the Minister having general responsibility for the activities of the entity.

(3) The Commissioner must exclude the following from a protected information report given under paragraph (2)(b):

(a) section 235 certified information, if the disclosure of the information would contravene the certificate issued under section 235;

(b) information that the Commissioner is satisfied:

(i) is sensitive information; and

(ii) is desirable in the circumstances to exclude from the report.

(4) In deciding whether to exclude information from a protected information report under paragraph (3)(b), the Commissioner must seek to achieve an appropriate balance between:

(a) the interest of a person mentioned in paragraphs (2)(c) to (f), to whom the report is to be given, in having the information included in the report; and

(b) the prejudicial consequences that might result from including the information in the report.

168 Tabling of inquiry report in Parliament

The Minister must table an inquiry report in each House of the Parliament within 15 sitting days of that House after the Minister receives the report if:

(a) public submissions were invited on matters that were the subject of the inquiry; or

(b) one or more public hearings were held in the course of the inquiry.

169 Publishing inquiry report in whole or part

(1) The Commissioner may publish the whole or part of an inquiry report if:

(a) the Commissioner has given the Minister the inquiry report under subsection 167(1); and

(b) the Commissioner is satisfied that it is in the public interest to publish the whole or the part of the report (as the case may be).

(2) This section is subject to section 170.

170 Opportunity to respond must be given before publishing an inquiry report containing critical opinions etc.

(1) This section applies to an inquiry report that:

(a) has not been tabled in Parliament; and

(b) is published, in whole or in part, under section 169 more than 3 months after the report is given to the Minister under subsection 167(1).

(2) The inquiry report must not include an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, unless the Commissioner has given the head of the agency, the head of the entity or the other person concerned:

(a) a statement setting out the opinion, finding or recommendation; and

(b) a reasonable opportunity to respond to:

(i) the opinion, finding or recommendation; and

(ii) the proposed publication of the opinion, finding or recommendation.

(3) The response may be given by:

(a) the head of the Commonwealth agency or of the State or Territory government entity concerned, or a person authorised by the head; or

(b) in relation to any other person concerned—the other person concerned, or, with approval, a person representing the other person.

171 Follow‑up action on inquiry report

(1) The Commissioner may request the head of a Commonwealth agency to whom an inquiry report is given to give the Commissioner, within a specified time, details of any action that the head of the Commonwealth agency has taken, or proposes to take, with respect to a recommendation included in the inquiry report.