Part 2Independent Commission Against Corruption

Part 2—Independent Commission Against Corruption 7—Establishment and functions of Commission (1) There is to be an Independent Commission Against Corruption with the following functions: (a) to identify corruption in public administration and to— (i) investigate and refer it to a law enforcement agency for any further investigation and prosecution; or (ii) refer it to a law enforcement agency for investigation and prosecution; (b) to evaluate the practices, policies and procedures of inquiry agencies and public authorities with a view to advancing comprehensive and effective systems for preventing or minimising corruption in public administration; (c) to conduct or facilitate the conduct of educational programs designed to prevent or minimise corruption in public administration; (d) if, in the course of performing functions in relation to potential corruption in public administration, any suspected misconduct or maladministration or any offences (not being offences that constitute the potential corruption in public administration) are identified—to report the matter to the Office or the Ombudsman for assessment or refer the matter to a law enforcement agency, the Ombudsman or a public authority or public officer, as the Commission considers appropriate. (2) The Commission is not subject to the direction of any person in relation to any matter, including— (a) the manner in which functions are carried out or powers exercised under this or any other Act; and (b) the priority that the Commission gives to a particular matter in carrying out functions under this or any other Act. (4) The Commission is to perform its functions in a manner that— (a) is as open and accountable as is practicable, while recognising, in particular, that examinations relating to corruption in public administration must be conducted in private; and (b) deals as expeditiously as is practicable with allegations of corruption in public administration; and (c) as far as is practicable, deals with any allegation against a Member of Parliament or member of a council established under the Local Government Act 1999 before the expiry of his or her current term of office. (5) For the purposes of exercising its functions under subsection (1)(b) or (c), the Commission— (a) may conduct a public inquiry; and (b) may regulate the conduct of the inquiry as the Commission thinks fit, (and, for the avoidance of doubt, the inquiry will not be a proceeding for the purposes of section 55). (6) The Commission— (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) is capable of suing and being sued in its corporate name. 8—Commissioner (1) The Commissioner will be the principal officer of the Commission and is to be appointed by the Governor for a term not exceeding 7 years and on conditions determined by the Governor. (1a) The Commissioner is entitled to salary and allowances at the rates applicable to a Puisne Judge of the General Division of the Supreme Court. (2) A person appointed to be the Commissioner is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as Deputy Commissioner or Acting Commissioner) that exceed 10 years in total. (3) A person is only eligible for appointment as the Commissioner if the person— (a) is a legal practitioner of at least 7 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State) or a former judge of the High Court of Australia, the Federal Court of Australia or the Supreme Court or any other court of a State or Territory of the Commonwealth; and (4) Before a person is appointed to be the Commissioner, the Attorney‑General must ensure that the position is advertised in a newspaper or newspapers circulating in each State and Territory. (5) A person may only be appointed to be the Commissioner if, following referral by the Attorney‑General of the proposed appointment to the Statutory Officers Committee established under the Parliamentary Committees Act 1991— (a) the appointment has been approved by the Committee; or (b) the Committee has not, within 7 days of the referral, or such longer period as is allowed by the Attorney‑General, notified the Attorney‑General in writing that it does not approve the appointment. (6) Despite the Parliamentary Committees Act 1991, the Statutory Officers Committee must not report on, or publish material in relation to, matters referred to the Committee under subsection (5) except to the extent allowed by the Attorney‑General (but this subsection does not derogate from section 15I(2) of the Parliamentary Committees Act 1991). (7) If a person is a judicial officer immediately before being appointed to be the Commissioner— (a) the conditions of the appointment should not be less favourable to the person than the conditions of his or her judicial office (when viewed from an overall perspective); and (b) for the purposes of determining the person's entitlement to recreation leave, sick leave, long service leave or any other kind of leave under this or another Act, the appointment may, at the option of the person, be taken to be a continuation of his or her service as a judicial officer. (8) The Commissioner must not, without the consent of the Attorney‑General, engage in any remunerated employment or undertaking outside official duties. (9) The Governor may, on the address of both Houses of Parliament, remove the Commissioner from office. (10) The Governor may suspend the Commissioner from office for— (c) failure or incapacity to carry out official duties satisfactorily; or (d) failure to provide information to the Attorney‑General as required under section 49. (11) If the Governor suspends the Commissioner from office, a full statement of the reason for the suspension must be laid before both Houses of Parliament within 7 days after the suspension if Parliament is then in session or, if not, within 7 days after the commencement of the next session of Parliament. (12) If, at the end of 20 sitting days after the statement is laid before Parliament, neither House of Parliament has presented an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is removed from office. (13) If within 20 sitting days after the statement is laid before Parliament either House of Parliament presents an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is restored to office. (14) The office of Commissioner becomes vacant if the holder— (iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or (i) is removed from office by the Governor under this section. (15) Except as is provided by this section, the Commissioner may not be removed or suspended from office, nor will the office of the Commissioner become vacant. (16) The Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 9—Deputy Commissioner (1) There is to be a Deputy Commissioner responsible for assisting the Commissioner as directed by the Commissioner. (2) The Deputy Commissioner is to be appointed by the Governor for a term not exceeding 7 years and on conditions determined by the Governor. (3) A person appointed to be the Deputy Commissioner is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as Commissioner or Acting Commissioner) that exceed 10 years in total. (4) A person is only eligible for appointment as the Deputy Commissioner if the person— (a) is a legal practitioner of at least 7 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State) or a former judge of the High Court of Australia, the Federal Court of Australia or the Supreme Court or any other court of a State or Territory of the Commonwealth; and (5) The Deputy Commissioner must not, without the consent of the Attorney‑General, engage in any remunerated employment or undertaking outside official duties. (6) The Deputy Commissioner may— (a) act as the Commissioner during any period for which— (i) no person is for the time being appointed as the Commissioner; or (ii) the Commissioner is absent from, or unable to discharge, official duties; and (b) when not so acting, perform functions or exercise powers at the direction of the Commissioner. (7) The Governor may remove the Deputy Commissioner from office for— (8) The office of Deputy Commissioner becomes vacant if the holder— (iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or (i) is removed from office by the Governor under subsection (7). (9) Except as is provided by this section, the Deputy Commissioner may not be removed from office, nor will the office of the Deputy Commissioner become vacant. (10) The Deputy Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 9A—Pension rights—Commissioner (1) Subject to this section, the Judges' Pensions Act 1971 applies to and in relation to the Commissioner as if— (a) the Commissioner were a Judge as defined in that Act; and (b) their service as Commissioner were judicial service as defined in that Act. (2) Application of the Judges' Pensions Act 1971 to the Commissioner under subsection (1) operates subject to the following: (a) a person who has completed 5 years of service as Commissioner, whether occurring before or after the commencement of this section, is entitled to a pension under that Act; (b) a person who has completed less than 5 years service as Commissioner is not entitled to a pension by virtue of this section (but this provision does not affect the operation of section 7 of the Judges' Pensions Act 1971 insofar as that section applies to the Commissioner); (c) the pension will be paid at a rate, not exceeding 60% of salary, equal to the sum of— (i) 50% of salary; and (ii) 1% of salary for each complete 6 months of service as Commissioner following the first 5 years of service, and will become payable— (iii) if the person ceases to be the Commissioner before reaching the age of 60—when the person— (A) reaches the age of 60; or (B) satisfies the Minister that because of invalidity their incapacity for all kinds of work is 60% or more of total incapacity and is likely to be permanent; or (iv) if the person ceases to be the Commissioner on or after reaching the age of 60—immediately; (d) any modifications to the Act— (i) specified by the Governor by instrument in writing; or (ii) necessary or convenient to give effect to this section. (3) Unless the Governor otherwise directs, no pension is to be payable under the Judges' Pensions Act 1971 if the Commissioner is removed from office under section 8(9). (4) Any period during which a person has been suspended from office under section 8(10) is not to count as service as Commissioner for the purposes of subsection (2). (5) The Governor may, by instrument in writing made at any time, declare that a form of service that is, or is deemed under a law of the State to be, judicial service for the purposes of the Judges' Pensions Act 1971, is to be counted as service as Commissioner for the purposes of subsection (2). (6) A pension or benefit payable to a person who was Commissioner, or to the surviving spouse, domestic partner or child of any such person, by virtue of subsection (1) is to be taken to be a pension or benefit payable under the Judges' Pensions Act 1971. (7) If the Judges' Pensions Act 1971 has applied, by virtue of this section, to a person who is or has been Commissioner and that person is subsequently appointed as a Judge as defined in the Judges' Pensions Act 1971, that Act will apply to and in relation to that person as if— (a) service by that person as the Commissioner were judicial service as defined in that Act; and (b) section 5 of that Act had not been enacted. (8) If a person referred to in subsection (7) was, immediately before being appointed as a Judge, in receipt of a pension under the Judges' Pensions Act 1971, that pension ceases on the appointment as a Judge. (9) If the Judges' Pensions Act 1971 is to apply to a person appointed as the Commissioner by virtue of this section and the person was, immediately before being appointed as the Commissioner, in receipt of a pension under that Act, that pension ceases on the appointment as Commissioner for the term of the appointment. (10) If— (a) a person is entitled to a pension under the Judges' Pensions Act 1971 by virtue of this section and also by virtue of another law of the State; and (b) the amount of the pension payable by virtue of this section differs from the amount of pension payable by virtue of the other law, the person will be entitled to whichever pension is the greater. (11) In this section— Consumer Price Index means the Consumer Price Index (All groups index for Adelaide); salary, in relation to a person entitled to a pension under the Judges' Pensions Act 1971 by virtue of this section— (a) has the meaning prescribed by the regulations; or (b) if no regulation has been made for the purposes of paragraph (a)—means the salary payable to the person immediately before they ceased to be Commissioner, adjusted to reflect changes in the Consumer Price Index between the day on which the person ceased to be Commissioner and the day on which a pension becomes payable to the person under this section; service as Commissioner includes the aggregate of any periods of service as Acting Commissioner and a reference to service by a person as the Commissioner is to be construed accordingly. 10—Pension rights—Deputy Commissioner (1) The Governor may, by instrument in writing made at the time a person is appointed to be the Deputy Commissioner, apply the Judges' Pensions Act 1971 to or in relation to the Deputy Commissioner as if the Deputy Commissioner were a Judge as defined in that Act and service as the Deputy Commissioner were judicial service as defined in that Act. (2) The instrument may— (a) impose conditions on the application of the Judges' Pensions Act 1971 (including a condition that the Act will only apply if the person is made a Judge following his or her term of office as Deputy Commissioner); and (b) apply the Judges' Pensions Act 1971 subject to any modifications specified in the instrument. (3) Unless the Governor otherwise directs, no pension is to be payable under the Judges' Pensions Act 1971 if the Deputy Commissioner vacates the office due to insolvency or conviction or sentencing for an offence or is removed from office. (4) If a person who is or has been the Deputy Commissioner is appointed as a Judge as defined in the Judges' Pensions Act 1971 and was, immediately before being so appointed, in receipt of a pension under that Act, that pension ceases on the appointment. 11—Acting Commissioner (1) The Governor may appoint a person (who may be a Public Service employee) to act as the Commissioner during any period for which— (a) no person is for the time being appointed as the Commissioner or the Commissioner is absent from, or unable to discharge, official duties; and (b) no person is for the time being appointed as the Deputy or the Deputy is absent from, or unable to discharge, official duties. (2) The terms and conditions of appointment are to be determined by the Governor, except that the person may not act as the Commissioner for more than 6 months in aggregate in any period of 12 months. (3) A person appointed to act as the Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 12—Employees (1) The Commission may engage employees on terms and conditions determined by the Commissioner. (2) The employees are not Public Service employees but are to be taken to be public sector employees, employed by the Commission, for the purposes of the Public Sector (Honesty and Accountability) Act 1995 and section 74 of the Public Sector Act 2009. 13—Use of services or staff of other government entities (1) The Commission may, under an arrangement established by the Minister administering an administrative unit of the Public Service, make use of the services or staff of that administrative unit. (2) The Commission may, under an arrangement established by the Commissioner of Police, make use of members of South Australia Police, special constables or the services of South Australia Police. (3) The Commission may, under an arrangement established by the Director of Public Prosecutions, make use of the services or staff of the Office of the Director of Public Prosecutions. 14—Examiners and investigators (1) The Commissioner may appoint suitable persons to be examiners or investigators for the purposes of this Act. (2) An appointment may be made subject to conditions specified in the instrument of appointment. (3) The Commissioner may, at any time, revoke an appointment of a person or vary or revoke a condition of appointment or impose a further condition of appointment. (4) A police officer or special constable seconded to assist the Commission is an investigator. (4a) Unless otherwise agreed, by instrument in writing, between the Commissioner and the Commissioner of Police, a police officer or special constable seconded to assist the Commission may continue to exercise all powers and authorities vested in the person by or under the Police Act 1998, or another Act or law, as a member of South Australia Police or constable in the exercise of functions and powers under this Act during the period of secondment (and section 67(3) of the Police Act 1998 does not apply in relation to the secondment). (5) An investigator who is not a police officer or special constable must be issued with an identity card— (a) containing the person's name and a photograph of the person; and (b) stating that the person is an investigator under this Act. (6) If the powers of an investigator have been limited by conditions, the identity card issued to the investigator must indicate those limitations. (7) An investigator must, at the request of a person in relation to whom the investigator intends to exercise powers under this Act, produce for the inspection of the person— (a) in the case of an investigator who is a police officer or special constable and is not in uniform—an official card, document or badge identifying the person as a police officer or special constable; or (b) in the case of an investigator appointed under this Act—his or her identity card. 15—Cooperation with law enforcement agencies The Commission is to cooperate with other law enforcement agencies insofar as that is consistent with the proper conduct of its functions. 16—Delegation (1) Subject to subsection (1a), the Commissioner may delegate to a person (including a person for the time being performing particular duties or holding or acting in a specified position) a function or power under this or any other Act. (1a) The Commissioner— (a) may only delegate a function or power under section 31 to an examiner; and (b) may not delegate a prescribed function or power. (2) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. (3) A delegation— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the delegator to act in a matter; and (d) is revocable at will.