Part 4Procedures and powers of Commission

Part 4—Procedures and powers of Commission Division 2—Investigations 24—Action that may be taken (1) If a matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution and is referred to the Commission, the matter must be— (a) investigated by the Commission; or (b) referred to South Australia Police or other law enforcement agency. (2) Whether action is taken, and what action is taken, in respect of a matter that has been referred to the Commission is at the absolute discretion of the Commissioner. (3) Subject to any directions of the Commissioner, reasonable steps must be taken to ensure that a complainant or reporting agency is informed as to the action, if any, taken by the Commission in respect of the matter. 25—Public statements (1) The Office must not make any public statement that discloses, or contains information from which a person could infer, that a particular matter is, is proposed to be or was the subject of a complaint or report under this Act. (2) The Commission must not make any public statement that discloses, or contains information from which a person could infer, that a particular matter is being or is proposed to be investigated under this Act. (3) After an investigation of a particular matter under this Act has concluded— (a) if the matter has been referred to any law enforcement agency, inquiry agency or public authority—the Commission must not make any public statement that discloses, or contains information from which a person could infer, that the matter has been the subject of an investigation under this Act (except in a report that complies with section 42); or (b) in any other case—if the Commissioner is satisfied that no criminal proceedings, proceedings for the imposition of a penalty or disciplinary action will be commenced as a result of the investigation, the Commission may make a public statement in relation to the matter. (4) The Commission must, before making any public statement under subsection (3)(b), have regard to the following: (a) the benefits that might be derived from making the statement; (b) whether the statement is necessary in order to allay public concern or to prevent or minimise the risk of prejudice to the reputation of a person; (c) the risk of prejudicing the reputation of a person by making the statement; (d) if an allegation against a person has been made public and, in the opinion of the Commissioner following an investigation, the person is not implicated in corruption in public administration—whether the statement would redress prejudice caused to the reputation of the person as a result of the allegation having been made public; (e) whether any person has requested that the Commission make the statement. (5) For the avoidance of doubt— (a) nothing in this section affects the provision of information to the Crime and Public Integrity Policy Committee of the Parliament; (b) a public statement must not include any findings or suggestions of criminal or civil liability and must not include any findings that, if proved to the requisite standard by a court, would constitute a criminal offence or a civil wrong. 26—Standard operating procedures (1) The Commission must prepare standard operating procedures governing the exercise of powers by investigators for the purposes of an investigation into corruption in public administration. (2) The standard operating procedures must— (a) include provisions designed to ensure that persons in relation to whom powers are to be exercised under this Act are provided with appropriate information about their rights, obligations and liabilities under this Act; and (b) be made available free of charge on the Internet, and at premises established for the receipt of complaints or reports by the Office, for inspection by members of the public. (3) Contravention of the operating procedures constitutes a ground for suspending, dismissing or taking other disciplinary action against the investigator (but the validity of the exercise of a power cannot be questioned on the ground of contravention of the operating procedures). 27—Management of investigation (1) If the Commission decides to investigate a potential issue of corruption in public administration, the Commissioner must oversee the investigation. (2) The Commissioner— (a) may determine to head the investigation himself or herself or appoint the Deputy Commissioner or an examiner to head the investigation and report to the Commissioner; and (b) may appoint 1 or more legal practitioners to assist as counsel in relation to the investigation. 28—Production of statement of information For the purposes of an investigation into corruption in public administration, the person heading the investigation may, by written notice, require an inquiry agency, public authority or public officer to produce a written statement of information about a specified matter, or to answer specified questions, within a specified period and in a specified form, verified if the person so requires by statutory declaration. 29—Examination and production of documents and other things (1) An examination may be conducted for the purposes of an investigation into corruption in public administration as set out in Schedule 2. (2) A person may be required to produce a document or thing for the purposes of an investigation into corruption in public administration as set out in Schedule 2. 29A—Power to authorise inspection of financial records etc (1) For the purposes of an investigation into corruption in public administration, the Commissioner may, by written notice, authorise an investigator to inspect and take copies of financial records. (2) A copy of an authorisation under this section must be served on the relevant deposit holder not less than 3 clear days before the inspection is to occur, unless the Commissioner otherwise directs. (3) An investigator may, for the purpose of inspecting and taking copies of financial records in accordance with an authorisation under this section, give directions to, or impose requirements on, the deposit holder or an officer or employee of the deposit holder. (4) In this section— deposit holder means— (a) an ADI; or (b) a friendly society; or (c) a person or an organisation that holds money in accounts on behalf of other persons; or (d) a person who carries on business as a pawnbroker; or (e) an institution of a kind declared by regulation to be a deposit holder; financial records means any of the following in the possession or control of a deposit holder: (a) books of account, accounts, and accounting records (including working papers and other documents necessary to explain the methods and calculations by which accounts are made up); (b) books, diaries, or other records used in the course of carrying on the business of a deposit holder; (c) cheques, bills of exchange, promissory notes, deposit slips, orders for the payment of money, invoices, receipts and vouchers; (d) securities, and documents of title to securities, and includes such records kept in electronic form. 30—Power to require person to disclose identity For the purposes of an investigation into corruption in public administration, an investigator may require a person who the investigator reasonably suspects has committed, is committing, or is about to commit, a prescribed offence, or may be able to assist an investigation of a prescribed offence, to state all or any of the person's personal details and to produce evidence of those details. 31—Enter and search powers under warrant (1) The Commissioner may, on application by an investigator or on his or her own initiative, issue a warrant authorising an investigator or a police officer to enter and search— (a) a place occupied or used by an inquiry agency, public authority or public officer; or (b) a vehicle owned or used by an inquiry agency, public authority or public officer. (2) A judge of the Supreme Court may, on application by an investigator, issue a warrant authorising an investigator or a police officer to enter and search any place or vehicle. (3) A warrant may only be issued if the Commissioner or the judge is satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration. (4) An application for a warrant may be made personally or, if, in the opinion of the applicant, the warrant is urgently required and there is not enough time to lodge a written application and attend in person, by fax, email or telephone in accordance with practices and procedures prescribed, in the case of an application to the Commissioner, by the regulations and, in the case of an application to a judge of the Supreme Court, by rules of the court. (5) The grounds of an application for a warrant must be verified— (a) if the application is made to the Commissioner—by statutory declaration; or (b) if the application is made to a judge of the Supreme Court—by affidavit. (6) A warrant must— (a) specify the place or vehicle to which the warrant relates; and (b) state whether entry is authorised at any time of the day or night or during specified hours of the day or night. (7) A warrant authorises an investigator or a police officer— (a) to enter and search and, if necessary, use reasonable force to break into or open— (i) the place or vehicle to which the warrant relates; or (ii) part of, or anything in or on, a place or vehicle to which the warrant relates; and (b) to give directions with respect to the stopping or movement of a vehicle to which the warrant relates; and (c) in the course of executing the warrant— (i) to take photographs, films or audio, video or other recordings; and (ii) to examine, copy or take extracts from a document connected with the investigation or any other investigation into corruption in public administration; and (iii) to examine or test any thing connected with the investigation or any other investigation into corruption in public administration, or cause or require it to be examined or tested; and (iv) if the investigator or police officer reasonably suspects that a person who is or has been on or in the place or vehicle has on or about his or her body evidence of a prescribed offence, to search the person; and (v) to seize and retain anything that the investigator or police officer reasonably suspects has been used in, or may constitute evidence of, a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator; and (vi) to seize and retain anything that the investigator or police officer reasonably suspects has been used in, or may constitute evidence of, an offence other than a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator, if the investigator or police officer reasonably believes that it is necessary to do so in order to prevent its concealment, loss, mutilation or destruction or its use in committing such an offence. (8) In executing a warrant, the investigator or police officer may be assisted by such persons as the investigator or police officer considers necessary in the circumstances. (9) An investigator or police officer may require an occupier of a place or a person apparently in charge of a document or thing to give to an investigator or police officer, or a person assisting an investigator or police officer, such assistance as is reasonably required by the investigator or police officer for the effective execution of a warrant. (10) In searching a person under this section, the investigator or police officer— (a) may run his or her hands over the person's outer clothing; and (b) may require the person to remove a coat, jacket, hat or shoes the person is wearing, and may run his or her hands over the person's remaining outer clothing; and (c) if the investigator or police officer sees or detects any thing that he or she reasonably suspects is, or contains, evidence of a prescribed offence, may require the person to surrender that item for inspection; and (d) may use reasonable force to remove an item from a person if the person does not comply with a requirement to remove or surrender the item under paragraph (b) or (c); and (e) may inspect an item that a person has removed or surrendered, or that has been removed from a person; and (f) must conduct the search in a manner that affords, to the extent that the circumstances of the search permit, reasonable privacy to the person being searched; and (g) must conduct the search as quickly as is reasonably practicable in the circumstances of the search. (11) A search must be conducted by a person of the same sex as the person being searched unless it is not reasonable or practicable to do so in the circumstances of the search. (12) A warrant, if not executed at the expiration of 1 month from the date of its issue, then expires. (13) The Supreme Court may make rules of court providing for the Chief Justice to determine the judge to whom an application is to be made or otherwise regulating practice and procedure for the purposes of this section. (14) The provisions set out in Schedule 3 apply in relation to a warrant under this section. 32—Seizure and retention order procedures (1) A retention order under section 31— (a) must be in the form of a written notice given to the owner or person apparently in control of the thing to which the order relates; and (b) may be varied or discharged by further such written notice. (2) If a retention order is issued, a person who, knowing of the order, removes or interferes with the thing to which the order relates without the approval of the Commissioner or an investigator before the thing is dealt with under this section or the retention order discharged is guilty of an offence. Maximum penalty: $5 000. (3) Subject to this section, if any thing has been made the subject of a retention order under section 31, the following provisions apply: (a) if proceedings are not instituted for an offence relating to the thing within the designated period after the issuing of the retention order, the retention order is taken to have been discharged on the expiration of the designated period; (b) if proceedings for an offence relating to the thing are instituted within the designated period after the issuing of the retention order, the court dealing with the proceedings may order that it be forfeited to the Crown (but if no such order is made, the retention order is taken to have been discharged); (c) if the Commissioner or an investigator subsequently determines that the thing should be seized, an investigator may, without warrant, enter and search and, if necessary, use reasonable force to break into or open— (i) the place at which, or vehicle in which, the thing is reasonably suspected to be located; or (ii) part of, or anything in or on, a place at which, or vehicle in which, the thing is reasonably suspected to be located, and may seize and retain the thing (and section 31(8) and (9) apply to the exercise of such powers as if the powers were being exercised pursuant to a warrant under that section). (3a) If any thing has been seized under section 31 or under subsection (3)(c), the following provisions apply: (a) the thing must be held pending proceedings for an offence relating to the thing seized, unless the Commissioner, on application, authorises its release to the person from whom it was seized, or to a person who had legal title to it at the time of its seizure, subject to such conditions as the Commissioner thinks fit; (b) if proceedings for an offence relating to the thing are instituted, the court dealing with the proceedings may order— (i) that it be forfeited to the Crown; or (ii) that a person to whom it was released under paragraph (a) or the defendant pay to the Attorney‑General an amount equal to its market value at the time of its seizure as the court thinks fit; or (iii) that it be released to any person. (4) In this section— designated period means 2 years or such longer period as a judge of the Supreme Court may, on application by the Commissioner, allow. 33—Obstruction (1) A person must not— (a) refuse or fail to provide a statement of information as required by the person heading an investigation; or (b) include information in a statement of information knowing that it is false or misleading in a material particular; or (c) without lawful excuse, refuse or fail to comply with a requirement or direction of an investigator under this Act; or (d) alter, destroy, conceal or fabricate a document or other thing knowing that it is or is likely to be required by an investigator performing functions under this Act; or (e) otherwise hinder or obstruct an investigator, or a person assisting an investigator, in the performance of his or her functions. (2) An investigator may arrest a person without warrant if the investigator reasonably suspects that the person has committed, is committing, or is about to commit, an offence against subsection (1) and— (a) when required to do so by an investigator the person failed to state truthfully his or her personal details or to produce true evidence of those details; or (b) the investigator has reasonable grounds for believing that the person would, if not arrested— (i) fail to attend court in answer to a summons issued in respect of the offence; or (ii) continue the offence or repeat the offence; or (iii) alter, destroy, conceal or fabricate evidence relating to the offence; or (iv) intimidate, harass, threaten or interfere with a person who may provide or produce evidence of the offence. (3) On arresting a person under this section, the investigator must immediately deliver the person, or cause the person to be delivered, into the custody of a police officer (and the person will, for the purposes of any other law, then be taken to have been apprehended by the police officer without warrant). 34—Limiting action by other agencies and authorities (1) The Commission may, by written notice, require a South Australian law enforcement agency, inquiry agency or public authority to refrain from taking action, in respect of a particular matter being investigated by the Commission under this Act or to conduct a joint investigation with the Commission in respect of a particular matter (and the agency or authority must comply with the requirement even if the agency or authority is otherwise required or authorised to take action under another Act). (2) The notice must specify the period for which it is to apply and set out details of the action that is not to be taken or the requirements governing any joint investigation. (3) The Commission must consider any comments of the agency or authority with respect to the terms of the notice. 35—Injunction to refrain from conduct pending investigation (1) The Supreme Court may, on application made by the Commission (in a case where section 34 does not apply or the Commission does not consider it appropriate to issue a notice under that section), grant an injunction restraining a person from engaging in conduct that is the subject of, or affects the subject matter of, an investigation or proposed investigation by the Commission. (2) The Supreme Court must not grant an injunction under this section unless it is satisfied— (a) that the conduct sought to be restrained is likely to impede the investigation or proposed investigation; or (b) that it is necessary in the public interest to do so. 36—Prosecutions and disciplinary action (1) On completing an investigation or at any time during an investigation, the Commission may do either or both of the following: (a) refer a matter to the relevant law enforcement agency for further investigation and potential prosecution; (b) refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible. (1a) For the avoidance of doubt, the Commission must not refer a matter directly to a prosecution authority but may only refer it to a law enforcement agency who will be responsible for any further investigation and prosecution of the matter. (2) The Commission may disclose to the relevant law enforcement agency or public authority any evidence or information that the Commission has in respect of the matter. (3) The Commission need not obtain the views of a public authority before referring a matter under this section. (4) If a matter is referred to a public authority under subsection (1)(b), the Commission may give directions or guidance to the authority, which may include (without limitation)— (a) a requirement that the authority submit a report or reports on action taken in respect of the matter as set out in the directions; and (b) a recommendation as to the action that should be taken by the authority and the period within which it should be taken. (5) The Commission may not give directions to the Governor or a judicial officer or to the Attorney‑General in relation to a matter concerning the Governor or a judicial officer. (6) The Commission may not give directions to a House of Parliament or the Joint Parliamentary Service Committee in relation to a matter concerning a public officer. (7) The Commission may at any time— (a) revoke a referral to a public authority; or (b) revoke or vary directions or guidance given to a public authority or give further directions or guidance, as the Commission sees fit. (8) If— (a) a referral of a matter by the Commission under this section included a requirement that the public authority submit a report or reports on action taken in respect of the matter; and (b) the Commission is not satisfied that a public authority has duly and properly taken action in relation to the matter, the Commission must inform the authority of the grounds of the Commission's dissatisfaction and give the authority an opportunity to comment within a specified time. (9) If, after considering any comments received from the public authority within the specified time, the Commission is still not satisfied, the Commission may submit a report to the Minister responsible for the authority setting out the grounds of dissatisfaction, together with any comments from the authority. (10) If, after considering any comments received from the Minister responsible for the public authority within 21 days after the report was submitted to the Minister, the Commission is still not satisfied, the Commission may provide to the President of the Legislative Council and the Speaker of the House of Assembly a report setting out the grounds of dissatisfaction. (11) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after receiving a report, lay it before their respective Houses. 36A—Determination of Commission's jurisdiction If— (a) an investigation has been commenced or is proposed under this Act; and (b) a question arises as to whether the Commission has jurisdiction to conduct the investigation, the Supreme Court may, on the application of the Commission, a public officer or a public authority, determine the question and make any orders necessary to give effect to the determination. 39—Request for Auditor‑General to examine accounts The Commission may, if the Commission considers it appropriate in respect of any matter subject to investigation or referral under this Act, request the Auditor‑General to conduct an examination of accounts under the Public Finance and Audit Act 1987. 39A—Information to be provided (1) If— (a) on completing the investigation of a matter involving potential issues of corruption in public administration, the Commission determines not to refer the matter to a relevant law enforcement agency or to a public authority; or (b) a relevant law enforcement agency or public authority to whom a matter is referred by the Commission determines not to further investigate or deal with the matter, reasonable steps must be taken by the Commission, or by the agency or authority (as the case may be), to ensure that each person who was the subject of the investigation is informed of that determination as soon as practicable. (2) However, the Commission or the agency or authority (as the case requires) is not required to inform a person who was the subject of an investigation of a determination under subsection (1) if the Supreme Court has authorised the withholding of the information on an application made under subsection (3). (3) If the Commission or a law enforcement agency or public authority makes a determination referred to in subsection (1)(a) or (b), they may apply to the Supreme Court, within 5 business days after making the determination (or such longer period as may be allowed by the Court), for an order authorising them to withhold information relating to the determination from a person the subject of the investigation— (a) for a specified period; or (b) until the happening of a specified event; or (c) if the Court is satisfied that the person is not aware that they were the subject of the investigation—until further order of the Court. (4) The Supreme Court may make an order on an application under subsection (3) if the Court is satisfied that— (a) informing the person will— (i) be likely to compromise another investigation by the Commission or by a law enforcement agency or public authority; or (ii) give rise to an imminent risk to the safety of a person or persons; and (b) the making of the order is reasonable in all the circumstances. (5) If an application is made to the Supreme Court under subsection (3)— (a) the information to which the application relates is only required to be disclosed— (i) if the application is withdrawn or otherwise discontinued; or (ii) if the Court refuses to grant the order; or (iii) if the Court makes an order—in accordance with the terms of the order; and (b) only the applicant is a party to the proceedings; and (c) the application must be heard and dealt with by the Court as expeditiously as possible. (6) The applicant for an order under this section may apply to the Supreme Court at any time for a variation, or revocation, of the order. Division 3—Evaluation of agency or authority practices 40—Evaluation of practices, policies and procedures (1) If, in performing the Commission's functions, the Commission decides to evaluate the practices, policies and procedures of an inquiry agency or public authority in relation to corruption, or matters relating to corruption, the Commission must inform the agency or authority as to the nature and timing of the evaluation. (2) An inquiry agency or public authority must assist the Commission in the conduct of the evaluation as requested by the Commission. (3) The Commission must prepare a report of the evaluation and provide a copy to the President of the Legislative Council and the Speaker of the House of Assembly. (4) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after receiving a report, lay it before their respective Houses. (5) The Commission may not evaluate the practices, policies and procedures of a House of Parliament or a judicial body. Division 4—Recommendations and reports by Commission 41—Recommendations (1) On conducting an evaluation or in response to issues observed by the Commission in the course of an investigation or the handling of a matter referred to an inquiry agency or public authority, the Commission may recommend to an inquiry agency or public authority that the agency or authority— (a) change practices, policies or procedures in a specified way or review practices, policies or procedures to achieve specified outcomes; or (b) conduct, or participate in, specified educational programs or educational programs designed to achieve specified outcomes. (2) The Commission must prepare a report containing the recommendations and provide a copy to the President of the Legislative Council and the Speaker of the House of Assembly. (3) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after receiving a report, lay it before their respective Houses. (4) If the Commission is not satisfied that an inquiry agency or public authority has complied with the recommendations of the Commission, the Commission must inform the agency or authority of the grounds of the Commission's dissatisfaction and give the agency or authority an opportunity to comment within a specified time. (5) If, after considering any comments received from the inquiry agency or public authority within the specified time, the Commission is still not satisfied, the Commission may submit a report to the Minister responsible for the agency or authority setting out the grounds of dissatisfaction, together with any comments from the agency or authority. (6) If, after considering any comments received from the Minister responsible for the inquiry agency or public authority within 21 days after the report was submitted to the Minister, the Commission is still not satisfied, the Commission may provide to the President of the Legislative Council and the Speaker of the House of Assembly a report setting out the grounds of dissatisfaction. (7) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after receiving a report, lay it before their respective Houses. 42—Reports (1) The Commission may prepare a report setting out (subject to subsection (1a))— (a) recommendations, formulated in the course of the performance of the Commission's functions, for the amendment or repeal of a law; or (b) findings or recommendations resulting from completed investigations by the Commission in respect of matters raising potential issues of corruption in public administration; or (c) other matters arising in the course of the performance of the Commission's functions that the Commission considers to be in the public interest to disclose. (1a) The Commission must not— (a) prepare a report under this section setting out findings or recommendations resulting from a completed investigation into a potential issue of corruption in public administration unless— (i) all criminal proceedings arising from that investigation are complete; or (ii) the Commission is satisfied that no criminal proceedings will be commenced as a result of the investigation, in which case the report must not identify any person involved in the investigation; or (b) prepare a report under this section that includes any findings or suggestions of criminal or civil liability and must not include any findings that, if proved to the requisite standard by a court, would constitute a criminal offence or a civil wrong. (2) A copy of the report must be provided— (a) in the case of a report of a kind referred to in subsection (1)(b)—to the public authority responsible for any public officer to whom the report relates and to the Minister responsible for that public authority; and (b) in any case—to the Attorney‑General, the President of the Legislative Council and the Speaker of the House of Assembly. (3) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after 28 days (or such shorter number of days as the Attorney‑General approves) have passed after receiving a report, lay it before their respective Houses.