Sch 2Examination and production of documents and other things

Schedule 2—Examination and production of documents and other things examiner means— (a) the Commissioner; or (b) the Deputy Commissioner; or (c) an examiner appointed by the Commissioner; official matter means any of the following (whether past, present or contingent): (a) an investigation into corruption in public administration; (b) an examination held by an examiner; (c) court proceedings. 2—Examinations An examiner may conduct an examination for the purposes of an investigation into corruption in public administration. 3—Conduct of examination (1) An examiner may regulate the conduct of proceedings at an examination as the examiner thinks fit. (2) At an examination before an examiner— (a) a person giving evidence may be represented by a legal practitioner; and (b) if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner—the person may be so represented. (3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination. (4) Nothing in a direction given by the examiner under subclause (3) prevents the presence, when evidence is being taken at an examination before the examiner, of— (a) a person representing the person giving evidence; or (b) a person representing, in accordance with subclause (2), a person who, by reason of a direction given by the examiner under subclause (3), is entitled to be present. (5) If an examination before an examiner is being held, a person (other than a member of the staff of the Commission approved by the examiner) must not be present at the examination unless the person is entitled to be present by reason of a direction given by the examiner under subclause (3) or by reason of subclause (4). (6) At an examination before an examiner— (a) counsel assisting the examiner generally or in relation to the matter to which the investigation relates; or (b) any person authorised by the examiner to appear before the examiner at the examination; or (c) any legal practitioner representing a person at the examination in accordance with subclause (2), may, so far as the examiner thinks appropriate, examine or cross‑examine any witness on any matter that the examiner considers relevant to the investigation or any other investigation. (7) If a person (other than a member of the staff of the Commission) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must— (a) inform the witness that the person is present; and (b) give the witness an opportunity to comment on the presence of the person. (8) A person does not cease to be entitled to be present at an examination before an examiner or part of such an examination if— (a) the examiner fails to comply with subclause (7); or (b) a witness comments adversely on the presence of the person under subclause (7)(b). (9) An examiner may direct that— (a) any evidence given before the examiner; or (b) the contents of any document, or a description of any thing, produced to the examiner; or (c) any information that might enable a person who has given evidence before the examiner to be identified; or (d) the fact that any person has given or may be about to give evidence at an examination, must not be communicated or provided to any person, or must not be communicated or provided except in such manner, and to such persons, as the examiner specifies. (10) The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. (11) Subject to subclause (12), the Commissioner may, in writing, vary or revoke a direction under subclause (9). (12) The Commissioner must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence. (13) If— (a) a person has been charged with an offence; and (b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subclause (9), be made available to the person or to a legal practitioner representing the person, the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court. (14) If— (a) the Commission makes evidence available to a court in accordance with subclause (13); and (b) the court, after examining the evidence, is satisfied that the interests of justice so require, the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person. (15) A person who— (a) is present at an examination in contravention of subclause (5); or (b) makes a publication in contravention of a direction given under subclause (9), is guilty of an offence. (16) At the conclusion of an examination held by an examiner, the examiner must give the person heading the investigation— (a) a record of the proceedings of the examination; and (b) any documents or other things given to the examiner at, or in connection with, the examination. 4—Power to summon witnesses and take evidence (1) An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons. (2) Before issuing a summons under subclause (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. (3) The examiner must also record in writing the reasons for the issue of the summons. (4) A summons under subclause (1) requiring a person to appear before an examiner at an examination must, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the investigation to which the examination relates, it would prejudice the effectiveness of the investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person, but nothing in this subclause prevents the examiner from questioning the person in relation to any matter that relates to an investigation into corruption in public administration. (5) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing. (6) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose— (a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and (b) the examiner, or a person who is a member of the staff of the Commission authorised for the purpose by the Commissioner, may administer an oath or affirmation to a person so appearing at the examination. (7) The powers conferred by this clause are not exercisable except for the purposes of an investigation into corruption in public administration. 5—Power to obtain documents (1) An examiner may, by notice in writing served on a person, require the person— (a) to attend, at a time and place specified in the notice, before a person specified in the notice, being the examiner or a member of the staff of the Commission; and (b) to produce at that time and place to the person so specified a document or other thing specified in the notice, being a document or other thing that is relevant to an investigation into corruption in public administration. (2) Before issuing a notice under subclause (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. (3) The examiner must also record in writing the reasons for the issue of the notice. (4) A notice may be issued under this clause in relation to an investigation into corruption in public administration, whether or not an examination before an examiner is being held for the purposes of the investigation. (5) A person must not refuse or fail to comply with a notice served on the person under this clause. (6) The provisions of clause 8(3) to (6) apply in relation to a person who is required to produce a document or thing by a notice served on him or her under this clause in the same manner as they apply in relation to a person who is required to produce a document or thing at an examination before an examiner. 6—Disclosure of summons or notice may be prohibited (1) The examiner issuing a summons under clause 4 or a notice under clause 5 must, or may, as provided in subclause (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation. (2) A notation must not be included in the summons or notice except as follows: (a) the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice— (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an investigation; (b) the examiner may include the notation if satisfied that failure to do so might prejudice— (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an investigation; (c) the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest. (3) If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by clause 7 on the person who was served with, or otherwise given, the summons or notice. (4) If, after the investigation concerned has been concluded— (a) no evidence of an offence has been obtained; or (b) evidence of an offence or offences has been assembled and the Commission has been advised that no person will be prosecuted; or (c) evidence of an offence or offences committed by only 1 person has been assembled and criminal proceedings have begun against that person; or (d) evidence of an offence or offences committed by 2 or more persons has been assembled and— (i) criminal proceedings have begun against all those persons; or (ii) criminal proceedings have begun against 1 or more of those persons and the Commission has been advised that no other of those persons will be prosecuted, all the notations that were included under this clause in any summonses or notices relating to the operation or investigation are cancelled by this subclause. (5) If a notation is cancelled by subclause (4), the Commission must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation. 7—Offences of disclosure (1) A person who is served with, or otherwise given, a summons or notice containing a notation made under clause 6 must not disclose— (a) the existence of the summons or notice or any information about it; or (b) the existence of, or any information about, any official matter connected with the summons or notice. (2) Subclause (1) does not prevent the person from making a disclosure— (a) in accordance with the circumstances, if any, specified in the notation; or (b) for the purpose of— (i) obtaining legal advice or legal representation or for the purposes of determining whether a person is entitled to an indemnity for legal costs; or (ii) obtaining medical or psychological assistance from a medical practitioner or psychologist; or (c) where the information relates to the person and is disclosed by the person to a close family member of the person (within the meaning of section 54); or (d) if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or (e) if the person is a legal practitioner—for the purpose of obtaining the agreement of another person under clause 8(3) to the legal practitioner answering a question or producing a document at an examination before an examiner. (3) If a disclosure is made to a person as permitted by subclause (2) or (4), the following provisions apply: (a) while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subclause (4); (b) while he or she is no longer such a person, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them. (4) A person to whom information has been disclosed, as permitted by subclause (2) or this subclause, may disclose that information— (a) if the person is an officer or agent of a body corporate referred to in subclause (2)(d)— (i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or (ii) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or (b) if the person is a legal practitioner—for the purpose of giving legal advice, or making representations, relating to the summons, notice or matter. (5) This clause ceases to apply to a summons or notice after— (a) the notation contained in the summons or notice is cancelled by clause 6(4); or (b) 5 years elapse after the issue of the summons or notice, whichever is sooner. (6) A reference in this clause to disclosing something's existence includes disclosing information from which a person could reasonably be expected to infer its existence. 8—Failure of witnesses to attend and answer questions (1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner must not— (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the examiner. (2) A person appearing as a witness at an examination before an examiner must not— (a) when required pursuant to clause 4 either to take an oath or make an affirmation—refuse or fail to comply with the requirement; or (b) refuse or fail to answer a question that he or she is required to answer by the examiner; or (c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed. (3) If— (a) a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and (b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner, the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she must, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made. (4) Subclause (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner and that subclause only applies if— (a) a person appearing as a witness at an examination before an examiner— (i) answers a question that he or she is required to answer by the examiner; or (ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and (c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty. (5) The answer, or the document or thing, is not admissible in evidence against the person in— (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty, other than— (c) proceedings under the Criminal Assets Confiscation Act 2005; or (d) a proceeding in respect of— (i) in the case of an answer—the falsity of the answer; or (ii) in the case of the production of a document—the falsity of any statement contained in the document. (6) Subclause (3) does not affect the law relating to legal professional privilege. 9—Warrant for arrest of witness (1) If, on application by an examiner, a judge of the Supreme Court is satisfied by evidence on oath that there are reasonable grounds to believe— (a) that a person who has been ordered, under clause 18, to deliver his or her passport to the examiner, whether or not the person has complied with the order, is nevertheless likely to leave Australia for the purpose of avoiding giving evidence before the examiner; or (b) that a person in relation to whom a summons has been issued under clause 4(1)— (i) has absconded or is likely to abscond; or (ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or (c) that a person has committed an offence under clause 8(1) or is likely to do so, the judge may issue a warrant for the apprehension of the person. (2) The warrant may be executed by any person to whom it is addressed and the person executing it has power to break into and enter any premises or vehicle for the purpose of executing it. (3) The warrant may be executed even if the warrant is not at the time in the possession of the person executing it. (4) A person executing the warrant may only use such reasonable force as is necessary for the execution. (5) If a person is apprehended under the warrant, he or she must be brought, as soon as practicable, before a judge of the Supreme Court and the judge may— (a) admit the person to bail, with such security as the judge thinks fit, on such conditions as he or she thinks necessary to ensure the appearance of the person as a witness before the examiner; or (b) order the continued detention of the person for the purposes of ensuring his or her appearance as such a witness; or (c) order the release of the person. (6) If a person is under detention under this clause, he or she must, within 14 days after he or she was brought, or last brought, before a judge of the Supreme Court in accordance with this clause, or within such shorter or longer time as a judge has fixed upon the last previous appearance of the person before a judge under this clause, be again brought before a judge and the judge may then exercise any of the powers of a judge under subclause (5). (7) In this clause— Australia includes the external Territories. 10—False or misleading evidence A person must not, at an examination before an examiner, give evidence that the person knows is false or misleading in a material particular. 11—Protection of witnesses from harm or intimidation If it appears to an examiner that, by reason of the fact that a person— (a) is to appear, is appearing or has appeared at an examination before the examiner to give evidence or to produce a document or thing; or (b) proposes to furnish or has furnished information, or proposes to produce or has produced a document or thing, to the Commissioner or the Office otherwise than at an examination before the examiner, the safety of the person may be prejudiced or the person may be subjected to intimidation or harassment, the examiner may make such arrangements (including arrangements with South Australia Police) as are necessary to avoid prejudice to the safety of the person, or to protect the person from intimidation or harassment. 12—Contempt of Commission A person is in contempt of the Commission if he or she— (a) when appearing as a witness at an examination before an examiner— (i) refuses or fails to take an oath or affirmation when required to do so under clause 4; or (ii) refuses or fails to answer a question that he or she is required to answer by the examiner; or (iii) refuses or fails to produce a document or other thing that he or she was required to produce by a summons or notice under this Act that was served on him or her in accordance with this Act; or (b) is a legal practitioner who is required to answer a question or produce a document at an examination before an examiner, and both of the following apply: (i) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner; (ii) he or she refuses to comply with the requirement and does not, when required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made; or (c) gives evidence at an examination before an examiner that he or she knows is false or misleading in a material particular; or (d) obstructs or hinders an examiner in the performance of his or her functions as an examiner; or (e) disrupts an examination before an examiner; or (f) threatens a person present at an examination before an examiner. 13—Supreme Court to deal with contempt (1) If an examiner is of the opinion that, during an examination before the examiner, a person is in contempt of the Commission, the examiner may apply to the Supreme Court for the person to be dealt with in relation to the contempt. (2) Before making the application, the examiner must inform the person that the examiner 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. (5) If, after— (a) considering the matters specified in the certificate; and (b) hearing or receiving any evidence or statements by or in support of the Commission; and (c) hearing or receiving any evidence or statements by or in support of the person, the Supreme Court finds that the person was in contempt of the Commission, the Court may deal with the person as if the acts or omissions involved constituted a contempt of that Court. 14—Conduct of contempt proceedings (1) This clause applies if an application for a person to be dealt with in relation to a contempt of the Commission is made to the Supreme Court under clause 13. (2) Proceedings in relation to the application are, subject to this Act, 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 Supreme Court. (3) In proceedings in relation to the application, a certificate under clause 13(3) is prima facie evidence of the matters specified in the certificate. 15—Person in contempt may be detained (1) If an examiner proposes to make an application under clause 13(1) in respect of a person, he or she may, during the hearing concerned, direct a police officer to detain the person for the purpose of bringing the person before the Supreme Court for the hearing of the application. (2) If the person is detained under subclause (1)— (a) the examiner must apply to the Court as soon as practicable under clause 13(1) in respect of the person; and (b) the person must, subject to subclause (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 he or she 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 the release, for example— (a) that the person surrenders his or her passport; or (b) that the person gives an undertaking as to his or her living arrangements; or (c) that the person reports as required to a law enforcement agency. (5) The Court may at any time vary or revoke a condition imposed under subclause (4). 16—Examiner may withdraw contempt application (1) An examiner may at any time withdraw an application in relation to a person under clause 13(1). (2) If— (a) the examiner does so; and (b) the person is in detention under clause 15, the person must be released from detention immediately. 17—Legal protection of examiners, counsel and witnesses (1) An examiner has, in the performance of his or her functions or the exercise of his or her powers as an examiner in relation to an examination before the examiner, the same protection and immunity as a judge of the Supreme Court. (2) A legal practitioner assisting the Commission or representing a person at an examination before an examiner has the same protection and immunity as a legal practitioner has in appearing for a party in proceedings in the Supreme Court. (3) Subject to this Act, a person summoned to attend or appearing before an examiner as a witness has the same protection as a witness in proceedings in the Supreme Court. 18—Order for delivery to examiner of passport of witness (1) If, on application by an examiner, a judge of the Supreme Court is satisfied by evidence on oath that— (a) in connection with an investigation into corruption in public administration, a summons has been issued under this Act requiring a person to appear before an examiner at an examination (whether or not the summons has been served), or a person has appeared before an examiner at an examination, to give evidence or to produce documents or other things; and (b) there are reasonable grounds for believing that the person may be able to give to the examiner evidence or further evidence that is, or to produce to the examiner documents or other things or further documents or other things that are, relevant to the investigation and could be of particular significance to the investigation; and (c) there are reasonable grounds for suspecting that the person intends to leave Australia and has in his or her possession, custody or control of a passport issued to him or her, the judge may make an order requiring the person to appear before a judge of the Supreme Court on a date, and at a time and place, specified in the order to show cause why he or she should not be ordered to deliver the passport to the examiner. (2) If a person appears before a judge of the Supreme Court under an order made under subclause (1), the judge may, if he or she thinks fit, make an order— (a) requiring the person to deliver to the examiner any passport issued to him or her that is in his or her possession, custody or control; and (b) authorising the examiner to retain the passport until the expiration of such period (not exceeding 1 month) as is specified in the order. (3) A judge of the Supreme Court may, on application by the examiner, extend for a further period (not exceeding 1 month) or further periods (not exceeding 1 month in each case) the period for which the examiner is authorised to retain a passport under an order made under subclause (2), but not so that the total period for which the examiner is authorised to retain the passport exceeds 3 months. (4) A judge of the Supreme Court may, at any time while the examiner is authorised under an order made under this clause to retain a passport issued to a person, on application made by the person, revoke the order and, if the order is revoked, the examiner must immediately return the passport to the person. (5) In this clause— Australia includes the external Territories. 19—Offence to hinder, obstruct or disrupt (a) hinder or obstruct an examiner in the performance of his or her functions as an examiner; or (b) disrupt an examination before an examiner.