Sch 4Inspector and reviews

Schedule 4—Inspector and reviews Part 1—Preliminary Committee means the Crime and Public Integrity Policy Committee established under the Parliamentary Committees Act 1991; Deputy Inspector—see clause 3; employees of the Commission includes staff subject to an arrangement under section 13; employees of the Office means the employees assigned to the Office in accordance with section 17(2); Inspector—see clause 2; relevant complaint means a complaint made in accordance with any requirements prescribed by the regulations relating to the conduct of any person exercising or purporting to exercise functions and powers under this Act. Part 2—Inspector and Deputy Inspector 2—Inspector (1) The Governor must appoint a person (the Inspector)— (a) to conduct annual reviews examining the operations of the Office and the Commission during each financial year; and (b) to conduct reviews relating to relevant complaints received by the Inspector; and (c) to conduct other reviews on the Inspector's own motion or at the request of the Attorney‑General or the Committee; and (d) to perform any other functions conferred on the Inspector by other Acts. (2) The Inspector— (a) subject to subclause (3), must be a person who would be eligible for appointment as the Commissioner; and (b) will be appointed under this clause for a term not exceeding 3 years and on conditions determined by the Governor and, at the end of a term of appointment, will be eligible for reappointment. (3) Despite section 8(3)(b), a person who is not appointed as a judicial officer on a permanent basis may be appointed as the Inspector. (4) Before a person is appointed to be the Inspector, 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 Inspector if, following referral by the Attorney‑General of not less than 2 candidates who are qualified for appointment as the Inspector to the Statutory Officers Committee established under the Parliamentary Committees Act 1991, the appointment has been recommended by at least a two‑thirds majority of that Committee. (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 subclause (5) except to the extent allowed by the Attorney‑General (but this subclause does not derogate from section 15I(2) of the Parliamentary Committees Act 1991). (7) Subject to subclause (9), the Governor may, on the address of both Houses of Parliament, remove the Inspector from office. (8) Subject to subclause (9), the Governor may suspend the Inspector from office for— (9) The Governor may not remove or suspend the Inspector unless the Committee has inquired into the proposed removal or suspension and has reported to each House of Parliament in relation to its inquiry. (10) If the Governor suspends the Inspector 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. (11) 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 Inspector to be restored to office, the Inspector is removed from office. (12) If within 20 sitting days after the statement is laid before Parliament either House of Parliament presents an address to the Governor requiring the Inspector to be restored to office, the Inspector is restored to office. (13) The office of Inspector 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 subparagraph; or (i) is removed from office by the Governor under this clause. (14) Except as is provided by this clause, the Inspector may not be removed or suspended from office, nor will the office of the Inspector become vacant. (15) The Inspector is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 3—Deputy Inspector (1) There is to be a Deputy Inspector responsible for assisting the Inspector as directed by the Inspector. (2) The Deputy Inspector is to be appointed by the Governor for a term not exceeding 3 years and on conditions determined by the Governor and, at the end of a term of appointment, will be eligible for reappointment. (3) A person is only eligible for appointment as the Deputy Inspector 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) The Deputy Inspector may— (a) act as the Inspector during any period for which— (i) no person is for the time being appointed as the Inspector; or (ii) the Inspector 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 Inspector. (5) The Governor may remove the Deputy Inspector from office for— (6) The office of Deputy Inspector 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 subparagraph; or (i) is removed from office by the Governor under subclause (5). (7) Except as is provided by this clause, the Deputy Inspector may not be removed from office, nor will the office of the Deputy Inspector become vacant. (8) The Deputy Inspector is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 3A—Delegation (1) The Inspector may delegate to the Deputy Inspector or another 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 Act. (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. 4—Use of services or staff of administrative units The Inspector 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. Part 3—Powers 5—Evidence The Inspector may, for the purposes of a review— (a) receive any evidence that, in the opinion of the Inspector, may assist the Inspector to carry out the review, whether or not the evidence would be admissible in a court of law; and (b) take evidence on oath or affirmation (and for that purpose an oath or affirmation may be administered by the Inspector or the Deputy Inspector); and (c) permit a witness to give evidence by any means, including by written or electronic means, and require the witness to verify the evidence by— (i) in the case of written evidence—statutory declaration; or (ii) in any other case—oath or affirmation. 6—Issue of summons (1) The Inspector may, for the purposes of a review, summon a person to appear before the Inspector 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 Inspector must be satisfied that it is reasonable in all the circumstances to do so. (3) The Inspector must also record in writing the reasons for the issue of the summons. (4) The Inspector may exercise the powers of an examiner under Schedule 2 in relation to a person summoned for examination under this clause (and that Schedule applies, subject to any modifications prescribed by the regulations, as if the Inspector were an examiner). 7—Production of documents etc (1) The Inspector may, for the purposes of a review, do any of the following: (a) require a person to produce any documents or things in that person's possession or control or copies of those documents or things; (b) require a person to provide information to the Inspector, in a form approved by the Inspector; (c) require a person to verify by statutory declaration any written information, copies of documents, or representations of things provided to the Inspector; (d) examine or make copies of any document or thing that is produced or provided by a person. (2) The Inspector may, by instrument in writing given to a person, order a person to comply with a requirement of a kind specified in subclause (1). 8—Entry and search (1) The Inspector (or a person authorised by the Inspector) may, for the purposes of a review, at any time, enter and search any place or vehicle occupied by the Commission, the Office or an inquiry agency, and anything in or on the place or vehicle, as if the Inspector or other person were authorised by a warrant under this clause. (2) A magistrate may, on application under this clause, issue a warrant authorising the Inspector or a person authorised by the Inspector to enter and search any place or vehicle (not being a place or vehicle to which subclause (1) applies). (3) An application may be made under this clause by the Inspector or a person authorised by the Inspector. (4) A warrant may only be issued if the magistrate is satisfied that the warrant is reasonably required in the circumstances for the purposes of the review. (5) 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 by rules of the Magistrates Court. (6) The grounds of an application for a warrant must be verified by affidavit. (7) 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. (8) A warrant authorises the Inspector or any person authorised by the Inspector— (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; and (iii) to examine or test any thing connected with the investigation, or cause or require it to be examined or tested. (9) In executing a warrant, the Inspector or person authorised by the Inspector may be assisted by such other persons as they consider necessary in the circumstances. (10) The Inspector or person authorised by the Inspector may require an occupier of a place or a person apparently in charge of a document or thing to give them, or a person assisting them, such assistance as is reasonably required by them for the effective execution of a warrant. (11) A warrant, if not executed at the expiration of 1 month from the date of its issue, then expires. (12) The provisions set out in Schedule 3 apply in relation to a warrant under this clause subject to any modifications prescribed by the regulations. Part 4—Reviews 9—Reviews (1) Without limiting the matters that may be the subject of a review, the Inspector— (a) must, in the case of an annual review, consider the following in relation to the financial year to which the review relates: (i) whether the powers under this Act were exercised in an appropriate manner, including— (A) whether there was any evidence of— • corruption, misconduct or maladministration in public administration on the part of the Office or the Commission or employees of the Office or the Commission; or • unreasonable delay in the conduct of investigations under this Act; or • unreasonable invasions of privacy by the Office or the Commission or employees of the Office or the Commission; and (B) whether undue prejudice to the reputation of any person was caused; (ii) whether the practices and procedures of the Office and the Commission were effective and efficient; (iii) whether the Office and the Commission carried out their functions in a manner that was likely to assist in preventing or minimising corruption in public administration; and (b) may examine any particular exercises of power by the Office or the Commission; and (c) may make any recommendations to the Office, the Commission or the Attorney-General that the Inspector thinks fit. (1a) The powers of the Inspector under this clause to examine any particular exercises of power by the Office or the Commission (or to make any recommendations following such an examination) extend to exercises of power by the Office, the Commissioner or the Commission whenever occurring (including, to avoid doubt, exercises of power occurring before the commencement of section 59 of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 or before the commencement of the other provisions of that Act). (2) Before commencing an annual review, the Inspector must publish a notice calling for public submissions to be made (within a specified period of not less than 1 month and in a manner specified in the notice) in relation to the operations of the Office and the Commission during the financial year to which the annual review is to relate. (3) A notice under subclause (2) must be published on the Inspector's website and in the Gazette and may be published in any additional manner determined by the Inspector. (4) The Office and the Commission must ensure that the Inspector is provided with such information as the Inspector may require for the purpose of conducting a review. (5) A review conducted at the request of the Committee must be completed within any period specified by the Committee (which must be reasonable) and the Attorney-General must ensure that the Inspector is provided with any assistance required to complete the review within that period. (6) On completing a review, or at any time during a review, the Inspector may do any of the following: (a) refer a matter to the relevant law enforcement agency for further investigation and potential prosecution; (b) refer a matter to the Office, the Commission or a public authority for further investigation and potential disciplinary action against a public officer for whom the Office, the Commission or authority is responsible; (c) if the Inspector finds that undue prejudice to the reputation of any person was caused by the Office or the Commission, the Inspector may— (i) publish any statement or material that the Inspector thinks will help to alleviate that prejudice; or (ii) recommend that the Commission or the Office (as the case may require) pay an amount of compensation to the person. (7) Before referring a matter under subclause (6), the Inspector must notify the Office or the Commission (as the case may require) of the proposed referral unless the Inspector is of the opinion that it would be inappropriate to do so in the circumstances of the case. (8) The Inspector may disclose to the relevant law enforcement agency, or to the Office, the Commission or the public authority, information that the Inspector has in respect of the matter. (9) The Inspector— (a) must, in preparing a report on a review, consider the effect of the proposed report on any complaint, report, assessment, investigation or referral under this Act; and (b) must not include information in a report if publication of the information would constitute an offence against section 54. (10) A report on a review must be delivered to the President of the Legislative Council and the Speaker of the House of Assembly— (a) in the case of an annual review examining the operations of the Office and the Commission and relevant complaints received during a financial year—on or before 30 September in the following financial year; or (b) in any other case—as soon as practicable after completion of the review. (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. (12) A review continued in accordance with Schedule 1 clause 74 of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 is to be so continued by the Inspector under this clause. (13) Schedule 1 clause 70 of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 does not apply in relation to the Inspector or functions of the Inspector.