Integrity Commission Act 2018

1 Name of Act This Act is the Integrity Commission Act 2018.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘registered party—see the Electoral Act 1992, dictionary.’ means that the term ‘registered party’ is defined in that dictionary and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Preliminary Part 1.1

5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

6 Objects of Act The objects of this Act include— (a) providing for the identification, investigation and exposure of corrupt conduct; and (b) providing for the commission to prioritise the investigation and exposure of serious corrupt conduct and systemic corrupt (c) achieving a balance between the public interest in exposing corruption in public administration and the public interest in avoiding undue prejudice to a person’s reputation; and (d) assisting in the prevention of corrupt conduct; and (e) cooperating with other integrity bodies; and (f) educating public officials and the community about the detrimental effects of corrupt conduct on public administration and the community and the ways in which corrupt conduct can be prevented; and (g) assisting in improving the capacity of the public sector to prevent corrupt conduct.

7 Application of Act—Parliamentary privilege (1) This Act does not affect the law relating to the privileges of— (a) the Legislative Assembly; or (b) any Australian Parliament; or (c) any house of any Australian Parliament. (2) This section is subject to section 178 (Parliamentary privilege—taken to be waived for MLAs’ declarations of interests etc).

8 Application of Act—conduct that happened before the commencement of this Act (1) This Act applies in relation to conduct that happened after self-government day and before the commencement of this section if the conduct— (a) is conduct by an entity (whether or not still in existence) that would have been a public official or public sector entity under this Act had this Act been in force at the time the conduct happened; and (b) would have been corrupt conduct under this Act had this Act been in force at the time the conduct happened. (2) However, the commission must not conduct an investigation under chapter 3 (Commission—investigating corrupt conduct) in relation to conduct of a judicial officer that happened after self-government day and entirely before the commencement of this section if the matter directly relates to— (a) the merits of a decision made by the judicial officer; or (b) an order made by the judicial officer; or (c) a judgment given by the judicial officer.

Preliminary Part 1.1 (3) Also, the commission need not conduct an investigation under chapter 3 (Commission—investigating corrupt conduct) in relation to conduct that happened after self-government day and entirely before the commencement of this section if satisfied on reasonable grounds that the matter does not justify investigation because— (a) the conduct is trivial; or (b) the conduct is unrelated to the functions of the commission; or (c) the corruption report is frivolous or vexatious or not made in good faith; or (d) the corruption report lacks substance or credibility; or (e) the corruption report was not made genuinely or was made primarily for a mischievous purpose; or (f) another investigatory body has already appropriately investigated, or decided not to investigate, the conduct; or (g) the conduct happened too long ago to justify investigation. (4) In addition, the commission may conduct an investigation under chapter 3 in relation to conduct that happened after self-government day and entirely before the commencement of this section only if satisfied on reasonable grounds that— (a) it is in the public interest for the commission to investigate the (b) in all the circumstances, it is appropriate for the commission to investigate the conduct, having regard to the commission’s function of investigating conduct that is alleged to be corrupt

investigatory body means— (a) an integrity body; or (b) another entity (whether or not still in existence) with power to require the production of documents or the answering of questions.

9 Meaning of corrupt conduct (1) For this Act, corrupt conduct is conduct— (a) that could— (i) constitute a criminal offence; or (ii) constitute a serious disciplinary offence; or (iii) constitute reasonable grounds for dismissing, dispensing with the services of, or otherwise terminating the services of, a public official; and (b) that is any of the following: (i) conduct by a public official that constitutes the exercise of the public official’s functions as a public official in a way that is not honest or is not impartial; (ii) conduct by a public official or former public official that— (A) constitutes a breach of public trust; or (B) constitutes the misuse of information or material acquired by the official in the course of performing their official functions, whether or not the misuse is for the benefit of the official or another person; (iii) conduct that adversely affects, either directly or indirectly the honest or impartial exercise of functions by a public official or a public sector entity; (iv) conduct that— (A) adversely affects, either directly or indirectly the exercise of official functions by a public official or public sector entity; and

(B) would constitute, if proved, an offence against a provision of the Criminal Code, chapter 3 (Theft, fraud, bribery and related offences); (v) conduct that involves any of the following: (A) collusive tendering; (B) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety, protect the environment or facilitate the management and commercial exploitation of resources; (C) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage; (D) defrauding the public revenue; (E) fraudulently obtaining or retaining employment or appointment as a public official; (vi) conduct engaged in by a person in relation to conduct mentioned in subparagraphs (i) to (iv) (the primary conduct), that would constitute an offence against the Criminal Code, part 2.4 (Extensions of criminal responsibility) on the basis that the primary conduct is an offence, whether or not the primary conduct is in fact an offence. (2) For subsection (1) (a) it does not matter if— (a) proceedings or action in relation to the conduct can no longer be taken; or

(b) the conduct happened outside the Territory. Example—par (a) Action for a disciplinary offence may no longer be taken as the person who engaged in the conduct has resigned. criminal offence means a criminal offence under the law of the Territory or under any other law relevant to the conduct in question. Examples—criminal offences offences in the Criminal Code, ch 3 (Theft, fraud, bribery and related offences), including: • pt 3.2 (Theft and related offences) • pt 3.3 (Fraudulent conduct) • pt 3.4 (False or misleading statements, information and documents) • pt 3.5 (Blackmail) • pt 3.6 (Forgery and related offences) • pt 3.7 (Bribery and related offences) • pt 3.8 (Impersonation or obstruction of territory public officials) • pt 3.8A (Cheating at gambling). serious disciplinary offence includes— (a) any serious misconduct; or (b) any other matter that constitutes or may constitute grounds for— (i) termination action under any law; or (ii) a significant employment penalty. serious misconduct—see the Fair Work Regulations 2009 (Cwlth), section 1.07 (Meaning of serious misconduct).

10 Meaning of serious corrupt conduct serious corrupt conduct means corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration.

11 Meaning of systemic corrupt conduct systemic corrupt conduct means instances of corrupt conduct that reveal a pattern of corrupt conduct in 1 or more public sector entities.

12 Meaning of public official public official— (a) means a person who— (i) has public official functions for the Territory; or (ii) is acting in a public official capacity for the Territory; and (b) includes the following: (i) a member of the Legislative Assembly; (ii) a member of staff of an MLA; (iii) a judicial officer; (iv) a presidential member, non-presidential member, assessor or registrar of the ACAT; (v) an officer of the Assembly; (vi) a statutory office-holder; (vii) a public servant;

(viii) any other person who is— (A) an employee of a public sector entity; or (B) a contractor, employee of a contractor, or volunteer exercising a function of, a public sector entity. assessor, of the ACAT—see the ACT Civil and Administrative Tribunal Act 2008, dictionary. non-presidential member, of the ACAT—see the ACT Civil and Administrative Tribunal Act 2008, dictionary. presidential member, of the ACAT—see the ACT Civil and Administrative Tribunal Act 2008, dictionary.

13 Meaning of judicial officer judicial officer means any of the following: (a) the Chief Justice, a judge or associate judge; (b) the Chief Magistrate, a magistrate or any office that must be occupied by a magistrate; (c) a registrar of the Supreme Court or the Magistrates Court. associate judge means the Master of the Supreme Court under the Supreme Court Act 1933, as in force at any time before the day the Courts Legislation Amendment Act 2023, section 23 commences. Note The Courts Legislation Amendment Act 2023, s 23 omitted the Supreme Court Act 1933, pt 3, which provided for the Master of the Supreme Court (known as the Associate Judge).

14 Meaning of public sector entity public sector entity means any of the following: (a) an ACT public service entity; Note ACT public service entity—see s 16. (b) a Legislative Assembly entity; Note Legislative Assembly entity—see s 17. (c) an entity of a public nature. Note Entity of a public nature—see s 18.

15 Meaning of head of a public sector entity head, of a public sector entity, means— (a) for an ACT public service entity— Note ACT public service entity—see s 16. (i) for the public service—the head of service; and (ii) for an administrative unit—the director-general of the administrative unit; and (iii) for a statutory office-holder—the statutory office-holder; and (iv) for a territory authority—the person who has responsibility for managing the affairs of the territory authority; and (v) for a territory-owned corporation or a subsidiary of a territory-owned corporation—the person who has responsibility for managing the affairs of the territory-owned corporation; and

(vi) for a territory instrumentality—the person who has responsibility for managing the affairs of the territory instrumentality; and (b) for a Legislative Assembly entity— Note Legislative Assembly entity—see s 17. (i) for a member of the Legislative Assembly—the Speaker; and (ii) for a member of staff of an MLA—the Speaker; and (iii) for the Office of the Legislative Assembly—the clerk of the Legislative Assembly; and (iv) for an officer of the Assembly—the officer of the Assembly; and (v) for a member of staff of an officer of the Assembly—the officer of the Assembly; and (c) for an entity of a public nature—the person who has responsibility for managing the affairs of the entity. Note Entity of a public nature—see s 18.

16 Meaning of ACT public service entity ACT public service entity— (a) means any of the following: (i) the public service; (ii) a statutory office-holder; (iii) a territory authority; (iv) a territory-owned corporation; (v) a subsidiary of a territory-owned corporation; (vi) a territory instrumentality; but (b) does not include the following: (i) the commission; (ii) the commissioner; (iii) staff of the commission; (iv) the inspector; (v) staff of the inspector.

17 Meaning of Legislative Assembly entity Legislative Assembly entity means any of the following: (a) a member of the Legislative Assembly; (b) a member of staff of an MLA; (c) the Office of the Legislative Assembly; (d) an officer of the Assembly; (e) a member of staff of an officer of the Assembly.

18 Meaning of entity of a public nature entity of a public nature means an entity whose functions are, or include, functions of a public nature, when it is exercising those functions (whether under contract or otherwise) for— (a) the Territory; or (b) an ACT public service entity; or (c) a Legislative Assembly entity. Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)). (2) In deciding whether a function of an entity is a function of a public nature, the following matters may be considered: (a) whether the function is conferred on the entity under a territory law; (b) whether the function is connected to or generally identified with functions of government; (c) whether the function is of a regulatory nature; (d) whether the entity is publicly funded to perform the function; (e) whether the entity exercising the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory. (3) Subsection (2) does not limit the matters that may be considered in deciding whether a function is of a public nature. (4) Without limiting subsection (2) or (3), the following functions are taken to be of a public nature: (a) the operation of detention places and correctional centres;

(b) the provision of any of the following services: (i) gas, electricity and water supply; (ii) emergency services; (iii) public health services; (iv) public education; (v) public transport; (vi) public housing.

Commission—establishment, independence and functions Part 2.1 Part 2.1 Commission—establishment, independence and functions 19 Establishment of commission The ACT Integrity Commission is established. 20 Constitution of commission The commission consists of the commissioner. 21 Commissioner—officer of the Legislative Assembly (1) The commissioner is an independent officer of the Legislative Assembly. (2) The functions, powers, rights, immunities and obligations of the commissioner are as stated in this Act and any other law in force in the Territory. Note A law in force in the Territory includes a territory law and a Commonwealth law. (3) There are no implied functions, powers, rights, immunities or obligations arising from the commissioner being an independent officer of the Legislative Assembly. (4) The powers of the Legislative Assembly to act in relation to the commissioner are as stated in this Act and any other law in force in the Territory. (5) In subsection (4): Legislative Assembly includes— (a) the members of the Legislative Assembly; and (b) the committees of the Legislative Assembly.

Part 2.1 Commission—establishment, independence and functions (6) There are no implied powers of the Legislative Assembly arising from the commissioner being an independent officer of the

22 Independence of commission Subject to this Act and to other territory laws, the commission has complete discretion in the exercise of the commission’s functions.

23 Functions of commission (1) The functions of the commission are to— (a) investigate conduct that is alleged to be corrupt conduct; and (b) refer suspected instances of criminality or wrongdoing to the appropriate authority for further investigation and action; and (c) prevent corruption, including by— (i) researching corrupt practices; and (ii) mitigating the risks of corruption; and (d) publish information about investigations conducted by the commission, including lessons learned; and (e) provide education programs about the operation of this Act and the commission, including providing advice, training and education services to— (i) the Legislative Assembly and the public sector to increase capacity to prevent corrupt conduct; and (ii) people who are required to report corrupt conduct under this Act; and (iii) the community about the detrimental effects of corruption on public administration and ways in which to assist in preventing corrupt conduct; and

Commission—establishment, independence and functions Part 2.1 (f) foster public confidence in the Legislative Assembly and public sector. (2) In exercising its functions, the commission must prioritise the investigation and exposure of corrupt conduct which the commission considers may constitute serious corrupt conduct or systemic corrupt (3) Subsection (2) does not restrict the commission’s discretion to decide to investigate any matter that the commission considers may constitute corrupt conduct. (4) In exercising its functions, the commission must take into account the responsibility and role other public sector entities have in the prevention of corrupt conduct. public sector—see the Public Sector Management Act 1994,

24 Functions of commissioner The commissioner has the functions given to the commissioner under this Act or another territory law. Note 1 A provision of a law that gives an entity (including a person) a function Note 2 The commissioner has functions under the Public Interest Disclosure Act 2012.

25 Commissioner—appointment (1) The Speaker must, on behalf of the Territory, appoint a person as the ACT Integrity Commissioner. (2) The appointment must be made— (a) in consultation with— (b) in accordance with the commissioner selection criteria and process determination. Note Commissioner selection criteria and process determination— see s 27. (3) The Speaker must not appoint a person as commissioner unless— (a) satisfied that the person has extensive knowledge of, and experience in— (i) criminal investigation or criminal adjudication; or (ii) law enforcement or the conduct of investigations; or (iii) public administration, governance or government; and (b) the Legislative Assembly has approved the appointment, by resolution passed by a majority of at least 2/3 of the members.

(4) The commissioner is appointed on the terms (if any) in relation to matters not provided for by this part or a determination under the Remuneration Tribunal Act 1995 that are prescribed by the management standards under the Public Sector Management (5) The appointment is a disallowable instrument. Note For the making of appointments (including acting appointments), see the

26 Commissioner—eligibility for appointment (1) The Speaker may appoint a person as the commissioner only if the person has been— (a) a judge of the Supreme Court; or (b) a judge of the Supreme Court of a State or another territory; or (c) a judge of the Federal Court; or (d) a justice of the High Court; or (e) a lawyer for at least 10 years. (2) However, the Speaker must not appoint a person as the commissioner if the person— (a) is or has been the inspector of the commission; or (c) is or has, in the 5 years immediately before the day of the proposed appointment, been a public servant; or

(d) is or has, in the 5 years immediately before the day of the proposed appointment, been a member of— (i) a registered party; or (ii) a political party registered under a law of the Commonwealth, a State or another territory; or (iii) a political party; or (e) has been convicted—

27 Commissioner—selection criteria and process (1) The Speaker must make a determination (a commissioner selection criteria and process determination) about— (a) the criteria that apply to the selection of a person for appointment as commissioner; and (b) the process for selecting the person. (2) In making a commissioner selection criteria and process determination, the Speaker must— (a) consult—

(b) ensure the selection process is open, accountable and competitive; and (c) have regard to any selection criteria determined under the Supreme Court Act 1933, section 4AA (Requirements of appointment—resident judges). (3) A commissioner selection criteria and process determination is a disallowable instrument.

28 Commissioner—term of appointment (1) The commissioner must not be appointed for longer than 7 years. (2) However, the appointment term must not end within 12 months before or after the end of the CEO’s appointment. (3) A person who has been the commissioner for 7 years is not eligible for reappointment.

29 Commissioner—oath or affirmation of office Before a person is appointed as commissioner, the person must take an oath of office, or make an affirmation of office, before the Speaker. Note For the form of the oath and affirmation of office, see the Oaths and Affirmations Act 1984, s 6 and sch 1.

30 Commissioner—disclosure of interests The commissioner must give a written statement of their financial and other personal interests to the Speaker, and the inspector, within 5 business days after— (a) the day the commissioner is appointed; and (b) the first day of each financial year; and

(c) the day there is a change in the interest.

31 Commissioner—must avoid conflict of interest (1) The commissioner must not— (a) have paid employment that is inconsistent with the commissioner’s functions; or (b) engage in any unpaid activity that is inconsistent with the commissioner’s functions. (2) If the commissioner has a financial or other personal interest that conflicts or may conflict, or may be perceived to conflict with the commissioner’s functions (a conflict of interest), the commissioner must disclose, in writing, the nature of the interest and the conflict or potential conflict to— (a) the Speaker; and (b) the inspector. Note The commissioner must disclose a conflict of interest as soon as possible (3) The commissioner must not take any part in considering a matter in relation to which the conflict of interest has arisen except— (a) with the written approval of the Speaker; and (b) in accordance with any conditions included in the Speaker’s approval. (4) This section does not apply in relation to a conflict of interest while the commissioner remains unaware of the conflict of interest, but in any proceeding against the commissioner, the commissioner has the burden of proving that the commissioner was not, at the material time, aware of the conflict of interest.

32 Commissioner—conflicts of interest register (1) The commission must keep a conflicts of interest register. (2) The conflicts of interest register must contain the following: (a) a copy of each disclosure made under section 31 (2); (b) if the commissioner takes part in considering a matter with the Speaker’s approval under section 31 (3)— (i) a copy of the Speaker’s approval; and (ii) details of how the commissioner complied with the conditions on the speaker’s approval (if any); (c) if a proceeding is taken against the commissioner that relates to a conflict of interest— (i) details of the nature of the conflict of interest; and (ii) if the commissioner claimed to be unaware of the conflict of interest—details of how the commissioner proved, or attempted to prove, that the commissioner was not, at the material time, aware of the conflict of interest. (3) The commissioner must make the conflicts of interest register available for inspection by the inspector at any time.

33 Commissioner—resignation The commissioner may resign by giving a signed notice of resignation to the Speaker.

34 Commissioner—retirement (1) The Speaker may retire the commissioner on the ground of physical or mental incapacity if— (a) the incapacity substantially affects the exercise of the commissioner’s functions; and (b) the commissioner consents to the retirement.

(2) However, the commissioner must not be retired on the ground of invalidity unless— (a) if the commissioner is an eligible employee for the Superannuation Act 1976 (Cwlth)— (i) the commissioner is under the commissioner’s maximum retiring age within the meaning of that Act; and Superannuation Board of Trustees No 2 under that Act, section 54C for the commissioner; or (b) if the commissioner is a member of the superannuation scheme established under the Superannuation Act 1990 (Cwlth)— (i) the commissioner is under 60 years old; and section 13 for the commissioner; or (c) if the commissioner is an ordinary employer-sponsored member of PSSAP within the meaning of the Superannuation Act 2005 (Cwlth)— (i) the commissioner is under 60 years old; and section 43 for the commissioner.

invalidity means— (a) for an eligible employee for the Superannuation Act 1976 (Cwlth)—invalidity under that Act; or (b) for a member of the superannuation scheme established under the Superannuation Act 1990 (Cwlth)—invalidity under that (c) for an ordinary employer-sponsored member of PSSAP within the meaning of the Superannuation Act 2005 (Cwlth)— invalidity under that Act. physical or mental incapacity includes invalidity.

35 Commissioner—suspension—generally (1) The Speaker may suspend the commissioner— (b) for failure to take all reasonable steps to avoid being placed in a position where a conflict of interest arises during the exercise of the commissioner’s functions; or (c) for physical or mental incapacity, if the incapacity substantially affects the exercise of the commissioner’s functions; or (d) if the commissioner becomes bankrupt or personally insolvent. Note Power given by a law to make a decision includes power to reverse or change the decision. The power to reverse or change the decision is power to make the decision (see Legislation Act, s 180).

(2) If the Speaker is considering suspending the commissioner, the Speaker— (a) must consult the following people about the proposed suspension: (i) the Chief Minister; (ii) the Leader of the Opposition; Legislative Assembly are members of the party; (b) may ask 1 or more of the following for advice about the proposed suspension: (i) the public sector standards commissioner; (ii) anyone else the Speaker considers appropriate. (3) If the Speaker suspends the commissioner, the Speaker must give the commissioner written notice of the suspension and a copy of a statement of the reasons for the suspension. (4) The suspension takes effect when the notice and statement are given to the commissioner under subsection (3). (5) The commissioner may be suspended only under this section. (6) The commissioner is entitled to be paid salary and allowances while suspended.

36 Commissioner—suspension—relevant Assembly committee notice and meetings (1) If the Speaker suspends the commissioner, the Speaker must give written notice of the suspension and a copy of the statement of the reasons for the suspension to each member of the relevant Assembly committee not later than the next business day, or if the committee has not been established, the next business day after the day the committee is established. (2) The relevant Assembly committee must meet in relation to the commissioner’s suspension— (a) not later than 3 business days after the day the committee is given written notice of the suspension (the notice day); and (b) at subsequent intervals of not longer than 30 days while the commissioner is suspended (a regular meeting). (3) The relevant Assembly committee must give the commissioner written notice that a regular meeting will be held at least 3 business days before the day the meeting is to be held. (4) The commissioner may make an oral or written submission (or both) to the committee about the commissioner’s suspension. (5) At each regular meeting, the relevant Assembly committee must review the commissioner’s suspension and may, at any time, pass a resolution about the suspension, including a resolution— (a) recommending to the Speaker that the Speaker end the suspension; or (b) to make a statement to the Legislative Assembly recommending that the Speaker end the commissioner’s appointment.

37 Commissioner—ending suspension (1) If the Speaker does not comply with section 36 (1), the suspension ends at the end of the notice day. (2) If the relevant Assembly committee fails to hold a meeting as required under section 36 (2), the suspension ends on the day after the last day when the meeting could have been held. (3) If the relevant Assembly committee makes a recommendation mentioned in section 36 (5) (a) and the Speaker does not end the suspension within 1 business day after the day the recommendation is made— (a) the committee may, at any time, resolve to make a statement to the Legislative Assembly recommending that the suspension be ended; and (b) if the committee makes a statement mentioned in paragraph (a) and— (i) the Legislative Assembly resolves to end the suspension— the suspension ends on the passing of the resolution; or (ii) the Legislative Assembly does not deal with the statement within 3 sitting days—the suspension ends at the end of the 3rd sitting day. (4) If the relevant Assembly committee makes a statement mentioned in section 36 (5) (b)— (a) the Legislative Assembly may resolve to require the Speaker to end the commissioner’s appointment; but (b) if the Legislative Assembly does not, within 3 sitting days, pass a resolution mentioned in paragraph (a)—the suspension ends at the end of the 3rd sitting day.

(5) If the Speaker ends the commissioner’s suspension, the Speaker must give written notice of the ending of the suspension and a copy of a statement of the reasons for ending the suspension to the commissioner and the relevant Assembly committee. notice day—see section 36 (2) (a).

38 Commissioner—ending appointment (1) The Speaker must end the commissioner’s appointment if the Legislative Assembly— (a) passes a resolution under section 37 (4) (a); or (b) otherwise resolves to require the Speaker to end the commissioner’s appointment— (i) for misbehaviour; or (ii) for failure to take all reasonable steps to avoid being placed in a position where a conflict of interest arises during the exercise of the commissioner’s functions; or (iii) for physical or mental incapacity, if the incapacity substantially affects the exercise of the commissioner’s (iv) if the commissioner becomes bankrupt or personally insolvent. (2) For a resolution mentioned in subsection (1) (b)— (a) at least 7 days before the day the motion to which the resolution relates is first debated in the Legislative Assembly— (i) the Assembly must be given the notice of the motion and a statement of reasons for the motion; and

(ii) the Speaker must— (A) give the commissioner a copy of the notice and the statement of reasons; and (B) tell the commissioner that a written submission about the motion may be made to the Speaker not later than 3 days after the day the commissioner is given the notice; and (b) the Speaker must give any written submission to the Legislative Assembly before the day the motion is first debated in the (3) The Speaker may end the commissioner’s appointment if the commissioner is absent from duty, except on leave granted by the Speaker, for 14 consecutive days or for 28 days in any 12 months. (4) The commissioner’s appointment may be ended by the Speaker only under this section or section 34 (Commissioner—retirement).

39 Commissioner—leave of absence The Speaker may approve leave of absence for the commissioner on the terms the Speaker decides.

40 Commissioner—acting appointment Note The Speaker has power to appoint an acting commissioner if the position is vacant or if the commissioner cannot for any reason exercise a function (see Legislation Act, s 209 (1)). (1) The Speaker must not appoint a person to act as commissioner unless either— (a) the Legislative Assembly has approved the appointment, by resolution passed by a majority of at least 2/3 of the members; or

(b) the appointment has been approved by— Legislative Assembly are members of the party. (2) An acting appointment must be made in consultation with the relevant Assembly committee. (3) An acting appointment must not be for a term longer than 2 years. (4) A person who has been acting commissioner for a cumulative period of 7 years is not eligible for reappointment. (5) To remove any doubt, multiple acting commissioners may be appointed concurrently. Example—concurrent appointments If the commissioner has a conflict of interest in relation to an investigation, the Speaker may appoint an acting commissioner to perform functions of the commissioner in relation to the investigation while the commissioner continues to perform their other functions. (6) To remove any doubt— (a) subsections (1) to (4) displace the Legislation Act, section 209 (2) and (3) (Power of appointment includes power to make acting appointment); and (b) subsections (3) and (4) displace the Legislation Act, section 221 (1) and (2) (How long does an acting appointment operate?); and (c) the remaining provisions of the Legislation Act, part 19.3 (Appointments) apply in relation to an acting appointment.

(7) The Speaker must give the inspector written notice— (a) of an acting appointment; and (b) if the acting appointment takes effect only in particular circumstances—on each occasion when the acting appointment takes effect.

Commission—CEO Part 2.3

41 CEO—appointment (1) The commissioner must appoint a person as the Chief Executive Officer of the commission (the CEO). (2) However, the commissioner must not appoint a person as the CEO if (a) is or has been— (ii) the inspector of the commission; or (c) has been convicted— Note The commissioner may appoint a person as a member of staff of the commission only if the person is suitable to be a member of staff of the commission (see s 50). (3) The appointment must be made in accordance with an open, accountable and competitive selection process.

(4) The CEO is appointed on the terms (if any) in relation to matters not provided for by this part or a determination under the Remuneration Tribunal Act 1995 that are prescribed by the management standards under the Public Sector Management Act 1994. Legislation Act, pt 19.3. The power to appoint a person to a position includes power to appoint a person to act in the position, and is power to make the appointment (see Legislation Act, s 209). Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207). Note 3 The appointer’s power to make the appointment includes the power to suspend the appointee. The power to suspend the appointee is exercisable in the same way, and subject to the same conditions, as the power to make the appointment (see Legislation Act, s 208).

42 CEO—term of appointment (1) The CEO must not be appointed for longer than 7 years. (2) However, the appointment term must not end within 12 months before or after the end of the commissioner’s appointment. (3) A person who has been CEO for 7 years is not eligible for reappointment.

43 CEO—ending appointment The commissioner must end the CEO’s appointment— (b) for physical or mental incapacity, if the incapacity substantially affects the exercise of the CEO’s functions; or (c) if the CEO becomes bankrupt or personally insolvent; or

Commission—CEO Part 2.3 (d) if the CEO is convicted, in the ACT, of an offence punishable by imprisonment for at least 1 year; or (e) if the CEO is convicted outside the ACT, in Australia or elsewhere, of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year.

44 CEO—functions (1) The CEO has the following functions: (a) managing the day-to-day operations of the commission; (b) advising the commission about the commission’s operations and financial performance. (2) The CEO is not subject to direction from anyone other than the commissioner in relation to the exercise of the CEO’s functions.

45 CEO—delegation (1) The CEO may delegate the CEO’s functions under this Act or another territory law to— (a) another member of staff of the commission; or (2) However, the CEO must not delegate a function to a person who is not a member of staff of the commission without first being satisfied that the function needs to be exercised by a person who is not a member of staff of the commission.

46 CEO—leave of absence The commissioner may approve leave of absence for the CEO on the terms the commissioner decides.

47 Meaning of staff of the commission staff of the commission means— (a) the CEO; and (b) staff employed under section 48; and (c) consultants and contractors engaged under section 49.

48 Commission employed staff (1) The commission may employ staff on behalf of the Territory. (2) The staff must be employed under the Public Sector Management Note The Public Sector Management Act 1994, div 8.2 applies to the commissioner in relation to the employment of staff (see Public Sector Management Act 1994, s 152).

49 Commission consultants and contractors (1) The commission may, on behalf of the Territory, engage consultants and contractors to assist the commission in exercising its functions. (2) Consultants and contractors may be engaged on terms and conditions decided by the commission. (3) However, the commission must not enter into a contract of employment under this section.

50 Staff of the commission—eligibility for appointment (1) The commissioner may appoint a person as a member of staff of the commission only if satisfied the person is suitable to be a member of staff of the commission. Note Staff of the commission—see s 47.

Commission—staff Part 2.4 (2) However, the commissioner must not appoint a person as a member of staff of the commission if the person is or has, in the 2 years immediately before the day of the proposed appointment, been— Note Member of staff of an MLA—see s (4) and dictionary. (3) In deciding whether a person is suitable to be a member of staff of the commission, the commission may ask the person to do 1 or more of (a) provide a police certificate for the person, dated not earlier than 6 months before the date of the request; (b) declare financial or other personal interests the commission considers relevant; Note Personal interest guidelines—see s 50B (1). (c) undergo a medical or psychological assessment; (d) make a statement about a matter determined by the commission to be relevant to the person’s suitability; (e) anything else the commissioner considers is necessary to decide whether a person is suitable to be a member of staff of the Note It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4). member of staff of an MLA does not include a temporary member of staff of an MLA. Note Member of staff of an MLA—see the dictionary.

temporary member of staff of an MLA means a public servant employed by an MLA for not longer than 3 months in the 12 months immediately before the day of the proposed appointment.

50A Staff of the commission—conflicts of interest register (1) If a member of staff of the commission has a financial or other personal interest that conflicts, may conflict, or may be perceived to conflict with the member’s functions, the member must disclose to the commissioner, in writing, the nature of the interest and the conflict or potential conflict. Note The member of staff must disclose a conflict of interest as soon as possible (2) The commissioner must keep a register of disclosures made under subsection (1) (the conflicts of interest register). (3) The commissioner must make the conflicts of interest register available for inspection by the inspector at any time.

50B Staff of the commission—personal interest guidelines (1) The commission must make guidelines (the personal interest guidelines) about the financial and other personal interests the commission considers relevant for staff of the commission to declare (a) section 50 (3) (b); and (b) section 50A. (2) A guideline is a notifiable instrument. (3) The commission must publish the personal interest guidelines on the commission’s website.

Commission—staff Part 2.4

51 Staff of the commission—not subject to direction from others The staff of the commission are not subject to direction from anyone other than the following people in relation to the exercise of the commission’s or commissioner’s functions: (a) the commissioner; (b) another member of staff of the commission authorised by the commissioner to give directions.

52 Delegation by commission (1) The commission may delegate the commission’s functions under this Act or another territory law to— (c) another person. (2) However, the commission must not delegate a function to a person who is not the commissioner or a member of staff of the commission without first being satisfied that the function needs to be exercised by a person who is not the commissioner or a member of staff of the

53 Delegation by commissioner (1) The commissioner may delegate the commissioner’s functions under this Act or another territory law to— (a) a member of staff of the commission; or

(2) However, the commissioner must not delegate the commissioner’s function under section 141 (Commissioner to preside) of presiding at a public examination. (3) Also, the commissioner must not delegate a function to a person who is not a member of staff of the commission without first being satisfied that the function needs to be exercised by a person who is not a member of staff of the commission.

54 Commission—other arrangements for staff and facilities (1) The commissioner may arrange with the head of service to use— (a) the services of a public servant; or (b) Territory facilities. Note The head of service may delegate powers in relation to the management of public servants to a public servant or another person (see Public Sector Management Act 1994, s 18). (2) The commissioner may arrange with the Speaker to use Territory facilities within the Assembly precincts.

Commission—cooperation with other entities Part 2.5 Part 2.5 Commission—cooperation with other entities

55 Commission—cooperation with other entities (1) The commission and public sector entities are to work cooperatively. (2) In exercising its functions, the commission must— (a) liaise with public sector entities, and coordinate its activities with the activities of public sector entities, to avoid unnecessary duplication of work; and (b) have regard to the activities, findings and recommendations of entities outside the Territory, including outside Australia, that have functions similar to the commission— (i) to relate and adapt the activities, findings and recommendations of the entities to the needs of the Territory; and (ii) to avoid unnecessary duplication of work. Note 1 The commission may enter into a memorandum of understanding or agreement with another entity (see s 56). Note 2 The commission may conduct an investigation as a joint investigation with an integrity body or law enforcement agency (see s 104). Note 3 The commission may disclose information to certain entities if it is

Part 2.5 Commission—cooperation with other entities

56 Commission—arrangements with other entities (1) The commission may, at any time, enter into a memorandum of understanding or agreement with another entity to assist in— (a) avoiding delay and unnecessary duplication of statutory (b) efficiently managing the interaction of the statutory functions of the parties to the memorandum of understanding or agreement. (2) In particular, the commission may enter into a memorandum of understanding or agreement with another entity for— (a) the entity to assist the commission in relation to investigations or the exercise of other functions of the commission; or (b) the commission to assist the entity by providing services within the commission’s field of expertise and relevant to its functions. (3) In entering into a memorandum of understanding or agreement to assist an entity, the commission must ensure that the provision of the assistance does not interfere with the ability of the commission to exercise its functions. (4) The commission may charge an entity for the provision of assistance Note The commission may disclose information to certain entities if it is

Corruption complaints Division 3.1.1 Chapter 3 Commission—investigating corrupt conduct Part 3.1 Commission—reporting corrupt conduct 57 Anyone may make corruption complaint Any person (a complainant) may make a complaint to the commission about conduct that may be corrupt conduct (a corruption complaint).

58 How to make a corruption complaint (1) A corruption complaint may be made to the commission as follows: (a) orally or in writing; (b) using any form of electronic communication; (c) anonymously. (2) However, if a corruption complaint is made orally, the commission may— (a) put the complaint in writing; or (b) require the complainant to put the complaint in writing and, until the complainant complies with the requirement, decline to investigate the corruption complaint. Note 1 A complaint made by a young detainee is protected under the Children and Young People Act 2008, s 201 and s 280. Note 2 A complaint made by a detainee is protected under the Corrections Management Act 2007, s 105.

Note 3 A complaint made by a person admitted to or receiving treatment, care or support at a mental health facility or community care facility is protected under the Mental Health Act 2015, s 17. Note 4 A complaint made by a patient in a secure mental health facility is protected under the Mental Health (Secure Facilities) Act 2016, s 23 and s 25. electronic communication means communication by telephone, email, fax or any other electronic means.

59 Other entities may refer corruption complaints (1) This section applies if a person makes a complaint to a relevant entity about conduct that may be corrupt conduct. (2) The relevant entity may— (a) refer the complaint to the commission; and (b) if the complaint is referred to the commission— (i) give the commissioner any information the entity has in relation to the complaint; and (ii) tell the complainant about the referral. Note However, the complainant must not be told in some circumstances (see s 75). (3) If a complaint is referred to the commission under this section, the complaint is taken to have been made to the commission under section 57 (Anyone may make corruption complaint). relevant entity means any of the following: (a) the Speaker; (b) the auditor-general; (c) the ombudsman;

Corruption complaints Division 3.1.1 (d) the judicial council; (e) a judicial commission; (f) a statutory office-holder; (g) an entity having functions that correspond to the functions of the commissioner, under a State or Commonwealth law that corresponds to this Act.

59A Certain disclosures under Public Interest Disclosure Act 2012 may be corruption complaints (a) a person discloses information about conduct under the Public Interest Disclosure Act 2012, part 3 (Disclosing disclosable conduct); and (b) the disclosure is assessed by the integrity commissioner under that Act, section 17A (2) (When disclosure of disclosable conduct given to integrity commissioner is a public interest disclosure); and (c) the disclosure is not taken to be a public interest disclosure under that Act, s 17A (3), because the commissioner is not satisfied that the disclosure is about disclosable conduct; and

(d) the integrity commissioner suspects on reasonable grounds that the conduct in the disclosure may constitute corrupt conduct. (2) The disclosure is taken to be a corruption complaint made by the person to the commission under section 57 (Anyone may make corruption complaint).

60 Withdrawal of corruption complaints (1) A complainant may withdraw a corruption complaint at any time. (2) If a corruption complaint is withdrawn, the commission may continue to investigate the subject matter of the complaint. Note The commission may conduct an investigation about a matter on its own initiative (see s 101).

Division 3.1.2 Mandatory corruption notifications by public sector entities

61 Meaning of mandatory corruption notification mandatory corruption notification means a notification required under section 62 or section 63.

62 Mandatory corruption notifications—heads of public sector entities and senior executives (1) The following people must notify the commission about any matter the person suspects on reasonable grounds involves serious corrupt conduct or systemic corrupt conduct: (b) an SES member.

(2) However, the following heads of public sector entities need only notify the commission under subsection (1) if the matter involves the conduct of a public official for the public sector entity for which they are the head, and the conduct relates to the public official’s duties for the public sector entity: (d) the clerk of the Legislative Assembly. (3) In addition, a person need not notify the commission about a matter if the person believes on reasonable grounds that— (a) someone else has notified the commission about the matter; and (b) the other person has the same reasons for their suspicion.

63 Mandatory corruption notifications—MLAs and chiefs of staff (1) A member of the Legislative Assembly must notify the commission about any matter the member suspects on reasonable grounds involves serious corrupt conduct or systemic corrupt conduct by— (a) another member of the Legislative Assembly; or (2) A chief of staff of a Minister or the Leader of the Opposition must notify the commission about any matter the chief of staff suspects on reasonable grounds involves serious corrupt conduct or systemic corrupt conduct by— (b) another member of staff of an MLA.

(3) However, a person need not notify the commission about a matter if the person believes on reasonable grounds that— (a) someone else has notified the commission about the matter; and (b) the other person has the same reasons for their suspicion.

64 Directions about mandatory corruption notifications (1) The commission may make directions about mandatory corruption notifications (the mandatory corruption notification directions). (2) Before making a mandatory corruption notification direction, the (a) must consult each mandated reporter who is not an exempt mandated reporter; and (b) may consult anyone the commission considers appropriate. (3) The mandatory corruption notification directions may— (a) state the types of matters that must be notified; and (b) relate to the obligations of a stated person; and (c) provide for the form, content and method of notification; and (d) be of general or limited application; and (e) state any other matter the commission considers necessary. (4) The mandatory corruption notification directions are a notifiable instrument. (5) The mandatory corruption notification directions must be published on the commission’s website as soon as practicable after they are made. (6) Each mandated reporter who is not an exempt mandated reporter must comply with the mandatory corruption notification directions.

(7) In this section: exempt mandated reporter means the following people: (d) a member of the human rights commission; (e) the head of a public sector entity prescribed by regulation. mandated reporter means the following people: (b) an SES member; (c) a member of the Legislative Assembly; (d) a chief of staff of a Minister or the Leader of the Opposition.

65 Offence—mandatory corruption notifications—heads of public sector entities (a) is the head of a public sector entity; and (b) knows that a public official has engaged in conduct that (i) serious corrupt conduct; or (ii) systemic corrupt conduct; and

(2) Subsection (1) applies to the following heads of public sector entities only if the public official is a public official in the public sector entity for which they are the head: (d) a member of the human rights commission; (e) the clerk of the Legislative Assembly.

66 Offence—mandatory corruption notifications—senior executives A person commits an offence if the person— (a) is an SES member; and (b) knows that a public official has engaged in conduct that (i) serious corrupt conduct; or (ii) systemic corrupt conduct; and

67 Offence—mandatory corruption notifications—MLAs (a) is a member of the Legislative Assembly; and

(b) knows that— (i) another member of the Legislative Assembly has engaged in conduct that constitutes— (B) systemic corrupt conduct; or (ii) a member of staff of an MLA has engaged in conduct that (B) systemic corrupt conduct; and

68 Offence—mandatory corruption notifications— chiefs of staff A person commits an offence if the person— (a) is the chief of staff of— (i) a Minister; or (b) knows that— (i) a member of the Legislative Assembly has engaged in conduct that constitutes— (B) systemic corrupt conduct; or

(ii) another member of staff of an MLA has engaged in conduct that constitutes— (B) systemic corrupt conduct; and Division 3.1.3 Reports must be dismissed, referred or investigated

69 Meaning of corruption report corruption report means— (a) a corruption complaint; or (b) a mandatory corruption notification.

70 Commission must dismiss, refer or investigate corruption If the commission receives a corruption report, the commission must— (a) dismiss the corruption report under section 71; or (b) refer the corruption report to another entity under— (i) section 107 (Commission may refer corruption reports to referral entity); or (ii) section 111 (Commission may refer matters to prosecutorial body); or

Reports must be dismissed, referred or investigated Division 3.1.3 (c) investigate the corruption report under section 100 (Commission may investigate corruption report). Note 1 The commission may carry out a preliminary inquiry to decide whether to dismiss, refer or investigate a corruption report (see s 86). Note 2 The commission must tell certain people about this decision (see div 3.1.4).

71 When corruption reports must be dismissed (1) The commission must dismiss a corruption report about the conduct of a judicial officer if the corruption report directly relates to— (a) the merits of a decision made by the judicial officer; or (b) an order made by the judicial officer; or (c) a judgment given by the judicial officer. (2) The commission must dismiss a corruption report if satisfied on reasonable grounds that the corruption report does not justify (3) For subsection (2), reasonable grounds may include 1 or more of the (a) the subject matter of the corruption report is trivial; (b) the subject matter of the corruption report is unrelated to the functions of the commission; Note If another entity has power to investigate the report, the commission may give the report to the other entity (see s (4)). (c) the corruption report is frivolous or vexatious or not made in good faith; (d) the corruption report lacks substance or credibility; (e) the corruption report was not made genuinely or was made primarily for a mischievous purpose;

(f) the corruption report does not contain sufficient information to enable referral or investigation; (g) if the corruption report is a corruption complaint and the following applies: (i) the commission has asked the complainant for assistance to investigate the corruption complaint; (ii) the complainant has failed, without reasonable excuse, to give the assistance; (iii) the commission is reasonably satisfied that the lack of assistance makes it impracticable for the corruption report to be referred or investigated; (h) if the corruption report is a corruption complaint and the complainant has not disclosed the complainant’s name and contact details—the commission is reasonably satisfied that the lack of information makes it impracticable for the corruption report to be referred or investigated; (i) the subject matter of the corruption report has already been appropriately investigated or otherwise dealt with under this Act or another law in force in the Territory; (j) the corruption report relates to conduct that happened too long ago to justify investigation; Note If a person delays making a corruption complaint by more than 1 year, an explanation may be required (see s (5)). (k) having regard to all the circumstances, further dealing with the corruption report is not justified. Note 1 An investigation must be discontinued for the same reasons (see s 112). Note 2 Giving false or misleading information is an offence against the Criminal Code, s 338.

(4) If the commission dismisses a corruption report under subsection (1) or (2) and another entity has power to investigate the subject matter of the corruption report, the commission may give the corruption report to the other entity. 1 a corruption report about a member of the Australian Federal Police may be given to the National Anti-Corruption Commission (NACC) 2 a corruption report about a NSW public servant may be given to the NSW Independent Commission Against Corruption (ICAC) Note 1 If both the commission and another entity have power to investigate a corruption report, the commission may conduct a joint investigation with the other entity under s 104, or refer the corruption report to the other entity under s 107. Note 2 The commission may disclose information to certain entities if it is (5) If a complainant delays making a corruption complaint by more than 1 year after becoming aware of the conduct in the complaint, the commission may— (a) require the complainant to give an explanation for the delay; and (b) if not satisfied with the explanation—dismiss the corruption complaint. Division 3.1.4 Commission must keep people informed

72 Commission must keep complainant informed (1) If the commission receives a corruption complaint, the commission must tell the complainant about— (a) if the complaint is dismissed under section 71—the decision to

(b) if the complaint is referred to another entity under section 107 (c) if the complaint is investigated under section 100—the progress of the investigation at least once every 3 months; and (d) if an investigation of the complaint is discontinued under investigation and a copy of the investigation report presented to the Legislative Assembly under section 189 (Investigation report—presentation to Legislative Assembly). Note 2 The commission may also be required to give the person a non-disclosure notice about the information (see s 198).

(2) This section does not apply if— (a) the corruption complaint was made anonymously; or (b) the complainant has asked, in writing, not to be kept informed about the corruption complaint.

73 Commission must keep referring entity informed If an entity refers a corruption complaint to the commission under section 59, the commission must tell the referring entity about— (a) if the complaint is dismissed under section 71—the decision to (b) if the complaint is referred to another entity under section 107 (c) if an investigation of the complaint is discontinued under

(d) if the complaint is investigated and the investigation is completed—the outcome of the investigation and a copy of the investigation report presented to the Legislative Assembly under section 189 (Investigation report—presentation to Legislative Assembly). Note 2 The commission must also give the person a non-disclosure notice about the information (see s 198).

74 Commission must keep notifier informed If the commission receives a mandatory corruption notification from the head of a public sector entity, the commission must tell the head of the entity about— (a) if the notification is dismissed under section 71—the decision to (b) if the notification is referred to another entity under section 107

(c) if the notification is investigated under section 100—the progress of the investigation at least once every 3 months; and (d) if an investigation of the notification is discontinued under investigation and a copy of the investigation report presented to the Legislative Assembly under section 189 (Investigation report—presentation to Legislative Assembly). Note 2 The commission may also be required to give the person a non-disclosure notice about the information (see s 198).

75 Limitations on keeping people informed If the commission is required to tell a person about a matter under section 72, section 73 or section 74, the commission must not tell the person about the matter if— (a) telling the person would be likely to adversely affect— (i) a person’s safety; or (ii) an investigation under this Act; or

(b) telling the person— (i) would identify another person who has given information in relation to a corruption report; or (ii) could allow the identity of the other person to be worked out; or (c) telling the person would be contrary to a law in force in the

Part 3.2 Commission—confidentiality notices

76 Meaning of restricted information restricted information means any of the following information: (a) evidence or information given to, or obtained by, the commission; (b) the contents of a document, or a description of a thing, produced to, or obtained by, the commission; (c) the contents of a document, or a description of a thing, that the commission has made a copy of or seized under part 3.5 (Commission—powers of entry, search and seizure); (d) the existence of, or any information about, a confidentiality notice, preliminary inquiry notice or examination summons; (e) the subject matter of a preliminary inquiry or investigation; (f) information that would identify a person, or could allow the identity of a person to be worked out, who— (i) has been or is proposed to be examined by the commission; or (ii) has produced or may produce a document or other thing to the commission; (g) the fact that a person— (i) has been or is proposed to be examined by the commission; or (ii) has produced or may produce a document or other thing to the commission.

77 Meaning of confidentiality notice confidentiality notice means a notice given by the commission to a person under section 78 or section 79.

78 Confidentiality notices for preliminary inquiries (1) This section applies if, during a preliminary inquiry, the (a) gives a preliminary inquiry notice to a person; and (b) considers on reasonable grounds that the disclosure of restricted information would be likely to prejudice— (i) the preliminary inquiry; or (ii) the safety or reputation of a person; or (iii) the fair trial of a person who has been, or may be, charged with an offence. (2) The commission may give a confidentiality notice to a person directing the person to not disclose the restricted information. The commission may give a confidentiality notice to a person nominated to deliver a document or other thing to the commission under s 90B. Note The commission must report monthly to the inspector about

79 Confidentiality notices for investigations (1) This section applies if, during an investigation, the commission considers on reasonable grounds that the disclosure of restricted information would be likely to prejudice—

(2) The commission may give a confidentiality notice to a person directing the person to not disclose the restricted information. The commission may give a confidentiality notice to a person nominated to deliver a document or other thing to the commission under s 147B. Note The commission must report monthly to the inspector about

80 Confidentiality notices—content (1) A confidentiality notice given to a person must— (a) state the restricted information to which it applies; and (b) include a statement setting out the following: (i) that disclosure of the restricted information may be an offence and penalties may apply; Note See s 85. (ii) that certain kinds of disclosures may be permitted Note Permitted disclosure—see s 81. (iii) an explanation of the permitted disclosures and any prohibited disclosures; Note Prohibited disclosure—see s (2). (iv) an explanation of the effect of— (A) section 82 (Confidentiality notices—amendment and revocation); and (B) section 83 (Confidentiality notices—extension); and (C) section 84 (Confidentiality notices—expiry).

(2) In preparing a confidentiality notice, the commission may decide that a certain kind of permitted disclosure of the restricted information must be prohibited (a prohibited disclosure) because the disclosure would be likely to prejudice— (3) Subsection (2) does not apply to the following permitted disclosures: (a) a disclosure reasonably necessary for a claim of parliamentary privilege, mentioned in section 81, definition of permitted disclosure of restricted information, paragraph (g); (b) a disclosure authorised or required under section 90A or section 147A.

81 Meaning of permitted disclosure of restricted information—pt 3.2 permitted disclosure of restricted information, by a person, means a disclosure of restricted information that is— (a) necessary for the person to comply with— (i) a confidentiality notice; or (ii) a preliminary inquiry notice; or (iii) an examination summons; or (b) made by the person— confidentiality notice; or

the confidentiality notice without assistance; or (c) made by the person to obtain legal advice or representation in privileges under this Act, including in relation to— (i) a confidentiality notice; or (ii) a preliminary inquiry notice; or (iii) an examination summons; or (d) made by a lawyer who has received a disclosure under paragraph (c), to comply with a legal duty of disclosure or a (e) made by the person to their insurer, if the person has made a claim about a matter related to the restricted information under either of the following Acts:

(f) if the person has received a preliminary inquiry notice or an examination summons and is required to attend the commission at a stated time—disclosure of the requirement to attend, to— (i) the person’s domestic partner; or (ii) the person’s employer or manager, to enable the person to take leave from employment to comply with the preliminary inquiry notice or examination summons; or (g) reasonably necessary for a claim of parliamentary privilege to be made or dealt with by the Legislative Assembly; or (h) already published by the commission in a report or otherwise made public under this Act; or (i) made by the person in making a complaint about the commission or commission personnel to the inspector under section 257 (Inspector—making a complaint to the inspector); or (j) otherwise authorised or required under this Act.

82 Confidentiality notices—amendment and revocation (1) If the commission decides on reasonable grounds to amend a confidentiality notice given to a person, the commission must give (a) a notice revoking the confidentiality notice; and (b) a new confidentiality notice under section 78 (Confidentiality notices for preliminary inquiries) or section 79 (Confidentiality notices for investigations). (2) If the commission decides on reasonable grounds to revoke a confidentiality notice given to a person, the commission must give the person a notice revoking the confidentiality notice. Note The commission must report monthly to the inspector about revoking

83 Confidentiality notices—extension (1) If the commission considers on reasonable grounds that it is necessary to extend the operation of the confidentiality notice, the commission may apply to the Supreme Court for an extension of the confidentiality notice. (2) The Supreme Court may, on application by the commission, make an order extending the operation of the confidentiality notice if satisfied that it is necessary to avoid prejudice to— (a) the investigation being conducted by the commission; or an offence; or (d) any proceeding that is proposed to be commenced or which has not been finally determined. of confidentiality notices (see s 205).

84 Confidentiality notices—expiry A confidentiality notice expires on the earliest of the following: (a) the day the commission issues a notice under section 82 revoking the confidentiality notice; (b) the day an extension granted under section 83 expires; (c) 3 years after the day the confidentiality notice was issued.

85 Offences—disclose restricted information in confidentiality notice (a) the person is given a confidentiality notice about restricted information; and

(b) the confidentiality notice has not expired; and (c) the person discloses the restricted information. Note Permitted disclosure—see s 81. disclosure in the confidentiality notice; and disclosure of the restricted information by the recipient; and (ii) gives the recipient a copy of the confidentiality notice. (a) a permitted disclosure of restricted information is made to the (b) the person receives a copy of a confidentiality notice about the restricted information with the permitted disclosure; and (c) the confidentiality notice has not expired; and (d) the person discloses the restricted information.

Part 3.3 Commission—preliminary inquiries

85A Meaning of Assembly information In this Act, Assembly information— (a) means information— (i) created for and received by, or created by— (A) a committee of the Legislative Assembly; or (B) the Office of the Legislative Assembly; or (C) a current or former member of the Legislative Assembly in the course of their parliamentary duties; or (ii) otherwise created for and received by, or created by, the (b) includes metadata about a record containing information mentioned in paragraph (a). Examples—metadata about a record • author • content • creation date • location

86 Preliminary inquiries about corruption reports The commission may carry out a preliminary inquiry to decide whether to dismiss, refer or investigate a corruption report.

87 Preliminary inquiries about own initiative matters The commission may carry out a preliminary inquiry to decide whether to investigate a matter on its own initiative.

88 Certain powers not to be used for preliminary inquiries The commission must not, in carrying out a preliminary inquiry— (a) use the powers in part 3.5 (Commission—powers of entry, search and seizure); or (b) use the powers in part 3.6 (Commission—examinations); or (c) authorise or use an assumed identity under the Crimes (Assumed Identities) Act 2009; or (d) authorise or conduct a controlled operation under the Crimes (Controlled Operations) Act 2008; or (e) apply for a surveillance device warrant under the Crimes (Surveillance Devices) Act 2010.

89 Power to request information from head of public sector entity (1) In carrying out a preliminary inquiry, the commission may ask— (a) the head of a public sector entity to give information (other than Assembly information) held by the entity to the commission; or (b) the Speaker to give Assembly information held by a public sector entity to the commission. (2) The commission may only ask for information that the commission considers relevant to the preliminary inquiry. (3) If the Speaker has been asked to give Assembly information relating to a current or former member of the Legislative Assembly, the Speaker must, as far as practicable, give a copy of the request to the member.

(4) The head of the public sector entity must comply with the request within a reasonable time, being not more than 7 days after receiving the request. Note The head of a public sector entity other than the Speaker must not give Assembly information to the commission unless authorised by the Speaker (see s 89A). (5) However, the head of the public sector entity need not comply with the request if the head advises the commission of a reasonable excuse for not doing so. (6) The head of the public sector entity who complies with the request, and any person who assists the head in complying with this section, has the same protection and immunity as a witness has in a proceeding in the Supreme Court.

89A Dealing with request for Assembly information (1) This section applies if the head of a public sector entity (other than the Speaker)— (a) has been asked by the commission to give information under section 89; and (b) considers that all or part of the information requested is Assembly information. (2) The head of the public sector entity must— (a) not give the commission the information; and (b) give the Speaker a copy of the request; and

(d) deal with the request in accordance with section 89, to the extent that it does not relate to Assembly information; and (e) if the Speaker authorises the head to give the Assembly information to the commission—give the information to the (3) On being given a copy of the request, the Speaker must deal with the request, to the extent that it relates to Assembly information, in accordance with section 89.

90 Power to issue preliminary inquiry notice (1) In carrying out a preliminary inquiry, the commission may issue a notice (a preliminary inquiry notice) to a person, requiring the person to attend the commission at a stated time and place to produce a document or other thing to the commission. Note 1 A preliminary inquiry notice cannot require a person to appear before the commission to give oral evidence. Note 2 A person (other than a current or former member of the Legislative Assembly) must not produce a document or thing containing Assembly information to the commission unless authorised by the Speaker (see s 90A). (2) However, the commission may issue a preliminary inquiry notice only if the commission— (a) suspects on reasonable grounds that the document or other thing may be necessary to decide whether to dismiss, refer or investigate a corruption report, or investigate a matter on its own initiative; and (b) is satisfied that it is reasonable to do so.

(3) In deciding whether it is reasonable to issue the preliminary inquiry notice, the commission must have regard to— (a) whether it is reasonably practicable to obtain the information in the document or other thing in another way; and (b) the evidentiary or intelligence value of the information, document or other thing sought to be obtained from the person; and (c) the age of the person and whether the person is suffering from a mental impairment; and (d) the impact the preliminary inquiry notice may have on the person, in particular, due to disability, health or cultural or linguistic background. (4) The commission must not issue a preliminary inquiry notice to a person under 18 years old unless the commission considers on (a) the information, document or other thing that the person could provide may be compelling and probative evidence; and (b) it is not practicable to obtain the information, document or other thing in another way. (5) A person who complies with a preliminary inquiry notice has the same protection and immunity as a witness has in a proceeding in the Supreme Court. Note 1 For how documents may be given, see the Legislation Act, pt 19.5. Note 2 Documents may be produced electronically in certain circumstances (see Electronic Transactions Act 2001). Note 3 Giving false or misleading information is an offence against the Note 4 The commission must report monthly to the inspector about preliminary inquiry notices (see s 205).

90A Dealing with preliminary inquiry notice for Assembly (1) This section applies if a person (other than a current or former member of the Legislative Assembly)— (a) has been issued a preliminary inquiry notice; and (b) considers that the notice requires the production of a document or other thing containing Assembly information. (2) The person must— (a) not produce the document or thing to the commission; and (b) give the Speaker a copy of the preliminary inquiry notice; and (d) comply with the preliminary inquiry notice, to the extent that it does not relate to Assembly information; and (e) if the Speaker authorises the person to produce the document or thing to the commission—produce the document or thing to the

90B Preliminary inquiry notice—delivery of document or thing The commission may excuse a person issued with a preliminary inquiry notice from attendance at the commission if the required document or other thing is delivered to the commission before the time for production stated in the preliminary inquiry notice, by— (a) the person; or

(b) if the commission agrees to a nominated person delivering the document or other thing to the commission—the nominated person. Note The commission may give the person, and any nominated person, a confidentiality notice (see s 78).

91 Preliminary inquiry notice—content (1) A preliminary inquiry notice must require the person to whom it is directed to attend at a stated time and place and produce to the commission any document or other thing described in the preliminary inquiry notice that is in the person’s possession or control. (2) A preliminary inquiry notice must be accompanied by— (a) any relevant confidentiality notice; and Note Confidentiality notice—see s 77. (b) a statement setting out the following: (i) that failure to comply with the preliminary inquiry notice may be contempt of the commission, or an offence, and Note See s 99 and s 166. (ii) that giving false or misleading information is a serious offence; Note See the Criminal Code, s 338. (iii) that if the person to whom the preliminary inquiry notice is directed is under 16 years old and provides proof of age to the commission, the person need not comply with the preliminary inquiry notice; Note See the requirements in s 92.

(iv) that the person is entitled to seek legal advice in relation to the preliminary inquiry notice; Note The commission may make a legal advice direction directing a person not to seek legal advice from a stated (v) that the person may be able to claim a privilege; Note See s 95 and pt 3.7. (vi) that the person must deal with the preliminary inquiry notice in accordance with section 90A if— (A) the document or other thing required to be produced contains Assembly information; and (B) the person is not a current or former member of the (vii) that the commission may excuse the person from attendance if the person, or a nominated person, produces the required document or other thing to the commission before the time for production stated in the preliminary inquiry notice; Note See s 90B. (viii) that the person has a right to complain to the inspector; Note See s 257. (ix) any other matter prescribed by regulation.

92 Preliminary inquiry notice—person under 16 years (1) A preliminary inquiry notice directed to a person under 16 years old has no effect. (2) A person who claims to be under 16 years old for subsection (1) must provide proof of age to the commission in the form of— (a) an Australian birth certificate; or

(b) an Australian passport or a passport issued by another country; or (c) anything else that satisfies the commission about the person’s age.

93 Preliminary inquiry notice—service (1) A preliminary inquiry notice directed to a person must be served at least 10 business days before the day the person is required to attend or otherwise comply with the preliminary inquiry notice. (2) If it is not reasonably practicable to serve a preliminary inquiry notice on a person under subsection (1), the commission may apply to the Supreme Court for an order that the preliminary inquiry notice be served in another way. (3) If the Supreme Court receives an application and is satisfied that it is not reasonably practicable to serve a preliminary inquiry notice under subsection (1), the court may— (a) order that the preliminary inquiry notice be served in another way that the court considers appropriate; or (b) make an order for substituted service.

94 Preliminary inquiry notice—first actions to be taken Before a person who is required to attend a preliminary inquiry under a preliminary inquiry notice is required to produce a document or other thing, the commission must— (a) if the commission considers the person may be under 18 years old—confirm the age of the person; and (b) release any person under 16 years old from compliance with the preliminary inquiry notice; and (c) tell the person orally and in writing about the person’s rights and obligations as stated in section 91 (2); and

(d) if a lawyer is representing a person at the preliminary inquiry— tell the lawyer about any non-disclosure requirements that apply under this Act; and (e) take any other action prescribed by regulation.

94A Preliminary inquiry notice—extension (1) A person who receives a preliminary inquiry notice may apply to the commission for an extension of time to attend the commission or otherwise comply with the notice. (2) The commission must give the person a written notice (an extension notice) stating— (a) if the commission agrees to the extension—the new time to attend or otherwise comply with the notice; or (b) if the person requests a particular extension but the commission agrees to a shorter extension—the new time to attend or otherwise comply with the notice, including the reasons for the shorter extension; or (c) if the commission refuses the extension—that the application is refused, including the reasons for the refusal. (see s 205).

95 Preliminary inquiry notice—claiming privilege or secrecy (a) a preliminary inquiry notice directed to a person requires a document or other thing to be produced to the commission; and (b) the person claims that the document or other thing— (i) is the subject of privilege; or Note Privilege—see s 174 and s (5).

(ii) cannot be disclosed because of a secrecy requirement under a law in force in the Territory. a confidentiality requirement under the Health Records (Privacy and Access) Act 1997, s 17 (2) The claimant must attend before the commission in accordance with the preliminary inquiry notice. (3) The commission must consider the claim and either— (a) withdraw the requirement to produce the document or other thing; or (b) refuse to withdraw the requirement and require the claimant to immediately secure the document or other thing (by sealing in an envelope or otherwise) and give it to the commission. (4) In considering the claim, the commission must not inspect the

96 Preliminary inquiry notice—application to Supreme Court to decide privilege or secrecy (1) If the commission requires the claimant to secure the document or other thing and give it to the commission under section 95 (3) (b), the (a) immediately give the secured document or other thing to the proper officer of the Supreme Court to be held in safe custody; and (b) within 7 days, apply to the Supreme Court for determination of

(c) within a reasonable time before the hearing of the application, (2) If the commission does not make an application within the 7 days, the proper officer must return the secured document or other thing to the claimant. (3) The claimant is entitled to appear and be heard on the hearing of the

97 Preliminary inquiry notice—Supreme Court to decide privilege or secrecy (1) If the Supreme Court receives an application under section 96, the court must determine whether the document or other thing is the subject of— (a) privilege; or (b) a secrecy requirement under a law in force in the Territory. (2) To make the determination, the judge constituting the court and any (3) If the court determines that the document or other thing— (a) is the subject of privilege or a secrecy requirement—the court must order that the document or other thing be returned to the claimant; or (b) is not the subject of privilege or a secrecy requirement—the court must order that the document or other thing be given to the

98 Preliminary inquiry notice—offence to open secured document or other thing (a) the claimant secures a document or other thing under section 95 (3) (b); and claimant under section 96 (2); and other thing is the subject of privilege or a secrecy requirement under section 97. and the secured document or other thing under section 97 (2).

99 Preliminary inquiries—application of Criminal Code, ch 7 A preliminary inquiry before the commission is a legal proceeding for the Criminal Code, chapter 7 (Administration of justice offences). Note The Criminal Code, ch 7 includes offences such as falsifying evidence, destroying or concealing evidence and failing to produce a document or other thing.

Part 3.4 Commission—conducting an investigation

100 Commission may investigate corruption report The commission may conduct an investigation if the commission— (a) receives a corruption report; and (b) suspects on reasonable grounds that the conduct in the corruption report may constitute corrupt conduct. Note 1 The commission must dismiss, refer or investigate corruption reports (see s 70). Note 2 The commission may carry out a preliminary inquiry to decide whether to dismiss, refer or investigate a corruption report (see s 86).

101 Commission may investigate on own initiative (1) The commission may, on its own initiative, conduct an investigation about a matter if the commission suspects on reasonable grounds that the matter involves corrupt conduct. (2) The commission may carry out a preliminary inquiry to decide whether to investigate the matter.

102 Investigation of judicial officers (1) In investigating a judicial officer, the commission— (a) must have proper regard for the preservation of the independence of judicial officers; and (b) for a judicial officer other than the Chief Justice or Chief Magistrate—must notify, and may consult, the head of jurisdiction unless doing so would prejudice an investigation.

Starting an investigation Division 3.4.1 associate judge—see section 13 (2). head of jurisdiction means— (a) for a judge, associate judge or registrar of the Supreme Court— the Chief Justice; or (b) for a magistrate, an office that must be occupied by a magistrate or a registrar of the Magistrates Court—the Chief Magistrate.

103 Investigation may be conducted during court proceeding (1) The commission may do any of the following despite any proceeding (whether civil or criminal) in any court or tribunal: (a) commence or continue an investigation; (b) discontinue or complete an investigation; (c) provide a report about an investigation; (d) do anything necessary or convenient to carry out an action under paragraphs (a) to (c). (2) The commission must take all reasonable steps to ensure the conduct of an investigation does not prejudice any proceeding (whether civil or criminal) in any court or tribunal. 1 issuing a confidentiality notice for the duration of the proceeding 2 deferring giving a report to the Speaker until completion of the proceeding (3) This section applies to a proceeding regardless of whether— (a) the proceeding commenced before or after the investigation commenced; or (b) the commission or a member of staff of the commission is a party to the proceeding.

104 Investigation may be conducted as joint investigation (1) The commission may conduct an investigation as a joint investigation with an integrity body or law enforcement agency (a joint investigation). (2) The commission may conduct a joint investigation in any way the commission considers appropriate. (3) Without limiting subsection (2), in conducting a joint investigation the commission may do 1 or more of the following: (a) consult, coordinate and cooperate with an integrity body or law enforcement agency that is conducting an investigation in relation to the same, or a similar or related, subject matter; (b) receive information from an integrity body or law enforcement agency with which the commission is conducting a joint investigation; (c) enter into a memorandum of understanding or agreement with an integrity body or law enforcement agency about the conduct of joint investigations. Note The commission may disclose information to an integrity body or law enforcement agency if it is relevant to the exercise of the body’s or agency’s functions and the commission considers it appropriate (see s 196).

105 Commission must refer corruption reports about staff to The commission must refer a corruption report to the inspector if the corruption report involves conduct of a person who is, or was at the time of the conduct—

(b) a member of staff of the commission. Note The commission may disclose information to the inspector if it is relevant to the exercise of the inspector’s functions and the commission considers it appropriate (see s 196).

106 Meaning of referral entity referral entity means any of the following: (a) the Speaker; (b) the auditor-general; (c) the ombudsman; (d) the chief police officer; (e) the head of service; (f) a director-general; (g) a statutory office-holder; (h) the Legislative Assembly commissioner for standards.

107 Commission may refer corruption reports to referral entity (1) The commission may, at any time, refer a corruption report to a referral entity if— (a) the commission has power to investigate the corruption report; and (b) the referral entity has power to investigate the subject matter of the corruption report; and (c) the commission considers it would be more appropriate for the corruption report to be investigated by the referral entity. Note 1 If the commission does not have power to investigate the corruption report, the commission may give the report to another entity that does have power to investigate it (see s 71 (4)). Note 2 The commission may disclose information to a referral entity if it is commission must consult the referral entity. (3) Nothing in this section requires the referral entity to deal with the corruption report. Note 1 The commission may conduct an investigation as a joint investigation with an integrity body or law enforcement agency (see s 104). Note 2 Referrals to prosecutorial bodies are made under s 111.

108 Referral to referral entity—results and actions (1) This section applies if the commission refers a corruption report to any of the following referral entities: (a) the chief police officer; (b) the head of service; (c) a director-general;

(d) a statutory office-holder other than— (i) an officer of the Assembly; or (ii) a member of the human rights commission. (2) The commission may ask the referral entity to give the commission a written report about— (a) the results of the investigation; and (b) any action taken, or proposed to be taken, in relation to the corruption report.

109 Referral to referral entity—withdrawal of referral (1) This section applies if the commission refers a corruption report to any of the following referral entities: (a) the head of service; (b) a director-general; (c) a statutory office-holder other than— (i) an officer of the Assembly; or (ii) a member of the human rights commission; or (iii) the public sector standards commissioner. (2) The commission may, at any time— (a) decide to investigate the corruption report; and (b) by written notice to the referral entity (a withdrawal notice), withdraw the referral. (3) If a referral entity receives a withdrawal notice, the referral entity must— (a) cease its investigation of the referred corruption report; and

(b) give the commission any evidence the referral entity has in its possession or control that relates to the referred corruption (c) cooperate with the commission, and give all reasonable assistance requested by the commission, in relation to the referred corruption report.

110 Commission may refer matters to judicial council or judicial commission (1) The commission may, at any time, refer a matter to the judicial council or a judicial commission if— (a) the matter is relevant to the exercise of the judicial council’s or a judicial commission’s functions; and (b) the commission considers it appropriate to refer the matter. commission must consult the judicial council or judicial commission. (3) To remove any doubt, the commission may refer a matter under subsection (1) regardless of whether the matter is being investigated (4) The commission may enter into a memorandum of understanding or agreement with the judicial council or a judicial commission about practices and procedures to be used for referrals. Note The commission may disclose information to the judicial council or a judicial commission if it is relevant to the exercise of the judicial council’s or judicial commission’s functions and the commission

111 Commission may refer matters to prosecutorial body (1) The commission may, at any time, refer a matter to a prosecutorial body if— (a) the matter is relevant to the exercise of the prosecutorial body’s functions; and (b) the commission considers it appropriate to refer the matter. commission must consult the prosecutorial body. (3) To remove any doubt, the commission may refer a matter under subsection (1) regardless of whether the matter is being investigated (4) The commission may enter into a memorandum of understanding or agreement with a prosecutorial body about practices and procedures to be used for referrals. Note The commission may disclose information to a prosecutorial body if it is relevant to the exercise of the body’s functions and the commission considers it appropriate, but must not give a video recording or transcript of a person’s evidence at an examination to a prosecutorial body (see s 196).

112 Discontinuing an investigation (1) The commission must discontinue an investigation if satisfied on reasonable grounds of any of the matters mentioned in section 71 (When corruption reports must be dismissed). (2) If the commission discontinues an investigation because it is satisfied under section 71 (3) (b) that the subject matter of the corruption report for the investigation is unrelated to the functions of the commission, and another entity has power to investigate the subject matter of the corruption report, the commission may give the corruption report and any other information the commission has that relates to the matter to the other entity. 1 a corruption report about a member of the Australian Federal Police may be given to the National Anti-Corruption Commission (NACC) 2 a corruption report about a NSW public servant may be given to the NSW Independent Commission Against Corruption (ICAC) Note 1 If both the commission and another entity have power to investigate a corruption report, the commission may conduct a joint investigation with the other entity under s 104, or refer the corruption report to the other entity under s 107. Note 2 The commission may disclose information to certain entities if it is

Investigators Division 3.5.1 Part 3.5 Commission—powers of entry, search and seizure Division 3.5.1 Investigators 113 Investigators—appointment (1) The commission may appoint a member of staff of the commission as an investigator. Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207). (2) The commissioner is an investigator.

114 Investigators—identity cards (1) The commission must give each investigator an identity card that states the person’s name and appointment as an investigator, and shows— (a) a recent photograph of the person; and (b) the date of issue and expiry of the card; and (c) anything else prescribed by regulation. (2) A person who stops being an investigator must return the person’s identity card to the commission as soon as practicable (but within 7 days) after the day the person stops being an investigator.

Investigators

115 Investigator must show identity card on exercising power (1) If an investigator exercises a power under this Act that affects an individual, the investigator must first show the investigator’s identity card to the individual. (2) If an investigator exercises a power under this Act that affects a person, other than an individual, the investigator must first show the investigator’s identity card to an individual the investigator believes on reasonable grounds is an employee, officer or agent of the person. Examples—person other than an individual • corporation • partnership

Note 1 A provision of a law that gives an entity (including a person) a function Note 2 In addition to the powers in this division, the commissioner has powers under other legislation including the following: • Crimes (Assumed Identities) Act 2009 • Crimes (Controlled Operations) Act 2008 • Crimes (Surveillance Devices) Act 2010.

116 Definitions—pt 3.5 connected—a thing is connected with corrupt conduct if— (a) corrupt conduct has been engaged in, in relation to it; or (b) it will provide evidence of corrupt conduct; or (c) it was used, is being used, or is intended to be used, to engage in corrupt conduct. corrupt conduct includes corrupt conduct there are reasonable grounds for believing has been, is being, or will be, engaged in. occupier, of premises, includes a person— (a) an investigator reasonably believes is an occupier of the (b) apparently in charge of the premises. premises includes land, a vehicle, a vessel and an aircraft. warrant means a warrant issued under division 3.5.3 (Search warrants).

117 Power to enter premises (1) For this Act, an investigator may— (a) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment of money); or (b) at any time, enter premises with the occupier’s consent; or (c) enter premises in accordance with a search warrant. (2) However, subsection (1) (a) does not authorise entry into a part of the premises that is being used only for residential purposes. (3) An investigator may, without the consent of the occupier of premises, enter land around the premises to ask for consent to enter the premises. (4) To remove any doubt, an investigator may enter premises under subsection (1) without payment of an entry fee or other charge. (5) An investigator may— (a) for subsection (1) (a) or (b)—enter the premises with necessary assistance; and (b) for subsection (1) (c)—enter the premises with necessary assistance and force. Note A search warrant to enter premises issued under this Act permits an investigator to enter premises with necessary assistance and force (see s 122). at any reasonable time includes at any time when the public is entitled to use the premises or when the premises are open to or used by the public (whether or not on payment of money).

necessary assistance, for an investigator entering premises, includes the attendance of 1 or more people who, in the opinion of the investigator, have knowledge or skills that could assist the investigator carry out the investigator’s function.

118 Production of identity card An investigator, and any other person other than a police officer who is accompanying the investigator, may not remain at premises entered under this part if the investigator does not produce the investigator’s identity card when asked by the occupier.

119 Consent to entry (1) When seeking the consent of an occupier to enter premises under section 117 (1) (b), an investigator must— (a) produce the investigator’s identity card; and (b) tell the occupier— (i) the purpose of the entry; and (ii) the reason for, and identity of, any other person accompanying the investigator; and (iii) that anything found and seized under this part may be used in evidence in court; and (iv) that consent may be refused. (2) If the occupier consents, the investigator must ask the occupier to sign a written acknowledgment (an acknowledgment of consent)— (a) that the occupier was told— (i) the purpose of the entry; and (ii) the reason for, and identity of, any other person accompanying the investigator; and

(iii) that anything found and seized under this part may be used in evidence in court; and (iv) that consent may be refused; and (b) that the occupier consented to the entry; and (c) stating the time and date when consent was given. (3) If the occupier signs an acknowledgment of consent, the investigator must immediately give a copy to the occupier. (4) A court must find that the occupier did not consent to entry to the premises by the investigator under this part if— (a) the question whether the occupier consented to the entry arises in a proceeding in the court; and (b) an acknowledgment of consent for the entry is not produced in evidence; and (c) it is not proved that the occupier consented to the entry.

120 General powers on entry to premises (1) An investigator who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises or anything at the premises: (a) inspect or examine; (b) take measurements or conduct tests; (c) take samples; (d) make sketches, drawings or any other kind of record (including photographs, films, audio, video or other recordings); (e) require the occupier, or anyone at the premises, to give the investigator reasonable help to exercise a power under this section.

(2) A person must take all reasonable steps to comply with a requirement made of the person under subsection (1) (e). Note 1 Sections 127 to 130 deal with claiming privilege when a search warrant is executed. Note 2 This Act does not affect the law relating to the privileges of the Note 3 A claim of parliamentary privilege must be dealt with by the Legislative

121 Power to seize things (1) An investigator who enters premises under this part with the occupier’s consent may seize anything at the premises if seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent. (2) An investigator who enters premises under a warrant under this part may seize anything at the premises that the investigator is authorised to seize under the warrant. (3) An investigator who enters premises under this part (whether with the occupier’s consent or under a warrant) may seize anything at the premises if satisfied on reasonable grounds that— (a) the thing is connected with corrupt conduct; and (b) the seizure is necessary to prevent the thing from being— (i) concealed, lost or destroyed; or (ii) used to engage in, continue or repeat the corrupt conduct. (4) Having seized a thing, an investigator may— (a) remove the thing from the premises where it was seized (the place of seizure) to another place; or (b) leave the thing at the place of seizure but restrict access to it.

(5) A person commits an offence if the person— (a) interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (4) (b); and (b) does not have an investigator’s approval to interfere with the thing. (6) An offence against subsection (5) is a strict liability offence.

122 Warrants—generally (1) An investigator may apply to a magistrate for a warrant to enter premises. (2) The application must— (a) be sworn; and (b) state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the investigator gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. (4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity connected with corrupt (b) the thing or activity— (i) is, or is being engaged in, at the premises; or (ii) may be, or may be engaged in, at the premises within the next 7 days.

(5) The warrant must state— (a) that an investigator may, with necessary assistance and force, enter the premises and exercise the investigator’s powers under this part; and (b) the nature of the corrupt conduct for which the warrant is issued; and (c) the things that may be seized under the warrant; and (d) the hours when the premises may be entered; and (e) the date, within 7 days after the day of the warrant’s issue, when the warrant ends. Note This Act does not affect the law relating to the privileges of the

123 Warrants—application other than in person (1) An investigator may apply for a warrant by phone, radio, email, letter or other form of communication if the investigator considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances. (2) Before applying for the warrant, the investigator must prepare an application stating the grounds on which the warrant is sought. (3) The investigator may apply for the warrant before the application is sworn. (4) After issuing the warrant, the magistrate must immediately give a written copy to the investigator if it is practicable to do so.

(5) If it is not practicable to give a written copy of the warrant to the investigator— (a) the magistrate must tell the investigator— (i) the terms of the warrant; and (ii) the date and time the warrant was issued; and (b) the investigator must complete a form of warrant (the warrant form) and write on it— (i) the magistrate’s name; and (ii) the date and time the magistrate issued the warrant; and (iii) the warrant’s terms. (6) The written copy of the warrant, or the warrant form properly completed by the investigator, authorises the entry and the exercise of the investigator’s powers under this part. (7) The investigator must, at the first reasonable opportunity, send to the magistrate— (a) the sworn application; and (b) if the investigator completed a warrant form—the completed warrant form. (8) On receiving the documents mentioned in subsection (7), the magistrate must attach them to the warrant. (9) A court must find that a power exercised by an investigator was not authorised by a warrant under this section if— (a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and (b) the warrant is not produced in evidence; and (c) it is not proved that the exercise of power was authorised by a warrant under this section.

124 Search warrants—announcement before entry (1) An investigator must, before anyone enters premises under a search warrant— (a) announce that the investigator is authorised to enter the (b) give anyone at the premises an opportunity to allow entry to the (c) if the occupier of the premises, or someone else who apparently represents the occupier, is present at the premises—identify himself or herself to the person. (2) The investigator is not required to comply with subsection (1) if the investigator believes on reasonable grounds that immediate entry to the premises is required to ensure— (a) the safety of anyone (including the investigator or any person assisting); or (b) that the effective execution of the warrant is not frustrated.

125 Details of search warrant to be given to occupier etc If the occupier of the premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the investigator or a person assisting must make available to the person— (a) a copy of the warrant; and (b) a document setting out the rights and obligations of the person.

126 Occupier entitled to be present during search etc (1) If the occupier of the premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the person is entitled to observe the search being conducted.

(2) However, the person is not entitled to observe the search if— (a) to do so would impede the search; or (b) the person is under arrest, and allowing the person to observe the search being conducted would interfere with the objectives of the search. (3) This section does not prevent 2 or more areas of the premises being searched at the same time.

127 Search warrants—claiming privilege (a) an investigator executing a search warrant wishes to inspect, copy or seize a document or other thing under the search warrant; and (b) a person who is entitled to claim the privilege, claims that the document or other thing is the subject of privilege. Note Privilege—see s 174 and s (4). (2) The investigator must consider the claim and either— (a) stop exercising the power under the search warrant in relation to (b) require the claimant to immediately secure the document or other thing (by sealing in an envelope or otherwise) and give it to the investigator. (3) In considering the claim, the investigator must not inspect the Note For the claim of parliamentary privilege relating to the execution of a search warrant, see s 130A.

128 Search warrants—application to Supreme Court to decide privilege (1) If the investigator requires the claimant to secure the document or other thing and give it to the investigator under section 127 (2) (b), the investigator must— (a) notify the commissioner about the claim as soon as practicable; and (b) immediately give the secured document or other thing to the proper officer of the Supreme Court to be held in safe custody. (2) If the commission is notified about the claim under subsection (1), the (a) within 7 days, apply to the Supreme Court for determination of (b) within a reasonable time before the hearing of the application— (3) If the commission does not make an application within the 7 days, the proper officer must return the secured document or other thing to the claimant. (4) The claimant is entitled to appear and be heard on the hearing of the

129 Search warrants—Supreme Court to decide privilege (1) If the Supreme Court receives an application under section 123, the court must determine whether the document or other thing is the subject of privilege. (2) To make the determination, the judge constituting the court and any

(3) If the court determines that the document or other thing— document or other thing be returned to the claimant; or document or other thing be given to the commission.

130 Search warrants—offence to open secured document or other thing (a) a claimant secures a document or other thing under section 127 (2) (b); and claimant under section 123 (3); and other thing is the subject of privilege under section 129. and the secured document or other thing under section 129 (2).

130A Search warrants—claiming parliamentary privilege (a) an investigator executing a search warrant wishes to inspect, copy or seize a document or other thing under the search warrant; and (b) a current or former member of the Legislative Assembly (the claimant) claims that the document or other thing is the subject of parliamentary privilege. (2) The investigator must either— (a) stop exercising the power under the search warrant in relation to (b) require the claimant to immediately secure the document or other thing (by sealing in an envelope or otherwise) and give it to the investigator. (3) In taking an action under subsection (2), the investigator must not inspect the document or other thing. Note 1 The Act does not affect the law relating to the privileges of the Legislative Assembly (see s 7).

130B Search warrants—investigator to give secured documents etc to clerk (1) This section applies if the investigator requires the claimant to secure the document or other thing and give it to the investigator under section 130A (2) (b). (2) The investigator must— (a) notify the commissioner about the claim as soon as possible; and (b) immediately give the secured document or other thing to the clerk of the Legislative Assembly to be held in safe custody.

clerk of the Legislative Assembly includes, if the clerk is unavailable, the deputy clerk of the Legislative Assembly. unavailable—the clerk of the Legislative Assembly is unavailable if— (a) the clerk is absent or suspended from duty; or (b) there is a vacancy in the office of the clerk; or (c) the clerk has an actual or perceived conflict of interest that would prevent the clerk from properly carrying out the functions of the clerk under this section; or (d) the clerk cannot, for any other reason, exercise the functions of the clerk.

131 Receipt for things seized (1) As soon as practicable after a thing is seized by an investigator under this part, the investigator must give a receipt for it to the person from whom it was seized. (2) If, for any reason, it is not practicable to comply with subsection (1), the investigator must leave the receipt, secured conspicuously at the place of seizure under section 121 (Power to seize things). (3) A receipt under this section must include the following: (a) a description of the thing seized; (b) an explanation of why the thing was seized;

Return and forfeiture of things seized Division 3.5.4 (c) the investigator’s name, and how to contact the investigator; (d) if the thing is moved from the premises where it is seized— where the thing is to be taken.

132 Moving things to another place for examination or processing under search warrant (1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if— (a) both of the following apply: (i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates; (ii) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert (b) the occupier of the premises agrees in writing. (2) The thing may be moved to another place for examination or processing for not longer than 72 hours. (3) An investigator may apply to a magistrate for an extension of time if the investigator believes on reasonable grounds that the thing cannot be examined or processed within 72 hours. (4) The investigator must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the (5) If a thing is moved to another place under this section, the investigator must, if practicable— (a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and

(b) allow the occupier or the occupier’s representative to be present during the examination or processing. (6) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.

133 Access to things seized A person who would, apart from the seizure, be entitled to inspect a thing seized under this part may— (a) inspect the thing; and (b) photograph the thing; and (c) if the thing is a document—take extracts from, or make copies of, the thing.

134 Return of things seized (1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, unless— (a) a prosecution for an offence against a territory law in connection with the thing is begun within 1 year after the day the seizure is made and the thing is required to be produced in evidence in the prosecution; or (b) an application for the forfeiture of the seized thing is made to a court under the Confiscation of Criminal Assets Act 2003 or another territory law within 1 year after the day the seizure is made.

Return and forfeiture of things seized Division 3.5.4 (2) However, this section does not apply to a thing if— (a) the commissioner believes on reasonable grounds that the only practical use of the thing in relation to the premises where it was seized would be an offence against a law in force in the Territory; or (b) possession of it by its owner would be an offence.

135 Forfeiture of seized things (a) anything seized under this part has not been returned under section 134; and (b) an application for disallowance of the seizure under section 136— (i) has not been made within 10 days after the day of the seizure; or (ii) has been made within the 10-day period, but the application has been refused or withdrawn before a decision in relation to the application had been made. (2) If this section applies to the seized thing— (a) it is forfeited to the Territory; and (b) it may be sold, destroyed or otherwise disposed of as the commissioner directs.

136 Application for order disallowing seizure (1) A person claiming to be entitled to anything seized under this part may apply to the Magistrates Court within 10 days after the day of the seizure for an order disallowing the seizure.

(2) The application may be heard only if the applicant has served a copy of the application on the commissioner. (3) The commissioner is entitled to appear as respondent at the hearing of the application.

137 Order for return of seized thing (1) This section applies if a person claiming to be entitled to anything seized under this part applies to the Magistrates Court under section 136 for an order disallowing the seizure. (2) The Magistrates Court must make an order disallowing the seizure if satisfied that— (a) the applicant would, apart from the seizure, be entitled to the return of the seized thing; and (b) the thing is not connected with corrupt conduct; and (c) possession of the thing by the person would not be an offence. (3) The Magistrates Court may also make an order disallowing the seizure if satisfied there are exceptional circumstances justifying the making of the order. (4) If the Magistrates Court makes an order disallowing the seizure, the court may make 1 or more of the following ancillary orders: (a) an order directing the commissioner to return the thing to the applicant or to someone else who appears to be entitled to it; (b) if the thing cannot be returned or has depreciated in value because of the seizure—an order directing the Territory to pay reasonable compensation; (c) an order about the payment of costs in relation to the application.

Miscellaneous Division 3.5.5

138 Damage etc to be minimised (1) In the exercise, or purported exercise, of a function under this part, an investigator must take all reasonable steps to ensure that the investigator, and any person assisting the investigator, causes as little inconvenience, detriment and damage as is practicable. (2) If an investigator, or a person assisting an investigator, damages anything in the exercise or purported exercise of a function under this part, the investigator must give written notice of the particulars of the damage to the person whom the investigator believes on reasonable grounds is the owner of the thing. (3) The notice must state that— (a) the person may claim compensation from the Territory if the person suffers loss or expense because of the damage; and (b) compensation may be claimed and ordered in a proceeding for compensation brought in a court of competent jurisdiction; and (c) the court may order the payment of reasonable compensation for the loss or expense only if satisfied it is just to make the order in the circumstances of the particular case. (4) If the damage happens at premises entered under this part in the absence of the occupier, the notice may be given by leaving it secured in a conspicuous place at the premises.

139 Compensation for exercise of enforcement powers (1) A person may claim compensation from the Territory if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this part by— (a) an investigator; or (b) a person assisting an investigator.

(2) Compensation may be claimed and ordered in a proceeding for compensation brought in a court of competent jurisdiction. (3) A court may order the payment of reasonable compensation for the loss or expense only if it is satisfied it is just to make the order in the circumstances of the particular case. (4) A regulation may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.

140 Power to hold examination For an investigation, the commission may hold an examination.

141 Commissioner to preside The commissioner must preside at an examination. Note The commissioner must not delegate the commissioner’s function of presiding at a public examination (see s 53 (2)).

142 Conduct of examinations (1) In conducting an examination, the commission— (a) must comply with the rules of natural justice and procedural fairness; and (b) is not bound by the rules of evidence and may inform itself of anything in the way it considers appropriate; and (c) may decide the procedure of the examination as the commission considers appropriate; and (d) must exercise its functions with as little formality and technicality as is possible and, in particular— (i) must accept written submissions as far as possible; and (ii) examinations must be conducted with as little emphasis on an adversarial approach as is possible; and (e) may do whatever it considers necessary or convenient for the fair and prompt conduct of the proceeding. (2) The commission must make guidelines about the conduct of examinations (the examination conduct guidelines).

(3) The examination conduct guidelines are a notifiable instrument.

143 Examinations may be public or private (1) An examination may be held in public or in private. (2) In deciding whether to hold an examination in public or in private, the commission must consider whether— (a) it is in the public interest to hold a public examination; and (b) a public examination can be held without unreasonably infringing a person’s human rights. (3) In deciding whether it is in the public interest to hold a public examination, the commission may consider the following: (a) whether the corrupt conduct is related to an individual and was an isolated incident or systemic in nature; (b) the benefit of exposing to the public, and making it aware of, corrupt conduct; (c) the seriousness of the matter being investigated. (4) The commission may make guidelines about whether an examination should be held in public or in private (the examination guidelines). (5) The examination guidelines are a notifiable instrument.

144 Commission must notify inspector of public examination (1) If the commission intends to hold a public examination, the commission must give the inspector written notice of— (a) when the public examination is to be held; and (b) the commission’s reasons for holding the examination in public. (2) The commission must give the inspector the notice— (a) at least 10 business days before the day of the public examination; and

(b) before doing either of the following: (i) issuing an examination summons for the examination; (ii) making any public announcement about the examination. Note The commission must also report monthly to the inspector about public examinations (see s 205).

145 Offence to be present at examination not open to public (a) is present at an examination that is not open to the public; and or (ii) attending in accordance with an examination summons; or (iii) a lawyer representing a person who is attending in accordance with an examination summons; or Note The commission may make a legal advice direction directing a person not to seek legal advice or representation from a stated lawyer (see s 193). (iv) entitled to be present under a direction given by the commission under section 146; or (v) the inspector or a member of the staff of the inspector; or (vi) a lawyer, or other person, engaged by the commission to assist the commission in the examination; or (vii) another person authorised to be present— (A) by the commission; or (B) under this Act or another territory law.

present, at an examination, includes being remotely present at an examination.

146 Commission may give directions (1) The commission may give directions about the people who— (a) may be present during an examination or part of an examination; or (b) must not be present during an examination or part of an examination. (2) A direction may provide that a person may be remotely present during an examination or part of an examination. (3) A direction must not prevent the presence, when evidence is being taken at an examination, of— (a) a lawyer representing a person attending in accordance with an (c) a member of staff of the inspector; or (d) another person authorised to be present under this Act or another territory law. (4) If the commission decides to hold a public examination, a person required to attend the examination under an examination summons may ask the commission to make a direction that the examination, or part of the examination, is to be held in private. (5) The commission must, in private, hear arguments about and determine the request, unless the commission reasonably believes the request is vexatious or without merit.

147 Power to issue examination summons (1) In carrying out an investigation, the commission may issue a summons (an examination summons) to a person, requiring the person to appear before the commission, at a stated time and place, to do 1 or more of the following: (a) give evidence at an examination; (b) produce a document or other thing to the commission. (2) However, the commission may issue an examination summons only if the commission— (a) suspects on reasonable grounds that the evidence, document or other thing may be necessary for the investigation; and (b) is satisfied that it is reasonable to do so. (3) In deciding whether it is reasonable to issue the examination summons, the commission must have regard to— (a) whether it is reasonably practicable to obtain the information in the document or other thing in another way; and (b) the evidentiary or intelligence value of the information, document or other thing sought to be obtained from the person; and (c) the age of the person and whether the person is suffering from a mental impairment; and (d) the impact the examination summons may have on the person, in particular, due to disability, health or cultural or linguistic background.

(4) The commission must not issue an examination summons to a person who is under 18 years old unless the commission considers on (a) the information, document or other thing that the person could provide may be compelling and probative evidence; and (b) it is not practicable to obtain the information, document or other thing in any other way. Note 1 It is an offence for a person to not attend, or not continue to attend, as Note 2 For how documents may be given, see the Legislation Act, pt 19.5. Note 3 Documents may be produced electronically in certain circumstances (see Electronic Transactions Act 2001). Note 4 Giving false or misleading information is an offence against the Note 5 The commission must report monthly to the inspector about examination summonses (see s 205).

147A Dealing with examination summons for Assembly (1) This section applies if a person (other than a current or former member of the Legislative Assembly)— (a) has been issued with an examination summons; and (b) considers that the summons requires the giving of evidence, or the production of a document or other thing, containing Assembly information. (2) The person must— (a) not give the evidence, or produce the document or thing; and (b) give the Speaker a copy of the examination summons; and

(d) comply with the examination summons to the extent that it does not relate to Assembly information; and (e) if the Speaker authorises the person to give the evidence, or produce the document or thing, to the commission—give the evidence, or produce the document or thing.

147B Examination summons—delivery of document or thing (1) This section applies if the commission has issued a person with an examination summons only to produce a document or other thing to the commission under section 147 (1) (b). (2) The commission may excuse the person from attendance at the commission if the required document or other thing is delivered to the commission before the time for production stated in the examination summons, by— (a) the person; or (b) if the commission agrees to a nominated person delivering the document or other thing to the commission—the nominated person. Note The commission may give the person, and any nominated person, a confidentiality notice (see s 79).

148 Examination summons—content (1) An examination summons must require the person to whom it is directed to attend at a stated time and place and do 1 or more of the (a) give evidence at an examination before the commission; (b) produce to the commission any document or other thing described in the examination summons that is in the person’s possession or control. (2) An examination summons mentioned in subsection (1) (a) must state the nature of the matters about which the person is to be questioned, except to the extent the commission considers on reasonable grounds that this would be— (a) likely to prejudice the conduct of an investigation; or (b) contrary to the public interest. (3) An examination summons must be accompanied by— (a) any relevant confidentiality notice; and Note Confidentiality notice—see s 77. (b) the wellbeing policy; and Note Wellbeing policy—see s 295A (1). (c) a statement setting out the following: (i) that failure to comply with the examination summons may be contempt of the commission, or an offence, and Note See s 166 and s 173. (ii) that giving false or misleading information is a serious offence; Note See the Criminal Code, s 338.

(iii) whether it is intended that the examination is to be held in public or in private; (iv) that if the person summoned is under 16 years old and provides proof of age to the commission, the person need not comply with the examination summons; Note See s 149 and s 153. (v) that the person is entitled to seek legal advice in relation to the examination summons and the examination generally; Note See s 152. (vi) that the person has a right to legal representation at an examination; Note See s 152. (vii) that the person may have a right to have an interpreter present at the examination; Note See s 153. (viii) that the person may be required to have a parent, a guardian or an independent person present at the examination; Note See s 153. (ix) that the person may be able to claim a privilege but is not excused from answering a question, giving information or producing a document or other thing on the ground that the answer, information, document or other thing may tend to incriminate the person or make the person liable to a penalty; Note See pt 3.7, in particular, s 175. (x) that if a person gives any answer, information, document or other thing that may tend to incriminate the person, an immunity as to the use of that evidence may apply; Note See s 175.

(xi) that if the person is a member of the Legislative Assembly, the person is not required to attend on a sitting day of the Note See the Parliamentary Privileges Act 1987 (Cwlth), s 14. (xii) that the person must deal with the examination summons in accordance with section 147A if— (A) the evidence required to be given, or document or other thing required to be produced, contains Assembly information; and (B) the person is not a current or former member of the (xiii) that if the person is required only to produce a document or other thing, the commission may excuse the person from attendance if the person, or a nominated person, produces the document or other thing to the commission before the time for production stated in the examination summons; Note See s 147B. (xiv) that the person has a right to complain to the inspector; Note See s 257. (xv) any other matter prescribed by regulation.

149 Examination summons—person under 16 years (1) An examination summons directed to a person under 16 years old has no effect. (2) A person who claims to be under 16 years old for subsection (1) must provide proof of age to the commission in the form of— (a) an Australian birth certificate; or (b) an Australian passport or a passport issued by another country; or

(c) anything else that satisfies the commission about the person’s age.

150 Examination summons—notice and immediate attendance (1) An examination summons directed to a person must be served at least 10 business days before the day the person is required to attend or otherwise comply with the examination summons. (2) However, the commission may issue an examination summons requiring immediate attendance by a person before the commission if the commission considers on reasonable grounds that a delay in the person’s attendance is likely to result in— (a) evidence being lost or destroyed; or (b) the commission of an offence; or (c) the escape of the person who is summoned; or (d) serious prejudice to the conduct of the investigation. Note 1 For how documents may be served, see the Legislation Act, pt 19.5. Note 2 It is an offence for a person to not attend, or not continue to attend, as

151 Examination summons—service (1) If it is not reasonably practicable to serve an examination summons on a person under section 150, the commission may apply to the Supreme Court for an order that the examination summons be served in another way. (2) If the Supreme Court receives an application and is satisfied that it is not reasonably practicable to serve an examination summons under section 150, the court may— (a) order that the examination summons be served in another way that the court considers appropriate; or

(b) make an order for substituted service. Note 1 An examination summons directed to a young detainee may be dealt with under the Children and Young People Act 2008, s 876A. Note 2 An examination summons directed to a detainee may be dealt with under the Corrections Management Act 2007, s 217A. Note 3 An examination summons directed to a person who is admitted to a secure mental health facility may be dealt with under the Mental Health Act 2015, s 144B.

152 Examination—legal representation (1) A witness may be represented at an examination by a lawyer. Note The commission may make a legal advice direction directing a person not to seek legal advice or representation from a stated lawyer (see s 193). (2) If the commission makes a legal advice direction, the commission must allow the witness at least 3 days from the day the witness receives the legal advice direction to obtain legal advice or representation by another lawyer before the witness is required to attend to comply with the examination summons. (3) Subsection (2) does not apply if the examination summons is issued under section 150 (2). (4) If the commission considers there are special circumstances, the commission may authorise a person who is not a witness to be represented by a lawyer during the examination of a witness.

153 Examination—provisions for vulnerable witnesses (1) At any time during an examination, if the commission becomes aware that a witness is under 16 years old, the commission must immediately release the person from compliance with any examination summons applying to the person. (2) If a witness is under 18 years old, the witness must be accompanied by a parent or guardian or an independent person.

(3) If a witness does not have knowledge of the English language sufficient to enable the witness to understand or answer questions, the commission must provide for a competent interpreter to be present for the examination. (4) The commission must direct that an independent person be present during the examination of a witness if— (a) the commission believes the witness has a mental impairment; or (b) the witness gives the commission reasonably satisfactory medical evidence that the witness has a mental impairment.

154 Examination—commission may issue suppression order (1) The commission may issue a suppression order prohibiting or restricting the publication of any information or evidence given during a public examination if the commission considers that the order is necessary— (a) to prevent prejudice or hardship being caused to a person, including harm to their safety or reputation; or (b) to avoid the possibility of any prejudice to— (i) a legal proceeding; or (ii) an investigation by the commission under this Act. (2) The suppression order must state the ground on which it is made. (3) The commission must ensure a copy of the suppression order is placed on the door of the place where the public examination is being held. (4) The commission must take reasonable steps to notify any relevant person that the suppression order has been made, including by publishing a notice about the suppression order on the commission’s website.

(5) If the suppression order is made in relation to information or evidence that is given by the commission to another person, the commission must give a copy of the suppression order to the person.

155 Offence—contravene suppression order A person commits an offence if— (a) a suppression order is in force; and (b) the person— (i) knows that the suppression order is in force; or (ii) is reckless as to whether the suppression order is in force; and (c) the person engages in conduct that constitutes a contravention of the suppression order. Maximum penalty: 200 penalty units, imprisonment for 2 years or

156 Examination—first actions to be taken (1) Before a witness summoned to attend an examination is asked any questions or required to produce a document or other thing, the (a) if the commission considers the witness may be under 18 years old—confirm the age of the witness; and (b) release any witness under 16 years old from compliance with the (c) tell the witness orally and in writing about the witness’s rights and obligations as stated in section 148 (3); and (d) if a lawyer is representing a person at the examination—tell the lawyer about any non-disclosure requirements that apply under this Act; and

(e) take any other action prescribed by regulation. (2) Before a witness summoned to attend to give evidence at an examination is asked any questions, the commission must tell the witness the nature of the matters about which the witness is to be asked questions, except to the extent to which the commission considers on reasonable grounds that it would prejudice the investigation or would be contrary to the public interest.

156A Examination summons—extension (1) A person who receives an examination summons may apply to the commission for an extension of time to attend the commission or otherwise comply with the examination summons. (2) The commission must give the person a written notice (an extension notice) stating— (a) if the commission agrees to the extension—the new time to attend or otherwise comply with the examination summons; or (b) if the person requests a particular extension but the commission agrees to a shorter extension—the new time to attend or otherwise comply with the examination summons, including the reasons for the shorter extension; or (c) if the commission refuses the extension—that the application is refused, including the reasons for the refusal. (see s 205). (3) This section does not apply to a person who receives an examination summons that requires immediate attendance under section 150 (2).

157 Examination—power to examine on oath (1) The commissioner may administer an oath to a person. (2) The commissioner may, in relation to a person summoned to attend an examination— (a) require the person to take an oath; and (b) administer an oath to the person; and (c) examine the person in accordance with the examination summons; and (d) require the person to produce documents or other things in accordance with the examination summons. Note 1 Oath includes affirmation and take an oath includes make an affirmation (see Legislation Act, dict, pt 1). Note 2 It is an offence for a person to fail to take an oath (see s 173 which applies the Criminal Code, s 721).

158 Examination—video recording and transcript (1) If a person attends the commission for an examination in accordance with an examination summons, the commission must ensure that the person’s attendance is video recorded. (2) Unless the commission considers on reasonable grounds that doing so may prejudice an investigation, a person who is examined must be given a copy of— (a) the video recording of the person’s evidence; and (b) any transcript created of the person’s evidence. (3) If the commission decides not to give a person a copy of the video recording and transcript, the commission must allow the person to view the video recording of the person’s evidence at the commission premises at any reasonable time. Note The commission must report monthly to the inspector about video recordings and transcripts of examinations (see s 205).

158A Examination—dealing with Assembly information discovered (a) a person (other than a current or former member of the Legislative Assembly) appears before the commission under an (b) the commission becomes aware, at any time during the examination, that the evidence given, or the document or other thing produced by the person, contains Assembly information. (2) The commission must immediately— (a) stop dealing with the evidence, or the document or other thing; and (b) secure the following (the secured evidence) by sealing in an envelope or otherwise: (i) any video recordings, transcripts or notes created of the evidence; (ii) the document or other thing produced; and (c) give the secured evidence to the clerk of the Legislative Assembly to be held in safe custody. clerk of the Legislative Assembly includes, if the clerk is unavailable, the deputy clerk of the Legislative Assembly. unavailable—the clerk of the Legislative Assembly is unavailable if— (a) the clerk is absent or suspended from duty; or (b) there is a vacancy in the office of the clerk; or

(c) the clerk has an actual or perceived conflict of interest that would prevent the clerk from properly carrying out the functions of the clerk under this section; or (d) the clerk cannot, for any other reason, exercise the functions of the clerk.

159 Examination—warrant to arrest witness who fails to appear (1) The commission may apply to a magistrate for the issue of a warrant to arrest a person, if the commission believes on reasonable grounds that the person has— (a) been given an examination summons; and (b) failed to appear at the commission in accordance with the examination summons. Note A member of the Legislative Assembly is not required to attend on a sitting day of the Legislative Assembly (see Parliamentary Privileges Act 1987 (Cwlth), s 14). (2) A magistrate may issue an arrest warrant only if satisfied that— (a) the person has— (i) been given an examination summons; and (ii) failed to appear at the commission in accordance with the (b) the commission has taken reasonably practicable steps to contact the person; and (c) the issue of a warrant is in the interests of justice.

(3) In deciding whether it is in the interests of justice to issue an arrest warrant, the magistrate must consider the following: (a) the importance of the evidence that the person is expected to give; (b) whether the evidence could be obtained by other means; (c) the degree of urgency to resolve the matter; (d) the likelihood that issuing the warrant would secure the person’s attendance at the examination; (e) the reason (if any) given by the person for not attending in accordance with the examination summons; (f) the impact of using the warrant for the arrest of the person, in particular, due to disability, health or cultural or linguistic background. (4) The issue of an arrest warrant, or the arrest of a person under that warrant, does not relieve the person from any liability for non-compliance with the examination summons. Note 1 It is an offence for a person to not attend, or not continue to attend, as Note 2 The commission must report monthly to the inspector about arrest warrants (see s 205).

160 Examination—executing warrant to arrest witness who fails to appear (1) This section applies if a magistrate issues an arrest warrant under section 159. (2) The warrant authorises a police officer to— (a) arrest the person named in the warrant; and (b) bring the person before the commission.

(3) If a police officer believes on reasonable grounds that the person named in the warrant is on any premises, the police officer is authorised to enter the premises, with necessary assistance and force, to execute the warrant. (4) However, the police officer must not enter premises (or a part of premises) used only for residential purposes to execute the warrant before 6 am or after 9 pm on any day unless the police officer believes on reasonable grounds that— (a) it would not be practicable to arrest the person, either at the premises or somewhere else, at another time; or (b) it is necessary to enter the premises to prevent the concealment, loss or destruction of evidence of, or relating to, corrupt conduct. (5) A police officer executing the warrant— (a) must use not more than the minimum amount of force necessary to arrest the person and remove the person to the place stated in the warrant; and (b) must, before removing the person, explain to the person the purpose of the warrant; and (c) must bring the person immediately before the commission; and (d) if a person is under a legal disability—must inform a parent or guardian of the person of the arrest. (6) If, after arresting the person, the police officer believes on reasonable grounds that the person cannot be brought immediately before the commission, the police officer must immediately release the person.

Examinations—privilege Division 3.6.2

161 Examination—claiming privilege (1) This section applies if an examination summons directed to a person requires the person to— (a) give evidence at an examination and the person claims that the information in answer to a question at an examination or otherwise required to be given to the commission is the subject of privilege; or (b) produce a document or other thing to the commission and the person claims that the document or other thing is the subject of privilege. Note Privilege—see s 174 and s (5). (2) The claimant must attend before the commission in accordance with the examination summons. (3) The commission must consider the claim and either— (a) withdraw the requirement to answer the question, provide the information or produce the document or other thing; or (b) refuse to withdraw the requirement and, if the claim relates to a document or other thing, require the claimant to immediately secure the document or other thing (by sealing in an envelope or otherwise) and give it to the commission. (4) In considering the claim, if the claim relates to a document or other thing, the commission must not inspect the document or other thing.

162 Examination—application to Supreme Court to decide privilege (1) If the commission refuses to withdraw the requirement under section 161 (3) (b), the commission must— (a) if the claim relates to a document or other thing—immediately give the secured document or other thing to the proper officer of the Supreme Court to be held in safe custody; and (b) within 7 days, apply to the Supreme Court for determination of (c) within a reasonable time before the hearing of the application— (2) If the commission does not make an application within the 7 days— (a) if the claim relates to a requirement to answer a question or provide information—the requirement is taken to be withdrawn; and (b) if the claim relates to a requirement to produce a document or other thing—the proper officer must return the secured document or other thing to the claimant. (3) The claimant is entitled to appear and be heard on the hearing of the