Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill and—by leave—I move government amendments (1) to (36) on sheet TT149 as circulated together:

(1) Clause 7, page 10 (after line 1), after the definition of magistrate, insert:

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

(2) Clause 7, page 12 (after line 2), after the definition of protected suspect, insert:

psychologist means a person registered or licensed as a psychologist under a law of a State or Territory that provides for the registration or licensing of psychologists.

(3) Clause 8, page 14 (line 20), omit "official;", substitute "official.".

(4) Clause 8, page 14 (lines 21 to 23), omit paragraph (1)(e).

(5) Clause 31, page 39 (lines 15 to 18), omit subclause (2), substitute:

Protection of informant's identity

(2) None of the following is required to do anything under this Act that would disclose the identity of the informant or enable that identity to be ascertained:

(a) the journalist;

(b) the journalist's employer;

(c) a person assisting the journalist who is employed or engaged by the journalist's employer;

(d) a person assisting the journalist in the person's professional capacity.

(6) Clause 40, page 46 (line 4), before "The", insert "(1)".

(7) Clause 40, page 46 (after line 6), at the end of the clause, add:

(2) To avoid doubt, the Commissioner may deal with a corruption issue on the Commissioner's own initiative.

(8) Clause 63, page 64 (after line 23), at the end of the clause, add:

(8) The Commissioner must give to the Inspector, within 3 business days after the summons is issued:

(a) a copy of the summons; and

(b) a copy of the record made under subsection (5).

(9) A summons is not invalid merely because the Commissioner does not comply with subsection (8).

(9) Clause 74, page 69 (line 15), omit subparagraph (b)(i), substitute:

(i) legal advice that is protected against disclosure by legal professional privilege;

(10) Clause 82, page 74 (lines 3 to 5), omit paragraph (e).

(11) Clause 91, page 80 (after line 12), at the end of the clause, add:

(4) The Commissionermust give to the Inspector, within 3 business days after the warrant is issued:

(a) a copy of the warrant; and

(b) a copy of the application for the warrant; and

(c) if the information given under subsection 90(2) is given in writing—a copy of the document recording that information.

(5) A warrant is not invalid merely because the Commissioner does not comply with subsection (4).

(12) Clause 96, page 83 (after line 17), at the end of the clause, add:

Vulnerable persons and persons with disabilities

(4) If the Commissioner is aware that a non-disclosure notation will apply to a person who has a disability or vulnerability that could affect the person's ability to comply with the notice or summons concerned, the Commissioner must consider including permission in the notation for the disclosure of information to enable the person to obtain assistance in:

(a) complying with the notice or summons; or

(b) otherwise engaging with the processes of the NACC.

(13) Clause 98, page 84 (after line 26), after paragraph (3)(c), insert:

(ca) to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling); or

(14) Clause 100, page 87 (after line 7), at the end of the clause, add:

Vulnerable persons and persons with disabiliti es

(4) If the Commissioner is aware that the direction will apply to a person who has a disability or vulnerability that could affect the person's ability to comply with the direction, the Commissioner must consider directing that investigation material may be disclosed to enable the person to obtain assistance in:

(a) complying with the direction; or

(b) otherwise engaging with the processes of the NACC.

(15) Clause 101, page 87 (after line 16), after subclause (2), insert:

(2A) Subsection (1) does not apply in relation to the disclosure of investigation material by the witness:

(a) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the corruption investigation to which the investigation material relates; or

(b) to a legal aid officer for the purpose of seeking assistance in relation to the investigation; or

(c) to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

Note: A defendant bears an evidential burden in relation to the matters in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(2B) Subsection (1) does not apply to the use or disclosure of investigation material by a legal practitioner for the purpose of:

(a) obtaining the agreement of a person as mentioned in subsection 115(3) to the legal practitioner disclosing advice or a communication; or

(b) giving legal advice to, or making representations on behalf of, the witness.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2B): see subsection 13.3(3) of the Criminal Code.

(16) Clause 124, page 107 (lines 17 to 27), omit subclause (2A), substitute:

(2A) Subsection (2B) applies if the warrant is to search:

(a) a person (the journalist) who works in a professional capacity as a journalist; or

(b) the employer of the journalist (working in that capacity); or

(c) premises occupied or controlled by the journalist or the employer (in the capacities covered by paragraphs (a) and (b)).

(17) Clause 159, page 130 (lines 10 to 22), omit subclauses (1) and (2), substitute:

(1) The Commissioner must advise a person of the outcome of a corruption investigation if the Commissioner investigates a corruption issue concerning the conduct of the person.

(18) Clause 159, page 130 (line 23), omit "or (2)".

(19) Clause 159, page 130 (line 27), omit "or (2)".

(20) Clause 159, page 131 (line 4), omit "or (2)".

(21) Clause 159, page 131 (after line 15), at the end of the clause, add:

(7) However, subsection (1) does not apply if advising the person of the outcome of the investigation:

(a) is not reasonably practicable; or

(b) would be contrary to the public interest, including because it might prejudice:

(i) a person's fair trial; or

(ii) a NACC Act process; or

(iii) any other investigation that is being undertaken by a Commonwealth agency or a State or Territory government entity; or

(iv) any action taken as a result of a NACC Act process or an investigation covered by subparagraph (iii).

(22) Clause 184, page 149 (after line 4), after paragraph (1)(e), insert:

(ea) to review the conduct of, and determine the extent of compliance with the law by, the NACC in issuing summonses, and in applying for and executing warrants for arrest as mentioned in sections 90 and 91;

(eb) to make recommendations to the NACC on the outcomes of such reviews;

(23) Clause 185, page 149 (line 27), omit "(5)", substitute "(4)".

(24) Page 164 (after line 15), at the end of Subdivision A, add:

214A In spector's powers to conduct reviews

For the purposes of conducting a review as mentioned in paragraph 184(1)(ea), the Inspector:

(a) may, at all reasonable times, enter and remain on any premises occupied by the NACC; and

(b) is entitled to all reasonable facilities and assistance that the Commissioner is capable of providing; and

(c) is entitled to full and free access at all reasonable times to any information, documents or other property of the NACC; and

(d) may require a staff member of the NACC to provide any information the Inspector considers necessary, being information:

(i) that is in the staff member's possession, or to which the staff member has access; and

(ii) that is relevant to the review; and

(e) may examine, make copies of or take extracts from any information or documents.

(25) Clause 225, page 173 (lines 10 to 22), omit subclauses (1) and (2), substitute:

(1) The Inspector must advise a person of the outcome of a NACC corruption investigation if the Inspector investigates a NACC corruption issue concerning the conduct of the person.

(26) Clause 225, page 173 (line 23), omit "may", substitute "must".

(27) Clause 225, page 173 (line 28), omit ", (2)".

(28) Clause 225, page 173 (line 32), omit ", (2)".

(29) Clause 225, page 174 (line 10), omit ", (2)".

(30) Clause 225, page 174 (after line 21), at the end of the clause, add:

(8) However, neither subsection (1) nor (3) applies if advising the person of the outcome of the investigation:

(a) is not reasonably practicable; or

(b) would be contrary to the public interest, including because it might prejudice:

(i) a person's fair trial; or

(ii) a NACC Act process; or

(iii) any other investigation that is being undertaken by a Commonwealth agency or a State or Territory government entity; or

(iv) any action taken as a result of a NACC Act process or an investigation covered by subparagraph (iii).

(31) Clause 241, page 198 (line 15), omit "(5)", substitute "(4)".

(32) Clause 242, page 199 (line 15), omit "(5)", substitute "(4)".

(33) Heading to clause 276, page 217 (line 2), omit the heading, substitute:

276 Delegation by the Commissioner

(34) Heading to subclause 276(2), page 217 (line 11), omit the heading, substitute:

Appointment of CEO and decision to take no action

(35) Clause 276, page 218 (line 11), after "subsection (1)", insert "or paragraph (2)(b)".

(36) Page 218 (after line 12), after clause 276, insert:

276A Delegation by the Inspector

General delegations

(1) The Inspector may delegate all or any of the Inspector's functions, powers or duties to a person assisting the Inspector who:

(a) is an SES employee, or acting SES employee; or

(b) holds, or is acting in, an Executive Level 2, or equivalent, position.

Decision to take no action

(2) Despite subsection (1), the Inspector may delegate the Inspector's powers under the following provisions to any person assisting the Inspector:

(a) subsection 210(6) (decision to take no action in relation to a NACC corruption issue);

(b) section 214A (Inspector's powers to conduct reviews).

Limits on general delegations

(3) Subsection (1) does not apply to a function, power or duty under:

(a) Subdivisions A to D of Division 3 (hearings) of Part 7 (as modified by section 214); or

(b) paragraph 184(1)(eb) (recommendations on outcomes of reviews); or

(c) Subdivision B of Division 4 of Part 10 (reporting on NACC corruption investigations and NACC complaint investigations); or

(d) section 230 (disclosure by authorised discloser in public interest); or

(e) in relation to making an arrangement mentioned in subsection 239(3) (arrangements for dealing with intelligence information); or

(f) this section.

Form of delegation

(4) A delegation under this section must be in writing and signed by the Inspector.

Complying with directions

(5) In performing or exercising a function, power or duty delegated under subsection (1) or (2), the delegate must comply with any directions of the Inspector.

The amendments on sheet TT149 implement recommendations made by the Joint Select Committee on the National Anti-Corruption Commission Legislation in their advisory report on the bill. They also implement recommendations made by the Parliamentary Joint Committee on Human Rights in report No. 5 of 2022. And they implement three further amendments to address technical issues with the bill, including to permit the inspector of the National Anti-Corruption Commission to appropriately delegate their powers and functions to persons assisting the inspector.

I'll now outline briefly the amendments on sheet TT149. Amendments (5) and (16) broaden safeguards for the protection of journalists in relation to search warrants and extend protections for their sources. Amendments (1), (2), (12), (13), (14) and (15) improve safeguards for the wellbeing of persons who may require assistance to comply with the summons or notice to produce and expressly permit people to disclose information to a medical professional. Amendments (17), (18), (19), (20), (21), (25), (26), (27), (28), (29) and (30) require the commissioner to advise a person whose conduct has been investigated of the outcome of the investigation. Amendments (3), (4), (6) and (7) amend the definition of corrupt conduct and clarify that the commission may deal with a corruption issue on their own initiative. Amendments (8), (11), (22) and (24) enhance the power of the National Anti-Corruption Commission inspector regarding witness statements and arrest warrants. Amendment (10) narrows the grounds for bringing contempt proceedings, and amendment (9) amends the requirement that all evidence which discloses legal advice be given in private. Amendments (23), (31) and (32) correct a typographical error in cross-references to clause 178 of the bill, which deals with the approval of the appointment of the commissioner, deputy commissioners and inspector by the Parliamentary Joint Committee on the National Anti-Corruption Commission. Finally, amendments (33), (34), (35) and (36) make minor presentational changes to titles and headings to reflect the amendments to the commissioners' and the inspector's delegation powers.

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