2018  

THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY 

INTEGRITY COMMISSION BILL 2018 (EXPOSURE DRAFT)

EXPLANATORY STATEMENT

Presented by
Andrew Barr MLA
Chief Minister

INTEGRITY COMMISSION BILL 2018 (EXPOSURE DRAFT)
INTRODUCTION
This explanatory statement (the statement) relates to the Integrity Commission Bill 2018
(the Bill) as presented to the ACT Legislative Assembly. It has been prepared in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly. 

The Statement must be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. What is said about a provision is not to be taken as an authoritative guide to the meaning of a provision - this being a task for the courts. 

BACKGROUND
On 31 October 2017, the Select Committee on an Independent Integrity Commission (the Select Committee) released its report into their inquiry. The final report included 79 recommendations covering jurisdictional matters, relationships with other integrity stakeholders, the power to hold public hearings, accountability and independence, staffing and resourcing requirements, application of other legislation and other matters.

On 26 February 2018, the ACT Government tabled its response to the inquiry, committing to establishing an independent Integrity Commission which is broadly structured on those operating in similarly sized jurisdictions. The Select Committee report and recommendations will inform the establishment of a Commission.

The Select Committee recommended that the Government establish a standing ACT independent integrity body to investigate corruption in public administration and strengthen public confidence in government integrity. Consistent with this recommendation, the Bill establishes an Integrity Commission for the ACT. 

The Bill ensures the functions of the body are delineated and clearly defined and cognisant of existing independent oversight bodies. The Integrity Commission will focus mainly on prospective and current matters, with some limited ability to review retrospective or previous matters, subject to certain requirements.

The Select Committee recommended that a standing ACT independent integrity body should be named as an Anti-Corruption and Integrity Commission (ACIC). As the proposed acronym is the same as that of the Australian Criminal Intelligence Commission (ACIC) and to avoid potential for confusion about the roles of the two bodies, the Government has decided that the Bill will establish the ACT Integrity Commission. 

The new Integrity Commission complements the ACT’s existing strong structure of public sector oversight, ensuring a highly transparent and professional territory administration. These existing bodies include an ACT Public Sector Standards Commissioner, ACT Legislative Assembly Commissioner for Standards, ACT Legislative Assembly Ethics and Integrity Advisor, ACT Human Rights Commission, the ACT Auditor-General and ACT Ombudsman as well as staff Codes of Conduct and Ministerial Standards.

OVERVIEW OF THE BILL
The Bill establishes an independent ACT Integrity Commission, constituted by a single Integrity Commissioner, who is an officer of the ACT Legislative Assembly. The Commissioner is to be appointed by the Speaker in the same manner as the existing officers of the Legislative Assembly, which include the ACT Ombudsman, Auditor-General and Electoral Commissioner. 

Subject to the Bill and to other territory laws, the Integrity Commission has complete discretion in the exercise of the commission’s functions. 

The role of the Integrity Commission is to:
•	investigate conduct that is alleged to be corrupt;
•	refer suspected instances of criminality or wrongdoing to the appropriate authority for further investigation and action;
•	prevent corruption, including by—
o	researching corrupt practices;
o	mitigating the risks of corruption;
•	publish information about investigations conducted by the commission, including lessons learned; 
•	provide education programs about the operation of this Act and the commission, including providing advice, training and education services to:— 
o	the Legislative Assembly and the public sector to increase capacity to prevent corrupt conduct; and 
o	the community about the detrimental effects of corruption on public administration and ways in which to assist in preventing corrupt conduct;
•	foster public confidence in, and to give leadership to, the Legislative Assembly and public sector.

The Bill provides for other oversight agencies, such as the Ombudsman, Human Rights Commission and integrity agencies in other jurisdictions to refer a complaint about conduct that may be corrupt conduct. In certain circumstances, the Integrity Commission may also refer complaints to other bodies. The Integrity Commission and other relevant bodies can also share information relevant to the exercise of their functions. This ensures a coordinated approach to the investigation of corrupt conduct in public administration in the ACT. 

Corrupt Conduct 
As recommended by the Select Committee, the definition of corrupt conduct in the Bill is based on Part 3 of the NSW Independent Commission Against Corruption Act 1988, drafted to reflect ACT legislation. The limitation on the nature of corrupt conduct that NSW uses in relation to misconduct and disciplinary issues is not replicated in the Bill. The Government is of the view that there are existing provisions and oversight mechanisms in place for dealing with misconduct of Members of the Legislative Assembly, Statutory Office Holders, ACT public sector employees and third party contractors (through contracts). Disciplinary issues will continue to be dealt with under applicable codes of conduct provisions.

Corrupt conduct by any person is conduct by, or involving, the person that adversely affects, or could adversely affect, directly or indirectly, the honest and impartial exercise of a function of a public official or public sector entity and could, if proved, be an offence against any law in force in the ACT, or be reasonable grounds for serious disciplinary action against the person. 

Corrupt conduct is also conduct which impairs, or could impair, public confidence in public administration and involves specific areas of government functions including tendering, applications for licences, permits and the disposition of public assets for private advantage. Fraudulently obtaining or retaining employment or appointment as a public official is also within the definition.

The Bill also specifically defines corrupt conduct by a public official in addition to that of any person. It provides that conduct by, or involving, a public official that is or involves either the exercise of the public official’s functions as a public official in a way that is not honest or is not impartial; a breach of public trust; or a misuse of information or material acquired in relation to the exercise of official function the misuse of information and could, if proved, be an offence against any law in force in the ACT, or be reasonable grounds for serious disciplinary action against the person. It also includes an action that is contrary to a law, unreasonably, unjust, oppressive or improperly discriminatory, is negligent or based on improper motives; an action that could adversely affect another person’s interests in a substantial and specific way; or an action that is a substantial misuse of public property and the exercise of the public official’s functions as a public official in a way that is not honest or is not impartial.

The Bill also reflects the Select Committee’s recommendation that the Integrity Commission should prioritise investigating serious or systemic corruption, but the Bill does not restrict the commission’s discretion to decide to investigate any matter that the commission considers may constitute corrupt conduct. This is also reflected in the objects of the Bill. 

Public officials 
The Select Committee recommended that the substantive jurisdiction of an integrity body should cover all public officials. The Bill defines public official to include a person having public official functions for the Territory, or acting in a public official capacity for the Territory, including a public servant, statutory office holder and an officer of the Legislative Assembly. The Bill reflects the Select Committee’s recommendation that Members of the Legislative Assembly (MLAs) and their staff be included in the definition of public official. 

Consistent with the Government response to the Select Committee, the Bill excludes judicial officers, and any ACT Civil and Administrative Tribunal members, registrars and staff exercising judicial or quasi-judicial powers from the definition of public official and therefore the oversight of the Integrity Commission. There is already sufficient oversight through existing oversight mechanisms including the Judicial Council and Judicial Commission. This model ensures that separation of powers is maintained. 

In February 2017, the Judicial Council was established to have jurisdictional responsibility for judicial officers, which includes Judges, Associate Judges, Magistrates and a Presidential Member of the ACT Civil and Administrative Tribunal. It is important that the Judicial Council is given the opportunity to operate without compromising its judicial independence. 
 
ACT Policing is included in the definition of public official and this provision will commence within 12 months following consultation with the Commonwealth Government. Section 23 of the Australian Capital Territory (Self-Government) Act 1988 prevents the ACT Legislative Assembly from making laws for the provision by the Australian Federal Police of police services to the Territory. Section 27 of the Self-Government Act provides that the Legislative Assembly cannot make laws that bind the Commonwealth without agreement from the Commonwealth and the amendment of Commonwealth legislation. 

The Government is exploring avenues to enhance the transparency of existing oversight mechanisms including through improved reporting to the ACT from the Australian Commission for Law Enforcement Integrity (ACLEI).

The Bill also provides for consequential amendments to reflect the new role in other Territory Acts. 

HUMAN RIGHTS IMPLICATIONS
The Bill is drafted to be compatible with human rights as set out in the Human Rights Act 2004 (HRA). Rights under the HRA may be limited if such limitations are reasonable and proportionate. Section 28 of the HRA sets out the criteria for determining if a limitation is reasonable including considering the purpose of the limitation and if the limitation is the least restrictive to achieve that purpose. 

The Bill achieves an important purpose overall, as it supports the Government’s commitment to transparency and confidence in public administration within a framework where an individual’s privacy and reputation are reasonably protected in accordance with community expectations. In its report, the Select Committee noted that ‘without an appropriate agency with adequate powers and comprehensive coverage of the whole public sector, corruption can remain hidden’ (page 168). 

The Select Committee further noted the international basis for anti-corruption bodies including in the relevant UN Convention:

‘Globally the placement on the policy agenda, of the concept of standing anti-corruption commissions, designated stand-alone integrity bodies, or specialised anti-corruption institutions can be sourced initially to the emergent need to address the ‘global and multi-faceted challenge of fighting corruption’. This was reinforced by a number of international conventions, amongst other things, mandating the establishment of anti-corruption bodies. For example, the UN Convention Against Corruption, considered to be the most universal in its approach requires parties, again amongst other things, to the Convention:
“...to implement specialised bodies responsible for preventing corruption and for combating corruption through law enforcement.”’

This Bill engages a number of rights protected under the HRA, including the following: 
•	supports section 19 – protection from torture, inhuman or degrading treatment;
•	supports section 11 – right to family life and of children;
•	limits section 8 – recognition and equality before the law; 
•	limits section 12 – right to privacy and reputation;
•	limits section 13 – freedom of movement;
•	limits section 15 – right to association;
•	limits section 16 – freedom of expression;
•	limits section 17 - participation in public life;
•	limits section 18 - right to liberty;
•	limits section 21 - right to fair trial; and
•	limits section 22 - rights in criminal proceedings.

The Integrity Commission will be considered a ‘public authority’ under section 40(b) of the HRA, resulting in an obligation under section 40B for the Commission to act consistently with human rights legislative requirements. While this obligation exists under the HRA, throughout the Bill, a number of safeguards have been used where it may seem a person’s human rights are limited. These safeguards are used to ensure where a right is limited, it is through the least restrictive means of doing so. 

Complaints from Detained Persons
Section 19 – Humane treatment when deprived of liberty and Section 16 freedom of expression
This Bill supports section 19 of the HRA, the right to humane treatment when deprived of liberty and section 16, freedom of expression, in providing a specific process for a detained person to make a complaint to the Commission by virtue of provisions in existing legislation. This includes being able to make a complaint, other than in writing and for the person in charge of that detained person to take all steps to facilitate the making of the complaint, and to forward, immediately and unopened, any letter addressed to Integrity Commission by the detained person. 

Confidentiality Notices
Section 11 – right to family life
The Bill supports section 11 of the HRA regarding the right to family life, in that a person subject to a confidentiality notice is able to disclose to a domestic partner that the person has been or is proposed to be examined by the commission, or has produced or may produce a document or thing to the commission if it is necessary to do so in order to comply with the relevant document. 

Strict Liability Offences
Section 22 - Presumption of Innocence
The Bill includes a number of provisions that contain offences of strict liability. Offences of strict liability engage the right to be presumed innocent under section 22(1) of the HRA, as they may reverse the onus of proof from the prosecution onto the defendant.  

The proposed strict liability offences are aimed to target and prevent the improper interference with the investigative work of the Commission including: 
•	Interfering with a thing seized and restricted by an investigator acting with the consent of the occupier of the premises; and
•	A person who ceases to be an investigator does not return their card soon as practicable (but within 7 days).

An evidential onus, rather than a strict liability offence, would be less restrictive on the right to be presumed innocent found in section 22(1) of the HRA.  This approach is taken elsewhere in the Bill, for example in providing a defendant with an exception to other offences where they have a ‘reasonable excuse’ for not complying.

It would not, however, prove to be as effective in prosecuting the proposed offences.  Strict liability offences provide that the defendant’s act alone, rather than the reasons that the defendant acted in that way or his or her intention in so doing, should dictate the offence. The offences chosen for strict liability in the Bill reflect this. 

The inclusion of strict liability within an offence limits the range of defences that may be available for a person accused of the offence to which it applies; however, a number of defences remain open to the accused, depending on the particular circumstances of each case.  Section 23(1)(b) of the Criminal Code 2002 (the Code) provides a specific defence to strict liability offences of mistake of fact.  Section 23(3) of the Code provides that other defences may also be available for strict liability offences, including the defence of intervening conduct or event, as provided by section 39 of the Code.

The penalties are also limited to a fine rather than any form of imprisonment.  

It is on this basis that the Government believes that the use of strict liability offences contained in this Bill is relevant to the policy objectives of ensuring the Integrity Commission is able to discharge its functions without interference and this is considered justifiable and reasonable.

Disclosure of Interests 
Section 12 – Right to Privacy and Reputation
Under section 12 of the HRA, a person has the right not to have their privacy unlawfully or arbitrarily interfered with. Generally, an interference with privacy will not be unlawful where it is permitted by a law which is precise and appropriately circumscribed. Interferences with privacy will not be arbitrary, provided they are reasonable in the circumstances, just and proportionate to the end sought.

The Bill limits the right to privacy of the Integrity Commissioner and Inspector. Similar to the requirements for the disclosure of interests by others in similar positions, such as Officers of the Legislative Assembly, the Clerk and for executives of the public service, the Bill will require the Integrity Commissioner or Inspector to disclose their personal and financial interests. A disclosure must be made to the Speaker, within seven days of appointment, at the beginning of the financial year and of any change in an interest. 

The purpose of the limitation is to act as a check on the conduct of the Commissioner or Inspector, who holds a critical position with significant public responsibilities that must be beyond reproach. Public confidence in the Commissioner’s role in investigating alleged corrupt conduct is critical to their role, including that they be free of any actual or perceived conflict of interest. Likewise, public confidence in the Inspector’s role of assessing and reporting on the Commission’s functions is also critical to their role. 

The nature of the limitation is relatively minor as the disclosure is made only to the Speaker as the representative of the Legislative Assembly. This does not constitute an arbitrary or unlawful interference with the Commissioner’s or Inspector’s privacy. The disclosure ensures that the Integrity Commissioner or Inspector appropriately places on record any matters or interests to allow the Commissioner or Inspector and Speaker to determine whether there may be any potential or real conflicts of interest. Conceivably the only time when the Speaker may use the information is if the Speaker was contemplating suspending or terminating the appointment because the Integrity Commissioner or Inspector has allegedly acted improperly and failed to declare an actual or perceived conflict of interest. In these circumstances the Bill provides further protections in the process that the Speaker must follow, to provide the Commissioner or Inspector with procedural fairness. 

Given the nature of the limitation and the important purpose that it serves it is reasonable to require the disclosure and create the limitation on the Integrity Commissioner or Inspector’s right to privacy. The limitation is proportionate to its purpose and the least restrictive means of achieving a legitimate end. 

A similar provision is provided under clause 240 for the staff of the inspector. The inspector may ask a person being appointed as a member of staff of the inspector to declare any personal interests the inspector considers relevant. However, as this is a discretionary requirement, if section 12 of the HRA is engaged, it is justified due to the nature of the work the staff of the Inspector will be undertaking. Similar to the above, the limitation is proportionate to its purpose and the least restrictive means of achieving a legitimate end. 
 
Mandated Reporting and Referring
Section 12 – Right to Privacy and Reputation
Clause 57, 59 and 103 may also limit the right to privacy of those mandated to notify the Integrity Commission or other relevant entities who may decide to refer matters to the Commission where there is suspected corrupt conduct.  This includes:
•	An entity that has received a complaint of corrupt conduct referring it to the Integrity Commission; 
•	the head of a public sector entity, who must notify the commission about any matter the head of the entity suspects on reasonable grounds involves corrupt conduct;
•	the Integrity Commission must refer a corruption report to another entity where the Commission considers it would be more appropriate for that entity to investigate rather than the Commission.
In referring the complaint, the entity may give the Commissioner any information the entity has in relation to the complainant and if the complaint is referred, tell the complainant about the referral.

The purpose of this limitation is to ensure that potential corrupt conduct is brought to the attention of the Integrity Commission. It is also to ensure that complaints made to the Integrity Commission about subject matters other than corrupt conduct are referred to the appropriate body for investigation. It is the least restrictive approach because the head of a public sector entity is only mandated to notify if they suspect the conduct is corrupt on reasonable grounds. 

Other relevant entities may refer corruption complaints to the Integrity Commission. Relevant entities are defined in clause 57 which are confined to those doing work similar to that of the Integrity Commissioner including the Auditor-General, Ombudsman, Human Rights Commission, Legislative Assembly Commission for Standards, the Speaker, and an entity having functions, under a State or Commonwealth law that corresponds to this Act, or that correspond to the functions of the commissioner, or another entity prescribed by regulation. The Integrity Commission may make directions about how mandatory corruption notifications identifying the type of information that should be reported to the Integrity Commission under clause 62. 

Under clause 103, the Integrity Commission can only refer where it believes the referral entity has the power to investigate the subject matter of the corruption report and the Integrity Commission considers it would be more appropriate for the corruption report to be investigated by the referral entity than by the Integrity Commission. In deciding whether to make a referral, the Integrity Commission must consult with the referral entity. This does not mean that a referral entity is required to deal with the corruption report. The Integrity Commission may request the referral entity to provide information on the results of the investigation and any action taken. This request does not apply to the Auditor-General, the Ombudsman or the Human Rights Commissioner. The Commission cannot refer reports to a referral entity if the Commission suspects the report relates to serious corrupt conduct or systemic corrupt conduct.  

In addition, any entity referring a corruption complaint to the Commission must still comply with their legal obligations, which also includes the ACT Information Privacy Act 2014 for many ACT Public Sector agencies.

On this basis, the mandatory reporting and referral pathways do not constitute an arbitrary or unlawful interference with an individual’s privacy.

Preliminary Inquiry Powers
Section 12 – Right to Privacy and Reputation and Section 13 – Freedom of movement
As part of its preliminary inquiry powers, the Bill limits the right to privacy in that the Integrity Commission may issue a witness summons to any person to produce documents or other things where the Commission is satisfied that it is reasonable to do so. The Commission does this by having regard to factors including the necessity of the information in determining whether to dismiss, refer or investigate a complaint or notification, and whether it is reasonably practicable to obtain the information by any other means. Failure to comply with a witness summons without reasonable excuse is an offence under the Criminal Code 2002 (ACT).

In using the power, the Integrity Commission may require a person to disclose personal information engaging the right to privacy. The purpose of this limitation is to allow the Commission to discharge the significant public interest in determining whether an investigation to uncover corruption is warranted. 

Along with its investigative coercion powers, this power is critical to the Commission fulfilling its functions particularly noting the difficulty in detecting corruption. It is important that there is a preliminary assessment of allegations to ensure they are substantiated, prior to any subsequent invasion of a persons’ privacy during the coercive investigation stage being deemed necessary. Coercive investigations (which involve surveillance etc.) are also expensive. Public funds should not be spent on expensive coercive investigations into allegations that are unsubstantiated and do not meet the definition of serious corrupt conduct or systemic corrupt conduct.  

This is the least restrictive manner of achieving this purpose. The coercive powers of the Commission in relation to preliminary inquiries are generally limited to this power, which is consistent with the recommendations of the Select Committee. In contrast, many of the Commission’s extended investigative powers such as the use of surveillance devices are not available during preliminary inquiries. Further, unlike in examinations, a person who has been issued with a witness summons in relation to a preliminary inquiry can refuse to comply with the summons on the basis of claiming the privilege against self-incrimination or that a secrecy provision applies. Any dispute over the application of these exceptions, such as the privilege against self-incrimination, is adjudicated independently by the Supreme Court. 

The Commission must also consider certain things prior to issuing a witness summons. This includes deciding whether the production of the document or thing is necessary in determining whether the Commission should dismiss, refer or investigate a corruption report, or investigate a matter of its own initiative. 

It is an offence to fail to comply with a witness summons issued during a preliminary inquiry without a reasonable excuse. Creating a ‘reasonable excuse’ exception can potentially engage the right to be presumed innocent in section 22 of the HRA, on the basis it may place a burden on the accused to prove (or disprove) an element of the offence. However, the reasonable excuse provision creates an evidential, not legal, burden on the accused and therefore does not transfer the legal burden of proof to the defendant. Rather, if the person is able to prove that a reasonable excuse exists on a lower evidentiary threshold, then the burden shifts back to the prosecution to prove the offence. On this basis, the provision does not limit the right to be presumed innocent, and if it does, it limits the right on a reasonable and proportionate basis. 

The Commission will also be able to issue a confidentiality notice in respect of a witness summons issued during a preliminary inquiry. A person who complies with a preliminary inquiry summons has the same protection and immunity as a witness has in a proceeding in the Supreme Court.

Clause 84 may also limit an individual’s right to privacy by carrying out a preliminary inquiry. The commission may ask the head of a public sector entity to provide information to the Integrity Commission that the Commission considers relevant to the preliminary inquiry. 

The purpose of the limitation is to ensure the Integrity Commission is provided all the information it needs to conduct a preliminary inquiry. This is the least restrictive way of achieving this purpose as the head of the public sector entity need not comply with the request if they advise the Commission of a reasonable excuse for not doing so. Further, 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.

For these reasons, any interference with privacy arising from the Integrity Commission’s preliminary inquiry powers are lawful and not arbitrary.

Clause 87 of the Bill also engages the right to privacy, in that the Commission must provide the Inspector with the name of person summoned, along with the reasons why. The purpose of the limitation is to ensure the Inspector is able to fulfil their important role in overseeing the work of the Commission and ensuring that the Commission is using its power appropriately. The limitation is also the least restrictive approach as only the name of the person must be provided to the Inspector and the reasons for issuing the summons. 

Section 8 – Right to Equality and Section 11(2) – Rights of Children
The power to issue a preliminary inquiry summons may engage the right to equality, as it can be served upon anyone including those with a disability. Section 8 of the HRA provides that everyone is entitled to equal protection of the law without discrimination. The HRA provides examples of attributes that may lead to discrimination including race, disability and other status. This can include the law being expressed in neutral terms, but disproportionately impacting on a sector of the community whose members have one or more attributes. 

The power may also result in a child being served with a summons. The rights of children are protected under section 11(2) of the HRA. The right under section 11(2) uses the international law definition of a ‘child’ being a person under 18 years of age. Section 11(2) of the HRA expressly guarantees that every child and young person has the right to the protection they need without any distinction or discrimination. In addition, children and young people are also entitled to all the other rights guaranteed under the HRA. 

Any potential disproportionate impact is mitigated by protections in the Bill.  Prior to issuing the summons, the Commission under clause 85 is required to consider the age of the person and whether the person is suffering from a mental impairment. The Commission must also consider the impact that the preliminary inquiry summons may have on the person, in particular, impact due to disability, health or cultural or linguistic background. A child summonsed to a preliminary inquiry may receive necessary assistance from a parent, guardian or independent person in addition to a lawyer under clause 75. A preliminary inquiry summons issued on a person under the age of 16 has no effect. 

Section 13 – Freedom of Movement 
A preliminary inquiry summons also engages the right to freedom of movement under the HRA, in that the person issued with the summons must attend a specified place at a specified time. Section 13 of the HRA means that people have the right to move freely within the ACT. The purpose of the limitation is to provide the Commission with sufficient power to determine whether an investigation to uncover corruption is warranted. This is the same as the right to privacy. The limitation is the least restrictive as all that is required is attendance to provide documents or things for the preliminary inquiry process. The Commission can also excuse the person from attending if the person produces the document or thing to the Commission before the time for production stated in the preliminary inquiry summons. 

Threshold to commence investigation and use investigative Powers
Section 12 – Right to Privacy and Reputation, Section 13 – Freedom of movement, Section 22 – Rights in Criminal Proceedings
The Commission is provided extraordinary investigative powers under the Bill which engage several rights including the right to privacy and reputation, freedom of movement and the right against self-incrimination. The Select Committee noted on page 217 of their report: 
“Anti-corruption and integrity bodies mandated with the role of exposing and investigating corruption require a broad set of powers to be effective. It has been argued that the suite of powers required by such bodies is necessary because of the nature of corruption, in that it “is an extraordinary crime”, and that “it is almost impossible to detect or expose using ordinary investigative powers”. 

In order to use these powers, the Commission must commence an investigation because it suspects on reasonable grounds that the conduct in the corruption report may constitute corrupt conduct. This is the same threshold used in the Independent Broad-based Anti-corruption Commission Independent Broad-based Anti-corruption Commission Act 2011 (IBAC Act) and consistent with the recommendation of the Select Committee. This is a lower threshold than the original requirement introduced in Victoria that it be reasonably satisfied that conduct amounts to a relevant offence. 

In recommending this threshold, the Select Committee stated on page 207:

“The Committee further agrees that the threshold for investigation is critical to the effectiveness of an ACIC—in that, if it is too high, the Commission is limited in its ability to act and if it is too low, it may permit the Commission to commence an investigation using investigative and coercive powers, on the basis of limited evidence. 

The Committee supports an investigation threshold of ‘reasonable suspicion’ for an ACIC to commence an investigation. The Committee considers that it balances the requirements for procedural fairness whilst permitting an ACIC to investigate, where initially there may only be limited evidence.”
The compatibility statement that accompanied this change in Victoria also noted that ‘the IBAC's expanded jurisdiction and lower investigation threshold as provided in the bill do not alter the way in which the IBAC's existing investigative powers affect human rights protected by the charter or remove the legitimate objectives of those powers’.
As an additional safeguard, if an investigator exercises a power under the Bill that affects an individual, the investigator must first show the investigator’s identity card to the individual. 
The Inspector also has the power to do anything reasonable and necessary to investigate a complaint under clause 251. This may limit the right to privacy under section 12 of the HRA, and freedom of movement under section 13 of the HRA. This authorisation is important to ensure public confidence in the Inspector’s role which provides oversight of the Integrity Commission and its functions. Appropriate safeguards are placed throughout the Bill to ensure any findings that are reported by the Inspector are not contrary to public interest. 
Search and Seizure
Section 12 – Right to Privacy and Reputation
The powers of investigators to apply for warrants to search properties and seize evidence primarily engages the right for an individual not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily. 

These are based on existing search and seizure powers provided to other ACT entities including under the Waste Management and Resource Recovery Act 2016, Nature Conservation Act 2014 and Public Unleased Land Act 2013. They are also consistent with the recommendations of the Select Committee. 

The purpose of these powers are to allow investigators to fulfil the Integrity Commission’s function of investigating alleged corrupt conduct. 

The Bill provides that an investigator may only enter premises:
•	at any reasonable time those premises are open to the public; 
•	with the occupier’s consent;
•	in accordance with a search warrant.
Clause 112(2) provides a further limitation on the exercise of this power, in that an investigator is not authorised to enter into premises on the first criteria that are used for residential purposes. 

Further, an investigator may only seize an item if the thing is connected with corrupt conduct and the seizure is necessary to prevent the thing from being—
•	concealed, lost or destroyed; or
•	used to engage in, continue or repeat the corrupt conduct.
In the exercise of these powers, 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. In certain circumstances, a person may also claim compensation arising from an investigator exercising these powers. 

On this basis, the Government believes that any limitation on the right to privacy is reasonable and does not constitute unlawful or arbitrary interference. 

Examination
The Bill provides that the Commission may hold public examinations with corresponding powers to compel the attendance of witnesses, and in doing so, may limit a number of rights under the HRA including to privacy, freedom of movement, fair trial and rights in criminal proceedings.

The purpose of this limitation is to provide transparency in relation to scrutiny of the activities of the Integrity Commission and to ensure public confidence in its investigations into alleged corruption. In considering the submissions made to it, and the experiences of other bodies tasked with investigating corruption, the Select Committee concluded that the Integrity Commission should have the ability to hold public examinations for it to discharge its legitimate objectives of transparency and accountability of the conduct of the body, public confidence in its operations, the discovery of further evidence, the education of the public, and the general deterrent effect. The Select Committee recommended that the ‘integrity Commission should have the power to hold public examinations. The decision on whether to hold public or private examinations should be informed by a public interest test.’

The Bill contains a public interest test, which must be satisfied prior to the Commission being able to hold a public hearing that seek to protect the privacy and fair trial rights of individuals. 

One of the objects of the Bill is to achieve 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.

Section 21 – Right to Fair Trial
Section 21 of the HRA requires that everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.  It also requires that all judgements or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless certain exceptions apply including if the interest of the private lives of the parties require the exclusion. The protections in section 21 incorporate principles of procedural fairness.

The Bill does not impose a presumption that examinations be heard in public, or in private.

The Integrity Commission will have discretion in this regard. This discretion serves the purpose of affording the Integrity Commission appropriate flexibility. The Commission’s discretion to hold a public examination could engage the right to a fair trial under section 21 of the HRA. However this is arguable as the Integrity Commission is not a court or tribunal that conducts a trial for the purposes of the HRA. The Commission’s ability to hold a public examination might indirectly engage section 21 of the HRA, as publically airing allegations of corruption could damage the fairness and impartiality of a jury trial should criminal charges be laid by the police following the Commission’s investigation.

The Bill appropriately limits the Commission’s ability to hold a public examination in recognition of a person’s right to a fair trial.  The Commission does not have absolute power to hold a public examination. The Bill restricts their direction by requiring the Commissioner to choose between a public or private examination based upon which option better serves the public interest on the facts of the relevant investigation. This public interest test explicitly requires the Commissioner to consider the negative impact that a public examination would have on a person’s human rights when making this decision.
The Bill further protects the right to a fair trial during an examination. The commission:
•	must comply with the rules of natural justice and procedural fairness; and
•	must exercise its functions with as little formality and technicality as is possible; and, in particular— 
o	must accept written submissions as far as possible; and
o	examinations must be conducted with as little emphasis on an adversarial approach as is possible.
•	must allow persons to seek legal advice and be represented by a lawyer during an examination;
•	must notify the Inspector of its decision to hold a public examination and reasons why;
•	must allow a person to challenge the Commission’s decision to hold a public examination by hearing their arguments in favour of a private examination; and  
•	may issue confidentiality notices and suppression orders. 

A default presumption in favour of private examinations could be less restrictive on the right to a fair trial. However, a presumption that favours private hearings is undesirable because it creates an expectation that allegations of corrupt conduct will not be publically aired. In addition, the Commission cannot fulfil its function of preventing corruption and improving public confidence in the integrity of public administration in the ACT without the power to hold public examinations. The denial of being able to conduct public hearings may invite suspicion that the Commission is withholding information from the public to protect the Government or the Legislative Assembly from public scrutiny. 

It is important the public are aware that the Commission is not biased against public examinations, as public examinations assure the public that the Commission takes corrupt conduct seriously and is not complicit in the corruption it is investigating. A default presumption in favour of private hearings also has less of a deterrent effect on persons considering whether or not to engage in corrupt conduct. The Bill’s position, which includes no presumption for or against private or public examinations, achieves a fair balance between competing considerations in favour of public and private examinations. 

Section 22 – Rights in Criminal Proceedings
Division 3.6.3 allows the Commission to certify and directly refer acts of contempt that occur in relation to a Commission examination to the ACT Supreme Court. This bypasses the normal criminal process in which criminal conduct is reported to the police, investigated, charged and prosecuted after a length of the time.

The inclusion of Division 3.6.3 may impede on section 22(b) of the HRA, which provides that anyone charged with a criminal offence is entitled to have adequate time to prepare his or her defence. The Bill’s expedited process of certifying and referring acts of contempt may limit this right by decreasing the amount of time it takes to prosecute an act of contempt. This similarly decreases the amount of time a person has to prepare their defence against a charge of contempt.

The purpose behind this Division is to ensure the Integrity Commission is able to operate as effectively as possible. The Commission is only able to conduct an effective investigatory examination if witnesses comply with their legal obligation to answers questions and produce documents. The Commission’s power to penalise non-compliance during a preliminary inquiry or examination is crucial. A process that deals with contempt quickly provides a greater deterrent effect. Further, examinations are an investigatory tool. Failure to answer questions and produce a document during an examination can prevent the Commission from properly investigating corrupt conduct in accordance with its statutory functions. This in turn, can stall investigations. Contempt proceedings are useful because they can compel uncooperative witnesses to change their mind and decide to comply with the relevant request for information. Referring acts to the Supreme Court facilitates this process quicker, which allows the Commission to return to investigation sooner. The majority of other State/Territory anti-corruption commissions also utilise the proposed pathway of directly referring acts of contempt to the Supreme Court.

This power is reasonable as it is subject to a variety of limitations, including:
•	the Commission must inform the person they intend to make an application for contempt (which acts as a warning);
•	the Commission’s application must be supported by a certificate that includes an explanation of the grounds for their application, and the evidence in support of their application;
•	a copy of the certificate must be given to the person before an application is made;
•	the Commission must inform the Inspector;
•	the Commission may withdraw the contempt application;
•	a defence of reasonable excuse is available; and
•	a person cannot be tried more than once for an act or omission that is both an act of contempt and an offence.

The alternative to referring acts of contempt to the Supreme Court is criminalising acts of contempt via the normal criminal process. This option does not achieve the desired purpose of avoiding delayed resolution of contempt proceedings. The procedure of referring acts of contempt to the Supreme Court is unusual in the ACT and is not used by other ACT inquisitorial bodies, such as the ACT Judicial Commission, Royal Commission or Boards of Inquiry. The Australian Crime Commission has power to utilise the ACT Supreme Court’s contempt procedures.

Examination Summons and Questioning
The Bill provides the Integrity Commission the power to compel an individual to attend an examination, if it believes it is reasonable to do so, in order to give evidence at an examination or produce a document or thing. This process is distinct from the summons issued at preliminary inquiry stage, in that a person cannot rely on the privilege against self-incrimination when appearing at an examination. 
This engages an individual’s right not to be compelled to testify against themselves or to confess to guilt in section 22 of the HRA. It may also engage, depending on the circumstances, the right to equality on the grounds of disability and age, the rights of children, freedom of movement, right to association, and the right to privacy and reputation.  
The Select Committee recommended client-legal privilege be unavailable. Whilst the Government, initially agreed to this recommendation, in considering the human rights implications of waiving this privilege as part of the policy development process and legislative drafting process, it was decided that legal privilege should be able to be claimed and that a balancing exercise should be undertaken every time legal professional privilege is claimed. However, due to the inquisitorial nature of the Integrity Commission it was noted that the Commission would not be able to independently assess the claim of privilege as it would have a vested interest in the subject matter to which the privilege applies. A person may be able to claim client-legal privilege, and the claim of privilege will be dealt with through the Supreme Court. 
Allowing persons to claim client-legal privilege protects the rights of those being investigated and ensure that the Bill is human rights compliant. 

Section 22 – Rights in Criminal Proceedings
In compelling a person to answer questions or produce documents or things, the Bill engages rights in criminal proceedings in section 22 of the HRA.  The purpose of the provision is to assist the Commission in its function as a truth-seeking body that is able to undertake full and proper investigations.

The restriction on the right against self-incrimination is proportionate. Any self-incriminating material directly obtained as a result of a person being compelled to provide information cannot be used as evidence against that person in later court proceedings, other than an offence in relation to the falsity or the misleading nature of the answer, document or information or an offence against the Criminal Code, chapter 7 (Administration of justice offences). This provision supports the Integrity Commission being able to fully consider all available information when exercising its function, while protecting the people providing the information by conferring ‘use immunity’. 

Use immunity is a well-established practice in relation to investigative agencies in the ACT, including the Human Rights Commission and the recently established Inspector of Correctional Services. The limitation is further reduced as the Bill provides that a person has a right to legal representation at the examination. The Commission must also inform the Inspector if an examination summons is issued. The Commission cannot refer a transcript of an examination in which a person could not claim the privilege against self-incrimination to the Director of Public Prosecutions (DPP) as part of a brief of evidence.

In addition to use immunity, the Bill also implements derivative use immunity which protects evidence obtained as a result of evidence a person gives when being forced to incriminate themselves. No other State/Territory Integrity Commission has legislated to protect derivative use immunity. The problem with derivative use immunity is that it can greatly restrict the amount of evidence that can be used in a prosecution following a finding of corrupt conduct. Concerns have been raised that derivative use immunity generates little admissible evidence and makes persons under investigation by Integrity Commissions ‘conviction-proof’ in any subsequent criminal trial. 

On the other hand, it may be unfair to not provide derivative use immunity to persons investigated by the Commission. No difference can be meaningfully drawn between the harm that may flow from evidence directly obtained under compulsion, and incriminating evidence that was indirectly derived from this information. Derivatively obtained information can be as damaging as the original self-incriminating information. The person has still been forced to assist the Crown to discharge the burden of proof in both cases. 

Permitting derivative use immunity is therefore inappropriate in the ACT as a human rights jurisdiction. The Bill’s approach implements partial derivative use immunity, in that indirectly obtained evidence is inadmissible in Court where the evidence could not have been obtained, or the significance for which could not have been appreciated, but for the compulsorily obtained evidence. Should prosecution later occur based on an investigation and brief of evidence referred by the Commission, the prosecution will have to prove that any derivatively evidence could have been obtained, or its significance could have been appreciated, without the compulsorily obtained evidence. This implements the measured approach to derivative use immunity recommended by Warren CJ in Major Crime (Investigative Powers) Act 2004 [2008] VSC 381. This approach respects human rights whilst also permitting enough derivatively obtained evidence to effectively prosecute criminal charges laid following an investigation by a body with compulsory information gathering powers. As per her Honour’s judgement, it is the least restrictive means available.
In an examination summons, a person must also be provided at least 7 days’ notice prior to an examination, unless the Commission considers on reasonable grounds that a delay in the person’s attendance is likely to result in:
•	evidence being lost or destroyed; 
•	the commission of an offence;
•	the escape of the person who is summoned; or 
•	serious prejudice to the conduct of the investigation.
The Bill also provides that if the Integrity Commission is aware of a criminal investigation or criminal proceedings, the Commission must not include in an investigation report any information which would prejudice the criminal investigation or criminal proceedings.

The Commission must appropriately inform a witness of their rights in the summons including 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 likely to prejudice the conduct of the investigation), that the witness is entitled to seek legal advice, and that privileges may apply.

Clause 278 further protects the unreasonable disclosure of material collected by the Commission as it makes it an offence for the Commissioner or their staff, or the Inspector of their staff, or anyone else with functions under the Bill, to disclose protected information other than in the exercise of a function under this Bill or another territory law, in a court proceeding or with consent. This is based on similar safeguards in other ACT legislation such as the Information Privacy Act 2014, Official Visitor Act 2012, and Public Interest Disclosure Act 2012. While this may engage the freedom of expression of the Commissioner and their staff, it is a proportionate limitation to protect the unreasonable disclosure of material collected by the Commission. The Commission is required, in consultation with the Information Privacy Commissioner, to make guidelines about the handling of information under the Bill.   

Finally, a person can claim that information, documents or things sought by the Integrity Commission are subject to secrecy provisions or privilege. If the Commission continues to seek this material, it must seek a determination from the Supreme Court about the nature of that claim. The material must remain sealed until that determination is made. 

In addition, both the Integrity Commissioner and Inspector may commence or continue an investigation despite any proceeding (whether civil or criminal) in any court or tribunal. Safeguards are placed through the Bill to ensure the right to fair trial under section 21 of the HRA is not limited. The Commissioner and Inspector must take all reasonable steps to ensure the conduct of an investigation does not prejudice any proceeding. There are also restrictions in place on the admissibility of particular evidence gathered by the Commission to ensure a person’s fair right to trial is not impinged on. 

Section 8 – Right to Equality and Section 11 – Rights of Children
The right to equality and rights of children may also be engaged by these provisions, depending on the circumstances of when an examination summons is issued. For example, if the Commission were to issue such a summons to someone with a disability or a child. 
There are safeguards in the Bill to ensure any limitation is the least restrictive to achieve the purpose. In deciding whether it is reasonable to issue the examination summons, the Commission must have regard to:
•	the evidentiary or intelligence value of the information, document or thing sought to be obtained from the person; and 
•	the age of the person and whether the person is suffering from a mental impairment. 
The Commission must not issue an examination summons to a person who is under the age of 18 years unless the commission considers on reasonable grounds that: 
•	the information, document or thing that the person could provide may be compelling and probative evidence and 
•	it is not practicable to obtain the information, document or thing in any other way. 
As is the case with a summons issued at the preliminary stage, a person who proves they are under the age of 16 is excused from attending an examination summons.  If a witness is under the age of 18 years, the witness must be accompanied by a parent or guardian or an independent person. These protections combined ensure only those aged between 16-18 can be subject to an examination, and only then when accompanied by a parent, guardian or independent person. These protections exist for examinations undertaken by the Victorian IBAC.

In relation to the least restrictive limitation on the right to equality on the basis of race, if a witness does not have sufficient knowledge of the English language to enable the witness to understand or answer questions, the commission must provide for a competent interpreter to be present for the examination. 

In relation to the least restrictive limitation on the right to equality on the basis of disability, the commission must direct that an independent support person be present during the examination of a witness if— 
•	the commission believes the witness has a mental impairment; or 
•	the witness provides the commission with reasonably satisfactory medical evidence that the witness has a mental impairment. 

Section 12 – Right to Privacy 
The power of the Integrity Commission to issue a witness summons for a public examination will engage the right to privacy if a person is compelled, as a result of that summons, to provide personal information or documents. The Bill provides that these powers are exercised in a lawful manner, and by providing clearly articulated circumstances, they are not arbitrary. It may also be argued that the ability to give sworn evidence in a public forum provides an individual to clear or uphold their reputation. There are currently no limits on what a witness may be asked in an examination summons however appropriate safeguards are in place to ensure that procedural fairness is granted. Examples of the safeguard include the Commission having regard to whether the production of the document or thing is necessary, whether it is reasonably practicable to obtain the information, the evidentiary or intelligence value of the information, the age of the person and whether they are suffering from mental impairment, and lastly, the impact the summons will have on the person. 

Section 13 – Freedom of Movement
The Bill limits the freedom of movement as a person is required to attend a specified place at a specified time. This limitation also has the purpose of ensuring the Integrity Commission is able to fulfil its functions of truth-seeking and investigating alleged corrupt conduct. The limitation is relatively minor in nature, as a person's movement will only be restricted for a limited amount of time.
Section 16 – Freedom of Expression 
Where the Supreme Court may determine that journalist privilege is to be waived, any resulting limitation on freedom of expression is minimised by provisions in the Bill that restrict the information that the Commission publically discloses. These include the Commission’s power to conduct examinations in private, issue confidentiality notices and suppression orders. In addition, offences are contained in the Bill for those found to disclose information communicated in an examination without the Commission’s permission and the Commissioner’s discretion to withhold information from public reports that may endanger a person such as a journalist’s informant.  

Suppression orders
The Bill provides the Integrity Commission with the power to issue a suppression order prohibiting or restricting publication of information or evidence given during a public examination. This power limits the right to freedom of expression in section 15 of the HRA, which includes the freedom to seek, receive and impart information and ideas of all kinds. 

In this context, the Bill may also limit the right to a fair and public hearing in section 21 of the HRA. This right provides that a person, whether as a defendant in a criminal case or a party to civil proceedings, has the right to a fair trial before a competent, independent and impartial court or tribunal established by law. Section 21 provides that judgments and hearings must be public unless other laws provide.  As detailed above, it is arguable that as the Commission is not a court or tribunal, this right may not be engaged. 

The purpose of this limitation is to protect the rights of others who may give information to the Integrity Commission, including their rights to privacy and reputation, protected in section 14, and the right to fair trial in section 21. 

This is the least restrictive manner of achieving this purpose as a suppression order may only be issued for a specific purpose, being:
•	to prevent prejudice or hardship to any person, including harm to their reputation or safety;
•	to avoid the possibility of any prejudice to a legal proceeding; or
•	for another reason having regard to all the circumstances (such as preventing prejudice to the Commission’s investigation). 
This limitation is an important protection in the Integrity Commission fulfilling its function to conduct public hearings in a way that protects the rights of individuals who appear. 

Warrant to Arrest 
The Bill provides that the Integrity Commission may apply for a warrant to arrest a witness who fails to appear at a public examination. This engages the right to liberty under section 18 of the HRA, which protects a person against unlawful or arbitrary arrest.  

The purpose of this limitation is to ensure that the Commission is able to properly discharge its function of examining witnesses in public examinations that have information relevant to an investigation of corrupt conduct. The protections regarding this power ensure it is not unlawful or arbitrary, in that the Commission must apply to a magistrate for such a warrant. A magistrate may only grant such a warrant if certain criteria are met, including if the commission has taken reasonably practicable steps to contact the person. The magistrate must also consider the importance of the evidence that the person is expected to give and whether the evidence could be obtained by other means. 

Further, the significant safeguards in relation to the exercise of this function through this section of the Bill demonstrate that this is the least restrictive manner of achieving this purpose.

The Bill also provides a less restrictive limitation on rights than under the equivalent Victorian legislation. In contrast to the Victorian provisions, which provide that if a person arrested under such a warrant cannot to be brought before the IBAC within a reasonable time after he or she is arrested, the person must be brought before the Supreme Court or the Magistrates' Court for a consideration of bail. Under clause 157(4) of the Bill, if, after arresting the person, a police officer believes on reasonable grounds that the person cannot be brought immediately before the commission, the police officer must immediately release the person.

The Commission’s ability to issue warrants acts as a means of deterring non-compliance with summons to witnesses that are likely to provide information, documents or other things that are relevant to its investigations.  

Confidentiality Notice 
Section 16 – Freedom of Expression 
The Bill limits the freedom of expression by providing the Commission with the ability to issue a person with a confidentiality notice, preventing that person from disclosing information to others.  

This is a reasonable limitation on the right as its purpose is to protect the safety of individuals, support the right to privacy and reputation of other persons subject to the work of the Integrity Commission and to avoid prejudicing the right to a fair trial of an accused person. The Select Committee’s Report notes that ‘there is also a legitimate expectation, as it concerns citizens generally, citizens making complaints and citizens subject to an alleged complaint, that confidentiality requirements apply to complaints and referrals until such time as an integrity body decides to conduct a public inquiry’. These provisions are also modelled on similar provisions in the Victorian Independent Broad-based Anti-corruption
Commission Act 2011.  

The use of a confidentiality notice is the least restrictive limitation to achieve this purpose, as the Commission is limited in the matters it may require a person to keep confidential. These matters are concerned with evidence or information given to, or obtained by, the Commission and other information relevant to the Commission’s work, and the identity of those that are examined by it. The Commission may only give a confidentiality notice to a person about a restricted matter if, during an investigation, the Commission considers on reasonable grounds that the disclosure of a restricted matter would be likely to prejudice the:
•	investigation; or 
•	safety or reputation of a person; or 
•	fair trial of a person who has been, or may be, charged with an offence. 

Clause 74 requires that the Commission must include certain information in a confidentiality notice including the details of the obligations on the person. 

Further, confidentiality notices expire after three years unless the Commission believes there are reasonable grounds to extend the operation of the confidentiality notice. The Supreme Court may, on application by the Commission, only make an order extending the operation of the confidentiality notice if satisfied that it is necessary to avoid prejudice to:
•	the investigation being conducted by the commission;  
•	the safety or reputation of a person;  
•	the fair trial of a person who has been, or may be, charged with an offence; or 
•	any proceedings that are proposed to be commenced or which have not been finally determined. 
This requirement reflects circumstances where it would be reasonable to continue to limit a person’s freedom of expression. The majority of cases with substantive allegations run on average for two years in other jurisdictions. Implementing a three-year time period for the Integrity Commission not only ensures that cases with substantive allegations have the opportunity to be investigated without undue prejudice, but also, will be in line with the median criminal trial time in the ACT.   

In Victoria, confidentiality notices expire after 5 years, or earlier if the IBAC considers it no longer necessary to restrict the disclosure of the restricted matter or the matters will not be prejudiced. Likewise, if the Commission on reasonable grounds decides to revoke a confidentiality notice, the Commission must notify the person revoking the notice. This is an important safeguard in place to ensure that where the content of the confidentiality notice is no longer considered a restricted matter and it is before the end of the three-year expiry period, the notice must be revoked and the person must be notified. 

Clause 80 creates an offence if a person discloses restricted information.

It is the least restrictive means of achieving this purpose as there are several exceptions to this offence. The offence under clause 80 does not apply if a person makes a permitted disclosure in accordance with a direction or authorisation given by the commission. Clause 80 also does not apply if a person makes a disclosure because it is necessary to comply with a relevant document, including:
•	if the discloser does not have a sufficient knowledge of the English language to understand the nature of the relevant document—a disclosure made to an interpreter;
•	if the discloser is under the age of 18 years—a disclosure made to the discloser’s parent or guardian or to an independent person;
•	if the discloser is illiterate or has a mental, physical or other impairment which prevents the discloser from understanding the relevant document without assistance—a disclosure made to an independent person.

Clause 80 also does not apply to a person who makes a disclosure to obtain legal advice or representation in relation to a relevant document, or the discloser’s rights, liabilities, obligations and privileges under this Bill. This also applies where a lawyer who has received a disclosure in those circumstances and the disclosure is necessary to comply with a legal duty of disclosure or a professional obligation arising from the lawyer’s professional relationship with their client.

The person commits an offence if they make a disclosure in relation to one of these disclosures. However, this is also the least restrictive limitation, as the offence does not apply to a person if when making a permitted disclosure, the person tells the recipient it may be an offence to disclose the restricted information and gives the recipient a copy of the confidentiality notice. 

A relevant document is defined as:
•	a preliminary inquiry summons; 
•	an examination summons; 
•	a confidentiality notice; 
•	a notice revoking a confidentiality notice; or
•	an order extending a confidentiality notice.

The content of a confidentiality notice must also set out an explanation of the effect of any amendment, revocation, extension or expiry of a confidentiality notice. This acts as a safeguard in ensuring the person being given the confidentiality notice is aware of their rights and obligations. The purpose of this, is that it also protects any person that has made a permitted disclosure to someone else in that they also keep the person updated of any changes to the original confidentiality notice.   

Finally, while during a preliminary inquiry the Commission can compel information from the head of a public sector entity, the head need not comply if they have a reasonable excuse.

Section 11(2) – Rights of Children 
The Bill limits the rights of children, as the Integrity Commissioner may issue them a confidentiality notice preventing a person aged under 18 years of age disclosing certain information. A breach of this obligation is an offence. 

The purpose of this limitation is reasonable in relation to confidentiality notices to ensure the Integrity Commission is able to protect the rights of individuals, including protecting an accused person’s right to fair trial. 

The limitation is least restrictive to achieve this aim, as children and young people subject to a confidentiality notice may disclose restricted material to a parent or guardian. Children and young people are also excluded from other powers of the Integrity Commission in relation to a preliminary inquiry summons unless additional criteria are satisfied, including that:
•	the information, document or thing that the person could provide may be compelling and probative evidence; and 
•	it is not practicable to obtain the information, document or thing in another way. 

Further, if the person summoned is under the age of 16 years and provides proof of age to the commission, the person need not comply with the preliminary inquiry summons. 
This is based on similar protections in the Victorian IBAC legislation. 

Suspension and Ending Appointment of Integrity Commissioner, CEO or Inspector
Section 21 – Right to Fair Trial and Section 8 – Right to Equality
In providing a statutory mechanism for the suspension and the ending of the appointment of the Integrity Commissioner, CEO, or Inspector, the Bill engages the right to a fair hearing and right to equality in relation to the attribute of disability and potentially age. The purpose of the limitation is to ensure that the person in the role of Integrity Commission, CEO, or Inspector is willing and able to fulfil the functions of the role. 

Clause 36 and 230, respectively detail a comprehensive process for how the Speaker may end the Commissioner and Inspector’s appointment, which is designed to provide the Commissioner procedural fairness. The grounds for ending an appointment are:
•	for misbehaviour; 
•	for physical or mental incapacity, if the incapacity substantially affects the exercise of the commissioner’s functions; or 
•	the commissioner becomes bankrupt or personally insolvent. 

The process requires that the Integrity Commissioner or Inspector is provided an opportunity to respond in the event that the motion is moved in the Legislative Assembly to end their appointment.

The Speaker may also 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.
This is the least restrictive manner of achieving the purpose. At each stage of the process, explicit recognition of the requirement to give the office holder the chance to make a submission to the decision maker, or makers, where the question is before the Legislative Assembly, is afforded to the office holder. 

Similar to Clause 36, Clause 41 provides that the Commissioner must end the CEO’s appointment:
•	for misbehaviour; or
•	for physical or mental incapacity if the incapacity substantially affects the exercise of the CEO’s functions; or
•	if the CEO becomes bankrupt or personally insolvent; or
•	if the CEO is convicted in the ACT, Australia or elsewhere of an offence punishable by imprisonment for at least 1 year.

As recommended by the Select Committee, the Bill adopts similar provisions that exist for the suspension and termination of appointment as set out for other Officers of the Legislative Assembly. These provisions were amended during debate on the Legislative Assembly (Office of the Legislative Assembly) Bill 2012 to respond to the concerns of the Scrutiny Committee including how the process can provide greater procedural fairness.

The Integrity Commissioner is given three days to respond to a motion ending their appointment. This is a relatively short period of time however given the nature and importance of the role and the need to resolve any impropriety quickly and at the same time balance the harm to the reputation of the Integrity Commissioner from an unmeritorious motion sitting on the Legislative Assembly notice paper for an extended period of time.

Retirement
Clause 32 and 229 also limits the right to equality on the grounds of disability, in that the Speaker may retire the Integrity Commissioner or Inspector on grounds of mental or physical incapacity of a kind that substantially affects the performance of the Integrity Commissioner’s or Inspector’s functions.

The purpose of this limitation also ensures the person in the role of Integrity Commissioner or Inspector is able to properly discharge their functions and ensure public confidence in the position. 

This is the least restrictive way of limiting this right to achieve this purpose as the Commissioner or Inspector must consent to the retirement. Further, the retirement is subject to the superannuation circumstances of the Commissioner or Inspector.  These provisions are also consistent with that for other Officers of the Legislative Assembly, as recommended by the Select Committee. 

Appointment of Integrity Commissioner
Section 8 – Recognition and Equality before the law and Section 17 – appointment to the public service
The Bill engages the right to equality and rights in public life by preventing certain people from becoming Commissioner. Section 17 provides that individuals have the right to have access, on general terms of equality, appointment to the public service and public office.

The purpose of this limitation is to ensure that the person who fulfils the role is free from any perceived conflict of interest given the unique position they hold, and to ensure public confidence in this new independent body. 

The Speaker must not appoint a person as the commissioner if the person—
•	is or has, in the 5 years immediately before the day of the proposed appointment, been a member of—
o	the Legislative Assembly; 
o	the Parliament of the Commonwealth; or
o	the legislature of a State or another Territory; or 
•	is or has, in the 5 years immediately before the day of the proposed appointment, been a public servant; or
•	is or has, in the 5 years immediately before the day of the proposed appointment,  been a member of—
o	a registered party; 
o	a political party registered under a law of the Commonwealth, a State or another Territory; or
o	a political party or
•	has been convicted —
o	in the ACT, of an offence punishable by imprisonment for at least 1 year; or 
o	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.
In addition, the Speaker may appoint a person as the Integrity Commissioner only if the person has been a judge of the Supreme Court, a judge of the Federal Court, or a justice of the High Court. The nature and importance of the role means the limitation on employment is justified. The public must have full confidence in the person appointed to the independent role of Integrity Commissioner.  
 
Public servant is defined by the Legislation Act 2001 to mean a public servant employed in the ACT public service. The constitution of the public service is dealt with by section 12 of the Public Sector Management Act 1994 which provides that members of the ACT Public Service are—
•	the head of service;
•	the directors-general;
•	the executives;
•	other employees; and
•	officers. 

In effect this means that statutory office holders, such as the President, other Commissioners at the Human Rights Commission, or members of the ACT Civil and Administrative Tribunal, and includes Supreme Court Judges, who are not public servants within the definition and so can be appointed to the position of Integrity Commissioner. Former or current Commonwealth employee are also eligible for appointment as Integrity Commissioner on the proviso that they have not worked as an ACT public servant in the 
5 years immediately before the day of the appointment.

The nature of the limitation is relatively specific in that it prevents a defined class of person from being appointed to a specific position that generally becomes available only every seven years.

The limitation also exists for the Auditor-General, which is analogous to the role of the Integrity Commissioner in that community expectations are that it is not appropriate to appoint a person from within an organisation to then be immediately being responsible for investigating that organisation. For example a public servant who had worked in a particular administrative unit or on a particular project could not, without at the very least the perception of a conflict of interest, investigate corrupt in the administrative unit or project. More generally a senior public servant who may be considered for the Integrity Commissioner role is likely to have had a significant role across the service which will further give rise to a perception of a conflict of interest. It is reasonable to expect that a person appointed to a role as significant as the Integrity Commissioner will be able to exercise their statutory functions, on behalf of the legislature, without the risk of a perception of a conflict of interest.

This perception is not sufficiently overcome through the requirement to appoint a person to the position in accordance with the merit principles or because the appointment is made by the Speaker. Certainly these requirements improve the transparency and accountability of the decision making process but that does not overcome the need for the community to have confidence that the person in the role will be free of any actual or perceived conflict of interest. 

There are similar limitations on who may be appointed as some other Officers of the Legislative Assembly. 

These are adapted for the unique role of the Integrity Commissioner, including requiring a period of 5 years to lapse from being a public servant before a person is eligible. Similarly, as the Integrity Commissioner will have jurisdiction over MLAs and their staff, it is critical that there is no actual or perceived conflicts of interest through any political party affiliation within the last 5 years. 

Similar arrangements apply to the appointment of the Inspector.

Employment of Staff
The Bill also limits the same rights – equality and access to employment in the public service – in relation to staff of the Integrity Commission. The Commissioner may appoint a person as a member of staff of the Commission only if the person is a suitable person to be a member of the staff of the commission. 

The Commissioner must appoint a Chief Executive Officer (CEO) for the Commission for a maximum period of seven years. A person who has been CEO for 7 years is not eligible for reappointment. However, the Commissioner cannot appoint a person CEO if the person is or has, in the 5 years immediately before the day of the proposed appointment, been a public servant, or has been convicted in the ACT of an offence punishable by imprisonment for at least 1 year. This includes outside of ACT, in Australia or elsewhere.

Other Work/Volunteer Activity
Section 15 - Freedom of association
The Bill also contains a limitation on the other work and volunteer activity that the Integrity Commissioner can engage in that potentially engages the right to freedom of association under section 15 of the HRA. The Bill prevents the Commissioner from doing any work or unpaid activity that is inconsistent with their functions. The Bill does not place a complete restriction on other work like other ACT statutory office holders.

The purpose of the limitation is to promote the independence and public confidence in this new position. It is necessary to guarantee the independence of the Commissioner and ensure that their impartiality cannot be called into question. 

The extent of the limitation is the least restrictive. It is consistent with similar requirements placed on other Officers of the Legislative Assembly. As with these officers, it would be a matter of significant and legitimate public concern if the Integrity Commissioner were engaging in an activity that was inconsistent with their functions. The restriction is the least restrictive means available to ensure that the conduct of the Integrity Commissioner is consistent with the legitimate expectation of the Assembly in the appointment as an independent Officer of the Legislative Assembly.

Similar arrangements apply to the appointment of the Inspector.

Reports and Recommendations
Section 12 – Right to Privacy and Reputation 
The Bill provides that the Commission can make recommendations and report on its investigations. These provisions engage the right to privacy and reputation under section 12 of the HRA. This right may be engaged by the Commission reporting or recommending something that names, identifies or impacts on the reputation of a person. The purpose of this limitation is to ensure that the community benefits from its investigations and findings about corruption. Without this power, the Commission will be unable to fulfil its functions to investigate corruption, prevent corruption and publish information about lessons learned. 

This is the least restrictive limitation on the right to achieve this purpose. The Bill provides that the Commission can only make a recommendation in private first to:

•	if the matter involves a Minister – the Chief Minister;
•	if the matter involves a member of the Legislative Assembly – the Speaker and the leader of the registered party to which the member belongs;
•	if the matter involves a member of staff of an MLA – the Speaker, the member of the Legislative Assembly employing the person and the leader of the registered party to which the member belongs;
•	if the matter involves a public sector entity – the head of a public sector entity. 

Only after this, and if the Integrity Commission considers there has been a failure to take appropriate action, can the Commission make a recommendation public. 

The Commission must prepare reports at certain times, at the completion of an investigation and annually. These reports are tabled in the Legislative Assembly and may only include adverse findings about individuals if protections for the unlawful or arbitrary damage to the reputation of such individuals are satisfied. In addition, any special report must not include a finding of corrupt conduct unless it is serious corrupt conduct. However, the Commission may be able to report on the finding or opinion about conduct of a stated person if the finding or opinion does not describe the conduct as corrupt conduct. The finding or opinion may limit a person’s right under section 12 of the HRA, however, this is mitigated by clause 207 which states the Commission must consider whether the disclosure of the information is contrary to the public interest. 

The commission must not include in an annual or investigation report a statement of a finding or opinion that a stated person:

•	is guilty of or has committed, is committing or is about to commit, an offence against a law in force in the ACT; or 
•	has engaged, is engaging or is about to engage in conduct that would be reasonable grounds for serious disciplinary action against the person. 

Neither can it make a recommendation that a stated person be, or an opinion that a stated person should be prosecuted for an offence; or be the subject of serious disciplinary action.

This further limits any potential reputational damage to a person, and also protects their right to the presumption of innocence and a fair hearing by ensuring any prosecution will not be prejudiced. 

The commission must also not include in an annual or investigation report a finding that a stated person has engaged, is engaging in or is about to engage in corrupt conduct unless the corrupt conduct is serious or systemic corrupt conduct. However, the Commission may include in an annual or investigation report a finding or opinion about conduct of a stated person that may be corrupt conduct if the statement of the finding or opinion does not describe the conduct as corrupt conduct. Even then, clauses 183, 205 and 216 prohibit the Commission from including in an investigation report, a special report or an annual report, any information that would compromise another investigation, or prejudice a criminal investigation, criminal proceeding or other legal proceeding known to the commission. 

The Commission must also not make an adverse comment about a person unless it has satisfied a number of measures to protect an arbitrary attack on that person’s reputation and satisfied principles of natural justice. Firstly, the Commission must not identify a person in an investigation report, a special report or an annual report, who is not the subject of an adverse comment or opinion, unless the Commission:
•	is satisfied that it is necessary or desirable to do so in the public interest; 
•	is satisfied that it will not cause unreasonable damage to the person’s reputation, safety or wellbeing; and
•	states in the investigation report that the person is not the subject of any adverse comment or opinion. 
The Inspector must also protect an arbitrary attack on a person’s reputation and the principles of natural justice when keeping complainants informed under clause 247.  Where an Inspector discloses the decisions and reasons for the decision not to investigate a complaint, and where personal information may be disclosed, section 12 of the HRA will be engaged. This limit will be protected by clause 247(2). The limit is proportionate as the complainant’s right to be kept informed is important to ensure public confidence in the functions of the Inspector.  

Likewise, any personal information that may be disclosed under clause 267(c) will be protected by clause 268 and the Inspector’s consideration of any human rights that may be engaged. 

Under clauses 186 and 208, even if the Commission intends to include in an investigation report or special report, a comment or opinion about a person which is not adverse to the person, the Commission must first provide the person with the material in relation to which the commission intends to name that person.

The Commission can provide some of this material in a confidential report, which can only be provided to the presiding member of the relevant Legislative Assembly Committee. This is consistent with the Commission’s role as an Officer of the Legislative Assembly by providing it with the ability to confidentially report matters of concern to the Assembly.   

In addition, an investigation report, a special report or an annual report must not include a   finding or opinion that a specified person is guilty of or has committed, is committing or about to commit any criminal or disciplinary offence.

If the Commission omits information from a special report under clause 205, 206 or 207, a confidential special report may be prepared and given to the presiding member of the relevant Assembly committee. The purpose of this limitation is to ensure that the community benefits from its investigations and findings about corruption. Without this power, the Commission will be unable to fulfil its functions to investigate corruption, prevent corruption and publish information about lessons learned, and for the relevant Legislative Assembly committee to have appropriate oversight of the Commission’s work. 

Under clause 195, the Commission may give information about the commencement, conduct, or result of an investigation to any of the following:
•	if the matter involves a Minister – the Chief Minister;
•	if the matter involves a member of the Legislative Assembly – the Speaker and the leader of the registered party to which the member belongs;
•	if the matter involves a person who is a member of staff of an MLA – the Speaker, the member of the Legislative Assembly employing the person and the leader of the registered party to which the member belongs;
•	if the investigation involves a public sector entity - the head of a public sector entity. 
This is also subject to protections for the privacy, reputation and safety of individuals. The Commission must not provide any information if the commission considers that giving the information would:
•	not be in the public interest or in the interests of justice;
•	put a person’s safety at risk;
•	cause unreasonable damage to a person’s reputation; 
•	prejudice an investigation under this Bill or an investigation by the Australian Federal Police; 
•	be likely to lead to the disclosure of any secret investigative method used by the commission or a police officer; 
•	contravene a statutory secrecy obligation; or
•	involve the unreasonable disclosure of information relating to the personal affairs of a person.

One of the objects of the Bill is to achieve 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. Clause 207 provides a safeguard by setting out what the Integrity Commissioner must consider in determining whether the disclosure of the information, would, on balance, be contrary to the public interest. 

Likewise, clause 261 allows for the Inspector to disclose information it may have gathered through the use of its powers to an information sharing entity. While this may engage section 12 of the HRA, it only allows disclosure of information collected or obtained in exercise of the inspector's functions. The potential limit on section 12 of the HRA is reasonable and proportionate for the Inspector to carry out its functions. 

These protections strike an appropriate balance between the public interest in the functions of the Commission and protections for the right of privacy and reputation for individuals subject to its work. 

Section 15 – Freedom of Expression
It is an offence for a person to release information they have received from the Commission under clause 198. This limits that person’s freedom of expression. This is a necessary limitation to ensure the work of the Commission is not undermined by the disclosure of sensitive information about its work and findings of corruption, and that individual’s privacy, reputation and right to fair trial are not unreasonably limited by a person releasing information provided to it by the Commission for the purposes of natural justice. It is the least restrictive way of achieving this purpose as the Bill provides that the person may release the information for certain permitted purposes, including to receive legal advice or making a complaint to the inspector. 

Legal Advice Directions 
Generally the Bill provides that a person is entitled to legal representation when dealing with the Integrity Commission including in responding to a confidentiality notice, a preliminary inquiry summons, an examination summons and when information is to be included in a report. However, under clause 191, the Commission may direct the person not to seek legal advice or representation if the Commission considers on reasonable grounds that the investigation, or an examination for the investigation, would be prejudiced because the lawyer is:
•	a witness in an examination for the investigation or another examination; 
•	the representative of another witness in an examination for the investigation or another examination; or 
•	a person involved, or suspected of being involved, in a matter being investigated by the commission or the inspector.
This may limit the right in section 22 of the HRA for an individual to have legal representation of their choosing in criminal proceedings. However, it is arguable the proceedings of the Integrity Commission do not constitute ‘criminal proceedings’. Even if the right is limited, this is a reasonable limitation to ensure that the investigations by the Commission, or other legal proceedings, are not prejudiced by a lawyer that has a conflict of interest. The Victorian Parliament’s Scrutiny of Acts and Regulations Committee found that a similar provision in the Victorian IBAC Act was reasonable in relation to a limitation of the equivalent provision of the Victorian Charter of Rights and Responsibilities Act 2006. 

Surveillance Devices
Section 12 – Right to privacy
The Bill includes an amendment to the Crimes (Surveillance Devices) Act 2010 to provide the Integrity Commission with the power to operate surveillance devices. This may further limit the right to privacy in addition to the other powers provided under the Bill. The purpose of the limitation is to provide the Commission with all the necessary tools to fulfil its important function of investigating alleged corrupt conduct. In doing so, the Commission will be subject to the significant existing safeguards present in the Crimes (Surveillance Devices) Act 2010. The Commission will not be granted power to authorise surveillance devices without a warrant under the Act. This is consistent with the Select Committee’s recommendation that the Commission only have the power to apply for warrants to engage in covert tactics including listening devices and optical surveillance. 

Controlled Operations and Assumed Identities
Section 12 – Right to privacy and Section 8 – Equality before the law
The Bill also amends the Crimes (Controlled Operations) Act 2008 to empower the Integrity Commission to conduct a controlled operation during an investigation into corrupt conduct. This powers engages the right to equality before the law under section 8 of the HRA, as the Commission will be able to authorise investigation officers to commit illegal acts for the purpose of an investigation. Investigation officers will not be held civilly or criminally liable for these acts. This may limit the principle that all persons, regardless of their occupation, should be held accountable before the law for any illegal acts that they commit. 

The purpose of this limitation is to enable the Commission to covertly gather evidence on a person under investigation for corrupt conduct. It is sometimes necessary for investigatory agencies to break the law to covertly gather evidence on a suspect of investigation. This is particularly true regarding corrupt conduct, which is by nature highly secretive and less penetrable by ordinary investigatory techniques. Consequently six out of seven Integrity Commissions in Australia have powers to conduct controlled operations.

The Crime (Controlled Operations) Act 2008 heavily restricts the circumstances in which investigation officers can commit unlawful acts during a controlled operation. Investigation officers must prospectively apply for approval to conduct a controlled operation. Before granting approval, the Commissioner must be satisfied on reasonable grounds that the proposed unlawful conduct is justified, and limited to the minimum extent necessary to effectively conduct the controlled operation. Investigation officers also retain liability for any civil or criminal acts they commit that exceed the scope of the operation approved by the Commissioner.  

The Bill also amends the Crimes (Assumed Identities) Act 2009. This amendment empowers the Integrity Commission to authorise an investigation officer to assume a false identity when conducting a controlled operation. This engages the right to a fair trial under section 21 of the HRA, as the use of a false identity could potentially entrap or improperly induce a person under investigation into committing a criminal offence for which they may be later prosecuted.

The purpose of the limitation is to enable the Commission to effectively conduct a controlled operation. An investigation officer would be quickly discovered if they attempted to operate ‘undercover’ during a controlled operation without assuming a false identity. Being discovered would endanger the safety of an undercover officer and compromise the Integrity Commission’s covert investigation into corrupt conduct. The importance of assumed identities is consequently well recognised within existing Integrity Commission models in Australia, as six out of seven State and Territory Integrity Commissions have the power to authorise the use of assumed identities. 

The Bill’s authorisation of assumed identities does not fully limit the right to a fair trial, as the potential for an undercover operative to pressure or ‘entrap’ a person into committing an offence during a controlled operation is very limited. As with controlled operations, the use of an assumed identity must be approved in advance by the Commissioner. The Commissioner cannot approve an assumed identity unless satisfied on reasonable grounds that the assumed identity is necessary and the risk of abuse of the assumed identity is minimal. The Bill further retains the Court’s discretion to exclude evidence that was illegally or improperly obtained, such as evidence of a criminal offence that a person was ’entrapped’ into committing by an undercover operative working under a false identity. The Courts will also retain their ability to stay proceedings in such circumstances. As with controlled operations, the Ombudsman has oversight over the Commission’s use of assumed identities. 

It may be less restrictive for the Commission to apply to a Court for a judicial warrant to authorise controlled operations and assumed identities. However, a judicial warrant scheme is not considered necessary. ACT Policing are not required to request judicial approval prior to authorising controlled operations and assumed identities. It is also standard for controlled operations and assumed identities to be authorised without prospective judicial approval amongst police forces and Integrity Commissions in other jurisdictions. Notably the oversight bodies of Integrity Commissions in other jurisdictions have not recommended implementing a system of judicial approval for controlled operations and assumed identities.  As above, there are measures within both assumed identities and controlled operations Acts which minimise the risk of these powers being abused, such as proportionality tests and oversight by the Ombudsman. These measures suitably contain the risks posed by controlled operations or assumed identities.

Protection from Liability
Section 12 - Right to Privacy and Section 21 – Right to Fair Trial
Chapter 6 protects complainants from liability, and in particular provide a complainant with the defence of absolute liability in a proceeding for defamation for publishing the information in the corruption complaint. This is based on similar provisions in the Public Interest Disclosure Act 2012 (PID Act) and based on recommendations of the Select Committee. It limits the right to privacy and reputation and fair trial under the HRA, as the subject of the material published is limited in their ability to seek civil remedy for defamation. 

This is a reasonable limitation on these rights. Like disclosures under the PID Act, complaints made to the Integrity Commission are by their very nature likely to bring the reputation of others into question.  Where a disclosure is damaging to a person’s reputation and that person sues the discloser for defamation, so long as the statements made by the discloser are a corruption complaint, then the complainant is permitted to use the defence of absolute privilege against the defamation action. Further, the protection is lost if a court finds the complaint was vexatious or the complainant has given information to a person investigating the complaint that the complainant knows is false or misleading. 

Injunction to prevent detrimental action
Clause 277 provides the Supreme Court with the power, on application, to prevent a person from engaging in detrimental action, such as threatening a person who has made a complaint. Depending on the circumstances, this may engage rights under the HRA including freedom of expression, right to association and freedom of movement. This clause is based on the recommendations of the Select Committee and similar provisions in the PID Act. The purpose of the limitation is to ensure those providing information to the Integrity Commission are not victimised and to provide public confidence that individuals are protected when they come forward to provide information. It is the least restrictive means of achieving the purpose as only the Commissioner, or a complainant or a person against whom detrimental action has been or is likely to be taken, may apply. 

Amendments to Information Privacy and FOI Acts
The Bill exempts the Integrity Commission from the Information Privacy Act and the Freedom of Information Act. These exemptions may engage the right to freedom of expression, which includes the right to receive information. The exemption from the Information Privacy Act may also engage the right to privacy, as the Commission is not required to fully observe the Act’s rules about storage, collection, use and citizen access to information gathered by the Commission.

The purpose of these limitations is to enable the Commission to function effectively as an investigatory body. It would not be practicable for the Integrity Commission to fully comply with privacy law. For example, requiring consent to share information or not being able to gather certain information on privacy grounds would limit the Integrity Commission’s ability to investigate suspected corruption. Some form of exemption is also necessary to facilitate information flows into and out of the Integrity body. For example, agencies and entities disclosing personal information to the Integrity Commission, as well as the ability for the Integrity Commission to share and disclose information. It is similarly impractical for the Integrity Commission to fully comply with the FOI Act. In general, it would not be in the public interest for the Integrity Commission to disclose information relating to its investigations prior to making a deliberate decision to publish information or hold a public examination, as it could jeopardise investigations, breach procedural fairness or cause undue harm to the reputation of the person under investigation.

The exemptions provided in the Bill do not fully limit the right to privacy or freedom of expression afforded by the Information Privacy and FOI Acts. Notably the Bill only exempts the Commission from complying with the requirements of these Acts when performing its investigatory functions. The Integrity Commission is therefore still obliged to comply with the standards and procedures around privacy and open access to information when performing its administrative and educative functions. This distinction recognises and maintains the legitimate public interest in protecting privacy and access to information where it is practicable to do so. 

The Commission however, must in consultation with the Information Privacy Commissioner make guidelines about the handling of information once the Integrity Commission is operational. In addition, the limitations are narrow in scope and are the least restrictive means of supporting the Commission to effectively investigate corrupt conduct. The Bill’s approach is also consistent with exemptions granted to other Officers of the Legislative Assembly such as the ACT Auditor-General.

Amendment to Victims of Crime Act 
The addition of the Integrity Commission into section 12(6) of the Victims of Crime Act 1994, may engage section 12 of the HRA. This limitation is proportionate to ensure the Integrity Commissioner is given all relevant information in relation to a complaint to carry out its functions. It is the least restrictive purpose of doing so as the amendment adds the Integrity Commissioner to the list alongside the Human Rights Commissioner and the Ombudsman. 

Delegation of Legislative/Administrative Power

The Bill provides significant responsibility to the Speaker for the appointment of the Integrity Commissioner, which is an Officer of the Legislative Assembly. The administrative and legislative power has a range of checks and balances in place to ensure that the Speaker’s actions reflect the collective views of the Legislative Assembly. 

The Bill also provides additional power to the Integrity Commissioner, providing that the Commissioner may appoint a person to act in their position while they are on approved leave. Ordinarily the Legislation Act 2001 provides that the person making the appointment is also responsible for acting appointments. In the case of the Integrity Commissioner it is appropriate that they be able to appoint a person to act in their place while they are on approved leave given the particular position of trust they are placed in and the nature of the role. This is generally the case for other Officers of the Legislative Assembly. The ability to appoint a person to act in the position is only available where leave is approved by the Speaker and the office holder has consulted with the Speaker about their proposed acting appointment. It is designed primarily to cover ordinary leave that any employed person would take from time to time, for example recreational leave. In circumstances where there is no long-term appointee, it is the Speaker who will make the acting appointment; for which they must consult the relevant Assembly committee. 

CLAUSE NOTES

Chapter 1	Preliminary
Part 1.1 – Preliminary
Part 1.1 of the Bill comprises clauses 1 to 8 dealing with formal matters including commencement, objects and key definitions for the purpose of the Bill.

Clause 1	Name of Act
This clause is a formal provision setting out the name of the new Act as the 
Integrity Commission Act 2018 (the Act).

Clause 2	Commencement
This clause provides that the Act will commence on a day fixed by the Minister by written notice, with the exception of the provision relating to ACT Policing.

The provisions relating to ACT Policing will commence 12 months after the commencement of the Bill. 

Clause 3	Dictionary
This clause is a formal provision identifying the dictionary and explaining conventions used to define words and terms for the purposes of the Act.

Clause 4	Notes
This clause is a formal provision explaining the status of notes in the Act.

Clause 5	Offences against Act—application of Criminal Code etc
This clause clarifies that other legislation applies to this Act and in particular notes the operation of the Criminal Code 2002, which applies to all offences against the Act, and the Legislation Act 2001, which provides for interpretation, common definitions, and legislative machinery for the Bill and applicable offence penalty units.

Clause 6	Objects of Act
Clause 6 outlines the main object of the Act is to provide for the identification, investigation and exposure of corrupt conduct; provide for the commission to prioritise the investigation and exposure of serious corrupt conduct and systemic corrupt conduct; achieve 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; assist in the prevention of corrupt conduct; cooperate with other integrity bodies; educate public officials and the community about the detrimental effects of corrupt conduct on public administration; and assist in improving the capacity of the public sector to prevent corrupt conduct. 

Clause 7	Application of Act—Parliamentary privilege
Clause 7 is based on section 10 of the Evidence Act 2011 and reflects the Select Committee’s recommendation that the Integrity Commission must ensure parliamentary privilege is maintained, as Members of the Legislative Assembly (MLAs) and their staff are within its jurisdiction. 

Clause 8	Application of Act—Conduct that happened before the commencement of this Act
This clause limits the jurisdiction of the Integrity Commission to matters that occur after the commencement of the Act, unless the prior conduct concerns an entity 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 that conduct would have been corrupt conduct under this Act had this Act been in force at the time the conduct happened. 

This reflects the Select Committee’s recommendation that the Integrity Commission’s jurisdiction should not be limited as to timeframes of alleged conduct, but should largely be prospective and focused on current matters. It is also a general principle in the ACT that legislative provisions do not commence retrospectively if they operate to the disadvantage of a person by adversely affecting the person’s rights or imposing liabilities on the person. As the Select Committee noted, it is reasonable to deviate from this principle on the basis that the Integrity Commission must be able to look into prior conduct to ensure public confidence in the new institution. 

The Commission will not be able to conduct an investigation in relation to conduct which occurred entirely before the commencement of the Bill, if the Commission considers the following:
(a)	the conduct is trivial or unrelated to the functions of the Commission; 
(b)	the corruption complaint is frivolous or vexatious; 
(c)	the complaint or notification lacks substance or credibility; 
(d)	the complaint or notification was not made genuinely or was made primarily for a mischievous purpose;
(e)	the conduct occurred at too remote a time to justify investigation.
The Bill provides for the role of the Integrity Commission to be largely prospective and focused on current matters. When considering whether the Commission should investigate a historical matter, the Integrity Commissioner will be required to undertake a public interest test.

Clause 8(3) acts as a safeguard in ensuring the Commission is not going to expose people to additional penalties that have been punished or disciplined. In addition to having regard to the public interest of investigating the conduct, the Commission must also be reasonably satisfied that where the conduct has been investigated by another investigatory body or decided not to be investigated there is reliable, substantial and highly probative evidence that was not considered by that investigatory body, or the body’s investigation or decision not to investigate was materially affected by error.

On the basis of clause 8, matters to be investigated by the Integrity Commission would not go beyond self-government, given that the ACT was administered by the Commonwealth Government prior to 1989.  The Integrity Commission does not have jurisdiction of matters prior to 1989 – these matters would fall to the Commonwealth.

The Bill applies to any conduct that happened at any time before the Bill commences, but does not apply to conduct that happened before self-government in 1989.  Clause 8(1)(a) limits the conduct to conduct by an entity that would have been a public official or public sector entity when the conduct happened.  Public official and public sector entity are defined in the Bill, and are limited to officials and entities within the ACT Government administration (see clause 11 and 12).  Prior to self-government, there was not an ACT body politic, and no public officials or public sector entities (as defined).  

Part 1.2 – Important concepts
Part 1.2 of the Bill deals with key definitions and concepts relevant to the operation of the Integrity Commission. 

Clause 9 	Meaning of corrupt conduct by a person
Clause 9 sets out what constitutes corrupt conduct by any person. Corrupt conduct by any person is conduct by, or involving, the person that adversely affects, or could adversely affect, directly or indirectly, the honest and impartial exercise of an official function of a public official or public sector entity and could, if proved, be an offence against any law in force in the ACT, or be reasonable grounds for serious disciplinary action against the person. Corrupt conduct is also conduct which impairs, or could impair, public confidence in public administration and involves specific areas of government functions including tendering, applications for licences, permits and the disposition of public assets for private advantage. Fraudulently obtaining or retaining employment or appointment as a public official is also within the definition.

This clause also states that certain corrupt conduct by a person also means a conspiracy or attempt to engage in that conduct. 

Clause 10	Meaning of corrupt conduct by a public official
Clause 10 specifically deals with corrupt conduct by a public official. This is conduct by, or involving, a public official that is or involves either the exercise of the public official’s functions as a public official in a way that is not honest or is not impartial; a breach of public trust; or a misuse of information or material acquired in relation to the exercise of official function the misuse of information and could, if proved, be an offence against any law in force in the ACT, or be reasonable grounds for serious disciplinary action against the person.

This clause also states that certain corrupt conduct by a public official also means a conspiracy or attempt to engage in that conduct.

Corrupt conduct by a public official also means action that—
•	is about a matter of administration that is—
o	contrary to a law in force in the ACT; or
o	unreasonable, unjust, oppressive or improperly discriminatory; or
o	negligent; or
o	based wholly or partly on improper motives; and
•	adversely affects another person’s interests in a substantial and specific way.

Corrupt conduct by a public official also means action that is a substantial misuse of public property.

Clause 11 	Meaning of public official 
This clause defines public official for the purposes of the Act. A public official is a person having public official functions for the Territory, or acting in a public official capacity for the Territory. It includes:
•	a public servant;
•	a statutory office-holder;
•	an officer of the Assembly;
•	a member of the Legislative Assembly;
•	a member of staff of an MLA;
•	a member of ACT Policing;
•	any other person who is—
o	an employee of a public sector entity; or
o	a contractor, employee of a contractor, or volunteer exercising a function of, a public sector entity;
•	a person prescribed by regulation as a public official. 

The definition of public official includes current public officials, or those that were public officials at the time of the conduct in question.

Many of these terms are defined elsewhere in the Act including this Part and the Dictionary. 

This clause excludes from this definition the Integrity Commissioner, his or her staff and the Inspector of the Commission and Inspector’s staff created in Chapter 5 of the Bill. Also excluded are a judge or associate judge of the Supreme Court, a magistrate, a member of the ACT Civil and Administrative Tribunal when exercising a judicial or quasi-judicial function and a person prescribed by the regulation. 

Clause 12 	Meaning of public sector entity
This clause defines a public sector entity, which consists of a public service entity and a Legislative Assembly entity. Both of these terms are defined.  

Clause 13 	Meaning of head of a public sector entity
This clause defines the head of a public sector entity and is based on other ACT legislation including the Public Interest Disclosure Act 2012. The head of a public service entity means:
•	for the public service – the head of service;
•	for an administrative unit—the director-general of the administrative unit;
•	for a statutory office-holder—the statutory office-holder;
•	for a territory authority—the person who has responsibility for managing the affairs of the territory authority;
•	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
•	for a territory instrumentality—the person who has responsibility for managing the affairs of the territory instrumentality. 

The Integrity Commission, Commissioner, staff and Commission Inspector are excluded. 

The head of a legislative assembly entity means:
•	for a Member of the Legislative Assembly—the Speaker;
•	for a member of staff of an MLA—the Speaker;
•	for the office of the Legislative Assembly—the clerk of the Legislative Assembly;
•	for an officer of the Assembly—the officer of the Assembly.
If the Speaker is unavailable, the Deputy Speaker will perform the role of the head of the legislative assembly entity for Members of the Legislative Assembly or a member of staff of an MLA. There is also provision for this to occur where the Speaker has an actual or perceived conflict of interest that would prevent the Speaker from properly carrying out the functions under this clause.

The head of a public sector entity can also consist of:
•	for an entity of a public nature—the person who has responsibility for managing the affairs of the entity; 
•	for ACT Policing – the Chief Police Officer. and
•	for an entity prescribed by regulation - the person prescribed by regulation. 

The Integrity Commission and Inspector are also excluded from this definition. 

Clause 14 	Meaning of ACT public service entity 
Clause 14 defines an ACT public service entity. 

Clause 15 	Meaning of Legislative Assembly entity
Clause 15 defines legislative assembly entity means:
a)	a member of the Legislative Assembly;
b)	a member of staff of an MLA;
c)	for the office of the Legislative Assembly;
d)	for an officer of the Assembly. 

It does not include the commissioner, the staff of the commission, the inspector or the staff of the inspector. 

Clause 16 	Meaning of entity of a public nature
Clause 16 defines entity of a public nature, a term used elsewhere in the Act. This definition is based on that used in the definition of a public authority under the Human Rights Act 2004. This includes an entity whose functions are or include functions of a public nature, when it is exercising those functions (whether under contract or otherwise). This means the Integrity Commission will generally have jurisdiction over those entities who also have obligations to act and make decisions consistently with human rights under the Human Rights Act. 

Clause 17 	Meaning of serious corrupt conduct
Clause 17 defines serious corrupt conduct, as recommended by the Select Committee. The Bill suggests the Integrity Commission should prioritise investigating serious corruption, but does not restrict the commission’s discretion to decide to investigate any matter that the commission considers may constitute corrupt conduct.

Clause 18 	Meaning of systemic corrupt conduct
Clause 18 defines systemic corrupt conduct, as recommended by the Select Committee. The Bill suggests the Integrity Commission should prioritise investigating systemic corruption, but does not restrict the commission’s discretion to decide to investigate any matter that the commission considers may constitute corrupt conduct.

Chapter 2	Integrity Commission
Part 2.1 – Commission—establishment, independence and functions
Part 2.1 establishes the independent Integrity Commission and Commissioner. 

Clause 19 	Establishment
This clause establishes the ACT Integrity Commission. 

Clause 20 	Constitution of commission
This clause states that the Commission consists of the Commissioner. 

Clause 21 	Officer of the Legislative Assembly
This clause establishes the Commissioner as an independent officer of the Legislative Assembly. This clause is based upon those in the legislation of other Officers of the Legislative Assembly including the Auditor-General, Ombudsman and Electoral Commissioner. 

Clause 22	Independence of the commission
Based on similar provisions for other Officers of the Legislative Assembly, this clause establishes that, subject to this Act and to other territory laws, the Integrity Commission has complete discretion in the exercise of the commission’s functions.

Clauses 23-24 		Functions of Commission and Commissioner
Clause 23 and 24 provides the functions of the Integrity Commission and Commissioner. The functions of the Commission are to:
•	investigate conduct that is alleged to be corrupt conduct; and 
•	refer suspected instances of criminality or wrongdoing to the appropriate authority for further investigation and action; and
•	prevent corruption, including by— 
o	researching corrupt practices; and
o	mitigating the risks of corruption; and
•	publish information about investigations conducted by the commission, including lessons learned; and 
•	provide education programs about the operation of this Act and the commission, including providing advice, training and education services to— 
o	the Legislative Assembly and the public sector to increase capacity to prevent corrupt conduct; and 
o	the community about the detrimental effects of corruption on public administration and ways in which to assist in preventing corrupt conduct;
•	foster public confidence in, and to give leadership to, the Legislative Assembly and public sector.

In performing 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 conduct. However, this does not restrict the commission’s discretion to decide to investigate any matter that the commission considers may constitute corrupt conduct. The Commission must take into account the responsibility and role other public sector entities have in the prevention of corrupt conduct when exercising its functions. 

Part 2.2 – Commissioner—appointment
Part 2.2 of the Act concerns the process for commencing, suspending and ending the appointment of the Integrity Commissioner and if necessary, acting Commissioner. These provisions are based on similar provisions for other Officers of the Legislative Assembly.

Clause 25	Commissioner—appointment
This clause requires the Speaker, acting on behalf of the Territory, to appoint an Integrity Commissioner, after a detailed consultative process. It is based on appointment provisions for other Officers of the Legislative Assembly, which in turn where modelled on the requirements for the appointment of the Clerk under the Legislative Assembly (Office of the Legislative Assembly) Act 2012.

The Speaker must make the appointment in accordance with an open and accountable selection process. The Speaker must also consult with the Chief Minister, the Leader of the Opposition and the leader of any other party that is represented in the Assembly by at least two Members. The relevant Assembly committee must be consulted.

The Speaker must not appoint a person as commissioner unless the Speaker is satisfied that the person has extensive knowledge of, and experience in— 
•	criminal investigation or criminal adjudication; or 
•	law enforcement or the conduct of investigations; or 
•	public administration, governance or government.

Reflecting the independence of the Integrity Commissioner’s role, the Speaker must consult with the Legislative Assembly on the person’s appointment. The Legislative Assembly must approve the appointment, by resolution passed by a majority of at least 2/3rd of the members. 

An appointment is a disallowable instrument ensuring that the appointment reflects the view of and is approved by, the Assembly.

Eligibility for appointment is dealt with in clause 26.

Clause 26 	Commissioner—eligibility for appointment 
This clause provides that the Speaker may appoint a person as Commissioner with specific background and experience reflecting the requirements of the role. The person must have been a:
•	judge of the Supreme Court;
•	judge of the Supreme Court of a State or another Territory;
•	judge of the Federal Court; or
•	justice of the High Court.
The clause includes a further limitation on who can be appointed by preventing those with certain backgrounds from being appointed. The Speaker must not appoint a person as the commissioner if the person—
•	is or has, in the 5 years immediately before the day of the proposed appointment, been a member of—
o	the Legislative Assembly; or
o	the Parliament of the Commonwealth; or
o	the legislature of a State or another Territory; or 
•	is or has, in the 5 years immediately before the day of the proposed appointment, been a public servant; or
•	is or has, in the 5 years immediately before the day of the proposed appointment, been a member of—
o	a registered party; or
o	a political party registered under a law of the Commonwealth, a State or another Territory; or
o	a political party. 
•	has been convicted – 
o	in the ACT of an offence punishable by imprisonment for at least 1 year; or
o	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.

The purpose of this limitation is to ensure that the person who fulfils the role is free from any actual or perceived conflict of interest, given the unique position they hold, and to ensure public confidence in this new institution. 

Public servant is defined by the Legislation Act 2001 to mean a public servant employed in the ACT public service. The constitution of the public service is dealt with by section 12 of the Public Sector Management Act 1994 which provides that members of the ACT Public Service are—
•	the head of service;
•	the directors-general;
•	the executives; and
•	officers; and
•	other employees.

In effect this means that statutory office holders, such as the President, other Commissioners at the Human Rights Commission, or members of the ACT Civil and Administrative Tribunal are not public servants within the definition and so can be appointed to the position of Integrity Commissioner. 

Clauses 27-29	Commissioner—Term of appointment, oath or affirmation, disclosure of interests
These clauses provides that an appointment must not be for more than 7 years, that a person previously appointed as Integrity Commissioner cannot be reappointed if they have served the 7 years. This clause also provides for an oath or affirmation of office, and requires disclosure of interests by the Commissioner to the Speaker. These provisions are generally consistent with those applied to other Officers of the Legislative Assembly. 

Clause 30	Commissioner—must not do inconsistent work etc.
This clause requires that the Integrity Commissioner not have paid employment or engage in unpaid activity that is inconsistent with their functions. The inclusion of this clause acknowledges the role of the Integrity Commissioner may be exercised in a part-time or per diem capacity depending on the workload requirements to ensure the efficient and effective function of the Act. It allows the person appointed to engage in employment or unpaid work, as long as there is no inconsistency with their functions as the Integrity Commissioner. This clause is consistent with provisions applied to other Officers of the Legislative Assembly. 

Clauses 31-32	Commissioner—Resignation and Retirement 
These clauses outline that the appointment of the Integrity Commissioner may end including through resignation or retirement. 

Clause 32 allows the Speaker to retire the Integrity Commissioner on grounds of mental or physical incapacity of a kind that substantially affects the performance of the Commissioner’s functions. The Integrity Commissioner must consent and the retirement is subject to the superannuation circumstances of the Commissioner. 

Clauses 33-35 	Commissioner—suspension generally, suspension—relevant Assembly committee notice and meetings, and ending suspension
These clauses provide for the suspension of the Integrity Commissioner. The comprehensive procedure is based on that for other Officers of the Legislative Assembly and has been designed to ensure that the Integrity Commissioner is afforded procedural fairness for any potential suspension. The process also ensures the Legislative Assembly, through the relevant committee, is involved. 

Clause 36 	Commissioner—ending appointment
The Commissioner’s appointment can only cease if it expires, retirement under clause 32 or under this clause. This clause details a comprehensive process for how the Speaker may end the Commissioner’s appointment, which is designed to provide the Commissioner with procedural fairness and is based on that used for other Officers of the Legislative Assembly. 

The grounds for ending an appointment are
•	for misbehaviour; 
•	for physical or mental incapacity, if the incapacity substantially affects the exercise of the commissioner’s functions; or 
•	the commissioner becomes bankrupt or personally insolvent. 

The process requires that the Integrity Commissioner is provided an opportunity to respond in the event that the motion is moved in the Assembly to end their appointment.

The Speaker may also 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. 

Clause 37	Commissioner—leave of absence
This clause allows the Speaker to grant the Integrity Commissioner a leave of absence. 

Clause 38 	Commissioner—acting Commissioner 
This clause states how an Acting Commissioner can be appointed, including that the Integrity Commissioner is able to appoint an Acting Commissioner.  Ordinarily the Legislation Act 2001 provides that the person making the appointment is also responsible for acting appointments. In the case of the Integrity Commissioner it is appropriate that they be able to appoint a person to act in their place while they are on approved leave given the particular position of trust they are placed in and the nature of the role. This is generally the case for other officers of the Legislative Assembly. The ability to appoint a person to act in the position is only available where leave is approved by the Speaker and the Integrity Commissioner has consulted with the Speaker about their proposed acting appointment. It is designed primarily to cover ordinary leave that any employed person would take from time to time, for example recreational leave. In circumstances where there is no permanent appointee, it is the Speaker who will make the acting appointment; for which they must consult the relevant Assembly committee.

Part 2.3 – Commission—CEO
Clause 39 	CEO—appointment
The Commissioner must appoint a Chief Executive Officer (CEO) for the Commission for a maximum period of seven years. However, the Commissioner cannot appoint a person CEO if the person is or has, in the 5 years immediately before the day of the proposed appointment, been a public servant. In addition, the Commissioner cannot appoint a person as the CEO if the person has been convicted of an offence in the ACT, or outside the ACT in Australia or elsewhere of an offence that would be punishable by imprisonment for at least 1 year. 

Public servant is defined by the Legislation Act 2001 to mean a public servant employed in the ACT public service. The constitution of the public service is dealt with by section 12 of the Public Sector Management Act 1994 which provides that members of the ACT Public Service are—
•	the head of service;
•	the directors-general;
•	the executives;
•	officers; and
•	other employees.

In effect this means that statutory office holders, such as the President, other Commissioners at the Human Rights Commission, or members of the ACT Civil and Administrative Tribunal are not public servants within the definition and so can be appointed to the position of Integrity Commissioner. 

As a member of staff of the Commission, the CEO is also subject to the requirements of clause 48.

Clause 40 	CEO—term of appointment
This clause provides that an appointment must not be appointed for longer than 7 years and that a person who has been CEO for 7 years is not eligible for reappointment.

Clause 41	CEO—ending appointment
This clause states that the commissioner must end the CEO’s appointment if any of the following occur:
o	for misbehaviour;
o	for physical or mental incapacity, if the incapacity substantially affects the exercise of the CEO’s functions;
o	if the CEO becomes bankrupt or personally insolvent;
o	if the CEO is convicted, in the ACT, of an offence punishable by imprisonment for at least 1 year;
o	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.

Clause 42	CEO—functions
This clause provides for the CEO’s functions, which involves managing the administrative and financial operations of the Commission. The CEO is not subject to anyone other than the Commissioner.

Clause 43 	CEO—delegation
This clause details how the CEO may delegate their functions. The CEO can delegate their functions to another member of the staff of the commission or another person. If the CEO decides to delegate their functions to another person who is not a member of staff of the commission without being satisfied that the function needs to be exercised by a person who is not a member of staff of the commission.

Clause 44 	CEO—leave of absence
This clause outlines that the Commissioner may approve leave of absence for the CEO and that the Commissioner may appoint a person to act as CEO for a period of leave of absence approved under sub-clause (1).

Part 2.4 – Commission—staff
Part 2.4 sets out how the Integrity Commission may engage staff.

Clause 45	Meaning of staff of the commission
This clause defines the meaning of staff of the commission, including the CEO, staff, consultants and contractors.

Clause 46	Commission employed staff
This clause allows the Integrity Commission to employ staff, and provides for staff of the Commission to be employed under the Public Sector Management Act 1994, which regulates the employment of ACT public sector employees.

Clause 47	Commission consultants and contractors 
This clause allows the Commission to engage contractors or consultants. 

Clause 48	Staff of the commission—eligibility for appointment 
The Commission cannot appoint a person as a staff member if that person is not suitable to be a member of staff of the commission. This clause provides the commission with the ability to ask a prospective staff member to undertake the following to assist in determining whether a person is suitable to be a member of staff of commission:
•	provide a police certificate;
•	declare personal interests the inspector considers relevant;
•	undergo a medical or psychological assessment;
•	make a statutory declaration in relation to matters determined by the inspector to be relevant to the person’s suitability;
•	anything else the commissioner considers is necessary to decide whether a person is suitable.

Clause 49 	Staff of the commission—not subject to direction from others
This clause provides for the independence of Commission staff, who may only be directed by the Commissioner or another member of the commission staff authorised by the commissioner to give directions.

Clauses 50-51	Delegation by commission and commissioner	
These clauses detail how the Commission and Commissioner may delegate their functions. This ensures that delegations can be given to staff to assist the Commission in its functions.

Clause 52	Commission—other arrangements for staff and facilities 
This clause allows the Commissioner to arrange with the Head of Service to use the services of a public servant or Territory facilities. The inclusion of this provision supports the Commission in the efficient and effective management of its functions, particularly regarding administrative, secretariat or specialised public service staff support or expertise.

The Commissioner can also arrange with the Speaker to use Territory facilities within the Assembly precincts, such as the Legislative Assembly hearing rooms.

Part 2.5 – Commission—cooperation with other entities 
Clause 53	Commission—cooperation with other entities
This clause requires the Commission to work cooperatively with public sector entities in order to avoid duplication of effort and to also co-ordinate the activities of other organisations with similar functions.  

Clause 54 	Commission—arrangements with other entities 
This clause allows the Commission to enter into an arrangement with another entity that will assist the Commission in relation to investigations or the exercise of other functions of the commission. This may include assisting the entity by providing services within the commission’s field of expertise.

Chapter 3	Commission—Investigating corrupt conduct
Part 3.1 – Reporting corrupt conduct
Part 3.1 deals with the reporting of corrupt conduct to the Commission.

Division 3.1.1 – Corruption complaints 
Clause 55	Anyone may make corruption complaint
This clause outlines how anyone can make a complaint to the Commission about conduct that may be corrupt conduct. 	

Clause 56	How to make a corruption complaint 
This clause provides that corruption complaints may be made orally or in writing, using any form of electronic communication and can also be made anonymously.

Clause 57	Other entities may refer corruption complaints
This clause provides that certain other entities may refer corruption complaints to the Commission.

Clause 58	Withdrawal of corruption complaints
This clause provides how a complainant may withdraw a complaint, including that the Commission may continue to investigate the subject matter of the complaint.

Division 3.1.2 – Mandatory corruption notifications by public sector entities
Clause 59 	Meaning of mandatory corruption notification 
This clause covers what a mandatory corruption notification means. 

Clause 60	Mandatory corruption notification—heads of public sector entities
This clause mandates that the head of a public sector entity must notify the commission about any matter the head of the entity suspects on reasonable grounds involves serious corrupt conduct or systemic corrupt conduct. This is consistent with the recommendations of the Select Committee. 

The Chief Police Officer is not required to notify the Integrity Commissioner if a matter is being dealt with by the Australian Law Enforcement Integrity Commissioner.

Clause 61	Mandatory corruption notification—MLAs and Staff
This clause mandates that 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 another member of the Legislative Assembly or a member of staff of a MLA. 

It also mandates that a member of staff of a MLA must notify the commission about any matter the member of staff suspects on reasonable grounds involves serious corrupt conduct or systemic corrupt conduct by a member of the Legislative Assembly, or another member of staff of a MLA. 

Clause 62	Directions about mandatory corruption notifications
This clause provides that the Commission may make mandatory corruption notifications directions which a head of a public sector entity, member of the Legislative Assembly and member of staff of a MLA must follow.  The notifications directions will be a notifiable instrument and published on the Commission website.  The Auditor‑General, ACT Ombudsman and ACT Electoral Commissioner, Human Rights Commissioner and the Speaker are excluded.

Division 3.1.3 – Reports must be dismissed, referred or investigated 
Clause 63 	Meaning of corruption report
This clause defines a corruption report as a corruption complaint or a corruption notification.

Clauses 64-65	Commission must dismiss, refer or investigate corruption reports
As recommended by the Select Committee, clauses 64 and 65 provides that the Commission must dismiss, refer or investigate corruption reports. The requirements to triage reports are based on relevant provisions of the Victorian Independent Broad-based Anti-corruption Commission Act 2011. 

These provisions ensure that the Commission can refer complaints to other entities more suitable to handle them, while retaining the ability to investigate potential serious or systemic corrupt conduct.

Division 3.1.4 – Commission must keep people informed
Clauses 66-69	Commission obligations to keep certain persons informed
These clauses provide for how the Commission is to keep certain people informed about the progress of complaints and notifications. These processes are based on provisions in the ACT Public Interest Disclosure Act 2012 and the Victorian Independent Broad-based 
Anti-corruption Commission Act 2011.

The Commission must keep complainants and referring entities informed about certain aspects of its handling of a corruption complaints or notifications, including where the Commission has dismissed, referred or investigated a complaint. However, information to a complainant must be accompanied by a written statement telling the complainant that it is an offence to disclose the information.

The Commission must also not tell a person about a matter in clauses 66, 67 or 68 if
•	telling the person would be likely to adversely affect— 
o	a person’s safety; or 
o	an investigation under this Act; or 
•	telling the person— 
o	would identify another person who has given information in relation to a corruption report; or 
o	could allow the identity of the person to be worked out; or 
•	telling the person would be contrary to a law in force in the ACT. 

Part 3.2 – Confidentiality notices
Part 3.2 provides for how the Integrity Commission is to conduct preliminary inquiries and investigations in a confidential manner including directing certain persons to keep restricted information confidential. These protections are to protect individual’s right to privacy and reputation and to avoid prejudicing a person’s right to fair trial. These provisions are based on the recommendations of the Select Committee that the Commission have the power to conduct preliminary investigations that do not include the use of coercive authority and that an accused’s right to fair trial is not prejudiced.   

Clause 70	Meaning of restricted information
This clause defines restricted information, which are matters that the Commission can direct a person not to disclose under the Bill, and includes any of the following:
•	evidence or information given to, or obtained by, the commission;
•	the contents of a document, or a description of a thing, produced to, or obtained by, the commission;
•	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 (Powers of entry, search and seizure);
•	the existence of, or any information about, a confidentiality notice, preliminary inquiry summons or examination summons; 
•	the subject matter of a preliminary inquiry or investigation;
•	information that would identify a person, or could allow the identity of a person to be worked out, who—
o	has been or is proposed to be examined by the commission; or
o	has produced or may produce a document or thing to the commission;
•	the fact that a person—
o	has been or is proposed to be examined by the commission; or
o	has produced or may produce a document or thing to the commission.

Clause 71	Meaning of confidentiality notice
This clause defines a confidentiality notice, which is given by the Commission under the Bill, directing the person to not disclose a restricted matter.  

Clause 72 	Confidentiality notices for preliminary inquiries
This clause provides that the Commission may give a confidentiality notice to a person about restricted information if, during a preliminary inquiry, the commission— 
•	gives a preliminary inquiry summons to a person; and 
•	considers on reasonable grounds that the disclosure of a restricted matter would be likely to prejudice the preliminary inquiry. 

The provision also protects the Commission’s investigations by preventing witnesses from disclosing information about restricted matters that could undermine an ongoing covert investigation. These powers of preliminary inquiry provided to the Integrity Commission mirror the Victorian IBAC model.

Clause 73 	Confidentiality notices for investigations
This clause provides that the Commission may give a confidentiality notice to a person about restricted information if, during an investigation, the Commission considers on reasonable grounds that the disclosure of restricted information would be likely to prejudice the —
•	investigation; or 
•	safety or reputation of a person; or 
•	fair trial of a person who has been, or may be, charged with an offence. 

Clause 74 	Confidentiality notices—content
This clause requires that the Commission must include certain information in a confidentiality notice including the details of the obligations on the person. 

Clause 75	Meaning of permitted disclosure of restricted information—Part 3.2
This clause states when a person may make a permitted disclosure of restricted information and to whom they can make the disclosure to. 

Clause 76 	Confidentiality notices—amendment and revocation
This clause provides for how the Commission may amend and revoke a confidentiality notice. The Commission must make the application to the Supreme Court. 

Clause 77	Confidentiality notices—extension 
This clause provides for how the Commission may apply to the Supreme Court for an extension of the confidentiality notice.

The Supreme Court is an appropriate arbitrator because they are a neutral third-party that have no vested interest in the Commission’s investigation.

Clause 78 	Confidentiality notices—expiry
Under this clause, confidentiality notices expire:
•	if the confidentiality notice is revoked under section 76—the day the commission issues the notice revoking the confidentiality notice;
•	if the confidentiality notice is not revoked under section 76—
o	3 years after the day on which the confidentiality notice was issued; or
o	if an extension is granted under section 77, the day on which the extension expires.

This is because a blanket prohibition on disclosing information would be an unreasonable limitation on freedom of expression under the HRA.

Clause 79	Confidentiality notices—commission must notify inspector
This clause requires the Commission to, as soon as reasonably practicable, give the Inspector a copy of either a confidentiality notice issued by the commission, a notice revoking a confidentiality notice, an application to the Supreme Court under clause 77(1) to extend the period of a confidentiality notice and clause 77(2) extending the period of a confidentiality notice. 

Clause 80	Offence—disclose restricted information in confidentiality notice
This clause creates an offence for a person given a confidentiality notice about a restricted matter that has not expired to disclose the restricted matter. 

The offence under clause 80(1) does not apply if a person makes a permitted disclosure in accordance with a direction or authorisation given by the commission.

Clause 80 also does not apply if a person makes a permitted disclosure, and the permitted disclosure is not identified as a prohibited disclosure in the confidentiality notice. When making the permitted disclosure, the person tells the recipient that disclosure of the information may be an offence and the recipient is given a copy of the confidentiality notice. 

A person commits an offence if the person is the recipient of a copy of a confidentiality notice about restricted information as a result of someone making a permitted disclosure to the person, the confidentiality notice has not expired and the person discloses the restricted information.  

Part 3.3 – Preliminary inquiries
Part 3.3 deals with preliminary inquiries made by the Integrity Commission. This is consistent with the Select Committee’s recommendation that the Commission have the power to conduct preliminary investigations that do not include the use of coercive authority as witnesses retain their rights to claim privilege. 

The purpose of a preliminary inquiry is to conduct an investigation into a complaint to determine if a full investigation using coercive powers is warranted.

Clauses 81-82	Preliminary inquiries about corruption reports and on inquiries about own initiative matters
These clauses provide that the Commission may carry out preliminary inquiries about whether to dismiss, refer or investigate a corruption report, or decide whether to investigate a matter of its own initiative. 

Clause 83	Certain powers not to be used for preliminary inquiries
This provision prevents the Integrity Commission using its powers to do the following in carrying out a preliminary inquiry:
•	use the powers in Part 3.5 (Entry, search and seizure); or
•	use the powers in Part 3.6 (Examinations); or
•	authorise or conduct a controlled operation under the Crimes (Controlled Operations) Act 2008; or
•	apply for a surveillance device warrant under the Crimes (Surveillance Devices) Act 2010; or 
•	use an assumed identity under the Crimes (Assumed Identities) Act 2009.
The Commission is therefore unable to use these coercive powers during the preliminary inquiry stage.

This ensures any limitation on human rights inherent in those powers is the least restrictive limitation possible to achieve the important aim of the Commission being able fulfil its role in investigating allegations of corrupt conduct. 

Clause 84 	Power to request information from head of public sector entity
This clause provides that in carrying out a preliminary inquiry, the Integrity Commission may ask the head of a public sector entity to provide information to the commission that the commission considers relevant to the preliminary inquiry. The head of the public sector entity must comply with the request within a reasonable time, being not less than 7 days after receiving the request.

The head of the public sector entity need not comply with the request if the head of the public sector entity advises the commission of a reasonable excuse for not doing so.

As a further protection, 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.

Clause 85 	Power to issue preliminary inquiry summons 	 
This clause specifies the power to issue a preliminary inquiry summons requiring the person to appear before the Commission to produce a document or other thing to assist the Commission in undertaking its preliminary inquiry. Sub-clause 2 outlines a number of considerations that the Commission must have regard to when determining whether it is reasonable to issue the summons. These considerations are provided in clauses (a) to (e). 
The Commission may issue a preliminary inquiry summons to a person under the age of 18 years, however the Commission will need to consider whether there are reasonable grounds to do so. This may include that the information, document or thing that the person could provide may be compelling and probative evidence, and it may not be practicable to obtain the information, document or thing in another way.

The person is not required to appear before the Commission if the requested document or other thing is provided to the Commission before the required time. Where a person complies with the conditions of a preliminary inquiry summons, they have the same protection and immunity as a witness has in a proceeding within the Supreme Court.

The purpose of a preliminary inquiry summons is not to require a person to appear before the Commission to give oral evidence.

Clause 86 	Preliminary inquiry summons—content 	
This clause specifies that the preliminary inquiry summons must require the person to appear before the Commission at a stated time and place, and to produce or provide to the Commission any document or other thing in the summons that is within the person’s possession or control. Sub-clause 2 outlines the required content of the preliminary inquiry summons. 

This provision ensures that persons issued with confidentiality notices are aware of their legal rights and obligations during a preliminary inquiry. This will assist them when seeking legal advice.

Clause 87 	Preliminary inquiry summons—commission must notify inspector 	
This clause outlines that where the Commission issues a preliminary inquiry summons, the Commission must advise the inspector about the issuing of any preliminary inquiry summons. This advice must be provided in writing and include the name of the person summoned and the circumstances why the summons was issued.

Clause 88 	Preliminary inquiry summons—person under 16 years 	
This clause outlines that a preliminary inquiry summons directed at a person under the age of 16 years has no effect. The Commission can require a person under the age of 16 years to provide evidence of proof of age.

This clause protects the rights of children.

Clause 89 	Preliminary inquiry summons—notice and immediate attendance 	
This clause outlines that a preliminary inquiry summons must be served on a person at least 7 days prior to the person being required to appear before the Commission. The Commission can issue a preliminary inquiry summons requiring a person’s immediate appearance before the Commission. Under these circumstances, the Commission must consider whether there are reasonable grounds for requesting an immediate appearance of a person. The Commission must be satisfied that any delay in the person’s appearance is likely to result in the following:

(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 preliminary inquiry. 

Clause 90 	Preliminary inquiry summons—service
This clause outlines that the Commission may apply to the Supreme Court for an order that a preliminary inquiry summons be served, where it is not reasonably practicable to serve a preliminary inquiry summons on a person under clause 89. For example, where the person has no known physical address, but they can be located on social media.

Where the Supreme Court is satisfied that it is not reasonably practicable to serve a preliminary inquiry summons, an order may be made for the summons to be served in another way considered appropriate. Alternatively the Supreme Court may make an order for substituted service. 

Clause 91 	Preliminary inquiry summons—first actions to be taken 	
This clause specifies a number of requirements that must be met prior to a witness appearing before the Commission. These are provided in clauses (a) to (e).

Clause 92 	Preliminary inquiry summons—claiming privilege or secrecy 	
This clause specifies that the claimant must appear before the Commission according to the preliminary inquiry summons. A person may claim that a document or other thing is subject to privilege or cannot be disclosed due to a secrecy requirements under a Territory law. The Commission is required to consider the claim for privilege or secrecy. The Commission may withdraw the requirement to produce the document or other thing. Alternatively, the Commission may refuse to withdraw the requirement and require the claimant to secure the document or other thing in a sealed envelope and give it to the Commission. The Commission will not inspect the document or other thing.

Persons can claim privilege or secrecy during a preliminary inquiry because waiving the right to claim these protections is akin to a coercive power. As per the Select Committee’s recommendations, it is inappropriate to subject persons to coercive powers during the preliminary inquiry stage.

In this section, privilege does not including parliamentary privilege. Parliamentary privilege is covered in clause 176.

Clause 93 	Preliminary inquiry summons—application to Supreme Court to decide privilege or secrecy 	
This clause outlines that where a claim for privilege or secrecy is made, and a document or thing is secured, the Commission must give the secured document or other thing to the Supreme Court. Within 7 days, the Commission must apply to the Supreme Court for a determination of the claim. The Commission is required to give notice of the application to the claimant. The claimant is entitled to appear before the hearing of the application in the Supreme Court. If within 7 days, the Commission does not make an application to the Supreme Court, the secured document or other thing must be returned to the claimant. 

It is appropriate for the Supreme Court to determine a contested privilege claim because they are a neutral third party that has no interest in the outcome of the Commission’s preliminary inquiry.

This approach is known as a bare claim of privilege.

Clause 94 	Preliminary inquiry summons—Supreme Court to decide privilege or secrecy 
This clause specifies that the Supreme Court must determine whether the document or other thing is the subject of privilege or a secrecy requirement under a Territory law. The Supreme Court may be required to open and inspect the secured document or other thing to consider the matter.

If the Supreme Court decides that the document or other thing is subject to privilege or a secrecy requirement, an order must be made returning the document or other thing to the claimant. However if the Supreme Court decides that the document or other thing is not subject to privilege or a secrecy requirement, an order must be made requiring document or other thing to be provided to the Commission.

Clause 95 	Preliminary inquiry summons—offence to open secured document or other thing
This clause specifies that it is an offence to open a secured document or other thing if the conditions outlined in clauses 95(2)(a) and (b) are met. 

Clause 96 	Preliminary inquiries—application of Criminal Code, ch 7 
This clause confirms that a preliminary inquiry of the Commission is considered a legal proceeding for the purposes of the Criminal Code, Chapter 7 (Administration of justice offences). This clause engages the offence procedures in Chapter 7 such as falsifying evidence, destroying or concealing evidence and failing to produce a document or other thing.

Part 3.4 – Conducting an investigation 
This part outlines requirements for starting an investigation including when the Commission may investigate certain matters and when the Commission must investigate certain matters on its own initiative. The part also covers Commission’s investigations while court proceedings are underway and the conduct of joint investigations. The Commission may decide to carry out a preliminary inquiry in order to determine whether to dismiss, refer or investigate a corruption report.

Division 3.4.1 – Starting an investigation
Clause 97 	Commission may investigate corruption report 
This clause outlines that the Commission may conduct investigations if it receives a corruption report and it is suspected that there are reasonable grounds for the conduct to be considered corrupt conduct.

Clause 98 	Commission may investigate on own initiative
This clause outlines that the Commission may conduct an own-motion investigation if it suspects there to be reasonable grounds for the conduct to be considered corrupt conduct. It is the Commission’s prerogative to determine whether a preliminary inquiry may assist in determining whether to investigate the matter any further.

Clause 99	Investigation may be conducted during court proceeding
This clause acknowledges that the Commission may still carry out is statutory functions even though a civil or criminal proceeding by a court or tribunal may be underway. The Commission can decide whether to:

•	commence or continue an investigation;
•	discontinue or complete an investigation; or
•	provide a report about an investigation.
However, the Commission is required to take reasonable action to avoid prejudicing any court or tribunal proceeding through the Commission’s own actions. This may include the Commission not issuing a confidentiality notice during the other proceeding or defer giving a report about the Commission’s investigation until the proceeding has been completed.

Clause 100	Investigation may be conducted as joint investigation
This clause provides for the Commission to undertake investigations in coordination with any integrity body or law enforcement agency for the purposes of, or in connection with, its investigative functions under this Bill. 
A joint investigation may be conducted as the Commission sees fit.
In conducting such a coordinated investigation, the Commission can—
•	consult, coordinate and cooperate with any integrity body or law enforcement agency which is, in accordance with that body's or agency's own duties, function and powers, conducting an investigation in respect of the same matter or similar or related matters;
•	in accordance with clause 194, provide or disclose information to an integrity body or law enforcement agency with which the Integrity Commission is conducting a joint investigation;
•	receive information from an integrity body or law enforcement agency with which the Integrity Commission is conducting a joint investigation;
•	enter into a memorandum of understanding or an agreement with any integrity body or law enforcement agency in relation to the conduct of coordinated investigations with that integrity body or law enforcement agency.

Division 3.4.2 – Referring matters to another entity 
This Division provides for the Integrity Commission to make referrals to other persons or bodies in certain circumstances. 

Clause 101 	Commission must refer corruption reports about staff to inspector 
This clause provides that the Commission must refer corruption reports about the Commissioner, Chief Executive Officer or commission staff to the Inspector.

Clause 102 	Meaning of referral entity 
This clause defines a referral entity. 

Clause 103 	Commissioner may refer corruption reports to referral entity 
This clause allows the Integrity Commission to refer a corruption report to specified persons or bodies who have power to investigate the subject matter of the complaint or notification, and where the Integrity Commission considers that it would be more appropriate that it be investigated by that other person or body.

This clause provides that the Integrity Commission must consult with the referral entity before deciding to make a referral.

Clause 104	Referral to referral entity—results and actions
This clause enables the Integrity Commission to oversight a matter that has been referred to ensure that it is properly dealt with. The Commission may ask referral entities to report on what outcome was taken and the action taken, or proposed to be taken, in relation to the corruption report. 

While the Commission cannot compel a referral entity to take any particular action in relation to a referral, the Commission retains the ability to investigate the matter itself and to make public comment in relation to whether a referral was dealt with. If an independent entity does not investigate a matter it has been referred, the Integrity Commission may decide this gives it good reason to investigate the matter itself, depending upon the seriousness of the matter and the Integrity Commission’s priorities and resources.

Clause 105	Referral to referral entity—Withdrawal of referral
This clause allows the Integrity Commission to withdraw referrals from certain referral entities. Where the Integrity Commission has made a referral to which this section applies, it may determine to investigate the corruption report under Division 3.4.1 of this Bill (Starting an investigation), and withdraw the referral by providing written notice to the person or body to whom the referral was made.

Where a person or body receives notice of such a withdrawal, it must cease its investigation of the referred complaint or notification, and provide the Integrity Commission with any evidence it has in its possession or control, and cooperate with the Integrity Commission and ensure its officers provide all reasonable assistance requested by the Integrity Commission, in relation to the complaint or notification that was referred. There are some referral entities where a referral cannot be withdrawn by the Integrity Commission – these are outlined in sub-clause 3. 

Clause 106 	Commission may refer matters to prosecutorial body
This clause provides for the Integrity Commission to refer a matter to a prosecutorial body. The Integrity Commission may do this at any time, if it considers it appropriate and that it is relevant to the exercise of prosecutorial body’s functions. The clause also provides that the Integrity Commission may enter into a memorandum of understanding or an agreement with a prosecutorial body in relation to the practices and procedures for referrals.

Division 3.4.3 – Discontinuing an investigation
Clause 107 	Discontinuing an investigation
This clause provides that the commission is required to discontinue an investigation if it is satisfied that there are reasonable grounds to do so having considering the matters in clause 65 (When corruption reports must be dismissed).

Part 3.5 – Powers of entry, search and seizure 	
This part covers the role and powers of investigators, the issuing of search warrants and requirements for returning and forfeiting of things that have been seized.

Division 3.5.1 – Investigators
Clause 108 	Investigators—appointment	 
This clause allows the Commission to appoint a member of staff of the Commission as an investigator. This clause also provides the Commissioner is an investigator.

Clause 109 	Investigators—identity cards		
This is a standard clause for persons who represent and exercise coercive functions on behalf of a statutory body. It provides that an investigator appointed under clause 108 be issued an ‘identity card’ which persons can view in order to satisfy themselves that a person claiming to be an investigator is in fact an investigator. The clause also requires a person to return an identity card if they are no longer an investigator and makes it an offence not to do so. To provide an incentive to ensure this obligation is taken seriously, a small maximum penalty of 1 penalty units ($150) applies to a failure to return the card unless it has been lost, stolen or destroyed by someone else. 

Clause 110 	Investigator must show identity card on exercising power		
This clause provides that an investigator must show their identity card on exercising a power under this Act.

Division 3.5.2 – Powers of investigators 	
Division 3.5.2 outlines the powers provided to investigators of the Commission. In addition to the powers provided in this division, the Commissioner also has powers under other legislation including:
•	Crimes (Assumed Identities) Act 2009;
•	Crimes (Controlled Operations) Act 2008; and
•	Crimes (Surveillance Devices) Act 2010.

Clause 111 	Definitions—Part 3.5 	
This clause outlines the definitions of corrupt conduct, occupier, premises and warrant, which are covered in this part. 

Clause 112	Power to enter premises 	
This clause specifies the investigator’s power to enter public premises at any reasonable time, or a premises with the occupier’s consent at any time, or according to the requirements of a search warrant. The investigator may enter the premises using any necessary and reasonable assistance or force according to the search warrant. Under this power, the investigator may enter land around the premises, without the occupier’s consent, in the interests of asking the occupier for consent to enter the premises. The investigator is not required to pay an entry free or other charge to enter the premises. The terms ‘at any reasonable time’ and ‘necessary assistance’ are defined in this clause.

Clause 113 	Production of identity card 	
This clause specifies that an investigator must provide their identity card when asked by the occupier, otherwise it is not possible for the investigator or any other persons assisting the investigator (other than a police officer) to remain at the premises.

Clause 114 	Consent to entry 	
This clause specifies that when seeking the occupier’s consent to enter the premises, an investigator must produce their identity card and provide the occupier with the following information:
•	the purpose of the entry;
•	the reason for and identity of any other people assisting the investigator at the time; 
•	that anything found and seized which may be used in evidence in court (or as party of the Commission’s investigation); and
•	that consent may be refused.
Where the occupier consents to the entry, the investigator is required to ask the occupier to sign a written acknowledgement form to confirm that consent was provided. A copy of the acknowledgement of consent must be provided to the occupier at the time it is signed.

Clause 115 	General powers on entry to premises 	
This clause outlines the general powers provided to investigators when entering premises. Investigators may undertake the following activities:
•	inspect or examine; 
•	take measurements or conduct tests; 
•	take samples; 
•	make sketches, drawings or any other kind of record;  and
•	require the occupier, or anyone at the premises, to give the investigator reasonable help to exercise any of these powers. 

A penalty of 50 units applies where a person does not take all reasonable steps to comply with investigator’s direction to give the investigator reasonable help to exercise a power under this part. 

Clause 116 	Power to seize things 	
This clause provides the power to seize anything from the premises which is consistent with the purpose of the entry and authorised under the search warrant to assist with the commission’s investigation. Where a thing has been seized by the investigator, the thing may be removed from the premises to another place, or the investigator may leave the thing at the place of seizure, however the investigator may restrict access to it.
It is considered an offence if a person interferes with a seized thing which has been restricted by the commission, or where the investigator’s approval to interfere with the thing has not been provided. The offence is a strict liability offence.

Division 3.5.3 – Search warrants 	
Clause 117 	Warrants—generally 	
This clause outlines that an investigator may apply to a magistrate for a warrant to enter premises. The magistrate may require certain information to be provided before the magistrate agrees to the application. Sub-clause 4 outlines the conditions that must be met for the magistrate to be satisfied that there are reasonable grounds for the search warrant. Sub-clause 5 provides the content of the search warrant.

Clause 118	Warrants—application other than in person 	
This clause outlines how an investigator can request a search warrant from a magistrate if there are urgent or some other special circumstances. The investigator must prepare an application for the warrant outlining the grounds that the warrant is needed. The magistrate will provide a written copy of the warrant to the investigator. However if this is not practicable to do so, the investigator must complete a warrant form and include the necessary information approved by the magistrate as well as the warrant’s terms. A copy of the written warrant or the warrant form provides sufficient authorisation for the commission to enter and exercise investigative powers. The investigator is required to send the sworn application or the completed warrant form to the magistrate.

Clause 119	Search warrants—announcement before entry 	
This clause provides the conditions that need to be met before the investigator enters the premises. Prior to entering a premises using a search warrant, an investigator must do the following:
•	announce that the investigator is authorised to enter the premises;
•	provide anyone at the premises an opportunity to allow entry;
•	identify themselves to the occupier or someone who represents the occupier.
If there are reasonable grounds that necessitates the immediate entry to the premises, the investigator is not required to make the above announcement.

Clause 120 	Details of search warrant to be given to occupier etc 	
This clause specifies that the investigator or person assisting the investigator must make available to the occupier, or a person representing the occupier, a copy of the warrant and a document outlining the occupier’s rights and obligations.

Clause 121 	Occupier entitled to be present during search etc 	
This clause specifies that the occupier or someone representing the occupier is entitled to observe the search being conducted if they are present at the time that the search warrant is being executed. This person or persons are not entitled to observe the search if they are likely to impede the search, or, if they are under arrest and they may interfere with the search. Two or more areas of the premises may be searched at the same time.

Clause 122	Search warrants—claiming privilege
This clause outlines that the investigator must consider any claim for privilege and must not inspect the document or other thing. A document or other thing is considered secured if it is in a sealed envelope. When the claim for privilege is known by the investigator, they must stop exercising the power provided under the search warrant, or require the claimant to secure the document or thing immediately and give it to the investigator. The investigator is unable to inspect the document or thing in the envelope. 

In this section, privilege does not including parliamentary privilege. Parliamentary privilege is covered in clause 176.

Clause 123 	Search warrants—application to Supreme Court to decide privilege
This clause outlines that where a claim for privilege is made under clause 122, and a document or thing is secured, the investigator must notify the Commissioner about the claim as soon as possible. The investigator is required to give the secured document or other thing to the Supreme Court.

Within 7 days of the Commissioner being notified, the Commission must apply to the Supreme Court for a determination of the claim. The Commissioner is required to give notice of the application to the claimant. The claimant is entitled to appear before the hearing of the application in the Supreme Court.

It is appropriate for the Supreme Court to determine a contested privilege claim because they are a neutral third party that has no interest in the outcome of the Commission’s examination.

This approach is known as a bare claim of privilege.

Clause 124 	Search warrants—Supreme Court to decide privilege 
This clause specifies that the Supreme Court must determine whether the document or other thing is the subject of privilege. The Supreme Court may open and inspect the secured document or other thing to make a determination on this matter. If the Supreme Court decides that the document or other thing is subject to privilege, the document or other thing must be returned to the claimant. However if the Supreme Court decides that the document or other thing is not subject to privilege, the document or other thing must be returned to the Commission.

Clause 125 Search warrants—offence to open secured document or other thing
This clause specifies that it is an offence to open a secured document or other thing if the conditions outlined in sub-clauses (2)(a) and (b) are met. A person commits an offence if they open or otherwise inspect the secured document or other thing and are not authorised to do so.

Division 3.5.4 – Return and forfeiture of things seized
Clause 126 	Receipt for things seized 	
This clause specifies that after a thing is seized, the investigator must provide a receipt to the person to whom it was seized. Where this is not possible, the investigator must leave the receipt at the place of seizure. The contents of the receipt must include the requirements outlined in clauses (a) to (d).

Clause 127 	Moving things to another place for examination or processing under search warrant 	
This clause outlines that a thing seized may be moved to another place for examination or processing in order to determine whether it can be seized under the search warrant, if the following conditions are met:
(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 assistance.

Alternatively the occupier of the premises may agree in writing to the seized thing to be moved to another place for examination or processing.

The seized thing can only be moved to another place for no longer than 72 hours, unless an investigator applies to a magistrate for an extension of time. The occupier or occupier’s representative can be present during the examination or processing of the seized thing.

Clause 128 	Access to things seized 	
This clause outlines that a person entitled to undertake the examination or processing of the seized thing can inspect it, photograph it or take extracts from it or make any necessary copies to assist in carrying out this function.

Clause 129 	Return of things seized 	
This clause outlines that a thing seized must be returned to its owner otherwise the Territory must pay a reasonable compensation to the owner, unless the following occurs:
•	a prosecution for an offence against a Territory law has begun within 1 year and the thing is required to be used as evidence in the prosecution; 
•	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; or
•	all proceedings in relation to the offence with which the seizure was connected have ended and the court has not made an order about the thing. 
The Commissioner may have a view that the practical use of the thing at the premises it was seized or the possession of the thing is an offence against a Territory law. If this is the case, the requirement to return the thing seized does not apply.

Clause 130 	Forfeiture of seized things 	
Clause 130 outlines that the seized thing is forfeited to the Territory and may be sold, destroyed or disposed of as directed by the Commissioner. This occurs if the seized thing has not been returned or an application for disallowance of the seizure has not been made, or application has been refused or withdrawn.

Clause 131 	Application for order disallowing seizure 	
This clause outlines that an application may be made to the Magistrates Court for an order disallowing the seizure. A person claiming to be entitled to the seized thing must make the application within 10 days after the date the thing was seized. The Magistrates Court may consider the application if the applicant has served a copy of it to the Commissioner. As part of the hearing for the application by the Magistrates Court, the Commissioner is entitled to appear as the respondent.

Clause 132 	Order for return of seized thing 	
This clause specifies that the Magistrates Court is to make an order to disallow a seizure if it is satisfied that the following conditions have been met:
(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.
In certain circumstances, the Magistrates Court may make an order to disallow a seizure along with ancillary orders outlined in paragraphs (4)(a) to (c).

Division 3.5.5 – Miscellaneous
Clause 133 	Damage etc to be minimised 	
This clause requires the investigator to take reasonable and practicable steps to reduce the level of inconvenience, detriment and damage caused as part of exercising the functions under this part. Where there has been a damage to a particular item by the investigator during a search, a written notice must be provided to the owner of the item providing details specified in paragraphs (3)(a) to (c).

Clause 134 	Compensation for exercise of enforcement powers 	
This clause outlines that a claim for compensation from the Territory may be made where a person suffers loss or expense due to the enforcement powers that were exercised. A court may consider that payment of reasonable compensation for the loss or expense if it is justified, if the court is satisfied that it is just to make the order having assessed the circumstances presented. A regulation may prescribe matters for consideration by the court.

Part 3.6 – Examinations 	
Part 3.6 covers examinations, privilege matters, contempt of the commission and other provisions associated with examinations.

Division 3.6.1 – Examinations
Clause 135 	Power to hold examination 	
This clause provides the power for the commission to hold examinations for an investigation.

Clause 136	Commissioner to preside 	
This clause requires that the Commissioner to preside over examinations.

Clause 137 	Conduct of examination 	
This clause outlines the requirements that apply for examinations. The commission is required to comply with the rules of natural justice and procedural fairness. However the commission is not bound by the rules of evidence. The commission can inform itself in any way that it considers is appropriate and may determine its own examination procedures in order to undertake its statutory functions in an effective and efficient manner. There is a legislative obligation for the commission to undertake examinations with little formality and technicality. Written submission must be accepted and examinations must not have an adversarial approach where possible.

Clause 138 	Examinations may be public or private 	
This clause provides for the ability for an examination to be held in public or in private. In deciding whether to hold an examination in public or in private, the Commission must consider whether it is in the public interest to hold a public examination, and such an examination can be held without unreasonably infringing on a person’s humans rights. The public interest test considerations are outlined in paragraphs (3)(a) to (c). 

It is not necessary to require the Commissioner to provide reasons for every decision to hold a public examination. If a witness feels a decision to hold a public examination was not appropriate, they can request a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 or request the Commissioner to reconsider their decision to hold a public examination.

Clause 139 	Commission must notify the inspector of public examination 	
This clause provides that the commissioner must notify the inspector of its intention to hold a public examination and the reasons why. 

Clause 140 	Offence to be present at examination not open to public 	
This clause provides for it to be an offence for certain people to be present at a private examination. Present includes being remotely present. The following people can be present at a private examination:
•	the Commissioner, CEO, or a member of staff of the commission;
•	a lawyer, or other person, engaged by the commission to assist the commission in the examination;
•	the Inspector, or a member of the staff of the inspector;
•	people attending in accordance with an examination summons; 
•	a lawyer representing a person who is attending in accordance with an examination summons; 
•	people entitled to be present under a direction given by the commission.
It is considered an offence for all other persons not meeting the above criteria to be present or remotely present at the private examination.

Clause 141 	Commission may give directions 	
This clause provides the commission with the ability to give directions about the people who may be present and must not be present during an examination or part thereof. A direction can provide that a person can be remotely present. A direction cannot prevent the presence of certain people when evidence is being taken – these are outlined in clause 141(3)(a) to (d).

A person appearing before a public examination may request the commission to consider making a direction for the examination, or part thereof, to be held in private. The commission is required to hear the arguments about this request, in private, unless the commission is of the view that there are valid reasons to believe the request is vexatious or without merit.

If a witness feels a decision to hold a public examination was not appropriate, they can request a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977.

Clause 142 	Power to issue examination summons 	
This clause provides for the power to issue an examination summons requiring a person to appear before the commission to give evidence or produce a document or other thing. 
Sub-clause 2 outlines a number of considerations that the Commission must have regard to when determining whether it is reasonable to issue the summons. These considerations are provided in clauses (a) to (e). 

The Commission may issue an examination summons to a person under the age of 18 years, however the Commission will need to consider whether there are reasonable grounds to do so. This may include that the information, document or thing that the person could provide may be compelling and probative evidence, and it may not be practicable to obtain the information, document or thing in another way.

The person is not required to appear before the Commission if the requested document or other thing is provided to the Commission before the required time.

Clause 143 	Examination summons—content 	
This clause specifies that the examination summons must require the person to appear before the Commission at a stated time and place, to give evidence, or produce or provide to the Commission any document or other thing in the summons that is within the person’s possession or control.

The examination summons is required to outline what the person will be questioned on unless the commission believes that it would prejudice the conduct of the investigation or be contrary to the public interest. An examination summons is to be accompanied by a confidentiality notice and statement containing a number of matters outlined in 
subparagraphs  (3)(b)(i) to (xii). This includes a provision providing that if the person is a member of the Legislative Assembly, the person is not required to attend on a sitting day of the Legislative Assembly.

Clause 144	Examination summons—commission must notify inspector
This clause outlines that where the Commission issues an examination summons, the Commission must advise the inspector about the issuing of any examination summons. This advice must be provided in writing and include the name of the person summoned and the circumstances why the summons was issued.

Clause 145 	Examination summons—person under 16 years 	
This clause outlines that an examination summons directed at a person under the age of 16 years has no effect. The Commission can require a person under the age of 16 years to provide evidence of proof of age.

Clause 146 	Examination summons—notice and immediate attendance 	
This clause outlines that an examination summons must be served on a person at least 7 days prior to the person being required to appear before the Commission. The Commission can issue an examination summons requiring a person’s immediate appearance before the Commission. Under these circumstances, the Commission must consider whether there are reasonable grounds for requesting an immediate appearance of a person. The Commission must have a view that any delay in the person’s appearance is likely to result in the following:
(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. 

Clause 147	Examination summons–service
This clause outlines that the Commission may apply to the Supreme Court for an order that an examination summons be served, where it is not reasonably practicable to serve an examination summons on a person under clause 146. For example, where the person has no known physical address, but they can be located on social media.

Where the Supreme Court is satisfied that it is not reasonably practicable to serve an examination summons, an order may be made for the summons to be served in another way considered appropriate. Alternatively the Supreme Court may make an order for substituted service. 

Clause 148 	Examination—legal representation 	
This clause provides for a witness to be represented at an examination by a lawyer. Where the Commission makes a legal advice direction about a witness, at least 3 days must be given from the date the witness receives the direction. This is to allow the witness to seek legal advice or representation prior to the witness being required to appear before the Commission according to the examination summons.

In special circumstances, a person who is not a witness may be authorised by the commission to be represented by a lawyer as part of an examination of a witness.

Clause 149 	Examination—provisions for vulnerable witnesses 	
This clause deals with provisions for vulnerable witnesses. Where the commission becomes aware that a witness is under 16 years of age, the person must be immediately released and not required to comply with the examination summons applying to them.

Witnesses under the age of 18 years are required to be accompanied by parent or guardian, or an independent person.

The Commission must provide an interpreter at the examination in circumstances where a witness does not have sufficient competency in the English language to be able to answer questions. 

An independent person is required to be present during examinations of a witness where there is a belief that the witness has a mental impairment or medical evidence is provided in support of this.

Clause 150	Examination—commission may issue suppression order 	
This clause provides the Commission with the ability to issue a suppression order which prohibits or restricts the publication of information or evidence provided as part of a public examination. The Commission may issue a suppression order in the following reasons:
(a)	to prevent prejudice or hardship being caused to a person, including harm to their safety or reputation; 
(b)	to avoid the possibility of any prejudice to a legal proceeding or an investigation by the Commission under this Bill.
A copy of the suppression order is required to be placed on the door of the public examination hearing room. A suppression order notice will also be published on the Commission’s website and provided to the person who is the subject of the suppression order.

Clause 151 	Offence—contravene suppression order		
This clause outlines that it is an offence if the requirements of the suppression order are not met.

Clause 152 	Examination—first actions to be taken 	
This clause specifies a number of requirements that must be met prior to a witness appearing before the Commission and being asked questions or producing a document or thing. These are provided in paragraphs sub-clause (1)(a) to (e). The Commission is required to notify the witness of the nature of the questions, unless the Commission considers that this would prejudice the investigation or would not be in the public interest.

Clause 153 	Examination—power to examine on oath 	
This clause provides for the Commissioner to administer an oath to a person, including staff or contractors/consultants of the Commission, or people summoned to appear before an examination hearing of the Commission.

The Commissioner can require people summoned before an examination hearing to take an oath and it is an offence for a person to fail to take an oath.

Clause 154	Examination–video recording and transcript
This clause outlines that the Commission is required to record the person’s appearance at the examination hearing on video. A copy of the video recording of the person’s evidence is to be provided to the person and any transcript created of the evidence, unless the commission believes that it may prejudice an investigation. Where the Commission determines not to provide a copy of the video recording and transcript to the person, the Commission is required to provide the person the opportunity to view the recording.

Clause 155	Examination–commission must give video recording and transcript to inspector
This clause requires the Commission to give the inspector a copy of the video recording and transcript of the examination.

Clause 156 	Examination—warrant to arrest witness who fails to appear 	
This clause provides that the Commission may issue a warrant to arrest a witness who fails to appear at an examination. The Commission may apply to a magistrate to issue an arrest for this purpose. The magistrate is required to be satisfied that the conditions outlined in sub-clause 2 are met. Where the magistrate is considering whether the issue of the arrest warrant is in the interests of justice, the magistrate must consider the criteria provided in paragraphs (3)(a) to (e). It is an offence for a person who does not attend an examination hearing as required in the examination summons.

Clause 157 	Examination—executing warrant to arrest witness who fails to appear 	
This clause defines the procedures to be followed in exercising the power to issue a warrant under clause 156. The warrant authorises a police officer to arrest a person and bring the person to appear before the Commission for an examination hearing. 

A police officer executing the warrant:
•	may, with necessary assistance and force, enter any premises to arrest the person named in the warrant; 
•	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; 
•	must, before removing the person, explain to the person the purpose of the warrant; 
•	must bring the person immediately before the Commission; and
•	if a person is under a legal disability—must inform a parent or guardian of the person of the arrest.
To avoid doubt, if, after arresting the person, the police officer believes on reasonable grounds that the person cannot be brought before the commission immediately, the police officer must immediately release the person.

Together, these provisions confirm that the power to arrest under clause 156 is not a power of detention, and is only for the purpose of taking a person on an examination summons directly to the commission to give evidence.

Clause 158	Arrest warrant – commission must notify inspector
This clause outlines that where a magistrate issues an arrest warrant under clause 156, the Commission must advise the inspector. This advice must be provided in writing and include the name of the person in the arrest warrant and the circumstances why the warrant was issued.

In this section, privilege does not including parliamentary privilege. Parliamentary privilege is covered in clause 176.

Division 3.6.2 – Examinations—privilege
Clause 159 	Examination—claiming privilege	
This clause specifies that the claimant must appear before the Commission according to the examination summons. A person may claim that information in response to a specific question, a document or other thing is subject to privilege. The Commission is required to consider the claim for privilege. The Commission may withdraw the requirement to answer the question, produce the document or other thing. Alternatively, the Commission may refuse to withdraw the requirement and require the claimant to secure the document or other thing in a sealed envelope and give it to the Commission. The Commission will not inspect the document or other thing.

Clause 160 	Examination—application to Supreme Court to decide privilege
This clause outlines that where a claim for privilege is made, and a document or thing is secured, the Commission must give the secured document or other thing to the Supreme Court. This occurs if the Commission refuses to withdraw the requirement to give evidence at an examination hearing or to produce a document or other thing. Within 7 days, the Commission must apply to the Supreme Court for a determination of the claim. The Commission is required to give notice of the application to the claimant. The claimant is entitled to appear before the hearing of the application in the Supreme Court.

If within 7 days, the Commission does not make an application to the Supreme Court, the secured document or other thing must be returned to the claimant. If the claim is about a requirement to answer a question or provide information at an examination hearing, and the 7 days passes without the Commission applying to the Supreme Court, the requirement is taken to be withdrawn.

The Supreme Court is an appropriate arbitrator because they are a neutral third-party that have no vested interest in the Commission’s investigation.
This approach is known as a bare claim of privilege. 

Clause 161 	Examination—Supreme Court to decide privilege 
This clause specifies that the Supreme Court must determine whether information required to answer a question at an examination hearing is the subject of privilege. If the Supreme Court decides that the information is subject to privilege, an order must be made that the claimant is not required to provide the information to the commission. However if the Supreme Court decides that the information is not subject to privilege, an order must be made requiring the claimant to provide the information to the Commission.

Clause 162 	Examination—offence to open secured document or other thing 	
This clause specifies that it is an offence to open a secured document or other thing if the conditions outlined in sub-clauses (2)(a) and (b) are met. 

Clause 163 	Examination—protection of witnesses and lawyers 
This clause specifies that where a person is appearing before an examination hearing as a witness, they have the same protection and immunity as a witness has in a proceeding within the Supreme Court. Likewise, a lawyer representing a person at an examination hearing or assisting the commission, has the same protection and immunity as a lawyer has in representing a party in a proceeding within the Supreme Court.

Division 3.6.3 – Examinations—contempt
The division empowers the Commission to refer acts of contempt to the ACT Supreme Court (i.e. a witness refusing to provide information to the Commission, produce a document or other thing, or answer a question during an examination). The contempt will then be resolved via the Court’s inherent power to punish acts of contempt, as if the act of contempt committed against the Commission were an act of contempt against the ACT Supreme Court. This classification allows the ACT Supreme Court to resolve a contempt charge under the Court Procedure Rules 2006 (ACT), which bypasses a number of stages in the normal criminal process, such as investigation by the police, formal charging and criminal committal hearings.

This referral procedure to the ACT Supreme Court was chosen to secure the assistance of uncooperative witnesses within a proximate timeframe. If a contempt charge was resolved via normal criminal processes, the Commission would be required to wait long periods of time for trial in the ACT Supreme Court. This is undesirable as long delays risk stalling the Commission’s investigations. 

Most State and Territory Integrity Commissions use this expedited referral procedure to punish acts of contempt. This contrasts to the position in other States such as the Northern Territory, where conduct that could otherwise constitute an act of contempt is criminalised as a series of discrete criminal offences. This requires such Commissions to report the act of contempt to the police as a crime, after which the offender is charged, investigated and prosecuted via the normal criminal process.

The proposed procedure is unusual in the ACT. It is not used by other ACT inquisitorial bodies, such as the ACT Judicial Commission, Royal Commission or Boards of Inquiry. However, the Australian Crime Commission has power to utilise the ACT Supreme Court’s contempt procedures.

A contempt power is necessary to pressure uncooperative witnesses to change their mind and provide information required to further the Commission’s investigation.

The purpose of referring acts of contempt to the Supreme Court is to resolve contempt proceedings in a timely manner. This allows the Commission to return to its investigation far sooner than if the conduct was criminalised via the normal criminal process.

Clause 164 	Contempt of commission 
This clause deals with contempt of the Commission which occurs in the following circumstances:
(a)	if a person has been served with a preliminary inquiry summons and refuses or fails to produce a document or other thing as required by summons;
(b)	where an examination summons has been served:
(i)	the person fails to attend the examination as required by the examination summons;  
(ii)	when appearing as a witness at the examination— 
A.	the person refuses or fails to take an oath when required; 
B.	the person refuses or fails to answer a question relevant to the subject matter of the examination; 
C.	the person refuses or fails to produce a document or other thing as required by the examination summons; 
(c)	the person gives evidence at an examination that the person knows is false or misleading in a material particular; 
(d)	the person obstructs or hinders the Commissioner in the performance of the Commissioner’s functions at an examination; 
(e)	the person disrupts an examination; or 
(f)	the person threatens a person present at an examination. 
However, having said this, a person is not in contempt of the Commission, if they have a reasonable excuse.

Clause 165 	Commission may apply to Supreme Court to deal with contempt 	
This clause provides for the Commission to apply to the Supreme Court for a matter of contempt of the Commission in relation to an examination. Prior to making the application, the Commission is required to advise the person about the proposed application and will be accompanied with reasons and supporting evidence. This will be provided to the person prior to the application being made.

Clause 166 	Contempt application—commission must notify inspector	
This clause outlines that where the Commission makes an application to the Supreme Court in relation to a matter of contempt, the Commission must advise the inspector. This advice must be provided through a written report to the inspector within 3 days.

Clause 167 	Supreme Court to deal with contempt 
This clause specifies that a contempt of the commission is to be dealt with by the Supreme Court in the same way that the Supreme Court deals with contempt.

Clause 168 	Commission may withdraw contempt application 
This clause provides for the Commission to withdraw an application of contempt at any time.

This acts as a further incentive for uncooperative witnesses to change their mind and decide to comply with the Commission’s coercive powers.

Clause 169 	Act or omission both offence and contempt
This clause outlines that a person is not liable to be punished more than once for the same act or omission. To avoid doubt, this means that if a person is liable to be proceeded against for an offence against this Bill or for contempt of the Commission or both, they will only be punished once.

Division 3.6.4 – Examinations—other provisions
Clause 170 	Witnesses at examinations—provision of legal assistance 
This clause provides for a person appearing as a witness in an examination hearing, with an ability to request legal assistance in relation to their appearance. This request may be approved with or without conditions. These requirements will be outlined in a regulation.

Clause 171 	Witnesses at examinations—reimbursement of expenses  
This clause provides for a witness prescribed by regulation who is appearing before an examination hearing of the Commission, is entitled to be paid for the expenses of the appearance in accordance with Supreme Court scale of courts or as prescribed by regulation.

Clause 172 	Examination—application of Criminal Code, ch 7
This clause confirms that an examination of the Commission is considered a legal proceeding for the purposes of the Criminal Code, Chapter 7 (Administration of justice offences). This clause engages the offence procedures in Chapter 7 such as perjury, falsifying evidence, failing to attend an examination and refusing to take an oath.

Part 3.7 – Privilege
This part covers the application of privilege, including client legal privilege, journalist privilege and parliamentary privilege.

Division 3.7.1 – Definitions
Clause 173 Meaning of privilege
This clause outlines the definition of privilege in the Bill, excluding parliamentary privilege.
Under the Bill, privilege: 
(a)	means any privilege a person is entitled to claim in a proceeding before a court or tribunal; and
(b)	includes public interest immunity under the Evidence Act 2011, section 130 (Exclusion of evidence of matters of state); but
(c)	does not include privileges against self-incrimination and exposure to civil penalty do not apply. 

Division 3.7.2 – Application of privilege
Clause 174	Privileges against self-incrimination and exposure to civil penalty do not apply
This clause removes the common law privilege against self-incrimination and civil liability that would otherwise allow a person to refuse to answer questions or produce documents or other things, or provide information as requested by the Commission during the examination stage. 

This provision supports the Commissioner being able to fully consider all available information when exercising its function, while protecting the people providing the information.

Clause 175	Privileges against self-incrimination and exposure to civil penalty—use and derivative use immunity
This clause provides use and derivative use immunity in relation to evidence obtained because of clause 174, which prevents persons from claiming the privilege against self-incrimination or exposure to civil penalty to refuse to comply with various coercive powers of the Commission.

Use immunity is conferred by sub-clause 1. This clause applies to evidence that was directly obtained under clause 174. This is intended to apply to evidence such as:
•	Answers to questions asked during an examination;
•	Documents or other things produced to the Commission under summons. 

Sub-clause 1 of this clause provides use immunity by rendering this evidence inadmissible in court proceedings, other than specified legal proceedings such as a proceeding for contempt of the Commission under Division 3.6.3 of the Bill, or an offence against Chapter 7 of the Criminal Code 2002 (ACT).  Sub-clause 1 further prohibits this evidence from being used in a disciplinary process or action unless the Commission has made a finding of serious corrupt conduct or systemic corrupt conduct in relation to the person. 

Derivative use immunity is conferred by sub-clause 2. This applies to evidence that was indirectly obtained as a result of evidence obtained under clause 174. Sub-clause 2 provides that such indirectly obtained evidence is inadmissible in civil or criminal proceedings against a person unless:

(a)	It could have been obtained without the evidence obtained under clause 174; or
(b)	Its significance cold have been appreciated without the evidence obtained under clause 174.

This clause implements a human rights compliant approach to derivative use immunity as per the decision handed down in Major Crime (Investigative Powers) Act 2004 [2008] VSC 381. 

Division 3.7.3 – Parliamentary privilege
Clause 176 	Parliamentary privilege—memorandum of understanding 
This clause provides that the Commission and the Speaker, on behalf of the Legislative Assembly, must enter into a memorandum of understanding (MOU) in relation to parliamentary privilege. The Commission must act in accordance with these arrangements.

Where a claim for parliamentary privilege is made by a person entitled to make a claim, the Legislative Assembly will determine the matter.

The MOU will be supported by the Legislative Assembly’s Standing Orders and Continuing Resolutions. 

Part 3.8 – Recommendations 
These clauses provide for the Integrity Commission to make recommendations about a particular matter which may arise out of an investigation.

Clause 177	Commission may make private recommendation at any time
This clause outlines who the Integrity Commission can make a private recommendation about a particular matter which may arise out of an investigation. This includes 
a)	if the matter involves a Minister—the Chief Minister;
b)	if the matter involves a member of the Legislative Assembly—
(i)	the Speaker;
(ii)	the leader of the registered party to which the member belongs;
c)	if the matter involves a person who is a member of staff of an MLA—
(i)	the Speaker;
(ii)	the member of the Legislative Assembly employing the person;
(iii)	the leader of the registered party to which the member employing the person belongs;
d)	if the matter involves a public sector entity - the head of the public sector entity. 

This recommendation must state the action the commission considers should be taken. 

Clause 178 	Commission may require response to private recommendation
This clause provides the Commission with the discretion to determine whether a response is required to a private recommendation. It is a legislative requirement for the person to respond to the Commission’s request under this clause. The Commission may request that the person advise whether they intend on implementing the Commission’s recommendation. If the person does not intend on implementing the Commission’s recommendation, the Commission can request reasons. 

Clause 179	 Commission may make private recommendation public
This clause provides that the commissioner may make a recommendation public, in an investigation report or annual report, if a report under clause 178 has not been received within the stated time or has received the report and considers the person has failed to take appropriate action in relation to a private recommendation. After considering any reasons stated in the report for not taking the recommended action, the commission may make a private recommendation public in an investigation report or annual report. 

Part 3.9 – Completing an investigation—investigations reports
This part outlines how investigations will be completed with the development of an investigation report through to releasing and the tabling the report.

Clause 180 	Investigation reports 	
This clause provides that the Commission will prepare an investigation report after completing an investigation. The report may include a range of things including findings, opinions and recommendations and associated reasons.

Clause 181	Investigation report—not to include findings of guilt etc or recommendations about prosecution 	
This clause specifies what must not be included in an investigation report. This includes a finding or opinion that a person is guilty or has committed, or is about to commit, an offence against a law in force in the ACT. The investigation report also cannot include that a person has engaged, or is about to engage in conduct that would be reasonable grounds for serious disciplinary action against the person. In addition, the report cannot indicate that the person should be prosecuted for an offence or by subjected to a serious disciplinary action following the completion of the investigation. Clause 181(2) outlines that a finding or opinion that a person has engaged, or about to engage in corrupt conduct is not considered a finding or opinion.

Clause 182 	Investigation report—not to include finding of corrupt conduct unless serious corrupt conduct 	
This clause specifies that an investigation report must not include any finding of corrupt conduct unless it is considered serious corrupt conduct by the Commission. This includes a finding that a stated person has engaged, or is about to engage in corrupt conduct unless the corrupt conduct is either serious or systemic conduct. 

The Commission may include a finding or opinion about conduct of a person that may be corrupt conduct even if the statement of the finding (or opinion) does not describe the conduct as corrupt.

This provision is based on the NSW ICAC section 74BA which implements the High Court’s decision in Cunneen and Ors v Independent Commission Against Corruption. 

Clause 183 	Investigation report—not to include information that may prejudice proceeding etc		
This clause specifies that an investigation report must not include any information that would either compromise another existing investigation or prejudice a criminal investigation, criminal proceeding or other legal proceeding known to the Commission.

Clause 184	Investigation report—not to include information identifying certain people
This clause places some privacy restrictions on the investigation report which must not include any information that would identify a person who is not the subject of an adverse comment or opinion. This is subject to some conditions that the Commission must consider. The Commission may consider that it is in the public interest to identify a person in an investigation report who is not the subject of a particular matter.  As part of making this assessment, the Commission will consider whether identifying the particular individual would cause unreasonable damage to the person’s reputation, safety or wellbeing. 

Clause 185	Investigation report-not to include information contrary to the public interest
This clause specifies that the Commission must not include information in an investigation report if the commission considers that the disclosure of such information would be contrary to the public interest. The disclosure of information may be contrary to the public interest only if the disclosure would be reasonably likely to:
•	infringe an individual’s right to privacy and reputation, or any other right under the Human Rights Act 2004; or
•	disclose a trade secret, or the business affairs or research of an entity; or
•	prejudice relations between the ACT government and another government.

An exception to this is if the commission is satisfied that the substance of information mentioned in sub-clause 1 is public knowledge.

Clause 186	Investigation report—comments on proposed reports
This clause specifies that if the commission is preparing an investigation report, the commission must provide the proposed investigation report, or parts of it, to the relevant entity, seeking comments. The Commissioner must consider the comments and consider whether to include the comments into the report or to amend the report.

Clause 187 	Investigation report—presentation to the Legislative Assembly		
This clause outlines the requirements to present investigation reports to the Legislative Assembly. If the Legislative Assembly is sitting when the investigation report is released, the report must be presented on the next sitting day. Alternatively, if the Legislative Assembly is not sitting when the investigation report is released, arrangements will be made for the report to be distributed to all Members of the Legislative Assembly out of session and then formally presented on the next sitting day. This process does not apply to a confidential report as there are separate presentation requirements for this type of report. This clause also specifies who the investigation report must be given to in the event that the Speaker and Deputy Speaker are unavailable.

Clause 188	Investigation report-publication on website
This clause states that the commission must publish the investigation report on the commission’s website after providing the report to the Speaker, Deputy Speaker or clerk.

Clause 189	Investigation report-Ministerial response about ACT public service entity
This clause applies in the event that an investigation report is presented to the Legislative Assembly under section 187 and the report made a finding of serious or systemic corrupt conduct in relation to an ACT public service entity. This clause specifies the process that must be followed, which includes the Minister responsible providing a ministerial response within 4 months.

Clause 190 	Confidential investigation report
This clause specifies that the Commission may exclude some information from an investigation report, as this is considered confidential and sensitive information. When this occurs, the Commission must prepare a separate confidential report which is provided to the presiding member of the relevant Assembly Committee which has oversight of the Integrity Commission.

Part 3.10 – Secrecy and information sharing
This part outlines the secrecy and information sharing requirements in relation to the work of the Commission.

Clause 191 	Legal advice directions
This clause specifies that the Commission can direct a person not to seek legal advice or representation about a relevant document from a lawyer, if there are reasonable grounds that investigation would be prejudiced. This may occur when the lawyer is:

(a)	a witness in an examination; 
(b)	the representative of another witness in an examination; 
(c)	 involved, or suspected of being involved, in a matter being investigated by the commission or the inspector; 
(d)	representing a person involved, or suspected of being involved, in a matter being investigated by the commission or the inspector. 

The Legislation Act 2001 outlines how the legal advice direction document may be served.

Sub-clause 1 outlines what a relevant document consists of.

The purpose of this section is to prevent a witness from seeking legal advice from a lawyer who has a conflict of interest due to involvement with a Commission investigation.

Clause 192 	Legal advice directions—Commission must notify inspector
This clause specifies that the Commission must notify the inspector about any legal advice directions issued. This advice must be provided in writing and include a copy of the direction, the reason why the direction was required and any factors considered in making the legal advice direction.

Clause 193 	Offence—fail to comply with legal advice direction	
This clause specifies that an offence is committed if a person does not comply with the legal advice direction. The offence does not apply if the person has a reasonable excuse why they did not comply with the direction.

Clause 194	Disclosure of information by commission 
This clause facilitates the cooperation and referral between the commission and other oversight agencies and investigative entities by authorising the sharing of relevant information necessary to appropriately accept, respond or deal with the matter. 

This clause aims to ensure a coordinated approach to the oversight of integrity in the ACT. 

This clause further specifies that the Commission must not divulge a transcript of an examination or a video recording of an examination to certain entities, such as a law enforcement agency. The purpose of this prohibition is to protect a person’s right to a fair trial. During an examination a witness will likely be compelled to answer questions about their involvement in suspected corrupt conduct, and what their ‘excuse’ is. These answers will likely form the basis of the person’s defence to any criminal charges later laid by the police. 

Providing a transcript or video recording of these answers to entities such as law enforcement agencies may therefore disclose the accused’s defence case to the DPP. This may provide the DPP with a forensic advantage at trial, because the DPP has advance notice of a person’s legal defence and can prepare accordingly. This is inappropriate as the defence has no general duty to disclose their case in such fine detail to the prosecution.

Clause 195 	Information about investigation may be given to certain people
This clause outlines who the Integrity Commission can give information about a particular matter which may arise as part of an investigation. This includes the following: 
a)	if the investigation involves a Minister—the Chief Minister;
b)	a member of the Legislative Assembly— 
(i)	the Speaker; and 
(ii)	the leader of the registered party to which the member belongs); 
c)	if the matter involves a person who is a member of staff of an MLA— 
(i) the Speaker; and 
(ii) the member of the Legislative Assembly employing the person; and 
(iii) the leader of the registered party to which the member employing the person belongs; 
d)	if the investigation involves a public sector entity—the head of the public sector entity. 

The Commission may share any information to these individuals outlining any action that the Commission has undertaken and any recommendation that the Commission considers appropriate to be taken. In providing this information, the Commission is required to consider the factors specified in paragraphs (3)(a) to (g) to determine whether it is appropriate to provide this information in relation to a particular matter.

The Commission is required to comply with the Territory Records Act 2002 similar to other Officers of the Legislative Assembly.

Clause 196 	Commission must give disclosure notice when giving information 
This clause applies if the commission gives a person information under clauses 66, 67, 68, 186, 195 and 208. The Commission must also give the person a disclosure notice about the information setting out that disclosure of the information may be an offence and penalties may apply. The notice will also set out the kinds of disclosures that are permitted and prohibited.   

Clause 197	Meaning of permitted disclosure of restricted information—Part 3.10
This clause states when a person may make a permitted disclosure of restricted information and to whom they can make the disclosure to. 

Clause 198 	Offence—disclose information received from the commission 
This clause creates an offence of 100 penalty units and 1 year imprisonment. A person commits an offence if they are given information under clause 66, 67, 68, 186, 195 and 208 or given a disclosure notice about the information and subsequently discloses the information. 

A person will not commit an offence under this clause if the disclosure is a permitted disclosure and when making the disclosure the person tells the recipient of the disclosure and that this section applies to any subsequent disclosure. The recipient must be given a copy of the disclosure notice.  

The clause is an important safeguard that deters complainants from inappropriately disclosing information that may prejudice the conduct of an investigation. This offence is modelled off a similar offence imposed by the Victorian IBAC.

Clause 199 	Evidence in court proceedings   
This clause gives a court discretion to compel the Commission to produce evidence gathered during an investigation. A court can compel the Commission to produce evidence for the purpose of a proceeding for an offence, where the court is satisfied that the interests of justice require production. The court must give the Commission a reasonable opportunity to appear and make submissions in relation to why the evidence should not be produced before making an order.

This clause confirms that the Commission can be compelled to disclose information to a court under clauses 194(3) and (4). The provision is intended to apply in situations where a defendant in a legal proceeding subpoenas the Commission to produce a transcript of an examination that contains exculpatory evidence relevant to their defence.

The clause is modelled from section 156 of the Northern Territory Independent Commissioner Against Corruption Act 2017 (NT).
 
Part 3.11 – Outcomes
Clause 200	Outcome of prosecutions and serious disciplinary action to be published
This clause provides that the Commission must publish the outcome of the prosecution or the serious disciplinary action on the Commission’s website.

Clause 201 	Exoneration guidelines
This clause provides for the Commission to make guidelines in relation to how the Commission handles the damage to a person’s reputation as a result of the Commission’s work.

Chapter 4	Commission—reporting
Part 4.1 – Special Reports
This part covers the publication of special reports.

Clause 202	Special Reports
This clause specifies that the commission may give a special report to the Legislative Assembly on any matter relating to the performance of its statutory responsibilities including administrative and general policy matters.

Clause 203	Special report—not to include findings of guilt etc or recommendations about prosecution
This clause specifies what must not be included in a special report. This includes a finding or opinion that a person is guilty or has committed, or is about to commit, an offence against a law in the ACT. The special report also cannot include that a person has engaged, or is about to engage in conduct that would be reasonable grounds for disciplinary action against the person. In addition, the report cannot indicate that the person should be prosecuted for an offence or by subjected to a serious disciplinary action following the completion of the investigation. Sub-clause 2 outlines that a finding or opinion that a person has engaged, or about to engage in corrupt conduct is not considered a finding or opinion.

Clause 204 	Special report—not to include finding of corrupt conduct unless serious corrupt conduct
This clause specifies that a special report must not include any finding of corrupt conduct unless it is considered serious corrupt conduct by the Commission. This includes a finding that a stated person has engaged, or is about to engage in corrupt conduct unless the corrupt conduct is either serious or systemic conduct. The Commission may include a finding or opinion about conduct of a person that may be corrupt even if the statement of the finding (or opinion) does not describe the conduct as corrupt.

Clause 205	Special report—not to include information that may prejudice proceeding etc
This clause specifies that a special report must not include any information that would either compromise another existing investigation or prejudice a criminal investigation, criminal proceeding or other legal proceeding known to the commission.

Clause 206	Special report—not to include information identifying certain people
This clause places some privacy restrictions on the special report which must not include any information that would identify a person who is not the subject of an adverse comment or opinion. This is subject to some conditions that the Commission must consider. The Commission may consider that it is in the public interest to identify a person in a special report who is not the subject of a particular matter. As part of making this assessment, the Commission will consider whether identifying the particular individual would cause unreasonable damage to the person’s reputation, safety or wellbeing.

Clause 207	Special report—not to include information contrary to the public interest
This clause specifies that the Commission must not include information in a special report if the commission considers that the disclosure of such information would be contrary to the public interest. The disclosure of information may be contrary to the public interest only if the disclosure would be reasonably likely to:
•	infringe an individual’s right to privacy and reputation, or any other right under the Human Rights Act 2004; or
•	disclose a trade secret, or the business affairs or research of an entity; or
•	prejudice relations between the ACT government and another government.

An exception to this is if the commission is satisfied that the substance of information mentioned in sub-clause (1) is public knowledge.

Clause 208	Special report—comments on proposed reports
This clause specifies that if the commission is preparing a special report, the commission must provide the proposed special report, or parts of it, to the relevant entity, seeking comments. The Commissioner must consider the comments and consider whether to include the comments into the report or to amend the report.

Clause 209	 Special report—presentation to Legislative Assembly
This clause outlines the requirements to present special reports to the Legislative Assembly. If the Legislative Assembly is sitting when the special report is completed, the report must be presented on the next sitting day. Alternatively, if the Legislative Assembly is not sitting when the special report is completed, arrangements will be made for the report to be distributed to all Members of the Legislative Assembly out of session and then formally presented on the next sitting day. This process does not apply to a confidential report as there are separate presentation requirements for this type of report. This clause also specifies who the special report must be given to in the event that the Speaker and Deputy Speaker are unavailable.

Clause 210	Special Report—publication on website
This clause states that the commission must publish the special report on the commission’s website as soon as practicable after providing the report to the Speaker, Deputy Speaker or clerk. This does not apply to a confidential special report.

Clause 211 	Special report—Ministerial response about ACT public service entity
This clause applies in the event that a special report is presented to the Legislative Assembly under section 209 and the report made a finding of serious or systemic corrupt conduct in relation to an ACT public service entity. This clause specifies the process that must be followed, which includes the Minister responsible providing a ministerial response within 4 months.

Clause 212	Confidential special report
This clause specifies that the Commission may exclude some information from a special report, as this is considered confidential and sensitive information. When this occurs, the Commission must prepare a separate confidential report which is provided to the presiding member of the relevant Assembly Committee which has oversight of the Integrity Commission.

Part 4.2 – Annual reports—content
Clause 213	Annual reports
This clause provides that the Integrity Commission must prepare an annual report under the Annual Reports (Government Agencies) Act 2004. This clause also specifies what the annual report must include.

Clause 214 	Annual report—not to include findings of guilt etc or recommendations about prosecution 
This clause specifies what should not be included in an annual report. 

Clause 215 	Annual report—not to include finding of corrupt conduct unless serious corrupt conduct 
This clause specifies what should not be included in an annual report. This includes a finding that a stated person has engaged, is engaging or is about to engage in corrupt conduct unless the corrupt conduct is serious conduct. It does provide that the commission may include a finding or opinion about conduct of a person that may be corrupt conduct even if the statement of the finding (or opinion) does not describe the conduct as corrupt.

This provision is based on the NSW ICAC section 74BA which implements the High Court’s decision in Cunneen and Ors v Independent Commission Against Corruption. 

Clause 216 	Annual report—not to include information that may prejudice proceedings etc
This clause specifies that an annual report must not include any information that would either compromise another investigation or prejudice a criminal investigation, criminal proceeding or other legal proceeding known to the commission. This protects the right to a fair trial.

Clause 217 	Annual report—not to include information identifying certain people
This clause places some privacy restrictions on the annual report which must not include any information that would identify a person who is not the subject of an adverse comment or opinion. This is subject to some conditions that the Commission must consider. The Commission may consider that it is in the public interest to identify a person in an annual report who is not the subject of a particular matter.  As part of making this assessment, the Commission will consider whether identifying the particular individual would cause unreasonable damage to the person’s reputation, safety or wellbeing. 

Clause 218 	Annual report—not to include information contrary to the public interest
This clause states that the commission must not include information in an annual report if the commission considers that the disclosure of the information would, on balance, be contrary to the public interest. The clause also states what kinds of disclosure may be contrary to the public interest. However, the commission may include the information in the annual report if it is satisfied the substance of the information is public knowledge. 

Chapter 5 	Inspector of the commission
Chapter 5 creates a statutory role whose function is to oversight the Integrity Commission, particularly to assess and report the commission’s legislative compliance. The inspector will be able to access the Integrity Commission’s records to ensure that they are acting within their legislative power. This role will also provide crucial oversight to ensure very intrusive powers such as telecommunications intercept activities are not being abused. The Inspector is appointed for a period of up to 7 years and must themselves be someone who would be qualified to be appointed as the Integrity Commissioner. 

Part 5.1 – Inspector—Officer of the Legislative Assembly
Clause 219	Inspector—Officer of the Legislative Assembly
This clause establishes the Inspector as an Officer of the Legislative Assembly. This clause is based upon those in the legislation of other Officers of the Legislative Assembly including the Auditor-General, Ombudsman and Electoral Commissioner. 

Clause 220	Inspector—independence
Based on similar provisions for the Commissioner (clause 22) and the other Officers of the Legislative Assembly, this clause establishes that, subject to this Act and to other Territory laws, the Inspector has complete discretion in the exercise of the inspector’s functions.

Clause 221	Inspector—functions
The Inspector’s key functions are to: 
•	assess and report on the commission’s compliance with this Act and any memorandums of understanding or agreements entered into under this Act; 
•	receive, investigate and assess complaints about the commission and members of staff of the commission; and 
•	make recommendations to the commission and other public bodies about practices and procedures in relation to the performance of functions under this Bill. 
The function of making recommendations offers a valuable opportunity for the Integrity Commission to receive independent suggestions for improvement. 

Part 5.2 – Inspector—appointment 
Part 5.2 of the Bill concerns the process for commencing, suspending and ending the appointment of the Inspector and if necessary, acting inspector. These provisions are based on similar provisions for the Integrity Commissioner and the other Officers of the Legislative Assembly.

Clause 222	Inspector—appointment
This clause requires the Speaker, acting on behalf of the Territory, to appoint an inspector, after a detailed consultative process. It is based on appointment provisions for the Integrity Commissioner (clause 25) and the other Officers of the Legislative Assembly.

The Speaker must make the appointment in accordance with an open and accountable selection process. The Speaker must also consult with the Chief Minister, the Leader of the Opposition and the leader of any other party that is represented in the Assembly by at least two Members. The relevant Assembly committee must be consulted.

The Speaker must not appoint a person as the inspector unless the Speaker is satisfied that the person has extensive knowledge of, and experience in— 
•	criminal investigation or criminal adjudication; or 
•	law enforcement or the conduct of investigations; or 
•	public administration, governance or government 

The Legislative Assembly must approve the appointment, by resolution passed by a majority of at least 2/3rd of the members. 

Reflecting the independence of the inspector’s role, the Speaker must consult with the relevant Assembly committee on the person’s appointment. The relevant Assembly committee is defined in the Dictionary as the committee of the Legislative Assembly whose functions include the examination of matters related to corruption and integrity in public administration. 

An appointment is a disallowable instrument ensuring that the appointment reflects the view of and is approved by, the Assembly. Eligibility for appointment is dealt with in clause 223.

Clause 223	Inspector—eligibility for appointment
This clause provides that the Speaker may appoint a person as Inspector with specific background and experience reflecting the requirements of the role. The person must have been a:
•	judge of the Supreme Court; or
•	judge of the Supreme Court of a State or another Territory; or
•	judge of the Federal Court; or
•	justice of the High Court; or

The clause includes a further limitation on who can be appointed by preventing those with certain backgrounds from being appointed. The Speaker must not appoint a person as the inspector if the person—
•	is or has, in the 5 years immediately before the day of the proposed appointment, been a member of—
o	the Legislative Assembly; or
o	the Parliament of the Commonwealth; or
o	the legislature of a State or another Territory; or 
•	is or has, in the 5 years immediately before the day of the proposed appointment, been a public servant; or
•	is or has, in the 5 years immediately before the day of the proposed appointment, been a member of—
o	a registered party; or
o	a political party registered under a law of the Commonwealth, a State or another Territory; or
o	a political party. 
•	has been convicted –
o	in the ACT, of an offence punishable by imprisonment for at least 1 year; or 
o	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.

The purpose of this limitation is to ensure that the person who fulfils the role is free from any actual or perceived conflict of interest, given the unique position they hold, and to ensure public confidence in this new institution. 

Public servant is defined by the Legislation Act 2001 to mean a public servant employed in the ACT public service. The constitution of the public service is dealt with by section 12 of the Public Sector Management Act 1994 which provides that members of the ACT Public Service are—
•	the head of service;
•	the directors-general;
•	the executives;
•	officers; and
•	other employees.

In effect this means that statutory office holders, such as the President, other Commissioners at the Human Rights Commission, or members of the ACT Civil and Administrative Tribunal are not public servants within the definition and so can be appointed to the position of Inspector. 

Clauses 224-226	Inspector—term of appointment, oath or affirmation, disclosure of interests
These clauses provides that an appointment must not be for more than 7 years, that a person previously appointed cannot be reappointed, provides for an oath or affirmation of office, and requires  disclosure of interests by the Inspector to the Speaker. These provisions are consistent with those applied to the Integrity Commissioner (clauses 27, 28 and 29) and to other Officers of the Legislative Assembly. 	

Clause 227	Inspector—must not do inconsistent work etc
This clause requires the Inspector not have paid employment or engage in unpaid activity that is inconsistent with their functions. The inclusion of this clause acknowledges the role of the Inspector may be exercised in a part-time or per diem capacity depending on the workload requirements to ensure the efficient and effective function of the Act. It allows the person appointed to engage in employment or unpaid work, as long as there is no inconsistency with their functions as the Inspector. This clause is consistent with provisions applied to other Officers of the Legislative Assembly. 

Clauses 228–229	Inspector—Resignation and Retirement 
These clauses deal with how the appointment of the Inspector may end including through resignation or retirement. Clause 229 allows the Speaker to retire the Inspector on grounds of mental or physical incapacity of a kind that substantially affects the performance of the Inspector’s functions. The Inspector must consent and the retirement is subject to the superannuation circumstances of the Inspector. 

Clauses 230-232 Inspector—Suspension
These clauses provide for the suspension of the Inspector. The comprehensive procedure is based on that for other Officers of the Legislative Assembly and has been designed to ensure that the Inspector is afforded procedural fairness for any potential suspension. The process also ensures the Legislative Assembly, through the relevant committee, is involved. 

Clause 233 	Inspector—ending appointment
The Inspector’s appointment can only cease if it expires, retirement under clause 229 or under this clause. This clause details a comprehensive process for how the Speaker may end the Inspector’s appointment, which is designed to provide the Inspector procedural fairness and is based on that used for the Integrity Commissioner (clause 36) and for other Officers of the Assembly. 

The grounds for ending an appointment are
•	for misbehaviour; 
•	for physical or mental incapacity, if the incapacity substantially affects the exercise of the inspector’s functions; or 
•	the inspector becomes bankrupt or personally insolvent. 

The process requires that the Inspector is provided an opportunity respond in the event that the motion is moved in the Assembly to end their appointment.

The Speaker may also end the inspector’s appointment if the inspector is absent from duty, except on leave granted by the Speaker, for 14 consecutive days or for 28 days in any 12 months. 

Clause 234	Inspector—Leave of Absence
Clause 245 allows the Speaker to grant the Inspector a leave of absence. 

Clause 235	Inspector—acting inspector
This clause states how an Acting Inspector can be appointed, including that the Inspector is able to appoint an Acting Inspector.  Ordinarily the Legislation Act 2001 provides that the person making the appointment is also responsible for acting appointments. In the case of the Inspector it is appropriate that they be able to appoint a person to act in their place while they are on approved leave given the particular position of trust they are placed in and the nature of the role. This is generally the case for other Officers of the Legislative Assembly. The ability to appoint a person to act in the position is only available where leave is approved by the Speaker and the Inspector has consulted with the Speaker about their proposed acting appointment. It is designed primarily to cover ordinary leave that any employed person would take from time to time, for example recreational leave. In circumstances where there is no permanent appointee, it is the Speaker who will make the acting appointment; for which they must consult the relevant Assembly committee.

Clause 236	Inspector—arrangement for another person to exercise functions
This clause states that where an inspector appointment is not made under clause 222, the Speaker must, on behalf of the Territory, make arrangements for a person (however described) responsible for exercising functions under a Commonwealth or State law that substantially corresponds to the functions of the inspector.

Part 5.3 – Inspector—staff
Clause 237	Meaning of staff of the inspector
This clause defines the meaning of staff of the inspector, including staff under clause 238, and consultants and contractors under clause 239.

Clause 238	Inspector’s employed staff
This clause allows the Inspector to employ staff, and provides for staff of the Inspector to be employed under the Public Sector Management Act 1994, which regulates the employment of ACT public sector employees.

Clause 239	Inspector’s consultants and contractors
This clause allows the Inspector to engage contractors or consultants. 

Clause 240	Staff of the inspector—eligibility for appointment
The Inspector cannot appoint a person as a staff member of the inspector if that person is not suitable. This clause provides the Inspector with the ability to ask a prospective staff member to undertake the following to assist in determining whether a person is suitable to be a member of staff of commission:
•	provide a police certificate;
•	declare personal interests the inspector considers relevant;
•	undergo a medical or psychological assessment;
•	make a statutory declaration in relation to matters determined by the inspector to be relevant to the person’s suitability;
•	anything else the Inspector considers is necessary to decide whether a person is suitable.

Clause 241	Staff of the inspector—not subject to direction from others
This clause provides for the independence of Inspector’s staff, who may only be directed by the Inspector in the exercise of the inspector’s functions.

Clause 242	Delegation by inspector
This clause details how the Inspector may delegate their functions. The Inspector can delegate their functions to a member of the staff of the inspector or another person. If the Inspector decides to delegate their functions to another person who is not a member of staff of the inspector without being satisfied that the function needs to be exercised by a person who is not a member of staff of the inspector.

Clause 243	Inspector—other arrangements for staff and facilities
This clause allows the Inspector to arrange with the Head of Service to use the services of a public servant or Territory facilities. The inclusion of this provision supports the Inspector in the efficient and effective management of its functions, particularly regarding administrative, secretariat or specialised public service staff support or expertise.

The Inspector can also arrange with the Speaker to use Territory facilities within the Assembly precincts, such as the Legislative Assembly hearing rooms.

Clause 244	Inspector—arrangements with other entities
This clause allows the Inspector to enter into an arrangement with another entity that will assist the Inspector in relation to the exercise of their functions. 

Part 5.4 – Investigating complaints about the commission
Clause 245	Meaning of commission personnel
This clause defines the term ‘commission personnel’ as the Commissioner or a member of the commission staff, and includes a person who was formerly appointed to these positions. 

Clause 246	Inspector—making a complaint to the inspector 
This clause enables a person to make a complaint to the Inspector about the conduct of the Integrity Commission or the Commission personnel in respect of the performance or exercise, or failure to perform or exercise, or purported performance or exercise, of the duties, functions or powers of the Integrity Commission or the commission personnel. It specifies that a complaint may be made on the basis that the conduct was contrary to law; unreasonable, unjust, oppressive or improperly discriminatory; based on improper motives; an abuse of power; or otherwise improper.

Clause 247 	Inspector – must keep complainant informed
This clause states what an inspector must tell a complainant about if they receive a complaint under clause 246. It also states that the inspector must not tell the complainant about a matter if it would be likely to adversely affect a person’s safety, an investigation under this Act, or would identify another person who has given information in relation to the matter under investigation; or could allow the identity of another person who has given information in relation to the matter under investigation to be worked out; or would be contrary to a law in force in the Territory.

Clause 248 	Inspector – must give disclosure notice when giving information
This clause places a similar obligation on the Inspector as on the Commissioner to give a disclosure notice setting out particular information. 

Clause 249 	Meaning of permitted disclosure of information
This clause sets out what is considered a permitted disclosure under this Part. 

Clause 250 	Offence – disclose information received from the inspector
This clause sets out that it is an offence for someone to disclose information received under clause 247, and is given a disclosure notice about the information and subsequently discloses the information. The offence is of 100 penalty units, imprisonment for 1 year or both. 

Clause 251	Inspector—investigating a complaint
This clause enables the Inspector to conduct an investigation, at its discretion, following the receipt of a complaint to assess the conduct as specified in the complaint or any other relevant conduct. If the Inspector decides to investigate a complaint, the Inspector must notify the Integrity Commission in writing unless this would prejudice the investigation of the complaint.

Clause 252	Inspector—own initiative investigation
This clause enables the Inspector to conduct an own initiative investigation, at its discretion, in the course of performing its functions. This investigation can be undertaken into the conduct of the Integrity Commission or the Commission personnel in respect of the exercise, or failure to exercise, the functions or powers of the Integrity Commission or commission personnel.

Clause 253	Inspector—conduct of investigation 
This clause provides powers to the Inspector in the conduct of an investigation to investigate any aspect of Integrity Commission's operations or any conduct of commission personnel; have full and free access to the records of Integrity Commission; require information from commission personnel; and require attendance of commission personnel to produce documents or other things.

The Inspector can commence or continue an investigation even though an investigation by the Integrity Commission or proceedings in a court or tribunal may be underway, relating to the same matter. The Inspector must take all reasonable steps to ensure that the conduct of its investigation does not prejudice court or tribunal proceedings of which it is aware.

Clause 254	Inspector—commissioner must provide assistance 
This clause establishes that the Integrity Commissioner must provide any assistance, and ensure that commission personnel give any assistance, to enable the Inspector to carry out an investigation under Chapter 5 of this Bill.

Clause 255	Inspector—withdrawal of complaint
This clause deals with the withdrawal of a complaint. A person who makes a complaint may withdraw the complaint at any time, and if a complaint is withdrawn the inspector may continue to investigate the subject matter of the complaint. 

Clause 256	Inspector—power to ask for information, documents and other things
This clause provides the Inspector with the ability to require a person to produce a document or other thing by written notice. The written notice must state how and the timeframe within which the person must comply with the notice. The person commits an offence is the person fails to comply with the written notice requesting the person to produce a document or other thing. However the person may have a reasonable excuse.

The Inspector does not have the power to hold examination hearings.

Clause 257	Inspector—privileges against self-incrimination and exposure to civil penalty
This clause provides that a person cannot rely on the common law privileges against self-incrimination and exposure to the imposition of a civil penalty to refuse to produce the document or other thing.

Clause 258	Inspector—referral to other entities
This clause provides that the inspector may at any time refer a matter to the commission, the public sector standards commissioner, or a law enforcement agency or prosecutorial body.  

Clause 259	Inspector—recommendations about practices or procedures
This clause provides that the inspector may, at any time, make a recommendation about practices or procedures in relation to the exercise of functions under this Act to the head of a public sector entity, the commission, the relevant Assembly committee. 

Clause 260	Inspector—recommendation that acting commissioner be appointed to investigate commission
This clause provides that the inspector may make a recommendation to the Speaker than an acting commissioner be appointed to investigate the commissioner or a member of the commission staff if the complaint received by the inspector relates to the commissioner or a member of the commission staff. 

Part 5.5 – Inspector— secrecy and information sharing
Clause 261 	Inspector—disclosure of information
This clause facilitates the cooperation and referral between the inspector and other oversight agencies and investigative entities by authorising the sharing of relevant information necessary to appropriately accept, respond or deal with the matter. 

Part 5.6 – Inspector’s special report
Clause 262 	Inspector’s special report
This clause provides that the inspector can make a special report to the Legislative Assembly.

Clause 263	Inspector’s special report—not to include information contrary to the public interest
This clause specifies that the inspector must not include information in a special report if the inspector considers that the disclosure of such information would be contrary to the public interest. The disclosure of information may be contrary to the public interest only if the disclosure would be reasonably likely to:
•	infringe an individual’s right to privacy and reputation, or any other right under the Human Rights Act 2004; or
•	disclose a trade secret, or the business affairs or research of an entity; or
•	prejudice relations between the ACT government and another government.

An exception to this is if the inspector is satisfied that the substance of information mentioned in sub-clause (1) is public knowledge.

Clause 264	Inspector’s special report—presentation to Legislative Assembly
This clause outlines the requirements to present special reports to the Legislative Assembly. If the Legislative Assembly is sitting when the special report is completed, the report must be presented on the next sitting day. Alternatively, if the Legislative Assembly is not sitting when the special report is completed, arrangements will be made for the report to be distributed to all Members of the Legislative Assembly out of session and then formally presented on the next sitting day. This process does not apply to a confidential report as there are separate presentation requirements for this type of report. This clause also specifies who the special report must be given to in the event that the Speaker and Deputy Speaker are unavailable.

Part 5.7 – Inspector—annual operation review of commission
Clause 265 	Inspector—annual operation review of commission
This clause provides that the Inspector must assess the commission’s compliance with the Act each financial year, focussing on whether the Commission has acted within power and in compliance with legislation. 

While it is possible for the Inspector to consider the Integrity Commission’s conduct more generally, it is anticipated that the Inspector would not engage in a subjective and more broad-reaching assessment of whether the Integrity Commission’s approach to matters is preferable. However, the Inspector may wish to deal with issues of particular concern, and follow up on whether recommendations made to the Integrity Commission have been implemented. 

Clause 266 	Inspector—report on annual operational review
This clause provides that a report on the annual operational review must be provided to the Commission for comment. A reasonable opportunity must be provided for the Commission to comment on the proposed report. The Inspector must include a fair representation of the commission’s comments in the report. The Inspector must give the report to the Speaker and the Commission within 15 weeks after the end of the financial year. 

Part 5.8 – Inspector—annual reports
Clause 267 	Inspector—annual report 
This clause provides that the inspector must prepare an annual report under the Annual Reports (Government Agencies) Act 2004. This clause also specifies what the annual report must include.

Clause 268	Inspector—annual report not to include information contrary to the public interest
This clause specifies what should not be included in an annual report. 

Chapter 6	Protections for complainants 
This Chapter outlines provisions on the legal protections afforded to complainants without the complainant being left in fear of retaliation. This part is based on Part 7 of the Public Interest Disclosure Act 2012.

Clause 269 	Meaning of complaint and complainant
This clause defines a complaint and complainant. 

Clause 270	Immunity from liability 
This clause outlines the safeguards in place for those bringing a legitimate corruption complaint matter to light under the Bill. This clause makes clear that the usual secrecy, confidentiality or other ethical, professional and legal requirements do not apply once an assessment is made that a person has brought forward a genuine corruption complaint.  This includes a waiver from all civil and criminal liability that the person would otherwise incur because of making the corruption complaint.  For a complainant who is a public official or a member of staff of an MLA – the complainant is not liable to administrative action because of making the complaint. 

Clause 271 	Protection from defamation action
This clause specifies the protection from defamation action which is available to complainants. Under the HRA, a person has the right to privacy and reputation but also the right to impart information. In the case of corruption complaints, these competing rights must be balanced in a way that best preserves the public interest.  

Some corruption complaints are by their very nature likely to bring the reputation of others into question.  This clause clarifies that where a disclosure is damaging to a person’s reputation and that person sues the complainant for defamation, so long as the statements made by the complainant qualify as a corruption complaint, then the complainant is permitted to use the defence of absolute privilege against the defamation action.

Providing an absolute privilege is considered appropriate for corruption complaints because if they are a legitimate truth finding exercise that seeks to right wrongs then they should be treated the same as other areas of public life pursuing similar ends such as official inquiries and court proceedings. 

Clause 272 	Loss of protection
This clause limits protection to those who have made a complaint. If a person has knowingly provided false information or is vexatious, a court can find that the complainant is not permitted to rely on the protections available under the Bill.

Clause 273 	Liability for own conduct
This clause specifies the liability for the complainant’s own conduct. To avoid cases where a corruption complaint is made with the sole purpose of seeking the immunity provided under section 270, this clause clarifies that a person does not discharge their responsibility for their actions simply by making a corruption complaint.  The complainant does not become protected from the ramifications of their own conduct simply by couching it as a corruption complaint. 

Clause 274 	Meaning of detrimental action
This clause outlines the meaning of detrimental action in this Bill. This clause defines the kinds of responses to a corruption complaint that are unacceptable. Retaliation in the form of unfavourable treatment in relation to a person’s career or reputation is not permitted, nor is harassment or intimidation. Similarly, making real threats and causing damage or injury to a person or their property will be considered detrimental action under the Bill.

Clause 275	Offence—taking detrimental action	
This clause creates an offence of 100 penalty units, imprisonment for 1 year or both, if a person takes discriminating, harassing or intimidating action, or injures a person or damages a person’s property because they intend to disclose, have disclosed, or are thought to have disclosed information to the commission. This clause is modelled on section 40 of the Public Interest Disclosure Act 2012.

This clause is important to ensure the appropriate safeguards are in place for public officials and other people who may provide, or wish to provide information to the Commissioner. This may be particularly important, if the information a person wishes to provide is seen as compromising the reputation of a person or agency. 

It is intended that this will allow the Commissioner to fully consider all available information when exercising their function.

This power is one that is commonly given to investigative bodies and is consistent with the powers currently available to equivalent statutory authorities in the ACT.

It is intended that the criminal penalties serve as a deterrent to obstruction of the commission carrying out its functions and that they need only apply as a last resort protection against non-compliance. 

Clause 276 	Damages for detrimental action
This clause outlines that a person is able seek compensation from another person who retaliates against the person for making a corruption complaint.  It has been left for the court to decide the appropriate remedies available to a complainant who suffers a reprisal.

Clause 277	Injunction to prevent detrimental action etc
This clause allows the Supreme Court to issue an order to stop or prevent detrimental action occurring. The clause also states who an application can be made by. 

To give greater weight to the likelihood that a case will be prosecuted, not only can a person who suffers for making a corruption complaint seek an injunction under the Bill, but the Commissioner can also apply to the court on behalf of someone suffering reprisal action.

Chapter 7 	Miscellaneous
Clause 278	Offences—use or divulge protected information
This clause protects the confidentiality of any information that the Commissioner or a member of the staff of the Commission has access to because of the Act.

Clauses 278(1) and (2) create offences for such persons to use, share or divulge information. The information may only be exchanged or shared under the Act or another Territory law, in relation to the exercise of a function under this Act or another Territory law or in a court proceeding. 

This is an important provision intended to protect the privacy of persons about whom the Commission has collected information. It is also intended to prevent inappropriate disclosure of information about secretive investigative techniques and methods used by the Commission. 

Clause 279	Protection of officials from liability 
This clause protects the commissioner and a member of staff of the commission from being civilly liable for things done for the purpose of putting the Act into effect, provided that it acts honestly and not recklessly. The liability that would otherwise have attached to the commission instead attaches to the Territory.

Clause 280	Information guidelines 
This clause provides that the Commission must, in consultation with the Information Privacy Commissioner, make guidelines about the handling of information. An information guideline is a notifiable instrument.

Clause 281	Regulation making power
This clause is a formal provision giving the Executive power to make regulations under the Act. The existence of a regulation making power does not oblige the Executive to make regulations. Any regulations made must be consistent with any provisions of the Act. Regulations are intended to provide for more detailed rules and operation of an Act where necessary.

This clause provides a requirement for the Executive to consult with the Integrity Commissioner and the relevant Assembly committee before any regulation can be made for the Act. This is an important mechanism to regulate the regulation making power given to the Executive to ensure that the Integrity Commissioner and the relevant Assembly committee participate in the development of any proposed regulations.

In addition, the clause provides that any regulation that is made cannot commence until after the period for disallowance has concluded or a motion to disallow has been rejected by the Assembly. This ensures that any regulations made by the executive are consistent with the views of the Assembly and cannot operate without having effectively secured Assembly support.
 
Clause 282	Review of Act  
This clause requires the Minister, in consultation with the Speaker, to arrange for the review of the operation of the Act as soon as practicable after the end of its fifth year of operation. It also requires the Minister to present a report of the review to the Legislative Assembly within a timeframe decided in consultation with the Speaker.

Chapter 8 	Consequential amendments
Chapter 8 of the Bill comprises clause 283, which amends the legislation mentioned in Schedule 1 of the Act. 

Clause 283	Legislation amended—sch 1
This clause is a formal provision that outlines consequential amendments to other Territory Acts mentioned in schedule 1.

Schedule 1 makes consequential amendments to the:

•	Bail Act 1992
•	Children and Young People Act 2008
•	Co-operatives National Law (ACT) Act 2017
•	Corrections Management Act 2007
•	Criminal (Assumed Identities) Act 2009
•	Crimes (Controlled Operations) Act 2008
•	Crimes (Protection of Witness Identity) Act 2011
•	Crimes (Surveillance Devices) Act 2010
•	Criminal Code 2002
•	Freedom of Information Act 2016
•	Gambling and Racing Control Act 1999
•	Information Privacy Act 2014
•	Legislation Act 2001
•	Mental Health Act 2015
•	Mental Health (Secure Facilities) Act 2016
•	Public Interest Disclosure Act 2012
•	Remuneration Tribunal Act 1995
•	Terrorism (Extraordinary Temporary Powers) Act 2006
•	Victims of Crime Act 1994.

These consequential amendments ensure a co-ordinated approach to the oversight of integrity in the ACT and provide that the new role of the Commissioner is reflected in other relevant Territory laws.

Schedule 1 Consequential amendments
Part 1.1 Bail Act 1992
This amendment prevents a contravention of a provision of this Act by a police officer from the Integrity Commission. 

Part 1.2 Children and Young People Act 2008
These amendments protect communications between young persons detained in the Bimberi Youth Justice Centre and the Integrity Commission. The amendments are intended to prevent Bimberi staff from inappropriately reading or listening to such communications.

Part 1.3 Co-operatives National Law (ACT) Act 2017
This amendment adds the commission to a list of entities that information may be divulged to.

Part 1.4 Corrections Management Act 2007
These amendments similarly protect the communications of detainees in the Alexander Maconochie Centre and the Integrity Commission.

Part 1.5 Crimes (Assumed Identities) Act 2008
These amendments empower the Commissioner to authorise investigation officers to adopt false identities for the purpose of a controlled operation.

Part 1.6 Crimes (Controlled Operations) Act 2008
These amendments grant the Commissioner power to authorise and conduct controlled operations to gather evidence for a corrupt conduct investigation.
 
Part 1.7 Crimes (Protection of Witness Identity) Act 2011 
These amendments protect the identity of persons involved in controlled operations conducted by the Commission.

Part 1.8 Crimes (Surveillance Devices) Act 2010
These amendments empower the Commissioner to authorise the use of surveillance devices as part of an investigation into corrupt conduct.

The Commissioner is not granted power to authorise the use of a surveillance device without a judicial warrant.

Part 1.9 Criminal Code 2002 	
This amends the definition of ‘public official’ in the Criminal Code 2002 to specifically include staff and advisers of MLAs. This allows these persons to be prosecuted for offences that relate to ‘public officials’ under the Code, such as abuse of public office.

Part 1.10 Freedom of Information Act 2016 
This amendment exempts the Integrity Commission from the requirements of the Freedom of Information Act 2016 when the Commission is exercising its investigative functions.

The Commission must comply with the FOI Act’s requirements when exercising administrative functions.

This position aligns with exemptions granted to other Officers of the Legislative Assembly.

Part 1.11 Gambling and Racing Control Act 1999
This amendment adds the Commission to a list of entities that the gaming officer is permitted to disclose information in relation to the administration of a gaming law.

Part 1.12 Information Privacy Act 2014 
This amendment provides the Commissioner as an enforcement body and an enforcement-related activity under section 14.

Part 1.13 Legislation Act 2001	
This amendment adds the Integrity Commission and the Integrity Commissioner to the definitions within the Legislation Act 2001.

Part 1.14 Mental Health Act 2015	
This amendment includes the Integrity Commission into the definition of a court.

Part 1.15 Mental Health (Secure Facilities) Act 2016	
This amendment protects communications between persons detained in the Adult Mental Health Unit (AMHU) and the Integrity Commission. The amendments are intended to prevent AHMU staff from inappropriately reading or listening to such communications.

Part 1.16 Public Interest Disclosure Act 2012	
This amendment includes the Integrity Commissioner as a disclosable officer.
 
Part 1.17 Remuneration Tribunal Act 1995	
This amendment includes the Integrity Commissioner and CEO into Schedule 1, Part 1.2, so that the Remuneration Tribunal can determine their remuneration, allowances and other entitlements.

Part 1.18 Terrorism (Extraordinary Temporary Powers) Act 2006
This amendment provides that a person detained under a preventative detention order is entitled to contact, and be contacted by, the Integrity Commissioner.

Part 1.19 Victims of Crime Act 1994
This amendment adds the Commission into a list of entities defined as a relevant complaints entity.

Dictionary
The dictionary contains definitions for terms used in the Act.

Analysis of each recommendation against the Integrity Commission Bill 2018
Recommendation	Position incorporated into the Integrity Commission Bill 2018	Government Response position	
Jurisdictional integrity context		
Recommendation 1: The Committee recommends that the ACT Government establish a standing ACT independent integrity body to investigate corruption in public administration and strengthen public confidence in government integrity.	Agreed.
The Integrity Commission Bill 2018, a Bill for an Act to establish the 
ACT Integrity Commission, and for other purposes.
	Agreed.	
Recommendation 2: The Committee recommends that the ACT Government finalise the establishment of a standing ACT independent integrity body by the end of 2018.	Agreed in principle, non-legislative response required. 
Exact measures taken to implement this Recommendation will be subject to the Select Committee and Legislative Assembly.	Agreed in principle. 	
Recommendation 3: The Committee recommends that any proposed bill for the establishment of a standing ACT independent integrity body be referred to an ACT Legislative Assembly committee for inquiry and report.	Agreed in principle, non-legislative response required. A motion to establish a new Select Committee was passed on 6 June 2018. 	Agreed.	
Guiding principles informing elements of design, form, functions and powers		
Recommendation 4: The Committee recommends that a standing ACT independent integrity body should have as its primary objective(s) to investigate, expose and prevent corruption and foster public confidence in the integrity of the ACT Government. 	Agreed.
Clause 6 - Object of the Act 	Agreed in principle.	
Recommendation 5: The Committee recommends that a standing ACT independent integrity body should have the following functions: (a) investigation, referral and reporting; (b) corruption prevention (including research and risk mitigation); and (c) public education. 	Agreed.
Part 2.1 – Functions of the Commission (clause 23) and Commissioner (clause 24)
	Agreed in principle.	
Recommendation 6: The Committee recommends that the corruption prevention function of a standing ACT independent integrity body should include communicating and disseminating (as it concerns research, risk mitigation and prevention) lessons learned from investigation outcomes. 	Agreed.
Part 2.1 – Functions of the Commission (clause 23) and Commissioner (clause 24)
	Agreed.	
Recommendation 7: The Committee recommends that the public education function of a standing ACT independent integrity body should be focused on upholding and modelling high levels of probity and ethics together with communicating the outcomes of investigations, facilitating transparency, and awareness of corruption issues.	Agreed.
Part 2.1 – Functions of the Commission (clause 23) and Commissioner (clause 24)
 	Agreed in part.	
Recommendation 8: The Committee recommends that the focus of a standing ACT independent integrity body should be on corruption and integrity connected with public administration.	Agreed.
Clause 9 - Meaning of corrupt conduct by a person
Clause 10 – Meaning of corrupt conduct by a public official	Agreed.	
Recommendation 9: The Committee recommends that a standing ACT independent integrity body should be named as an Anti-Corruption and Integrity Commission (ACIC) to ensure consistency with theory and practice and to accurately reflect its objectives, functions and relationships with other integrity stakeholders.	Noted. The reasons are outlined in the Government Response.
The Government has decided to name the new entity, the 
ACT Integrity Commission.
Part 2.1 – Establishment, independence  and functions	Noted.	
Jurisdiction and scope of conduct		
Recommendation 10: The Committee recommends that the substantive jurisdiction of an ACT Anti-Corruption and Integrity Commission should cover all public officials.  Public officials is to include all persons receiving a salary, wages or other payment from the ACT Government Service, its statutory authorities, agencies or boards.  This would include parties delivering contracted work or services on behalf of government. 	Agreed in part.
Clause 11 - Meaning of public official 
Clause 12 - Meaning of public sector entity
Clause 16 - Meaning of entity of a public nature
As outlined in the Government Response, the Government does not support the inclusion of judicial officers within the oversight of the Integrity Commission. There is sufficient oversight through the Judicial Council and Judicial Commission. This model ensures that separation of powers is maintained. In February 2017, the Judicial Council was established to have jurisdictional responsibility for judicial officers, which includes Judges, Associate Judges, Magistrates and a Presidential Member of the ACT Civil and Administrative Tribunal. 
It is important that the Judicial Council is given the opportunity to operate without compromising its judicial independence. 	Agreed in part.	
Recommendation 11: The Committee recommends that in investigating possible wrongdoing or impropriety on the part of a public official in exercising their official functions that the substantive jurisdiction of an ACT Anti-Corruption and Integrity Commission may extend to the conduct of third parties, i.e., where the third parties’ conduct would give rise to (or could give rise to) wrongdoing.	Agreed.
Clause 9 - Meaning of corrupt conduct by a person
Clause 11 - Meaning of public official 
Clause 12 - Meaning of public sector entity
Clause 16 - Meaning of entity of a public nature
	Noted.	
Recommendation 12: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) should have oversight over policing officers funded to deliver services by and to the ACT taxpayer and community.	Agreed. 
The Australian Capital Territory (Self-Government) Act 1988 (Cth) currently prevents the Legislative Assembly from making laws for the provision by the Australian Federal Police of police services to the Territory. A Memorandum of Understanding with the Australia Federal Police is in place to provide policing services to the Territory.

A provision has been included in the Bill to allow for ACT Policing to fall into the jurisdictions of the Integrity Commission, subject to Commonwealth legislative changes (see clause 2). 

The Government Response agreed with this recommendation in principle. The Government has written to the Commonwealth about this matter.
	Agreed in principle.	
Recommendation 13: The Committee recommends, as it concerns ACT Policing, that the enabling legislation for an ACT Anti-Corruption and Integrity Commission (ACIC), together with a Memorandum of Understanding with the Australian Commission for Law Enforcement Integrity (ACLEI), must:
(a)	provide for the ACLEI to refer corruption matters relating to ACT Policing to the ACT ACIC;
(b)	provide for the ACT ACIC to operate cooperatively with ACLEI and other agencies, including those in other jurisdictions for joint investigations and information sharing;
(c)	establish an appropriate framework for inter-agency coordination; and
(d)	establish an appropriate framework for information sharing to enable the exchange of relevant intelligence and documentation when an investigation is commenced.	Agreed in principle.
This is subject to Commonwealth legislative changes. However the Bill provides for the Integrity Commission to enter into agreements or arrangements with other entities.

Part 2.5 - Commissioner—cooperation with other entities
Clause 100 - Investigation may be conducted as joint investigation	Noted.	
Recommendation 14: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) have oversight over Members of the Legislative Assembly (MLAs), MLA staff, and Judicial Officers. 	Agreed in part.
Clause 11 - Meaning of public official 
Clause 12 - Meaning of public sector entity
The Government does not support the inclusion of judicial officers within the oversight of the Integrity Commission. 
	Agreed in part.	
Recommendation 15: The Committee recommends, as it concerns Members of the Legislative Assembly (MLAs), MLA staff, and Judicial Officers, that the enabling legislation for an ACT Anti-Corruption and Integrity Commission (ACIC) must:
(a)	ensure that judicial independence and parliamentary privilege is maintained;
(b)	have regard to the separation of powers;
(c)	with respect to parliamentary privilege, clearly define the boundaries between the powers of an ACT ACIC and parliamentary privilege;
(d)	include a legislated process to deal with items that might be subject to disputed claims of privilege;
(e)	make it clear that any code of conduct binding MLAs, MLA staff, and Judicial Officers augments and does not restrict the definition of corruption included in the Act; and
(f)	establish a process where conduct crosses over into other jurisdictions—that, an ACT ACIC shall first take the decision to proceed with an investigation. 
	Agreed in part.
Clause 7 - Application of the Act—Parliamentary privilege
Part 2.5 - Commissioner—cooperation with other entities
Division 3.7.2 - Application of privilege
Division 3.7.3 - Parliamentary privilege
	Agreed in part.	
Recommendation 16: The Committee recommends, as it concerns the ACT Legislative Assembly, that the enabling legislation for an ACT Anti-Corruption and Integrity Commission (ACIC) specify the requirement for a Memorandum of Understanding (MOU) between the statutory head of the ACIC and the Speaker of the ACT Legislative Assembly on the execution of a judicially approved search warrant on the premises of the Legislative Assembly. 	Agreed.
Part 2.5 - Commissioner—cooperation with other entities
Division 3.7.3 - Parliamentary privilege	Agreed in principle.	
Recommendation 17: The Committee recommends that the definition of ‘corrupt conduct’, as set out in Part 3 of the NSW Independent Commission Against Corruption Act 1988, should form the definition of ‘corrupt conduct’ in the enabling legislation of an ACT Anti-Corruption and Integrity Commission.	Agreed in part and aligned with current laws of the Territory.
Clause 9 - Meaning of corrupt conduct by a person
Clause 10 - Meaning of corrupt conduct by a public official

The definition of corrupt conduct in the Bill is based on Part 3 of the NSW Independent Commission Against Corruption Act 1988, drafted to reflect ACT legislation. The limitation on the nature of corrupt conduct that NSW uses in relation to misconduct and disciplinary issues is not replicated in the Bill. The Government is of the view that there are existing provisions and oversight mechanisms in place for dealing with misconduct of Members of the Legislative Assembly, Statutory Office Holders, ACT public sector employees and third party contractors (through contracts). Disciplinary issues will continue to be dealt with under applicable codes of conduct provisions.	Noted. 	
Recommendation 18: The Committee recommends that an ACT Anti-Corruption and Integrity Commission’s (ACIC) scope of conduct be focused on investigating matters where they involve serious or systemic corruption.  While the Committee believes that the focus should necessarily be on serious and systemic corruption, any legislation should not be drafted in a way that would unduly limit the scope of an ACT ACIC.	Agreed. 
Clause 6 - Object of the Act
Part 2.1 - Functions of the Commission (clause 23) and Commissioner (clause 24)
	Agreed in part.	
Recommendation 19: The Committee recommends that the terms ‘serious’ and ‘systemic’ should each be defined in an ACT Anti-Corruption and Integrity Commission’s enabling legislation—as follows:
(a)	‘serious corruption’ should be defined as corrupt conduct that is likely to threaten public confidence in the integrity of government; and
(b)	‘systemic corruption’ should be defined as it is in the Australian Commission for Law Enforcement Integrity (ACLEI) statute—that is, as a pattern of corrupt conduct.	Agreed.
Clause 17 - Meaning of serious corrupt conduct
Clause 18 - Meaning of systemic corrupt conduct
	Noted.	
Recommendation 20: The Committee recommends that the ACT Government take advice as to whether the concept of ‘corrupt conduct’ adopted in the enabling legislation of an ACT Anti-Corruption and Integrity Commission is reflected in the terms of offences under the Criminal Code 2002.  If it is not reflected, the Committee recommends that the Code should be amended so that it defines in statute the new standard or offence of ‘corrupt conduct’.	Noted. 
Schedule 1 - Consequential amendments, Part 1.8 - Criminal Code 2002

It is not necessary to insert new offences into Criminal Code 2002 (ACT) at this time. The Code definition of ‘public official’ will be amended to include MLA staffers and advisors. 
	Noted.	
Recommendation 21: The Committee recommends that an investigation threshold of ‘reasonable suspicion‘ (as per the Victorian Independent Broad-based Anti-corruption Commission Act 2011) of the occurrence of corrupt conduct be required for an ACT Anti-Corruption and Integrity Commission to commence an investigation.	Agreed. 
Clause 97 - Commission may investigate corruption report
	Noted.	
Recommendation 22: The Committee recommends that an ACT Anti-Corruption and Integrity Commission have the power to conduct preliminary investigations that do not include the use of coercive authority.	Agreed. 
Part 3.3 - Preliminary inquiries
The Commission has limited powers during the preliminary inquiry stage. These powers are not coercive because persons can claim all privileges and duties of secrecy during the preliminary inquiry stage, including the privilege against self-incrimination.	Noted.	
Recommendation 23: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) must be visible, accessible and a contact point for: (a) citizens and public servants to make complaints and report corruption concerns; (b) referrals from within government (ACT Public Service); (c) referrals from other integrity stakeholders/bodies; and (d) referrals from other designated stakeholders.	Agreed.
Part 3.1 - Reporting corrupt conduct 	Agreed.	
Recommendation 24: The Committee recommends that complaints/referrals as received by an ACT Anti-Corruption and Integrity Commission (ACIC) are to be triaged using set criteria—such as: dismiss/refer/investigate.  The triage criteria as detailed in the Victorian Independent Broad-based Anti-corruption Commission Act 2011 are a useful reference point.	Agreed.
Division 3.1.3 - Reports must be dismissed, referred or investigated
	Noted.	
Recommendation 25: The Committee recommends that confidentiality requirements are to apply to all complaints and referrals as received by an ACT Anti-Corruption and Integrity Commission (ACIC) until such time as the Commission decides to conduct public hearings or report. 	Agreed. 
Part 3.2 - Confidentiality notices
Part 3.10 - Secrecy and information sharing
Clause 198 – Offence – disclose information received by the commission
Clause 194 – Disclosure of information by the Commission
Clause 277 - Offence—use or divulge protected information	Agreed.	
Recommendation 26: The Committee recommends that mandatory reporting should apply within the ACT Public Service—such that 
Directors-General (and equivalents) have a duty to notify an ACT Anti-Corruption and Integrity Commission of any information or allegation that raises a corruption issue in his or her agency.  Further, these requirements for mandatory reporting should be accompanied by the development of guidelines to assist those to whom mandatory reporting provisions apply. 	Agreed. 
Division 3.1.2 – Mandatory corruption notifications by public sector entities
Clause 62 Directions about mandatory corruption notifications	Noted.	
Recommendation 27: The Committee recommends that where Directors-General (and equivalents) knowingly or wilfully fail to comply with an ACT Anti-Corruption and Integrity Commission’s duty to notify it of any information or allegation that raises a corruption issue in their agency, penalties should apply. 	Noted. 
The Bill does not impose a penalty on heads of public sector entities to report, as recommended by the Select Committee. However, it does allow the commission to advise of a breach of duty and to notify to a person or body who has the power to take disciplinary action against the head of the public sector entity. If a head of public sector entity knowingly or wilfully failed to address corruption within their agency, they would be in breach of their code of conduct and potentially subject to disciplinary action. It is likely that they would also fall under the jurisdiction and scope of conduct for investigation by the Integrity Commission. It appears that none of the anti-corruption bodies in other jurisdictions provide an offence on breach of duty to notify.
The Government is of the view that a legislative requirement to report corruption matters to the Integrity Commission should be sufficient, instead of imposing penalties through a fine or sanction.	Noted.	
Recommendation 28: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) should be empowered to take steps to protect the safety of anyone providing assistance to it or anyone consequently at risk.  Appropriate provisions should be put in place to ensure protection of complainants or persons making reports, for example, protection from reprisals and victimisation.  The Committee considers that these protections would be consistent with protections in other legislation.	Agreed.
Chapter 6 – Protections for complainants	Noted.	
Relationships with other integrity stakeholders		
Recommendation 29: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) as informed by its purpose, should have a role in fostering public confidence in an integrity context and bring an authoritative leadership, organising and coordinating focus to the ACT public sector and parliamentary integrity framework.	Agreed in principle.
Clause 6 - Object of the Act
Part 2.1 - Functions of the Commission (clause 23) and Commissioner (clause 24)
	Noted.	
Recommendation 30: The Committee recommends, as it concerns relationships with other integrity stakeholders, that an ACT Anti-Corruption and Integrity Commission’s (ACIC) enabling legislation, at a minimum, should:
(a)	provide for the ACIC to operate cooperatively with other integrity agencies, including those in other jurisdictions—for joint investigations or information sharing with these jurisdictions;
(b)	provide an appropriate framework for inter-agency coordination;
(c)	detail information sharing provisions to enable the exchange of relevant intelligence and documentation when an investigation is commenced;
(d)	provide for appropriate referral mechanisms which allow the ACIC to refer matters to other bodies, that fall outside its jurisdiction and scope of conduct;
(e)	provide the ACIC, in referring matters to other integrity stakeholders, with power to give directions and guidance with regard to the conduct of the matter and to require the agency to provide a report as to the investigation undertaken and its results;
(f)	include, where the ACIC refers a complaint or report concerning an MLA to the Commissioner for Standards to specify that the Commissioner be obligated (as opposed to compelled) to provide a report as to the outcome of the referral.  The ACIC will be able to report publicly that it has made such a referral and this will leave the onus on the ACT Legislative Assembly to explain what has happened to the referral; and
(g)	include, where the ACIC refers a complaint or report concerning a member of the Judiciary to the Judicial Council, to specify that the Judicial Council be obligated (as opposed to compelled) to provide a report as to the outcome of the referral.  The ACIC will be able to report publicly that it has made such a referral and this will leave the onus on the Judicial Council to explain what has happened to the referral.	Agreed in part. 
Part 2.5 - Commissioner—cooperation with other entities (recommendation 30a and b)
Clause 100 - Investigation may be conducted as joint investigations (recommendation 30a and b) 
Division 3.4.2 - Referring matters to another entity (recommendation 30d, e and f)
Clause 65 - When corruption reports must be dismissed (recommendation 30c)
Part 3.10 - Secrecy and information sharing (recommendation 30a , c and d)
Clause 194 - Disclosure of information by commission (recommendation 30a, c and d)

Recommendation 30(g) does not apply as the commission will not have oversight of judicial officers (see comments against recommendation 10). Division 3.1.3 (Reports must be dismissed, referred or investigated) and clause 194 (Disclosure of information by commission) will provide a mechanism for the commission to provide complaints that fall outside their jurisdiction to other entities who have the power to investigate the complaint.  	Noted.
	
Powers		
Recommendation 31: The Committee recommends that an ACT Anti-Corruption and Integrity Commission have own motion powers for the purposes of investigating, exposing and preventing corruption and fostering public confidence in the integrity of the ACT Government.	Agreed.
Clause 98 - Commission may investigate on own initiative	Agreed in principle.	
Recommendation 32: The Committee recommends that an ACT Anti-Corruption and Integrity Commission have powers to: (a) require attendance by witnesses and compel answers to questions; (b) apply for warrants to search properties and seize evidence; and (c) apply for warrants to engage in covert tactics—including: listening devices and optical surveillance.	Agreed in part. 
The Integrity Commission will have the power to issue summons to attend and give evidence, produce documents and other things and compel answers to questions. 

The Integrity Commission must apply for a warrant to execute the majority of its covert powers. For example installing listening devices and optical surveillance devices under the Crimes (Surveillance Devices) Act.

However, the Integrity Commission does not need a warrant to authorise a controlled operation or an assumed identity under the Crimes (Controlled Operations) Act and the Crimes (Assumed Identities) Act. Warrants are not required under the existing arrangements of these Acts. It is standard practice for controlled operations and assumed identities to be authorised without judicial approval. The Government does not wish to depart from this model at this time.
	Noted.	
Recommendation 33: The Committee recommends that an ACT Anti-Corruption and Integrity Commission’s (ACIC) enabling legislation must contain mechanisms to ensure procedural fairness and to guard against its investigative and coercive powers being abused.  This should include safeguards to avoid any unwarranted violation of personal rights of a person under investigation; and placing reasonable limits on the circumstances in which such powers can be exercised.  This should include:
(a)	requiring that when witnesses are summonsed that they be given notice of the subject matter that will be discussed (provided it does not unduly prejudice the investigation);
(b)	ensuring that warrants that are issued for an ACIC investigation are issued by the Courts rather than the Commission itself;
(c)	any action to engage in covert tactics should be subject to obtaining a warrant through a judicial officer;
(d)	as it concerns engaging in a controlled operation—that detailed and prescriptive criteria should be included in any legislation which permits the ACIC to engage in these activities and that punitive measures should also be in place to protect against unauthorised controlled operations in connection with an ACIC’s work;
(e)	evidence gathered about unrelated third parties should form no part of an ACIC’s  investigation (unless it is relevant to the investigation);
(f)	that evidence given by a suspect under compulsion cannot be used against that suspect in any subsequent prosecutions; and
(g)	if proceedings are proceedings for an indictable offence, an ACIC must, to the extent it thinks it is necessary to do so, ensure that the accused’s right to a fair trial is not prejudiced.	Agreed and agreed in part.  

(a)	Agreed – clause 142 Examination summons - content
(b)	Agreed – all warrants will be issued by the Courts, rather than the Commission. 
(c)	Agreed in part – see above recommendation 32.
(d)	Agreed – the Commission will be required to comply with existing safeguards in the Crimes (Controlled Operations) Act.
(e)	Agreed – multiple provisions, including clauses about commencing an investigation, requirements for summonsing witness, limits on coercive powers and oversight of coercive powers.
(f)	Agreed – clause 175 implements use and derivative use immunity
(g)	Agreed in part – clause 73 (confidentiality notices for investigations) and clause 99 (investigation may be conducted during court proceeding). These protections apply to all proceedings before courts and tribunals, not just proceedings for an indictable offence.	Noted.	
Recommendation 34: The Committee recommends that an ACT Anti-Corruption and Integrity Commission’s enabling legislation must provide that the protections afforded by legal professional privilege and privilege against self-incrimination respectively are waived in circumstances where the Commission uses its power to compel the production or giving of evidence. 	Agreed in part.
Clause 174 - Privileges against self-incrimination and exposure to civil penalty do not apply

The Bill provides for legal professional privilege to be claimed which ensures that the Bill is human rights compliant. By restricting legal professional privilege would prevent the Bill from meeting the Territory’s human rights obligations. Any claim of privilege (known as a bare claim of privilege) will be determined by the Supreme Court which will undertake a balancing exercise to determine whether the privilege should be waived or not	Agreed.
	
Recommendation 35: The Committee recommends that an ACT Anti-Corruption and Integrity Commission is not bound by the rules of evidence and can inform itself on any matter in such a manner as it sees fit.	Agreed.
Clause 137 - Conduct of examination
	Noted.	
Recommendation 36: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) should not have the power: (a) to engage in integrity testing; and (b) arm its officers.

	Agreed.
The Bill does not give the Integrity Commission the power to engage in integrity testing or arm its officers.
	Noted.	
Recommendation 37: The Committee recommends, to ensure consistency with the powers of the Australian Commission for Law Enforcement Integrity (ACLEI), where it concerns conduct of ACT Policing officers, that an ACT Anti-Corruption and Integrity Commission have the power to engage in integrity testing.	Noted. 
The Self-Government Act prevents the ACT Government from passing laws about policing services. See comments against recommendation 12 and 13.

Part 2.5 - Commissioner—cooperation with other entities
Clause 100 - Investigation may be conducted as joint investigation
	Noted.	
Recommendation 38: The Committee recommends that an ACT Anti-Corruption and Integrity Commission have the power to make findings of fact that corruption has occurred and that such a finding is not to be taken as a finding of guilt. 	Agreed.
Part 3.9 - Completing an investigation—investigation report 	Agreed.	
Recommendation 39: The Committee recommends that an ACT Anti-Corruption and Integrity Commission’s enabling legislation must explicitly restrict the Commission from reaching formal determinations of law, including findings of criminal guilt, as this would usurp the judicial role and violate the separation of powers.	Agreed. 
Clause 181 - Investigation report—not to include findings of guilt etc or recommendations about prosecution	Agreed.	
Recommendation 40: The Committee recommends that an ACT Anti-Corruption and Integrity Commission institute an Exoneration Protocol that can be accessed in circumstances where an individual is subsequently exonerated or cleared of any personal corruption—after a finding of corruption.  The Protocol amongst other things should include:
(a)	a mechanism for public acknowledgement of the exoneration or clearance of any person if corruption is not found after the person’s reputation has been attacked publicly; and
(b)	the development of guidelines to govern such a process.

	Agreed.
Clause 200 - Outcome of prosecutions to be published
Clause 201 - Exoneration guidelines	Noted.	
Recommendation 41: The Committee recommends that an ACT Anti-Corruption and Integrity Commission should not have powers to make disciplinary decisions nor manage a mediation program.
	Agreed.
The Bill does not give the Integrity Commission the power to make disciplinary decisions nor manage a mediation program.
	Agreed.	
Recommendation 42: The Committee recommends that where an ACT Anti-Corruption and Integrity Commission refers a complaint or report to an integrity counterpart it should be informed (where applicable) of the outcome of any disciplinary proceedings.	Agreed.
Clause 177 - Commission may make private recommendation at any time	Noted.	
Recommendation 43: The Committee recommends that an ACT Anti-Corruption and Integrity Commission should have the power to take action for, and where applicable take action against any contempt of the Commission (subject to parliamentary privilege).	Agreed.
Division 3.6.3 - Examinations—contempt	Noted.	
Recommendation 44: The Committee recommends that an ACT Anti-Corruption and Integrity Commission should not have the power to take action against a person for an act or omission where it is established that there was a reasonable explanation for the act or omission concerned.	Agreed - as a common defence to various offences throughout the Bill.
Division 3.6.3 - Examinations—contempt	Noted.	
Recommendation 45: The Committee recommends than an ACT Anti-Corruption and Integrity Commission be empowered to refer suspected instances of criminality to appropriate authorities, subject to existing legal restrictions against reliance on derivative evidence by those authorities.	Agreed.
Clause 175 - Privileges against self-incrimination and exposure to civil penalty - use and derivative use immunity
Clause 103 - Commission may refer corruption reports to referral entity
Clause 106 - Commission may refer matters to prosecutorial body	Agreed in principle.	
Recommendation 46: The Committee recommends that sufficient resources need to be provided to the ACT Office of the Director of Public Prosecutions to manage any increase in workload that may arise in connection with referrals from an ACT Anti-Corruption and Integrity Commission.	Agreed in principle, non-legislative response required. 
Measures taken to implement this Recommendation will be subject budget consideration in the future.	Noted.	
Recommendation 47: The Committee recommends that enabling legislation for an ACT Anti-Corruption and Integrity Commission include provisions that: (a) will regulate the manner in which evidence is gathered and shared with other agencies so as to improve the prospects of that material being used in subsequent prosecutions and to minimise any risk that such evidence will be misused; and (b) set out a mechanism for timely communication between the Commission and the ACT Director of Public Prosecutions to assist in pursuing matters of mutual interest.	Agreed. 
Clause 106 - Commission may refer matters to prosecutorial body
Clause 194 - Disclosure of information by commission
Clause 100 - Investigation may be  conducted as joint investigations
Part 2.5 - Commissioner—cooperation with other entities

 	Noted.	
Recommendation 48: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) should have the power to publicly report the findings that result from any investigation, including findings of serious and systemic corruption and their relevant factual foundations.  The power to report should include:
(a)	powers to report and bring to the attention of the Assembly and the public findings and recommendations in relation to specific investigations;
(b)	a statutory power of ‘follow-up’—the ability to report publicly on the Government’s compliance (or lack thereof) with past reports and recommendations;
(c)	power to make a special (confidential) report to the designated Assembly oversight committee—where the statutory head of the ACIC considers that the disclosure of the information in a report to the Assembly would, on balance be contrary to the public interest; and 
(d)	power to decline to report a matter which, in the opinion of the statutory head of the ACIC, should remain confidential.	Agreed.
Part 3.8 - Recommendations
Part 3.9 - Completing an investigation—investigation report
Chapter 4 - Commission—reporting
	Noted.	
Recommendation 49: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) be provided with exceptions to public disclosure in the form of reporting where disclosure, based on a public interest test, would compromise an ongoing investigation, place an individual in danger, or prejudice an upcoming judicial proceeding.	Agreed.
Clause 182 - Investigation report—not to include finding of corrupt conduct unless serious corrupt conduct
Clause 181 - Investigation report—not to include findings of guilt etc or recommendations about prosecution
Clause 190 - Confidential investigation reports 
Part 3.10 - Secrecy and Information sharing
	Noted.	
Recommendation 50: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) have the power to deal with vexatious complainants.  This power should take the form of the statutory head of the ACIC having discretion to not proceed where there are reasonable grounds to believe that a complaint is vexatious.	Agreed.
Division 3.1.3 (Reports must be dismissed, referred or investigated) 	Noted.	
Recommendation 51: The Committee recommends that an ACT Anti-Corruption and Integrity Commission have the power to impose appropriate penalties on those complainants, who knowingly or wilfully make false or misleading claims or complaints.	Agreed in principle. 
It is an offence under section 338 of the Criminal Code 2002 to give false or misleading information to the Commission, including making a false corruption report. Notes have been included in the Bill to advise that it is an offence to knowingly or wilfully make false or misleading claims or complaints, referring to section 338 of the Criminal Code. 	Noted.	
Recommendation 52: The Committee recommends that an ACT Anti-Corruption and Integrity Commission (ACIC) should not be limited as to the timeframes around which former actions can be assessed; but is of the opinion that the operational focus of an ACT ACIC should largely be prospective and focused on current matters.	Agreed. 
Clause 8 - Application of Act—conduct that happened before the commencement of this Act
Clause 65 - When corruption reports must be dismissed	Agreed in part.	
Power to hold public hearings		
Recommendation 53: The Committee recommends that an ACT Anti-Corruption and Integrity Commission’s enabling legislation refer to examinations (public and private) as opposed to hearings (public and private) to reinforce the investigatory proceeding that applies.
	Agreed. 
Part 3.6 Examinations
	Noted.	
Recommendation 54: The Committee recommends that an ACT Anti-Corruption and Integrity Commission should have the power to hold public examinations.  The decision on whether to hold public or private examinations should be informed by a public interest test.	Agreed.
Clause 138 - Examinations may be public or private
	Noted.	
Recommendation 55: The Committee recommends that when determining whether a public or private examination should be held, the following should be considered by an ACT Anti-Corruption and Integrity Commission in making that decision:
(a)	the benefit of exposing to the public, and making it aware, of corrupt conduct;
(b)	the seriousness of the allegation or complaint being investigated;
(c)	any risk of undue prejudice to a person's reputation (including prejudice that might arise from not holding an examination); and
(d)	whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.	Agreed in part.
Clause 138 - Examinations may be public or private

Recommendation is implemented with modifications that include further human rights considerations. 
	Noted.	
Recommendation 56: The Committee recommends that the statutory head of an ACT Anti-Corruption and Integrity Commission, as it concerns a decision to hold a public examination be subject to a statutory requirement to ‘sign a statement explaining why the public interest outweighs the potential for prejudice or privacy infringements’, provide a copy to the person to be the subject of the examination, and give that person the opportunity to ‘make representations as to why the statement may be incorrect’.	Noted.
It is not necessary to require the Commissioner to provide reasons for every decision to hold a public examination. If a witness feels a decision to hold a public examination was not appropriate, they can request a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 (ACT). They can also request the Commissioner to reconsider their decision to hold a public examination under clause 140(4) – Commission may give directions. 	Noted.	
Recommendation 57: The Committee recommends that an ACT Anti-Corruption and Integrity Commission be required to conduct its examinations, especially those open to the public, in accordance with Lord Justice Salmon’s principles of fair procedure for public inquiries.

	Agreed in part.
Clause 137 - Conduct of examination
The Integrity Commission will be required to conduct its procedure in a manner consistent with natural justice and the Salmon Principles. It is not a requirement that these principles be specifically referenced in the Bill as they may be overly prescriptive and formalistic. Instead, the Bill adopts a more general direction to conduct proceedings in accordance with natural justice, leaving it for the Integrity Commission to determine procedure in the circumstances.	Noted.	
Accountability and independence		
Recommendation 58: The Committee recommends that the statutory head of an ACT Anti-Corruption and Integrity Commission be designated as an Officer of the Assembly.	Agreed.
Clause 21 - Officer of the Legislative Assembly	Agreed.	
Recommendation 59: The Committee recommends, as it concerns an ACT Anti-Corruption and Integrity Commission’s (ACIC) relationship with the ACT Legislative Assembly, that it be pursuant to the Officer of the Assembly framework and include the following requirements:
(a)	the ACIC to be oversighted by, and required to report to, an Assembly standing committee.  The standing committee to be a committee established pursuant to Standing Order 215 (not Standing Order 16).  The Committee to be chaired by a non-government member, its membership to be representative of the Assembly and the secretary to the Committee should not be a statutory office holder;
(b)	involvement by the Assembly (a combination of the Assembly as a whole and the relevant Assembly standing committee) in the appointment and dismissal of the statutory head of the ACIC; and
(c)	involvement by the Assembly (a combination of the Assembly as a whole and the relevant Assembly standing committee) in the approval of the budget for the ACIC. 	Agreed in part. 
Non-legislative response required. Measures taken to implement this Recommendation will be subject to Legislative Assembly.

The following clauses contemplate a role for a Legislative Assembly committee:
- Clause 25 - Commissioner—appointment
- Clause 34 - Commissioner—suspension—relevant Assembly committee notice and meetings
- Clause 35 - Commissioner—ending suspension
- Clause 38 - Commissioner—acting commissioner
- Clause 190 - Confidential investigation report
- Clause 212 - Confidential special report
- Clause 222 - Inspector—appointment
- Clause 231 - Inspector—suspension—relevant Assembly committee notice and meetings
- Clause 232 - Inspector—ending suspension
- Clause 235 - Inspector—acting inspector
- Clause 280 - Regulation-making power
- Dictionary - defines ‘relevant Assembly committee’ 	Agreed in part. 	
Recommendation 60: The Committee recommends that the appointment of an Integrity Commissioner for an ACT Anti-Corruption and Integrity Commission should comply with the following requirements:
(a)	a single Commissioner model;
(b)	appointment as an independent statutory officer;
(c)	appointment for a fixed term between 5–7 years non-renewable;
(d)	appointment by the ACT Legislative Assembly—pursuant to the Officer of the Assembly framework;
(e)	to be qualified for appointment as Commissioner the person must be a former Judge of a Supreme Court or the Federal or High Court, or be a legal practitioner of not less than ten years standing;
(f)	no age restriction should apply; and
(g)	the Commissioner must not be a former or current Member of the Legislative Assembly, or any other Australian Parliament.	Agreed.
Part 2.1 - Commissioner—establishment, independence and functions
Part 2.2 - Commissioner—appointment
	Agreed.	
Recommendation 61: The Committee recommends that the following additional requirements should be applied as it concerns the appointment of an Integrity Commissioner for an ACT Anti-Corruption and Integrity Commission:
(a)	the Commissioner to have a legislative duty to avoid actual or perceived conflicts of interest.  A legislative direction may be appropriate for consequences to follow if the existence of a conflict of interest (real or perceived) is established;
(b)	that the appointee not have (or had) any political affiliations; and
(c)	appointments to the position should not be permitted from the ranks of existing ACT  Government public servants or those who have been public servants in the ACT Public Service for a period of 10 years previously.	Agreed in part.
Part 2.2 - Commissioner—appointment
If appointment of the Commissioner was limited to persons who had not been an ACT public servant within the previous ten years, it is likely the pool of eligible applicants would be significantly reduced. The Territory does not have the population size to accommodate such a limitation on recruitment. Instead, the Government will apply a 5 year limitation, and a robust recruitment and assessment process will be conducted by the Speaker on behalf of the Territory.
Similar appointment arrangements apply to the Chief Executive Officer and Inspector.
	Agreed in part.	
Recommendation 62: The Committee recommends that the enabling legislation for an ACT Anti-Corruption and Integrity Commission should provide for the appointment of an acting commissioner to act as Commissioner during any period for which there is no person appointed as commissioner or the Commissioner is absent from, or unable to discharge, official duties.  A consultative process with the ACT Legislative Assembly pursuant to the Officer of the Assembly framework should be used with regard to proposals for acting arrangements.	Agreed.
Clause 38 - Commissioner—acting commissioner	Agreed in principle.	
Recommendation 63: The Committee recommends that the enabling legislation for an ACT Anti-Corruption and Integrity Commission should provide for the suspension and removal of the Commissioner.  The process should comply with the following requirements:
(a)	suspension and removal of the Commissioner to be pursuant to the Officer of the Assembly framework;
(b)	be in accordance with specified criteria—including: for misbehaviour; for physical or mental incapacity, if the incapacity substantially affects the exercise of the Commissioner’s functions; if the Commissioner becomes bankrupt or personally insolvent; or if the Commissioner has been guilty of corrupt conduct ; and
(c)	the procedures for either suspension or removal of the Commissioner should ensure procedural fairness.	Agreed. 
Part 2.2 - Commissioner—appointment
	Agreed.	
Recommendation 64: The Committee recommends that funding arrangements for an ACT Anti-Corruption and Integrity Commission (ACIC) should be pursuant to the Officer of the Assembly framework.	Agreed in principle, non-legislative response required.
As the ACT Integrity Commission will be subject to the Officer of the Legislative Assembly framework, its budget and funding arrangements will follow the same requirements as the Auditor-General, the Electoral Commissioner and the Office of the Legislative Assembly under the requirements of the Financial Management Act 1996.	Agreed in principle.	
Recommendation 65: The Committee recommends that the accountability and oversight regime for an ACT Anti-Corruption and Integrity Commission (ACIC) must include:
(a)	oversight by a relevant Assembly standing committee—broad oversight role and broad mandate to ‘monitor and report’ on the performance and functions of an ACIC;
(b)	oversight by an inspector/inspectorate type mechanism—to receive and investigate complaints concerning any aspect of an ACIC’s operations or any conduct of its officers; and
(c)	oversight of the ACIC’s exceptional powers—in the form of monitoring, review and report. 	Agreed in principle. 
Measures taken to implement recommendation 65(a) will be subject to the Legislative Assembly.
See comments against recommendation 59 which contemplate a role for a Legislative assembly committee in the Bill.   

Chapter 5 - Inspector of the commission	Agreed in part.	
Recommendation 66: The Committee recommends that a part-time Inspector be appointed to: (a) provide oversight as it concerns complaints relating to any aspect of an ACT Anti-Corruption and Integrity Commission’s (ACIC) operations or any conduct of its officers; and (b) to conduct a review of the operations (in the form of monitoring, review and report) of an ACT ACIC at a minimum every 12 months. 	Agreed.
Chapter 5 - Inspector of the commission	Noted.	
Recommendation 67: The Committee recommends that the eligibility criteria, and process for appointment, and dismissal, of a part-time Inspector for an ACT Anti-Corruption and Integrity Commission (ACIC) should mirror that which applies for the ACIC’s Integrity Commissioner.	Agreed. 
Part 5.2 of the Bill concerns the process for commencing, suspending and ending the appointment of the Inspector and if necessary, acting Inspector. These provisions are based on similar provisions for the Integrity Commissioner and the other Officers of the Legislative Assembly.	Noted.	
Recommendation 68: The Committee recommends that an ACT Anti-Corruption and Integrity Commission should be subject to annual reporting requirements as per the Annual Report (Government Agencies) Act 2004.  In addition, the annual report should contain, amongst other things, detailed information as it concerns matters referred and investigated by the ACIC during the reporting period.  The reporting requirements as detailed in section 76 of the Independent Commission Against Corruption Act 1988 (NSW) are instructive.	Agreed. 
Part 4.2 – Annual reports	Noted.	
Recommendation 69: The Committee recommends that the enabling legislation of an ACT Anti-Corruption and Integrity Commission must be reviewed every five years after commencement of the Act.  The Report on the Review should be presented to the ACT Legislative Assembly within three months after the Review has started and be referred to the relevant Assembly oversight committee for inquiry and report.	Agreed.
Clause 282 requires the Minister, in consultation with the Speaker, to arrange for the review of the operation of the Act as soon as practicable after the end of its fifth year of operation. It also requires the Minister to present a report of the review to the Legislative Assembly within a time decided in consultation with the Speaker.	Agreed in principle.	
Staffing and resourcing		
Recommendation 70: The Committee recommends that an ACT Anti-Corruption and Integrity Commission’s specialised investigative capability services should be purchased from a state-based anti-corruption body; and that an arrangement is in place that provides for these services on an as-needed basis.	Agreed in principle. 
Part 2.4 - Commission—staff
Part 2.5 - Cooperation with other entities

This is a matter for the Integrity Commissioner as an Officer of the Legislative Assembly. There is provision arrangements to be made with other entities and for joint investigations.	Agreed in principle.	
Recommendation 71: The Committee recommends that the statutory head of an ACT Anti-Corruption and Integrity Commission be permitted to engage persons on terms and conditions the statutory head sees fit.  In any determination of the terms and conditions on which staff could be engaged, it would be appropriate for the statutory head to have regard to the general terms and conditions of employees of the ACT Public Service (ACTPS).	Agreed.
Part 2.4 - Commission—staff
	Noted.	
Recommendation 72: The Committee recommends that an ACT Anti-Corruption and Integrity Commission’s (ACIC) enabling legislation should include a provision recognising that the staff assisting the statutory head of the Commission are not subject to the direction of any person other than the statutory head, or a person authorised by the statutory head in relation to matters dealing with investigative functions and duties performed pursuant to the ACIC’s enabling legislation.	Agreed.
Clause 49 - Staff not subject to direction from others	Noted.	
Recommendation 73: The Committee recommends that appointments to senior management positions within an ACT Anti-Corruption and Integrity Commission should not be permitted from the ranks of existing ACT Public Service (ACTPS) employees or those who have been public servants in the ACTPS for a period of 10 years previously.  Further, appointment terms for these positions should be for fixed terms (with the possibility of extension).	Agreed in part.
Part 2.4 - Commission—staff
There does not appear to be any similar limitation placed on staff in anti-corruption bodies in other jurisdictions. If appointment or engagement of senior staff was limited to persons who had not been an ACT public servant within the previous ten years, it is likely the pool of eligible applicants would be significantly reduced. The Territory does not have the population size to accommodate such a limitation on recruitment. Also this limitation does not exist in any other public sector entity in the Territory. A robust recruitment and assessment process will be conducted by the Integrity Commissioner.
A person who is or has, in the 5 years immediately before the day of the proposed appointment, been a public servant cannot be appointed as the Commissioner or the Chief Executive Officer.	Noted.	
Recommendation 74: The Committee recommends that the following employment provisions and special conditions should apply to staff working for an ACT Anti-Corruption and Integrity Commission (ACIC):
(a)	staff to have a legislative duty to avoid actual or perceived conflicts of interest.  A legislative direction may be appropriate for consequences to follow if the existence of a conflict of interest (real or perceived) is established;
(b)	staff not to have (or had) any political affiliations;
(c)	former AFP or ACT Policing police officers are not eligible for appointment to positions within an ACT ACIC;
(d)	staff to be subject to certain confidentiality requirements.  Current or former staff members must not record, divulge or communicate any information acquired in the course of carrying out their duties, except in the performance of those duties; and
(e)	eligibility for employment to be subject to security clearance/assessments.	Agreed in part.
Clause 48 - Staff of the commission—eligibility for appointment
Clause 278 - Offence—use or divulge protected information

The Government agrees that there is an imperative to ensure the staff of the commission cannot be, or be perceived to be, compromised by conflicts of interest. A member of the commission’s staff will be a ‘public sector member’ under the Public Sector Management Act 1994 and accordingly the public sector values and conduct requirements will apply.

	Noted.	
Application of other legislation		
Recommendation 75: The Committee recommends that further work be undertaken to identify appropriate exemptions for an ACT Anti-Corruption and Integrity Commission from the operation of the Privacy Act 1988.	Agreed. 
Schedule 1 - Consequential amendments, Part 1.12 - Information Privacy Act 2014	Noted.	
Recommendation 76: The Committee recommends that an ACT Anti-Corruption and Integrity Commission be required, in consultation with the Office of the Privacy Commissioner, to develop and publish information handling guidelines.	Agreed.
Clause 280 – Information guidelines	Agreed.	
Recommendation 77: The Committee recommends that further work be undertaken to identify appropriate exemptions for an ACT Anti-Corruption and Integrity Commission (ACIC) from the operation of the Freedom of Information Act 1989.	Agreed.
Schedule 1 - Consequential amendments, Part 1.10 - Freedom of Information Act 2016	Noted.	
Recommendation 78: The Committee recommends that the ACT Government appoint an independent person to conduct a statutory review of the Public Interest Disclosure Act 2012 (the PID Act).  The Review, amongst other things, should consider: 
(a)	any potential conflict of interest (real or perceived) as it concerns decision makers and disclosure officers under the PID Act; 
(b)	the findings of the Moss Review examining the operation of the Commonwealth Public Interest Disclosure Act 2013 as it concerns the strengthening of that legislation to achieve the Act's integrity and accountability aims; 
(c)	the matters raised in submission No. 3 (as detailed in paragraph 3.162) to the Inquiry as it concerns the PID Act; 
(d)	application of the PID Act to any future ACT Anti-Corruption and Integrity Commission (ACIC)—in particular, its articulation with any protected disclosure provisions that may apply to any informants providing assistance to the ACIC or anyone consequently at risk; and
(e)	the suitability of an ACT ACIC for the purposes of receiving disclosures pursuant to the PID Act. 	Agreed in principle.
The Government acknowledges that the PID Act will need to be reviewed in the context of the Integrity Commission Bill 2018 and the new ACT Integrity Commission.
	Agreed.	
Other matters		
Recommendation 79: The Committee recommends that the ACT Government appoint an independent reviewer to examine appointment terms for statutory officer holders in the ACT and make recommendations to strengthen integrity as it concerns appointment of these office holders.	Agreed in principle.
Part 2.5 - Commission—cooperation with other entities. 

The Government is giving consideration to examining the terms and conditions of statutory office holders in the interests of standardising and strengthening integrity across the ACT legislature.	Agreed.