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INDEPENDENT COMMISSION AGAINST CORRUPTION ACT 1988 - SCHEDULE 4

SCHEDULE 4 – Savings, transitional and other provisions

(Section 117A)

Part 1 - Preliminary

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
Independent Commission Against Corruption (Amendment) Act 1990
Investigative Bodies Legislation Amendment Act 1997
Independent Commission Against Corruption Amendment (Ethics Committee) Act 2003
Independent Commission Against Corruption Amendment Act 2005
Public Sector Employment Legislation Amendment Act 2006 , to the extent that it amends this Act
Independent Commission Against Corruption Amendment Act 2008
Independent Commission Against Corruption and Ombudsman Legislation Amendment Act 2009
Independent Commission Against Corruption Amendment Act 2011
any other Act that amends this Act
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2 - Provisions consequent on enactment of Independent Commission Against Corruption (Amendment) Act 1990

1A Definition

In this Part,
"amending Act" means the Independent Commission Against Corruption (Amendment) Act 1990 .

2 Secrecy--task force and members

Section 16 applies as amended by the amending Act to information disseminated before or after the commencement of the amendment to a task force or member of a task force.

3 Effect of pending proceedings on Commission's powers

Section 18 applies as amended by the amending Act to and in respect of proceedings whether the proceedings were commenced before or after the commencement of the amendment.

4 Commission's powers to make and report findings etc

(1) In this clause:

"the relevant amendments" means the amendments made to this Act by Schedule 1 (6)-(10) to the amending Act.
(2) Anything done or purporting to have been done by the Commission before the commencement of the relevant amendments which would have been validly done if those amendments had then been in force is to be considered to have been, and always to have been, validly done.
(3) This Act applies as amended by the relevant amendments to and in respect of a report under section 74:
(a) even if the report relates to a reference made or an investigation or hearing commenced or completed before the commencement of those amendments, and
(b) even if the report was prepared before, or its preparation was begun before, the commencement of those amendments.

Part 3 - Provision consequent on enactment of Statute Law Revision (Local Government) Act 1995

5 Saving provision

An investigation may be commenced and completed in relation to a reference made in accordance with this Act before the amendment of section 3 by the Statute Law Revision (Local Government) Act 1995 in respect of an urban committee or a person or body exercising all or any of the functions of such a committee as if that section had not been so amended.

Part 4 - Provisions consequent on the enactment of Schedule 4 to Investigative Bodies Legislation Amendment Act 1997

6 Definition

In this Part,
"amending Act" means the Investigative Bodies Legislation Amendment Act 1997 .

7 Conditional release

(1) Section 36A only applies to any release ordered on or after the commencement of that section.
(2) Section 36B only applies to any decision, failure or order made or occurring on or after the commencement of that section.

8 Preventing witness from attending

A reference in section 92 (3), as inserted by the amending Act, to a person who is in detention includes a reference to a person in detention at the commencement of that subsection even if the person was detained before that commencement.

9 Release of contemnor

(1) The power, contained in section 100A, to release an offender detained under section 100 may be exercised in relation to an offender already in detention at the commencement of section 100A or detained at any time afterwards.
(2) Section 100B only applies to any decision, failure or order made or occurring on or after the commencement of that section.

10 Secrecy of identity and location of witness

A reference in section 112, as amended by the amending Act, to a person who has given evidence includes a reference to a person who has given evidence before the commencement of that amendment.

Part 5 - Provisions consequent on enactment of Independent Commission Against Corruption Amendment Act 2005

11 Definition

In this Part,
"amending Act" means the Independent Commission Against Corruption Amendment Act 2005 .

12 Pending investigations

(1) The amendments made by the amending Act apply to and in respect of a complaint or report made to, or investigation commenced by, the Commission before the commencement of this clause.
(2) Despite subclause (1), the amendments made by the amending Act (other than those made to Part 10 (Contempt of Commission)) do not affect or apply to or in respect of any investigation in which a public hearing has commenced before the commencement of this clause.
(3) In particular, the amendments made by the amending Act do not affect any step taken in respect of the public hearing or in connection with a hearing.

13 Annual reports

The amendments made to section 76 by the amending Act extend to the annual report for the year ended, except as provided by the regulations.

14 References to hearings

In any statutory instrument other than this Act, a reference to a hearing held under this Act is to be read as a reference to a compulsory examination or public inquiry as the case requires.

15 Inspector

Part 5A, as inserted by the amending Act, extends to complaints made, and conduct of the Commission or officers of the Commission that occurred, before the commencement of this clause, and it does not matter that any person or persons involved are no longer public officials.

Part 6 - Provisions consequent on enactment of Public Sector Employment Legislation Amendment Act 2006

16 Definitions

In this Part:

"amending Act" means the Public Sector Employment Legislation Amendment Act 2006 .

"relevant commencement" means the date on which Schedule 5.5 to the amending Act commences.

17 Existing staff of Commission

(1) Each person who, immediately before the relevant commencement:
(a) was employed by the Commission under section 104 is, on that commencement, taken to have been appointed, in accordance with section 104 as substituted by the amending Act, as a member of staff of the Commission and to hold the same staff position that the person held immediately before that commencement, and
(b) was a member of staff of the Commission pursuant to any arrangements under section 104 is, on that commencement, taken to be a member of staff under section 104A (as inserted by the amending Act).
(2) Any such person who, pursuant to subclause (1) (a), is taken to be appointed and employed as a member of staff of the Commission:
(a) retains any rights to leave (including annual leave, extended leave and sick leave) accrued or accruing to the person as an employee of the Commission before the relevant commencement, and
(b) is, until such time as provision is otherwise made under this or any other Act or law, to continue to be employed in accordance with any State industrial instrument or determination that applied to the person as an employee of the Commission.

Part 7 - Provisions consequent on enactment of Independent Commission Against Corruption Amendment (Operations Review Committee) Act 2006

18 Definition

In this Part:

"amending Act" means the Independent Commission Against Corruption Amendment (Operations Review Committee) Act 2006 .

19 Abolition of Committee

(1) The Operations Review Committee is abolished.
(2) A person who ceases to hold office as a member of the Operations Review Committee because of its abolition is not entitled to any remuneration or compensation because of the loss of that office.

20 Existing complaints and other matters

Despite the Interpretation Act 1987 or any other law, the Operations Review Committee does not continue in existence to provide advice with respect to:

(a) the investigation of any complaint, or
(b) any other matter referred to the Committee by the Commissioner,
because the complaint was made, or the matter was referred, before the repeal of Part 6 of this Act by the amending Act.

21 Secrecy

Despite the repeal of section 111 (1) (c) by the amending Act, section 111 continues to apply to and in respect of a person who was a member of the Operations Review Committee as if that paragraph had not been repealed.

Part 8 - Provisions consequent on enactment of Independent Commission Against Corruption Amendment Act 2008

22 Definition

In this Part:

"amending Act" means the Independent Commission Against Corruption Amendment Act 2008 .

23 Restriction on publication of written submissions

The amendment made to section 112 by the amending Act extends to any written submissions received by the Commission before the commencement of the amendment.

24 Commencement of proceedings under section 82 or 95

The amendment made to section 116 by the amending Act extends to offences committed, or alleged to have been committed, before the commencement of the amendment.

25 Operation of amendments to section 11

Section 11, as amended by the amending Act, extends to possible corrupt conduct that occurred before the date of assent to that Act.

Part 9 - Use of unlawful surveillance device recordings concerning Mr Michael Loch McGurk--2009 amending Act

26 Definitions

In this Part:

"Commission" includes an officer of the Commission.

"relevant recording" means a recording of any private conversation to which Mr Michael Loch McGurk, deceased former resident of Cremorne, was a party or was apparently a party.

"surveillance device" means a surveillance device within the meaning of the Surveillance Devices Act 2007 .

27 Use etc of relevant recordings despite Surveillance Devices Act 2007

(1) Part 2 of the Surveillance Devices Act 2007 is not contravened by:
(a) the Commission obtaining, possessing, publishing or communicating, before 31 December 2010, in accordance with a provision of this Act, any relevant recording that has been obtained by the use of a surveillance device in contravention of Part 2 of that Act, or
(b) a person providing any such relevant recording to the Commission, before 31 December 2010, in accordance with a requirement made of the person under this Act, or
(c) the possession, publication or communication at any time of a report of the Commission made before 31 December 2010 concerning any such relevant recording (or of any information in the report).
(2) The Commission is to ensure that the publication or communication of a relevant recording referred to in subclause (1) is made only for the purposes of investigating or reporting on particular alleged corrupt conduct.

28 Operation of this Part

(1) This Part extends to relevant recordings obtained by a person by the use of a surveillance device before the commencement of this Part.
(2) Anything done by the Commission or other person before the commencement of this Part that would not have contravened Part 2 of the Surveillance Devices Act 2007 if it had been done after that commencement is taken not to have been a contravention of that Part.

Part 10 - Provision consequent on enactment of Statute Law (Miscellaneous Provisions) Act (No 2) 2010

29 Maximum period for which Assistant Commissioners may be appointed

Clause 4 (3) of Schedule 1, as amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2010 , applies in relation to a term of office whether served before or after the commencement of the amendment.

Part 11 - Provisions consequent on enactment of Independent Commission Against Corruption Amendment Act 2011

30 Definition

In this Part:

"amending Act" means the Independent Commission Against Corruption Amendment Act 2011 .

31 Use etc of protected information under Surveillance Devices Act 2007 for audit of Commission operations by Inspector

The amendment made to section 57F by the amending Act extends to the use, publication or communication before the commencement of the amendment of protected information within the meaning of the Surveillance Devices Act 2007 in relation to the exercise of the Inspector's functions under section 57B.

32 Saving of pending application for unfair dismissal

Section 104 (11A) as inserted by the amending Act does not apply to or in respect of an application made under Part 6 of Chapter 2 of the Industrial Relations Act 1996 before the commencement of the amending Act.

Part 12 - Provisions consequent on enactment of Independent Commission Against Corruption and Other Legislation Amendment Act 2013

33 Previous collection, use and disclosure of vetting information

Any collection, use or disclosure of vetting information to or by the Inspector or the Commission that occurred before the commencement of section 104C, as inserted by the Independent Commission Against Corruption and Other Legislation Amendment Act 2013 , is taken to have been validly done if the collection, use or disclosure would have been valid if done on or after that commencement.

Part 13 - Validation relating to decision on 15 April 2015 in Independent Commission Against Corruption v Cunneen[2015] HCA 14

34 Interpretation

(1) In this Part:

"relevant conduct" means conduct that would be corrupt conduct for the purposes of this Act if the reference in section 8 (2) to conduct that adversely affects, or could adversely affect, the exercise of official functions included conduct that adversely affects, or could adversely affect, the efficacy (but not the probity) of the exercise of official functions.
(2) A reference in this Part to anything done or purporting to have been done by the Commission includes a reference to:
(a) anything done or purporting to have been done by an officer of the Commission, and
(b) any investigation, examination, inquiry, hearing, finding, referral, recommendation or report conducted or made by the Commission or an officer of the Commission, and
(c) any order, direction, summons, notice or other requirement made or issued by the Commission or an officer of the Commission, and
(d) the obtaining or receipt of anything by the Commission or an officer of the Commission.
(3) A reference in this Part to evidence given to the Commission includes a reference to:
(a) a statement of information, or a document or other thing, produced in response to a notice by the Commission or an officer of the Commission, and
(b) an answer made, or a document or other thing produced, by a person summoned to attend or appearing before the Commission or an officer of the Commission at a compulsory examination or public inquiry, and
(c) any information, document or other thing otherwise obtained or received by the Commission or an officer of the Commission.

35 Validation

(1) Anything done or purporting to have been done by the Commission before 15 April 2015 that would have been validly done if corrupt conduct for the purposes of this Act included relevant conduct is taken to have been, and always to have been, validly done.
(2) The validation under subclause (1) extends to the validation of:
(a) things done or purporting to have been done by any person or body, and
(b) legal proceedings and matters arising in or as a result of those proceedings,
if their validity relies on the validity of a thing done or purporting to have been done by the Commission.
(3) The validation under subclause (1) extends to the validation of things on and from the date they were done or purported to have been done.
(4) The Commission is authorised (and is taken always to have been authorised) to exercise functions under this Act on or after 15 April 2015 to refer matters for investigation or other action to other persons or bodies, or to communicate or provide evidence given to the Commission to other persons or bodies, even if the matter arose or the evidence was given to the Commission before 15 April 2015 and its validity relies on the validation under subclause (1).
(5) Subclause (4) applies even if any finding of corrupt conduct that relates to the matter or evidence is declared a nullity or otherwise set aside by a court.
(6) However, a person is not (and was not) required to comply, on and after 15 April 2015, with any order, direction, summons, notice or other requirement made or issued by the Commission or an officer of the Commission before 15 April 2015 if the validity of the order, direction, summons, notice or other requirement relies on the validation under subclause (1).

Part 14 - Provisions consequent on enactment of Independent Commission Against Corruption Amendment Act 2015

36 Definition

In this Part:

"amending Act" means the Independent Commission Against Corruption Amendment Act 2015 .

37 Application of amendment to section 8 (4)

The amendment to section 8 (4) made by the amending Act extends to conduct occurring before the commencement of that amendment.

38 Application of section 13A

(1) Section 13A, as inserted by the amending Act, extends to possible criminal offences referred to in that section that may have been committed before the commencement of the amending Act.
(2) The Electoral Commission is taken to have referred to the Commission under section 13A the investigation of conduct that may involve possible criminal offences under the Parliamentary Electorates and Elections Act 1912 , the Election Funding, Expenditure and Disclosures Act 1981 or the Lobbying of Government Officials Act 2011 that have come to light as a result of investigations and proceedings of the Commission known as Operation Spicer and Operation Credo. The Commission is taken to have determined under that section to continue that investigation.

39 Application of section 74BA

Section 74BA, as inserted by the amending Act, applies to reports made by the Commission after the commencement of that section, and so applies even if the report relates to an investigation commenced or undertaken before that commencement.

Part 15 - Provisions consequent on enactment of Independent Commission Against Corruption Amendment Act 2016

40 Definitions

In this Part:

"amending Act" means the Independent Commission Against Corruption Amendment Act 2016 .

"former Commissioner" means the Commissioner for the Commission appointed under section 5 before the substitution of Part 2 of this Act by the amending Act.

41 Amendments relating to Commissioners

(1) The abolition of the office of the former Commissioner as a result of the substitution of Part 2 of this Act by the amending Act does not affect the identity of the Commission.
(2) Anything done or omitted to be done by the former Commissioner before the substitution of Part 2 of this Act by the amending Act continues to have effect after that substitution as if it had been done or omitted by the Chief Commissioner.
(3) A term of office as the former Commissioner is taken to be a term of office as a Commissioner for the purposes of the limitation on the maximum terms of office that a person may hold office as a Commissioner as provided by clause 5 of Schedule 1.
(4) A reference in any other Act, statutory instrument or document to the former Commissioner is taken to be a reference to the Chief Commissioner or, if the context or subject-matter so requires, to any Commissioner.
Note : See also section 5 of the Independent Commission Against Corruption (Commissioner) Act 1994 .

42 Amendments relating to authorisation by Commissioners of public inquiries

Section 6 (2), as enacted by the amending Act, does not apply to a public inquiry that was commenced before the enactment of section 6 (2).

43 Application of amendment about responding to adverse finding in report

Section 79A, as inserted by the amending Act, extends to a report relating to an investigation commenced or undertaken before the date of commencement of that section unless the Commission or the Inspector finalised the report before that commencement.



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