INDEPENDENT COMMISSIONER AGAINST CORRUPTION (INVESTIGATION POWERS) AMENDMENT BILL 2018

(1) Schedule 3A applies in relation to an investigation by the Commissioner in respect of a matter raising potential issues of misconduct or maladministration in public administration.

(2) The Commissioner may at any time withdraw from an investigation, or decide to investigate, as the Commissioner sees fit.

36B—Determination of Commissioner's jurisdiction

If—

(a) an investigation by the Commissioner in respect of a matter raising potential issues of misconduct or maladministration in public administration has been commenced or is proposed; and

(b) a question arises as to whether the Commissioner has jurisdiction to conduct the investigation,

the Supreme Court may, on the application of the Commissioner, a public officer or a public authority, determine the question and make any orders necessary to give effect to the determination.

9—Heading to Part 4 Division 2 Subdivision 4

Delete "Request for Auditor-General to examine accounts" and substitute:

General provisions relating to action taken by Commissioner

10—Insertion of sections 39A to 39F

After section 39 insert:

39A—Standard operating procedures

(1) The Commissioner must prepare standard operating procedures governing the exercise of powers by investigators for the purposes of investigations under this Act.

(2) The standard operating procedures must—

(a) include provisions designed to ensure that persons in relation to whom powers are to be exercised under this Act are provided with appropriate information about their rights, obligations and liabilities under this Act; and

(b) be made available free of charge on the Internet, and at premises established for the receipt of complaints or reports by the Office, for inspection by members of the public.

(3) Contravention of the operating procedures constitutes a ground for suspending, dismissing or taking other disciplinary action against the investigator (but the validity of the exercise of a power cannot be questioned on the ground of contravention of the operating procedures).

39B—Management of investigation

(1) If the Commissioner decides to investigate a matter, the Commissioner must oversee the investigation.

(2) The Commissioner may determine to head the investigation himself or herself or appoint the Deputy Commissioner or an examiner to head the investigation and report to the Commissioner.

(3) The person heading the investigation may appoint 1 or more legal practitioners to assist as counsel in relation to the investigation.

39C—Obstruction

(1) A person must not—

(a) refuse or fail to provide a statement of information as required by the person heading an investigation; or

(b) include information in a statement of information knowing that it is false or misleading in a material particular; or

(c) without lawful excuse, refuse or fail to comply with a requirement or direction of an investigator under this Act; or

(d) alter, destroy, conceal or fabricate a document or other thing knowing that it is or is likely to be required by an investigator performing functions under this Act; or

(e) otherwise hinder or obstruct an investigator, or a person assisting an investigator, in the performance of his or her functions.

Maximum penalty: $10 000 or imprisonment for 2 years.

(2) An investigator may arrest a person without warrant if the investigator reasonably suspects that the person has committed, is committing, or is about to commit, an offence against subsection (1)

and—

(a) when required to do so by an investigator the person failed to state truthfully his or her personal details or to produce true evidence of those details; or

(b) the investigator has reasonable grounds for believing that the person would, if not arrested—

(i) fail to attend court in answer to a summons issued in respect of the offence; or

(ii) continue the offence or repeat the offence; or

(iii) alter, destroy, conceal or fabricate evidence relating to the offence; or

(iv) intimidate, harass, threaten or interfere with a person who may provide or produce evidence of the offence.

(3) On arresting a person under this section, the investigator must immediately deliver the person, or cause the person to be delivered, into the custody of a police officer (and the person will, for the purposes of any other law, then be taken to have been apprehended by the police officer without warrant).

39D—Limiting action by other agencies and authorities

(1) The Commissioner may, by written notice, require a South Australian law enforcement agency, inquiry agency or public authority to refrain from taking action, in respect of a particular matter being investigated by the Commissioner under this Act or to conduct a joint investigation with the Commissioner in respect of a particular matter (and the agency or authority must comply with the requirement even if the agency or authority is otherwise required or authorised to take action under another Act).

(2) The notice must specify the period for which it is to apply and set out details of the action that is not to be taken or the requirements governing any joint investigation.

(3) The Commissioner must consider any comments of the agency or authority with respect to the terms of the notice.

39E—Injunction to refrain from conduct pending investigation

(1) The Supreme Court may, on application made by the Commissioner (in a case where section 39D

does not apply or the Commissioner does not consider it appropriate to issue a notice under that section), grant an injunction restraining a person from engaging in conduct that is the subject of, or affects the subject matter of, an investigation or proposed investigation by the Commissioner.

(2) The Supreme Court must not grant an injunction under this section unless it is satisfied—

(a) that the conduct sought to be restrained is likely to impede the investigation or proposed investigation; or

(b) that it is necessary in the public interest to do so.

39F—Prosecutions and disciplinary action

(1) On completing an investigation or at any time during an investigation the Commissioner may do either or both of the following:

(a) refer a matter to the relevant law enforcement agency for further investigation and potential prosecution;

(b) refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.

(2) The Commissioner may disclose to the relevant law enforcement agency or public authority any evidence or information that the Commissioner has in respect of the matter.

(3) The Commissioner need not obtain the views of a public authority before referring a matter under this section.

(4) If a matter is referred to a public authority under subsection (1)(b)

, the Commissioner may give directions or guidance to the authority, which may include (without limitation)—

(a) a requirement that the authority submit a report or reports on action taken in respect of the matter as set out in the directions; and

(b) a recommendation as to the action that should be taken by the authority and the period within which it should be taken.

(5) The Commissioner may not give directions to the Governor or a judicial officer or to the Attorney-General in relation to a matter concerning the Governor or a judicial officer.

(6) The Commissioner may not give directions to a House of Parliament or the Joint Parliamentary Service Committee in relation to a matter concerning a public officer.

(7) The Commissioner may at any time—

(a) revoke a referral to a public authority; or

(b) revoke or vary directions or guidance given to a public authority or give further directions or guidance,

as the Commissioner sees fit.

(8) If—

(a) a referral of a matter by the Commissioner under this section included a requirement that the public authority submit a report or reports on action taken in respect of the matter; and

(b) the Commissioner is not satisfied that a public authority has duly and properly taken action in relation to the matter,

the Commissioner must inform the authority of the grounds of the Commissioner's dissatisfaction and give the authority an opportunity to comment within a specified time.

(9) If, after considering any comments received from the public authority within the specified time, the Commissioner is still not satisfied, the Commissioner may submit a report to the Minister responsible for the authority setting out the grounds of dissatisfaction, together with any comments from the authority.

(10) If, after considering any comments received from the Minister responsible for the public authority within 21 days after the report was submitted to the Minister, the Commissioner is still not satisfied, the Commissioner may provide to the President of the Legislative Council and the Speaker of the House of Assembly a report setting out the grounds of dissatisfaction.

(11) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after receiving a report, lay it before their respective Houses.

11—Amendment of section 42—Reports

Section 42(1a)(b)—delete paragraph (b)

12—Amendment of section 45—Commissioner's annual report

Section 45(2)(b)(x)—delete subparagraph (x)

13—Amendment of section 54—Confidentiality

Section 54(3)—after paragraph (c) insert:

(d) the disclosure occurs in the course of a public inquiry referred to in clause 2 of Schedule 3A.

14—Amendment of section 56—Publication of information and evidence

(1) Section 56—delete "A person" and substitute:

Subject to subsection (2), a person

(2) Section 56—after its present contents (now to be designated as subsection (1)) insert:

(2) This section does not apply to information disclosed in the course of a public inquiry referred to in clause 2 of Schedule 3A.

15—Insertion of Schedule 3A

After Schedule 3 insert:

Schedule 3A—Investigations into misconduct and maladministration

Part 1—Preliminary

1—Interpretation

In this Schedule—

examiner means—

(a) the Commissioner; or

(b) the Deputy Commissioner; or

2—Commissioner may conduct public inquiry

(1) For the purposes of an investigation into misconduct or maladministration in public administration, the Commissioner may, if the Commissioner is satisfied that it is in the public interest to do so, conduct a public inquiry.

(2) Without limiting the factors that the Commissioner may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commissioner must consider the following:

(a) the benefit of exposing to the public, and making it aware of, misconduct or maladministration in public administration;

(b) the seriousness of the matter being investigated;

(c) any risk of undue prejudice to a person's reputation (including prejudice that might arise from not holding an inquiry);

(d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.

(3) If the Commissioner determines to conduct a public inquiry for the purposes of an investigation, any examinations of witnesses will be conducted in public (subject to any orders under clause 3

) and otherwise in accordance with the directions of the Commissioner.

3—Orders

(1) If, in the course of an investigation into misconduct or maladministration in public administration, the person heading the investigation considers it desirable to exercise powers conferred by this clause in order to prevent undue prejudice or undue hardship to any person, or otherwise in the public interest, the person may by order—

(a) direct that certain evidence will be taken in private; or

(b) direct that any persons specified (by name or otherwise) absent themselves from any place used for the purposes of the investigation during the whole or a specified part of the investigation; or

(c) forbid the publication or disclosure of specified evidence, or of any account or report of specified evidence, either absolutely or subject to conditions; or

(d) forbid the publication or disclosure of the contents of any document, or a description of any thing, produced, seized or obtained for the purposes of the investigation; or

(e) forbid the publication or disclosure of the name of—

(i) a witness or potential witness; or

(ii) a person referred to in the course of the inquiry,

and of any other material that might enable any such witness or person to be identified or located; or

(f) forbid the publication or disclosure of the fact that a person has been served with a summons or has given or may be about to give information or other evidence for the purposes of the investigation.

(2) An order under subclause (1)

may be varied or revoked by—

(a) the Commissioner; or

(b) the person who made the order.

(3) A person who contravenes, or fails to comply with, an order under this clause is guilty of an offence.

Maximum penalty:

(a) in the case of a body corporate—$150 000;

(b) in the case of a natural person—$30 000.

4—Rules as to procedure or evidence not to apply

In conducting an investigation into misconduct or maladministration in public administration, the person heading the investigation is not bound by the rules or practice of any court or tribunal as to procedure or evidence, but may conduct the investigation as they think fit.

5—Legal representation

In an investigation into misconduct or maladministration in public administration—

(a) a person giving evidence in an examination (not being an examination conducted in public in accordance with clause 2

) may be represented by a legal practitioner; and

(b) the person heading the investigation may give permission for—

(i) a person giving evidence in an examination conducted in public in accordance with clause 2

; or

(ii) if the person heading the investigation is satisfied that special circumstances exist—any other person,

to be represented by a legal practitioner.

6—Legal professional privilege and public interest immunity

(1) Subject to this clause, it is not an excuse for a person to refuse or fail to comply with a requirement under this Schedule on the grounds of legal professional privilege or public interest immunity.

(2) Subclause (1)

does not apply in relation to a claim of legal professional privilege where—

(a) the privilege belongs to a party other than the Crown or a public authority; or

(b) the privilege attaches to a communication made in relation to the investigation or a complaint, report or assessment under this Act to which the investigation relates.

(3) No person is required or authorised by virtue of this Schedule to take action—

(a) to furnish any information or answer any questions relating to the proceedings of the Cabinet or of any committee of the Cabinet; or

(b) to produce or inspect so much of any document as relates to any such proceedings,

unless a Minister has certified that Cabinet has approved the action.

(4) For the purposes of subclause (3)

a certificate issued under the hand of a Minister certifying—

(a) that any information or question or any document or part of a document relates to proceedings referred to in that subclause; or

(b) that Cabinet have, or have not, authorised any action specified in the certificate,

is conclusive evidence of the fact so certified.

7—Statements made in investigation not admissible in evidence

The following are not (except in proceedings for an offence against this Act) admissible in evidence against a person in any civil or criminal proceedings in any court:

(a) a statement or disclosure made by the person—

(i) in answer to a question put to the person in an examination or by written notice under clause 21

; or

(ii) in a written statement of information provided by the person in response to a written notice under clause 21

;

(b) the fact of production of a document or thing by the person in response to a written notice under clause 22

Part 2—Examination of witnesses

8—Examinations

(1) An examiner may conduct an examination for the purposes of an investigation into misconduct or maladministration in public administration.

(2) Subject to this Schedule, an examiner may regulate the conduct of proceedings at an examination as the examiner thinks fit.

(3) At an examination before an examiner—

(a) counsel assisting the examiner generally or in relation to the matter to which the investigation relates; or

(b) any person authorised by the examiner to appear before the examiner at the examination; or

may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the investigation.

(4) For the avoidance of doubt, an examination may be conducted whether or not the Commissioner has determined to conduct a public inquiry.

9—Power to summon witnesses and take evidence

(1) An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

(2) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.

(3) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose—

(a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and

(b) the examiner, or a person who is a member of the staff of the Commissioner authorised for the purpose by the Commissioner, may administer an oath or affirmation to a person so appearing at the examination.

10—Failure of witnesses to attend and answer questions

(1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner must not—

(a) fail to attend as required by the summons; or

(b) fail to attend from day to day unless excused, or released from further attendance, by the examiner.

Maximum penalty: $20 000 or imprisonment for 4 years.

(2) A person appearing as a witness at an examination before an examiner must not—

(a) when required pursuant to this Division either to take an oath or make an affirmation—refuse or fail to comply with the requirement; or

(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or

(c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.

Maximum penalty: $20 000 or imprisonment for 4 years.

11—Warrant for arrest of witness

(1) If, on application by an examiner, a judge of the Supreme Court is satisfied by evidence on oath that there are reasonable grounds to believe—

(a) that a person in relation to whom a summons has been issued under this Division—

(i) has absconded or is likely to abscond; or

(ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or

(b) that a person has committed an offence under clause 10(1)

or is likely to do so,

the judge may issue a warrant for the apprehension of the person.

(2) The warrant may be executed by any person to whom it is addressed and the person executing it has power to break into and enter any premises or vehicle for the purpose of executing it.

(3) The warrant may be executed even if the warrant is not at the time in the possession of the person executing it.

(4) A person executing the warrant may only use such reasonable force as is necessary for the execution.

(5) If a person is apprehended under the warrant, he or she must be brought, as soon as practicable, before a judge of the Supreme Court and the judge may—

(a) admit the person to bail, with such security as the judge thinks fit, on such conditions as he or she thinks necessary to ensure the appearance of the person as a witness before the examiner; or

(b) order the continued detention of the person for the purposes of ensuring his or her appearance as such a witness; or

(6) If a person is under detention under this clause, he or she must, within 14 days after he or she was brought, or last brought, before a judge of the Supreme Court in accordance with this clause, or within such shorter or longer time as a judge has fixed upon the last previous appearance of the person before a judge under this clause, be again brought before a judge and the judge may then exercise any of the powers of a judge under subclause (5)

12—False or misleading evidence

A person must not, at an examination before an examiner, give evidence that the person knows is false or misleading in a material particular.

Maximum penalty: $20 000 or imprisonment for 4 years.

13—Protection of witnesses from harm or intimidation

If it appears to an examiner that, by reason of the fact that a person—

(a) is to appear, is appearing or has appeared at an examination before the examiner to give evidence or to produce a document or thing; or

(b) proposes to furnish or has furnished information, or proposes to produce or has produced a document or thing, to the Commissioner or the Office otherwise than at an examination before the examiner,

the safety of the person may be prejudiced or the person may be subjected to intimidation or harassment, the examiner may make such arrangements (including arrangements with South Australia Police) as are necessary to avoid prejudice to the safety of the person, or to protect the person from intimidation or harassment.

14—Contempt of Commissioner

A person is in contempt of the Commissioner if he or she—

(a) when appearing as a witness at an examination before an examiner—

(i) refuses or fails to take an oath or affirmation when required to do so under this Division; or

(ii) refuses or fails to answer a question that he or she is required to answer by the examiner; or

(iii) refuses or fails to produce a document or other thing that he or she was required to produce by a summons or notice under this Act that was served on him or her in accordance with this Act; or

(b) gives evidence at an examination before an examiner that he or she knows is false or misleading in a material particular; or

(d) disrupts an examination before an examiner; or

(e) threatens a person present at an examination before an examiner.

15—Supreme Court to deal with contempt

(1) If an examiner is of the opinion that, during an examination before the examiner, a person is in contempt of the Commissioner, the examiner may apply to the Supreme Court for the person to be dealt with in relation to the contempt.

(2) Before making the application, the examiner must inform the person that the examiner proposes to make the application.

(3) The application must be accompanied by a certificate that states—

(a) the grounds for making the application; and

(b) evidence in support of the application.

(4) A copy of the certificate must be given to the person before, or at the same time as, the application is made.

(5) If, after—

(a) considering the matters specified in the certificate; and

(b) hearing or receiving any evidence or statements by or in support of the Commissioner; and

the Supreme Court finds that the person was in contempt of the Commissioner, the Court may deal with the person as if the acts or omissions involved constituted a contempt of that Court.

16—Conduct of contempt proceedings

(1) This clause applies if an application for a person to be dealt with in relation to a contempt of the Commissioner is made to the Supreme Court under clause 15

(2) Proceedings in relation to the application are, subject to this Act, to be instituted, carried on, heard and determined in accordance with the laws (including any rules of court) that apply in relation to the punishment of a contempt of the Supreme Court.

(3) In proceedings in relation to the application, a certificate under clause 15(3)

is prima facie evidence of the matters specified in the certificate.

17—Person in contempt may be detained

(1) If an examiner proposes to make an application under clause 15(1)

in respect of a person, he or she may, during the hearing concerned, direct a police officer to detain the person for the purpose of bringing the person before the Supreme Court for the hearing of the application.

(2) If the person is detained under subclause (1)

—

(a) the examiner must apply to the Court as soon as practicable under clause 15(1)

in respect of the person; and

(b) the person must, subject to subclause (3)

, be brought before the Court as soon as practicable.

(3) The Court may—

(a) direct that the person be released from detention on condition that he or she will appear before the Court in relation to the application; or

(b) order that the person continue to be detained until the application is determined.

(4) The Court may also impose any other condition on the release, for example—

(a) that the person surrenders his or her passport; or

(b) that the person gives an undertaking as to his or her living arrangements; or

(5) The Court may at any time vary or revoke a condition imposed under subclause (4)

18—Examiner may withdraw contempt application

(1) An examiner may at any time withdraw an application in relation to a person under clause 15(1)

(2) If—

(a) the examiner does so; and

(b) the person is in detention under clause 17

the person must be released from detention immediately.

19—Legal protection of examiners, counsel and witnesses

(1) An examiner has, in the performance of his or her functions or the exercise of his or her powers as an examiner in relation to an examination before the examiner, the same protection and immunity as a judge of the Supreme Court.

(2) A legal practitioner assisting the person heading the investigation or an examiner, or representing a person at an examination before an examiner, has the same protection and immunity as a legal practitioner has in appearing for a party in proceedings in the Supreme Court.

(3) Subject to this Act, a person summoned to attend or appearing before an examiner as a witness has the same protection as a witness in proceedings in the Supreme Court.

20—Offence to hinder, obstruct or disrupt

A person must not—

(a) hinder or obstruct an examiner in the performance of his or her functions as an examiner; or

(b) disrupt an examination before an examiner.

Maximum penalty: $20 000 or imprisonment for 4 years.

Part 3—General investigation powers

21—Production of statement of information

For the purposes of an investigation into misconduct or maladministration in public administration, the person heading the investigation may, by written notice, require an inquiry agency, public authority or public officer to produce a written statement of information about a specified matter, or to answer specified questions, within a specified period and in a specified form, verified if the person so requires by statutory declaration.

22—Production of documents and other things

For the purposes of an investigation into misconduct or maladministration in public administration, the person heading the investigation may, by written notice, require a person to produce a document or thing for the purposes of the investigation within a specified period.

23—Entry and inspection

For the purposes of an investigation into misconduct or maladministration in public administration, an investigator may enter and inspect any premises or place occupied by a public authority and anything in or on those premises or that place.

Part 4—Action on completion of investigation

24—Findings

Following an investigation into misconduct or maladministration in public administration, the Commissioner may make such findings as the Commissioner thinks fit, including findings as to whether or not any misconduct or maladministration has occurred, is occurring or is likely to occur.

25—Recommendations

(1) Following an investigation into misconduct or maladministration in public administration, the Commissioner may make any recommendations the Commissioner thinks fit to the public authority responsible for any public officer to whom the matter relates or to the Minister responsible for that public authority (or both).

(2) The public authority responsible for any public officer in relation to which a recommendation is made under this clause must, at the request of the Commissioner, report to the Commissioner within a time allowed in the request on what steps have been taken to give effect to the recommendation and, if no such steps have been taken, the reason for the inaction.

(3) If the Commissioner is not satisfied that a public authority has complied with the recommendations of the Commissioner, the Commissioner must inform the authority of the grounds of the Commissioner's dissatisfaction and give the authority an opportunity to comment within a specified time.

(4) If, after considering any comments received from the public authority within the specified time, the Commissioner is still not satisfied, the Commissioner may submit a report to the Minister responsible for the authority setting out the grounds of dissatisfaction, together with any comments from the authority.

(5) If, after considering any comments received from the Minister responsible for the public authority within 21 days after the report was submitted to the Minister, the Commissioner is still not satisfied, the Commissioner may provide to the President of the Legislative Council and the Speaker of the House of Assembly a report setting out the grounds of dissatisfaction.

(6) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after receiving a report, lay it before their respective Houses.

(7) This clause is in addition to, and does not derogate from, any other power of the Commissioner to take action following an investigation under this Act.

26—Reports

(1) The Commissioner may publish (in such manner as the Commissioner thinks fit) 1 or more reports setting out findings or recommendations (or both) resulting from an investigation into misconduct or maladministration in public administration.

(2) This power is in addition to and does not derogate from the power of the Commissioner to publish reports in section 42.

Schedule 1—Transitional provisions

1—Application of amendments

If, immediately before the commencement of section 8

, the Independent Commissioner Against Corruption (the Commissioner) was exercising powers in accordance with section 36A of the Independent Commissioner Against Corruption Act 2012

(the Act) in respect of a matter—

(a) the Commissioner may continue to investigate the matter in accordance with the Act as amended by this Act and the investigation will be taken to be an investigation conducted under the Act as amended by this Act; and

(b) any evidence obtained in accordance with the Act as in force before the commencement of this Act may be used for the purposes of the investigation as if the evidence had been obtained in accordance with the Act as in force after the commencement of this Act.

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