This Act binds the Crown.
103 Provisions relating to Commissioner and Assistant Commissioners
Schedule 1 has effect.
(1) The Commissioner may appoint, as members of staff of the Commission, such persons (including a Director of Operations and a Director of Administration) as may be necessary to enable the Commission to exercise its functions.(2) Those persons are taken to be employed by the Government of New South Wales in the service of the Crown, except as provided by subsection (9).(3) Each person who is appointed as a member of staff of the Commission under this section:(a) continues, subject to the provisions of this section and the terms of the person’s appointment, to be employed as a member of staff at the discretion of the Commissioner, and(b) is, in the person’s capacity as such a member, subject to the control and direction of the Commissioner.(4) Chapter 1A of the Public Sector Employment and Management Act 2002 does not apply to the appointment or employment of a person under this section as a member of staff of the Commission.(5) The person appointed as the Director of Operations or as the Director of Administration is to be appointed for a term not exceeding 5 years, but is eligible for re-appointment.(6) The Commissioner may fix the salaries, wages, allowances and conditions of employment of the staff employed under this section in so far as they are not fixed by or under another Act or law.(7) The Commissioner may enter into an agreement with any association or organisation representing a group or class of staff employed under this section with respect to industrial matters. Any such agreement binds all persons in the class or group affected by the agreement, and no such person (whether a member of the association or organisation with which the agreement was entered into or not) has any right of appeal against the terms of the agreement.(8) An agreement under subsection (7) is not an enterprise agreement within the meaning of the Industrial Relations Act 1996. However, the Commissioner may enter into such an enterprise agreement as the employer of the members of staff concerned.(9) The Commissioner is, for the purposes of any proceedings relating to staff employed under this section held before a competent tribunal having jurisdiction to deal with such matters, taken to be the employer of the staff.(10) An appeal does not lie to the Industrial Relations Commission concerning a promotional or disciplinary matter affecting any staff employed under this section.(11) None of the following matters, and no matter, question or dispute relating to any of the following matters, is an industrial matter for the purposes of the Industrial Relations Act 1996:(a) the appointment of, or failure to appoint, a person to any position as a member of staff of the Commission,(b) the removal, retirement, termination of employment or other cessation of office of a person in any such position,(c) any disciplinary proceedings or disciplinary action taken against a person employed under this section.(11A) Without limiting subsection (11), Part 6 of Chapter 2 of the Industrial Relations Act 1996 does not apply to or in respect of the dismissal (within the meaning of that Part) of any person from any position as a member of the staff of the Commission.(12) Schedule 3 has effect with respect to the rights of staff employed under this section.
104A Arrangements for use of services of other staff
(1) The Commission may:(a) with the approval of the Minister responsible for the department or authority concerned, and(b) on such terms and conditions as may be approved by the Minister administering this Act,arrange for the use (by secondment or otherwise) of the services of any staff or facilities of a government department or public authority.(2) The Commission may:(a) with the approval of the Minister for Police after that Minister has consulted the Commissioner of Police, and(b) on such terms and conditions as may be approved by the Minister administering this Act,arrange for one or more police officers to be made available (by way of secondment or otherwise) to perform services for the Commission.(3) The Public Sector Employment and Management Act 2002 does not apply in relation to any such members of staff of the Commission and such a member of staff is not subject to that Act.(4) Members of the staff of the Commission referred to in this section are under the control and direction of the Commissioner in their capacity as such members.(5) The Commission may terminate an arrangement under subsection (1) or (2) at any time, and no appeal or other proceedings may be brought, in respect of the termination, by or on behalf of the person concerned.(6) After the termination of such an arrangement respecting a former member of the staff of the Commission:(a) disciplinary proceedings or disciplinary action may, in accordance with the procedures applicable to his or her principal employment, be taken against the former member in connection with any act or omission committed while a member of that staff, and(b) any such act or omission shall, for the purposes of paragraph (a), be taken to have been committed by the former member in the course of or during his or her principal employment, and(c) no court or tribunal may make an order reinstating or having the effect of reinstating the former member as a member of the staff of the Commission.
104B Commission may engage consultants
The Commission may engage any suitably qualified person to provide the Commission with services, information or advice.
While a member of the NSW Police Force is a member of the staff of the Commission, the member may continue to act as a constable.
106 Counsel assisting Commission
The Commissioner may appoint an Australian legal practitioner to assist the Commission as counsel, either generally or in relation to a particular matter or matters.
(1) The Commission may delegate to an Assistant Commissioner or an officer of the Commission any of its functions.(2) The Commissioner may delegate to an Assistant Commissioner or an officer of the Commission any of his or her functions.(3) An Assistant Commissioner or officer of the Commission may delegate to an officer of the Commission any of the functions delegated to the Assistant Commissioner or officer, subject to any conditions to which the delegation is subject.(4) The following functions may not be delegated:(a) a power of delegation conferred by this section,(b) a function of making a report under this Act,(c) the power of the Commissioner to issue a warrant for the arrest of a person under section 36 or 100,(d) the power of the Commissioner to issue search warrants under section 40,(e) the power of the Commissioner to certify as referred to in section 111 (4) (c).(5) The following functions may be delegated only to an Assistant Commissioner:(a) the power to require a public authority or public official to produce a statement of information under section 21,(b) the power to require a person to attend and produce a document or other thing under section 22,(c) the power to authorise an officer of the Commission to enter premises under section 23,(d) the making of an application for an injunction under section 27,(e) the powers of the Commission or the Commissioner under Division 3 of Part 4 at or in connection with a compulsory examination or public inquiry, except the power to issue a warrant for the arrest of a person under section 36,(f) the powers of the Commissioner under Part 10 at or in connection with a hearing.(6) The functions referred to in subsection (4) may however be delegated to an Assistant Commissioner (and to an Assistant Commissioner only) if the Commissioner is of the opinion that there would or might be a conflict of interest or that it would be in the interests of justice to do so.(7) No person shall be concerned to inquire whether circumstances exist warranting a delegation under subsection (6), and a statement in the instrument of delegation of the Commissioner’s opinion referred to in that subsection is sufficient.
For the purposes of this Act, service of a document on a person may be effected:(a) on a natural person:(i) by delivering it to the person personally, or(ii) by leaving it at, or by sending it by pre-paid post to, the residential or business address of the person last known to the person serving the document, or(b) on a body corporate—by leaving it at, or by sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate,or in any other way in which service could have been effected had this section not been enacted.
(1) No matter or thing done by the Commission, the Commissioner, the Inspector or any person acting under the direction of the Commission, the Commissioner or the Inspector shall, if the matter or thing was done in good faith for the purpose of executing this or any other Act, subject the Commissioner, the Inspector or a person so acting personally to any action, liability, claim or demand.(2) (Repealed)(3) An Australian legal practitioner assisting the Commission or representing a person before the Commission has the same protection and immunity as a barrister (within the meaning of the Legal Profession Act 2004) has in appearing for a party in proceedings in the Supreme Court.(4) Subject to this Act, a person summoned to attend or appearing before the Commission as a witness, or producing a document or other thing to the Commission, has the same protection as a witness in proceedings in the Supreme Court.(5) No criminal or civil liability (apart from this Act) attaches to any person for compliance, or purported compliance in good faith, with any requirement made under this Act.(6) In particular, if a person gives any statement of information or produces any document or other thing under section 21 or 22, no civil liability attaches to the person for doing so, whether that liability would arise under a contract or otherwise.
110 Disclosure of pecuniary interests and other matters
The regulations may make provision for or with respect to:(a) the disclosure by officers of the Commission of all or any of the following pecuniary interests or other matters:(i) real or personal property,(ii) income,(iii) gifts,(iv) financial or other contributions to any travel,(v) shareholdings or other beneficial interests in corporations,(vi) partnerships,(vii) trusts,(viii) positions (whether remunerated or not) held in, or membership of, corporations, trade unions, professional associations or other organisations or associations,(ix) occupations, trades, professions or vocations,(x) debts,(xi) payments of money or transfers of property to relatives or other persons by, or under arrangements made by, officers of the Commission,(xii) any other direct or indirect benefits, advantages or liabilities, whether pecuniary or not, of a kind specified in the regulations, and(b) prescribing the manner in which, and the times at which, pecuniary interests or other matters shall be disclosed and providing for the verification by statutory declaration or otherwise of any such disclosure, and(c) the compilation and maintenance of registers of pecuniary interests or other matters by officers of the Commission and the inspection and publication of any such register.
(1) This section applies to:(a) a person who is or was an officer of the Commission, and(b) a person who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such an Australian legal practitioner in the exercise of the Australian legal practitioner’s functions as counsel to the Commission, and(c) (Repealed)(d) a person or body referred to in section 14 (3), 16 (4) or 53 (6), and(e) a person who is or was an officer of the Inspector.(2) A person to whom this section applies shall not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person’s functions under this Act:(a) make a record of any information, or(b) divulge or communicate to any person any information,being information acquired by the person by reason of, or in the course of, the exercise of the person’s functions under this Act.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(3) A person to whom this section applies shall not be required:(a) to produce in any court any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s functions under this Act, or(b) to divulge or communicate to any court any matter or thing that has come to the person’s notice in the exercise of the person’s functions under this Act,except for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions.(4) Despite this section, a person to whom this section applies may divulge any such information:(a) for the purposes of and in accordance with this Act, or(b) for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions, or(c) in accordance with a direction of the Commissioner or Inspector, if the Commissioner or Inspector certifies that it is necessary to do so in the public interest, or(d) to any prescribed authority or person.(5) An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act.(6) In this section:court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
111A Secrecy provisions in other Acts
The following provisions do not apply to the divulging of information, or the production of any document or other thing, pursuant to a requirement made by or under this Act:(a) section 15 (Secrecy) of the Companies (Administration) Act 1981.(b) (Repealed)
111B Privacy and Personal Information Protection Act 1998
Section 67 of the Privacy and Personal Information Protection Act 1998 does not apply to the disclosure of information for the purposes of any proceedings for an offence under this Act.
111C Relationship with Ombudsman regarding conduct of Commission and Inspector
Conduct of the Commissioner or an officer or former officer of the Commission cannot be made the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974, except in relation to matters referred to the Ombudsman by the Inspector.
111D Complaints by public officials
(1) A public official within the meaning of the Public Interest Disclosures Act 1994 may complain to the Inspector (orally or in writing) about the conduct of the Commission, an officer or former officer of the Commission or an officer of the Inspector.(2) In this section:conduct includes conduct by way of action or inaction or alleged action or inaction.
111E Public authority response to corruption prevention recommendations of Commission
(1) As soon as practicable after making a recommendation under section 13 (3) (b) for a specified public authority to take action to reduce the likelihood of corrupt conduct occurring, the Commission must furnish a copy of the recommendation to the authority and to the Minister for the authority.(2) The public authority must inform the Commission in writing within 3 months (or such longer period as the Commission may agree to in writing) after receiving the recommendation, whether it proposes to implement any plan of action in response to the recommendation and, if so, of the plan of action.(3) A public authority that informs the Commission of such a plan must provide a written report to the Commission of any progress in implementing the plan:(a) 12 months after informing the Commission of the plan, and(b) if the plan is not then fully implemented, 12 months after that.
112 Restriction on publication of evidence
(1) The Commission may direct that:(a) any evidence given before it, or(b) the contents of any document, or a description of any thing, produced to the Commission or seized under a search warrant issued under this Act, or(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or(d) the fact that any person has given or may be about to give evidence at a compulsory examination or public inquiry, or(e) any written submissions received by the Commission (including, but not limited to, submissions made by Counsel assisting the Commission),shall not be published or shall not be published except in such manner, and to such persons, as the Commission specifies.(1A) The Commission is not to give a direction under this section unless satisfied that the direction is necessary or desirable in the public interest.(2) A person shall not make a publication in contravention of a direction given under this section.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
113 Evidence in criminal proceedings
(1) If:(a) a person has been charged with an offence before a court of the State, and(b) the court considers that it is desirable in the interests of justice that particular evidence given before the Commission, being evidence in relation to which the Commission has given a direction under section 112, be made available to the person or to an Australian legal practitioner representing the person or to the prosecutor,the court may give to the Commission a certificate to that effect.(2) The Commissioner may appear before the court for the purpose of making representations concerning the giving of such a certificate.(3) On such a certificate being given, the Commission shall make the evidence or information available to the court.(4) The court may make the evidence or information available to the person charged with the offence concerned, to an Australian legal practitioner representing the person charged or to the prosecutor, if the court has examined the evidence or information and is satisfied that the interests of justice so require.(5) Nothing in section 111 prevents a person to whom that section applies from producing any document or other thing, or divulging or communicating any matter or thing, to the extent necessary to give effect to this section.(6) Nothing in section 112 prevents the evidence or information being made available under this section.
114 Disclosures prejudicing investigations
(1) A person who is required:(a) by a notice under section 21 or 22 to produce a statement of information or to attend and produce a document or other thing, or(b) by a summons under section 35 to give evidence or to produce a document or other thing,shall not disclose any information about the notice or summons that is likely to prejudice the investigation to which it relates.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Subsection (1) does not apply to a notice or summons unless it specifies that information about the notice or summons must not be disclosed.(3) A person does not contravene this section if:(a) the disclosure is made to an employee, agent or other person in order to obtain information to comply with the notice or summons and the employee, agent or other person is directed not to inform the person to whom the information relates about the matter, or(b) the disclosure is made to obtain legal advice or representation in relation to the notice or summons, or(c) the disclosure is made for the purposes of, or in the course of, legal proceedings.(4) A reference in this section to the disclosure of any information about a notice or summons includes a reference to:(a) a disclosure about the existence or nature of the notice or summons or of the investigation to which it relates, and(b) a disclosure of any information to a person from which the person could reasonably be expected to infer the existence or nature of the notice or summons or of the investigation to which it relates.
114A Disciplinary proceedings—taking action based on finding of corrupt conduct
(1) This section applies if a finding is made by the Commission in a report under section 74 that a public official has engaged, or has attempted to engage, in corrupt conduct.(2) Disciplinary proceedings in connection with the employment of the public official may be taken by the employer of the public official on the ground of the conduct of the public official on which the finding was based.(3) The person or body determining the disciplinary proceedings:(a) is not required to further investigate whether that conduct occurred, and(b) may take any disciplinary or other action against the public official of a kind that the person or body may otherwise take in disciplinary proceedings against any such public official, and(c) is to give the public official an opportunity to make a submission in relation to any proposed disciplinary or other action.(4) Any such disciplinary or other action is taken to be action under the law relating to the taking of disciplinary proceedings against the public official and that law (including any right to appeal against or seek a review of the action) applies accordingly.(5) Evidence given to the Commission by the public official may be admitted and used in disciplinary proceedings against the public official that are authorised by this section (and in any related appeal or review proceedings) despite sections 26 and 37 or any other law. However, the admission and use of the evidence in those proceedings does not cause it to be admissible against the public official in any other proceedings.(6) The regulations may do any of the following:(a) exclude any proceedings against a public official from the operation of this section,(b) declare that any proceedings against a public official are disciplinary proceedings in connection with the employment of a public official for the purposes of this section.(7) This section does not apply:(a) to a finding of corrupt conduct that is made before the commencement of this section, or(b) to any evidence given before that commencement that would not at that time have been admissible in disciplinary proceedings.(8) In this section:employment includes:
(a) engagement under a contract for services, and(b) appointment as a statutory officer to whom a declaration under subsection (6) (b) applies.evidence given to the Commission means:
(a) a statement of information, or a document or other thing, produced in response to a notice by 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 at a compulsory examination or public inquiry.
115 Penalties for offences committed by corporations
The maximum penalty applicable to a corporation convicted of an offence against this Act or the regulations is (except in so far as other provision is made by section 116) double the pecuniary penalty otherwise applying to the offence.
(1) Except where otherwise expressly provided by this Act, proceedings for an offence against this Act or the regulations shall be dealt with summarily before the Local Court.(2) If an offence against this Act is an indictable offence, the Local Court may nevertheless hear and determine the proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and prosecutor consent.(3) If, in accordance with subsection (2), the Local Court convicts a person of such an offence, the maximum penalty that the court may impose is:(a) in the case of an individual—the smaller of:(i) a fine of 50 penalty units or imprisonment for 2 years, or both, or(ii) the maximum penalty otherwise applicable to the offence when committed by an individual, or(b) in the case of a corporation—the smaller of:(i) a fine of 100 penalty units, or(ii) the maximum penalty otherwise applicable to the offence when committed by a corporation.(4) Proceedings for an alleged offence under section 80 (c), 81, 82 or 95 may be commenced within 3 years after the commission of the alleged offence.(5) Proceedings for an alleged offence under section 112 may be commenced within 2 years after the commission of the alleged offence.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, the regulations may make provision for or with respect to:(a) the appointment, conditions of employment, discipline, code of conduct and termination of employment of staff of the Commission, and(b) security checks of officers of the Commission and applicants for appointment or engagement as officers of the Commission, and(c) the service of a notice to an occupier whose premises are entered under a search warrant, and(d) the issue of identity cards to officers of the Commission and their use, and(e) forms to be used for the purposes of this Act, and(f) the use and custody of the seal of the Commission.(3) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.(4) Regulations may be made only on the recommendation of the Commissioner, except regulations made under section 110.
117A Savings, transitional and other provisions
Schedule 4 has effect.
(1) Nothing in this Act shall be taken to affect the rights and privileges of Parliament in relation to the freedom of speech, and debates and proceedings, in Parliament.(2) The Commission may use a relevant register:(a) for the purpose of any investigation into whether or not a member of Parliament publicly disclosed a particular matter or as to the nature of any matter disclosed, and(b) for the purpose of any finding, opinion or recommendation concerning the disclosure or non-disclosure,and for that purpose Parliament is taken to have waived any parliamentary privilege that may apply to the register.(3) Subsection (2) extends to investigations instigated, and relevant registers obtained for use, before the commencement of that subsection.(4) In this section, relevant register means a register of pecuniary interests or other matters required to be compiled and maintained pursuant to the regulations made under section 14A of the Constitution Act 1902, and includes:(a) a copy of any such register (or of a part of any such register) that is published as a parliamentary paper or otherwise, and(b) a return or other document furnished by a member of Parliament for the purpose of the compilation and maintenance of the register, or a copy of the whole or any part of any such return or document.