Independent Commission Against Corruption Act 1988 No 35
Current version for 4 July 2014 to date (accessed 22 December 2014 at 03:34)
Part 4

Part 4 Functions of Commission

Division 1 Functions generally

12   Public interest to be paramount

In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns.

12A   Serious corrupt conduct and systemic corrupt conduct

In exercising its functions, the Commission is, as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct and is to take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct.

13   Principal functions

(1)  The principal functions of the Commission are as follows:
(a)  to investigate any allegation or complaint that, or any circumstances which in the Commission’s opinion imply that:
(i)  corrupt conduct, or
(ii)  conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or
(iii)  conduct connected with corrupt conduct,
may have occurred, may be occurring or may be about to occur,
(b)  to investigate any matter referred to the Commission by both Houses of Parliament,
(c)  to communicate to appropriate authorities the results of its investigations,
(d)  to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct,
(e)  to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated,
(f)  to advise public authorities or public officials of changes in practices or procedures compatible with the effective exercise of their functions which the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt conduct,
(g)  to co-operate with public authorities and public officials in reviewing laws, practices and procedures with a view to reducing the likelihood of the occurrence of corrupt conduct,
(h)  to educate and advise public authorities, public officials and the community on strategies to combat corrupt conduct,
(i)  to educate and disseminate information to the public on the detrimental effects of corrupt conduct and on the importance of maintaining the integrity of public administration,
(j)  to enlist and foster public support in combating corrupt conduct,
(k)  to develop, arrange, supervise, participate in or conduct such educational or advisory programs as may be described in a reference made to the Commission by both Houses of Parliament.
(1A)  Subsection (1) (d) and (f)–(h) do not extend to the conduct of police officers, Crime Commission officers or administrative officers within the meaning of the Police Integrity Commission Act 1996.
(2)  The Commission is to conduct its investigations with a view to determining:
(a)  whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has occurred, is occurring or is about to occur, and
(b)  whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and
(c)  whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct.
(2A)  Subsection (2) (a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur.
(3)  The principal functions of the Commission also include:
(a)  the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and
(b)  the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.
(3A)  The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9 (1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph.
(4)  The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B (Report not to include findings etc of guilt or recommending prosecution) prevents the Commission from including in a report, but section 9 (5) and this section are the only restrictions imposed by this Act on the Commission’s powers under subsection (3).
(5)  The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission’s power to make findings and form opinions:
(a)  findings that particular persons have engaged, are engaged or are about to engage in corrupt conduct,
(b)  opinions as to:
(i)  whether the advice of the Director of Public Prosecutions should be sought in relation to the commencement of proceedings against particular persons for criminal offences against laws of the State, or
(ii)  whether consideration should or should not be given to the taking of other action against particular persons,
(c)  findings of fact.

14   Other functions of Commission

(1)  Other functions of the Commission are as follows:
(a)  to gather and assemble, during or after the discontinuance or completion of its investigations, evidence that may be admissible in the prosecution of a person for a criminal offence against a law of the State in connection with corrupt conduct and to furnish such evidence to the Director of Public Prosecutions,
(b)  to furnish, during or after the discontinuance or completion of its investigations, other evidence obtained in the course of its investigations (being evidence that may be admissible in the prosecution of a person for a criminal offence against a law of another State, the Commonwealth or a Territory) to the Attorney General or to the appropriate authority of the jurisdiction concerned.
(1A)  Evidence of the kind referred to in subsection (1) (b) may be accompanied by any observations that the Commission considers appropriate and (in the case of evidence furnished to the Attorney General) recommendations as to what action the Commission considers should be taken in relation to the evidence.
(1B)  A copy or detailed description of any evidence furnished to the appropriate authority of another jurisdiction, together with a copy of any accompanying observations, is to be furnished to the Attorney General.
(2)  If the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public authority, the Commission may, if it considers it desirable to do so:
(a)  furnish the information or a report on the information to the authority or to the Minister for the authority, and
(b)  make to the authority or the Minister for the authority such recommendations (if any) relating to the exercise of the functions of the authority as the Commission considers appropriate.
(2A)  A copy of any information or report furnished to a public authority under subsection (2), together with a copy of any such recommendation, is to be furnished to the Minister for the authority.
(3)  If the Commission furnishes any evidence or information to a person under this section on the understanding that the information is confidential, the person is subject to the secrecy provisions of section 111 in relation to the information.

15   Task forces

The Commission may, in connection with its principal functions:
(a)  arrange for the establishment of task forces within the State, and
(b)  seek the establishment of joint task forces with authorities of the Commonwealth or other States or Territories, and
(c)  co-operate with State task forces, Commonwealth task forces, joint task forces or other task forces, and
(d)  co-ordinate or co-operate in co-ordinating any such task forces.

16   Co-operation with other agencies

(1)  In exercising its principal functions relating to the investigation of conduct, the Commission:
(a)  shall, as far as practicable, work in co-operation with law enforcement agencies, and
(b)  may work in co-operation with the Auditor-General, the Ombudsman, the Australian Crime Commission, the Australian Bureau of Criminal Intelligence and such other persons and bodies as the Commission thinks appropriate.
(2)  In exercising its other principal functions, the Commission shall, as far as practicable, work in co-operation with the Auditor-General, the Ombudsman, educational institutions, management consultants and such other persons and bodies as the Commission thinks appropriate.
(3)  The Commission may consult with and disseminate intelligence and information to law enforcement agencies, the Australian Crime Commission, the Australian Bureau of Criminal Intelligence and such other persons and bodies (including any task force and any member of a task force) as the Commission thinks appropriate.
(4)  If the Commission disseminates information to a person or body under this section on the understanding that the information is confidential, the person or body is subject to the secrecy provisions of section 111 in relation to the information.
(5)  In this section:

law enforcement agency means:

(a)  the NSW Police Force, or
(b)  a police force of another State or Territory, or
(c)  the Australian Federal Police, or
(d)  any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the State, another State or a Territory.

17   Evidence and procedure

(1)  The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate.
(2)  The Commission shall exercise its functions with as little formality and technicality as is possible, and, in particular, the Commission shall accept written submissions as far as is possible and compulsory examinations and public inquiries shall be conducted with as little emphasis on an adversarial approach as is possible.
(3)  Despite subsection (1), section 127 (Religious confessions) of the Evidence Act 1995 applies to any compulsory examination or public inquiry before the Commission.

18   Court proceedings

(1)  The Commission may do any or all of the following:
(a)  commence, continue, discontinue or complete any investigation,
(b)  furnish reports in connection with any investigation,
(c)  do all such acts and things as are necessary or expedient for those purposes,
despite any proceedings that may be in or before any court, tribunal, coroner, Magistrate or other person.
(2)  If the proceedings are proceedings for an indictable offence and are conducted by or on behalf of the Crown, the Commission must, to the extent to which the Commission thinks it necessary to do so to ensure that the accused’s right to a fair trial is not prejudiced:
(a)  ensure that, as far as practicable, the investigation is conducted in private during the currency of the proceedings, and
(b)  give directions under section 112, having effect during the currency of the proceedings, and
(c)  defer making a report to Parliament in relation to the investigation during the currency of the proceedings.
(2A)  Subsection (2) does not apply:
(a)  (in the case of committal proceedings) before the commencement of the committal hearing, that is, the commencement of the taking of the evidence for the prosecution in the committal proceedings, and
(b)  (in any other case) after the proceedings cease to be proceedings for the trial of a person before a jury.
(3)  This section has effect whether or not the proceedings commenced before or after the relevant investigation commenced and has effect whether or not the Commission or an officer of the Commission is a party to the proceedings.

19   Incidental powers

(1)  The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions, and any specific powers conferred on the Commission by this Act shall not be taken to limit by implication the generality of this section.
(2)  The Commission or an officer of the Commission may seek the issue of a warrant under the Surveillance Devices Act 2007.

Division 2 Investigations

20   Investigations generally

(1)  The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it.
(2)  The Commission may conduct an investigation even though no particular public official or other person has been implicated.
(3)  The Commission may, in considering whether or not to conduct, continue or discontinue an investigation (other than in relation to a matter referred by both Houses of Parliament), have regard to such matters as it thinks fit, including whether or not (in the Commission’s opinion):
(a)  the subject-matter of the investigation is trivial, or
(b)  the conduct concerned occurred at too remote a time to justify investigation, or
(c)  if the investigation was initiated as a result of a complaint—the complaint was frivolous, vexatious or not in good faith.
(4)  (Repealed)
(5)  If the Commission decides to discontinue or not to commence an investigation of a complaint or report made to it, the Commission must inform the complainant or officer who made the report in writing of its decision and the reasons for it.

20A   Preliminary investigations

(1)  An investigation may be in the nature of a preliminary investigation.
(2)  A preliminary examination can be conducted, for example, for the purpose of assisting the Commission:
(a)  to discover or identify conduct that might be made the subject of a more complete investigation under this Act, or
(b)  to decide whether to make particular conduct the subject of a more complete investigation under this Act.
(3)  Nothing in this section affects any other provision of this Act.

21   Power to obtain information

(1)  For the purposes of an investigation, the Commission may, by notice in writing served on a public authority or public official, require the authority or official to produce a statement of information.
(2)  A notice under this section must specify or describe the information concerned, must fix a time and date for compliance and must specify the person (being the Commissioner, an Assistant Commissioner or any other officer of the Commission) to whom the production is to be made.
(3)  The notice may provide that the requirement may be satisfied by some other person acting on behalf of the public authority or public official and may, but need not, specify the person or class of persons who may so act.

22   Power to obtain documents etc

(1)  For the purposes of an investigation, the Commission may, by notice in writing served on a person (whether or not a public authority or public official), require the person:
(a)  to attend, at a time and place specified in the notice, before a person (being the Commissioner, an Assistant Commissioner or any other officer of the Commission) specified in the notice, and
(b)  to produce at that time and place to the person so specified a document or other thing specified in the notice.
(2)  The notice may provide that the requirement may be satisfied by some other person acting on behalf of the person on whom it was imposed and may, but need not, specify the person or class of persons who may so act.

23   Power to enter public premises

(1)  For the purposes of an investigation, the Commissioner or an officer of the Commission authorised in writing by the Commissioner may, at any time:
(a)  enter and inspect any premises occupied or used by a public authority or public official in that capacity, and
(b)  inspect any document or other thing in or on the premises, and
(c)  take copies of any document in or on the premises.
(2)  (Repealed)
(3)  The public authority or public official shall make available to the Commissioner or authorised officer such facilities as are necessary to enable the powers conferred by this section to be exercised.

24   Privilege as regards information, documents etc

(1)  This section applies where, under section 21 or 22, the Commission requires any person:
(a)  to produce any statement of information, or
(b)  to produce any document or other thing.
(2)  The Commission shall set aside the requirement if it appears to the Commission that any person has a ground of privilege whereby, in proceedings in a court of law, the person might resist a like requirement and it does not appear to the Commission that the person consents to compliance with the requirement.
(3)  The person must however comply with the requirement despite:
(a)  any rule which in proceedings in a court of law might justify an objection to compliance with a like requirement on grounds of public interest, or
(b)  any privilege of a public authority or public official in that capacity which the authority or official could have claimed in a court of law, or
(c)  any duty of secrecy or other restriction on disclosure applying to a public authority or public official or a former public authority or public official.

25   Privilege as regards entry on public premises

(1)  This section applies to the powers of entry, inspection and copying conferred by section 23.
(2)  The powers shall not be exercised if it appears to the Commissioner or authorised officer that any person has a ground of privilege whereby, in proceedings in a court of law, the person might resist inspection of the premises or production of the document or other thing and it does not appear to the Commissioner or authorised officer that the person consents to the inspection or production.
(3)  The powers may however be exercised despite:
(a)  any rule of law which, in proceedings in a court of law, might justify an objection to an inspection of the premises or to production of the document or other thing on grounds of public interest, or
(b)  any privilege of a public authority or public official in that capacity which the authority or official could have claimed in a court of law, or
(c)  any duty of secrecy or other restriction on disclosure applying to a public authority or public official.

26   Self-incrimination

(1)  This section applies where, under section 21 or 22, the Commission requires any person:
(a)  to produce any statement of information, or
(b)  to produce any document or other thing.
(2)  If the statement, document or other thing tends to incriminate the person and the person objects to production at the time, neither the fact of the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person (except proceedings for an offence against this Act or except as provided by section 114A (5)).
(3)  They may however be used for the purposes of the investigation concerned, despite any such objection.

27   Injunctions

The Supreme Court may, on application made by the Commission, grant an injunction restraining any conduct in which a person (whether or not a public authority or public official) is engaging or in which such a person appears likely to engage, if the conduct is the subject of, or affects the subject of, an investigation or proposed investigation by the Commission.

28   Provisions relating to injunctions

(1)  The Supreme Court shall not grant an injunction under section 27 unless it is of the opinion that:
(a)  the conduct sought to be restrained is likely to impede the conduct of the investigation or proposed investigation, or
(b)  it is necessary to restrain the conduct in order to prevent irreparable harm being done because of corrupt conduct or suspected corrupt conduct.
(2)  The Commission shall not be required, as a condition for the granting of an injunction under section 27, to give any undertaking as to damages.

29   Powers exercisable whether or not compulsory examination or public inquiry being held

Powers may be exercised under this Division in relation to an investigation whether or not a compulsory examination or public inquiry before the Commission is being held for the purposes of the investigation.

Division 3 Compulsory examinations and public inquiries

30   Compulsory examinations

(1)  For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a compulsory examination.
(2)  A compulsory examination is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.
(3)  A person required to attend a compulsory examination is entitled to be informed, before or at the commencement of the compulsory examination, of the nature of the allegation or complaint being investigated.
(4)  A failure to comply with subsection (3) does not invalidate or otherwise affect the compulsory examination.
(5)  A compulsory examination is to be conducted in private.
Note. Section 17 (2) requires the Commission to conduct compulsory examinations with as little emphasis on an adversarial approach as possible.
(6)  The Commission may (but is not required to) advise a person required to attend a compulsory examination of any findings it has made or opinions it has formed as a result of the compulsory examination.

31   Public inquiries

(1)  For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry.
(2)  Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commission is to consider the following:
(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 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)  An Assistant Commissioner may determine to conduct a public inquiry only with the concurrence of the Commissioner. However, concurrence is not required if the Commissioner would or might have a conflict of interest in relation to the inquiry.
Note. Powers of the Commission under this Division may be delegated to an Assistant Commissioner under section 107 (5) (e).
(4)  A public inquiry is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.
(5)  At a public inquiry, the person presiding must announce the general scope and purpose of the inquiry.
(6)  A person required to attend a public inquiry is entitled to be informed of the general scope and purpose of the public inquiry and the nature of the allegation or complaint being investigated before or at the time the person is required to appear at the inquiry.
(7)  A failure to comply with subsection (6) does not invalidate or otherwise affect the public inquiry.
(8)  A public inquiry is to be held in public.
(9)  Despite subsection (8), the Commission may decide to hold part of the inquiry in private if it considers this to be in the public interest.
(10)  Without limiting subsection (9), the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or an Australian legal practitioner representing such a person, as well as to a closing submission by an Australian legal practitioner assisting the Commission as counsel.
Note. Section 17 (2) requires the Commission to conduct public inquiries with as little emphasis on an adversarial approach as possible.

31A   Directions as to presence of persons at compulsory examinations and public inquiries

The Commissioner may give directions as to the persons who may be present at a compulsory examination or any part of a public inquiry that is held in private. A person must not be present in contravention of any such direction.
Note. It is an offence to contravene a direction under section 31A—see section 85.

32   Right of appearance of affected person

If it is shown to the satisfaction of the Commission that any person is substantially and directly interested in any subject-matter of a public inquiry, the Commission may authorise the person to appear at the public inquiry or a specified part of the public inquiry.

33   Legal representation

(1)  The Commission may, in relation to a compulsory examination or public inquiry, authorise:
(a)  a person giving evidence at the compulsory examination or public inquiry, or
(b)  a person referred to in section 32,
to be represented by an Australian legal practitioner at the compulsory examination or public inquiry or a specified part of the compulsory examination or public inquiry.
(2)  The Commission is required to give a reasonable opportunity for a person giving evidence at the compulsory examination or public inquiry to be legally represented.
(3)  An Australian legal practitioner appointed by the Commission to assist it may appear before the Commission.

33A   Groups and unincorporated associations

(1)  A group or unincorporated association may be authorised to appear at a compulsory examination or public inquiry or authorised or required to give evidence at a compulsory examination or public inquiry.
(2)  Accordingly, references in sections 32 and 33, and in other provisions of this Act, to a “person” extend for this purpose to a group or unincorporated association.
(3)  However, this section does not affect the application in any other context of the principle that a reference to a word in the singular form includes a reference to the word in the plural form.

34   Examination and cross-examination

(1)  An Australian legal practitioner appointed by the Commission to assist it, or a person or a person’s Australian legal practitioner authorised to appear at a compulsory examination or public inquiry, may, with the leave of the Commission, examine or cross-examine any witness on any matter that the Commission considers relevant.
(2)  Any witness so examined or cross-examined has the same protection and is subject to the same liabilities as if examined by the Commissioner or an Assistant Commissioner.

35   Power to summon witnesses and take evidence

(1)  The Commissioner may summon a person to appear before the Commission at a compulsory examination or public inquiry at a time and place named in the summons (the required appearance):
(a)  to give evidence, or
(b)  to produce such documents or other things (if any) as are referred to in the summons,
or both.
(2)  The person presiding at a compulsory examination or public inquiry before the Commission may require a person appearing at the compulsory examination or public inquiry to produce a document or other thing.
(3)  The Commission may, at a compulsory examination or public inquiry, take evidence on oath or affirmation and for that purpose:
(a)  the person presiding at the compulsory examination or public inquiry may require a person appearing at the compulsory examination or public inquiry to give evidence either to take an oath or to make an affirmation in a form approved by the person presiding, and
(b)  the person presiding, or a person authorised for the purpose by the person presiding, may administer an oath or affirmation to a person so appearing at the compulsory examination or public inquiry.
(4)  A witness who has been summoned to appear before the Commission shall appear and report himself or herself from day to day unless the witness is excused from appearance or until the witness is released from further appearance by the person presiding at the compulsory examination or public inquiry.
(4A)  The Commissioner may, by notice in writing, excuse a person who has been summoned to appear before the Commission and produce documents or other things from the required appearance on condition that the person (or a person acting on the person’s behalf) produces those documents or things in accordance with any directions given by the Commissioner before the time of the the required appearance.
(5)  A person who, without being excused or released under subsection (4) or (4A), fails to appear and report shall be taken to have failed to appear before the Commission in obedience to the summons.
(5A)  A person who, after being excused under subsection (4A) from the required appearance, fails to produce the documents or things concerned in accordance with the Commissioner’s directions is taken to have failed to appear before the Commission in obedience to the summons.
(6)  A Judge or Magistrate may, on the application of the Commissioner, issue any summons that the Commissioner is authorised to issue under this section.
(7)  The purpose of subsection (6) is to enable the summons to be given the character of a summons issued by a judicial officer, for the purposes of the Service and Execution of Process Act 1901 of the Commonwealth and any other relevant law.

36   Arrest of witness

(1)  If a person served with a summons to attend the Commission as a witness fails to attend in answer to the summons, the Commissioner may, on proof by statutory declaration of the service of the summons, issue a warrant for the arrest of the witness.
(2)  If the Commissioner is satisfied by evidence on oath or affirmation that it is probable that a person whose evidence is desired and is necessary and relevant to an investigation under this Act:
(a)  will not attend before the Commission to give evidence without being compelled to do so, or
(b)  is about to or is making preparations to leave the State and the person’s evidence will not be obtained by the Commission if the person departs,
the Commissioner may issue a warrant for the arrest of the person.
(3)  The Commissioner is authorised to administer an oath or affirmation for the purposes of subsection (2).
(4)  A warrant may be issued under subsection (2) without or before the issue of a summons to the person whose evidence is desired.
(5)  A warrant may be issued under subsection (2) after the issue of a summons to the person whose evidence is desired, even though the time named in the summons for the person to attend has not yet passed.
(6)  A warrant under this section authorises the arrest of the witness and his or her being promptly brought before the Commission and detained in a prison or elsewhere for that purpose until released by order of the Commissioner.
(7)  A warrant issued under this section may be executed by any member of the NSW Police Force, or by any person to whom it is addressed, and the person executing it may use such force as is reasonably necessary for the purpose of entering any premises for the purpose of executing it.
(8)  The issue of a warrant or the arrest of a witness does not relieve the witness from any liability incurred by the witness for non-compliance with a summons.

36A   Conditional release of witness

(1)  The release of a witness by order of the Commissioner under section 36 (6) may (but need not) be made subject to one or more of the following conditions (or any other conditions):
(a)  that the witness appear and report himself or herself before the Commission in accordance with the terms of the order unless excused from attendance or until released from further attendance by the person presiding at the relevant compulsory examination or public inquiry of the Commission, and
(b)  conditions for the purpose of ensuring the further attendance of the witness before the Commission (for example the provision of sureties by the witness, the surrender of any passport held by the witness, a requirement as to where the witness is to live and regular reporting by the witness to the Commission).
(2)  From time to time, the Commissioner may by order amend, revoke or add to those conditions.

36B   Review by Supreme Court

(1)  A witness who has not been released by the Commissioner under section 36 (6) or whose release under that subsection is subject to one or more conditions may apply to the Supreme Court for a review of the decision not to release or failure to release the witness or of the terms of one or more of those conditions.
(2)  The Supreme Court may affirm or set aside a decision by the Commissioner not to release the witness or any condition imposed by the Commissioner on the release of the witness. The Supreme Court may also or instead make any order that the Commissioner may make in relation to the detention or release of the witness. The Court may do so also where the Commissioner has not made any decision within a reasonable time on the release of the witness.
(3)  Such an order is taken to be an order of the Commissioner.

37   Privilege as regards answers, documents etc

(1)  A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not entitled to refuse:
(a)  to be sworn or to make an affirmation, or
(b)  to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a compulsory examination or public inquiry, or
(c)  to produce any document or other thing in the witness’s custody or control which the witness is required by the summons or by the person presiding to produce.
(2)  A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.
(3)  An answer made, or document or other thing produced, by a witness at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by the Commissioner under section 35 (4A) is not (except as otherwise provided in this section or section 114A (5)) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.
(4)  Nothing in this section makes inadmissible:
(a)  any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or
(b)  any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or
(c)  any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.
(5)  Where:
(a)  an Australian legal practitioner or other person is required to answer a question or produce a document or other thing at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by the Commissioner under section 35 (4A), and
(b)  the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between an Australian legal practitioner (in his or her capacity as an Australian legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a compulsory examination or public inquiry before the Commission,
the Australian legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.
(6)  (Repealed)

38   Declaration as to objections by witness

The Commissioner or person presiding at the compulsory examination or public inquiry may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing.

39   Attendance of prisoner before Commission

(1)  If the Commissioner requires the attendance at a compulsory examination or public inquiry before the Commission of a prisoner, the Commissioner may, by order in writing served on the governor of the prison in whose custody the prisoner is, direct the governor to produce the prisoner, or have the prisoner produced, at the time and place stated in the order.
(2)  Such an order is sufficient authority to the governor of the prison for producing or having produced the prisoner, who shall be produced accordingly.
(3)  A prisoner shall, when produced under this section in the actual custody of the governor of the prison, a prison officer or a member of the NSW Police Force, be taken to be in lawful custody.
(4)  The governor, prison officer or member of the NSW Police Force shall in due course return the prisoner to the prison.
(5)  In this section, governor of a prison, prison and prisoner have the same meanings as governor, correctional centre and inmate have in the Crimes (Administration of Sentences) Act 1999.

Division 4 Search warrants

40   Issue of search warrant

(1)  An authorised officer to whom an application is made under subsection (4) may issue a search warrant if satisfied that there are reasonable grounds for doing so.
(2)  The Commissioner, on application made to the Commissioner under subsection (4), may issue a search warrant if the Commissioner thinks fit in the circumstances and if satisfied that there are reasonable grounds for doing so.
(3)  Search warrants should, as far as practicable, be issued by authorised officers, but nothing in this subsection affects the discretion of the Commissioner to issue them.
(4)  An officer of the Commission may apply to an authorised officer or the Commissioner for a search warrant if the officer has reasonable grounds for believing that there is in or on any premises a document or other thing connected with any matter that is being investigated under this Act or that such a document or other thing may, within the next following 72 hours, be brought into or onto the premises.

41   Authority conferred by warrant

(1)  A search warrant authorises any member of the NSW Police Force, or any other person, named in the warrant:
(a)  to enter the premises, and
(b)  to search the premises for documents or other things connected with any matter that is being investigated under this Act, and
(c)  to seize any such documents or other things found in or on the premises and deliver them to the Commission.
(2)  A member of the NSW Police Force, or a senior Commission investigator, named in and executing a search warrant may search a person found in or on the premises whom the member of the NSW Police Force or senior Commission investigator reasonably suspects of having a document or other thing mentioned in the warrant.
(3)  In this section:

senior Commission investigator means an officer of the Commission who is designated by the Commissioner as a senior investigator and who is issued by the Commissioner with means of identification as such a senior Commission investigator.

42   Duty to show warrant

A person executing a search warrant shall produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier.

43   Use of force

(1)  A person authorised to enter premises under a search warrant may use such force as is reasonably necessary for the purpose of entering the premises.
(2)  A person authorised to enter premises under a search warrant may, if it is reasonably necessary to do so, break open any receptacle in or on the premises for the purposes of the search.

44   Use of assistants to execute warrant

A person may execute a search warrant with the aid of such assistants as the person considers necessary.

45   Execution of warrant by day or night

(1)  A search warrant may be executed by day, but shall not be executed by night unless the person issuing the warrant, by the warrant, authorises its execution by night.
(2)  In this section:

by day means during the period between 6 am and 9 pm on any day.

by night means during the period between 9 pm on any day and 6 am on the following day.

46   Expiry of warrant

A search warrant ceases to have effect:
(a)  one month after its issue, or
(b)  if it is withdrawn by the person who issued the warrant, or
(c)  when it is executed,
whichever first occurs.

47   Seizure pursuant to warrant—special provisions

(1)  If, in the course of searching, in accordance with the terms of a search warrant, for documents or other things:
(a)  the person executing the warrant finds a document or other thing that the person believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth, a State or a Territory, and
(b)  the first-mentioned person believes on reasonable grounds that it is necessary to seize the document or other thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence,
that person may seize the document or other thing and, if it is so seized, it shall be taken, for the purposes of this Act, to have been seized pursuant to the warrant.
(2)  If a document or other thing is seized pursuant to a search warrant:
(a)  the Commission may retain the document or other thing if, and for so long as, its retention by the Commission is reasonably necessary for the purposes of an investigation to which it is relevant, and
(b)  if the retention of the document or other thing by the Commission is not, or ceases to be, reasonably necessary for such purposes, the Commission shall cause it to be delivered to:
(i)  the person who appears to the Commission to be entitled to possession of the document or other thing, or
(ii)  the Attorney General or the Director of Public Prosecutions, with a recommendation as to what action should be taken in relation to the document or other thing.

48   Search warrants

(1)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (other than sections 69–73A) applies to a search warrant issued under this Act.
(2)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 so applies as if references in that Division to an authorised officer to whom an application for a search warrant is made or by whom a search warrant is issued included (where relevant) references to the Commissioner, where such an application is made to the Commissioner or a search warrant is issued by the Commissioner.

Division 4A Disposal of property

48A   Application to property

This Division applies to property:

(a)  that is lawfully in the custody of the Commission in connection with an investigation, and
(b)  is not required for the purposes of an investigation or a criminal prosecution or disciplinary or other proceeding.

48B   Disposal of property on application to court

(1)  The Commission may apply to a court for an order under this Division in relation to property to which this Division applies if it appears to the Commission that no person is lawfully entitled to the property.
(2)  A court to which such an application is made may order that the property be dealt with as the court thinks fit.
(3)  Without limiting subsection (2), in determining an application a court may:
(a)  order that the property be forfeited to the Crown, and
(b)  make any necessary incidental or ancillary orders.
(4)  Property ordered to be forfeited to the Crown:
(a)  if money, is to be paid to the Treasurer for payment into the Consolidated Fund, or
(b)  in any other case, may be sold by or on behalf of the Commissioner at public auction and the proceeds of sale paid to the Treasurer for payment into the Consolidated Fund.
(5)  If the property is not money or is not fit or suitable for sale, or fails to sell at public auction, it is to be disposed of in accordance with the directions of the Commissioner.

48C   Application to Treasurer for recovery of money or proceeds of sale

A person who is lawfully entitled to any property that has been dealt with in accordance with this Division may recover from the Treasurer the money or proceeds of sale held by the Treasurer. This Act authorises the Treasurer to pay the amount out of the Consolidated Fund (which is appropriated to the necessary extent).

48D   Courts having jurisdiction under this Division

The court to which an application under this Division may be made is:

(a)  the Local Court, if the estimated value of the property (or the amount of the money) does not exceed $40,000, or
(b)  the District Court, if the estimated value of the property (or the amount of the money) exceeds $40,000 but does not exceed $250,000, or
(c)  the Supreme Court, if the estimated value of the property (or the amount of the money) exceeds $250,000.

Division 5 Miscellaneous

49   Indemnities and undertakings

(1)  The Commission may recommend to the Attorney General that a person be granted (under section 32 of the Criminal Procedure Act 1986) an indemnity from prosecution.
(2)  The Commission may recommend to the Attorney General that a person be given (under section 33 of the Criminal Procedure Act 1986) an undertaking that:
(a)  an answer, statement or disclosure in proceedings before the Commission, or
(b)  the fact of a disclosure or production of a document in proceedings before the Commission,
will not be used in evidence against the person.
(3)  Section 33 of the Criminal Procedure Act 1986 applies in relation to proceedings before the Commission in the same way as it applies in relation to proceedings for an offence.
(4)  A reference in this section to proceedings before the Commission includes a reference to a compulsory examination or public inquiry conducted by the Commission or any other investigative activity involving the Commission or an officer of the Commission.

50   Protection of witnesses and persons assisting Commission

(1)  If it appears to the Commissioner that, because a person is assisting the Commission, the safety of the person or any other person may be prejudiced or the person or any other person may be subject to intimidation or harassment, the Commissioner may make such arrangements as are necessary:
(a)  to protect the safety of any such person, or
(b)  to protect any such person from intimidation or harassment.
(2)  In this section, a reference to a person who is assisting the Commission is a reference to a person who:
(a)  has appeared, is appearing or is to appear before the Commission to give evidence or to produce a document or other thing, or
(b)  has produced or proposes to produce a document or other thing to the Commission under this Act, or
(c)  has assisted, is assisting or is to assist the Commission in some other manner.
(3)  Any such arrangements may (but need not) involve the Commissioner directing the Commissioner of Police or a prescribed public authority or prescribed public official:
(a)  to provide any protection referred to in subsection (1), or
(b)  to provide personnel or facilities or both to assist in providing that protection, or
(c)  to otherwise assist in the provision of that protection.
(4)  The Commissioner of Police, or such a public authority or public official, is under a duty to comply with any such direction as far as reasonably possible.
(5)  Any such arrangements may (but need not) involve the Commissioner making orders applying to a specified person for the purpose of protecting the safety of a person referred to in subsection (1) or of protecting such a person from intimidation or harassment. Such an order is not limited to directions of a kind referred to in subsection (3).
(6)  A person who contravenes an order applying to the person under subsection (5) without reasonable excuse is guilty of an indictable offence.

Maximum penalty: 200 penalty units or imprisonment for 5 years, or both.

(7)  Nothing in this section affects the Witness Protection Act 1995.

51   Reimbursement of expenses of witnesses

A witness appearing before the Commission shall be paid, out of money provided by Parliament, in respect of the expenses of the witness’s attendance an amount ascertained in accordance with the prescribed scale or, if there is no prescribed scale, such amount as the Commission determines.

52   Legal and financial assistance for witness

(1)  A witness who is appearing or about to appear before the Commission may apply to the Attorney General for legal or financial assistance.
(2)  The Attorney General may approve the provision of legal or financial assistance to the applicant if of the opinion that this is appropriate, having regard to any one or more of the following:
(a)  the prospect of hardship to the witness if assistance is declined,
(b)  the significance of the evidence that the witness is giving or appears likely to give,
(c)  any other matter relating to the public interest.
(3)  On giving the approval, the Attorney General may authorise the provision to the witness of legal or financial assistance determined by the Attorney General in respect of the witness’s appearance before the Commission. The assistance is to be provided out of money provided by Parliament for the purpose.
(4)  The assistance may be provided unconditionally or subject to conditions determined by the Attorney General.
(5)  The Attorney General may delegate one or more of his or her functions under this section to the Director-General of the Attorney General’s Department.
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