Commonwealth Consolidated Acts Commonwealth Consolidated Acts
Law Enforcement Integrity Commissioner Act 2006
1 Subsection 5(1)
Insert:
"constable" means:
(a) a member or special member of the AFP; or
(b) a member of the police force or police service of a State or Territory .
2 Subsection 5(1)
Insert:
"Federal Court" means the Federal Court of Australia.
3 Subsection 5(1)
Insert:
"in contempt of ACLEI" has the meaning given by section 96A.
4 Subsection 20(1) (note)
Omit "referred", substitute "notified".
5 Section 21 (heading)
Repeal the heading, substitute:
6 Part 8 (heading)
Repeal the heading, substitute:
Part 8 -- Public inquiries by Integrity Commissioner
7 Subdivision A of Division 1 of Part 9 (heading)
Repeal the heading, substitute:
Subdivision A -- Notices to give information or to produce documents or things
8 Sections 75 and 76
Repeal the sections, substitute:
75 Notice to give information or to produce document or thing
Giving notice
(1) For the purpose of investigating a corruption issue, the Integrity Commissioner may, by notice in writing, require a person to do either or both of the following:
(a) give the information specified in the notice;
(b) produce the documents or things specified in the notice;
if the Integrity Commissioner has reasonable grounds to suspect that the information, documents or things will be relevant to the investigation.
Note: In certain cases, disclosing the existence of a notice, or any information about it, is an offence: see section 77B.
(2) The Integrity Commissioner may require that information specified under paragraph ( 1)(a) is to be given in writing.
(3) The notice must:
(a) be served on the person; and
(b) be signed by the Integrity Commissioner; and
(c) specify the period within which, and the manner in which, the person must comply with the notice.
(4) The period specified under paragraph ( 3)(c) must be at least 14 days after the day the notice is served on the person, unless the Integrity Commissioner considers that allowing a 14 - day period would significantly prejudice a corruption investigation, in which case a shorter period may be specified.
(5) If a shorter period is specified under paragraph ( 3)(c), the Integrity Commissioner must record, in writing:
(a) the name of the corruption investigation that would be prejudiced; and
(b) why a 14 - day period would significantly prejudice the investigation.
(6) The Integrity Commissioner may serve a notice on a person without holding a hearing.
Compliance with notice
(1) A person served with a notice under section 75 must comply with the notice:
(a) within the period specified in the notice; or
(b) within such further time as the Integrity Commissioner allows under subsection ( 3).
Note 1: Failure to comply with a notice is an offence: see section 78.
Note 2: See also subsection 150(2) in relation to section 149 certified information.
Extension of time
(2) A person served with a notice under section 75 may apply to the Integrity Commissioner, in writing, for further time to comply with the notice:
(a) before the period expires; or
(b) as soon as possible after the period expires.
(3) The Integrity Commissioner may allow a person served with a notice further time to comply with the notice whether or not an application has been made.
Acknowledgement
(4) If a person served with a notice has given the information and/or produced the documents or things specified in the notice, the Integrity Commissioner must give the person a written acknowledgement of that fact.
9 Subsection 77(1)
Omit "to the Integrity Commissioner in accordance with a request under section 75 or 76", substitute "in accordance with a notice under section 75".
10 After Subdivision A of Division 1 of Part 9
Insert:
Subdivision AA -- Prohibitions against disclosing information about notices
77A Disclosure of notice may be prohibited
Application
(1) This section applies in respect of a notice served on a person under section 75.
Notation prohibiting disclosure of information about notice
(2) The Integrity Commissioner may include a notation in the notice to the effect that disclosure of information about:
(a) the notice; or
(b) any official matter connected with the notice;
is prohibited except in the circumstances (if any) specified in the notation.
(3) The Integrity Commissioner must include a notation in the notice if the Integrity Commissioner is satisfied that failure to do so would reasonably be expected to prejudice:
(a) a person's safety or reputation; or
(b) the fair trial of a person who has been, or may be, charged with an offence; or
(c) the investigation to which the notice relates or another corruption investigation; or
(d) any action taken as a result of an investigation referred to in paragraph ( c).
(4) The Integrity Commissioner may include a notation in the notice if the Integrity Commissioner is satisfied that:
(a) failure to do so might prejudice:
(i) a person's safety or reputation; or
(ii) the fair trial of a person who has been, or may be, charged with an offence; or
(iii) the investigation to which the notice relates or another corruption investigation; or
(iv) any action taken as a result of an investigation referred to in subparagraph ( iii); or
(b) failure to do so might otherwise be contrary to the public interest.
(5) The Integrity Commissioner must not include a notation in the notice in any other case.
Written statement to accompany notation
(6) If a notation is included in the notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 77B on the person on whom the notice is served.
Cancellation of notation
(7) A notation included in the notice is cancelled by this subsection if:
(a) the Integrity Commissioner concludes the investigation to which the notice relates; and
(b) any criminal proceedings or civil penalty proceedings resulting from the investigation are commenced.
(8) If a notation is cancelled by subsection ( 7), the Integrity Commissioner must advise the person who was served with the notated notice, in writing, of the cancellation.
Relationship of notation with the Privacy Act 1988
(9) If:
(a) a notation has been included in the notice in relation to the disclosure of information about the notice or any official matter connected with the notice; and
(b) the notation has not been cancelled; and
(c) apart from this subsection, a credit reporting agency (within the meaning of section 11A of the Privacy Act 1988 ) would be required, under subsection 18K(5) of that Act, to make a note about the disclosure of the information;
such a note must not be made until the notation is cancelled.
(1) A person commits an offence if:
(a) the person is served with a notice under section 75; and
(b) the notice includes a notation under section 77A; and
(c) the person discloses the existence of, or any information about:
(i) the notice; or
(ii) any official matter connected with the notice; and
(d) when the disclosure is made:
(i) the notation has not been cancelled by subsection 77A(7); and
(ii) the period of 5 years after the notice is served under section 75 has not ended.
Penalty: Imprisonment for 12 months.
(2) In proceedings for an offence against subsection ( 1), it is a defence if the person makes the disclosure:
(a) in the circumstances, if any, permitted by the terms of the notation; or
(b) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the notice; or
(c) to a legal aid officer for the purpose of seeking assistance under section 221 in relation to the notice; or
(d) if the person is a body corporate--to an officer or agent of the body corporate for the purpose of ensuring compliance with the notice; or
(e) if the person is a legal practitioner--for the purpose of obtaining the agreement of another person under subsection 79(3) to the legal practitioner answering a question or producing a document or thing.
Note: A defendant bears an evidential burden in relation to the matters in subsection ( 2): see subsection 13.3(3) of the Criminal Code .
(3) A person commits an offence if:
(a) a disclosure is made to a person about:
(i) a notice under section 75 that includes a notation under section 77A; or
(ii) any official matter connected with a notice under section 75 that includes a notation under section 77A; and
(b) the disclosure is permitted under subsection ( 2) or (4) because the person is a person of a particular kind; and
(c) while the person is a person of that kind, the person discloses the existence of, or any information about:
(i) the notice; or
(ii) any official matter connected with the notice; and
(d) when the disclosure by the person is made:
(i) the notation has not been cancelled by subsection 77A(7); and
(ii) the period of 5 years after the notice is served under section 75 has not ended.
Penalty: Imprisonment for 12 months.
(4) In proceedings for an offence against subsection ( 3), it is a defence if the person discloses the information:
(a) if the person is an officer or agent of a body corporate referred to in paragraph ( 2)(d):
(i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the notice; or
(ii) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the notice; or
(iii) to a legal aid officer for the purpose of seeking assistance under section 221 in relation to the notice; or
(b) if the person is a legal practitioner--for the purpose of giving legal advice, making representations, or seeking assistance under section 221, in relation to the notice; or
(c) if the person is a legal aid officer--for the purpose of obtaining legal advice or representation in relation to the notice.
Note: A defendant bears an evidential burden in relation to the matters in subsection ( 4): see subsection 13.3(3) of the Criminal Code .
(5) A person commits an offence if:
(a) a disclosure is made to a person about:
(i) a notice under section 75 that includes a notation under section 77A; or
(ii) any official matter connected with a notice under section 75 that includes a notation under section 77A; and
(b) the disclosure is permitted under subsection ( 2) or (4) because the person is a person of a particular kind; and
(c) when the person is no longer a person of that kind, the person:
(i) makes a record of the notice; or
(ii) discloses the existence of the notice; or
(iii) discloses any information about the notice or the existence of it; and
(d) when the record, or disclosure, is made by the person:
(i) the notation has not been cancelled by subsection 77A(7); and
(ii) the period of 5 years after the notice is served under section 75 has not ended.
Penalty: Imprisonment for 12 months.
(6) A reference in this section to disclosing something's existence includes disclosing information from which a person could reasonably be expected to infer its existence.
11 Section 78
Repeal the section, substitute:
78 Failure to comply with notice
(1) A person commits an offence if:
(a) the person is served with a notice under section 75; and
(b) the person fails to comply with the notice:
(i) within the period specified in the notice; or
(ii) if the Integrity Commissioner has allowed the person further time under subsection 76(3)--within such further time.
Penalty: Imprisonment for 2 years.
Note 1: If a notice requires a document or thing to be produced, a legal practitioner may refuse to produce the document or thing in certain circumstances: see section 79.
Note 2: This section is not subject to the privilege against self - incrimination but there are limits on the uses to which the evidence the person gives may be put: see section 80.
(2) In proceedings for an offence against subsection ( 1), it is a defence if it is not reasonably practicable for the person to comply with the notice:
(a) within the period specified in the notice; or
(b) within such further time as allowed by the Integrity Commissioner under subsection 76(3).
Note: A defendant bears an evidential burden in relation to the matter in subsection ( 2): see subsection 13.3(3) of the Criminal Code .
12 Paragraphs 79(1)(a) and (b)
Omit "to the Integrity Commissioner".
13 Subsection 79(1)
Omit "requested to do so under section 76", substitute "served with a notice to do so under section 75".
14 Subsection 79(5)
Repeal the subsection, substitute:
(5) If a legal practitioner gets agreement, as mentioned in subsection ( 3):
(a) the fact that he or she:
(i) gives information; or
(ii) produces a document or thing;
does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or thing; and
(b) the information or document does not cease to be the subject of legal professional privilege merely because it is given, produced or referred to.
15 Subsection 80(1)
Omit "requested to do so under section 75 or 76", substitute "served with a notice to do so under section 75".
16 Subsection 80(2)
Repeal the subsection.
17 Subsection 80(5)
Omit "requested to do so under section 75 or 76", substitute "served with a notice to do so under section 75".
18 Subsection 80(7)
Omit "or 76".
19 Subsections 81(1) and (2)
Omit "to the Integrity Commissioner in response to a request under section 75 or 76", substitute "in response to a notice served on the person under section 75".
20 Subsection 82(3)
Omit "corruption issue", substitute "a corruption issue".
21 Subsection 83(1)
After "the summons" (first occurring), insert "to do either or both of the following".
22 Paragraph 83(1)(a)
Omit "or".
23 Paragraph 83(1)(b)
Repeal the paragraph, substitute:
(b) to produce documents or things specified in the summons;
if the Integrity Commissioner has reasonable grounds to suspect that the evidence, documents or things will be relevant to the investigation of a corruption issue or the conduct of a public inquiry.
24 Subsection 90(2)
Omit "give a such a direction", substitute "give such a direction".
25 Paragraph 92(2)(e)
Omit "95(2)", substitute "95(3)".
26 Subsection 95(5)
Repeal the subsection, substitute:
(5) If a legal practitioner gets agreement, as mentioned in subsection ( 3):
(a) the fact that he or she:
(i) answers the question; or
(ii) produces a document or thing;
does not otherwise affect a claim of legal professional privilege that anyone may make in relation to the answer, document or thing; and
(b) the answer or document does not cease to be the subject of legal professional privilege merely because it is given, produced or referred to.
27 Subsection 96(2)
Repeal the subsection.
28 Paragraph 96(4)(c)
After "section", insert "77B, 92 or".
29 After Subdivision E of Division 2 of Part 9
Insert:
Subdivision EA -- Contempt of ACLEI
(1) A person is in contempt of ACLEI if he or she:
(a) when served with a summons to attend a hearing:
(i) fails to attend as required by the summons; or
(ii) fails to appear and report from day to day unless excused or released from further attendance by the Integrity Commissioner; or
(iii) refuses or fails to be sworn or make an affirmation at the hearing; or
(iv) subject to subsection ( 2), refuses or fails to answer a question at the hearing that the Integrity Commissioner requires the person to answer; or
(v) subject to subsection ( 3), refuses or fails to produce a document or thing that the person was required to produce by a summons or notice under this Act that was served on him or her as prescribed; or
(b) is a legal practitioner who is required to answer a question or produce a document or thing at a hearing and both of the following apply:
(i) the answer to the question would disclose, or the document or thing contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;
(ii) he or she refuses to comply with the requirement and does not, when required by the Integrity Commissioner, give the Integrity Commissioner the name and address of the person to whom or by whom the communication was made; or
(c) gives evidence at a hearing that he or she knows is false or misleading in a material particular; or
(d) insults, disturbs or uses insulting language towards someone who the person knows:
(i) is the Integrity Commissioner; and
(ii) is holding a hearing in the performance of his or her functions, or the exercise of his or her powers, as Integrity Commissioner; or
(e) creates a disturbance, or takes part in creating or continuing a disturbance, in or near a place that the person knows is being used to hold a hearing for the purpose of:
(i) investigating a corruption issue; or
(ii) conducting a public inquiry; or
(f) obstructs or hinders the Integrity Commissioner in the performance of his or her functions; or
(g) interrupts a hearing that is being held for the purpose of:
(i) investigating a corruption issue; or
(ii) conducting a public inquiry; or
(h) threatens a person present at a hearing that is being held for the purpose of:
(i) investigating a corruption issue; or
(ii) conducting a public inquiry.
(2) Subparagraph ( 1)(a)(iv) does not apply in the case of a legal practitioner who refuses or fails to answer a question at a hearing on the ground that the answer to the question would disclose a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner.
(3) Subparagraph ( 1)(a)(v) does not apply in the case of a legal practitioner who refuses or fails to produce a document or thing at a hearing on the ground that the document or thing contains a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner.
96B Federal Court or Supreme Court to deal with contempt
Application
(1) If, in respect of a hearing, the Integrity Commissioner is of the opinion that a person is in contempt of ACLEI, the Integrity Commissioner may apply to either of the following courts for the person to be dealt with in relation to the contempt:
(a) the Federal Court;
(b) the Supreme Court of the State or Territory in which the hearing is held.
(2) Before making the application, the Integrity Commissioner must inform the person that the Integrity Commissioner 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) To avoid doubt, if the Integrity Commissioner makes an application under this section, the Integrity Commissioner need not give the evidence to the relevant person or authority under section 142.
How court may deal with application
(6) If, after:
(a) considering the matters specified in the certificate; and
(b) hearing or receiving any evidence or statements by or in support of ACLEI; and
(c) hearing or receiving any evidence or statements by or in support of the person;
the court to which the application was made finds that the person was in contempt of ACLEI, the court may deal with the person as if the acts or omissions involved constituted a contempt of that court.
(7) For the purposes of determining whether a person is in contempt of ACLEI under subsection ( 1), Chapter 2 of the Criminal Code applies as if:
(a) being in contempt of ACLEI were an offence; and
(b) references to a person being criminally responsible for an offence were references to a person being responsible for being in contempt of ACLEI.
96C Conduct of contempt proceedings
(1) This section applies if an application is made to the Federal Court or to the Supreme Court of a State or Territory under section 96B.
(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 court to which the application was made.
(3) In proceedings relating to the application, a certificate under subsection 96B(3) is prima facie evidence of the matters specified in the certificate.
96D Person in contempt may be detained
(1) If the Integrity Commissioner proposes to make an application under subsection 96B(1) in respect of a person, the Integrity Commissioner may, during the hearing concerned, direct a constable or an authorised officer to detain the person for the purpose of bringing the person before the relevant court for the hearing of the application.
(2) If the person is so detained:
(a) the Integrity Commissioner must apply to the court as soon as practicable under subsection 96B(1) in respect of the person; and
(b) the person must, subject to subsection ( 3) of this section, 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 surrender his or her passport; or
(b) that the person give an undertaking as to his or her living arrangements; or
(c) that the person report as required to:
(i) the AFP; or
(ii) a police force or police service of a State; or
(iii) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the States.
(5) The court may at any time vary or revoke a condition imposed under subsection ( 4).
96E Integrity Commissioner may withdraw contempt application
(1) The Integrity Commissioner may, at any time, withdraw an application under subsection 96B(1).
(2) If:
(a) the Integrity Commissioner does so; and
(b) the person to whom the application relates is in detention under section 96D;
the person must be released from detention immediately.
(1) If an act or omission by a person is an offence against this Act and is also an offence against a law of a State, the person may be prosecuted and convicted under this Act or under that law of that State in respect of the act or omission, but nothing in this Act renders a person liable to be punished twice in respect of the same act or omission.
(2) If:
(a) an application is made to the Federal Court or a Supreme Court under subsection 96B(1) in respect of an act or omission by a person; and
(b) the person is dealt with by the court under that section in respect of the act or omission;
the person is not liable to be prosecuted for an offence in respect of that act or omission.
(3) If a person is prosecuted for an offence in respect of an act or omission referred to in subsection 96A(1) without an application being made to the Federal Court or a Supreme Court under subsection 96B(1) in respect of the act or omission, an application must not be made under subsection 96B(1) in respect of the act or omission.
30 Section 93 (heading)
Repeal the heading, substitute:
93 Offences --attendance at hearings etc.
31 Section 94 (heading)
Repeal the heading, substitute:
94 Offences--disturbing or interrupting hearings
32 Subsection 99(1)
Repeal the subsection, substitute:
(1) An authorised officer may apply to a Judge of the Federal Court or of the Supreme Court of a State or Territory for a warrant to arrest a person if:
(a) both of the following apply:
(i) the person has been ordered to deliver his or her passport to the Integrity Commissioner (whether or not the person has complied with the order);
(ii) the authorised officer has reasonable grounds to believe that the person is likely to leave Australia for the purpose of avoiding giving evidence at a hearing before the Integrity Commissioner; or
(b) the person is to be served with a summons under section 83 and the authorised officer has reasonable grounds to believe that the person:
(i) has absconded or is likely to abscond; or
(ii) is otherwise attempting, or likely to attempt, to evade service of the summons; or
(c) the authorised officer has reasonable grounds to believe that the person has committed an offence under subsection 93(1) or is likely to do so.
33 Subsection 100(1)
Omit all the words after "authorising", substitute "the arrest of the person".
34 After subsection 100(9)
Insert:
(9A) To avoid doubt, the authorised officer executing the warrant need not be the authorised officer who applied for the warrant.
35 Subsection 104(4)
Omit "a hearing that been held", substitute "a hearing that has been held".
36 At the end of subparagraph 110(4)(b)(iv)
Add "or".
37 After subparagraph 110(4)(b)(iv)
Insert:
(v) in any case--any eligible seizable item;
38 Paragraph 117(2)(a)
After "authorised officer", insert "or a constable".
39 Paragraph 117(2)(b)
After "not an authorised officer", insert "or a constable".
40 Subsection 117(3)
Repeal the subsection, substitute:
(3) Only an authorised officer or a constable may take part in searching a person.
41 At the end of section 142
Add:
Note: See also subsection 96B(5).
42 Paragraph 147(1)(d)
Omit "must".
43 Paragraph 150(2)(a)
Repeal the paragraph, substitute:
(a) a person is served with a notice under Division 1 of Part 9:
(i) to give information; or
(ii) to produce a document or thing; and
44 Subsection 150(2)
Omit "request", substitute "notice".
45 Paragraph 156(5)(a)
Omit "authorises", substitute "authorise".
46 Section 166 (heading)
Repeal the heading, substitute:
47 Section 166
Omit "Part", substitute "Division".
48 Subsection 167(5)
After "proposes to take action", insert ", or takes action,".
49 Subsection 167(5)
Omit "subsection 142(3) or (4)", substitute "subsection 144(3) or (4)".
50 Paragraph 167(6)(b)
Omit "Integrity Commissioner's", substitute "special investigator's".
51 Subsection 187(2)
Omit "Integrity Commissioner", substitute "Assistant Integrity Commissioner".
52 Subsection 18K(5) (note)
Omit "section 91", substitute "sections 77A and 91".
53 Subsection 6(1) (definition of federal law enforcement officer )
After " paragraph ( a)", insert ", (aa)".
54 Application--items 7 to 19
The amendments made by items 7 to 19 of this Schedule apply in relation to a notice served on a person under the Law Enforcement Integrity Commissioner Act 2006 on or after this Schedule commences.
55 Application--section 96 of the Law Enforcement Integrity Commissioner Act 2006
Section 96 of the Law Enforcement Integrity Commissioner Act 2006 , as amended by this Schedule, applies in relation to a hearing under that Act that begins on or after this Schedule commences.
56 Application--sections 96A to 96F of the Law Enforcement Integrity Commissioner Act 2006
Sections 96A to 96F of the Law Enforcement Integrity Commissioner Act 2006 , as inserted by this Schedule, apply in relation to a hearing under that Act that begins on or after this Schedule commences.
57 Application--section 100 of the Law Enforcement Integrity Commissioner Act 2006
Section 100 of the Law Enforcement Integrity Commissioner Act 2006 , as amended by this Schedule, applies in relation to a warrant that is issued on or after this Schedule commences.
58 Application--item 3 7
The amendment made by item 3 7 of this Schedule applies in relation to a warrant issued on or after this Schedule commences.
59 Application--section 117 of the Law Enforcement Integrity Commissioner Act 2006
Section 117 of the Law Enforcement Integrity Commissioner Act 2006 , as amended by this Schedule, applies in relation to a warrant that is executed on or after this Schedule commences.