Independent Commission Against Corruption Act 2012

This

Act may be cited as the Independent

Commission Against Corruption Act 2012.

The primary objects of this Act are—

to establish the Independent Commission Against Corruption with functions designed to further—

the identification and investigation of corruption in public administration; and

the prevention or minimisation of corruption in public administration, including through referral of potential issues, education and evaluation of practices, policies and procedures; and

to establish the Office for Public Integrity to manage complaints about public administration with a view to—

the identification of corruption, misconduct and maladministration in public administration; and

ensuring that complaints about public administration are dealt with by the most appropriate person or body; and

to achieve an appropriate balance between the public interest in exposing corruption, misconduct and maladministration in public administration and the public interest in avoiding undue prejudice to a person's reputation (recognising that the balance may be weighted differently in relation to corruption in public administration as compared to misconduct or maladministration in public administration).

Whilst any potential issue of corruption, misconduct or maladministration in public administration may be the subject of a complaint or report under this Act and may be assessed and referred to a relevant body in accordance with this Act, it is intended—

that the Commission will exercise its functions only in relation to corruption in public administration; and

that matters raising potential issues of misconduct or maladministration in public administration will be referred to another inquiry agency or to a public authority.

In this Act, unless the contrary intention appears—

Australian

Parliament means—

the

Parliament of this State or any other State of the Commonwealth; or

the

Parliament of the Commonwealth; or

a

Legislative Assembly of a Territory of the Commonwealth;

Commission means the Independent Commission Against Corruption;

Commissioner means the person holding or acting in the office of the Independent

Commissioner Against Corruption;

complaint about public administration includes—

a complaint alleging corruption, misconduct or maladministration in public administration; and

any complaint about a public authority or public officer;

contract work means work performed by a person as a contractor or as an employee of a contractor or otherwise directly or indirectly on behalf of a contractor;

contravention includes failure to comply;

corruption in public administration—see section 5;

Director of OPI means the person holding or acting in the office of the Director of

OPI under Part 3;

disciplinary action includes any process for termination of employment or dismissal from office;

document includes a written record that reproduces in an understandable form information stored by computer, microfilm or other process;

examiner—see section 14;

inquiry agency means—

the

Commission;

the

Ombudsman;

the

Judicial Conduct Commissioner;

investigator—see section 14;

judicial body means a court, tribunal, body or person invested by law with judicial or quasi‑judicial powers;

Judicial

Conduct Commissioner means the person for the time being holding or acting in the office of Judicial Conduct Commissioner under the Judicial

Conduct Commissioner Act 2015;

judicial officer means a person who alone or with others constitutes a judicial body;

law enforcement agency means—

the

Australian Crime Commission; or

the

Australian Federal Police; or

the

Australian Commission for Law Enforcement Integrity; or

South

Australia Police; or

the police force of another State or a Territory of the Commonwealth; or

in relation to New South Wales—the Crime Commission, the Independent

Commission Against Corruption, the Inspector of the Independent

Commission Against Corruption, the Police Integrity Commission or the Inspector of the Police Integrity Commission; or

in relation to Queensland—the Crime and Corruption Commission; or

in relation to Tasmania—the Integrity Commission; or

in relation to Victoria—the Office of Police Integrity, the

Independent Broad‑based Anti‑corruption Commission or the Independent Broad‑based Anti‑corruption Commission

Committee; or

in relation to Western Australia—the Corruption and Crime Commission or the Parliamentary Inspector of the Corruption and Crime

Commission; or

a

Royal Commission of the Commonwealth, the State or another State or a Territory of the Commonwealth; or

a person or body declared by regulation to be a law enforcement agency;

local government body means a council or a subsidiary of a council established under the

Local

Government Act 1999;

maladministration in public administration—see section 5;

Minister responsible for a public authority—see

Schedule 1;

Minister responsible for an inquiry agency means the Minister responsible for administration of the Act under which the agency is constituted or, if some other Minister is declared by regulation to be responsible for the agency, that

Minister;

misconduct in public administration—see section 5;

Office means the Office for Public Integrity;

personal details of a person means—

the person's full name; and

the person's date of birth; and

the address of where the person is living; and

the address of where the person usually lives; and

the person's business address;

prescribed offence means corruption in public administration or an offence against this

Act;

public administration—without limiting the acts that may comprise public administration, an administrative act within the meaning of the Ombudsman

Act 1972 will be taken to be carried out in the course of public administration;

public authority—see

Schedule 1;

public officer—see

Schedule 1;

public sector agency has the same meaning as in the Public

Sector Act 2009;

public sector employee has the same meaning as in the Public

Sector Act 2009;

publish means publish by—

newspaper, radio or television; or

internet or other electronic means of creating and sharing content with the public or participating in social networking with the public; or

any similar means of communication to the public;

seconded—a police officer or special constable is seconded to assist the

Commissioner for the purposes of this Act if the police officer or special constable is employed in accordance with an arrangement whereby the police officer or special constable is granted leave without pay in relation to his or her appointment under the Police

Act 1998 for the purpose of being engaged as an employee under section 12 of this Act;

statement of information—see section 28;

vehicle means a vehicle, vessel or aircraft and includes a caravan, trailer and anything attached to a vehicle.

Corruption in public administration means conduct that constitutes—

an offence against Part 7 Division 4 (Offences relating to public officers) of the Criminal

Law Consolidation Act 1935, which includes the following offences:

bribery or corruption of public officers;

threats or reprisals against public officers;

abuse of public office;

demanding or requiring benefit on basis of public office;

offences relating to appointment to public office; or

an offence against the Public

Sector (Honesty and Accountability) Act 1995 or the Public

Corporations Act 1993, or an attempt to commit such an offence; or

an offence against the Lobbyists

Act 2015, or an attempt to commit such an offence; or

any of the following in relation to an offence referred to in a preceding paragraph:

aiding, abetting, counselling or procuring the commission of the offence;

inducing, whether by threats or promises or otherwise, the commission of the offence;

being in any way, directly or indirectly, knowingly concerned in, or party to, the commission of the offence;

conspiring with others to effect the commission of the offence.

In this Act—

maladministration in public administration has the same meaning as in the Ombudsman

Act 1972;

and

misconduct in public administration has the same meaning as in the Ombudsman

Act 1972.

Nothing in this Act affects the privileges, immunities or powers of the

Legislative Council or House of Assembly or their committees or members and powers under this Act may not be exercised in relation to any matter to which parliamentary privilege applies.

Note—

Examples of material that falls within this section include statements made or documents or material tabled or received in the course of the proceedings of the Parliament or a committee of the Parliament.

There is to be an Independent Commission Against Corruption with the following functions:

to identify corruption in public administration and to—

investigate and refer it to a law enforcement agency for any further investigation and prosecution; or

refer it to a law enforcement agency for investigation and prosecution;

to evaluate the practices, policies and procedures of inquiry agencies and public authorities with a view to advancing comprehensive and effective systems for preventing or minimising corruption in public administration;

to conduct or facilitate the conduct of educational programs designed to prevent or minimise corruption in public administration;

if, in the course of performing functions in relation to potential corruption in public administration, any suspected misconduct or maladministration or any offences (not being offences that constitute the potential corruption in public administration) are identified—to report the matter to the Office or the Ombudsman for assessment or refer the matter to a law enforcement agency, the

Ombudsman or a public authority or public officer, as the Commission considers appropriate.

The

Commission is not subject to the direction of any person in relation to any matter, including—

the manner in which functions are carried out or powers exercised under this or any other Act; and

the priority that the Commission gives to a particular matter in carrying out functions under this or any other Act.

The

Commission is to perform its functions in a manner that—

is as open and accountable as is practicable, while recognising, in particular, that examinations relating to corruption in public administration must be conducted in private; and

deals as expeditiously as is practicable with allegations of corruption in public administration; and

as far as is practicable, deals with any allegation against a Member of

Parliament or member of a council established under the Local

Government Act 1999 before the expiry of his or her current term of office.

For the purposes of exercising its functions under subsection (1)(b) or (c), the

Commission—

may conduct a public inquiry; and

may regulate the conduct of the inquiry as the Commission thinks fit, (and, for the avoidance of doubt, the inquiry will not be a proceeding for the purposes of section 55).

The

Commission—

is a body corporate; and

has perpetual succession and a common seal; and

is capable of suing and being sued in its corporate name.

The

Commissioner will be the principal officer of the Commission and is to be appointed by the Governor for a term not exceeding 7 years and on conditions determined by the Governor.

The

Commissioner is entitled to salary and allowances at the rates applicable to a Puisne Judge of the General Division of the Supreme

Court.

A person appointed to be the Commissioner is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as Deputy Commissioner or Acting

Commissioner) that exceed 10 years in total.

A person is only eligible for appointment as the Commissioner if the person—

is a legal practitioner of at least 7 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State) or a former judge of the High

Court of Australia, the Federal Court of Australia or the Supreme

Court or any other court of a State or Territory of the

Commonwealth; and

is not a judicial officer or member of an Australian Parliament.

Before a person is appointed to be the Commissioner, the Attorney‑General must ensure that the position is advertised in a newspaper or newspapers circulating in each State and Territory.

A person may only be appointed to be the Commissioner if, following referral by the Attorney‑General of the proposed appointment to the Statutory Officers Committee established under the

Parliamentary

Committees Act 1991—

the appointment has been approved by the Committee; or

the

Committee has not, within 7 days of the referral, or such longer period as is allowed by the Attorney‑General, notified the Attorney‑General in writing that it does not approve the appointment.

Despite the Parliamentary

Committees Act 1991, the Statutory Officers Committee must not report on, or publish material in relation to, matters referred to the Committee under subsection (5) except to the extent allowed by the Attorney‑General (but this subsection does not derogate from section 15I(2) of the

Parliamentary

Committees Act 1991).

If a person is a judicial officer immediately before being appointed to be the Commissioner—

the conditions of the appointment should not be less favourable to the person than the conditions of his or her judicial office (when viewed from an overall perspective); and

for the purposes of determining the person's entitlement to recreation leave, sick leave, long service leave or any other kind of leave under this or another Act, the appointment may, at the option of the person, be taken to be a continuation of his or her service as a judicial officer.

The

Commissioner must not, without the consent of the Attorney‑General, engage in any remunerated employment or undertaking outside official duties.

The

Governor may, on the address of both Houses of Parliament, remove the Commissioner from office.

The

Governor may suspend the Commissioner from office for—

contravention of a condition of appointment; or

misconduct;

or

failure or incapacity to carry out official duties satisfactorily; or

failure to provide information to the Attorney‑General as required under section 49.

If the Governor suspends the Commissioner from office, a full statement of the reason for the suspension must be laid before both Houses of

Parliament within 7 days after the suspension if Parliament is then in session or, if not, within 7 days after the commencement of the next session of Parliament.

If, at the end of 20 sitting days after the statement is laid before Parliament, neither House of Parliament has presented an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is removed from office.

If within 20 sitting days after the statement is laid before

Parliament either House of Parliament presents an address to the

Governor requiring the Commissioner to be restored to office, the

Commissioner is restored to office.

The office of Commissioner becomes vacant if the holder—

dies;

or

completes a term of office and is not reappointed; or

resigns by written notice to the Governor; or

is appointed to judicial office; or

is nominated for election as a member of an Australian Parliament; or

becomes an insolvent under administration within the meaning of the

Corporations

Act 2001 of the Commonwealth; or

is convicted of—

an indictable offence against the law of this State; or

an offence against the law of this State that is punishable by imprisonment for a term of at least 12 months; or

an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or

is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or

is removed from office by the Governor under this section.

Except as is provided by this section, the Commissioner may not be removed or suspended from office, nor will the office of the Commissioner become vacant.

The

Commissioner is a senior official for the purposes of the Public

Sector (Honesty and Accountability) Act 1995.

There is to be a Deputy Commissioner responsible for assisting the

Commissioner as directed by the Commissioner.

The

Deputy Commissioner is to be appointed by the Governor for a term not exceeding 7 years and on conditions determined by the

Governor.

A person appointed to be the Deputy Commissioner is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as Commissioner or Acting

Commissioner) that exceed 10 years in total.

A person is only eligible for appointment as the Deputy Commissioner if the person—

is a legal practitioner of at least 7 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State) or a former judge of the High

Court of Australia, the Federal Court of Australia or the Supreme

Court or any other court of a State or Territory of the

Commonwealth; and

is not a judicial officer or member of an Australian Parliament.

The

Deputy Commissioner must not, without the consent of the

Attorney‑General, engage in any remunerated employment or undertaking outside official duties.

The

Deputy Commissioner may—

act as the Commissioner during any period for which—

no person is for the time being appointed as the Commissioner; or

the

Commissioner is absent from, or unable to discharge, official duties; and

when not so acting, perform functions or exercise powers at the direction of the Commissioner.

The

Governor may remove the Deputy Commissioner from office for—

contravention of a condition of appointment; or

misconduct;

or

failure or incapacity to carry out official duties satisfactorily.

The office of Deputy Commissioner becomes vacant if the holder—

dies;

or

completes a term of office and is not reappointed; or

resigns by written notice to the Governor; or

is appointed to judicial office; or

is nominated for election as a member of an Australian Parliament; or

becomes an insolvent under administration within the meaning of the

Corporations

Act 2001 of the Commonwealth; or

is convicted of—

an indictable offence against the law of this State; or

an offence against the law of this State that is punishable by imprisonment for a term of at least 12 months; or

an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or

is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or

is removed from office by the Governor under subsection (7).

Except as is provided by this section, the Deputy Commissioner may not be removed from office, nor will the office of the Deputy Commissioner become vacant.

The

Deputy Commissioner is a senior official for the purposes of the

Public

Sector (Honesty and Accountability) Act 1995.

Subject to this section, the Judges'

Pensions Act 1971 applies to and in relation to the Commissioner as if—

the

Commissioner were a Judge as defined in that Act; and

their service as Commissioner were judicial service as defined in that

Act.

Application of the Judges'

Pensions Act 1971 to the Commissioner under subsection (1) operates subject to the following:

a person who has completed 5 years of service as Commissioner, whether occurring before or after the commencement of this section, is entitled to a pension under that Act;

a person who has completed less than 5 years service as

Commissioner is not entitled to a pension by virtue of this section (but this provision does not affect the operation of section 7 of the Judges'

Pensions Act 1971 insofar as that section applies to the Commissioner);

the pension will be paid at a rate, not exceeding 60% of salary, equal to the sum of—

50% of salary; and

1% of salary for each complete 6 months of service as Commissioner following the first 5 years of service, and will become payable—

if the person ceases to be the Commissioner before reaching the age of 60—when the person—

reaches the age of 60; or

satisfies the Minister that because of invalidity their incapacity for all kinds of work is 60% or more of total incapacity and is likely to be permanent; or

if the person ceases to be the Commissioner on or after reaching the age of 60—immediately;

any modifications to the Act—

specified by the Governor by instrument in writing; or

necessary or convenient to give effect to this section.

Unless the Governor otherwise directs, no pension is to be payable under the Judges'

Pensions Act 1971 if the Commissioner is removed from office under section 8(9).

Any period during which a person has been suspended from office under section 8(10) is not to count as service as Commissioner for the purposes of subsection (2).

The

Governor may, by instrument in writing made at any time, declare that a form of service that is, or is deemed under a law of the

State to be, judicial service for the purposes of the Judges'

Pensions Act 1971, is to be counted as service as Commissioner for the purposes of subsection (2).

A pension or benefit payable to a person who was Commissioner, or to the surviving spouse, domestic partner or child of any such person, by virtue of subsection (1) is to be taken to be a pension or benefit payable under the Judges'

Pensions Act 1971.

If the Judges'

Pensions Act 1971 has applied, by virtue of this section, to a person who is or has been Commissioner and that person is subsequently appointed as a

Judge as defined in the Judges'

Pensions Act 1971, that Act will apply to and in relation to that person as if—

service by that person as the Commissioner were judicial service as defined in that Act; and

section

5 of that Act had not been enacted.

If a person referred to in subsection (7) was, immediately before being appointed as a Judge, in receipt of a pension under the Judges'

Pensions Act 1971, that pension ceases on the appointment as a Judge.

If the Judges'

Pensions Act 1971 is to apply to a person appointed as the Commissioner by virtue of this section and the person was, immediately before being appointed as the Commissioner, in receipt of a pension under that Act, that pension ceases on the appointment as Commissioner for the term of the appointment.

If—

a person is entitled to a pension under the Judges'

Pensions Act 1971 by virtue of this section and also by virtue of another law of the

State; and

the amount of the pension payable by virtue of this section differs from the amount of pension payable by virtue of the other law, the person will be entitled to whichever pension is the greater.

In this section—

Consumer

Price Index means the Consumer Price Index (All groups index for Adelaide);

salary, in relation to a person entitled to a pension under the Judges'

Pensions Act 1971 by virtue of this section—

has the meaning prescribed by the regulations; or

if no regulation has been made for the purposes of paragraph (a)—means the salary payable to the person immediately before they ceased to be Commissioner, adjusted to reflect changes in the Consumer Price

Index between the day on which the person ceased to be Commissioner and the day on which a pension becomes payable to the person under this section;

service as Commissioner includes the aggregate of any periods of service as Acting

Commissioner and a reference to service by a person as the

Commissioner is to be construed accordingly.

The

Governor may, by instrument in writing made at the time a person is appointed to be the Deputy Commissioner, apply the Judges'

Pensions Act 1971 to or in relation to the Deputy Commissioner as if the Deputy

Commissioner were a Judge as defined in that Act and service as the

Deputy Commissioner were judicial service as defined in that Act.

The instrument may—

impose conditions on the application of the Judges'

Pensions Act 1971 (including a condition that the Act will only apply if the person is made a Judge following his or her term of office as Deputy

Commissioner); and

apply the Judges'

Pensions Act 1971 subject to any modifications specified in the instrument.

Unless the Governor otherwise directs, no pension is to be payable under the Judges'

Pensions Act 1971 if the Deputy Commissioner vacates the office due to insolvency or conviction or sentencing for an offence or is removed from office.

If a person who is or has been the Deputy Commissioner is appointed as a Judge as defined in the Judges'

Pensions Act 1971 and was, immediately before being so appointed, in receipt of a pension under that Act, that pension ceases on the appointment.

The

Governor may appoint a person (who may be a Public Service employee) to act as the Commissioner during any period for which—

no person is for the time being appointed as the Commissioner or the

Commissioner is absent from, or unable to discharge, official duties; and

no person is for the time being appointed as the Deputy or the Deputy is absent from, or unable to discharge, official duties.

The terms and conditions of appointment are to be determined by the

Governor, except that the person may not act as the Commissioner for more than 6 months in aggregate in any period of 12 months.

A person appointed to act as the Commissioner is a senior official for the purposes of the Public

Sector (Honesty and Accountability) Act 1995.

The

Commission may engage employees on terms and conditions determined by the Commissioner.

The employees are not Public Service employees but are to be taken to be public sector employees, employed by the Commission, for the purposes of the Public

Sector (Honesty and Accountability) Act 1995 and section 74 of the Public

Sector Act 2009.