Minister: Attorney-General and Minister for Justice
Agency: Department of Justice and Attorney-General


Crime and Corruption Act 2001


Queensland Crest
Crime and Corruption Act 2001

An Act to provide for the establishment and operation of a Crime and Corruption Commission, and a Parliamentary Crime and Corruption Committee, and for other purposes

Chapter 1 Preliminary

Part 1 Introduction

1Short title

This Act may be cited as the Crime and Corruption Act 2001.

s 1 amd 2014 No. 21 s 5

2Commencement

This Act commences on a day to be fixed by proclamation.

3Act binds all persons

(1)This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.
(2)Subsection (1) does not make the State, the Commonwealth or another State liable to be prosecuted for an offence.

Part 2 Purpose

4Act’s purposes

(1)The main purposes of this Act are—
(a)to combat and reduce the incidence of major crime; and
(b)to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector.
(2)The Act also has as the purpose to facilitate the commission’s involvement in a confiscation related investigation.

s 4 amd 2002 No. 68 s 284; 2013 No. 21 s 4; 2014 No. 21 s 6; 2016 No. 19 s 3

5How Act’s purposes are to be achieved

(1)The Act’s purposes are to be achieved primarily by establishing a permanent commission to be called the Crime and Corruption Commission.
(2)The commission is to have investigative powers, not ordinarily available to the police service, that will enable the commission to effectively investigate major crime and criminal organisations and their participants.
(3)Also, the commission is to—
(a)investigate cases of corrupt conduct, particularly more serious cases of corrupt conduct; and
(b)help units of public administration to deal effectively and appropriately with corruption by increasing their capacity to do so.
(4)Further, the commission has particular powers for confiscation related investigations for supporting its role under the Confiscation Act.

s 5 amd 2002 No. 68 s 285; 2009 No. 12 s 3; 2013 No. 21 s 5; 2014 No. 21 s 7; 2016 No. 19 s 4

Part 3 Overview

6Purpose of pt 3

The purpose of this part is to briefly outline the responsibilities of relevant entities under this Act.

7Crime and Corruption Commission

The Crime and Corruption Commission has primary responsibility for the achievement of the Act’s purposes.

s 7 amd 2014 No. 21 s 94 (1) sch 1

8Crime Reference Committee

The Crime Reference Committee—
(a)has responsibility for—
(i)referring major crime to the commission for investigation; and
(ii)authorising the commission to undertake specific intelligence operations; and
(b)has a coordinating role for investigations into major crime conducted by the commission in cooperation with any other law enforcement agency.

s 8 sub 2013 No. 64 s 21

9Parliamentary Crime and Corruption Committee

The Parliamentary Crime and Corruption Committee is a standing committee of the Legislative Assembly with particular responsibility for monitoring and reviewing the commission’s performance.

s 9 amd 2014 No. 21 s 94 (1) sch 1

10Parliamentary Crime and Corruption Commissioner

The Parliamentary Crime and Corruption Commissioner is an officer of the Parliament who helps the Parliamentary Crime and Corruption Committee in the performance of its functions.

s 10 amd 2014 No. 21 s 94 (1) sch 1

11Public Interest Monitor

The Public Interest Monitor has a right of appearance before a court hearing an application by the commission for a surveillance warrant or covert search warrant and is entitled to test the appropriateness and validity of the application before the court.

Part 4 Interpretation

Division 1 Definitions

12Definitions

The dictionary in schedule 2 defines particular words used in this Act.

Division 2 Corrupt conduct

ch 1 pt 4 div 2 hdg sub 2014 No. 21 s 9

13Purpose of div 2

This division provides for the meaning of corrupt conduct for this Act.

Note—

Under section 35(3), the commission, in performing its corruption function under section 33(1)(b), must focus on more serious cases of corrupt conduct and cases of systemic corrupt conduct within a unit of public administration.

s 13 sub 2014 No. 21 ss 8–9

amd 2016 No. 19 s 5; 2018 No. 29 s 4

14Definitions for div 2

In this division—
appointment means appointment in a unit of public administration.
conduct includes—
(a)neglect, failure and inaction; and
(b)conspiracy to engage in conduct; and
(c)attempt to engage in conduct.

s 14 sub 2014 No. 21 s 9

15Meaning of corrupt conduct

(1)Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that—
(a)adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of—
(i)a unit of public administration; or
(ii)a person holding an appointment; and
(b)results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that—
(i)is not honest or is not impartial; or
(ii)involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or
(iii)involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and
(c)would, if proved, be—
(i)a criminal offence; or
(ii)a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.
(2)Corrupt conduct also means conduct of a person, regardless of whether the person holds or held an appointment, that—
(a)impairs, or could impair, public confidence in public administration; and
(b)involves, or could involve, any of the following—
(i)collusive tendering;
(ii)fraud relating to an application for a licence, permit or other authority under an Act with a purpose or object of any of the following (however described)—
(A) protecting health or safety of persons;
(B)protecting the environment;
(C)protecting or managing the use of the State’s natural, cultural, mining or energy resources;
(iii)dishonestly obtaining, or helping someone to dishonestly obtain, a benefit from the payment or application of public funds or the disposition of State assets;
(iv)evading a State tax, levy or duty or otherwise fraudulently causing a loss of State revenue;
(v)fraudulently obtaining or retaining an appointment; and
(c)would, if proved, be—
(i)a criminal offence; or
(ii)a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

s 15 amd 2002 No. 68 s 283 sch 3

sub 2014 No. 21 s 9

amd 2018 No. 29 s 5

16Conduct happening over time, or at any time, may be corrupt conduct

(1)Conduct may be corrupt conduct even though—
(a)it happened before the relevant commencement; or
(b)some or all of the effects or elements necessary to constitute corrupt conduct happened before the relevant commencement; or
(c)a person involved in the conduct is no longer the holder of an appointment.
(2)Conduct engaged in by, or in relation to, a person at a time when the person is not the holder of an appointment may be corrupt conduct, if the person becomes the holder of an appointment.
(3)In this section—
relevant commencement means—
(a)generally—the commencement of this Act; and
(b)for corrupt conduct under section 15(2)—the commencement of that subsection.

s 16 amd 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 6

17Conduct outside Queensland may be corrupt conduct

Conduct may be corrupt conduct regardless of—
(a)where the conduct happens; or
(b)whether the law relevant to the conduct is a law of Queensland or of another jurisdiction.

s 17 amd 2014 No. 21 s 94 (1) sch 1

18Conspiracy or attempt to engage in conduct may be corrupt conduct

A conspiracy or an attempt to engage in conduct is not excluded from being corrupt conduct if, had the conspiracy or attempt been brought to fruition by the taking of a further step, the further step could constitute or involve—
(a)an offence; or
(b)grounds for terminating a person’s services in a unit of public administration, if the person is or were the holder of an appointment in the unit.

s 18 amd 2014 No. 21 s 94 (1) sch 1

19Corrupt conduct not affected by time limitations

Conduct does not stop being corrupt conduct only because a proceeding or an action for an offence to which the conduct is relevant can no longer be brought or continued or that action for termination of services because of the conduct can no longer be taken.

s 19 amd 2014 No. 21 s 94 (1) sch 1

Division 3 Units of public administration

20Meaning of unit of public administration

(1)Each of the following is a unit of public administration
(a)the Legislative Assembly, and the parliamentary service;
(b)the Executive Council;
(c)a department;
(d)the police service;
(da)a local government;
(e)a corporate entity established by an Act or that is of a description of a corporate entity provided for by an Act which, in either case, collects revenues or raises funds under the authority of an Act;
(f)a noncorporate entity, established or maintained under an Act, that—
(i)is funded to any extent with State moneys; or
(ii)is financially assisted by the State;
(g)a State court, of whatever jurisdiction, and its registry and other administrative offices;
(h)another entity prescribed under a regulation.
(2)However, none of the following is a unit of public administration—
(a)the commission;
(b)the parliamentary commissioner;
(c)the entity consisting of—
(i)the parliamentary commissioner; and
(ii)officers and employees of the parliamentary service assigned to the parliamentary commissioner; and
(iii)persons engaged to provide the parliamentary commissioner with services, information or advice;
(d)an entity declared by an Act not to be a unit of public administration.

s 20 amd 2008 No. 51 s 52

21Holding appointment in unit of public administration

A person holds an appointment in a unit of public administration if the person holds any office, place or position in the unit, whether the appointment is by way of election or selection.

Division 4 References to major crime and corruption

ch 1 pt 4 div 4 hdg amd 2014 No. 21 s 94 (1) sch 1

22References to major crime or corruption include suspected major crime or suspected corruption

(1)A reference to major crime includes, in the context of a crime investigation, suspected major crime.
(2)A reference to corruption includes, in the context of a complaint or a corruption investigation, suspected corruption.

s 22 amd 2014 No. 21 s 94 (1) sch 1

Division 5 Terrorist acts

ch 1 pt 4 div 5 hdg ins 2004 No. 8 s 4

22AMeaning of terrorist act

(1)An action is a terrorist act if—
(a)it does any of the following—
(i)causes serious harm that is physical harm to a person;
(ii)causes serious damage to property;
(iii)causes a person’s death;
(iv)endangers the life of someone other than the person taking the action;
(v)creates a serious risk to the health or safety of the public or a section of the public;
(vi)seriously interferes with, seriously disrupts, or destroys an electronic system; and
(b)it is done with the intention of advancing a political, religious or ideological cause; and
(c)it is done with the intention of—
(i)coercing, or influencing by intimidation, the government of the Commonwealth, a State or a foreign country, or of part of a State or a foreign country; or
(ii)intimidating the public or a section of the public.
(2)A threat of action is a terrorist act if—
(a)the threatened action is likely to do anything mentioned in subsection (1)(a)(i) to (vi); and
(b)the threat is made with the intentions mentioned in subsection (1)(b) and (c).
(3)However, an action or threat of action is not a terrorist act if the action or threatened action—
(a)is advocacy, protest, dissent or industrial action; and
(b)is not intended—
(i)to cause serious harm that is physical harm to a person; or
(ii)to cause a person’s death; or
(iii)to endanger the life of a person, other than the person taking the action; or
(iv)to create a serious risk to the health or safety of the public or a section of the public.
(4)A reference in this section to a person or property is a reference to a person or property wherever situated, within or outside the State (including within or outside Australia).
(5)In this section—
electronic system includes any of the following electronic systems—
(a)an information system;
(b)a telecommunications system;
(c)a financial system;
(d)a system used for the delivery of essential government services;
(e)a system used for, or by, an essential public utility;
(f)a system used for, or by, a transport system.
physical harm includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).
public includes the public of another State or of a country other than Australia.
serious harm means harm, including the cumulative effect of any harm, that—
(a)endangers, or is likely to endanger, a person’s life; or
(b)is, or is likely to be, significant and longstanding.
threat includes a threat made by conduct, whether express or implied and whether conditional or unconditional.

s 22A ins 2004 No. 8 s 4

Chapter 2 Commission functions, investigations and reporting

Part 1 Prevention

23Commission’s prevention function

The commission has a function (its prevention function) of helping to prevent major crime and corruption.

s 23 amd 2014 No. 21 s 10; 2016 No. 19 s 6

24How commission performs its prevention function

Without limiting the ways the commission may perform its prevention function, the commission performs the function by—
(a)analysing the intelligence it gathers in support of its investigations into major crime and corruption; and
(b)analysing the results of its investigations and the information it gathers in performing its functions; and
(c)analysing systems used within units of public administration to prevent corruption; and
(d)using information it gathers from any source in support of its prevention function; and
(e)providing information to, consulting with, and making recommendations to, units of public administration; and
(f)providing information relevant to its prevention function to the general community; and
(g)ensuring that in performing all of its functions it has regard to its prevention function; and
(h)generally increasing the capacity of units of public administration to prevent corruption by providing advice and training to the units and, if asked, to other entities; and
(i)reporting on ways to prevent major crime and corruption.

s 24 amd 2014 No. 21 s 11; 2016 No. 19 s 7

Part 2 Crime

ch 2 pt 2 hdg sub 2013 No. 45 s 6

Division 1 Crime functions

ch 2 pt 2 div 1 hdg sub 2013 No. 45 s 7

25Commission’s crime function

The commission has a function (its crime function)—
(a)to investigate major crime referred to it, under division 2, by the reference committee; and
(b)to investigate, under an authorisation under section 55D, incidents that threaten, have threatened or may threaten public safety that criminal organisations or participants in criminal organisations have engaged in, are engaging in, or are planning to engage in.

s 25 amd 2009 No. 12 s 4

sub 2013 No. 45 s 8

amd 2016 No. 62 s 32

26How commission performs its crime function

Without limiting the ways the commission may perform its crime function, the commission performs its crime function by—
(a)investigating major crime referred to it, under division 2, by the reference committee; and
(b)when conducting investigations under paragraph (a), gathering evidence for—
(i)the prosecution of persons for offences; and
(ii)the recovery of the proceeds of major crime; and
(iii)the recovery of other property liable to forfeiture, or a person’s unexplained wealth, under the Confiscation Act; and
(c)liaising with, providing information to, and receiving information from, other law enforcement agencies and prosecuting authorities, including agencies and authorities outside the State or Australia, about major crime.

s 26 amd 2009 No. 12 s 5; 2013 No. 21 s 6

Division 2 Referrals by reference committee

26ADefinitions for div 2

In this division—
general referral see section 27(4).
referral means—
(a)a specific referral; or
(b)a general referral.
specific referral see section 27(2).

s 26A ins 2009 No. 12 s 6

27Referrals to commission

(1)The reference committee may refer—
(a)a particular incident of major crime to the commission for investigation; or
(b)major crime to the commission for investigation.

Examples of major crime that may be referred under paragraph (b)—

terrorism
criminal paedophilia facilitated by the use of the internet by offenders to groom children or distribute obscene material depicting children
organised crime engaged in by a class of person or involving offences of a particular type, for example, money laundering
criminal activity involving drug trafficking and violence engaged in by members of (generally identified) motorcycle gangs and their associates
(2)A reference under subsection (1)(a) is called a specific referral.
(3)A specific referral must identify—
(a)the particular incident of major crime to be investigated by the commission; and
(b)at least 1 of the following—
(i)the persons involved, or suspected of being involved, in the particular incident of major crime;
(ii)the activity constituting, or suspected of constituting, the particular incident of major crime.
(4)A reference under subsection (1)(b) is called a general referral.
(5)A general referral—
(a)must identify the major crime to be investigated by the commission; and
(b)may identify either or both of the following—
(i)the persons involved, or suspected of being involved, in the major crime;
(ii)the activities constituting, or suspected of constituting, the major crime.
(6)A referral may relate to any circumstances implying, or any allegations, that a particular incident of major crime, or major crime, may have been committed, may be being committed, or may in the future be committed.
(7)A referral may be made by the reference committee—
(a)for a specific referral—
(i)on its own initiative; or
(ii)if asked by the senior executive officer (crime); or
(iii)if asked by the commissioner of police; or
(b)for a general referral—
(i)on its own initiative; or
(ii)if asked by the senior executive officer (crime).
(8)A referral must be in writing.

s 27 sub 2009 No. 12 s 6

amd 2014 No. 21 s 94 (1) sch 1

28Matters about which the reference committee must be satisfied before making a referral

(1)The reference committee may make a specific referral only if it is satisfied—
(a)the police service has carried out an investigation into the particular incident of major crime that has not been effective; and
(b)further investigation into the particular incident of major crime is unlikely to be effective using powers ordinarily available to police officers; and
(c)it is in the public interest to refer the particular incident of major crime to the commission for investigation.
(2)The reference committee may make a general referral only if it is satisfied it is in the public interest to refer the major crime to the commission for investigation.
(3)Without limiting the matters to which the reference committee may have regard in deciding whether it is in the public interest to refer a particular incident of major crime, or major crime, to the commission for investigation, the reference committee may have regard to the following—
(a)the number of persons that may be involved;
(b)the degree of planning and organisation likely to be involved;
(c)the seriousness of, or the consequences of, the particular incident of major crime or the major crime;
(d)the person or persons likely to be responsible for planning and organising the particular incident of major crime or the major crime;
(e)the likely involvement of the person or persons in similar activities;
(f)the financial or other benefits likely to be derived by any person;
(g)whether investigation by the commission is a justifiable use of resources.
(4)Also, without limiting the matters to which the reference committee may have regard in deciding whether it is in the public interest to refer major crime to the commission for investigation (that is, a general referral), the reference committee may have regard to the likely effectiveness of investigation into the major crime using powers ordinarily available to the police service.

s 28 sub 2009 No. 12 s 6

29Reference committee may give commission directions about investigations

(1)The reference committee may give the commission directions imposing limitations on a crime investigation, including limitations on the exercise of the commission’s powers for the investigation.
(2)The reference committee may also direct the commission to end a particular crime investigation if the committee considers—
(a)it may be more appropriate for another entity to undertake the investigation; or
(b)it may be more effective for another entity to undertake the investigation; or
(c)investigation by the commission is not a justifiable use of resources; or
(d)investigation by the commission is not in the public interest.
(3)The commission must comply with a direction given under subsection (1) or (2).
(4)To remove any doubt, it is declared that section 29(2)(d) is not limited by section 28(3) or (4).

s 29 amd 2009 No. 12 s 7

29AReference committee must consider whether to give commission directions in relation to particular crime investigation under general referral

(1)This section applies if the senior executive officer (crime) notifies the reference committee under section 277 that the commission has commenced a particular crime investigation under a general referral.
(2)The reference committee must, as soon as practicable after the reference committee is notified, consider whether to give the commission a direction under section 29(1) or (2) in relation to the particular crime investigation.

s 29A ins 2009 No. 12 s 8

amd 2014 No. 21 s 94 (1) sch 1

30Amendment of referral to investigate

The reference committee may amend the terms of a referral to the commission on its own initiative or if asked by the senior executive officer (crime).

s 30 amd 2009 No. 12 s 9; 2014 No. 21 s 94 (1) sch 1

30AReview and lapse of general referrals

(1)The reference committee must review each general referral within 5 years of it being made or last confirmed under subsection (5).
(2)In conducting the review, the reference committee must give fresh consideration to the matters mentioned in section 28(2) to (4) as if a reference in the subsections to a referral were a reference to a confirmation under subsection (5).
(3)The senior executive officer (crime) may make submissions to the reference committee about its decision on the review if the general referral was initially requested by the senior executive officer (crime).
(4)The reference committee may ask the senior executive officer (crime) to help the committee to conduct the review, and, if asked, the senior executive officer (crime) must give the committee the help it needs to conduct the review.
(5)In deciding the review, the reference committee may—
(a)confirm the referral with or without amendment; or
(b)replace the referral with a referral to the commissioner of police under section 31; or
(c)end the referral.
(6)If the reference committee does not act under subsection (5) before the end of the 5 year period mentioned in subsection (1), the referral lapses.

s 30A ins 2009 No. 12 s 10

amd 2014 No. 21 s 94 (1) sch 1

31Referrals to police service

(1)The reference committee may refer a particular incident of major crime, or major crime, to the commissioner of police for investigation if it is satisfied that the matter is not appropriate for investigation or continued investigation by the commission.
(2)The referral must be written.
(3)The commissioner of police must, if asked by the reference committee, report to the committee on the referral.
(4)The commissioner of police must consider any comments about the referral made by the reference committee.

s 31 amd 2002 No. 68 s 283 sch 3; 2009 No. 12 s 11

Division 3 Dealing with major crime

32Police task forces and other operational agreements

(1)The chairperson may make arrangements with the commissioner of police for the establishment of a police task force to help the commission to carry out a crime investigation.
(2)A police task force is under the control and direction of the commissioner of police.
(3)The commission may enter into operational agreements with other entities, including an entity mentioned in section 275(d).

s 32 amd 2013 No. 45 s 9; 2014 No. 21 s 94 (1) sch 1; 2015 No. 19 s 45 (1)

Part 3 Corruption

ch 2 pt 3 hdg amd 2014 No. 21 s 94 (1) sch 1

Division 1 Corruption functions

ch 2 pt 3 div 1 hdg sub 2014 No. 21 s 94 (1) sch 1

amd 2016 No. 19 s 8

33Commission’s corruption functions

(1)The commission has the following functions for corruption (the corruption functions)—
(a)to raise standards of integrity and conduct in units of public administration;
(b)to ensure a complaint about, or information or matter involving, corruption is dealt with in an appropriate way, having regard to the principles set out in section 34.
(2)The commission’s corruption functions also include—
(a)investigating and otherwise dealing with—
(i)conduct liable to allow, encourage or cause corrupt conduct; and
(ii)conduct connected with corrupt conduct; and
(b)investigating whether corrupt conduct or conduct mentioned in paragraph (a)(i) or (ii) may have happened, may be happening or may happen.

s 33 sub 2014 No. 21 s 12; 2016 No. 19 s 9

amd 2018 No. 29 s 7

34Principles for performing corruption functions

It is the Parliament’s intention that the commission apply the following principles when performing its corruption functions—
(a)Cooperation
to the greatest extent practicable, the commission and units of public administration should work cooperatively to prevent corruption
the commission and units of public administration should work cooperatively to deal with corruption
(b)Capacity building
the commission has a lead role in building the capacity of units of public administration to prevent and deal with cases of corruption effectively and appropriately
(c)Devolution
subject to the cooperation and public interest principles and the capacity of the unit of public administration, action to prevent and deal with corruption in a unit of public administration should generally happen within the unit
(d)Public interest
the commission has an overriding responsibility to promote public confidence—
in the integrity of units of public administration and
if corruption does happen within a unit of public administration, in the way it is dealt with
the commission should exercise its power to deal with particular cases of corruption when it is appropriate having primary regard to the following—
the capacity of, and the resources available to, a unit of public administration to effectively deal with the corruption
the nature and seriousness of the corruption, particularly if there is reason to believe that corruption is prevalent or systemic within a unit of public administration
any likely increase in public confidence in having the corruption dealt with by the commission directly.

s 34 amd 2014 No. 21 s 13

sub 2016 No. 19 s 9

35How commission performs its corruption functions

(1)Without limiting how the commission may perform its corruption functions, it performs its corruption functions by doing 1 or more of the following—
(a)expeditiously assessing complaints about, or information or matters (also complaints) involving, corruption made or notified to it;
(b)referring complaints about corruption within a unit of public administration to a relevant public official to be dealt with by the public official;
(c)performing its monitoring role for police misconduct as provided for under section 47(1);
(d)performing its monitoring role for corrupt conduct as provided for under section 48(1);
(e)dealing with complaints about corrupt conduct, by itself or in cooperation with a unit of public administration;
(f)investigating and otherwise dealing with, on its own initiative—
(i)the incidence, or particular cases, of corruption throughout the State; or
(ii)the matters mentioned in section 33(2);
(g)assuming responsibility for, and completing, an investigation, by itself or in cooperation with a unit of public administration, if the commission considers that action to be appropriate having regard to the principles set out in section 34;
(h)when conducting or monitoring investigations, gathering evidence for or ensuring evidence is gathered for—
(i)the prosecution of persons for offences; or
(ii)disciplinary proceedings against persons;
(i)assessing the appropriateness of systems and procedures adopted by a unit of public administration for dealing with complaints about corruption;
(j)providing advice and recommendations to a unit of public administration about dealing with complaints about corruption in an appropriate way.
(2)In performing its corruption functions in a way mentioned in subsection (1), the commission should, whenever possible, liaise with a relevant public official.
(3)In performing its corruption function under section 33(1)(b), the commission must focus on more serious cases of corrupt conduct and cases of systemic corrupt conduct within a unit of public administration.

s 35 amd 2014 No. 21 s 14; 2016 No. 19 s 10; 2018 No. 29 s 8

35AChief executive officer may issue direction about commission’s corruption function about complaints

(1)The chief executive officer may issue a direction about how commission officers are to decide whether a complaint involves, or may involve, a more serious case of corrupt conduct or a case of systemic corrupt conduct within a unit of public administration.
(2)In issuing a direction under subsection (1), the chief executive officer is subject to the direction and control of the chairperson.
(3)A commission officer must comply with a direction issued under subsection (1).

s 35A ins 2014 No. 21 s 15

amd 2016 No. 19 ss 11, 45 (1)

35BPublication of information about how commission performs its corruption function about complaints

(1)The chief executive officer must publish, on a publicly accessible website of the commission, information about the commission’s systems and procedures for dealing with complaints about corruption.
(2)The information published on the website must include the following—
(a)the standard timeframes adopted by the commission for assessing, investigating and completing its dealing with complaints about corruption;
(b)the standard procedures adopted by the commission for assessing and investigating complaints about corruption;
(c)how the commission monitors the progress of complaints about corruption being dealt with by the commission to ensure they are being dealt with in a timely way;
(d)what action the commission takes if the standard timeframes are not met for a complaint about corruption being dealt with by the commission to ensure the complaint is dealt with in a timely way.

s 35B ins 2014 No. 21 s 15

amd 2016 No. 19 s 12

Division 2 How to make a complaint

36Complaining about corruption

(1)A person may make a complaint about corruption to the commission for the purpose of the commission dealing with the complaint under section 35.
(2)Subsection (1) does not limit to whom a person can complain about corruption.

Examples—

1A person may complain directly to the commissioner of police about corruption.
2A person may complain directly to the chief executive of a government department about corruption happening within the department.
(3)A person may also give information or matter involving corruption to the commission.

Examples of information or matter involving corruption that may be given to the commission—

information given to the commission through a commission activity, including, for example—
evidence given by a witness at a commission hearing
information obtained through telephone interception or a covert operation
evidence gathered through a corruption investigation
a routine departmental audit report
an intelligence report from a law enforcement agency
a Crime Stoppers report
information about a significant police event such as a death in police custody or police shooting
information or matter referred to the commission by a coroner, a court, a commission of inquiry or another investigative body or public inquiry

s 36 amd 2014 No. 21 s 16; 2016 No. 19 s 13

Division 3 Duty to notify

37Duty to notify commission of police misconduct

(1)This section applies if the commissioner of police reasonably suspects that a complaint, or information or matter (also a complaint), involves police misconduct.
(2)The commissioner of police must notify the commission of the complaint, subject to section 40.

38Duty to notify commission of corrupt conduct

(1)This section applies if a public official reasonably suspects that a complaint, or information or matter (also a complaint), involves, or may involve, corrupt conduct.
(2)The public official must notify the commission of the complaint, subject to section 40.

s 38 amd 2014 No. 21 s 17

39Duty to notify is paramount

(1)The duty of a public official to notify the commission of a complaint under section 37 or 38 must be complied with despite—
(a)the provisions of any other Act, other than the Police Service Administration Act 1990, section 7.2(3); or
(b)any obligation the person has to maintain confidentiality about a matter to which the complaint relates.
(2)Subsection (1) does not affect an obligation under another Act to notify corruption.

s 39 amd 2014 No. 21 s 94 (1) sch 1

40Commission may issue directions about notifications

(1)The commission may issue directions about the following—
(a)the kinds of complaints a public official must notify, or need not notify, the commission of under section 37 or 38;
(b)how and when a public official must notify the commission of complaints under section 37 or 38.
(2)Before issuing a direction, the commission must consult with, and consider the views of—
(a)the relevant public official; and
(b)if the direction relates to the chief executive officer of a department or a public service office within the meaning of the Public Service Act 2008—the public service commission.
(3)In particular, if a direction would require the commissioner of police to disclose information otherwise protected by the Police Powers and Responsibilities Act 2000, section 266 or the Drugs Misuse Act 1986, section 119, the commission may issue the direction, but before doing so must have regard to the desirability of protecting confidentiality.
(4)A public official must comply with a direction given under subsection (1).
(5)The commission may use or disclose information mentioned in subsection (3) in the administration of this Act, but must maintain the confidentiality of the information to the greatest practicable extent.

s 40 amd 2002 No. 35 s 13 sch; 2005 No. 45 s 68; 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2014 No. 21 s 18

40ARecord of alleged corrupt conduct not notified

(1)This section applies if a public official decides that a complaint, or information or matter, about alleged corrupt conduct is not required to be notified to the commission under section 38.
(2)The public official must make a record of the decision.
(3)The record must include—
(a)the details of the complaint or information or matter; and
(b)the evidence on which the public official relied in making the decision; and
(c)any other reasons for the decision.
(4)The commission may ask a public official to give the commission access to a record made under this section in a stated way and by a stated time.
(5)A public official must comply with a request made of the official under subsection (4).

s 40A ins 2018 No. 29 s 9

Division 4 Dealing with complaints and other matters

ch 2 pt 3 div 4 hdg amd 2018 No. 29 s 10

Subdivision 1 Commissioner of police

41Responsibility of commissioner of police

(1)The commissioner of police has primary responsibility for dealing with complaints about, or information or matter the commissioner of police reasonably suspects involves, police misconduct.
(2)The commissioner of police also has a responsibility to deal with a complaint about, or information or matter involving, corrupt conduct that is referred to the commissioner of police by the commission.

s 41 amd 2014 No. 21 s 94 (1) sch 1

42Dealing with complaints—commissioner of police

(1)The commissioner of police must expeditiously assess complaints, or information or matter (also a complaint) made or notified to, or otherwise coming to the attention of, the commissioner of police.
(2)The commissioner of police must deal with a complaint about police misconduct in the way the commissioner of police considers most appropriate, subject to the commission’s monitoring role.
(3)If the commissioner of police is satisfied that—
(a)a complaint—
(i)is frivolous or vexatious; or
(ii)lacks substance or credibility; or
(b)dealing with the complaint would be an unjustifiable use of resources;

the commissioner of police may take no action or discontinue action taken to deal with the complaint.

(4)The commissioner of police may, in an appropriate case, ask the commission to deal with a complaint about police misconduct or to deal with the complaint in cooperation with the commissioner of police.
(5)If the commission refers a complaint about corrupt conduct to the commissioner of police to be dealt with, the commissioner of police must deal with the complaint in the way the commissioner of police considers most appropriate, subject to the commission’s monitoring role.
(6)Without limiting how the commissioner of police may deal with a complaint about corrupt conduct, the commissioner of police may ask the commission to deal with the complaint in cooperation with the commissioner of police.
(7)If a person makes a complaint that is dealt with by the commissioner of police, the commissioner of police must give the person a response stating—
(a)if no action is taken on the complaint by the commissioner of police or action to deal with the complaint is discontinued by the commissioner of police—the reason for not taking action or discontinuing the action; or
(b)if action is taken on the complaint by the commissioner of police—
(i)the action taken; and
(ii)the reason the commissioner of police considers the action to be appropriate in the circumstances; and
(iii)any results of the action that are known at the time of the response.
(8)However, the commissioner of police is not required to give a response to the person—
(a)if the person has not given his or her name and address or does not require a response; or
(b)if the response would disclose information the disclosure of which would be contrary to the public interest.

s 42 amd 2014 No. 21 s 94 (1) sch 1

Subdivision 2 Other units of public administration

43Responsibility of public officials, other than the commissioner of police

A public official, other than the commissioner of police, has a responsibility to deal with a complaint about, or information or matter involving, corrupt conduct that is referred to it by the commission.

s 43 amd 2014 No. 21 s 94 (1) sch 1

44Dealing with complaints—public officials other than the commissioner of police

(1)This section does not apply to the police service.
(2)A public official must deal with a complaint about, or information or matter (also a complaint) involving, corrupt conduct in the way the public official considers most appropriate, subject to the commission’s monitoring role.
(3)If the public official is satisfied that—
(a)a complaint—
(i)is frivolous or vexatious; or
(ii)lacks substance or credibility; or
(b)dealing with the complaint would be an unjustifiable use of resources;

the public official may take no action or discontinue action taken to deal with the complaint.

(4)A public official may, in an appropriate case, ask the commission to deal with a complaint in cooperation with the public official.
(5)If a person makes a complaint that is dealt with by the public official, the public official must give the person a response stating—
(a)if no action is taken on the complaint by the public official or action to deal with the complaint is discontinued by the public official—the reason for not taking action or discontinuing the action; or
(b)if action is taken on the complaint by the public official—
(i)the action taken; and
(ii)the reason the public official considers the action to be appropriate in the circumstances; and
(iii)any results of the action that are known at the time of the response.
(6)However, the public official is not required to give a response to the person—
(a)if the person has not given his or her name and address or does not require a response; or
(b)if the response would disclose information the disclosure of which would be contrary to the public interest.

s 44 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1

Subdivision 3 Commission

45Responsibility of commission

(1)The commission has primary responsibility for dealing with complaints about, or information or matter involving, corrupt conduct.
(2)The commission is responsible for monitoring how the commissioner of police deals with police misconduct.

s 45 amd 2014 No. 21 s 94 (1) sch 1

46Dealing with complaints—commission

(1)The commission deals with a complaint about, or information or matter (also a complaint) involving, corruption by—
(a)expeditiously assessing each complaint about corruption made or notified to it, or otherwise coming to its attention; and
(b)taking the action the commission considers most appropriate in the circumstances having regard to the principles set out in section 34.
(2)The commission may take the following action—
(a)deal with each complaint about corrupt conduct that it considers should not be referred to a public official to be dealt with;
(b)refer a complaint about corrupt conduct to a public official to be dealt with by the public official or in cooperation with the commission, subject to the commission’s monitoring role;
(c)without limiting paragraph (b), refer a complaint about corrupt conduct of a person holding an appointment in a unit of public administration that may involve criminal activity to the commissioner of police to be dealt with;
(d)if it is a complaint about police misconduct notified to the commission by the commissioner of police—allow the commissioner of police to continue to deal with the complaint, subject to the commission’s monitoring role;
(e)if it is a complaint about police misconduct made to the commission by someone other than the commissioner of police—give the complaint to the commissioner of police to be dealt with, subject to the commission’s monitoring role;
(f)if a public official asks the commission to deal with a complaint or to deal with a complaint in cooperation with the public official—
(i)deal with the complaint; or
(ii)deal with the complaint in cooperation with the public official; or
(iii)advise the public official that the commission considers that it is appropriate that the public official continue to deal with the complaint, subject to the commission’s monitoring role;
(g)if the commission is satisfied that—
(i)the complaint—
(A)is frivolous or vexatious; or
(B)lacks substance or credibility; or
(C)is not made in good faith; or
(D)is made primarily for a mischievous purpose; or
(E)is made recklessly or maliciously; or
(ii)dealing with the complaint—
(A)would not be in the public interest; or
(B)would be an unjustifiable use of resources; or
(iii)the subject matter of the complaint—
(A)is not within the commission’s functions; or
(B)has been dealt with by another entity;

take no action or discontinue action.

(3)For taking action, or action taken, under subsection (2) for a complaint, the commission may require a public official to provide stated information about the complaint in the way and at the times the commission directs.
(4)A public official must comply with a requirement made under subsection (3).
(5)If a person makes a complaint that is dealt with by the commission, the commission must give the person a response stating—
(a)if no action is taken by the commission on the complaint or action to deal with the complaint is discontinued by the commission—the reason for not taking action or discontinuing the action; or
(b)if action is taken on the complaint by the commission—
(i)the action taken; and
(ii)the reason the commission considers the action to be appropriate in the circumstances; and
(iii)any results of the action that are known at the time of the response.
(6)However, the commission is not required to give a response—
(a)to the person if—
(i)the person has not given his or her name and address or does not require a response; or
(ii)the commission has given a notice, or is entitled to give a notice, under section 216 to the person in relation to the complaint; or
(b)that discloses information the disclosure of which would be contrary to the public interest.
(7)Nothing in this part limits the commission from providing information about the conduct of a person to a public official for use in the proper performance of the public official’s functions.

s 46 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 19

46ADealing with matters mentioned in s 33(2)

(1)This section applies to a matter mentioned in section 33(2).
(2)The commission deals with the matter by—
(a)assessing the matter; and
(b)if the commission considers it appropriate, investigating the matter; and
(c)taking the action the commission considers most appropriate in the circumstances having regard to the public interest principle set out in section 34(d).
(3)For dealing with the matter, the commission may require a public official to provide stated information about the matter in the way and at the times the commission directs.
(4)A public official must comply with a requirement made under subsection (3).

s 46A ins 2018 No. 29 s 11

47Commission’s monitoring role for police misconduct

(1)The commission may, having regard to the principles stated in section 34
(a)issue advisory guidelines for the conduct of investigations by the commissioner of police into police misconduct; or
(b)review or audit the way the commissioner of police has dealt with police misconduct, in relation to either a particular complaint or a class of complaint; or
(c)assume responsibility for and complete an investigation by the commissioner of police into police misconduct.
(2)The commissioner of police must give the commission reasonable help to undertake a review or audit or to assume responsibility for an investigation.
(3)If the commission assumes responsibility for an investigation, the commissioner of police must stop his or her investigation or any other action that may impede the investigation if directed to do so by the commission.
(4)In this section—
complaint, about police misconduct, includes information or matter involving police misconduct.

48Commission’s monitoring role for corrupt conduct

(1)The commission may, having regard to the principles stated in section 34
(a)issue advisory guidelines for the conduct of investigations by public officials into corrupt conduct; or
(b)review or audit the way a public official has dealt with corrupt conduct, in relation to either a particular complaint or a class of complaint; or
(c)require a public official—
(i)to report to the commission about an investigation into corrupt conduct in the way and at the times the commission directs; or
(ii)to undertake the further investigation into the corrupt conduct that the commission directs; or
(d)assume responsibility for and complete an investigation by a public official into corrupt conduct.
(2)The public official must—
(a)give the commission reasonable help to undertake a review or audit or to assume responsibility for an investigation; and
(b)comply with a requirement made under subsection (1)(c).
(3)If the commission assumes responsibility for an investigation, the public official must stop his or her investigation or any other action that may impede the investigation if directed to do so by the commission.
(4)In this section—
complaint, about corrupt conduct, includes information or matter involving corrupt conduct.

s 48 amd 2014 No. 21 s 94 (1) sch 1

Subdivision 4 Miscellaneous provision

ch 2 pt 3 div 4 sdiv 4 hdg ins 2014 No. 21 s 20

48APolicy about how complaints involving public official are to be dealt with

(1)A public official must, in consultation with the chairperson, prepare a policy about how the unit of public administration for which the official is responsible will deal with a complaint that involves or may involve corruption of the public official.
(2)The policy may nominate a person other than the public official to notify the commission of the complaint under section 37 or 38, and to deal with the complaint under subdivision 1 or 2, on behalf of the public official.
(3)If the policy includes a nomination as mentioned in subsection (2), this Act applies as if a reference about notifying or dealing with the complaint to the public official were a reference to the nominated person.

Example of operation of subsection (3)—

If a policy prepared under this section for a unit of public administration includes a nomination as mentioned in subsection (2)—
(a)under section 38 as applying under subsection (3), the nominated person must notify the commission of complaints about the relevant public official that the person suspects involve or may involve corrupt conduct; and
(b)under section 35(1)(b) as applying under subsection (3), the commission may refer complaints about the relevant public official to the nominated person for the nominated person to deal with; and
(c)under section 42 or 44 as applying under subsection (3), the nominated person must deal with complaints about the relevant public official referred to the nominated person by the commission.
(4)In this section—
complaint includes information or matter.

s 48A ins 2014 No. 21 s 20

amd 2016 No. 19 s 45 (1)

Division 5 Action following investigation

49Reports about complaints dealt with by the commission

(1)This section applies if the commission investigates (either by itself or in cooperation with a public official), or assumes responsibility for the investigation of, a complaint about, or information or matter involving, corruption and decides that prosecution proceedings or disciplinary action should be considered.
(2)The commission may report on the investigation to any of the following as appropriate—
(a)a prosecuting authority, for the purposes of any prosecution proceedings the authority considers warranted;
(b)the Chief Justice, if the report relates to conduct of a judge of, or other person holding judicial office in, the Supreme Court;
(c)the Chief Judge of the District Court, if the report relates to conduct of a District Court judge;
(d)the President of the Childrens Court, if the report relates to conduct of a person holding judicial office in the Childrens Court;
(e)the Chief Magistrate, if the report relates to conduct of a magistrate;
(f)the chief executive officer of a relevant unit of public administration, for the purpose of taking disciplinary action, if the report does not relate to the conduct of a judge, magistrate or other holder of judicial office.
(3)If the commission decides that prosecution proceedings for an offence under the Criminal Code, section 57 should be considered, the commission must report on the investigation to the Attorney-General.
(4)A report made under subsection (2) or (3) must contain, or be accompanied by, all relevant information known to the commission that—
(a)supports a charge that may be brought against any person as a result of the report; or
(b)supports a defence that may be available to any person liable to be charged as a result of the report; or
(c)supports the start of a proceeding under section 219F or 219G against any person as a result of the report; or
(d)supports a defence that may be available to any person subject to a proceeding under section 219F or 219G as a result of the report.
(5)In this section—
prosecuting authority does not include the director of public prosecutions.

s 49 amd 2002 No. 68 s 283 sch 3; 2009 No. 24 s 1398; 2012 No. 18 s 7; 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 12

50Commission may prosecute corrupt conduct

(1)This section applies if the commission reports to the chief executive officer of a unit of public administration under section 49 that—
(a)a complaint, matter or information involves, or may involve, corrupt conduct by a prescribed person in the unit; and
(b)there is evidence supporting the start of a disciplinary proceeding for corrupt conduct against the prescribed person.
(2)The commission may apply, as provided under the QCAT Act, to QCAT for an order under section 219I against the prescribed person.
(3)In this section—
prescribed person means—
(a)a person—
(i)who is a member of the police service; or
(ii)being a member of the police service, whose employment as a member of the police service ends after the corrupt conduct happens, regardless of whether the employment ends before or after the start of a disciplinary proceeding for the corrupt conduct; or
(b)a person (other than a judge or holder of judicial office, or a member of the police service)—
(i)who holds an appointment in a unit of public administration; or
(ii)who held an appointment in a unit of public administration that ended after the corrupt conduct happened, regardless of whether the appointment ended before or after the start of a disciplinary proceeding for the conduct.

s 50 amd 2009 No. 25 s 53 (2)–(3); 2009 No. 24 s 1399; 2009 No. 48 s 129A; 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 13

51Other action for corruption

(1)Nothing in this part limits the action that may lawfully be taken by the commission or a unit of public administration to discipline or otherwise deal with a person for corruption.

Example—

The commissioner of police may bring a disciplinary charge against a police officer under the Police Service Administration Act 1990.
(2)Subsection (1) is subject to sections 47 and 48.

s 51 amd 2014 No. 21 s 94 (1) sch 1

Part 4 Research, intelligence and other functions

Division 1 Research

52Research functions

(1)The commission has the following functions—
(a)to undertake research to support the proper performance of its functions;
(b)to undertake research into the incidence and prevention of criminal activity;
(c)to undertake research into any other matter relating to the administration of criminal justice or relating to corruption referred to the commission by the Minister;
(d)to undertake research into any other matter relevant to any of its functions.
(2)Without limiting subsection (1)(a), the commission may undertake research into—
(a)police service methods of operations; and
(b)police powers and the use of police powers; and
(c)law enforcement by police; and
(d)the continuous improvement of the police service.

s 52 sub 2014 No. 21 s 21; 2016 No. 19 s 14

Division 2 Intelligence

53Intelligence functions

The commission has the following functions (its intelligence functions)—
(a)to undertake intelligence activities, including specific intelligence operations authorised by the reference committee, to support the proper performance of its functions;
(b)to hold intelligence function hearings;
(c)to analyse the intelligence data collected to support its functions;
(d)to minimise unnecessary duplication of intelligence data;
(e)to ensure that intelligence data collected and held to support its functions is appropriate for the proper performance of its functions.

s 53 amd 2013 No. 45 s 10; 2013 No. 64 s 22; 2016 No. 62 s 33

54Database of intelligence information

The commission must build up a database of intelligence information for use in support of all of its functions using for the purpose information acquired by it from any source available to it, including, for example—
(a)its own operations; and
(b)the police service; and
(c)sources of the Commonwealth or any State supplying intelligence information to it.

55Access to intelligence information held by police service

The commissioner of police must give the chairperson access to intelligence information held by the police service as required by the chairperson as soon as possible after receiving the request.

s 55 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

sub 2018 No. 29 s 14

Division 2A Specific intelligence operations

ch 2 pt 4 div 2A hdg ins 2013 No. 45 s 11

sub 2016 No. 62 s 34

55AAuthorising specific intelligence operation

(1)The section applies if the reference committee is satisfied that there are reasonable grounds to suspect that—
(a)a criminal organisation, or a participant in a criminal organisation, has engaged in, is engaging in, or is planning to engage in, criminal activity; or
(b)a person, regardless of whether the person holds an appointment, has engaged in, is engaging in, or is planning to engage in corruption to support or help a criminal organisation or a participant in a criminal organisation.
(2)The reference committee may authorise the commission to undertake a specific intelligence operation, including by holding hearings.
(3)The authorisation must be in writing and identify—
(a)the criminal organisation or participant to be investigated by the commission; and
(b)the suspected criminal activity or corruption; and
(c)the purpose of the intelligence operation.
(4)The authorisation may relate to any circumstances implying, or any allegations, that particular criminal activity or corruption, is reasonably suspected.
(5)The authorisation may be made by the reference committee—
(a)on its own initiative; or
(b)if asked by the senior executive officer (crime) or the senior executive officer (corruption).
(6)In this section—
criminal activity means any act or omission that involves the commission of an offence.
hold an appointment means hold an appointment in a unit of public administration.

s 55A ins 2013 No. 45 s 11

amd 2014 No. 21 s 94 (1) sch 1 (amdt could not be given effect to the extent it subs assistant commissioner, misconduct’s with senior executive officer (corruption)’s); 2016 No. 62 s 35

55BMatters reference committee must consider

(1)The reference committee may authorise the commission to undertake a specific intelligence operation under section 55A only if it is satisfied—
(a)as required under the section; and
(b)it is in the public interest to authorise the commission to undertake the specific intelligence operation.
(2)In considering the public interest, the reference committee may also have regard to the likely effectiveness of an investigation into criminal activity or corruption without the use of powers available to the commission under this division.
(3)In this section—
criminal activity means any act or omission that involves the commission of an offence.

s 55B ins 2013 No. 45 s 11

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 62 s 36

55CReference committee may give commission directions

(1)The reference committee may give the commission directions imposing limitations on the commission’s intelligence operation under an authorisation under section 55A, including limitations on the exercise of the commission’s powers for the operations.
(2)The reference committee may also direct the commission to end a specific intelligence operation under an authorisation if the committee considers—
(a)it may be more appropriate for another entity to undertake the intelligence operation; or
(b)it may be more effective for another entity to undertake the intelligence operation; or
(c)undertaking an intelligence operation is not a justifiable use of the commission’s resources; or
(d)the commission undertaking an intelligence operation is not in the public interest.
(3)The commission must comply with a direction given under subsection (1) or (2).
(4)The reference committee may amend the terms of an authorisation on its own initiative or if asked by the senior executive officer (crime) or the senior executive officer (corruption).
(5)To remove any doubt, it is declared that subsection (2)(d) is not limited by section 55B(2).

s 55C ins 2013 No. 45 s 11

amd 2014 No. 21 s 94 (1) sch 1 (amdt could not be given effect to the extent it subs assistant commissioner, misconduct’s with senior executive officer (corruption)’s); 2016 No. 62 s 37

Division 2B Immediate responses to threats to public safety

ch 2 pt 4 div 2B hdg ins 2013 No. 45 s 11

sub 2016 No. 62 s 38

55DAuthorising immediate response

(1)This section applies if the reference committee is satisfied there are reasonable grounds to suspect that a criminal organisation or a participant in a criminal organisation has engaged in, is engaging in, or is planning to engage in, an incident that threatens, has threatened or may threaten public safety.
(2)The reference committee may authorise the commission to do either or both of the following in response to, or to prevent, the threat to public safety—
(a)undertake an investigation into the incident;
(b)conduct a hearing in relation to the incident.
(3)The authorisation must be in writing and identify—
(a)the criminal organisation or participant that has engaged in, is engaging in, or is planning to engage in, the incident; and
(b)the nature of the incident; and
(c)the purpose of the investigation or hearing.
(4)The authorisation may be made by the reference committee—
(a)on its own initiative; or
(b)if asked by the senior executive officer (crime) or the senior executive officer (corruption).

s 55D ins 2013 No. 45 s 11

sub 2016 No. 62 s 38

55EMatters reference committee must consider

(1)The reference committee may authorise the commission to undertake the investigation or conduct the hearing only if the committee is satisfied—
(a)as required under section 55D(1); and
(b)it is in the public interest to authorise the commission to undertake the investigation or conduct the hearing in response to, or to prevent, the threat to public safety.
(2)In considering the public interest, the reference committee may also have regard to the likely effectiveness of an investigation into criminal activity or corruption without the use of powers available to the commission under this division.
(3)In this section—
criminal activity means any act or omission that involves the commission of an offence.

s 55E ins 2013 No. 45 s 11

sub 2016 No. 62 s 38

55FReference committee may give commission directions

(1)The reference committee may give the commission directions imposing limitations on the commission’s investigation or hearing under an authorisation under section 55D, including limitations on the exercise of the commission’s powers for the investigation or hearing.
(2)The reference committee may also direct the commission to end an investigation or hearing under an authorisation under section 55D if the committee considers—
(a)it may be more appropriate for another entity to undertake the investigation or conduct the hearing; or
(b)it may be more effective for another entity to undertake the investigation or conduct the hearing; or
(c)undertaking the investigation or conducting the hearing is not a justifiable use of the commission’s resources; or
(d)it is not in the public interest for the commission to undertake the investigation or conduct the hearing.
(3)The commission must comply with a direction given under subsection (1) or (2).
(4)The reference committee may amend the terms of an authorisation on its own initiative or if asked by the senior executive officer (crime) or the senior executive officer (corruption).
(5)To remove any doubt, it is declared that subsection (2)(d) is not limited by section 55D(2).

s 55F ins 2013 No. 45 s 11

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

sub 2016 No. 62 s 38

Division 3 Other functions

56Commission’s other functions

The commission also has the following functions—
(a)the witness protection function;

Note—

See also the Witness Protection Act 2000.
(b)a civil confiscation function;

Note—

See also the Criminal Proceeds Confiscation Act 2002.
(c)a function conferred under another Act.

s 56 amd 2002 No. 68 s 286; 2006 No. 41 s 4; 2009 No. 48 s 130

Part 5 Performance of functions

57Commission to act independently etc.

The commission must, at all times, act independently, impartially and fairly having regard to the purposes of this Act and the importance of protecting the public interest.

58Independence of holders of judicial office

(1)The commission, when performing its functions or exercising its powers in relation to the procedures and operations of State courts or in relation to the conduct of a judicial officer, must proceed having proper regard for, and proper regard for the importance of preserving, the independence of judicial officers.
(2)To the extent a commission investigation is, or would be, in relation to conduct of a judicial officer, the commission’s authority to conduct the investigation is limited to investigating corrupt conduct of a kind that, if established, would warrant the judicial officer’s removal from office.
(3)However, subsection (2) does not apply to a commission investigation that is, or would be, in relation to conduct of a judicial officer—
(a)other than in the judicial officer’s capacity as a judicial officer; and
(b)as a member or representative of a decision-making body in a unit of public administration.

Examples of decision-making bodies—

a governing body, a board of management
(4)To the extent a commission investigation is, or would be, in relation to conduct of a judicial officer, the investigation must be conducted in accordance with appropriate conditions and procedures agreed by the chairperson and the Chief Justice from time to time.
(5)A commission hearing in relation to the conduct of the judicial officer must be conducted by the chairperson.
(6)The functions and powers of the commission are to be performed and exercised by the chairperson who is to be taken to constitute the commission for the investigation.
(7)However, the chairperson may delegate the chairperson’s functions and powers under this section, including the functions and powers mentioned in subsection (6), for a commission investigation mentioned in subsection (3) to a senior officer.
(8)In this section—
judicial officer means—
(a)a judge of, or other person holding judicial office in, a State court; or
(b)a member of a tribunal that is a court of record.

s 58 amd 2014 No. 21 s 22; 2016 No. 19 s 45 (1)–(2)

59Commission to cooperate with other entities

(1)The commission and units of public administration are to work cooperatively to achieve optimal use of available resources.
(2)In performing its functions, the commission must—
(a)liaise with, and coordinate its activities with the activities of, units of public administration to avoid needless duplication of the work of the units for the purpose of performing the commission’s functions; and
(b)have regard to the activities, findings and recommendations of entities outside the State, including outside Australia, that have functions similar to the commission—
(i)to relate and adapt the activities, findings and recommendations of the entities to the needs of the State; and
(ii)to avoid needless duplication of the work of the entities for the purpose of performing the commission’s functions.

60Use and disclosure of information, document or thing

(1)The commission may use any information, document or thing in the commission’s possession in performing the commission’s functions.
(2)The commission may give intelligence information or other information to any entity the commission considers appropriate, including, for example—
(a)a unit of public administration; and
(b)a law enforcement agency; and
(c)the auditor-general; and
(d)a commissioner under the Electoral Act 1992; and
(e)the ombudsman.

Note—

See section 213 in relation to making a record of, or wilfully disclosing, information given to a person under this section on the understanding, express or implied, that the information is confidential.

s 60 sub 2018 No. 29 s 15

61Commission’s functions not to limit proper performance of similar functions by other entities

(1)The conferral of functions on the commission does not limit police power or the power of another entity to perform similar functions.
(2)Subsection (1) is subject to sections 47 and 48.

62[Repealed]

s 62 om 2018 No. 29 s 16

Part 6 Reporting

Division 1 Application

63Application of pt 6

This part does not apply in relation to the performance of crime functions.

Division 2 Commission reports

64Commission’s reports—general

(1)The commission may report in performing its functions.
(2)The commission must include in each of the reports—
(a)any recommendations, including, if appropriate and after consulting with the commissioner of police, a recommendation that the Police Minister give a direction to the commissioner of police under the Police Service Administration Act, section 4.6; and
(b)an objective summary of all matters of which it is aware that support, oppose or are otherwise relevant to its recommendations.
(3)If the Police Minister decides not to give a direction under the Police Service Administration Act, section 4.6 following a recommendation made under subsection (2)(a), the Police Minister must table in the Legislative Assembly, after giving the reasons—
(a)a copy of the recommendation; and
(b)the Minister’s reasons for not giving the direction.
(4)The commission may also include in a report any comments it may have on the matters mentioned in subsection (2)(b).
(5)In this section—
Police Minister means the Minister administering the Police Service Administration Act.
Police Service Administration Act means the Police Service Administration Act 1990.

65Commission reports—court procedures

(1)This section applies to a commission report about—
(a)the procedures and operations of a State court; or
(b)the procedures and practices of the registry or administrative offices of a State court.
(2)The report may be given only to—
(a)the Chief Justice, if the report deals with matters relevant to the Supreme Court; or
(b)the Chief Judge of the District Court, if the report deals with matters relevant to the District Court; or
(c)the President of the Childrens Court, if the report deals with matters relevant to the Childrens Court; or
(d)the Chief Magistrate, if the report deals with matters relevant to the Magistrates Courts; or
(e)the judicial officer, or the principal judicial officer if there is more than 1 judicial officer, in the court, or the system of courts, to which the matters dealt with in the report are relevant.

Division 3 Confidential information

66Maintaining confidentiality of information

(1)Despite any other provision of this Act about reporting, if the commission considers that confidentiality should be strictly maintained in relation to information in its possession (confidential information)—
(a)the commission need not make a report on the matter to which the information is relevant; or
(b)if the commission makes a report on the matter, it need not disclose the confidential information or refer to it in the report.
(2)If the commission decides not to make a report to which confidential information is relevant or, in a report, decides not to disclose or refer to confidential information, the commission—
(a)may disclose the confidential information in a separate document to be given to—
(i)the Speaker; and
(ii)the Minister; and
(b)must disclose the confidential information in a separate document to be given to the parliamentary committee.
(3)A member of the parliamentary committee or a person appointed, engaged or assigned to help the committee must not disclose confidential information disclosed to the parliamentary committee or person under subsection (2)(b) until the commission advises the committee there is no longer a need to strictly maintain confidentiality in relation to the information.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)Despite subsection (2)(b), the commission may refuse to disclose information to the parliamentary committee if—
(a)a majority of the commissioners considers confidentiality should continue to be strictly maintained in relation to the information; and
(b)the commission gives the committee reasons for the decision in as much detail as possible.

67Register of confidential information

(1)The commission must maintain a register of information withheld under section 66(4) and advise the parliamentary committee immediately after the need to strictly maintain confidentiality in relation to the information ends.
(2)The parliamentary committee or a person appointed, engaged or assigned to help the committee who is authorised for the purpose by the committee may, at any time, inspect in the register information the commission has advised the committee is no longer required to be strictly maintained as confidential.
(3)The parliamentary commissioner may inspect information on the register at any time, regardless of whether the commission has advised the parliamentary committee the information is no longer required to be strictly maintained as confidential.
(4)The parliamentary committee may not require the parliamentary commissioner to disclose to the committee information inspected by the commissioner on the register, unless the commission has advised the committee the information is no longer required to be strictly maintained as confidential.

68Giving of reasons

Information or reasons mentioned in section 66(2) or (4) or 67(1)—
(a)may be given in writing or orally; and
(b)are not a report or part of a report for section 69.

Division 4 Tabling requirements

69Commission reports to be tabled

(1)This section applies to the following commission reports—
(a)a report on a public hearing;
(b)a research report or other report that the parliamentary committee directs be given to the Speaker.
(2)However, this section does not apply to the commission’s annual report, or a report under section 49 or 65, or a report to which section 66 applies.
(3)A commission report, signed by the chairperson, must be given to—
(a)the chairperson of the parliamentary committee; and
(b)the Speaker; and
(c)the Minister.
(4)The Speaker must table the report in the Legislative Assembly on the next sitting day after the Speaker receives the report.
(5)If the Speaker receives the report when the Legislative Assembly is not sitting, the Speaker must deliver the report and any accompanying document to the clerk of the Parliament.
(6)The clerk must authorise the report and any accompanying document to be published.
(7)A report published under subsection (6) is taken, for all purposes, to have been tabled in and published by order of the Legislative Assembly and is to be granted all the immunities and privileges of a report so tabled and published.
(8)The commission, before giving a report under subsection (1), may—
(a)publish or give a copy of the report to the publisher authorised to publish the report; and
(b)arrange for the prepublishing by the publisher of copies of the report for this section.

s 69 amd 2003 No. 8 s 17 sch; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Division 5 General

70Giving material to tribunal inquiring into judge’s misbehaviour or incapacity

(1)This section applies if a tribunal established under the Constitution of Queensland 2001, section 61 is inquiring into whether a Supreme Court judge or a District Court judge has misbehaved in a way that justifies removal from a judicial office or is incapable of performing the duties of a judicial office.
(2)At the tribunal’s request, the commission must give the tribunal all material in the commission’s possession relevant to the subject of the tribunal’s inquiry, including any relevant report of the commission.

s 70 sub 2001 No. 80 s 94 sch 2

71Giving other information to parliamentary committee

The commission may, with the parliamentary committee’s consent, give the parliamentary committee information, orally or in writing, whether or not at the request of the committee, that is not included in a report under section 69.

71AReport containing adverse comment

(1)This section applies if the commission proposes to make an adverse comment about a person in a report to be tabled in the Legislative Assembly, or published to the public, under this Act.
(2)The commission must not make the proposed adverse comment unless, before the report is prepared, the commission gives the person an opportunity to make submissions about the proposed adverse comment.
(3)If the person makes submissions and the commission still proposes to make the adverse comment, the commission must ensure the person’s submissions are fairly stated in the report.

s 71A ins 2018 No. 29 s 17

Chapter 3 Powers

Part 1 Particular powers to require information or attendance

Division 1 Particular powers in relation to units of public administration

Subdivision 1 Crime investigations and specific intelligence operations (crime)

ch 3 pt 1 div 1 sdiv 1 hdg amd 2013 No. 64 s 23

72Power to require information or documents

(1)This section applies only for a crime investigation or specific intelligence operation (crime).
(2)The chairperson may, by notice given to a person holding an appointment in a unit of public administration, require the person, within the reasonable time and in the way stated in the notice, to give an identified commission officer—
(a)an oral or written statement of information of a stated type relevant to a crime investigation or specific intelligence operation (crime) that is in the possession of the unit; or
(b)a stated document or other stated thing, or a copy of a stated document, relevant to a crime investigation or specific intelligence operation (crime) that is in the unit’s possession; or
(c)all documents of a stated type, or copies of documents of the stated type, containing information relevant to a crime investigation or specific intelligence operation (crime) that are in the unit’s possession.
(3)The chairperson may, by notice given to a person holding an appointment in a unit of public administration, require the person—
(a)to attend before an identified commission officer at a reasonable time and place stated in the notice; and
(b)at the time and place stated in the notice, to give to the officer a document or thing stated in the notice that—
(i)relates to the performance by the unit of the unit’s functions; and
(ii)is relevant to a crime investigation or specific intelligence operation (crime).
(4)The person must comply with a notice under subsection (2) or (3), unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)A person who fails to comply with a notice under subsection (2) or (3) does not commit an offence if—
(a)the information, document or thing is subject to privilege; or
(b)a provision of another Act prescribed under a regulation for this subsection excuses compliance with the requirement.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 77 and, if the requirement is not withdrawn, the person may be required to attend at a commission hearing to establish the claim.
(6)A person does not, by complying with a notice under subsection (2) or (3) in relation to the information, document or thing—
(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the information, document or thing; or
(b)incur any civil liability in relation to the information, document or thing.
(7)The notice must—
(a)state whether it relates to a crime investigation or a specific intelligence operation (crime); and
(b)for a notice requiring a statement of information—indicate briefly the general nature of the information by reference to a particular matter or to the type of information sought; and
(c)for a notice requiring the giving of a document or other thing—identify the document or thing sufficiently to enable the person to know what is required.

s 72 amd 2013 No. 64 s 24; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Subdivision 2 Corruption investigations

ch 3 pt 1 div 1 sdiv 2 hdg amd 2014 No. 21 s 94 (1) sch 1

73Power to enter etc.

(1)This section applies only for a corruption investigation.
(2)The chairperson may, by notice, authorise a commission officer to exercise powers under this section.
(3)A commission officer authorised under subsection (2) may—
(a)enter and search official premises; or
(b)inspect any document or thing found in or on official premises that is, or might be, relevant to the corruption investigation; or
(c)seize and remove from official premises any document or thing found in or on the premises that is relevant to a corruption investigation; or
(d)make copies of or extracts from a document mentioned in paragraph (b) or (c); or
(e)require a person holding an appointment in a unit of public administration to give the officer reasonable help to exercise the powers mentioned in paragraphs (b) to (d).
(4)A person does not, by allowing the exercise of a power under subsection (3) in relation to a document or thing—
(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the document or thing; or
(b)incur any civil liability in relation to the document or thing.
(5)However, the commission officer must not exercise a power under subsection (3)(b), (c) or (d) if the chief executive officer of the unit, or a person authorised by the chief executive officer for the purpose, claims that the document or thing is subject to privilege.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 80 and, if the requirement is not withdrawn, the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.
(6)A commission officer exercising powers under this section must, if asked by the occupier of the official premises, or a person acting for the occupier, produce for inspection by the occupier or person the chairperson’s authority under which the officer purports to act.
(7)In this section—
official premises means premises occupied or used by, or for the official purposes of, a unit of public administration, but does not include any part of premises that is occupied or used by or for the purposes of any State court.

s 73 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)–(2)

Division 2 Notice to produce or discover

Subdivision 1 Crime investigations, specific intelligence operations (crime) and witness protection function

ch 3 pt 1 div 2 sdiv 1 hdg amd 2006 No. 41 s 3 sch; 2013 No. 64 s 25

74Notice to produce for crime investigation, specific intelligence operation (crime) or witness protection function

(1)This section applies only for the following—
(a)a crime investigation;
(b)a specific intelligence operation (crime);
(c)the witness protection function.
(2)The chairperson may, by notice (notice to produce) given to a person, require the person, within the reasonable time and in the way stated in the notice, to give an identified commission officer a stated document or thing that the chairperson believes, on reasonable grounds, is relevant to a crime investigation, a specific intelligence operation (crime) or the witness protection function.
(2A)The notice to produce must state that it relates to—
(a)a crime investigation; or
(b)a specific intelligence operation (crime); or
(c)without specifying which, a crime investigation or the witness protection function.
(3)If the notice to produce is given in the context of a crime investigation or specific intelligence operation (crime), the notice may be given whether or not the commission is conducting a hearing for the investigation or operation.
(3A)If the notice to produce is given in the context of the witness protection function, the notice may be given only if the chairperson considers it is necessary to protect—
(a)the security of a protected person; or
(b)the integrity of the witness protection program or other witness protection activities of the commission.
(4)The notice to produce may require the immediate production of a document or thing to a stated commission officer if the chairperson believes, on reasonable grounds, that—
(a)for a notice given in the context of a crime investigation, delay in the production of the document may result in—
(i)its destruction, removal or concealment; or
(ii)serious prejudice to the conduct of the investigation; or
(b)for a notice given in the context of a specific intelligence operation (crime), delay in the production of the document may result in—
(i)its destruction, removal or concealment; or
(ii)serious prejudice to the conduct of the operation; or
(iii)the loss of an opportunity to obtain timely intelligence—
(A)in advance of a significant event; or
(B)that may help prevent a risk to public safety; or
(c)for a notice given in the context of the witness protection function, delay in the production of the document may threaten—
(i)the security of a protected person; or
(ii)the integrity of the witness protection program or other witness protection activities of the commission.
(5)The person must comply with the notice to produce, unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(6)A person does not, by complying with the notice to produce in relation to the document or thing—
(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the document or thing; or
(b)incur any civil liability in relation to the document or thing.
(7)A person who fails to comply with a notice does not commit an offence if the document or thing is subject to privilege.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 77 and, if the requirement is not withdrawn, the person may be required to attend at a commission hearing to establish the claim.
(8)A document or thing produced under this section is taken to have been seized under a warrant under part 2.

s 74 amd 2002 No. 68 ss 287, 283 sch 3; 2006 No. 41 s 5; 2013 No. 64 s 26; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1); 2016 No. 62 s 39

Subdivision 1A Confiscation related investigations

ch 3 pt 1 div 2 sdiv 1A hdg ins 2002 No. 68 s 288

74ANotice to produce for confiscation related investigation

(1)This section applies only for a confiscation related investigation.
(2)The chairperson may, by notice (notice to produce) given to a person, require the person, within the reasonable time and in the way stated in the notice, to give an identified commission officer a stated document or thing that the chairperson believes, on reasonable grounds, is relevant to a confiscation related investigation.
(3)The notice to produce may require the immediate production of a document or thing to a stated commission officer if the chairperson believes, on reasonable grounds, that delay in the production of the document or thing may result in—
(a)its destruction, removal or concealment; or
(b)serious prejudice to the conduct of the investigation.
(4)The person must comply with the notice to produce, unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)A person does not, by complying with the notice to produce in relation to the document or thing—
(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the document or thing; or
(b)incur any civil liability in relation to the document or thing.
(6)A person who fails to comply with a notice does not commit an offence if the document or thing is subject to privilege.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 78B and, if the requirement is not withdrawn, the chairperson may apply to a Supreme Court judge to decide the claim.
(7)A document produced under this section is taken to have been seized under a warrant under part 2.

s 74A ins 2002 No. 68 s 288

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Subdivision 2 Corruption investigations and specific intelligence operations (corruption)

ch 3 pt 1 div 2 sdiv 2 hdg amd 2013 No. 64 s 27; 2014 No. 21 s 94 (1) sch 1

75Notice to discover information

(1)This section applies—
(a)only for a corruption investigation or a specific intelligence operation (corruption); and
(b)only if the chairperson reasonably suspects that a person, whether or not the person holds an appointment in a unit of public administration, has information, or possession of a document or thing, relevant to the investigation or operation.
(2)The chairperson may, by notice (notice to discover) given to the person, require the person, within the reasonable time and in the way stated in the notice, to give an identified commission officer—
(a)an oral or written statement of information of a stated type relevant to the investigation or operation that is in the person’s possession; or
(b)a stated document or other stated thing, or a copy of a stated document, relevant to the investigation or operation that is in the person’s possession; or
(c)all documents of a stated type, or copies of documents of the stated type, containing information relevant to the investigation or operation that are in the person’s possession.
(3)The person must comply with the notice.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)A person does not, by complying with the notice to discover in relation to the information, document or thing—
(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the information, document or thing; or
(b)incur any civil liability in relation to the information, document or thing.
(5)A person who fails to comply with the notice does not commit an offence if the information, document or thing—
(a)is subject to privilege; or
(b)is a secret process of manufacture applied by the person solely for a lawful purpose.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 80 and, if the requirement is not withdrawn, the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.
(6)The chairperson may require the person to give an oral statement of information under oath and a written statement of information by way of statutory declaration.
(7)The notice to discover must—
(a)state whether it relates to a corruption investigation or a specific intelligence operation (corruption); and
(b)if it requires a statement of information—indicate briefly the general nature of the information the person is suspected of having, by reference to a particular matter or to the type of information sought; and
(c)if it requires the giving of a document or other thing—identify the document or thing sufficiently to enable the person to know what is required.
(8)The notice—
(a)may provide that its requirement may be met by some person acting for the person to whom it is directed; and
(b)may specify the person or class of person who may so act.

s 75 amd 2002 No. 68 s 283 sch 3; 2009 No. 24 s 1400; 2013 No. 64 s 28; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Division 2A Further power to require production of documents or things at hearing

ch 3 pt 1 div 2A hdg ins 2006 No. 41 s 6

75AApplication of div 2A

This division applies only for a crime investigation, a corruption investigation or an intelligence function hearing.

s 75A ins 2006 No. 41 s 6

amd 2013 No. 45 s 12; 2014 No. 21 s 94 (1) sch 1

75BPower to require immediate production

(1)The presiding officer at a commission hearing may require a witness at the hearing to immediately produce a stated document or thing that the presiding officer believes, on reasonable grounds, is—
(a)in the witness’s possession; and
(b)relevant to the investigation.

Note—

For a reasonable excuse for not producing the document or thing, see section 185 for a crime investigation or intelligence function hearing and section 188 for a corruption investigation.
(2)The presiding officer may adjourn the hearing to allow the person to comply with the requirement.
(3)The person does not, by complying with the requirement—
(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the document or thing; or
(b)incur any civil liability in relation to the document or thing.

s 75B ins 2006 No. 41 s 6

amd 2013 No. 45 s 13; 2014 No. 21 s 94 (1) sch 1

Division 3 Procedure on claim of privilege

Subdivision 1 Crime investigations and specific intelligence operations (crime)

ch 3 pt 1 div 3 sdiv 1 hdg amd 2013 No. 64 s 29

76Application of sdiv 1

This subdivision applies if a person claims privilege under section 72 or 74 in relation to information or a document or thing.

s 76 amd 2009 No. 48 s 131

77Commission officer to consider claim

The commission officer must consider the claim and may withdraw the requirement in relation to which the claim is made or advise the person that the person may be required to attend before a commission hearing to establish the claim.

Note—

If the requirement is not withdrawn, the person may be given an attendance notice under section 82 to attend at a commission hearing to establish the claim.

78Procedure for documents subject to claim of privilege

(1)If—
(a)the claim is made in relation to a document or thing the person is required to give or produce to the commission; and
(b)the person acknowledges that the document or thing is in the person’s possession; and
(c)the commission officer does not withdraw the requirement;

the commission officer must require the person to immediately seal the document or thing and give it to the commission officer for safe keeping.

(2)The person must immediately seal the document or thing and give it to the commission officer for safe keeping.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)The commission officer must—
(a)give the person a receipt for the sealed document or thing; and
(b)place it in safe custody at the commission’s place of business at the earliest reasonable opportunity.
(4)A person must not open the sealed document or thing unless authorised to open it under this Act or a court order.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)The commission must return any sealed document or thing given to the commission officer by a person under subsection (2) within 7 days if the commission has not by the end of that period given the person an attendance notice under section 82(1)(a)(iii).

s 78 amd 2002 No. 68 s 283 sch 3; 2009 No. 48 s 132

Subdivision 1A Confiscation related investigations

ch 3 pt 1 div 3 sdiv 1A hdg ins 2002 No. 68 s 289

78AApplication of sdiv 1A

This subdivision applies if a person claims privilege under section 74A in relation to a document or thing.

s 78A ins 2002 No. 68 s 289

amd 2009 No. 48 s 131

78BCommission officer to consider claim of privilege

The commission officer must consider the claim and may withdraw the requirement in relation to which the claim is made or advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 195B.

s 78B ins 2002 No. 68 s 289

78CProcedure for documents subject to claim of privilege

(1)If—
(a)the claim is made in relation to a document or thing the person is required to give or produce to the commission; and
(b)the document or thing is in the person’s possession or the person acknowledges that the document or thing is in the person’s possession; and
(c)the commission officer does not withdraw the requirement;

the commission officer must require the person to immediately seal the document or thing and give it to the commission officer for safe keeping.

(2)The person must immediately seal the document or thing (the sealed evidence) under the supervision of the commission’s representative.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)The person and the commission’s representative must immediately deliver the sealed evidence to a registrar of the Supreme Court to be held in safe custody.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)The registrar must keep the sealed evidence in safe custody until—
(a)application is made to a Supreme Court judge to decide the claim of privilege; or
(b)the end of 3 court days after the day on which the document or thing is given to the registrar, if an application has not been made under paragraph (a); or
(c)the registrar is told by the person and commission representative that agreement has been reached on the disposal of the sealed evidence.
(5)The registrar must—
(a)if an application is made to a Supreme Court judge to decide the claim of privilege—dispose of the sealed evidence in the way ordered by the judge; or
(b)if an application is not made by the end of 3 court days after the day on which the document or thing is given to the registrar—return the sealed evidence to the person; or
(c)if the person and commission representative give the registrar notice that an agreement on the disposal of the sealed evidence has been reached—dispose of the sealed evidence in the way agreed.

s 78C ins 2002 No. 68 s 289

Subdivision 2 Corruption investigations and specific intelligence operations (corruption)

ch 3 pt 1 div 3 sdiv 2 hdg amd 2013 No. 64 s 30; 2014 No. 21 s 94 (1) sch 1

79Application of sdiv 2

This subdivision applies if a person claims privilege under section 73, 75, 94 or 111 in relation to information or a document or thing.

s 79 amd 2009 No. 48 s 131

80Commission officer to consider claim of privilege

The commission officer must consider the claim and may withdraw the requirement in relation to which the claim is made or advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.

s 80 amd 2002 No. 68 s 283 sch 3

81Procedure for documents subject to claim of privilege

(1)If—
(a)the claim is made in relation to a document or thing the person is required to give or produce to the commission; and
(b)the document or thing is in the person’s possession or the person acknowledges that the document or thing is in the person’s possession; and
(c)the commission officer does not withdraw the requirement;

the commission officer must require the person to immediately seal the document or thing and give it to the commission officer for safe keeping.

(2)The person must immediately seal the document or thing (the sealed evidence) under the supervision of the commission’s representative.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)The person and the commission’s representative must immediately deliver the sealed evidence to a registrar of the Supreme Court to be held in safe custody.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)The registrar must keep the sealed evidence in safe custody until—
(a)application is made to a Supreme Court judge to decide the claim of privilege; or
(b)the end of 3 court days after the day on which the document or thing is given to the registrar, if an application has not been made under paragraph (a); or
(c)the registrar is told by the person and commission representative that agreement has been reached on the disposal of the sealed evidence.
(5)The registrar must—
(a)if an application is made to a Supreme Court judge to decide the claim of privilege—dispose of the sealed evidence in the way ordered by the judge; or
(b)if an application is not made by the end of 3 court days after the day on which the document or thing is given to the registrar—return the sealed evidence to the person; or
(c)if the person and commission representative give the registrar notice that an agreement on the disposal of the sealed evidence has been reached—dispose of the sealed evidence in the way agreed.

s 81 amd 2002 No. 68 s 283 sch 3

Division 4 Notice to attend

82Notice to attend hearing—general

(1)The chairperson may issue a notice (attendance notice) requiring a person to attend at a commission hearing at a stated time and place for 1 or more of the following purposes until excused—
(a)for a hearing in relation to a crime investigation or corruption investigation—
(i)to give evidence; or
(ii)to produce a stated document or thing; or
(iii)to establish a reasonable excuse or claim of privilege under section 72 or 74;
(b)for a witness protection function hearing—to establish the reasonable excuse or claim of privilege the subject of the hearing;
(c)for an intelligence function hearing—
(i)to give evidence; or
(ii)to produce a stated document or thing.
(2)An attendance notice must state—
(a)whether it is issued in the context of—
(i)a crime investigation; or
(ii)without specifying which, a crime investigation or the witness protection function; or
(iii)a corruption investigation; or
(iv)the intelligence function; and
(b)so far as reasonably practicable, the general nature of the matters about which the person may be questioned at the commission hearing.
(3)A person does not, by giving evidence or producing a stated document or thing at a hearing in compliance with an attendance notice—
(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the evidence, document or thing; or
(b)incur any civil liability in relation to the evidence, document or thing.
(4)A failure to comply with subsection (2)(b) does not prevent the commission from questioning the person about—
(a)for an attendance notice issued in the context of a crime investigation or corruption investigation—any matter that relates to an investigation; or
(b)for an attendance notice issued in the context of a witness protection function hearing—any matter that relates to the matter for which the attendance notice was issued; or
(c)for an attendance notice issued in the context of an intelligence function hearing—any matter that relates to the matter for which the attendance notice was issued.
(5)A person given an attendance notice must not—
(a)fail, without reasonable excuse, to attend as required by the notice; or
(b)fail, without reasonable excuse, to continue to attend as required by the presiding officer until excused from further attendance.

Maximum penalty—200 penalty units or 5 years imprisonment.

(6)If the commission hearing is being held under an authorisation under section 55D, the chairperson may issue an attendance notice requiring a person to attend immediately at the commission hearing at a stated place.
(7)This section, other than subsection (6), is subject to section 85.

s 82 amd 2002 No. 68 s 283 sch 3; 2006 No. 41 s 7; 2013 No. 45 s 14; 2013 No. 64 s 31; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1); 2016 No. 62 s 40

83Notice to attend hearing—prisoner, patient or forensic disability client

(1)If the attendance before the commission of a prisoner is required, the chairperson may, by notice given to the chief executive (corrective services), direct that chief executive to produce the prisoner named in the notice at a stated time and place.
(2)If the attendance before the commission of a patient detained in an authorised mental health service under the Mental Health Act 2016 is required, the chairman may, by notice given to the administrator of the service, direct the administrator to produce the patient named in the notice at a stated time and place.
(2A)If the attendance before the commission of a forensic disability client detained in the forensic disability service is required, the chairperson may, by notice given to the forensic disability service administrator, direct the forensic disability service administrator to produce the client named in the notice at a stated time and place.
(3)A direction mentioned in subsection (1), (2) or (2A) is lawful authority to the person to whom it is given for production of the prisoner, patient or forensic disability client as directed.
(4)The person to whom the direction is given must comply with the direction.
(5)A prisoner, patient or forensic disability client produced under this section remains in the custody of the chief executive (corrective services), hospital administrator or forensic disability service administrator.
(6)In this section—
administrator, of an authorised mental health service, see the Mental Health Act 2016, schedule 3.
authorised mental health service see the Mental Health Act 2016, schedule 3.
forensic disability client means a forensic disability client within the meaning of the Forensic Disability Act 2011.
forensic disability service means the forensic disability service within the meaning of the Forensic Disability Act 2011.
forensic disability service administrator means the administrator within the meaning of the Forensic Disability Act 2011.
Mental Health Act ...
patient ...
prisoner means a person in the custody of the chief executive (corrective services).

s 83 amd 2011 No. 13 s 170; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1); 2016 No. 5 s 923 sch 4

Division 5 Confidential documents

84Notice may be a confidential document

(1)A notice given by the chairperson under this part may provide that it is a confidential document.
(2)A person must not disclose the existence of a confidential document to anyone else, unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)It is a reasonable excuse for a person to disclose the existence of a confidential document if—
(a)the disclosure is made for the purpose of—
(i)seeking legal advice in relation to the document or an offence against subsection (2); or
(ii)obtaining information in order to comply with the document; or
(iii)making a complaint to the parliamentary committee about the document; or
(iv)the administration of this Act; and
(b)the person informs the person to whom the disclosure is made that it is an offence to disclose the existence of the document to anyone else unless the person has a reasonable excuse.

s 84 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Division 6 Restriction on power

85Notices requiring immediate attendance may be issued only by or with the approval of a Supreme Court judge

(1)The chairperson may issue an attendance notice requiring a person to attend immediately at a commission hearing at a stated place only with the approval of a Supreme Court judge.
(1A)If the attendance notice is to be issued in the context of a witness protection function hearing, the chairperson must give the judge a certificate stating that the notice relates to a witness protection function hearing.
(2)The judge may approve the issue of the attendance notice only if the judge is satisfied, on reasonable grounds, that—
(a)for a notice issued in the context of a crime investigation or corruption investigation, delay in attendance might result in—
(i)the commission of an offence; or
(ii)an offender or suspected offender absconding; or
(iii)the loss or destruction of evidence; or
(iv)serious prejudice to the conduct of an investigation being conducted by the commission; or
(b)for a notice issued in the context of a witness protection function hearing, delay in attendance and resolution of the reasonable excuse or claim of privilege the subject of the hearing might threaten—
(i)the security of a protected person; or
(ii)the integrity of the witness protection program or other witness protection activities of the commission; or
(c)for a notice issued in the context of an intelligence function hearing under an authorisation under section 55A, delay in attendance might result in the loss of an opportunity to obtain timely intelligence—
(i)in advance of a significant event; or
(ii)that may help prevent a risk to public safety.

Note—

An attendance notice issued under section 82(6) that requires the immediate attendance of someone at a commission hearing does not require the court’s approval under this section.
(3)Subsection (3A) applies to an attendance notice issued in the context of a crime investigation or corruption investigation or the performance of the intelligence function under an authorisation under section 55A.
(3A)The notice need not state the general nature of the matters about which the person may be questioned if the chairperson is satisfied that, in the particular circumstances of the investigation or the performance of the function, stating the matters would prejudice the effectiveness of the investigation or the performance of the function.
(4)For an attendance notice to be issued in the context of a witness protection function hearing, nothing in this section requires the chairperson to give the judge—
(a)information about the identity or former identity of a protected person; or
(b)details about the protection given to a protected person or the reasons for the protection; or
(c)information about the identity of any person if the information would threaten—
(i)the security of a protected person; or
(ii)the integrity of the witness protection program or other witness protection activities of the commission.
(5)A certificate mentioned in subsection (1A) is evidence of the matters stated in it.

s 85 amd 2006 No. 41 s 8; 2013 No. 45 s 15; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Part 2 Search warrants generally

85ADefinitions for part

In this part—
access information means information that is necessary for a person to access and read information stored electronically on a storage device.
employee includes a person who works under a contract for services.
issuer see section 86(6).
relevant evidence means—
(a)evidence of the commission of major crime or corruption; or
(b)evidence that may be confiscation related evidence.
specified person means a person who—
(a)is—
(i)reasonably suspected of having committed an offence for which a search warrant was issued; or
(ii)the owner of a storage device; or
(iii)in possession of a storage device; or
(iv)an employee of the owner or person in possession of a storage device; or
(v)a person who uses or has used a storage device; or
(vi)a person who is or was a system administrator for the computer network of which a storage device forms or formed a part; and
(b)has a working knowledge of—
(i)how to access and operate a storage device or a computer network of which the storage device forms or formed a part; or
(ii)measures applied to protect information stored on a storage device.
storage device means a device on which information may be stored electronically, including a computer.
stored, on a storage device, includes accessible through the device.

s 85A ins 2016 No. 62 s 42

86Search warrant applications

(1)An authorised commission officer may apply for a warrant to enter and search a place (search warrant) to obtain—
(a)evidence of the commission of major crime or corruption being investigated by the commission; or
(b)evidence that may be confiscation related evidence.
(2)The application may be made to a magistrate or Supreme Court judge, unless the application must be made to a Supreme Court judge under subsection (3).
(3)The application must be made to a Supreme Court judge if, when entering and searching the place, it is intended to do anything that may cause structural damage to a building.
(4)An application under this section—
(a)must be sworn and state the grounds on which the warrant is sought; and
(b)must fully disclose all matters, of which the authorised commission officer is aware, both favourable and adverse to the issuing of the warrant sought; and
(c)must include information required under a regulation about any search warrants issued within the previous year in relation to the place or a person suspected of being involved in—
(i)the commission of the major crime or corruption to which the application relates; or
(ii)the confiscation related activity to which the application relates; or
(iii)the qualifying offence, or suspected qualifying offence, to which the application relates.
(5)Subsection (4)(c) applies only to—
(a)information kept in a register that the commission officer may inspect; and
(b)information the officer otherwise actually knows.
(6)The magistrate or judge (the issuer) may refuse to consider the application until the commission officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.

Example—

The issuer may require additional information supporting the application to be given by statutory declaration.

s 86 amd 2002 No. 68 s 290; 2009 No. 48 s 133; 2013 No. 21 s 7; 2014 No. 21 s 94 (1) sch 1

87Issue of search warrant

(1)The issuer may issue the search warrant only if satisfied there are reasonable grounds for suspecting evidence of the commission of major crime or corruption, or confiscation related evidence—
(a)is at the place; or
(b)is likely to be taken to the place within the next 72 hours.
(2)The issuer may provide in the warrant that the warrant is a confidential document.

s 87 amd 2002 No. 68 s 291; 2014 No. 21 s 94 (1) sch 1

88Order in search warrants about documents

The issuer may, in the search warrant, order the person in possession of documents at the place to give to a commission officer all documents of a type stated in the warrant.

88AOrder in search warrant about information necessary to access information stored electronically

(1)The issuer may, in the search warrant, order a specified person to do any of the following in relation to a storage device in the person’s possession, or to which the person has access, at the place—
(a)give a commission officer access to the device;
(b)give a commission officer access information and any other information or assistance necessary for the officer to gain access to information stored on the device;
(c)allow a commission officer to—
(i)use access information to gain access to information stored on the device; and
(ii)examine information stored on the device to find out whether it may be relevant evidence; and
(iii)make a copy of information stored on the device that may be relevant evidence, including by using another storage device; and
(iv)convert information stored on the device that may be relevant evidence into documentary form or another form that enables it to be understood by a commission officer.
(2)The issuer may also, in the search warrant, order that, if the storage device is seized and removed from the place, a specified person is required to do a thing mentioned in subsection (1)(b) or (c) after the device has been removed.
(3)An order made under subsection (2) must state—
(a)the time at or by which the specified person must give a commission officer the information or assistance; and
(b)the place where the specified person must provide the information or assistance; and
(c)any conditions to which the provision of the information or assistance is subject.

s 88A ins 2016 No. 62 s 43

88BOrder for access information after storage device has been seized

(1)This section applies if—
(a)a storage device is seized under the search warrant and removed from the place; and
(b)either—
(i)the search warrant did not contain an order made under section 88A(1) or (2); or
(ii)the search warrant contained an order made under section 88A(1) or (2) but further access information is required for a commission officer to gain access to information stored on the device that may be relevant evidence.
(2)On the application of an authorised commission officer, a magistrate or a judge may make an order requiring a specified person to do a thing mentioned in section 88A(1)(b) or (c).
(3)An application made under subsection (2)—
(a)may be made at any time after the warrant has been issued; and
(b)must be made—
(i)if the search warrant was issued by a judge—to a Supreme Court judge; or
(ii)if the search warrant was issued by a magistrate—to a magistrate.
(4)An order made under subsection (2) must state—
(a)the time at or by which the specified person must give a commission officer the information or assistance; and
(b)the place where the specified person must provide the information or assistance; and
(c)any conditions to which the provision of the information or assistance is subject; and
(d)that failure, without reasonable excuse, to comply with the order may be dealt with under the Criminal Code, section 205A.
(5)A magistrate or a judge may make an order under subsection (2) only if satisfied there are reasonable grounds for suspecting that information stored on the storage device may be relevant evidence.

s 88B ins 2016 No. 62 s 43

88CCompliance with order about information necessary to access information stored electronically

A person is not excused from complying with an order made under section 88A(1) or (2) or 88B(2) on the ground that complying with it may tend to incriminate the person or make the person liable to a penalty.

s 88C ins 2016 No. 62 s 43

89Search warrant may be a confidential document

(1)If the search warrant provides that it is a confidential document, a person must not disclose the existence of the warrant to anyone else unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(2)It is a reasonable excuse for a person to disclose the existence of the warrant if—
(a)the disclosure is made—
(i)for the purpose of seeking legal advice in relation to the warrant or an offence against subsection (1); or
(ii)for the purpose of obtaining information in order to comply with the warrant; or
(iii)for the purpose of making a complaint to the commission or the parliamentary committee about the warrant; or
(iv)in the course of the administration of this Act; and
(b)the person informs the person to whom the disclosure is made that it is an offence to disclose the existence of the warrant to anyone else unless the person has a reasonable excuse.

90When search warrant ends

(1)A search warrant issued because there are reasonable grounds for suspecting there is evidence of the commission of major crime or corruption or confiscation related evidence at a place ends 7 days after it is issued.
(2)A search warrant issued because there are reasonable grounds for suspecting evidence of the commission of major crime or corruption or confiscation related evidence is likely to be taken to a place within the next 72 hours ends 72 hours after it is issued.

s 90 amd 2002 No. 68 s 292; 2014 No. 21 s 94 (1) sch 1

91What search warrant must state

(1)A search warrant must state—
(a)that a stated commission officer or all commission officers may enter the place and exercise search warrant powers at the place; and
(b)brief particulars of the major crime, corruption, confiscation related activity, qualifying offence or suspected qualifying offence for which the warrant is issued; and
(c)the evidence, if any, that may be seized under the warrant; and
(d)if the warrant is to be executed at night, the hours when the place may be entered; and
(e)the day and time the warrant ends.
(2)If a magistrate or a judge makes an order under section 88 or 88A(1) or (2), the warrant must also state that failure, without reasonable excuse, to comply with the order may be dealt with under—
(a)for section 88—the Criminal Code, section 205; or
(b)for section 88A(1) or (2)—the Criminal Code, section 205A.

s 91 amd 2002 No. 68 s 293; 2013 No. 21 s 8; 2014 No. 21 s 94 (1) sch 1; 2016 No. 62 s 44

92Powers under search warrants

(1)An authorised commission officer has the following powers under a search warrant (search warrant powers)—
(a)power to enter the place stated in the warrant (the relevant place) and to stay on it for the time reasonably necessary to exercise powers authorised under the warrant and this section;
(b)power to pass over, through, along or under another place to enter the relevant place;
(c)power to search the relevant place for anything sought under the warrant;
(d)power to open anything in the relevant place that is locked;
(e)power to detain anyone at the relevant place for the time reasonably necessary to find out if the person has anything sought under the warrant;
(f)power to detain a person found at the relevant place for the time taken to search the place if the officer reasonably suspects the person has been involved in the unlawful activity, the confiscation related activity or the qualifying offence;
(g)power to dig up land;
(h)power to seize a thing found at the relevant place, or on a person found at the relevant place, that the officer reasonably suspects may be evidence of the commission of the unlawful activity or an indictable offence or confiscation related evidence;
(i)power to muster, hold and inspect any animal the officer reasonably suspects may be evidence of the commission of the unlawful activity or confiscation related evidence;
(j)power to photograph anything the officer reasonably suspects may be evidence of the commission of the unlawful activity or confiscation related evidence;
(k)power to remove wall or ceiling linings or floors of a building, or panels of a vehicle, to search for evidence of the commission of the unlawful activity or confiscation related evidence.
(2)Also, an authorised commission officer has the following powers if authorised under a search warrant (also search warrant powers)—
(a)power to search anyone found at the relevant place for anything sought under the warrant that can be concealed on the person;
(b)power to do whichever of the following is authorised—
(i)to search anyone or anything in or on or about to board, or be put in or on, a vehicle;
(ii)to take a vehicle to, and search for evidence of the commission of the unlawful activity that may be concealed in a vehicle at, a place with appropriate facilities for searching the vehicle.
(3)Power to do anything at the relevant place that may cause structural damage to a building may be exercised only if the warrant—
(a)authorises the exercise of the power; and
(b)is issued by a Supreme Court judge.
(4)In this section—
qualifying offence, for a search warrant, means the qualifying offence, or suspected qualifying offence, to which the warrant relates.
unlawful activity, for a search warrant, means the major crime or corruption to which the warrant relates.

s 92 amd 2002 No. 68 s 294; 2013 No. 21 s 9; 2014 No. 21 s 94 (1) sch 1

93Copy of search warrant to be given to occupier

(1)If a commission officer executes a search warrant for a place that is occupied, the officer must—
(a)if the occupier of the place is present—give to the occupier a copy of the warrant and a statement summarising the person’s rights and obligations under the warrant; or
(b)if the occupier is not present—leave the copy in a conspicuous place.
(2)However, if the search warrant is a confidential document and the occupier is not present, the officer—
(a)is not required to comply with subsection (1)(b); and
(b)must give to the occupier a copy of the warrant and a statement summarising the person’s rights and obligations under the warrant as soon as practicable after executing the warrant.
(3)If the officer reasonably suspects giving the person the copy may frustrate or otherwise hinder the investigation or another investigation, the officer may delay complying with subsection (1), but only for so long as—
(a)the officer continues to have the reasonable suspicion; and
(b)that officer or another officer involved in the investigation remains in the vicinity of the place to keep the place under observation.

94Limitation on search warrant powers for corruption investigations

(1)This section applies if—
(a)an authorised commission officer who is exercising search warrant powers for a corruption investigation wishes to inspect, photograph or seize a document or thing under the warrant; and
(b)a person who is entitled to claim the privilege claims the document or thing is subject to privilege.
(2)The authorised commission officer must consider the claim and may withdraw the requirement in relation to which the claim is made or advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.
(3)If the commission officer does not withdraw the requirement, section 81 applies.
(4)In this section—
privilege does not include privilege on the ground of confidentiality.

s 94 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1

Part 3 Search of place to prevent loss of evidence

95Application of part

This part applies only for a crime investigation.

96Search to prevent loss of evidence

(1)This section applies if an authorised commission officer reasonably suspects—
(a)a thing at or about a place, or in the possession of a person at or about a place, is evidence of the commission of major crime being investigated by the commission; and
(b)unless the place is immediately entered and searched—
(i)the evidence may be concealed or destroyed; or
(ii)the forensic value of the evidence may be diminished.
(2)An authorised commission officer may enter the place and exercise search warrant powers, other than power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.

97Post-search approval

(1)As soon as reasonably practicable after exercising powers under section 96, the authorised commission officer must apply to a magistrate in writing for an order approving the search (post-search approval order).
(2)The application must be sworn and state the grounds on which it is sought.
(3)The applicant need not appear at the consideration of the application, unless the magistrate otherwise requires.
(4)The magistrate may refuse to consider the application until the authorised commission officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

98Making of post-search approval order

(1)The magistrate may make a post-search approval order only if satisfied the search was conducted in the context of a crime investigation and either of the following apply—
(a)in the circumstances existing before the search, there were grounds for the authorised commission officer to reasonably suspect—
(i)a thing at or about the place, or in the possession of a person at or about the place, was evidence of the commission of major crime being investigated by the commission; and
(ii)unless the place was immediately entered and searched—
(A)the evidence may have been concealed or destroyed; or
(B)the forensic value of the evidence may have been diminished;
(b)having regard to the nature of the evidence found during the search, it is in the public interest to make the order.
(2)The magistrate may also make an order under section 118 or 119, whether or not a post-search approval order is made.

99Appeal

(1)Within 28 days after either of the following happens, the authorised commission officer may appeal against the order to the Supreme Court—
(a)a magistrate refuses to make a post-search approval order;
(b)a magistrate makes an order under section 98(2).
(2)If the authorised commission officer appeals, the officer must retain any thing seized until the appeal is decided.
(3)The court may make an order under section 118 or 119, whether or not the appeal is upheld.

Part 4 Searching persons

Division 1 General provisions

100General provisions about searches of persons

(1)An authorised commission officer lawfully searching a person under this Act must—
(a)ensure, as far as reasonably practicable, the way the person is searched causes minimal embarrassment to the person; and
(b)take reasonable care to protect the person’s dignity; and
(c)unless an immediate and more thorough search of the person is necessary, restrict a search of the person in public to an examination of outer clothing; and
(d)if a more thorough search of the person is necessary but does not have to be conducted immediately, conduct a more thorough search of the person out of public view, for example, in a room of a shop or, if a police station is nearby, in the police station.

Example for paragraph (c)—

A more thorough search may be immediately necessary because the officer reasonably suspects the person to be searched may have a bomb strapped to his or her body or has a concealed firearm or knife.
(2)Unless an immediate search is necessary, the person conducting the search must be either—
(a)an authorised commission officer of the same sex as the person to be searched; or
(b)if there is no authorised commission officer of the same sex available to search the person, someone acting at the direction of an authorised commission officer and of the same sex as the person to be searched; or
(c)a doctor acting at the direction of an authorised commission officer.

Example—

An immediate search by a person of the opposite sex may be necessary because the person searched has a concealed firearm or knife.

101Taking a person to another place for search

(1)If it is impracticable to search for a thing that may be concealed on a person where the person is, the authorised commission officer may take the person to a place with adequate facilities for conducting the search.

Example—

To search a person out of public view and cause minimal embarrassment to the person, a person in a casino may be taken to another room in the casino.
(2)Before taking a person to another place for a search because it is impracticable to search for a thing that may be concealed on the person where the person is, the authorised commission officer must consider the following—
(a)whether the thing sought may be concealed on the person;
(b)whether, for an effective search, the search should be conducted somewhere else;
(c)the need to protect the dignity of the person.

102Limitation on period of detention for search

An authorised commission officer who detains a person for a search must not detain the person any longer than is reasonably necessary for the purpose.

103Dealing with persons who obstruct search of person

(1)If a person (the obstructing person) obstructs an authorised commission officer conducting a lawful search of the obstructing person or another person, an authorised commission officer must, if reasonably practicable—
(a)warn the obstructing person it is an offence to obstruct an authorised commission officer in the performance of the officer’s duties; and
(b)give the obstructing person a reasonable opportunity to stop obstructing the search.
(2)It may not be reasonably practicable for an authorised commission officer to comply with subsection (1) if, for example—
(a)there is an immediate or sudden need to use force because, for example, the person is struggling with an authorised commission officer; or
(b)there is a reasonable expectation that, if warned, the person may immediately dispose of, or destroy, evidence; or
(c)an immediate search is necessary to protect the safety of any person.

Division 2 Searches involving removal of clothing

104Application of division

This division applies only for a crime investigation.

105Removal of clothing for search

An authorised commission officer conducting the search of a person under this Act may require a person to remove all items of clothing or all items of outer clothing from—
(a)if the person is a female—the upper or lower part of the body; or
(b)if the person is a male—the lower part of the body.

106Protecting the dignity of persons during search

(1)If reasonably practicable—
(a)the authorised commission officer must, before conducting the search—
(i)tell the person he or she will be required to remove clothing during the search; and
(ii)tell the person why it is necessary to remove the clothing; and
(iii)ask for the person’s cooperation; and
(b)the person must be given the opportunity to remain partly clothed during the search, for example, by allowing the person to dress his or her upper body before being required to remove items of clothing from the lower part of the body.
(2)The search must be conducted in a way providing reasonable privacy for the person.

Example for subsection (2)—

Reasonable privacy may be provided by conducting the search in a way that ensures, as far as reasonably practicable, the person being searched can not be seen by anyone of the opposite sex and by anyone who does not need to be present.
(3)Also, the search must be conducted as quickly as reasonably practicable and the person searched must be allowed to dress as soon as the search is finished.
(4)A regulation may prescribe other requirements and procedures for ensuring the effective carrying out of the search.

107Special requirements for searching children and persons with impaired capacity

(1)If a person to be searched is a child, or a person with impaired capacity, who may not be able to understand the purpose of the search, the authorised commission officer must conduct the search in the presence of a support person.
(2)However, the officer may search the person in the absence of a support person if the officer reasonably suspects—
(a)delaying the search is likely to result in evidence being concealed or destroyed; or
(b)an immediate search is necessary to protect the safety of a person.

108If video cameras monitor place where person is searched

(1)If a video camera monitors the area where the person is searched, the authorised commission officer must, unless the person viewing the monitor is an authorised commission officer of the same sex as the person being searched—
(a)ensure the camera is turned off; or
(b)conduct the search out of view of the camera.
(2)If the video camera is not turned off, a recording of the search must not be shown to anyone other than—
(a)the person searched or his or her lawyer; or
(b)a doctor treating the person searched; or
(c)a person deciding if a proceeding is to be started against the person for an offence; or
(d)an authorised commission officer investigating an offence involving the person; or
(e)an authorised commission officer, police officer, lawyer, public prosecutor or witness involved in a proceeding against the person; or
(f)a court.

Part 5 Seizing property

109Definitions for pt 5

In this part—
court includes QCAT exercising its jurisdiction under this Act.

s 109 def court amd 2009 No. 48 s 134

prosecution includes starting a disciplinary proceeding for corrupt conduct before QCAT.

s 109 def prosecution sub 2009 No. 24 s 1401

s 109 amd 2014 No. 21 s 94 (1) sch 1

110General power to seize evidence—crime investigation

(1)This section applies if a commission officer conducting a crime investigation lawfully enters a place, or is at a public place, and finds at the place a thing the officer reasonably suspects is evidence of the commission of major crime that the commission is investigating.
(2)The officer may seize the thing, whether or not as evidence under a warrant and, if the place is entered under a warrant, whether or not the warrant was issued for the major crime.
(3)Also, the officer may—
(a)photograph the thing seized or the place from which the thing was seized; and
(b)stay at the place and re-enter it for the time reasonably necessary to remove the thing from the place.
(4)If the thing is seized at a place entered under a covert search warrant, section 117 applies as if the thing had been seized under the warrant.
(5)Otherwise, sections 113 to 115 apply as if the thing had been seized under a warrant under part 2.

110AGeneral power to seize evidence—confiscation related investigation

(1)This section applies if a commission officer conducting a confiscation related investigation who lawfully enters a place under a search warrant—
(a)finds at the place a thing the officer reasonably suspects is—
(i)confiscation related evidence for any confiscation related investigation being conducted by the commission; or
(ii)admissible evidence of an indictable offence against the law of the Commonwealth or of any State; and

Note—

Subparagraph (ii) deals with the possibility that other evidence of offences may be found at the place even though entry is made for the purpose of finding confiscation related evidence.
(b)reasonably believes that it is necessary to seize the thing—
(i)to prevent its loss, destruction, mutilation or concealment; or
(ii)to prevent its use for a confiscation related activity or for committing an offence of a kind mentioned in paragraph (a).
(2)The officer may seize the thing.
(3)However, if a person who is entitled to claim the privilege claims the document or thing is subject to privilege, the commission officer must consider the claim and may—
(a)withdraw the requirement in relation to which the claim is made; or
(b)advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 195B.
(4)If a claim of privilege is made and the commission officer does not withdraw the requirement, section 78C applies.
(5)In this section—
privilege does not include privilege on the ground of confidentiality.

s 110A ins 2002 No. 68 s 295

amd 2013 No. 21 s 10

111General power to seize evidence—corruption investigation

(1)This section applies if a commission officer conducting a corruption investigation who lawfully enters a place under a search warrant—
(a)finds at the place a thing the officer reasonably suspects is admissible evidence of an indictable offence against the law of the Commonwealth or of any State; and
(b)reasonably believes that it is necessary to seize the thing—
(i)to prevent its loss, destruction, mutilation or concealment; or
(ii)to prevent its use for committing an offence of a kind mentioned in paragraph (a).
(2)The officer may seize the thing.
(3)However, if a person who is entitled to claim the privilege claims the document or thing is subject to privilege, the authorised commission officer must consider the claim and may—
(a)withdraw the requirement in relation to which the claim is made; or
(b)advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.
(4)If a claim of privilege is made and the commission officer does not withdraw the requirement, section 81 applies.
(5)In this section—
privilege does not include privilege on the ground of confidentiality.

s 111 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1

112Receipt for seized property

(1)If a commission officer seizes anything under this chapter, other than under a covert search warrant, the officer must, as soon as is reasonably practicable after seizing the thing—
(a)if the person from whom it is seized is present—give to the person a receipt for the thing; or
(b)otherwise—leave a receipt for the thing in a conspicuous place.
(2)The receipt must describe the thing seized and include any other information required under a regulation.
(3)However, if the officer reasonably suspects giving the person the receipt may frustrate or otherwise hinder the investigation or another investigation, the officer may delay complying with subsection (1), but only for so long as—
(a)the officer continues to have the reasonable suspicion; and
(b)the officer or another officer involved in the investigation remains in the vicinity of the place to keep it under observation.
(4)Also, this section does not apply if the officer reasonably believes there is no-one apparently in possession of the thing or the thing has been abandoned.
(5)The officer must ensure the details of the search and anything seized are recorded in the warrants register.

113Application for order in relation to seized things

(1)Within 30 days after a commission officer seizes anything under this chapter (other than section 165), the officer must apply to a magistrate for an order under section 114 about the thing seized, unless—
(a)a proceeding has been started in which the thing may be relevant; or
(b)consent to the continued keeping of the thing has been given by the owner or the person who had lawful possession of the thing before it was seized; or
(c)it is destroyed or dealt with under the authority of another Act; or
(d)an order has been made about the thing under section 156(4).
(2)The commission officer must also make an application to a magistrate for an order under section 114 about the thing seized within 30 days after either of the following happens—
(a)a proceeding started about the thing is discontinued without any order being made in relation to the thing;
(b)the consent of the owner of the thing or the person who had lawful possession of the thing before it was seized is withdrawn.
(3)An application under subsection (1) or (2) must be accompanied by any warrant under which the thing is seized, with a record on it under section 339.

s 113 amd 2002 No. 68 s 283 sch 3

114Orders magistrate may make in relation to seized thing

The magistrate may, in relation to the seized thing, order—
(a)that it be kept in the possession of the commission or another law enforcement agency—
(i)until the end of any investigation in relation to which the thing may be relevant and for a reasonable time afterwards to enable the commission to decide whether a charge is to be laid; or
(ii)until the end of any proceeding in which the thing may be relevant; or
(iii)until the end of any appeal against a decision in a proceeding in which the thing is relevant; or
(b)that it be returned, or photographed and returned, to its owner or the person who had lawful possession of it before it was seized on condition that the owner or person undertakes to produce it before a court in any later proceeding involving the thing; or
(c)that it be returned to the person who the magistrate believes is lawfully entitled to possess it; or
(d)if the person entitled to possess the thing is unknown, that the thing be disposed of; or
(e)that it be disposed of or destroyed; or
(f)that it be dealt with by way of a proceeding under section 118 or 119; or
(g)that it be dealt with by way of proceeding under the Justices Act 1886, section 39; or
(h)that it be disposed of or destroyed in the way the magistrate orders.

115Disposal of seized things at end of proceeding

(1)At the end of a proceeding, a court may make any of the following orders in relation to a thing seized—
(a)an order for the return, forfeiture, destruction or disposal of the thing;
(b)an order that the thing be dealt with by way of a proceeding under the Justices Act 1886, section 39;
(c)an order that the commission retain the thing until it is dealt with according to law.
(2)A thing that is forfeited under an order under this Act becomes the property of the State.

116Right to inspect seized documents

(1)Unless a justice otherwise orders, the commission, or another law enforcement agency in whose possession it is, must allow a person who would be entitled to a document in the possession of the commission or an agency—
(a)to inspect it at any reasonable time and from time to time; and
(b)to take extracts from or make copies of it.
(2)The commission or the other law enforcement agency may refuse to comply with subsection (1) if the commission or agency reasonably suspects complying with the subsection will enable the person to repeat or continue an offence of which the document is evidence or to commit another offence.

117Return of seized things

The commission, or another law enforcement agency in whose possession it is, must return a seized thing in the possession of the commission or agency to its owner—
(a)if the thing is required as evidence for a prosecution and subject to any order made by a court—at the end of the prosecution and any appeal from the prosecution; or
(b)immediately the commission or agency stops being satisfied its retention as evidence is necessary.

118Application by owner etc. for return of things

(1)This section applies to a thing that has been in the possession of the commission for at least 30 days.
(2)A person who claims to have a legal or equitable interest in the thing may apply to a magistrate for an order that the thing be delivered to the person.
(3)The person must give each of the following a copy of the application and notice of the day, time and place fixed for hearing the application—
(a)the chairperson;
(b)anyone else the person reasonably believes has a legal or equitable interest in the thing.
(4)The magistrate may order that the thing be delivered to a person on any conditions the magistrate considers appropriate if satisfied—
(a)the person may lawfully possess the thing; and
(b)it is appropriate that the thing be delivered to the person.
(5)However, the magistrate must not order the delivery of a thing to the person if the magistrate is reasonably satisfied the thing—
(a)may be evidence in a proceeding started in relation to the thing; or
(b)is a thing used in or for manufacturing a dangerous drug; or
(c)may be subject to a forfeiture proceeding, including a forfeiture proceeding relating to an interstate serious offence under the Confiscation Act.

s 118 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

119Application by commission officer for order if ownership dispute

(1)This section applies if there is a question about the ownership of a thing that has been in the possession of the commission for at least 30 days.
(2)A commission officer may apply to a magistrate for an order declaring who is the owner of the thing.
(3)The officer must give anyone the officer reasonably believes has a legal or equitable interest in the thing a copy of the application and notice of the day, time and place fixed for hearing the application.
(4)The magistrate may make the order the magistrate considers appropriate.
(5)If the magistrate can not decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing.

Part 5A Monitoring and suspension orders

ch 3 pt 5A hdg ins 2002 No. 68 s 296

Division 1 Interpretation and application

ch 3 pt 5A div 1 hdg ins 2002 No. 68 s 296

119AMeaning of financial institution

In this part—
financial institution includes—
(a)a corporation that is (or that, if it had been incorporated in Australia, would be) a financial corporation within the meaning of the Commonwealth Constitution, section 51(xx); and
(b)another entity that permits persons to deposit money with it for use by, or at the direction of, the persons for gaming or betting.

s 119A ins 2002 No. 68 s 296

119BApplication of pt 5A

This part applies only for the purposes of enhancing the commission’s powers under the Confiscation Act.

s 119B ins 2002 No. 68 s 296

amd 2009 No. 48 s 135

Division 2 Monitoring orders

ch 3 pt 5A div 2 hdg ins 2002 No. 68 s 296

119CMonitoring order applications

(1)An authorised commission officer may apply to a Supreme Court judge for an order (monitoring order) directing a financial institution to give information to a commission officer about a named person.
(2)The application—
(a)may be made without notice to any party; and
(b)must—
(i)be sworn and state the grounds on which the order is sought; and
(ii)include information required under a regulation about any monitoring orders issued within the previous year in relation to an account held with the financial institution by the named person.
(3)Subsection (2)(b) applies only to—
(a)information kept in a register that the authorised commission officer may inspect; and
(b)information the authorised commission officer otherwise actually knows.
(4)The judge may refuse to consider the application until the authorised commission officer gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

119C ins 2002 No. 68 s 296

119DMaking of monitoring order

The Supreme Court judge may make the monitoring order only if satisfied there are reasonable grounds for suspecting that the person named in the application—
(a)has been, or is about to be, involved in a serious crime related activity; or
(b)has acquired directly or indirectly, or is about to acquire directly or indirectly, serious crime derived property.

s 119D ins 2002 No. 68 s 296

119EWhat monitoring order must state

(1)The monitoring order must order a financial institution to give information obtained by the institution about transactions conducted through an account held by the named person with the institution and state—
(a)the name or names in which the account is believed to be held; and
(b)the type of information the institution is required to give; and
(c)the period, of not more than 3 months from the date of its making, the order is in force; and
(d)that the order applies to transactions conducted during the period stated in the order; and
(e)that the information is to be given to any commission officer or to a stated commission officer and the way in which the information is to be given.
(2)In this section—
transaction conducted through an account includes—
(a)the making of a fixed term deposit; and
(b)in relation to a fixed term deposit—the transfer of the amount deposited, or any part of it, at the end of the term.

s 119E ins 2002 No. 68 s 296

119FWhen period stated in monitoring order starts

A monitoring order has effect from the start of the day notice of the order is given to the financial institution.

s 119F ins 2002 No. 68 s 296

119GOffence to contravene monitoring order

A financial institution that has been given notice of a monitoring order must not knowingly—
(a)contravene the order; or
(b)provide false or misleading information in purported compliance with the order.

Maximum penalty—1,000 penalty units.

s 119G ins 2002 No. 68 s 296

119HExistence and operation of monitoring order not to be disclosed

(1)A financial institution that is or has been subject to a monitoring order must not disclose the existence or the operation of the order to any person other than—
(a)a commission officer; or
(b)an officer or agent of the institution (an institution officer), for ensuring the order is complied with; or
(c)a lawyer, for obtaining legal advice or representation in relation to the order.
(2)A person to whom the existence or operation of a monitoring order has been disclosed, whether under subsection (1) or under the provision as originally made or remade or otherwise, must not—
(a)while the person is a commission officer, institution officer or lawyer, disclose the existence or operation of the order other than to another person to whom it may be disclosed under subsection (1) but only for—
(i)if the person is a commission officer—performing the person’s duties; or
(ii)if the person is an institution officer—ensuring the order is complied with or obtaining legal advice or representation in relation to the order; or
(iii)if the person is a lawyer—giving legal advice or making representations in relation to the order; or
(b)when the person is no longer a commission officer, institution officer or lawyer, make a record of, or disclose, the existence or the operation of the order in any circumstances.
(3)Subsection (2) does not prevent a commission officer disclosing the existence or operation of a monitoring order—
(a)for, or in relation to, a legal proceeding; or
(b)in a proceeding before a court.
(4)A commission officer can not be required to disclose to any court the existence or operation of a monitoring order.
(5)A person who contravenes subsection (1) or (2) commits a crime.

Maximum penalty—350 penalty units or 7 years imprisonment.

(6)A reference in this section to disclosing the existence or operation of a monitoring order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the monitoring order.
(7)In this section—
officer, of a financial institution, means—
(a)a secretary, executive officer or employee of the financial institution; or
(b)anyone who, under the Confiscation Act, is a director of the financial institution.

s 119H ins 2002 No. 68 s 296

Division 3 Suspension orders

ch 3 pt 5A div 3 hdg ins 2002 No. 68 s 296

119ISuspension order application

(1)An authorised commission officer may apply to a Supreme Court judge for an order (suspension order) directing a financial institution to give information to a commission officer about a named person.
(2)The application—
(a)may be made without notice to any person; and
(b)must—
(i)be sworn and state the grounds on which the order is sought; and
(ii)include information required under a regulation about any suspension orders issued within the previous year in relation to an account held with the financial institution by the named person.
(3)Subsection (2)(b)(ii) applies only to—
(a)information kept in a register that the authorised commission officer may inspect; and
(b)information the authorised commission officer otherwise actually knows.
(4)The judge may refuse to consider the application until the authorised commission officer gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

s 119I ins 2002 No. 68 s 296

119JMaking of suspension order

The Supreme Court judge may make the suspension order only if satisfied there are reasonable grounds for suspecting that the person named in the application—
(a)has been, or is about to be, involved in a serious crime related activity; or
(b)has acquired directly or indirectly, or is about to acquire directly or indirectly, serious crime derived property.

s 119J ins 2002 No. 68 s 296

119KWhat suspension order must state

(1)The suspension order must order a financial institution—
(a)to notify a commission officer immediately of any transaction that has been initiated in connection with an account held with the institution by a person named in the order; and
(b)to notify a commission officer immediately if there are reasonable grounds for suspecting that a transaction is about to be initiated in connection with the account; and
(c)to refrain from completing or effecting the transaction for 48 hours, unless a named commission officer gives the financial institution written consent to the transaction being completed immediately.
(2)In addition, the suspension order must state—
(a)the name or names in which the account is believed to be held; and
(b)the type of information the institution is required to give; and
(c)the period, of not more than 3 months from the date of its making, the order is in force; and
(d)that the order applies to transactions conducted during the period stated in the order; and
(e)that the information is to be given to any commission officer or to a stated commission officer and the way in which the information is to be given.

s 119K ins 2002 No. 68 s 296

amd 2009 No. 48 s 136

119LWhen period stated in suspension order starts

A suspension order has effect from the time notice of the order is given to the financial institution.

s 119L ins 2002 No. 68 s 296

119MContravention of suspension order

A financial institution that has been given notice of a suspension order must not knowingly—
(a)contravene the order; or
(b)provide false or misleading information in purported compliance with the order.

Maximum penalty—1,000 penalty units.

s 119M ins 2002 No. 68 s 296

119NExistence and operation of suspension order not to be disclosed

(1)A financial institution that is or has been subject to a suspension order must not disclose the existence or the operation of the order to any person other than—
(a)a commission officer; or
(b)an officer or agent of the institution (an institution officer), for ensuring the order is complied with; or
(c)a lawyer, for obtaining legal advice or representation in relation to the order.
(2)A person to whom the existence or operation of a suspension order has been disclosed, whether under subsection (1) or under the provision as originally made or remade or otherwise, must not—
(a)while the person is a commission officer, institution officer or lawyer, disclose the existence or operation of the order other than to another person to whom it may be disclosed under subsection (1) but only for—
(i)if the person is a commission officer—performing the person’s duties; or
(ii)if the person is an institution officer—ensuring the order is complied with or obtaining legal advice or representation in relation to the order; or
(iii)if the person is a lawyer—giving legal advice or making representations in relation to the order; or
(b)when the person is no longer a commission officer, institution officer or lawyer, make a record of, or disclose, the existence or the operation of the order in any circumstances.
(3)Subsection (2) does not prevent a commission officer disclosing the existence or operation of a suspension order—
(a)for, or in relation to, a legal proceeding; or
(b)in a proceeding before a court.
(4)A commission officer can not be required to disclose to any court the existence or operation of a suspension order.
(5)A person who contravenes subsection (1) or (2) commits a crime.

Maximum penalty—350 penalty units or 7 years imprisonment.

(6)A reference in this section to disclosing the existence or operation of a suspension order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the suspension order.
(7)In this section—
officer, of a financial institution, means—
(a)a secretary, executive officer or employee of the financial institution; or
(b)anyone who, under the Confiscation Act, is a director of the financial institution.

s 119N ins 2002 No. 68 s 296

Part 6 Surveillance devices

Division 1 Non-application of Public Records Act 2002

ch 3 pt 6 div 1 hdg sub 2009 No. 13 s 213 sch 5

120Public Records Act 2002 does not apply to divs 23

The Public Records Act 2002 does not apply to activities or records under divisions 2 and 3.

s 120 amd 2002 No. 68 s 283 sch 3; 2005 No. 45 s 67 sch 3

sub 2009 No. 13 s 213 sch 5

Division 2 Use of surveillance devices under warrant of Supreme Court judge

121Surveillance warrant applications

(1)This section applies if the chairperson reasonably believes a person has been, is, or is likely to be, involved in corruption being investigated by the commission.
(2)An authorised commission officer may, with the chairperson’s approval, apply to a Supreme Court judge for a warrant (surveillance warrant) authorising the use of a surveillance device.
(3)For subsection (2), an authorised commission officer who is a police officer must be of at least the rank of inspector.
(4)The application must—
(a)be sworn and state the grounds on which the warrant is sought; and
(b)fully disclose all matters, of which the authorised commission officer is aware, both favourable and adverse to the issuing of the warrant sought; and
(c)include information stated under a regulation about any warrants issued within the previous year in relation to the person or the place specified in the application.
(5)The place specified in the application (the relevant place) may be a public place and may be described by reference to a class of place.
(6)Subsection (4)(c) only applies to—
(a)information kept in a register that the officer may inspect; and
(b)information the officer otherwise actually knows.
(7)The applicant must advise the public interest monitor of the application under arrangements decided by the monitor.
(8)The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

s 121 amd 2004 No. 8 s 5; 2005 No. 45 s 67 sch 3; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)–(2)

122Who may be present at consideration of application for surveillance warrant

(1)The judge must hear an application for a surveillance warrant in the absence of anyone other than the following—
(a)the applicant;
(b)a monitor;
(c)someone the judge permits to be present;
(d)a lawyer representing anyone mentioned in paragraphs (a) to (c).
(2)Also, the judge must hear the application—
(a)in the absence of the person proposed to be placed under surveillance (the relevant person) or anyone likely to inform the relevant person of the application; and
(b)without the relevant person having been informed of the application.

123Consideration of application for surveillance warrant

Before deciding an application for a surveillance warrant, the judge must, in particular, and being mindful of the highly intrusive nature of using a surveillance device, consider the following—
(a)the nature and seriousness of the corruption;
(b)the likely extent of interference with the privacy of—
(i)the relevant person; or
(ii)any other occupant of the relevant place;

if the warrant is issued;

(c)the extent to which issuing the warrant would help prevent, detect, or provide evidence of the commission of, the corruption;
(d)the benefits derived from the issue of any previous surveillance warrants in relation to the relevant person or the relevant place;
(e)the extent to which officers investigating the corruption have used or can use conventional ways of investigation;
(f)how much the use of conventional ways of investigation would be likely to help in the investigation of the corruption;
(g)how much the use of conventional ways of investigation would prejudice the investigation of the corruption because of delay or for another reason;
(h)any submissions made by a monitor.

s 123 amd 2004 No. 8 s 6; 2005 No. 45 s 67 sch 3; 2014 No. 21 s 94 (1) sch 1

124Issue of surveillance warrant

(1)After considering the application, the judge may issue a surveillance warrant for a period of not more than 30 days if satisfied there are reasonable grounds for believing—
(a)the relevant person has been, is, or is likely to be, involved in the corruption and is likely to be at the relevant place; or
(b)evidence of the corruption is likely to be obtained using a surveillance device at the relevant place.
(2)The judge may issue a surveillance warrant authorising the use of a surveillance device in the office of a practising lawyer only if the application for the warrant relates to the lawyer’s involvement in corruption.
(3)The judge may impose any conditions on the warrant that the judge considers are necessary in the public interest including, but not limited to—
(a)a condition requiring regular reporting to a judge on activities under the warrant; and
(b)a condition requiring that, if a listening device is to be used in a public place or class of place, the officer, before installing or using the device, must have a reasonable belief that the relevant person is or will be in the place where the device is to be used.

Example for subsection (3)(b)—

The warrant may be issued for any motel in a stated area because the officer may have a reasonable belief that the relevant person may be in a motel in the area but not know in advance which one. The condition may be that the device may only be installed if the officer reasonably believes the person is likely to be in the place.

s 124 amd 2004 No. 8 s 7; 2005 No. 45 s 67 sch 3; 2009 No. 48 s 137; 2014 No. 21 s 94 (1) sch 1

125What surveillance warrant must state

A surveillance warrant must state the following—
(a)that a commission officer or any commission officer may exercise surveillance powers under the warrant;
(b)the name of the relevant person, if known;
(c)the place or class of place where the surveillance device authorised under the warrant may be used;
(d)any conditions the judge imposes under section 124(3);
(e)the day and time the warrant starts and when the warrant ends.

s 125 amd 2002 No. 68 s 283 sch 3; 2005 No. 45 s 67 sch 3

126Report on use of surveillance devices

(1)This section applies if, because of a condition of a surveillance warrant, a commission officer gives to a judge a report on activities under the warrant.
(2)The judge may, after considering the report, require the destruction of any recording made that is not related to the corruption mentioned in the warrant, unless the recording relates to the investigation by the commission of other corruption.

s 126 amd 2005 No. 45 s 67 sch 3; 2014 No. 21 s 94 (1) sch 1

127Duration and extension of surveillance warrants

(1)A surveillance warrant is in force until the earlier of the following—
(a)the day stated in the warrant;
(b)the day the investigation under the warrant ends.
(2)However, despite the investigation ending, the warrant continues in force until the day stated in the warrant if, as a result of using the surveillance device, evidence is gained of other corruption.
(3)The warrant may be extended from time to time on application and the provisions of this division for an application for a warrant apply to an application for an extension, with necessary changes.
(4)Despite the ending of the warrant under subsection (1) or (2), the commission officer may continue to exercise powers under the warrant, but only to the extent necessary to remove the surveillance device to which the warrant relates.

s 127 amd 2005 No. 45 s 67 sch 3; 2014 No. 21 s 94 (1) sch 1

128Power under surveillance warrants

A commission officer to whom a surveillance warrant is directed may, subject to the warrant, lawfully exercise any of the following powers under the warrant (surveillance powers)—
(a)power to enter a stated place or class of place, covertly or through subterfuge, to install a surveillance device;
(b)power to install and use a surveillance device to intercept and record private conversations;
(c)power to remove a thing to another place to install a surveillance device in the thing;
(d)power to use an assistant to translate or interpret conversations intercepted under the warrant;
(e)power to take electricity for using a surveillance device;
(f)power to use reasonable force—
(i)to enter a place to install a surveillance device; or
(ii)to install a surveillance device;
(g)power to use 1 or more surveillance devices in the same place;
(h)power to pass through, over, under or along a place to get to the place where the surveillance device is to be used.

s 128 amd 2005 No. 45 s 67 sch 3

Division 3 Other provisions about surveillance devices

ch 3 pt 6 div 3 hdg prev div 3 hdg om 2005 No. 45 s 67 sch 3

pres div 3 hdg (prev div 5 hdg) renum 2005 No. 45 s 67 sch 3

129Restriction about records and access to surveillance warrant applications etc.

(1)This section applies to the following (relevant proceeding)—
(a)an application to a Supreme Court judge for—
(i)a surveillance warrant; or
(ii)the extension of a surveillance warrant;
(b)an order made under an application mentioned in paragraph (a).
(2)Despite the Recording of Evidence Act 1962, a transcript of a relevant proceeding must not be made.
(3)Also, no record of the application or of any order made in a relevant proceeding is to be available for search by any person, except by direction of a Supreme Court judge.
(4)A person must not publish a report of a relevant proceeding.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)A person is not entitled to search information in the custody of a court in relation to a relevant proceeding, unless a Supreme Court judge otherwise orders in the interests of justice.
(6)Nothing in this section prevents a person who was present at a relevant proceeding from giving oral evidence to a court about things that happened at the proceeding.

s 129 prev s 129 om 2005 No. 45 s 67 sch 3

pres s 129 (prev s 144) amd 2005 No. 45 s 67 sch 3

renum 2005 No. 45 s 67 sch 3

130Disclosure of information obtained using surveillance warrant

(1)This section applies to information that has not been disclosed in a proceeding in open court and was obtained by using a surveillance warrant (the relevant information).
(2)A commission officer who obtained relevant information must not disclose the information to someone other than—
(a)the judge who issued the warrant; or
(b)a judge hearing an application for—
(i)an extension of the warrant; or
(ii)a warrant in relation to the same or a different person; or
(c)a court taking evidence about a charge of an offence in which the relevant information is evidence; or
(d)QCAT hearing a matter, in the exercise of its jurisdiction under this Act, in which the relevant information is evidence; or
(e)the chairperson or a person authorised by the chairperson; or
(f)a commission officer, police officer or other law enforcement officer involved in—
(i)the investigation into the corruption for which the powers were exercised; or
(ii)an investigation of any indictable offence started because of information obtained under the warrant or linked to the offence under investigation; or
(iii)a proceeding in which the information is evidence; or
(g)a declared agency; or
(h)a public prosecutor, but only for—
(i)use in a proceeding in which the information is evidence; or
(ii)an application for an extension of the warrant; or
(iii)the issue of another surveillance warrant; or
(i)a public official, but only for taking disciplinary action; or
(j)a lawyer representing a person in a proceeding in which the information is evidence; or
(k)a monitor; or
(l)a person transcribing or making copies of recordings.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)In this section—
commission officer includes a former commission officer.

s 130 prev s 130 om 2005 No. 45 s 67 sch 3

pres s 130 (prev s 145) amd 2002 No. 68 s 283 sch 3; 2005 No. 45 s 67 sch 3

renum 2005 No. 45 s 67 sch 3

amd 2009 No. 48 s 138; 2014 No. 21 s 23, s 94 (1) sch 1; 2016 No. 19 s 45 (1)

131Destruction of records

(1)The commission must keep all information obtained under a surveillance warrant and transcripts of recordings or photographs made or taken under the warrant in a secure place.
(2)The commission must ensure any recording made or photograph taken under the surveillance warrant or a transcript or copy made from information obtained under the warrant is destroyed as soon as practicable after it is no longer required.
(3)Subsection (2) does not prevent information or other matter being preserved for any period or indefinitely if, in the chairperson’s opinion, it is relevant to—
(a)any offence of which someone has been convicted if there is a possibility that an issue about the conviction may arise; or
(b)an ongoing investigation.

s 131 prev s 131 om 2005 No. 45 s 67 sch 3

pres s 131 (prev s 146) renum 2005 No. 45 s 67 sch 3

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (2)

Division 4 [Repealed]

(Repealed)

ch 3 pt 6 div 4 hdg om 2005 No. 45 s 67 sch 3

Part 6A Controlled operations and controlled activities for corruption offences

ch 3 pt 6A hdg ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

Division 1 Preliminary

ch 3 pt 6A div 1 hdg ins 2005 No. 45 s 69

132Object of pt 6A

The object of this part is to ensure the effective investigation of corruption offences by—
(a)enabling particular commission officers to approve the conduct of controlled operations that may involve particular commission officers and others engaging in activities that may be unlawful as part of the investigation of a suspected corruption offence; and
(b)ensuring anything that may be approved or authorised under this part is approved or authorised only in appropriate circumstances; and
(c)ensuring, as far as practicable, only appropriately trained persons act as covert operatives under an approval under this part; and
(d)ensuring a person who may act as a covert operative under an approval under this part engages in otherwise unlawful activities only as part of the controlled operation for which the person is a covert operative; and
(e)providing appropriate protection from civil and criminal liability for persons acting in accordance with this part; and
(f)clarifying the status of evidence obtained by persons who engage in controlled operations or controlled activities under this part.

s 132 prev s 132 om 2005 No. 45 s 67 sch 3

pres s 132 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

133Investigation of minor matters not affected

The enactment of this part is not to affect the investigation of minor matters or investigative activities that, by their nature, can not be planned but involve the participation of commission officers who are police officers in activities that may be unlawful.

s 133 prev s 133 om 2005 No. 45 s 67 sch 3

pres s 133 ins 2005 No. 45 s 69

134Lawfulness of particular actions

To remove doubt, it is declared—
(a)that it is lawful for a person acting in accordance with this part—
(i)to recommend that other persons be authorised to engage in an activity that may be unlawful as part of an investigation of a suspected corruption offence; or
(ii)to authorise other persons to engage in an activity that may be unlawful as part of an investigation of a suspected corruption offence; and
(b)that it is lawful for a person acting as a covert operative under an approval under section 141, 142 or 143 to engage in activities stated in the approval that may be unlawful as part of the investigation of a suspected corruption offence; and
(c)that it is lawful for the chairperson, or a senior executive officer, acting in accordance with procedures established by the chairperson, to authorise a police officer or a commission officer to engage in a stated controlled activity for the commission; and
(d)that it is lawful for a person acting under an authority given under section 146I to engage in a controlled activity in accordance with the authority and procedures established by the commission.

s 134 prev s 134 om 2005 No. 45 s 67 sch 3

pres s 134 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

135Controlled operations and activities generally

(1)From the commencement of this part, a controlled operation or controlled activity in relation to a suspected corruption offence may be approved only in accordance with this part.
(2)Also, a function conferred in relation to the activities of the commission under this part is only conferred for the purpose of a function conferred on the commission relating to suspected corruption offences.

s 135 prev s 135 om 2005 No. 45 s 67 sch 3

pres s 135 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

Division 2 Controlled operations committee

ch 3 pt 6A div 2 hdg ins 2005 No. 45 s 69

136Declaration of controlled operations committee

The controlled operations committee established under the Police Powers and Responsibilities Act 2000 is the controlled operations committee for this part.

s 136 prev s 136 om 2005 No. 45 s 67 sch 3

pres s 136 ins 2005 No. 45 s 69

137Committee’s functions

For this part, the committee has the function to consider and make recommendations about applications referred to the committee by the chairperson for—
(a)an approval for a controlled operation; or
(b)variation of an approval for a controlled operation.

s 137 prev s 137 om 2005 No. 45 s 67 sch 3

pres s 137 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

138Provisions applying to committee and committee’s annual report

(1)The Police Powers and Responsibilities Act 2000, chapter 11, part 2, applies to the committee for this part as if—
(a)a reference to a controlled operation were a reference to a controlled operation under this part; and
(b)a reference to an authority for a controlled operation, or a variation of a controlled operation, were a reference to an approval or variation under this part; and
(c)a reference to an offence were a reference to a corruption offence.
(2)As soon as practicable after the end of each financial year, but within 4 months after the end of the financial year, the committee must prepare and give the chairperson of the parliamentary committee a written report on the committee’s activities under this Act.
(3)The chairperson of the parliamentary committee must table a copy of the annual report in the Legislative Assembly within 14 sitting days after receiving the report.
(4)The annual report must not contain information that—
(a)discloses or may lead to the disclosure of the identity of—
(i)any covert operative; or
(ii)any person who has been, is being, or is to be, investigated; or
(b)indicates a particular investigation has been, is being, or is to be, conducted.

s 138 prev s 138 om 2005 No. 45 s 67 sch 3

pres s 138 ins 2005 No. 45 s 69

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2014 No. 21 s 94 (1) sch 1

Division 3 Approval of controlled operations

ch 3 pt 6A div 3 hdg ins 2005 No. 45 s 69

139Application for approval

(1)An authorised commission officer may apply to the approving officer for approval to conduct an operation under this part (controlled operation).
(2)The approving officer must be the chairperson or a senior executive officer.
(3)However, if a person to be investigated under a proposed controlled operation is or may be a police officer—
(a)the application must be made to the chairperson; and
(b)the chairperson is the approving officer for the proposed operation.
(4)The application must be written and include enough information to enable the approving officer to properly consider whether the proposed operation should be approved.
(5)In particular, the application must state the following for the proposed controlled operation—
(a)an identifying name or number;
(b)a description of the suspected corruption offence in relation to which it is proposed to conduct the operation;
(c)if a previous application relating to the same corruption offence has been made under this division, whether the application was approved or refused;
(d)the name of each person who it is intended will act as a covert operative for the operation;
(e)a precise description of each otherwise unlawful activity a covert operative who is not a commission officer may be required to engage in as part of the operation;
(f)a description of the general classes of otherwise unlawful activities a covert operative who is a commission officer may be required to engage in as part of the operation.
(6)For subsection (5)(c), an application made under the Police Powers and Responsibilities Act 2000, chapter 10, part 2, division 3 as in force at any time before the commencement of this section is taken to have been made under this division.

Editor’s note—

As previously enacted, this was a reference to the Police Powers and Responsibilities Act 2000, chapter 5 (Controlled operations and controlled activities), part 2 (Controlled operations), division 3 (Approval of controlled operations). The reference was changed by 2006 Act No. 26, sections 84 and 86.

s 139 prev s 139 om 2005 No. 45 s 67 sch 3

pres s 139 ins 2005 No. 45 s 69

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

140Application must be referred to committee

(1)The approving officer must refer the application to the committee without deciding the application.
(2)However, if the approving officer considers the application does not have enough merit to justify referring it to the committee, the approving officer may refuse to refer the application to the committee.
(3)This section is subject to sections 141 and 142.

s 140 prev s 140 om 2005 No. 45 s 67 sch 3

pres s 140 ins 2005 No. 45 s 69

141Particular controlled operations

(1)This section applies to an application made to the chairperson under section 139(3) for approval to conduct a controlled operation.
(2)The chairperson may approve the application without referring it to the committee but, before approving the application, the chairperson must consult with the independent member and obtain the independent member’s agreement to the proposed operation.
(3)However, the chairperson may approve an application made to the chairperson in urgent circumstances without complying with subsection (2), but must consult with the independent member about the controlled operation as soon as possible after approving the application.

s 141 prev s 141 amd 2002 No. 68 s 283 sch 3

om 2005 No. 45 s 67 sch 3

pres s 141 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

142Procedure in urgent circumstances other than if s 141 applies

(1)This section applies to an application for approval to conduct a controlled operation made to an approving officer in urgent circumstances.
(2)However, this section does not apply if section 141 applies.
(3)The approving officer may approve the application without referring it to the committee, but must refer the application to the committee as soon as practicable after approving it.
(4)The committee may consider the application as if the approval had not been given.
(5)The approving officer must consider the committee’s recommendations on the application but is not bound by the recommendations.

s 142 prev s 142 om 2005 No. 45 s 67 sch 3

pres s 142 ins 2005 No. 45 s 69

143Consideration and approval of application

(1)After considering the committee’s recommendations on an application for approval to conduct a controlled operation, the approving officer may approve or refuse to approve the application.
(2)The approving officer must not approve an application under section 139, 141 or 142 if the approving officer considers, because of the way the proposed controlled operation is to be conducted, it is probable that any of the following will happen in the operation—
(a)injury to, or the death of, a person;
(b)serious damage to property;
(c)a serious loss of property;
(d)someone could be encouraged or induced by a covert operative to engage in criminal activity of a kind the person could not reasonably be expected to have engaged in if not encouraged or induced by the covert operative to engage in it.
(3)Also, the approving officer must not approve the application unless satisfied—
(a)the purpose of the proposed controlled operation is to gather evidence of a corruption offence; and
(b)a controlled operation represents an effective use of public resources for investigating the corruption offence; and
(c)any proposed covert operative for the operation has received appropriate training for the purpose; and
(d)if a proposed covert operative for the operation is not a commission officer, it is wholly impractical in the circumstances for a commission officer to perform the role the proposed covert operative is to perform in the operation; and
(e)the committee has recommended the controlled operation be approved.
(4)Subsection (1) and (3)(e) do not apply to the approval of a controlled operation mentioned in section 141 or 142.

s 143 prev s 143 om 2005 No. 45 s 67 sch 3

pres s 143 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

144What approval must state

(1)An approval for a controlled operation must be written and state the following—
(a)a description of the suspected corruption offence to which the controlled operation relates;
(b)the period, of not more than 6 months, for which the approval has effect;
(c)the name of each covert operative who may engage in otherwise unlawful activities for the purposes of the operation;
(d)a precise description of each otherwise unlawful activity a person who is not a commission officer may engage in while acting as a covert operative for the operation;
(e)a description of the general classes of otherwise unlawful activities a commission officer may be required to engage in while acting as a covert operative for the operation;
(f)any conditions the approving officer considers appropriate.
(2)For subsection (1)(c), it is enough to state an assumed name or code name in the approval if the actual identity of the covert operative is included in a register kept for the purpose by the chairperson.

s 144 prev s 144 om 2005 No. 45 s 67 sch 3

pres s 144 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

145Effect of approval

It is lawful for a person named in an approval of a controlled operation—
(a)to act as a covert operative for the controlled operation to which the approval relates; and
(b)to engage in the otherwise unlawful activity described in the approval for the purposes of the controlled operation.

s 145 prev s 145 om 2005 No. 45 s 67 sch 3

pres s 145 ins 2005 No. 45 s 69

Division 4 Variation of approval for controlled operation

ch 3 pt 6A div 4 hdg ins 2005 No. 45 s 69

146Application to vary approval

(1)An authorised commission officer may apply to the approving officer for a variation of an approval for a controlled operation.
(2)However, if, the chairperson was the approving officer for the controlled operation because the operation relates to a person who is or may be a police officer, the application must be made to the chairperson.
(3)The application must be written and include enough information to enable the approving officer to properly consider whether the approval should be varied and if so how it should be varied.
(4)In particular, the application must state the following for the controlled operation—
(a)the identifying name or number for the operation;
(b)a description of the suspected corruption offence in relation to which the operation was approved;
(c)if a previous application for variation of the approval for the operation has been made under this division, whether the approval was varied because of the application;
(d)if it is intended to change particulars relating to persons who are or are intended to be covert operatives, the name of each person to whom the change relates and particulars of the change sought;
(e)if it is intended to change the description of the suspected corruption offence in relation to which the operation was approved, a description of the suspected corruption offence for which approval is sought.
(5)For subsection (4)(c), an application made under the Police Powers and Responsibilities Act 2000, chapter 10, part 2, division 4 as in force at any time before the commencement of this section is taken to have been made under this division.

Editor’s note—

As previously enacted, this was a reference to the Police Powers and Responsibilities Act 2000, chapter 5 (Controlled operations and controlled activities), part 2 (Controlled operations), division 4 (Variation of approval for controlled operation). The reference was changed by 2006 Act No. 26, sections 84 and 86.

s 146 ins 2005 No. 45 s 69

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146AApplication must be referred to committee

(1)The approving officer must refer the application to the committee without deciding the application.
(2)However, if the approving officer considers the application does not have enough merit to justify referring it to the committee, the approving officer may refuse to refer the application to the committee.
(3)This section is subject to sections 146B and 146C.

s 146A ins 2005 No. 45 s 69

146BParticular controlled operations

(1)This section applies if an application for the variation of an approval for a controlled operation is made to the chairperson under section 146(2).
(2)The chairperson may approve the application without referring it to the committee but, before approving the application, the chairperson must consult with the independent member and obtain the independent member’s agreement to the proposed variation.
(3)However, the chairperson may approve an application made to the chairperson in urgent circumstances without complying with subsection (2), but must consult with the independent member about the variation as soon as possible after approving it.

s 146B ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146CProcedure in urgent circumstances other than if s 146B applies

(1)This section applies to an application for the variation of an approval for a controlled operation that is made to an approving officer in urgent circumstances.
(2)However, this section does not apply if section 146B applies.
(3)The approving officer may approve the application without referring it to the committee, but must refer the application to the committee as soon as practicable after approving it.
(4)The committee may consider the application as if the approval had not been given.
(5)The approving officer must consider the committee’s recommendations on the application but is not bound by the recommendations.

s 146C ins 2005 No. 45 s 69

146DWhen approval may be given

The approving officer must not approve the application unless reasonably satisfied the variation is necessary for the continued effective investigation of the corruption offence.

s 146D ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

146EHow approval may be varied

(1)The approving officer may vary the approval but only by—
(a)extending the period of the approval from time to time by not more than 6 months at a time; or
(b)changing particulars about who may act as a covert operative under the approval; or
(c)changing particulars of the corruption offence to which the approval relates.
(2)The approval mentioned in section 145, as varied under subsection (1), has the effect mentioned in section 145.

s 146E ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

Division 5 [Repealed]

ch 3 pt 6A div 5 hdg ins 2005 No. 45 s 69

om 2006 No. 26 s 91

146F[Repealed]

s 146F ins 2005 No. 45 s 69

om 2006 No. 26 s 91

146G[Repealed]

s 146G ins 2005 No. 45 s 69

om 2006 No. 26 s 91

146H[Repealed]

s 146H ins 2005 No. 45 s 69

om 2006 No. 26 s 91

Division 6 Authorising controlled activities

ch 3 pt 6A div 6 hdg ins 2005 No. 45 s 69

146IAuthorised controlled activities

(1)This section applies if the chairperson or a senior executive officer considers it is reasonably necessary for a police officer or a commission officer to engage in conduct that—
(a)is directed to obtaining evidence of the commission of a suspected corruption offence by a police officer (relevant officer); and
(b)involves the following (a controlled activity)—
(i)a single meeting between a police officer or commission officer and the relevant officer, whether or not the meeting was the result of a written or oral communication with the person;
(ii)deliberately concealing the true purpose of the communication between the police officer or commission officer and the relevant officer;
(iii)the commission by the police officer or commission officer of otherwise unlawful activity.
(2)The chairperson or senior executive officer may, in accordance with any policy of the commission, authorise a police officer or commission officer to engage in a stated controlled activity.
(3)The authority must be written and state the controlled activity the police officer or commission officer is authorised to engage in.
(4)The person authorised to engage in the controlled activity must comply with any relevant policy of the commission.

s 146I ins 2005 No. 45 s 69

amd 2009 No. 13 s 213 sch 5; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Division 7 Miscellaneous

ch 3 pt 6A div 7 hdg ins 2005 No. 45 s 69

146JDisclosure of information

(1)This section applies to a person to whom the existence of any of the following (relevant information) becomes known—
(a)an application for—
(i)approval of a controlled operation; or
(ii)a variation of an approval given for a controlled operation;
(b)a decision of the committee to recommend the approval of, or the variation of an approval for, a controlled operation, and the committee’s recommendation;
(c)an approval of—
(i)a controlled operation; or
(ii)a variation of an approval given for a controlled operation;
(d)information about a controlled operation;
(f)the actual identity of a covert operative.
(2)The person must not disclose relevant information, other than—
(a)for the purposes of this part; or
(b)with the approval of the commission; or
(c)to the extent—
(i)the information has generally been made known; or
(ii)it is in the public interest to disclose the information.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

s 146J ins 2005 No. 45 s 69

amd 2007 No. 37 s 162 sch

146KProtection from liability

(1)This section applies to each of the following persons (a relevant person)—
(a)a member of the committee;
(b)the chairperson;
(c)a senior executive officer;
(d)a person who is or was a covert operative;
(e)a person who, as part of a controlled operation, provides a covert operative with help, including by giving the covert operative things necessary for the purposes of the controlled operation;
(f)a person who authorised a controlled activity;
(g)a person who is or was authorised under this part to engage in a controlled activity.
(2)A relevant person does not incur civil liability for an act done, or omission made, under this part.
(3)If subsection (2) prevents a civil liability attaching to the person, the liability attaches instead to the State.
(4)Also, a relevant person does not incur criminal liability for an act done, or omission made—
(a)in accordance with an approval given for a controlled operation; or
(b)in accordance with—
(i)an authority given for a controlled activity; or
(ii)the commission’s policy about controlled activities.
(5)In addition, a relevant person who is a police officer or a commission officer does not incur criminal liability for an act done, or omission made, that, because of a controlled operation, was reasonably necessary for—
(a)protecting the safety of any person; or
(b)protecting the identity of a covert operative; or
(c)taking advantage of an opportunity to gather evidence in relation to a corruption offence not mentioned in the approval.
(6)However, subsection (5) does not relieve a police officer or a commission officer from criminal liability for an act done or omission made if the act or omission results in—
(a)injury to, or the death of, a person; or
(b)serious damage to property; or
(c)a serious loss of property; or
(d)someone being encouraged or induced by a covert operative to engage in criminal activity of a kind the person could not reasonably be expected to have engaged in if not encouraged or induced by the covert operative to engage in it.
(7)This section does not limit the Police Service Administration Act 1990, section 10.5.

s 146K ins 2005 No. 45 s 69

amd 2009 No. 48 s 139; 2014 No. 21 s 24; 2016 No. 19 s 45 (1)

146LAdmissibility of evidence obtained through controlled operation

It is declared that evidence gathered because of a controlled operation or controlled activity is not inadmissible only because it was obtained by a person while engaging in an unlawful act if the unlawful act was authorised under this part.

s 146L ins 2005 No. 45 s 69

146MEvidentiary provision

(1)In a proceeding, a certificate of the chairperson stating any of the following is evidence of the things it states—
(a)at a stated time a stated person was an approving officer for this Act;
(b)at a stated time a stated person was a covert operative;
(c)on a stated day a stated person approved the conduct of a stated controlled operation or controlled activity;
(d)on a stated day a stated person varied an approval for a stated controlled operation in a stated way.
(2)For subsection (1)(b), it is enough to state an assumed name or code name in the certificate if the actual identity of the covert operative is included in a register kept for the purpose by the chairperson.

s 146M ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146NPowers not to be delegated

(1)Powers of an approving officer under this part may not be delegated.
(2)Also, powers of the chairperson or a senior executive officer under section 146I may not be delegated.
(3)Subsections (1) and (2) apply despite any other Act.

s 146N ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Part 6B Assumed identities

ch 3 pt 6B hdg ins 2006 No. 26 s 92

Division 1 Preliminary

ch 3 pt 6B div 1 hdg ins 2006 No. 26 s 92

146OPurpose of pt 6B

The main purpose of this part is to facilitate investigations and intelligence gathering in relation to corruption offences.

s 146O ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1

146PHow purpose is achieved

The purpose is to be achieved primarily by providing for the lawful acquisition and use of an assumed identity.

s 146P ins 2006 No. 26 s 92

146QDefinitions for pt 6B

In this part—
acquire, an assumed identity, means acquire evidence, or take steps to acquire evidence, of the identity.
agency means—
(a)an issuing agency; or
(b)the commission.
authorised civilian means a person, other than a commission officer, who is authorised under an authority to acquire or use an assumed identity.
authorised identity officer means a commission officer who is authorised under an authority to acquire or use an assumed identity.
authorised person means—
(a)an authorised civilian; or
(b)an authorised identity officer.
authority means an authority granted under section 146T to acquire or use an assumed identity, including the authority as varied under section 146W.
birth certificate approval see section 146Y.
conduct includes any act or omission.
doing a thing, includes failing to do the thing.
evidence, of identity, means a document or other thing, including, for example, a driver licence, birth certificate, credit card or identity card, that evidences or indicates, or can be used to evidence or indicate, a person’s identity or any aspect of a person’s identity.
government issuing agency, in relation to an authority, means an entity that—
(a)is named in the authority; and
(b)issues evidence of identity as part of performing any function of the government.
issuing agency means—
(a)a government issuing agency; or
(b)a non-government issuing agency.
non-government issuing agency, in relation to an authority, means an entity, other than a government issuing agency, that—
(a)is named in the authority; and
(b)issues evidence of identity.
officer, of an agency, includes a person employed or engaged in the agency.
supervisor, of an authorised civilian, means the authorised commission officer, appointed under section 146T(3), who supervises or is to supervise the acquisition or use of an assumed identity by the authorised civilian.
use an assumed identity, includes representing, whether expressly or impliedly, or by saying or doing something, the identity to be real when it is not.

s 146Q ins 2006 No. 26 s 92

146RPublic Records Act 2002 does not apply to divs 27

The Public Records Act 2002 does not apply to activities or records under divisions 2 to 7.

s 146R ins 2006 No. 26 s 92

sub 2009 No. 13 s 213 sch 5

Division 2 Authorities for assumed identities

ch 3 pt 6B div 2 hdg ins 2006 No. 26 s 92

146SApplication for authority to acquire or use assumed identity

(1)A commission officer may apply to the chairperson for an authority for the officer or another person to do either or both of the following—
(a)acquire an assumed identity;
(b)use an assumed identity.
(2)A separate application must be made for each assumed identity to be acquired or used.
(3)An application—
(a)must be in writing in the form decided by the chairperson; and
(b)must contain all of the following information—
(i)the applicant’s name;
(ii)if a person other than the applicant is to be authorised to acquire or use an assumed identity—that person’s name;
(iii)if the person mentioned in subparagraph (ii) is not a commission officer—the name and rank or position of the person proposed to be appointed as supervisor, and an explanation of why it is necessary for a person who is not a commission officer to acquire or use the assumed identity;
(iv)details of the proposed assumed identity;
(v)reasons for the need to acquire or use an assumed identity;
(vi)details, to the extent known, of the investigation or intelligence gathering exercise in which the assumed identity will be used;
(vii)details of any issuing agencies and the types of evidence to be issued by them.
(4)The chairperson may require the applicant to give additional information about the application the chairperson considers appropriate for consideration of the application.

s 146S ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146TDeciding application

(1)After considering an application for an authority to acquire or use an assumed identity, and any additional information given under section 146S(4), the chairperson—
(a)may grant an authority to acquire or use the assumed identity, with or without conditions; or
(b)may refuse the application.
(2)The chairperson must not grant an authority to acquire or use an assumed identity unless the chairperson is satisfied on reasonable grounds of all of the following—
(a)the assumed identity is necessary for the purposes of an investigation or intelligence gathering in relation to a corruption offence;
(b)the risk of abuse of the assumed identity by the authorised person under the authority is minimal;
(c)if the application is for authorisation of an assumed identity for a person who is not a commission officer—it would be impossible or impracticable in the circumstances for a commission officer to acquire or use the assumed identity for the purpose sought.
(3)If an authority is granted for an authorised civilian, the chairperson must appoint an authorised commission officer to supervise the acquisition or use of the assumed identity by the authorised civilian.
(4)An authority may also authorise—
(a)an application to the independent member for a birth certificate approval; or
(b)a request under section 146ZB.
(5)A separate authority is required for each assumed identity.

s 146T ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146UForm of authority

(1)An authority must be—
(a)in writing in the form decided by the chairperson; and
(b)signed by the person granting it.
(2)An authority must state all of the following—
(a)the name of the person granting the authority;
(b)the date of the authority;
(c)details of the assumed identity under the authority;
(d)details of the evidence of the assumed identity that may be acquired under the authority;
(e)the conditions, if any, to which the authority is subject;
(f)why the authority is granted;
(g)if the authority relates to an authorised identity officer—the name of the official;
(h)if the authority relates to an authorised civilian—
(i)the name of the authorised civilian; and
(ii)the name of the civilian’s supervisor under the authority; and
(iii)the period, of not more than 3 months, for which the authority remains in force.
(3)The authority also must state the following—
(a)whether it authorises an application to the independent member for a birth certificate approval;
(b)each issuing agency to which a request may be made under section 146ZB.

s 146U ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146VPeriod of authority

(1)An authority for an authorised identity officer remains in force until cancelled under section 146W.
(2)An authority for an authorised civilian remains in force until the end of the period stated in the authority under section 146U(2)(h)(iii), unless the authority is sooner cancelled under section 146W.

s 146V ins 2006 No. 26 s 92

146WVariation or cancellation of authority

(1)The chairperson—
(a)may vary or cancel the authority at any time; and
(b)must cancel the authority if satisfied, on a review under section 146X or otherwise, that use of the assumed identity under the authority is no longer necessary.
(2)The chairperson must give written notice of the variation or cancellation to—
(a)the authorised person to whom the authority relates; and
(b)if the authorised person is an authorised civilian—the authorised person’s supervisor.
(3)The notice must state the reasons for the variation or cancellation.
(4)The variation or cancellation has effect on—
(a)the day the notice is given to the authorised person; or
(b)if a later day is stated in the notice—the later day.

s 146W ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146XReview of authority

(1)The chairperson must, at least once a year, review each authority granted by the chairperson and in force under this chapter.
(2)The purpose of a review is to decide whether use of the assumed identity under the authority is still necessary.
(3)If the chairperson is satisfied on a review that use of the assumed identity is no longer necessary, the chairperson must cancel the authority under section 146W.
(4)If the chairperson is satisfied on a review that use of the assumed identity is still necessary, the chairperson must record the chairperson’s opinion, and the reasons for it, in writing.

s 146X ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)–(2)

Division 3 Evidence of assumed identities

ch 3 pt 6B div 3 hdg ins 2006 No. 26 s 92

Subdivision 1 Creation of birth certificates for assumed identities

ch 3 pt 6B div 3 sdiv 1 hdg ins 2006 No. 26 s 92

146YApproval for creation of birth certificate for assumed identity

(1)The chairperson may apply to the independent member for authority to create a birth certificate (a birth certificate approval) for an assumed identity for an authorised person.
(2)The application must be written and include enough information to enable the independent member to properly consider whether the birth certificate approval should be granted.
(3)The independent member may grant the birth certificate approval only if satisfied granting the approval is justified having regard to the nature of the activities undertaken or to be undertaken by the authorised person under the authority for the assumed identity.
(4)A birth certificate approval granted under this section must be written, signed by the independent member, and state that a named commission officer is authorised under this section to create a birth certificate for the purpose of concealing the identity of an authorised person.

s 146Y ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZGiving effect to birth certificate approval

(1)On the production to the registrar-general, for inspection, of a birth certificate approval—
(a)the commission officer named in the approval may create a birth certificate as authorised under the approval; and
(b)the registrar-general must give the officer any help the officer reasonably requires for the purpose.
(2)The commission officer must, if practicable, give the registrar-general at least 3 days notice of the day the officer intends to create the birth certificate under the birth certificate approval.

s 146Z ins 2006 No. 26 s 92

146ZA Destruction of birth certificate created under s 146Z

(1)This section applies in relation to a birth certificate created under a birth certificate approval (a created birth certificate).
(2)As soon as practicable after the authority for an assumed identity to which the created birth certificate relates is cancelled, the chairperson—
(a)must cause the created birth certificate to be destroyed; and
(b)must notify the registrar-general that the created birth certificate is no longer being used and has been destroyed.

s 146ZA ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Subdivision 2 Other provisions about evidence of assumed identities

ch 3 pt 6B div 3 sdiv 2 hdg ins 2006 No. 26 s 92

146ZB Request for evidence of assumed identity

(1)This section applies if an authority authorises a request under this section.
(2)The chairperson may ask the chief executive officer of an issuing agency stated in the authority to—
(a)produce evidence of an assumed identity in accordance with the authority; and
(b)give evidence of the assumed identity to the authorised person named in the authority.
(3)The request must state a reasonable period for compliance with the request.
(4)A request can not be made under this section for the creation of a birth certificate or a certified copy of a marriage certificate.
(5)In this section—
evidence means evidence similar to that ordinarily produced or given by the issuing agency.

s 146ZB ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZC Government issuing agency to comply with request

The chief executive officer of a government issuing agency who receives a request under section 146ZB must comply with the request within the reasonable period stated in the request.

s 146ZC ins 2006 No. 26 s 92

146ZD Non-government issuing agency may comply with request

The chief executive officer of a non-government issuing agency who receives a request under section 146ZB may comply with the request.

s 146ZD ins 2006 No. 26 s 92

146ZE Cancelling evidence of assumed identity

(1)The chief executive officer of an issuing agency who produces evidence of an assumed identity under this part must cancel the evidence if directed in writing to do so by the chairperson.
(2)In this section—
cancel includes delete or alter an entry in a record of information.

s 146ZE ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Subdivision 3 Protections and indemnities

ch 3 pt 6B div 3 sdiv 3 hdg ins 2006 No. 26 s 92

146ZF Protection from criminal responsibility—officer of issuing agency

(1)A person who does something under subdivision 1 or 2 that, apart from this section, would be an offence, is not criminally responsible for the offence, if the thing is done to give effect to a birth certificate approval.
(2)Also, the chief executive officer, or an officer, of an issuing agency who does something that, apart from this section, would be an offence, is not criminally responsible for the offence if the thing is done to comply with a request under section 146ZB or a direction under section 146ZE.

s 146ZF ins 2006 No. 26 s 92

146ZG Indemnity for issuing agency and officers in relation to creation of birth certificates

(1)This section applies if a birth certificate approval is produced to the registrar-general under section 146Z.
(2)The commission must indemnify the registrar-general, or an officer of the registrar-general, for any civil liability incurred by the registrar-general or officer, including reasonable costs, if—
(a)the liability is incurred because of something done by the registrar-general or officer to comply with section 146Z; and
(b)the requirements, if any, prescribed under a regulation have been met.

s 146ZG ins 2006 No. 26 s 92

146ZH Indemnity for issuing agency and officers in relation to other evidence of assumed identities

(1)This section applies if the chairperson makes a request under section 146ZB or gives a direction under section 146ZE to the chief executive officer of an issuing agency.
(2)The commission must indemnify the issuing agency, or an officer of the agency, for any civil liability incurred by the agency or officer, including reasonable costs, if—
(a)the liability is incurred because of something done by the agency or officer to comply with the request or direction in the course of duty; and
(b)the requirements, if any, prescribed under a regulation have been met.

s 146ZH ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZI Protection from criminal responsibility for particular ancillary conduct

(1)This section applies to conduct, for example aiding or enabling the commission of an offence or conspiring to commit an offence (ancillary conduct), for which a person may be criminally responsible because it involves conduct engaged in by another person for which the other person would, apart from section 146ZF, be criminally responsible (the related conduct).

Note—

The Criminal Code, section 7(1)(b) and (c) makes provision for a person who aids or enables the commission of an offence, and the Criminal Code, chapter 56, makes provision for conspiracy.
(2)Despite any other Act or law, a person who engages in ancillary conduct that is an offence, whether or not the person is an authorised person or an officer of an issuing agency, is not criminally responsible for the offence if at the time the person engaged in the ancillary conduct the person believed the related conduct was being engaged in, or would be engaged in, by an authorised person or an issuing officer of an agency.

s 146ZI ins 2006 No. 26 s 92

Division 4 Effect of authorities

ch 3 pt 6B div 4 hdg ins 2006 No. 26 s 92

146ZJ Assumed identity may be acquired and used

(1)An authorised identity officer may acquire or use an assumed identity if the acquisition or use is—
(a)in accordance with an authority; and
(b)in the course of duty.
(2)An authorised civilian may acquire or use an assumed identity if the acquisition or use is in accordance with—
(a)an authority; and
(b)the directions of the authorised civilian’s supervisor.

s 146ZJ ins 2006 No. 26 s 92

146ZK Protection from criminal responsibility—authorised person

If an authorised person does something that, apart from this section, would be an offence, the authorised person is not criminally responsible for the offence if—
(a)the thing is done in the course of acquiring or using an assumed identity under an authority; and
(b)the thing is done—
(i)for an authorised identity officer—in the course of duty; or
(ii)for an authorised civilian—in accordance with the directions of the authorised civilian’s supervisor; and
(c)doing the thing would not be an offence if the assumed identity were the authorised person’s real identity.

s 146ZK ins 2006 No. 26 s 92

146ZL Indemnity for authorised person

(1)This section applies if the chairperson grants an authority.
(2)The commission must indemnify the authorised person under the authority against any civil liability, including reasonable costs, incurred by the person, because of something done by the person if—
(a)the thing is done in the course of acquiring or using an assumed identity under the authority; and
(b)the thing is done—
(i)for an authorised identity officer—in the course of duty; or
(ii)for an authorised civilian—in accordance with the directions of the authorised civilian’s supervisor; and
(c)the requirements, if any, prescribed under a regulation have been met.
(3)This section does not limit the Police Service Administration Act 1990, section 10.5.

s 146ZL ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZM Particular qualifications

(1)Sections 146ZK and 146ZL do not apply to anything done by an authorised person if—
(a)a particular qualification is needed to do the thing; and
(b)the person does not have the qualification.
(2)Subsection (1) applies whether or not the authorised person has acquired, as evidence of an assumed identity, a document that indicates that the person has the qualification.

s 146ZM ins 2006 No. 26 s 92

146ZN Effect of being unaware of variation or cancellation of authority

(1)If an authority to acquire or use an assumed identity has been varied in a way that limits its scope, this part continues to apply to the authorised person to whom the authority relates as if it had not been varied in that way, for as long as the person—
(a)is unaware of the variation; and
(b)is not reckless about the existence of the variation.
(2)If an authority to acquire or use an assumed identity has been cancelled, this part continues to apply to the authorised person to whom the authority related as if it had not been cancelled, for as long as the person—
(a)is unaware of the cancellation; and
(b)is not reckless about the existence of the cancellation.
(3)For this section, a person is reckless about the existence of the variation or cancellation of an authority if—
(a)the person is aware of a substantial risk that the variation or cancellation has happened; and
(b)having regard to the circumstances known to the person, it is unjustifiable to continue to use the assumed name in a way that was, but may no longer be, authorised by the authority because of the variation or cancellation.

s 146ZN ins 2006 No. 26 s 92

Division 5 Misuse of assumed identity and information

ch 3 pt 6B div 5 hdg ins 2006 No. 26 s 92

146ZO Misuse of assumed identity

(1)An authorised identity officer commits an offence if—
(a)the official intentionally, knowingly or recklessly acquires evidence of, or uses, an assumed identity covered by the officer’s authority; and
(b)the official knows that, or is reckless as to whether, the acquisition or use is not—
(i)in accordance with the officer’s authority; or
(ii)in the course of duty.

Maximum penalty—2 years imprisonment.

(2)An authorised civilian commits an offence if—
(a)the person intentionally, knowingly or recklessly acquires evidence of, or uses, an assumed identity covered by the person’s authority; and
(b)the person knows that, or is reckless as to whether, the acquisition or use is not in accordance with—
(i)the person’s authority; or
(ii)the directions of the person’s supervisor under the authority.

Maximum penalty—2 years imprisonment.

(3)This section does not limit section 213.

s 146ZO ins 2006 No. 26 s 92

146ZP Disclosing information about assumed identity

(1)A person commits an offence if—
(a)the person intentionally, knowingly or recklessly discloses any information; and
(b)the person knows that, or is reckless as to whether, the information reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not the other person’s real identity; and
(c)the person knows that, or is reckless as to whether, the disclosure is not made—
(i)in connection with the administration or execution of this part; or
(ii)for the purposes of any legal proceeding arising out of or otherwise related to this part or of any report of the proceedings; or
(iii)in accordance with any requirement imposed by law.

Maximum penalty—2 years imprisonment.

(2)A person commits a crime if the person commits an offence against subsection (1) in circumstances in which the person—
(a)intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation or intelligence gathering in relation to corruption; or
(b)knows that, or is reckless as to whether, the disclosure of the information—
(i)endangers or will endanger the health or safety of any person; or
(ii)prejudices or will prejudice the effective conduct of an investigation or intelligence gathering in relation to corruption.

Maximum penalty—10 years imprisonment.

(3)This section does not affect section 213.

s 146ZP ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1

Division 6 Reporting and record keeping

ch 3 pt 6B div 6 hdg ins 2006 No. 26 s 92

146ZQ Report about authorities for assumed identities etc.

(1)As soon as practicable after the end of each financial year, the chairperson must give to the chairperson of the parliamentary committee a written report containing the following information in relation to the commission for the financial year—
(a)the number of authorities granted;
(b)a general description of the activities undertaken by authorised persons when using assumed identities under this part;
(c)the number of applications for an authority that were refused;
(d)a statement about whether or not any fraud or other unlawful activity was identified by an audit under section 146ZS;
(e)any other information relating to authorities, assumed identities or the administration of this part that the parliamentary commissioner considers appropriate.
(2)The report must not contain information that, if made public, could reasonably be expected to—
(a)endanger a person’s safety; or
(b)prejudice an investigation or prosecution; or
(c)compromise any law enforcement agency’s operational activities or methodologies.
(3)The chairperson of the parliamentary committee must table a copy of the report in the Legislative Assembly within 14 sitting days after the chairperson receives the report.
(4)This section does not limit section 64.

s 146ZQ ins 2006 No. 26 s 92

amd 2014 No. 21 s 24A, s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZR Record keeping

(1)The chairperson must keep appropriate records about the commission’s operations under this part.
(2)The records must contain all of the following information about each authority granted under this part in relation to the commission—
(a)the date on which the authority was granted and the name of the person who granted it;
(b)if the authority was varied or cancelled under this part—the date it was varied or cancelled, and the name of the person who varied or cancelled it;
(c)the name of the authorised person under the authority;
(d)details of the assumed identity to which the authority relates;
(e)details of any request made to an issuing agency under section 146ZB in relation to the authority;
(f)the general nature of the duties undertaken by the authorised person under the assumed identity;
(g)general details of relevant financial transactions entered into using the assumed identity;
(h)details of reviews of the authority under section 146X.

s 146ZR ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZS Audit of records

(1)The chairperson must have the records kept under section 146ZR for each authority granted in relation to the commission audited by the parliamentary commissioner—
(a)at least once every 6 months while the authority is in force; and
(b)at least once in the 6 months after the cancellation or expiry of the authority.
(2)The parliamentary commissioner must give the chairperson a written report of the results of the audit.

s 146ZS ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Division 7 Delegation

ch 3 pt 6B div 7 hdg ins 2006 No. 26 s 92

146ZT Delegation generally

Other than as provided by this part, and despite any other Act or law to the contrary, the powers of the chairperson under this part may not be delegated to any other person.

s 146ZT ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZU Delegation—chairperson

(1)The chairperson may delegate any of the chairperson’s powers under this part relating to the following to the chief executive officer or a senior executive officer—
(a)the granting, variation and cancellation of authorities;
(b)conducting reviews under section 146X;
(c)authorising the making of an application to the independent member for a birth certificate approval for an assumed identity;
(d)making requests under section 146ZB.
(2)Also, the chairperson may delegate to an authorised commission officer the chairperson’s power under section 146Y to apply to the independent member for authority to create a birth certificate for an assumed identity.
(3)No more than 4 delegations may be in force under this section at any time.

s 146ZU ins 2006 No. 26 s 92

amd 2014 No. 21 s 25; 2016 No. 19 s 45 (1)–(2)

Part 7 Covert searches for crime investigations

147Application of pt 7

This part applies only for a crime investigation.

148Covert search warrant applications

(1)An authorised commission officer, with the chairperson’s approval, may apply to a Supreme Court judge for a warrant (covert search warrant) to enter and search a place for evidence of the commission of major crime being investigated by the commission.
(2)For subsection (1), an authorised commission officer who is a police officer must be of at least the rank of inspector.
(3)The application must—
(a)be sworn and state the grounds on which the warrant is sought; and
(b)state that the covert search warrant is being sought to enter and search a place for evidence of the commission of major crime being investigated by the commission; and
(c)fully disclose all matters, of which the authorised commission officer is aware, both favourable and adverse to the issuing of the warrant sought; and
(d)include information required under a regulation about any warrants issued within the previous year in relation to the place or person suspected of being involved in the major crime to which the application relates.
(4)Subsection (3)(d) applies only to—
(a)information kept in a register that the officer may inspect; and
(b)information the officer otherwise actually knows.
(5)The applicant must advise the public interest monitor of the application under arrangements decided by the monitor.
(6)The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

s 148 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (2)

149Who may be present at consideration of application

(1)The judge must hear an application for a covert search warrant in the absence of anyone other than the following—
(a)the applicant;
(b)a monitor;
(c)someone the judge permits to be present;
(d)a lawyer representing anyone mentioned in paragraphs (a) to (c).
(2)Also, the judge must hear the application—
(a)in the absence of the person the subject of the application (the relevant person) or anyone likely to inform the relevant person of the application; and
(b)without the relevant person having been informed of the application.

150Consideration of application

Before deciding the application, the judge must, in particular, and being mindful of the highly intrusive nature of the exercise of power under a covert search warrant, consider the following—
(a)the nature and seriousness of the major crime being investigated;
(b)the extent to which issuing the warrant would help prevent, detect, or provide evidence of the commission of, the major crime;
(c)the benefits derived from any previous covert search warrants, search warrants or surveillance warrants in relation to the relevant person or place;
(d)the extent to which commission officers investigating the matter have used or can use conventional ways of investigation;
(e)how much the use of conventional ways of investigation would be likely to help in the investigation of the matter;
(f)how much the use of conventional ways of investigation would prejudice the investigation of the matter;
(g)any submissions made by a monitor.

151Issue of covert search warrant

(1)After considering the application, the judge may issue the warrant if satisfied there are reasonable grounds for believing evidence of the commission of the major crime—
(a)is at the place; or
(b)is likely to be taken to the place within the next 72 hours.
(2)The judge may impose any conditions on the warrant that the judge considers are necessary in the public interest.

152What covert search warrant must state

A covert search warrant must state the following—
(a)that a stated commission officer, or any commission officer, may, with reasonable help and force, enter the place, covertly or by subterfuge and exercise covert search powers under the warrant;
(b)the major crime for which the warrant was issued;
(c)any evidence or samples of evidence that may be seized under the warrant;
(d)that the warrant may be executed at any time of the day or night;
(e)that, if practicable, the search must be videotaped;
(f)the day and time the warrant starts and when the warrant ends, being not more than 30 days after the warrant starts;
(g)any conditions imposed under section 151(2).

s 152 amd 2002 No. 68 s 283 sch 3

153Duration and extension of covert search warrant

(1)A covert search warrant is in force until the earlier of the following—
(a)when the warrant is stated to end;
(b)when the initial search is complete.
(2)However, the warrant may be extended from time to time on application.
(3)The provisions of this part for an application for a covert search warrant apply to an application for an extension, with all necessary changes.

154Restriction about records and access to covert search warrant applications

(1)Despite the Recording of Evidence Act 1962, a transcript of an application for a covert search warrant or an extension of a covert search warrant and any order made on the application must not be made.
(2)A person must not publish a report of a proceeding on an application for a covert search warrant or an extension of a covert search warrant.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)A person is not entitled to search information in the custody of the Supreme Court in relation to an application for a covert search warrant, unless a Supreme Court judge otherwise orders in the interests of justice.
(4)Nothing in this section prevents a person who was present at a proceeding on an application for a covert search warrant or an extension of a covert search warrant from giving oral evidence to a court about things that happened at the proceeding.

155Powers under covert search warrant

A commission officer to whom a covert search warrant is directed may, subject to the warrant, lawfully exercise the following powers under the warrant (covert search powers)—
(a)power to enter the place stated in the warrant (the relevant place), covertly or through subterfuge, as often as is reasonably necessary for the purposes of the warrant and stay at the place for the time reasonably necessary;
(b)power to pass over, through, along or under another place to enter the relevant place;
(c)power to search the relevant place for anything sought under the warrant;
(d)power to open anything at the relevant place that is locked;
(e)power to seize a thing or part of a thing found at the relevant place that the commission officer reasonably believes is evidence of the commission of major crime stated in the warrant;
(f)power to photograph anything the commission officer reasonably believes may provide evidence of the commission of major crime stated in the warrant;
(g)power to inspect or test anything found at the place.

156Report on covert search

(1)A commission officer must give to the Supreme Court judge who issued the covert search warrant and a monitor a report containing information required under a regulation on the exercise of the powers under the warrant.
(2)The report must be given to the judge and a monitor within 7 days after the warrant is executed or, if that is impracticable because of the unavailability of the judge, as soon as practicable after the warrant is executed.
(3)The officer must, if practicable, also take before the judge anything seized under the warrant and any photograph taken during the search.
(4)The judge may, in relation to a thing mentioned in subsection (3), order that it—
(a)be held by the commission until any proceeding in which the thing may be evidence ends; or
(b)be dealt with in the way the judge orders.

Part 8 Additional powers with court’s approval

157Application of pt 8

(1)This part applies only for a corruption investigation or a crime investigation relating to terrorism.
(2)In this section—
terrorism includes something that is—
(a)preparatory to the commission of terrorism; or
(b)undertaken to avoid detection of, or prosecution for, terrorism.

s 157 amd 2004 No. 8 s 8; 2014 No. 21 s 94 (1) sch 1

158Additional powers warrant applications

(1)With the chairperson’s approval, an authorised commission officer may apply to a Supreme Court judge for a warrant (additional powers warrant) authorising the use of powers under this part.
(2)For subsection (1), an authorised commission officer who is a police officer must be of at least the rank of inspector.
(3)The application must—
(a)be sworn and state the grounds on which the warrant is sought; and
(b)state the powers sought; and
(c)fully disclose all matters, of which the applicant is aware, both favourable and adverse to the issuing of the warrant sought by the applicant.
(4)The applicant must advise any person the judge directs is to be advised of the application.
(5)The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

s 158 amd 2014 No. 21 s 25; 2016 No. 19 s 45 (2)

159Who may be present at consideration of application

(1)The judge must hear an application for an additional powers warrant in the absence of anyone other than the following—
(a)the applicant;
(b)someone the judge permits or directs to be present;
(c)a lawyer representing anyone mentioned in paragraphs (a) or (b).
(2)Also, the judge must hear the application—
(a)in the absence of the person the subject of the application (the relevant person) or anyone likely to inform the relevant person of the application; and
(b)without the relevant person having been informed of the application.

160Consideration of application

Before deciding the application, the judge must, in particular, and being mindful of the highly intrusive nature of the exercise of power under an additional powers warrant, consider the following—
(a)the nature and seriousness of the corruption or terrorism being investigated;
(b)the significance to the commission’s purposes of the objects of the proposed exercise of authority;
(c)the extent to which commission officers investigating the matter have used or can use other powers for the investigation;
(d)how much the use of the additional powers would be likely to help in the investigation of the matter;
(e)any submissions made by a monitor.

s 160 amd 2004 No. 8 s 9; 2014 No. 21 s 94 (1) sch 1

161Issue of additional powers warrant

(1)After considering the application, the judge may issue the warrant for a period of not more than 30 days if satisfied there are reasonable grounds for believing that the use of the additional powers sought is justified in the particular circumstances of the case.
(2)The judge may impose any conditions on the warrant that the judge considers are necessary in the public interest.

162What additional powers warrant must state

An additional powers warrant must state the following—
(a)that a stated commission officer, or any commission officer, may, with reasonable help and force, enter a place and exercise powers under the warrant;
(b)brief particulars of the corruption or terrorism for which the warrant is issued;
(c)any evidence or samples of evidence that may be seized under the warrant;
(d)that the warrant may be executed at any time of the day or night;
(e)the day and time the warrant starts and when the warrant ends;
(f)any conditions imposed under section 161(2).

s 162 amd 2002 No. 68 s 283 sch 3; 2004 No. 8 s 10; 2014 No. 21 s 94 (1) sch 1

163Duration and extension of additional powers warrant

(1)An additional powers warrant is in force until the earlier of the following—
(a)when the warrant is stated to end;
(b)when the initial search is complete.
(2)However, the warrant may be extended from time to time on application.
(3)The provisions of this part for an application for an additional powers warrant apply to an application for an extension, with all necessary changes.

164Restriction about records and access to additional powers warrant applications

(1)Despite the Recording of Evidence Act 1962, a transcript of an application for an additional powers warrant or an extension of an additional powers warrant and any order made on the application must not be made.
(2)A person must not publish a report of a proceeding on an application for an additional powers warrant or an extension of an additional powers warrant.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)A person is not entitled to search information in the custody of the Supreme Court in relation to an application for an additional powers warrant, unless a Supreme Court judge otherwise orders in the interests of justice.
(4)Nothing in this section prevents a person who was present at a proceeding on an application for an additional powers warrant or an extension of an additional powers warrant from giving oral evidence to a court about things that happened at the proceeding.

165Powers under additional powers warrant

(1)A commission officer to whom an additional powers warrant is directed may, subject to the warrant, lawfully exercise the following powers under the warrant—
(a)power, at any time during business hours—
(i)to enter premises at which records of a financial entity or a suspected associate of a person being investigated are held; and
(ii)to inspect and make copies of, or take extracts from, the records so far as they relate to the affairs of the person being investigated;
(b)power to seize passports, other travel documents, instruments of title to property, securities and financial documents found in the possession or control of a person concerned in an investigation;
(c)power to require a person to give to the commission or officer 1 or more sworn affidavits or statutory declarations relating to the property of, financial transactions of, or movements of money or other assets by—
(i)for a corruption investigation—a person holding an appointment in a unit of public administration or someone associated with the person holding the appointment; or
(ii)for a crime investigation relating to terrorism—a person being investigated or a suspected associate of the person being investigated.
(2)In this section—
financial entity means—
(a)a financial institution; or
(b)an insurance company; or
(c)a stock and share broker; or
(d)a person engaged in a business of—
(i)investing money for others; or
(ii)providing credit facilities.
person being investigated means a person to whom an investigation by the commission relates.
suspected associate, of a person being investigated, means a person suspected of having a relevant association with the person being investigated.

s 165 amd 2004 No. 8 s 11; 2014 No. 21 s 94 (1) sch 1

Part 9 Warrants register

166Register of warrants, warrant applications etc.

(1)The commission must keep a register of prescribed information in the way the commission considers appropriate.
(2)The register is not open to inspection by anyone other than the following—
(a)the commission;
(b)a monitor;
(c)the parliamentary commissioner.
(3)However, if the commission considers it appropriate, the commission may, in writing, authorise a person who may not otherwise inspect the register to inspect the register on conditions the commission considers appropriate.
(4)The commission may authorise a person to inspect the register under subsection (3) only if it is satisfied the inspection is necessary—
(a)for an investigation into major crime or corruption, or a confiscation related investigation, for which information in the register may be relevant; or
(b)for maintaining the register; or
(c)for preparing an application under part 2, or part 6, division 2, or part 7 for a warrant or for an extension of a warrant; or
(d)to monitor compliance with this Act.
(5)A person authorised under subsection (3) to inspect the register may inspect it only to the extent necessary for the purpose for which the authority is given.
(6)In this section—
prescribed information means information prescribed under a regulation about—
(a)applications for—
(i)search warrants; or
(ii)surveillance warrants; or
(iii)extensions of surveillance warrants; or
(iv)covert search warrants; or
(v)extensions of covert search warrants; or
(vi)additional powers warrants; or
(vii)extensions of additional powers warrants; or
(viii)approvals for controlled operations or variations of approvals for controlled operations under this Act; or
(ix)monitoring orders; or
(x)suspension orders; or
(b)a disclosure of information under section 130(2)(f)(ii) or (g).

s 166 amd 2002 No. 68 s 297; 2005 No. 45 s 67 sch 3; 2006 No. 41 s 3 sch; 2007 No. 37 s 162 sch; 2009 No. 48 s 140; 2013 No. 21 s 11; 2014 No. 21 s 94 (1) sch 1

Part 10 Arrest warrants

167Arrest warrant application

(1)An authorised commission officer, with the chairperson’s approval, may apply to a magistrate for a warrant for the apprehension of a person (arrest warrant) who has been given an attendance notice.
(2)The application must be sworn and state the grounds on which the warrant is sought.
(3)The magistrate may refuse to consider the application until the officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

s 167 amd 2013 No. 45 s 16; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (2)

168Issue of arrest warrant

(1)The magistrate may issue a warrant for the apprehension of the person if the magistrate is satisfied—
(a)on sworn evidence before the magistrate—
(i)the person—
(A)has been given the attendance notice; and
(B)has, without reasonable excuse, failed to attend at the commission hearing as required by the notice; or
(ii)the person has made a representation that the person intends not to attend at a commission hearing as required by the attendance notice; and
(b)it is in the public interest that the person be compelled to attend at the hearing to avoid prejudice to the conduct of an investigation.
(2)For subsection (1)(a)(ii), an arrest warrant may be issued even though the time stated in the attendance notice for the person to attend has not yet passed.
(3)In this section—
representation includes—
(a)an express or implied representation, whether oral or in writing; and
(b)a representation inferred from conduct; and
(c)a representation not intended by its maker to be communicated to or seen by another person.

s 168 amd 2013 No. 45 s 17

169What arrest warrant authorises

(1)The arrest warrant authorises any authorised commission officer or police officer (authorised officer) to whom it is addressed to enter a place, using the force reasonably necessary, and to stay for a reasonable time on the place to apprehend the person subject to the warrant.
(2)The person apprehended—
(a)must be brought immediately before a commission hearing; and
(b)may be detained in custody until excused from attendance at the hearing by the presiding officer at the hearing.
(3)The Bail Act 1980 applies to a person taken into custody under an arrest warrant in the same way it applies to a person in custody charged with an offence.
(4)The arrest warrant may be executed by any authorised officer to whom it is addressed.
(5)An authorised officer executing the arrest warrant may use the force that is reasonably necessary, including force to enter premises, to execute the warrant.
(6)However, before the authorised officer uses force that may cause damage to a place to gain entry to the place, the authorised officer must, if reasonably practicable—
(a)ask the occupier of the place to allow the authorised officer to enter the place; and
(b)give the occupier a reasonable opportunity to allow the entry.

s 169 amd 2006 No. 41 s 3 sch

170Provision for overnight detention

Unless the arrest warrant otherwise provides, if the person is required to be detained overnight, the commission must arrange for the person to be provided with accommodation and meals to a standard comparable to that generally provided to jurors kept together overnight.

s 170 amd 2009 No. 48 s 141

171Person’s liability for noncompliance with attendance notice unaffected by issue of arrest warrant

The issue of an arrest warrant for the apprehension of a person, or the apprehension of a person under the arrest warrant, does not relieve the person from any liability incurred by the person for noncompliance with an attendance notice.

Part 11 General

172Commission officer may use assistance in exercising particular powers

(1)It is lawful for a commission officer exercising a power under this Act—
(a)to seek the assistance of another person (an assistant) the officer reasonably requires for performing a function of the commission; or
(b)to take onto a place any assistant, equipment, vehicle, animal or material the officer reasonably requires for exercising the power.

Examples—

1A commission officer may seek the help of an electrician to install a listening device under a surveillance warrant.
2A commission officer may seek the help of a translator to interpret conversations and visual images recorded using a surveillance device.
(2)The commission officer may authorise the assistant—
(a)to take stated action at the place; and
(b)to exercise stated powers the commission officer is authorised to exercise.
(3)However, the commission officer can not authorise the assistant to apprehend a person.
(4)The commission officer must, if practicable, tell the assistant—
(a)of the action the assistant is authorised to take; and
(b)of the assistant’s powers under this section.
(5)Subsection (1) applies, in relation to animals, despite any other Act or law.

173Protection for assistants from liability

(1)An assistant does not incur civil liability for an act done, or omission made, honestly and without negligence, while acting as an assistant.
(2)If subsection (1) prevents a liability attaching to an assistant, liability attaches instead to the State.

174Commission’s powers generally

(1)Without limiting the commission’s specific powers under this or another Act, the commission has power to do all things necessary or convenient to be done for or in connection with, or reasonably incidental to, the performance of its functions.

Note—

See, for example, the Police Powers and Responsibilities Act 2000, chapter 11 (Controlled operations).
(2)A person who is a member of a relevant office whose services are seconded to the commission under section 255 retains, and may exercise, all powers had by the person as a member of the office.
(3)In this section—
relevant office means a unit of public administration or an office within a unit of public administration.

s 174 amd 2009 No. 48 s 130

175Supplying officer’s details

(1)This section applies if a commission officer—
(a)searches a place under a warrant, other than a covert search warrant, under this chapter; or
(b)seizes any property, other than under a covert search warrant, under this chapter.
(2)The officer must, as soon as is reasonably practicable, inform the person the subject of the power of the following—
(a)the fact that the officer is a commission officer;
(b)the officer’s name;
(c)if the officer is a police officer, his or her rank and station.
(3)If the officer is not a police officer in uniform, the officer must also produce for inspection his or her identity card.
(4)If 2 or more officers are searching a place, only the officer in charge of the search is required to comply with subsections (2) and (3), unless a person asks another officer for the information.

Chapter 4 Hearings and deciding claims of privilege and excuse

Part 1 Proceedings

176Commission may hold hearings

(1)The commission may authorise the holding of a hearing in relation to any matter relevant to the performance of its functions.
(2)Subsection (1) does not authorise the commission to hold a hearing for a confiscation related investigation.
(3)The commission may hold a hearing in relation to the performance of its intelligence function if the hearing is permitted under an authorisation under section 55A or 55D.

s 176 amd 2002 No. 68 s 298; 2013 No. 45 s 18; 2016 No. 62 s 45

177Whether hearings are to be open or closed

(1)Generally, a hearing is not open to the public.
(2)However—
(a)for a hearing for a crime investigation, the commission may open the hearing to the public (public hearing) if it—
(i)considers opening the hearing will make the investigation to which the hearing relates more effective and would not be unfair to a person or contrary to the public interest; and
(ii)approves that the hearing be a public hearing; or
(b)for a witness protection function hearing, the commission may open the hearing to the public if it—
(i)considers opening the hearing will make the hearing more effective and—
(A)would not be unfair to a person or contrary to the public interest; and
(B)would not threaten the security of a protected person or the integrity of the witness protection program or other witness protection activities of the commission; and
(ii)approves that the hearing be a public hearing; or
(c)for a hearing other than a hearing mentioned in paragraph (a) or (b), the commission may open the hearing to the public if it—
(i)considers closing the hearing to the public would be unfair to a person or contrary to the public interest; and
(ii)approves that the hearing be a public hearing.
(3)A decision about whether a hearing should be a public hearing must not be delegated.
(4)If the commission decides to open a hearing to the public, the presiding officer for the hearing may close the hearing for a particular purpose.

s 177 amd 2006 No. 41 s 9

178Who must conduct hearings

(1)The chairperson must conduct a public hearing.
(2)However, if the chairperson considers it necessary for the efficient operation of the commission, a public hearing may be conducted by a sessional commissioner or senior executive officer as decided by the chairperson.
(2A)More than 1 public hearing may be conducted at the same time.
(3)A closed hearing may be conducted by any of the following as decided by the chairperson—
(a)the chairperson;
(b)a sessional commissioner;
(c)a senior executive officer;
(d)another person qualified for appointment as the chairperson.

s 178 amd 2006 No. 41 s 10; 2014 No. 21 s 26; 2016 No. 19 s 45 (1)

179Who may be present at closed hearings

(1)The presiding officer conducting a closed hearing may give a direction about who may be present at the hearing.
(2)A person must not knowingly contravene a direction under subsection (1).

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)In this section—
hearing includes part of a hearing.

180Conduct of hearings

(1)When conducting a hearing, the presiding officer—
(a)must act quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before the presiding officer; and
(b)is not bound by the rules of evidence; and
(c)may inform himself or herself of anything in the way he or she considers appropriate; and
(d)may decide the procedures to be followed for the hearing.
(2)The presiding officer or a person nominated by the presiding officer for the purpose may administer an oath, or take a statutory declaration, required by the presiding officer.
(3)The presiding officer may, by order, prohibit the publication of—
(a)an answer given, or document or thing produced, at a commission hearing or anything about the answer, document or thing; or
(b)information that might enable the existence or identity of a person who is about to give or has given evidence before the commission at a hearing to be ascertained.
(4)The presiding officer is taken, for the purposes of the hearing, to be the commission.

181Legal representation and examination

(1)A witness at a commission hearing may be legally represented at the hearing.
(2)A witness may be examined, cross-examined or re-examined on any matter the presiding officer considers relevant by—
(a)the presiding officer; or
(b)counsel assisting the commission at the hearing; or
(c)a person authorised by the presiding officer; or
(d)a lawyer representing the witness.
(3)The presiding officer may allow a person who is not giving sworn evidence at the hearing to be legally represented at the hearing if the presiding officer considers there are special circumstances.

182Right to interpreter

(1)This section applies if the presiding officer at a commission hearing reasonably suspects a witness is unable, because of inadequate knowledge of the English language or a physical disability, to understand what is being said or to speak with reasonable fluency in English.
(2)Before the witness is questioned, the presiding officer must arrange for the presence of an interpreter and delay the questioning until the interpreter is present.

Part 2 Refusals and claims of privilege and reasonable excuse

Division 1 Refusal to be sworn

183Refusal to take oath

A person attending at a commission hearing to give sworn evidence must not fail to take an oath when required by the presiding officer.

Maximum penalty—200 penalty units or 5 years imprisonment.

s 183 amd 2013 No. 64 s 32

Division 2 Refusal to produce

Subdivision 1 Crime investigations and intelligence and witness protection functions

ch 4 pt 2 div 2 sdiv 1 hdg amd 2006 No. 41 s 3 sch; 2013 No. 45 s 19

184Application of sdiv 1

This subdivision applies only in the context of—
(a)a crime investigation; or
(b)an intelligence function hearing; or
(c)a witness protection function hearing.

s 184 sub 2006 No. 41 s 11

amd 2013 No. 45 s 20

185Refusal to produce—claim of reasonable excuse

(1)A person required to produce a stated document or thing at a commission hearing under an attendance notice or a section 75B requirement must—
(a)in all cases, bring the document or thing to the hearing if the document or thing is in the person’s possession; and
(b)produce the document or thing at the hearing, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units or 5 years imprisonment.

(2)A claim of privilege, other than legal professional privilege, is not a reasonable excuse for subsection (1)(b).

Note—

A refusal to produce a document or thing under a claim of legal professional privilege is considered under section 194.
(3)A claim of legal professional privilege is not a reasonable excuse for subsection (1)(b) if—
(a)the person has authority to waive the privilege and waives it; or
(b)the privilege is waived by a person having authority to waive it.
(4)The presiding officer must decide a claim of reasonable excuse mentioned in subsection (1)(b) under section 194.
(5)Subsection (6) applies if the person—
(a)at the hearing, refuses to produce the document or thing on the ground that legal professional privilege attaches to the document or thing; and
(b)has no authority to waive the privilege.
(6)The person must, if required by the presiding officer—
(a)tell the presiding officer the name and address of the person entitled to waive the privilege; and
(b)seal the document or thing and, at the hearing, give it to the commission for safe keeping.

Maximum penalty—200 penalty units or 5 years imprisonment.

(7)The commission must—
(a)give the person a receipt for the sealed document or thing (the sealed evidence); and
(b)place it in safe custody at the commission’s place of business at the earliest reasonable opportunity.
(8)A person must not open the sealed evidence unless authorised to open it under this Act or a court order.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(9)The commission must return the sealed evidence to the person who gave it to the commission if the commission has not, within 3 months after the day on which the sealed evidence was given to the commission, given the person entitled to waive the privilege a notice to attend a hearing and to produce the sealed evidence.

s 185 amd 2006 No. 41 s 12; 2013 No. 45 s 21; 2013 No. 64 s 33; 2016 No. 62 s 46

186Return of sealed documents or things for decision on claim of privilege at hearing

(1)If—
(a)a person has given to a commission officer under section 78 a sealed document or thing (the sealed evidence); and
(b)the commission has given the person a notice to attend a hearing to produce the sealed evidence;

the commission must return the sealed evidence to the person at the hearing before the person is required at the hearing to produce the sealed evidence.

(2)If—
(a)a person has given the commission under section 185(6)(b) a sealed document or thing (also the sealed evidence); and
(b)the commission has given another person a notice to attend a hearing to produce the sealed evidence;

the commission must give the sealed evidence to the person attending the hearing before the person is required at the hearing to produce the sealed evidence.

s 186 amd 2002 No. 68 s 283 sch 3

Subdivision 2 Corruption investigations

ch 4 pt 2 div 2 sdiv 2 hdg amd 2014 No. 21 s 94 (1) sch 1

187Application of sdiv 2

This subdivision applies only in the context of a corruption investigation.

s 187 amd 2009 No. 48 s 131; 2014 No. 21 s 94 (1) sch 1

188Refusal to produce—claim of reasonable excuse

(1)This section applies if a person is required to produce a stated document or thing—
(a)to an identified commission officer under a notice to discover under section 75; or
(b)at a commission hearing under an attendance notice; or
(c)under a section 75B requirement.
(2)The person must—
(a)in all cases, bring the document or thing to the commission officer or to the hearing if the document or thing is in the person’s possession; and
(b)produce the document or thing to the commission officer or at the hearing, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units or 5 years imprisonment.

(3)It is not a reasonable excuse for subsection (2)(b) to fail to produce the document or thing because producing the document or thing might tend to incriminate the person.
(4)Section 197 does not apply to a document or thing produced under this section.

s 188 amd 2002 No. 68 s 283 sch 3; 2006 No. 41 s 13; 2013 No. 64 s 34

Division 3 Refusal to answer

Subdivision 1 Crime investigations and intelligence and witness protection functions

ch 4 pt 2 div 3 sdiv 1 hdg amd 2006 No. 41 s 3 sch; 2013 No. 45 s 22

189Application of sdiv 1

This subdivision applies only in the context of the following—
(a)a crime investigation;
(b)an intelligence function hearing; or
(c)a witness protection function hearing.

s 189 sub 2006 No. 41 s 14

amd 2013 No. 45 s 23

190Refusal to answer question

(1)A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units or 5 years imprisonment.

(2)The person is not entitled—
(a)to remain silent; or
(b)to refuse to answer the question on a ground of privilege, other than legal professional privilege.
(3)If—
(a)the person refuses to answer a question on the ground the answer to the question would disclose a communication to which legal professional privilege attaches; and
(b)the person has no authority to waive the privilege;

the person must, if required by the presiding officer, tell the officer the name and address of the person to whom or by whom the communication was made.

Maximum penalty—200 penalty units or 5 years imprisonment.

s 190 amd 2013 No. 45 s 24; 2013 No. 64 s 35; 2016 No. 62 s 47

Subdivision 2 Corruption investigations

ch 4 pt 2 div 3 sdiv 2 hdg amd 2014 No. 21 s 94 (1) sch 1

191Application of sdiv 2

This subdivision applies only in the context of a corruption investigation.

s 191 amd 2009 No. 48 s 131; 2014 No. 21 s 94 (1) sch 1

192Refusal to answer question

(1)A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer.

Maximum penalty—200 penalty units or 5 years imprisonment.

(2)The person is not entitled—
(a)to remain silent; or
(b)to refuse to answer the question on the ground of the self-incrimination privilege or the ground of confidentiality.
(2A)The person is entitled to refuse to answer the question on the following grounds of privilege—
(a)legal professional privilege;
(b)public interest immunity;
(c)parliamentary privilege.
(3)If—
(a)the person refuses to answer a question on the ground the answer to the question would disclose a communication to which legal professional privilege attaches; and
(b)the person has no authority to waive the privilege;

the person must, if required by the presiding officer, tell the officer the name and address of the person to whom or by whom the communication was made.

Maximum penalty for subsection (3)—200 penalty units or 5 years imprisonment.

s 192 amd 2008 No. 50 s 11; 2013 No. 64 s 36

Division 4 Deciding claims

Subdivision 1 Crime investigations and intelligence and witness protection functions

ch 4 pt 2 div 4 sdiv 1 hdg amd 2006 No. 41 s 3 sch; 2013 No. 45 s 25

193Application of sdiv 1

This subdivision applies only in the context of the following—
(a)a crime investigation;
(b)an intelligence function hearing;
(c)a witness protection function hearing.

s 193 sub 2006 No. 41 s 15

amd 2013 No. 45 s 26

194Presiding officer to decide whether refusal to answer questions or produce documents or things is justified

(1)This section applies if a person claims to have a reasonable excuse, including a reasonable excuse based on a claim of legal professional privilege, for not complying with a requirement made of the person at a commission hearing—
(a)to answer a question put to the person; or
(b)to produce a document or thing that the person was required to produce.
(1A)The presiding officer must decide whether or not there is a reasonable excuse.
(1B)The presiding officer must decide, after hearing the person’s submissions—
(a)that the requirement will not be insisted on; or
(b)that the officer is not satisfied the person has a reasonable excuse.
(2)If the presiding officer decides, after hearing the person’s submissions, that the person has a reasonable excuse based on self-incrimination privilege for not complying with the requirement—
(a)the presiding officer may require the person to comply with the requirement; and
(b)section 197 applies in relation to the answer, document or thing given or produced.
(3)If the presiding officer decides the person did not have a reasonable excuse for not complying with the requirement, the presiding officer must—
(a)give the person reasons for the decision; and
(b)require the person to answer the question, or to produce the document or thing as required by the attendance notice, subject to the person’s right of appeal under section 195; and
(c)advise the person that the person may appeal the presiding officer’s decision to the Supreme Court within the time allowed under section 195.

Note—

A refusal to comply with the requirement to answer the question or produce the document or thing is an offence against section 185 or 192.
(4)If—
(a)the person is required to produce a document or thing under subsection (3); and
(b)the person informs the presiding officer that the person wishes to appeal or consider an appeal under section 195;

the person must immediately seal the document or thing and give it to the commission for safekeeping.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)The commission must—
(a)give the person a receipt for the sealed document or thing (the sealed evidence); and
(b)place it in safe custody at the commission’s place of business at the earliest reasonable opportunity.
(6)A person must not open the sealed evidence unless authorised to open it under this Act or a court order.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(7)If the person fails to apply for leave to appeal within the time allowed under section 195, or leave to appeal is refused under that section, the commission may access the sealed evidence.

s 194 amd 2002 No. 68 s 283 sch 3; 2006 No. 41 s 16

195Appeals to Supreme Court

(1)A person may appeal against a decision of a presiding officer given under section 194(3)(b) if—
(a)the person applies for leave to appeal the decision within 7 court days after the person is given the presiding officer’s reasons for decision; and
(b)the Supreme Court grants leave to appeal.
(2)The Supreme Court may grant leave to appeal only if the court is satisfied—
(a)if the appeal relates to a document or thing—the document or thing has been given to the commission and placed in safe custody; and
(b)in all cases—the appeal has a significant prospect of success or there is some important question of law involved.
(3)An application for leave to appeal must state the grounds of the application.
(4)The Supreme Court must deal with an application for leave to appeal and the appeal expeditiously.
(5)On hearing the appeal, the Supreme Court may make an order—
(a)affirming the presiding officer’s decision; or
(b)setting aside the presiding officer’s decision.
(6)If the court affirms the presiding officer’s decision about a document or thing, the commission may access the document or thing.
(7)If the court sets aside the decision about a document or thing, the court must make an order directing that the document or thing be delivered to the person.
(8)A person may appeal only once under subsection (1) in relation to a particular reasonable excuse claimed by the person for not answering a question or producing a document or thing at a commission hearing.
(9)An application for leave to appeal, and an appeal, under this section are to be heard in closed court.

Note—

See also section 200A in relation to the confidentiality of proceedings under this section.
(10)However, the court may permit a person to be present at a hearing for the application for leave to appeal, or appeal, in the interests of justice.

s 195 amd 2013 No. 64 s 37

Subdivision 1A Confiscation related investigations

ch 4 pt 2 div 4 sdiv 1A hdg ins 2002 No. 68 s 299

195AApplication of sdiv 1A

This subdivision applies only in the context of a confiscation related investigation.

s 195A ins 2002 No. 68 s 299

amd 2009 No. 48 s 131

195BSupreme Court to decide claim of privilege

(1)This section applies if a person makes a claim of privilege under section 74A in relation to a document or thing.
(2)The chairperson or the person making the claim of privilege may apply to a Supreme Court judge to decide whether the claim is established and, if established, whether it is to be upheld.
(3)The burden of proof on the application is on the person who seeks to withhold the document or thing or to prevent the exercise of authority.
(4)The judge must consider submissions and decide whether the claim is established.
(5)If the judge decides that the claim is established on a ground of public interest immunity, the judge may order the person to produce the document or thing to the commission if the judge decides that, on balance, the public interest is better served by producing the document or thing.
(6)If the judge decides that the claim is established on a ground of confidentiality, the judge must order the person to produce the document or thing to the commission unless the judge decides that to produce the document or thing would be against the public interest.
(7)If the judge decides that the claim of self-incrimination privilege is established, the judge must order the person to produce the document or thing to the commission.
(8)Costs of an application made in relation to a claim of privilege are to be borne by the commission, unless otherwise ordered by the judge on the ground that the claim is frivolous or vexatious.

s 195B ins 2002 No. 68 s 299

amd 2006 No. 41 s 17; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Subdivision 2 Corruption investigations

ch 4 pt 2 div 4 sdiv 2 hdg amd 2014 No. 21 s 94 (1) sch 1

196Supreme Court to decide claim of privilege

(1)This section applies if a person makes a claim of privilege under section 73, 75, 94 or 111 in relation to information or a document or thing or under section 192 in relation to a refusal to answer a question.
(2)The chairperson or the person making the claim of privilege may apply to a Supreme Court judge to decide whether the claim is established and, if established, whether it is to be upheld.
(3)The burden of proof on the application is on the person who seeks to withhold the information, document or thing or to prevent the exercise of authority.
(4)The judge must consider submissions and decide whether the claim is established.
(5)If the judge decides that the claim is established on a ground of public interest immunity, the judge may order the person to give the information or produce the document or thing to the commission if the judge decides that, on balance, the public interest is better served by giving the information or producing the document or thing.
(6)If the judge decides that the claim is established on a ground of confidentiality, the judge must order the person to give the information or produce the document or thing to the commission unless the judge decides that to give the information or produce the document or thing would be against the public interest.
(7)Costs of an application made in relation to a claim of privilege are to be borne by the commission, unless otherwise ordered by the judge on the ground that the claim is frivolous or vexatious.

s 196 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

Division 5 Restrictions on use

197Restriction on use of privileged answers, documents, things or statements disclosed or produced under compulsion

(1)This section applies if—
(a)before an individual answers a question put to the individual by the commission or a commission officer or produces a document or thing or a written statement of information to the commission or a commission officer, the individual claims self-incrimination privilege in relation to the answer or production; and
(b)apart from this Act, the individual would not be required to answer the question or produce the document, thing or statement in a proceeding if the individual claimed self-incrimination privilege in relation to the answer or production; and
(c)the individual is required to answer the question or produce the document, thing or statement.
(2)The answer, document, thing or statement given or produced is not admissible in evidence against the individual in any civil, criminal or administrative proceeding.
(3)However, the answer, document, thing or statement is admissible in a civil, criminal or administrative proceeding—
(a)with the individual’s consent; or
(b)if the proceeding is about—
(i)the falsity or misleading nature of an answer, document, thing or statement mentioned in subsection (1) and given or produced by the individual; or
(ii)an offence against this Act; or
(iii)a contempt of a person conducting the hearing; or
(c)if the proceeding is a proceeding, other than a proceeding for the prosecution of an offence, under the Confiscation Act and the answer, document, thing or statement is admissible under section 265 of that Act.
(4)Also, the document is admissible in a civil proceeding about a right or liability conferred or imposed by the document.
(5)In a commission hearing, the presiding officer may order that all answers or a class of answer given by an individual or that all documents or things or a class of document or thing produced by an individual is to be regarded as having been given or produced on objection by the individual.
(6)If the presiding officer makes an order under subsection (5), the individual is taken to have objected to the giving of each answer, or to the producing of each document or thing, the subject of the order.
(7)Subsection (2) does not prevent any information, document or other thing obtained as a direct or indirect consequence of the individual giving or producing the answer, document, thing or statement from being admissible in evidence against the individual in a civil, criminal or administrative proceeding.

s 197 amd 2002 No. 68 s 283 sch 3; 2006 No. 41 s 18; 2013 No. 45 s 27; 2013 No. 64 s 38; 2018 No. 29 s 18

Part 3 Contempt

198Contempt of person conducting commission hearing

(1)A person is in contempt of the presiding officer conducting a commission hearing if the person—
(a)insults the member while the member is conducting the hearing; or
(b)deliberately interrupts the hearing; or
(c)at the hearing, contravenes a provision of this Act relating to the hearing; or
(d)creates or continues or joins in creating or continuing, a disturbance in or near a place where the presiding officer is conducting the hearing; or
(e)does anything at the hearing or otherwise that would be contempt of court if the presiding officer were a judge acting judicially.
(2)The presiding officer may order that a person who under subsection (1) is in contempt of the commission at a hearing be excluded from the place where the hearing is being conducted.
(3)A commission officer, acting under the presiding officer’s order, may, using necessary and reasonable help and force, exclude the person from the place.
(4)To remove any doubt, it is declared that the following contraventions relating to a hearing may be certified in writing to the Supreme Court under section 199 as a contempt of the presiding officer—
(a)a failure by a person, under section 183, to take an oath when required by the presiding officer;
(b)a failure by a person, under section 185 or 188, to produce a stated document or thing at a commission hearing under an attendance notice or a section 75B requirement without reasonable excuse;
(c)a failure by a person, under section 190 or 192, to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse.

s 198 amd 2013 No. 45 s 28; 2013 No. 64 s 39

198APerson in contempt may be detained

(1)If the presiding officer expresses an intention at the hearing to certify the contempt in writing to the Supreme Court, the presiding officer may, during the hearing, direct a police officer to detain the person for the purpose of bringing the person before the Supreme Court to be dealt with according to law.
(2)If the person is detained under subsection (1), the person must be brought before the court as soon as practicable.

s 198A ins 2013 No. 45 s 29

199Punishment of contempt

(1)A person’s contempt of the presiding officer conducting a commission hearing may be punished under this section.
(2)The presiding officer may certify the contempt in writing to the Supreme Court (the court).
(3)For subsection (2), it is enough for the presiding officer to be satisfied that there is evidence of contempt.
(4)The presiding officer may issue a warrant directed to a police officer or all police officers for the apprehension of the person to be brought before the Supreme Court to be dealt with according to law.
(5)The Bail Act 1980 applies to the proceeding for the contempt started by the certification in the same way it applies to a charge of an offence.
(6)The court must inquire into the alleged contempt.
(7)The court must hear—
(a)witnesses and evidence that may be produced against or for the person whose contempt was certified; and
(b)any statement given by the person in defence.
(8)If the court is satisfied the person has committed the contempt, the court may punish the person as if the person had committed the contempt in relation to proceedings in the court.
(8A)However, the court must punish the person in contempt by imprisonment if—
(a)the contempt that is certified is—
(i)a failure by a person, under section 183, to take an oath when required by the presiding officer; or
(ii)a failure by a person, under section 185 or 188, to produce a stated document or thing at a commission hearing under an attendance notice or a section 75B requirement without reasonable excuse; or
(iii)a failure by a person, under section 190 or 192, to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse; and
(b)the court is satisfied the person has committed the contempt.
(8B)The maximum punishment the court may impose for a contempt mentioned in subsection (8A) is—
(a)for the person’s first contempt—10 years imprisonment; or
(b)for the person’s second contempt—14 years imprisonment; or
(c)for the person’s third or subsequent contempt—life imprisonment.
(8C)For subsection (8B)—
(a)despite any other law, a term of imprisonment imposed under subsection (8B) must be ordered to be served wholly in a corrective services facility; and
(b)if a person is punished for more than 1 contempt, unless there are exceptional circumstances, the punishment for the second contempt or third or subsequent contempt must be for a term of imprisonment that is longer than the term of imprisonment imposed on the person for the immediately preceding contempt; and
(c)the hearings mentioned in subsection (12), definition second contempt, may be the same hearing; and
(d)the hearings mentioned in subsection (12), definition third or subsequent contempt, may be the same hearing; and
(e)the failure by a person of a type mentioned in subsection (8A) that constitutes the person’s second contempt, or third or subsequent contempt, may be the same failure by the person of a type mentioned in subsection (8A) that constituted the person’s first contempt or other preceding contempt.
(8D)A person punished by imprisonment under this section may be brought before the commission to ascertain whether the person wishes to purge the contempt.
(8E)A person imprisoned under this section may be brought before the Supreme Court, on the person’s or the commission’s application, for a declaration that the person has purged the contempt.
(8F)The court may order the person’s discharge from prison before the end of the term—
(a)if it is satisfied that the person has purged the contempt; and
(b)it has heard the commission’s submissions in relation to the application and the person’s discharge from prison.
(9)The Uniform Civil Procedure Rules 1999 apply to the court’s investigation, hearing and power to punish, with necessary changes.
(9A)The court’s hearing under this section is closed to the public.

Note—

See also section 200A in relation to the confidentiality of proceedings under this section.
(9B)However, the court may permit a person to be present at the hearing in the interests of justice.
(10)The presiding officer’s certificate of contempt is evidence of the matters contained in the certificate.
(11)The person is not excused from attending before a commission hearing in obedience to an attendance notice only because the person is punished or liable to punishment under this section for contempt of the presiding officer.
(12)In this section—

first contempt, of a person, means a failure by the person of a type mentioned in subsection (8A).
second contempt, of a person, means a failure by the person of a type mentioned in subsection (8A) that takes place in relation to a hearing dealing with the same subject matter as that dealt with in the hearing in which the person’s first contempt was certified and for which the person has served a term of imprisonment imposed under subsection (8B).
third or subsequent contempt, of a person, means a failure by the person of a type mentioned in subsection (8A) that takes place in relation to a hearing dealing with the same subject matter as that dealt with in the hearing in which the person’s first contempt or other preceding contempt was certified and for which the person has served a term of imprisonment imposed under subsection (8B).

s 199 amd 2013 No. 45 s 30; 2013 No. 64 s 40; 2016 No. 62 s 48

200Conduct that is contempt and offence

(1)If conduct of an offender is both contempt of the presiding officer conducting a commission hearing and an offence, the offender may be proceeded against for the contempt or for the offence, but the offender is not liable to be punished twice for the same conduct.
(2)In this section—
offender means a person guilty, or alleged to be guilty, of contempt of the presiding officer conducting a commission hearing.

Part 4 General

200AConfidentiality of particular proceedings

(1)This section applies to the following (each the proceeding)—
(a)an application for leave to appeal, or an appeal, under section 195;
(b)a proceeding for contempt under section 199;
(c)an appeal against a decision in a proceeding mentioned in paragraph (a) or (b).
(2)The proceeding, or a hearing in the proceeding, must not be mentioned on a published court list.

Example of published court list—

daily law list
(3)If a party to the proceeding files an application or supporting material for the proceeding, the application or material must be accompanied by a notice to the registrar stating the application or material—
(a)is filed for a proceeding mentioned in subsection (1); and
(b)is a document to which subsections (4) to (6) apply.
(4)No record of proceedings is to be available for access by any person, unless the court has, on application by a person, given approval for the access.
(5)A person is not entitled to search information in the custody of a court in relation to the proceeding, unless the court otherwise orders in the interests of justice.
(6)Subsections (4) and (5) do not apply in relation to a party to the proceeding or a lawyer representing a party to the proceeding.
(7)Nothing in this section prevents the publication of reasons for a decision in the proceeding if the publication does not identify—
(a)a person; or
(b)information that may prejudice—
(i)an investigation being conducted by the commission; or
(ii)a specific intelligence operation being undertaken by the commission; or
(iii)the performance of another function of the commission.
(8)In this section—
record of proceedings includes—
(a)a transcript of the proceeding (whether written or otherwise); and
(b)documents in the court file for the proceeding; and
(c)an appeal book in relation to the proceeding.

s 200A ins 2013 No. 64 s 41

201Commission must give evidence to defence unless court certifies otherwise

(1)This section applies if a person is charged with an offence before a court and anything stated at, or a document or thing produced at, a commission hearing (the evidence) is relevant evidence for the defence against the charge.
(2)On being asked by the defendant or the defendant’s lawyer, the commission must give the evidence to the defendant or the defendant’s lawyer unless the court makes an order under subsection (4).
(3)A request under subsection (2) may generally identify evidence to be given to the defendant or defendant’s lawyer.
(4)On application by an authorised commission officer, the court must order that the evidence not be given to the defendant or defendant’s lawyer if the court considers that it would be unfair to a person or contrary to the public interest to do so.
(5)Evidence given to a defendant or a defendant’s lawyer under subsection (2) may be used only for the defence to the charge.
(6)A person who uses the evidence as permitted under subsection (5) does not contravene section 202.

s 201 amd 2013 No. 45 s 31; 2016 No. 62 s 49

202Publication of names, evidence etc.

(1)A person must not, without the commission’s written consent or contrary to the commission’s order, publish—
(a)an answer given, or document or thing produced, at a commission hearing, or anything about the answer, document or thing; or
(b)information that might enable the existence or identity of a person who is about to give or has given evidence before the commission (witness) at a hearing to be ascertained.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(2)A person does not contravene subsection (1) if any of the following applies to the publication—
(a)the answer given, or document or thing produced, was given or produced at a public hearing and the publication is not contrary to the commission’s order;
(b)the witness appeared at a public hearing and the publication is not contrary to the commission’s order;
(c)the publication is made—
(i)for the purpose of defending a charge of an offence and is relevant to the defence; and
(ii)to a person charged with the offence or a lawyer representing a person charged with the offence;
(d)the publication is made for the purpose of making a submission to the parliamentary committee about the conduct of the commission’s investigation;
(e)the publication is made for the purposes of a disciplinary proceeding or to start a prosecution for an offence.
(3)Also, a person does not contravene subsection (1)(b) if—
(a)the person is the witness, or the publication is made with the witness’s implied or express consent; or
(b)the information mentioned in the provision has been generally made known by the witness or by the commission.
(4)The commission may apply to a Supreme Court judge for an order prohibiting a publication mentioned in subsection (2)(e).
(5)In this section—
publish includes publish to a single person, whether the publication is made orally or in writing.

s 202 amd 2009 No. 24 s 1402

203Protection of members, legal representatives and witnesses

(1)The presiding officer of a commission hearing has, in the performance of the presiding officer’s duties for the hearing, the same protection and immunity as a Supreme Court judge.
(2)A lawyer or other person when appearing for someone at a commission hearing has the same protection and immunity as a barrister appearing for a party in a proceeding in the Supreme Court.
(3)A person required to attend or appearing at a commission hearing as a witness has the same protection as a witness in a proceeding in the Supreme Court.
(4)No criminal or civil liability, other than liability under this Act, attaches to a person for compliance, or purported compliance in good faith, with a requirement made under this Act.
(5)In particular, if a person produces a document or thing under a notice to discover or a notice to produce, no civil liability attaches to the person for producing the document or thing, whether the liability would arise under a contract or otherwise.

204Allowances for witness

(1)A person attending a commission hearing under an attendance notice, or otherwise as a witness at the request of the commission, is entitled to be paid the allowances and expenses that would be payable to the person if the person were appearing as a witness in a hearing before a Magistrates Court.
(2)The allowances and expenses are payable by the commission.

205Legal assistance

(1)This section applies to a person who—
(a)has been given a notice to attend a commission hearing; or
(b)wishes to appeal, or has appealed, to the Supreme Court under section 195 against a decision of the presiding officer at a commission hearing.
(2)The person may apply to the Attorney-General for financial help to enable the person to obtain legal services in connection with the hearing or appeal.
(3)The Attorney-General may approve the financial help if the Attorney-General considers—
(a)a person may suffer substantial hardship if help is not given; or
(b)in the particular circumstances, help should be given.
(4)The Attorney-General may decide the level of financial help and the conditions on which it is to be provided.
(5)The cost of the financial help must be met by the commission.
(6)The Attorney-General may delegate a function under subsection (3) or (4) to the chief executive (justice).
(7)The chief executive (justice) may subdelegate the delegated function to an appropriately qualified employee of the department administered by the chief executive (justice).
(8)In this section—
chief executive (justice) means the chief executive of the department in which the Criminal Code is administered.
function includes power.

s 205 amd 2013 No. 45 s 32; 2016 No. 62 s 50

Chapter 5 Offences and disciplinary proceedings relating to corruption

ch 5 hdg sub 2009 No. 24 s 1403

amd 2014 No. 21 s 94 (1) sch 1

Part 1 Offences

ch 5 pt 1 hdg ins 2009 No. 24 s 1404

206Application of Criminal Code

(1)The Criminal Code, sections 120, 123, 123A, 124, 125, 126, 127, 128, 129 and 130 (identified provisions) apply, with necessary changes, to commission hearings under this Act.
(2)Without limiting subsection (1), for applying the identified provisions to a commission hearing—
(a)the hearing is a judicial proceeding; and
(b)the presiding officer conducting the hearing is the holder of a judicial office; and
(c)a reference to judicial capacity is a reference to capacity as a presiding officer conducting a hearing; and
(d)a reference to the giving or withholding of testimony is a reference to the giving or withholding of information; and
(e)a reference to a witness is a reference to a person from whom the presiding officer conducting the hearing may obtain information; and
(f)a reference to being required or used in evidence is a reference to being required or used for the obtaining of information; and
(g)a reference to being summoned to attend as a witness is a reference to being asked or required to attend to give information; and
(h)a reference to a tribunal is a reference to the presiding officer conducting the hearing.

207Pretending to be a commission officer

A person must not pretend to be a commission officer.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

208Abuse of office in commission

(1)A commission officer who corruptly asks for, receives or obtains, or agrees or attempts to receive or obtain, a benefit of any kind with a view to the officer neglecting his or her duty, or being influenced in the discharge of his or her duty commits a crime.

Maximum penalty—595 penalty units or 7 years imprisonment.

(2)A commission officer who uses or takes advantage of his or her office to improperly gain benefit for himself or herself or someone else or to facilitate the commission of an offence commits a crime.

Maximum penalty—595 penalty units or 7 years imprisonment.

(3)A person contravening subsection (1) or (2) can not be arrested without warrant.

s 208 amd 2014 No. 21 s 94 (1) sch 1

209Bribery of commission officer

(1)A person who corruptly gives to, confers on, or procures for, a commission officer a benefit of any kind, or promises to do so, with a view to—
(a)the officer neglecting the officer’s duty; or
(b)influencing the officer in the discharge of the officer’s duty; or
(c)the officer using or taking advantage of his or her office to facilitate the commission of an offence;

commits a crime.

Maximum penalty—595 penalty units or 7 years imprisonment.

(2)A person contravening subsection (1) can not be arrested without warrant.

s 209 amd 2014 No. 21 s 94 (1) sch 1

210Obstruction or delay of commission procedures

A person who, with intent to obstruct or delay the performance of a function by the commission or the exercise of a power by a commission officer—
(a)fabricates any relevant record or thing; or
(b)destroys or alters any relevant record or thing; or
(c)sends any relevant record or thing out of the State;

commits a misdemeanour.

Maximum penalty—255 penalty units or 3 years imprisonment.

211Injury or detriment to witness

A person who injures or threatens to injure, or causes or threatens to cause detriment of any kind, to another person because—
(a)the person, or someone else, appeared as a witness before the commission; or
(b)the person, or someone else, gave, or is to give, evidence before the commission; or
(c)the person, or someone else, complied with, or is about to comply with, a notice under section 75;

commits a misdemeanour.

Maximum penalty—255 penalty units or 3 years imprisonment.

212Offence of victimisation

A person must not—
(a)prejudice, or threaten to prejudice, the safety or career of any person; or
(b)intimidate or harass, or threaten to intimidate or harass, any person; or
(c)do an act that is, or is likely to be, to the detriment of any person;

because the person mentioned in paragraph (a), (b) or (c), or someone else, gave evidence to, or helped, the commission in the performance of its functions.

Maximum penalty—85 penalty units.

s 212 amd 2002 No. 68 s 283 sch 3

213Secrecy

(1)This section applies to a person who is or was—
(a)a relevant official; or
(b)a member of the reference committee; or
(c)a person to whom information is given either by the commission or by a person mentioned in paragraph (a) or (b) on the understanding, express or implied, that the information is confidential.
(2)A person must not make a record of, or wilfully disclose, information that has come to the person’s knowledge because the person is or was a person to whom this section applies.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)However, a person does not contravene subsection (2) if—
(a)in the case of a record—
(i)the record is made for the purposes of the commission, this Act, the parliamentary committee, the parliamentary commissioner or an investigation of an alleged contravention of this section; or
(ii)the making of the record was lawful under a repealed Act; or
(b)in the case of a disclosure—
(i)the disclosure is made—
(A)for the purposes of the commission, this Act, the parliamentary committee, the parliamentary commissioner or an investigation of an alleged contravention of this section; or
(B)at the direction of the parliamentary commissioner under chapter 6, part 4; or
(ii)the disclosure was lawful under a repealed Act; or
(c)in the case of a record or a disclosure—the information was publicly available.
(4)A person may not be required to produce in any court a document that has come into the person’s possession, or to disclose to any court a matter or thing that has come to the person’s notice, because the person is or was a person to whom this section applies, unless—
(a)the commission, or a commissioner in the commissioner’s official capacity, or the chief executive officer in the chief executive officer’s official capacity, is a party to the relevant proceeding; or
(b)it is necessary to produce the document or disclose the matter or thing—
(i)to give effect to this Act; or
(ii)for a prosecution started as a result of an investigation conducted by the commission.
(5)In this section—
commission officer includes a person who was an assistant commissioner or part-time commissioner under this Act as in force before the commencement of this definition.
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
relevant official means a person who is or was one of the following—
(a)a commission officer;
(b)a member of the parliamentary committee;
(c)the parliamentary commissioner;
(d)an officer of the parliamentary service;
(e)a person appointed, engaged or assigned to help the parliamentary committee or the parliamentary commissioner;
(f)the public interest monitor;
(g)a person mentioned in section 132 of the repealed Criminal Justice Act 1989;
(h)a person to whom section 126 of the repealed Crime Commission Act 1997 applied.
repealed Act means—
(a)repealed Criminal Justice Act 1989;
(b)repealed Crime Commission Act 1997.

s 213 amd 2006 No. 41 s 19; 2011 No. 43 s 20; 2014 No. 21 s 27; 2016 No. 19 s 15; 2016 No. 62 s 51

214Unauthorised publication of commission reports

A person must not publish or give a commission report to which section 69 applies to anyone unless—
(a)the report has been published by order of the Legislative Assembly or is taken to have been so published; or
(b)its publication is otherwise authorised under this Act.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

s 214 amd 2003 No. 8 s 17 sch

215Resisting exercise of powers

A person must not wilfully obstruct a commission officer in the exercise of a power conferred on the officer by this Act.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

216Frivolous complaint

(1)The commission may give notice to a person that a complaint about, or information or matter (also a complaint) involving, corruption made by the person to the commission will not be investigated or further investigated by the commission because it appears to concern frivolous matter.
(2)The notice must advise the person that if the person again makes the same or substantially the same complaint to the commission the person commits an offence punishable by a fine of 85 penalty units or 1 year’s imprisonment or both.
(3)A person who, after receiving the notice mentioned in subsection (2), again makes the same or substantially the same complaint to the commission commits an offence.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)It is a defence to prove that the complaint did not concern frivolous matter.
(5)In this section—
make, a complaint to the commission, means—
(a)make a complaint to the commission under section 36; or
(b)make a complaint to another entity that is under an obligation to refer the complaint to the commission; or
(c)cause a complaint to be referred to the commission.

s 216 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 28

216AOther improper complaints

(1)A person commits an offence if the person—
(a)makes a complaint to the commission—
(i)vexatiously; or
(ii)not in good faith; or
(iii)primarily for a mischievous purpose; or
(iv)recklessly or maliciously; or
(b)counsels or procures another person to make a complaint to the commission as mentioned in paragraph (a).

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(2)In this section—
make, a complaint to the commission, means—
(a)make a complaint, or give information or matter, to the commission under section 36; or
(b)make a complaint, or give information or matter, to another entity that is under an obligation to refer the complaint, information or matter to the commission; or
(c)cause a complaint, or information or matter, to be referred to the commission.

s 216A ins 2014 No. 21 s 29

217False or misleading statements

(1)A person must not state anything to the commission the person knows is false or misleading in a material particular.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(2)It is enough for a complaint for an offence against subsection (1) to state the statement made was ‘false or misleading’ to the person’s knowledge, without specifying which.
(3)A court may order that a person who contravenes subsection (1) must pay an amount of compensation to the commission, whether or not the court also imposes a penalty for the contravention.
(4)The amount of the compensation must be a reasonable amount for the cost of any investigation made or other action taken by the commission because of the false statement.
(5)Without limiting the ways a person may state a thing to the commission, a person states a thing to the commission if the person states the thing to an entity that is under an obligation to advise the commission of the thing, whether or not the person intended that the commission be advised of the statement.

218False or misleading documents

(1)A person must not give the commission a document containing information the person knows is false or misleading in a material particular.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(2)Subsection (1) does not apply to a person if the person, when giving the document—
(a)tells the commission, to the best of the person’s ability, how it is false or misleading; and
(b)if the person has, or can reasonably obtain, the correct information, gives the correct information.
(3)It is enough for a complaint for an offence against subsection (1) to state the document was ‘false or misleading’ to the person’s knowledge, without specifying which.
(4)A court may order that a person who contravenes subsection (1) must pay an amount of compensation to the commission, whether or not the court also imposes a penalty for the contravention.
(5)The amount of the compensation must be a reasonable amount for the cost of any investigation made or other action taken by the commission because of the false document.
(6)Without limiting the ways a person may give a document to the commission, a person gives a document to the commission if the person gives the document to an entity that is under an obligation to give the document to the commission, whether or not the person intended that the document be given to the commission.
(7)In this section—
give, a document to the commission, includes cause the document to be given to the commission.

219Proceedings for an offence

(1)Subject to subsection (2), a proceeding for an offence against this Act must be taken in a summary way under the Justices Act 1886 within the later of the following—
(a)1 year after the offence is committed;
(b)6 months after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.
(2)A proceeding for an indictable offence may, at the election of the prosecution, be taken—
(a)by way of summary proceedings under subsection (1); or
(b)on indictment.
(3)A proceeding against a person for an indictable offence must be before a magistrate if it is a proceeding—
(a)for the summary conviction of the person; or
(b)for an examination of witnesses in relation to the charge.
(4)If a proceeding for an indictable offence is brought before a justice who is not a magistrate, jurisdiction is limited to taking or making a procedural action or order within the meaning of the Justices of the Peace and Commissioners for Declarations Act 1991.
(5)If—
(a)a person charged with an indictable offence asks at the start of a summary proceeding for the offence that the charge be prosecuted on indictment; or
(b)the magistrate hearing a charge of an indictable offence considers the charge should be prosecuted on indictment;

the magistrate—

(c)must not decide the charge as a summary offence; and
(d)must proceed by way of a committal proceeding.

(6)If a magistrate acts under subsection (5)—
(a)any plea of the person charged, made at the start of the proceeding, must be disregarded; and
(b)any evidence brought in the proceeding before the magistrate decided to act under subsection (5) is taken to be evidence in the proceeding for the committal of the person for trial or sentence; and
(c)before committing the person for trial or sentence, the magistrate must make a statement to the person under the Justices Act 1886, section 104(2)(b).
(7)The maximum penalty that may be imposed on a summary conviction of an indictable offence is 85 penalty units or 1 year’s imprisonment.

Part 2 Disciplinary proceedings relating to corruption

ch 5 pt 2 hdg ins 2009 No. 24 s 1405

amd 2014 No. 21 s 94 (1) sch 1

Division 1 Preliminary

ch 5 pt 2 div 1 hdg ins 2009 No. 24 s 1405

219APurposes of disciplinary proceedings

The purposes of providing for disciplinary proceedings are—
(a)to protect the public; and
(b)to uphold ethical standards within units of public administration and the police service; and
(c)to promote and maintain public confidence in the public sector.

s 219A ins 2009 No. 24 s 1405

219BDefinitions for pt 2

In this part—
disciplinary proceeding means—
(a)a proceeding under section 219F for corrupt conduct alleged to have been committed by a prescribed person; or
(b)a proceeding under section 219G for a reviewable decision.

s 219B def disciplinary proceeding amd 2014 No. 21 s 94 (1) sch 1

industrial matter means an industrial matter within the meaning of the Industrial Relations Act 2016.

s 219B def industrial matter amd 2016 No. 63 s 1157 sch 6

officer means a police officer within the meaning of the Police Service Administration Act 1990 and includes a police recruit within the meaning of that Act.
reviewable decision see section 219BA.

s 219B def reviewable decision sub 2009 No. 25 s 57

s 219B ins 2009 No. 24 s 1405

219BA Meaning of reviewable decision

(1)A reviewable decision means—
(a)a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or
(b)a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) or 7A.5(1)(b) that corruption is proved against an officer.
(2)In this section—
decision, made in relation to a disciplinary allegation of corruption, if a disciplinary declaration is made, includes the disciplinary declaration.

Note—

A reviewable decision may also involve a failure to make a disciplinary declaration.
disciplinary declaration means a disciplinary declaration made under—
(a)the Public Service Act 2008, section 188A; or
(b)the Police Service Administration Act 1990, section 7A.2(2); or
(c)the Ambulance Service Act 1991, section 18I; or
(d)the Fire and Emergency Services Act 1990, section 30H.
prescribed person, in relation to a prescribed person mentioned in section 50(3), definition prescribed person, paragraphs (a)(ii) and (b)(ii), means—
(a)a prescribed person against whom a disciplinary declaration has been made; or
(b)in relation to a proceeding for a reviewable decision started by the commission under section 219G
(i)a prescribed person mentioned in paragraph (a); or
(ii)a prescribed person against whom a disciplinary declaration has not been made if a ground of review states that a disciplinary declaration should have been made.

s 219BA ins 2009 No. 25 s 58

amd 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 19

Division 2 QCAT’s jurisdiction

ch 5 pt 2 div 2 hdg ins 2009 No. 24 s 1405

219CJurisdiction

QCAT has jurisdiction to conduct disciplinary proceedings.

s 219C ins 2009 No. 24 s 1405

219DJurisdiction relating to allegations of corrupt conduct against prescribed persons is exclusive

(1)An allegation of corrupt conduct against a prescribed person may only be heard and decided by QCAT.
(2)Subsection (1) applies to the exclusion of authority given by law to any other person or tribunal to hear and decide, at first instance, an allegation of corrupt conduct made against a prescribed person.

s 219D ins 2009 No. 24 s 1405

amd 2014 No. 21 s 94 (1) sch 1

219DA QCAT hearing in relation to prescribed person whose employment or appointment has ended

To remove any doubt, it is declared that QCAT may hear and decide, or continue to hear and decide, an allegation of corrupt conduct brought against a prescribed person defined in section 50(3), definition prescribed person, paragraph (a)(ii) or (b)(ii), despite the person’s employment or appointment having ended—
(a)before or during the QCAT hearing; or
(b)after the hearing and before QCAT makes its decision.

s 219DA ins 2009 No. 25 s 59

amd 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 20

219ERelationship with Industrial Relations Act 2016

The industrial court and the industrial relations commission do not have jurisdiction in relation to a matter that QCAT may decide for this Act even though it may be, or be about, or arise out of, an industrial matter.

s 219E ins 2009 No. 24 s 1405

amd 2016 No. 63 s 1157 sch 6

Division 3 Proceedings

ch 5 pt 2 div 3 hdg ins 2009 No. 24 s 1405

219FProceedings relating to corrupt conduct

The commission or the chief executive officer of a unit of public administration (including the commissioner of the police service) may apply, as provided under the QCAT Act, to QCAT to hear and decide an allegation of corrupt conduct against a prescribed person.

s 219F ins 2009 No. 24 s 1405

amd 2014 No. 21 s 94 (1) sch 1

219GProceedings relating to reviewable decisions

(1)The commission or a prescribed person against whom a reviewable decision has been made may apply, within the period mentioned in subsection (2) and otherwise as provided under the QCAT Act, to QCAT for a review of the reviewable decision.
(2)The application must be made—
(a)if the reviewable decision relates to a decision or finding mentioned in the Police Service Administration Act 1990, section 7.4(2A), 7A.4 or 7A.5—within 28 days after the day on which notice of the decision or finding was given; or
(b)otherwise—within 28 days after the day on which the reviewable decision was announced.
(3)The parties to a proceeding are—
(a)the prescribed person; and
(b)the person who made the reviewable decision; and
(c)if the application is made by the commission—the commission.

s 219G ins 2009 No. 24 s 1405

amd 2009 No. 25 s 60; 2018 No. 29 s 21

219HConduct of proceedings relating to reviewable decisions

(1)A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).
(2)However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied—
(a)the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or
(b)in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.
(3)If QCAT gives leave under subsection (2), the review is—
(a)by way of rehearing on the original evidence; and
(b)on the new evidence adduced.

s 219H ins 2009 No. 24 s 1405

Division 4 QCAT’s powers

ch 5 pt 2 div 4 hdg ins 2009 No. 24 s 1405

219IPowers for corrupt conduct

(1AA)This section applies to a prescribed person defined in section 50(3), definition prescribed person, paragraph (a)(i) or (b)(i).
(1)QCAT may, on a finding of corrupt conduct being proved against a prescribed person, order that the prescribed person—
(a)be dismissed; or
(b)be reduced in rank or salary level; or
(c)forfeit, or have deferred, a salary increment or increase to which the prescribed person would ordinarily be entitled; or
(d)be fined a stated amount that is to be deducted from—
(i)the person’s periodic salary payment in an amount not more than an amount equal to the value of 2 penalty units per payment; or
(ii)the person’s monetary entitlements, other than superannuation entitlements, on termination of the person’s service.
(2)In deciding the amount for subsection (1)(d)(ii), QCAT may have regard to the value of any gain to the prescribed person from the person’s corrupt conduct.

s 219I ins 2009 No. 24 s 1405

amd 2009 No. 25 s 61; 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 22

219IA QCAT powers for prescribed persons whose employment or appointment ends

(1)This section applies to a prescribed person defined in section 50(3), definition prescribed person, paragraph (a)(ii) or (b)(ii).
(2)QCAT may, on a finding of corrupt conduct being proved against a prescribed person, make a disciplinary declaration and may not take any other disciplinary action.
(3)QCAT may only make a disciplinary declaration if the order QCAT would have made under section 219I(1) if the prescribed person’s employment or appointment had not ended would have been that the prescribed person—
(a)be dismissed; or
(b)be reduced in rank.
(4)A disciplinary declaration made under this section does not affect the way in which the prescribed person’s employment or appointment ended or the benefits, rights and liabilities arising because the employment ended.
(5)In this section—
disciplinary declaration means a declaration of—
(a)the disciplinary finding against the prescribed person; and
(b)the order QCAT would have made under section 219I(1) if the prescribed person’s employment or appointment had not ended.

s 219IA ins 2009 No. 25 s 62

amd 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 23

219JAdditional power for reviewable decisions

(1)This section applies if, after reviewing a reviewable decision, QCAT finds corruption has been proved against a person and sets aside the decision and substitutes another decision.
(2)QCAT may impose on the person any discipline provided for on a finding of corruption being proved, even though the original decision-maker’s power to impose the discipline may have been restricted.
(3)Subject to subsection (4), if the reviewable decision involved the making of, or failure to make, a disciplinary declaration, the discipline that QCAT may impose under subsection (2) includes making a disciplinary declaration.
(4)No action may be taken to enforce a penalty or fine mentioned in a disciplinary declaration made under subsection (2).
(5)A disciplinary declaration may only be made under subsection (2) if the order QCAT would have made under subsection (2), if the prescribed person’s employment or appointment had not ended, would have been that the prescribed person—
(a)be dismissed; or
(b)be reduced in rank.
(6)A disciplinary declaration made under subsection (2) does not affect the way in which the prescribed person’s employment or appointment ended or the benefits, rights and liabilities arising because the employment ended.
(7)In this section—
disciplinary declaration means—
(a)for a reviewable decision, a disciplinary declaration as defined under section 219BA(2); or
(b)for a decision substituted by QCAT on review, a declaration of—
(i)the disciplinary finding against the prescribed person; and
(ii)the discipline that would have been imposed by QCAT under subsection (2) if the prescribed person’s employment or appointment had not ended.

s 219J ins 2009 No. 24 s 1405

amd 2009 No. 25 s 63; 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 24

219KQCAT may refer matter for investigation

(1)QCAT may, by order, refer a matter before it for investigation, or further investigation, with a view to the taking of a criminal proceeding or for another purpose.
(2)The matter may be referred to—
(a)the commission; or
(b)the public official for the unit of public administration in which the prescribed person is employed.
(3)QCAT may adjourn its proceeding until the investigations are completed.

s 219K ins 2009 No. 24 s 1405

219LQCAT’s power to suspend orders

(1)This section applies if—
(a)QCAT makes an order under section 219I; or
(b)QCAT, by order under section 219J, imposes a discipline mentioned in section 219J(2); or
(c)discipline is imposed on a prescribed person by a decision-maker of a reviewable decision and an application is made to QCAT for a review of the reviewable decision.
(2)QCAT may suspend the order or discipline if it considers it is appropriate to do so in the circumstances.
(3)QCAT must state an operational period for the period of suspension and the suspension may be given on conditions.
(4)If the person who is subject to the order or discipline is found to have committed an act of corruption or to have contravened a condition during the operational period, on the finding—
(a)the suspension is revoked; and
(b)the order or discipline has immediate effect.
(5)If the person is not found to have committed an act of corruption or to have contravened a condition during the operational period, the order or discipline is taken to have been discharged or satisfied.
(6)Subsection (4) does not limit the person’s liability to the making of a further order for the further act of corruption.
(7)This section does not apply to a disciplinary declaration.

s 219L ins 2009 No. 24 s 1405

amd 2009 No. 25 s 64; 2014 No. 21 s 94 (1) sch 1

Division 5 Appeals

ch 5 pt 2 div 5 hdg ins 2009 No. 24 s 1405

219MAppeal from QCAT exercising original jurisdiction

(1)The following persons may appeal under the QCAT Act, chapter 2, part 8 against a decision of QCAT exercising original jurisdiction under this part—
(a)the prescribed person in relation to whom the decision was made;
(b)the public official for the unit of public administration in which the prescribed person is employed;
(c)the commission, whether or not the commission was a party to the proceeding before QCAT.
(2)Subsections (3) to (7) apply for the QCAT Act, chapter 2, part 8.
(3)A reference to a party to a proceeding includes a reference to a person who may appeal under subsection (1).
(4)A reference to a decision, if the decision involves the making of a disciplinary declaration, includes the disciplinary declaration.

Note—

The decision may also involve a failure to make a disciplinary decision.
(5)If a decision set aside involved the making of, or a failure to make, a disciplinary declaration, the power to substitute another decision involving disciplinary action is limited to the making of, or the making of another, disciplinary declaration and does not include the taking of any other disciplinary action.
(6)A disciplinary declaration may only be made if the order the appeal tribunal or the Court of Appeal would have made under the QCAT Act, chapter 2, part 8, if the prescribed person’s employment or appointment had not ended would have been that the prescribed person—
(a)be dismissed; or
(b)be reduced in rank.
(7)A disciplinary declaration made under subsection (5) does not affect the way in which the prescribed person’s employment or appointment ended or the benefits, rights and liabilities arising because the employment ended.

s 219M ins 2009 No. 24 s 1405

amd 2009 No. 25 s 65

Chapter 6 Administration

Part 1 Crime and Corruption Commission

ch 6 pt 1 hdg amd 2014 No. 21 s 30

Division 1 Establishment of Crime and Corruption Commission

ch 6 pt 1 div 1 hdg amd 2014 No. 21 s 31

220Establishment

The bodies corporate known as the Criminal Justice Commission (established under the repealed Criminal Justice Act 1989) and the Queensland Crime Commission (established under the repealed Crime Commission Act 1997) are merged into a single body corporate and continued in existence under this Act under the name ‘Crime and Corruption Commission’.

s 220 amd 2014 No. 21 s 32

221Commission has common seal etc.

(1)The Crime and Corruption Commission, as established under this Act—
(a)has a common seal; and
(b)may sue and be sued in its corporate name.
(2)Judicial notice must be taken of the imprint of the commission’s seal appearing on a document and the document must be presumed to have been properly sealed, unless the contrary is proved.

s 221 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 33

221ACommission is a statutory body

The commission is a statutory body under the Financial Accountability Act 2009.

s 221A ins 2002 No. 68 s 283 sch 3

amd 2006 No. 41 s 3 sch; 2009 No. 9 s 136 sch 1

222Excluded matter for Corporations Act

The commission is declared to be an excluded matter for the Corporations Act, section 5F, in relation to the following provisions of the Corporations Act—
(a)parts 2D.1 and 2D.6;
(b)chapters 2K and 2L;
(c)parts 5.7, 5.7B, 5.9 and 5B.2.

Division 2 Commissioners and chief executive officer

ch 6 pt 1 div 2 hdg sub 2016 No. 19 s 16

Subdivision 1AA Preliminary

ch 6 pt 1 div 2 sdiv 1AA hdg ins 2016 No. 19 s 17

222AMeaning of officer for div 2

In this division—
officer means a commissioner or the chief executive officer.

s222A ins 2016 No. 19 s 17

Subdivision 1 Membership and appointment

223Membership of the commission

The commission is to consist of the following commissioners—
(a)a full-time commissioner who is the chairperson;
(b)a part-time commissioner who is the deputy chairperson;
(c)3 part-time commissioners who are ordinary commissioners.

s 223 sub 2014 No. 21 s 34

amd 2016 No. 19 ss 18, 45 (1)

223AChief executive officer

The commission must have a chief executive officer.

s 223A ins 2016 No. 19 s 19

224Qualifications for appointment—chairperson and deputy chairperson

A person is qualified for appointment as the chairperson or deputy chairperson if the person has served as, or is qualified for appointment as, a judge of—
(a)the Supreme Court of Queensland; or
(b)the Supreme Court of another State; or
(c)the High Court of Australia; or
(d)the Federal Court of Australia.

s 224 amd 2014 No. 21 s 35; 2016 No. 19 s 45 (1); 2016 No. 19 s 45 (1)

225Qualifications for appointment—chief executive officer and ordinary commissioners

(1)A person is qualified for appointment as the chief executive officer if the person has qualifications, experience or standing appropriate to perform the functions of the chief executive officer.
(2)A person is qualified for appointment as an ordinary commissioner if the person has qualifications, experience or standing appropriate to assist the commission to perform its functions.

s 225 amd 2008 No. 59 s 24

sub 2014 No. 21 s 36

amd 2016 No. 19 s 20

226Disqualification as commissioner or chief executive officer

(1)An ineligible person or the chief executive officer can not be appointed as, or continue as, a commissioner.
(2)An ineligible person can not be appointed as, or continue as, the chief executive officer.

s 226 sub 2016 No. 19 s 21

227Advertising for appointment

(1)The Minister must advertise nationally for applications from suitably qualified persons to be considered for selection as the chairperson.
(2)The Minister must advertise throughout the State for applications from suitably qualified persons to be considered for selection as the deputy chairperson, the chief executive officer or an ordinary commissioner.
(3)Subsections (1) and (2) do not apply to the reappointment of a person as a commissioner or the chief executive officer.

s 227 amd 2009 No. 48 s 142; 2014 No. 21 s 37; 2016 No. 19 ss 22, 45 (1)

228Prior consultation and bipartisan support for appointments

The Minister may nominate a person for appointment to the office of chairperson, deputy chairperson, ordinary commissioner or the chief executive officer only if—
(a)the Minister has consulted with—
(i)the parliamentary committee; and
(ii)except for an appointment as chairperson—the chairperson; and
(b)the nomination is made with the bipartisan support of the parliamentary committee.

s 228 sub 2014 No. 21 s 38

amd 2014 No. 39 s 23B (retro)

sub 2016 No. 19 s 23

229Appointment of officers

(1)Officers are to be appointed by the Governor in Council.
(2)Officers are appointed under this Act and not the Public Service Act 2008.

s 229 amd 2009 No. 25 s 83 sch

sub 2014 No. 21 s 38

amd 2016 No. 16 s 24

230[Repealed]

s 230 amd 2009 No. 25 s 83 sch; 2009 No. 48 s 143

om 2014 No. 21 s 38

Subdivision 2 Other provisions about appointment

231Duration of appointment

(1)An officer holds office for the term, not longer than 5 years, stated in the instrument of the officer’s appointment.
(2)A person holding office as a commissioner or the chief executive officer may be re-appointed to the office for a further term or terms as long as—
(a)no term of appointment is longer than 5 years; and
(b)the person does not hold that office for more than 10 years in total.
(3)Subsection (2)(b) has effect despite the Acts Interpretation Act 1954, section 25(1)(c).
(4)Section 228 applies to the appointment of an officer for a further term under this section.

s 231 amd 2014 No. 21 s 39

sub 2016 No. 19 s 25

232Terms of appointment

(1)An officer is to be paid the remuneration and allowances decided by the Governor in Council.
(2)To the extent that an officer’s terms and conditions are not provided for by this Act, the officer holds office on the terms and conditions decided by the Governor in Council.

Note—

See subdivision 3 for the chairperson’s pension entitlements.

s 232 amd 2015 No. 2 s 46

sub 2016 No. 19 s 25

233Preservation of rights

(1)This section applies if—
(a)a person is appointed as the chairperson or chief executive officer; and
(b)the person resigns the person’s role as a public service officer in order to accept the appointment.
(2)The person retains and is entitled to all rights that have accrued to the person because of the person’s employment as a public service officer, or that would accrue in the future to the person because of that employment, as if service as the chairperson or chief executive officer were a continuation of service as a public service officer.
(3)At the end of the person’s term of office or on resignation—
(a)the person is entitled to be appointed to an office in the public service at a salary level not less than the current salary level of an office equivalent to the office the person held before being appointed as the chairperson or chief executive officer; and
(b)the person’s service as the chairperson or chief executive officer is to be regarded as service of a like nature in the public service for deciding the person’s rights as a public service officer.

s 233 amd 2014 No. 21 s 40; 2016 No. 19 s 45 (1)

234Leave of absence

(1)The commission may grant leave to an officer in accordance with entitlements available to the officer under the officer’s conditions of office.
(2)However, only the Minister may grant extended leave to an officer.
(3)In this section—
extended leave means—
(a)for the chairperson or chief executive officer—leave of more than 10 business days; or
(b)for the deputy chairperson or an ordinary commissioner—leave of more than 20 business days.

s 234 amd 2014 No. 21 s 41; 2016 No. 19 ss 26, 45 (1)

235Resignation

An officer may resign by signed notice given to the Minister.

s 235 amd 2016 No. 19 s 27

236Termination of appointment

(1)The Governor in Council may terminate an officer’s appointment if the officer becomes incapable of satisfactorily performing the duties of office.
(2)The Governor in Council may terminate a commissioner’s appointment if the commissioner is absent from 3 consecutive meetings of the commission without the commission’s prior leave and without reasonable excuse.
(3)The Governor in Council must terminate the chairperson’s or chief executive officer’s appointment if the chairperson or chief executive officer engages in paid employment outside the chairperson’s or chief executive officer’s duties of office without the Minister’s approval.
(4)The Governor may terminate an officer’s appointment if—
(a)a recommendation to the Legislative Assembly to terminate the appointment is made with the bipartisan support of the parliamentary committee; and
(b)the Legislative Assembly, by resolution, approves the termination of the appointment.
(5)The office of a commissioner is vacated if the commissioner becomes an ineligible person or the chief executive officer.
(6)The office of the chief executive officer is vacated if the chief executive officer becomes an ineligible person.

s 236 amd 2014 No. 21 s 42

sub 2016 No. 19 s 28

237Acting appointments

(1)The Governor in Council may appoint a qualified person to act in the office of chairperson, deputy chairperson, ordinary commissioner or the chief executive officer for all or part of a period in which—
(a)the office is vacant; or
(b)the person holding the office is absent from duty or from the State or, for another reason, can not perform the duties of the office.
(2)A person may not be appointed to act in the office for—
(a)a continuous period of more than 3 months; or
(b)a period that, with the periods of other appointments of the person to act in the office, form a continuous period of more than 3 months.
(3)However, subsection (2) does not apply if the Minister recommends the person for the appointment with the bipartisan support of the parliamentary committee.
(4)The Minister must consult with the chairperson before recommending the person for the appointment.
(5)Sections 227 and 228 do not apply to the appointment.
(6)In this section—
qualified, in relation to an appointment to act in an office, means qualified for appointment to the office.

s 237 sub 2014 No. 21 s 43; 2016 No. 19 s 28

237A[Repealed]

s 237A ins 2013 No. 64 s 42

om 2014 No. 21 s 43

238Disclosure of interests

(1)The commission must keep a register of each officer’s pecuniary interests and personal or political associations.
(2)Each officer must give to the commission and the Minister—
(a)as soon as practicable after the officer’s appointment—a written summary of the officer’s pecuniary interests and personal or political associations at the time of the officer’s appointment; and
(b)within 30 days after any substantial change in the officer’s pecuniary interests or personal or political associations—notice of the change and an updated written summary of the officer’s pecuniary interests and personal or political associations.
(3)The register kept under subsection (1) must be updated at least once during each 12 month period of an officer’s term of office.
(4)In this section—
personal or political association, of an officer, means a personal or political association that might influence the officer in the discharge of the officer’s duties.

s 238 amd 2016 No. 19 s 29

Subdivision 3 Chairperson’s pension entitlements

ch 6 pt 1 div 2 sdiv 3 hdg ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (3)

238ADefinitions for sdiv 3

In this subdivision—
former chairperson means a person who has held office as the chairperson.

s 238A def former chairperson amd 2016 No. 19 s 45 (1)

judge means a Supreme Court judge or District Court judge.
Judges Pensions Act means the Judges (Pensions and Long Leave) Act 1957.
prescribed salary means the total of the following payable to a Supreme Court judge, other than the Chief Justice or President of the Court of Appeal, under the Judicial Remuneration Act 2007
(a)the annual rate of salary;
(b)the annual rate of the jurisprudential allowance and expense-of-office allowance.

s 238A ins 2015 No. 2 s 47

238BJudges pension scheme applies to chairperson

The Judges Pensions Act, other than sections 15 and 15A, applies to a former chairperson as if a reference to a judge in that Act included a reference to a former chairperson, but with—
(a)the changes set out in this subdivision; and
(b)other changes necessary to enable that Act to apply to a former chairperson.

s 238B ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (1)

238CPeriod for which person holds office as chairperson

For applying the Judges Pensions Act to a former chairperson under this subdivision, the following are to be counted as a period for which a person held office as the chairperson—
(a)any period, before the person’s appointment as the chairperson, that would be counted as service as a judge for the purposes of the Judges Pensions Act;
(b)any period, before the person’s appointment as the chairperson, for which the person acted as the chairperson.

s 238C ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (1)

238DPension at end of appointment generally

(1)The Judges Pensions Act, sections 3 and 4 apply to a former chairperson—
(a)if the former chairperson held office as the chairperson for at least 5 years; and
(b)regardless of the former chairperson’s age when the former chairperson ceased to hold the office.

Note—

See, however, section 238F for when a pension becomes payable.
(2)However, the annual pension to which the former chairperson is entitled is an annual pension—
(a)at a rate equal to 6% of the prescribed salary for each year for which the former chairperson held office as the chairperson; but
(b)up to a maximum of 60% of the prescribed salary.

s 238D ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (1)–(2)

238EPension if appointment ends because of ill health

(1)The Judges Pensions Act, section 5 applies to a former chairperson if—
(a)the former chairperson resigned the office as the chairperson and a medical practitioner, prescribed by a regulation under the Judges Pensions Act, certified to the Minister that the resignation was because of a permanent disability or infirmity; or
(b)the former chairperson’s appointment as chairperson was terminated under section 236(1) because of a proved incapacity to perform the duties of office.
(2)However, the annual pension to which the former chairperson is entitled is an annual pension—
(a)at a rate equal to 6% of the prescribed salary for each year of the period consisting of—
(i)the period for which the former chairperson held office as the chairperson; and
(ii)the period for which the former chairperson could have held office as the chairperson under the former chairperson’s terms and conditions of appointment (including under an option to renew the appointment for a further term) if the former chairperson had not resigned, or had his or her appointment terminated, as mentioned in subsection (1); but

Example for paragraph (a)—

A person is appointed as the chairperson for a term of 3 years with an option to renew the appointment for a further term of 2 years. The person resigns from the office after 21/2 years because of a permanent disability or infirmity. The annual pension under paragraph (a) is 30% of the prescribed salary, which is worked out by applying a rate of 6% of the prescribed salary for each year of the 5-year period (being the total of the 21/2 years the person held office as the chairperson and the 21/2 years the person could have held the office as the chairperson if the person had not resigned because of a permanent disability or infirmity).
(b)up to a maximum of 60% of the prescribed salary.
(3)Also, a former chairperson is entitled to an annual pension as set out in this section only if the period mentioned in subsection (2)(a) is at least 5 years.

s 238E ins 2015 No. 2 s 47

amd 2016 No. 19 ss 30, 45 (1)–(2)

238FWhen chairperson’s pension becomes payable

(1)This section applies if a former chairperson is entitled to a pension under the Judges Pensions Act, as applying under this subdivision.
(2)The pension does not become payable until the former chairperson reaches 65 years of age.

s 238F ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (1)–(2)

238GPension of spouse and children on death of chairperson

(1)The Judges Pensions Act, sections 7 to 8A apply to a former chairperson if the former chairperson is entitled to a pension under the Judges Pensions Act, as applying under this subdivision.
(2)The Judges Pensions Act, sections 7 and 8A apply to a spouse or child of a former chairperson who dies before the former chairperson reaches 65 years of age in the way the sections apply to a spouse or child of a judge who dies before retirement.
(3)However, if the spouse or child is entitled to a pension under the Judges Pensions Act, section 7 or 8A, the pension is not payable to the spouse or child until the time when the former chairperson would have reached 65 years of age.
(4)The Judges Pensions Act, sections 8 and 8A apply to a spouse or child of a former chairperson who dies after the former chairperson reached 65 years of age in the way the sections apply to a spouse or child of a retired judge.
(5)In this section—
child includes adopted child.

s 238G ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (1)

238HWhat happens if former chairperson is removed from office as a judge

The Judges Pensions Act, section 16 applies to a person who is a former chairperson if the person was a judge removed from office as mentioned in the section after the person held office as chairperson.

s 238H ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (1)

238IWhat happens if former chairperson’s appointment is terminated under s 236(3)

This subdivision does not apply to a former chairperson if the former chairperson’s appointment is terminated under section 236(4) unless the Governor in Council decides otherwise.

s 238I ins 2015 No. 2 s 47

amd 2016 No. 19 ss 31, 45 (1)–(2)

238JFormer chairperson entitled to other pension

A pension is not payable, or stops being payable, under the Judges Pensions Act in relation to a former chairperson in his or her capacity as a former chairperson if a pension is payable under that Act in relation to the former chairperson in his or her capacity as—
(a)a judge; or
(b)a member of the Land Court, the industrial court, or the industrial commission.

Note—

See the Judges Pensions Act, sections 2AB and 2BA for the pension entitlements of persons who have been appointed as the chairperson.

s 238J ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (1)

238KProvision about agreements and court orders under Family Law Act 1975 (Cwlth)

(1)The Judges Pensions Act, part 2, division 2 applies to a former chairperson as follows—
(a)the reference to a retired judge in section 9 of that Act, definition entitled former spouse is taken to be a reference to a former chairperson;
(b)information allowed to be given under section 10 of that Act includes information about a benefit for a person who holds office as the chairperson;
(c)section 11 and section 12 of that Act apply whether the person is the chairperson or a former chairperson at the operative time mentioned in the section;
(d)section 13 of that Act applies in relation to a person who is the chairperson at the operative time mentioned in the section and dies while holding office as the chairperson.
(2)However, if a person who is the chairperson at the operative time mentioned in the Judges Pensions Act, section 13 dies before reaching 65 years of age, the pension payable to the person’s entitled former spouse under the section does not become payable until the time when the person would have reached 65 years of age.

s 238K ins 2015 No. 2 s 47

amd 2016 No. 19 s 45 (1)

Division 2A Sessional commissioners

ch 6 pt 1 div 2A hdg ins 2014 No. 21 s 44

239Appointment of sessional commissioners

The chairperson may appoint as many sessional commissioners as are required to help the chairperson to perform the commission’s functions or exercise the commission’s powers by—
(a)conducting a hearing for a crime investigation, corruption investigation or the intelligence function; or
(b)examining 1 or more witnesses, and reporting on the examination to the chairperson, for a crime investigation, corruption investigation or the intelligence function; or
(c)conducting a specific investigation relevant to the commission’s functions.

s 239 sub 2014 No. 21 ss 44, 46

amd 2016 No. 19 s 45 (1)

240Qualification for appointment as a sessional commissioner

A person is qualified for appointment as a sessional commissioner only if the person has served as, or is qualified for appointment as, a judge of—
(a)the Supreme Court of Queensland; or
(b)the Supreme Court of another State; or
(c)the High Court of Australia; or
(d)the Federal Court of Australia.

s 240 sub 2014 No. 21 ss 44, 46

241Disqualification as a sessional commissioner

An ineligible person or the chief executive officer can not be appointed as, or continue as, a sessional commissioner.

s 241 sub 2014 No. 21 ss 44, 46

amd 2016 No. 19 s 32

242Terms of appointment

A sessional commissioner is appointed on a sessional basis and holds office for the period, and on the terms and conditions, stated in the commissioner’s instrument of appointment.

s 242 sub 2014 No. 21 ss 44, 46

243Resignation

A sessional commissioner may resign by signed notice given to the chairperson.

s 243 sub 2014 No. 21 ss 44, 46

amd 2016 No. 19 s 45 (1)

244[Repealed]

s 244 amd 2009 No. 25 s 83 sch

om 2014 No. 21 s 46

Division 3 Senior officers

ch 6 pt 1 div 3 hdg amd 2014 No. 21 s 45

Subdivision 1 Appointment

245Senior officers

(1)The commission may employ the senior officers necessary to enable the commission to perform its functions.
(2)Senior officers are to be employed under this Act and not under the Public Service Act 2008.
(3)The commission must employ—
(a)a senior officer who is responsible to the chairperson for the proper performance of the commission’s crime functions (the senior executive officer (crime)); and
(b)a senior officer who is responsible to the chairperson for the proper performance of the commission’s corruption functions (the senior executive officer (corruption)).
(4)In the performance of the commission’s functions or exercise of the commission’s powers, senior officers are subject to the direction and control of the chairperson.
(5)In this section—
senior officer means a person who, in the chief executive officer’s opinion, is performing duties that would, if the person were a public service officer, be duties of a senior executive.

s 245 amd 2009 No. 25 s 83 sch; 2014 No. 21 s 47; 2016 No. 19 ss 33, 45 (1)

246Disqualification as a senior officer

An ineligible person can not be appointed as, or continue as, a senior officer.

Subdivision 2 Other provisions about appointment

247Duration of appointment

(1)A senior officer holds office for the term, not longer than 5 years, stated in the person’s contract of employment.
(2)A person appointed as a senior officer may be appointed for a further term if the commission considers that—
(a)the person’s performance as a senior officer has been of the highest standard; and
(b)the person is likely to continue to contribute at a high standard to the commission’s performance.
(3)However, subject to subsection (3A), a senior officer must not hold office in the commission as a senior officer for more than 10 years in total.

Example—

A person held office as a senior officer for 7 years, comprising an appointment for an initial term of 5 years and a reappointment for a further term of 2 years. The person may be reappointed as a senior officer for a further term of 3 years. However, the person must not continue in, or be reappointed to, the office at the end of that 3-year term, unless the reappointment is made under subsection (3A).
(3A)A senior officer who has held office in the commission as a senior officer for 10 years in total may be reappointed for a further term if the reappointment—
(a)is necessary for the efficient operation of the commission; and
(b)does not result in the person holding office in the commission as a senior officer for more than 15 years in total.

Example—

A person has held office in the commission for 10 years as a senior officer. At the end of 10-year period, the person may be reappointed as a senior officer for a further term of not more than 5 years.
(3B)Any time a person held office in the commission as a senior officer before the commencement of this subsection must be included in working out the number of years under subsection (3) or (3A).
(3C)For subsections (3) to (3B), any time a person held office in the commission as an assistant commissioner under this Act before the commencement of this subsection is taken to be time held by the person in office in the commission as a senior officer.
(4)Subsections (3) to (3C) have effect despite the Acts Interpretation Act 1954, section 25(1)(c).
(5)In this section—
senior officer means a senior officer whose principal duties relate directly to the performance of the commission’s prevention, crime, corruption, research or intelligence functions or the giving of legal advice to the commission, but does not include a senior officer whose duties support the commission’s functions.

Examples of senior officers whose duties support the commission’s functions—

an officer whose principal duties relate to information technology matters
an officer whose principal duties relate to financial matters
an officer whose principal duties relate to human resource management matters

s 247 amd 2006 No. 41 s 20; 2014 No. 21 s 48

247ANotice to parliamentary committee

(1)If a person is reappointed for a further term under section 247(3A), the chief executive officer must give the parliamentary committee written notice of the appointment.
(2)The notice must state the following—
(a)the name of the person appointed for the further term;
(b)the position the person holds in the commission;
(c)why the person’s appointment for the further term is necessary for the efficient operation of the commission;
(d)the period of the further term.

s 247A ins 2006 No. 41 s 21

amd 2014 No. 21 s 49

248Basis of employment for senior officers

(1)Each person appointed as a senior officer must enter into a written contract of employment with the commission.
(2)The conditions of the person’s contract must be approved by the Minister.
(3)The person’s conditions of employment are governed by this Act and the contract.
(4)The contract of employment must state—
(a)subject to section 247, the term, not longer than 5 years, of the person’s employment; and
(b)the person’s duties; and
(c)that the person must meet any performance standards set by the chief executive officer; and
(d)the remuneration to which the person is entitled; and
(e)that the person may resign by signed notice of resignation given to the chief executive officer at least 1 month before the notice is to take effect; and
(f)that the person’s appointment and contract of employment may be terminated by the chief executive officer by notice signed by the chief executive officer and given to the person at least 1 month before it is to take effect.

s 248 amd 2014 No. 21 s 50

249Preservation of rights

(1)This section applies if—
(a)a person is appointed as a senior officer; and
(b)the person resigns the person’s role as a public service officer in order to accept the appointment.
(2)The person retains and is entitled to all rights that have accrued to the person because of the person’s employment as a public service officer, or that would accrue in the future to the person because of that employment, as if service as a senior officer were a continuation of service as a public service officer.
(3)At the end of the person’s term of office or on resignation—
(a)the person is entitled to be appointed to an office in the public service at a salary level not less than the current salary level of an office equivalent to the office the person held before being appointed as a senior officer; and
(b)the person’s service as a senior officer is to be regarded as service of a like nature in the public service for deciding the person’s rights as a public service officer.

s 249 amd 2014 No. 21 s 94 (1) sch 1

250[Repealed]

s 250 om 2014 No. 21 s 51

Division 4 Roles of commission, chairperson and chief executive officer

ch 6 pt 1 div 4 hdg sub 2014 No. 21 s 52

amd 2016 No. 19 s 45 (1)

251Role of commission

(1)The commission is responsible for providing strategic leadership and direction for the performance of the commission’s functions, and the exercise of the commission’s powers, by the chairperson, chief executive officer and commission staff.
(2)The commission is also responsible for—
(a)the preparation of the commission’s strategic and business plans; and
(b)the establishment of internal management committees and their charters; and
(c)the preparation of the internal audit charter prepared for the Financial Accountability Act 2009.
(3)If asked by the chairperson, the commission may help the chairperson in the performance of the commission’s functions or exercise of the commission’s powers delegated to the chairperson under section 269.

s 251 amd 2002 No. 68 s 283 sch 3

sub 2014 No. 21 s 52

amd 2016 No. 19 s 45 (1)

252Role of chairperson

(1)The chairperson—
(a)is the chair of the commission; and
(b)is responsible for the proper performance of the commission’s functions delegated to the chairperson under section 269.
(2)The chairperson is to—
(a)perform the functions, and exercise the powers, of the commission delegated to the chairperson under section 269; and
(b)perform the other functions, and exercise the other powers, conferred on the chairperson under this Act or another Act.
(3)The chairperson is to report to the commission on the performance of the commission’s functions, but is not subject to the direction of the commission in the performance of a function or exercise of a power in an investigation, hearing, operation or other proceeding under this Act or another Act.
(4)Anything done in the commission’s name by the chairperson or the chairperson’s delegate is taken to have been done by the commission.

s 252 sub 2014 No. 21 s 52

amd 2016 No. 19 s 45 (1)–(2)

253Role of chief executive officer

(1)The chief executive officer is responsible to the commission for the administration of the commission.
(2)The chief executive officer is to—
(a)perform the functions, and exercise the powers, of the commission delegated to the chief executive officer under section 269; and
(b)perform the functions and exercise the powers delegated to the chief executive officer by the chairperson; and
(c)perform the other functions, and exercise the other powers, conferred on the chief executive officer under this Act.
(3)In performing a function or exercising a power under this Act, the chief executive officer is subject to the direction of—
(a)for a function or power delegated to the chief executive officer by the chairperson—the chairperson; or
(b)otherwise—the commission.
(4)The chief executive is to report to the commission on—
(a)all matters relating to the administration of the commission; and
(b)the performance of the functions and exercise of the powers mentioned in subsection (2)(a) and (c).
(5)Anything done in the commission’s name by the chief executive officer or chief executive officer’s delegate is taken to have been done by the commission.

s 253 sub 2014 No. 21 s 52

amd 2016 No. 19 s 45 (1)

Division 5 Commission staff and agents

254Commission staff

(1)The commission may employ the staff necessary to enable the commission to perform its functions.
(2)The staff are to be employed under this Act and not under the Public Service Act 2008.
(3)The staff are to be paid the remuneration and allowances decided by the Minister.
(4)Staff employed at or above a level decided by the commission must be employed under a written contract of employment with the commission.
(5)Staff employed under a written contract of employment are not subject to any industrial instrument under the Industrial Relations Act 2016 or any determination or rule of an industrial tribunal.
(6)The staff are subject to the direction and control of the chief executive officer.

s 254 amd 2009 No. 25 s 83 sch; 2014 No. 21 s 53; 2016 No. 63 s 1157 sch 6

255Secondment of officers

(1)The chief executive officer may arrange with the chief executive of a department, or with another unit of public administration, for the services of officers or employees of the department or other unit to be made available (seconded) to the commission.
(2)The arrangement is not effective unless it has been approved by—
(a)for a secondment of an officer or employee of the parliamentary service—the Speaker; or
(b)for a secondment of a member of the police service—the Minister and the Minister administering the Police Service Administration Act 1990; or
(c)for a secondment of another officer or employee—
(i)if the secondment is to a position at a level equivalent to or above the level of a senior officer under the Public Service Act 2008—the Minister and the Minister responsible for the unit of public administration from which the person is to be seconded; or
(ii)if the secondment is to a position at another level—the chief executive of the unit of public administration from which the person is to be seconded.
(3)An officer or employee seconded to the commission under this section is subject to the direction and control of the chief executive officer.
(4)However, if police officers are seconded to the commission, their efficient deployment is to be the joint responsibility of the chief executive officer and the most senior police officer seconded to the commission.
(5)Without limiting section 174(2), a police officer seconded to the commission under this section continues to be a police officer for all purposes and to have the functions and powers of a police officer without being limited to the performance of the commission’s functions.

Example for subsection (5)—

A police officer seconded to the commission may exercise the powers of a police officer under the Police Powers and Responsibilities Act 2000 for an investigation of alleged corruption involving a relevant offence as defined in section 323 of that Act.
(6)This section does not apply to the establishment of a police task force or to police officers who are part of a police task force.

s 255 amd 2006 No. 26 s 93; 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2006 No. 41 s 22; 2009 No. 25 s 83 sch; 2014 No. 21 s 54

256Engagement of agents

(1)To meet temporary circumstances, the commission may engage suitably qualified persons to provide it with services, information or advice.
(2)A person engaged under subsection (1) is engaged on the terms and conditions decided by the commission and not under the Public Service Act 2008.

s 256 amd 2009 No. 25 s 83 sch

257Commission officers

(1)This section applies to commission officers who are employed by the commission under section 254 or seconded to the commission under section 255.
(2)The commission may issue directions for the performance of duties by the commission officers.
(3)A person who is a member of a relevant office and who is seconded to the commission under section 255 remains a member of the office from which the person was seconded.
(4)Subsection (3) is subject to subsection (2) and section 255(4).
(5)A person mentioned in subsection (3)—
(a)is entitled to the person’s existing and accruing rights as if employment as an officer of the commission were a continuation of employment in the relevant office; and
(b)continues to be required to contribute to any superannuation scheme to which the person is required to contribute as a member of the office.

258Superannuation schemes

(1)The commission may—
(a)establish or amend superannuation schemes; or
(b)join in establishing or amending superannuation schemes; or
(c)take part in superannuation schemes.
(2)Subsection (1) does not apply to commission officers seconded under section 255 or engaged under section 256.
(3)The auditor-general must audit the schemes.
(4)Subsection (3) is subject to the Auditor-General Act 2009.

s 258 amd 2009 No. 9 s 136 sch 1

Division 6 Performance accountability

259Budget and performance

(1)For each financial year, the commission must adopt and submit to the Minister a budget not later than the day the Minister directs.
(2)The chief executive officer is responsible for developing the budget for the commission.
(3)A budget has no effect until approved by the Minister.
(4)During a financial year the commission may develop, adopt and submit to the Minister amendments to its budget.
(5)An amendment has no effect until approved by the Minister.
(6)The commission must comply with its budget.

s 259 amd 2014 No. 21 s 55

260Performance

(1)The Minister has a responsibility to ensure that the commission operates to best practice standards.
(2)To help the Minister discharge that responsibility, the commission must report to the Minister, when and in the way required by the Minister, on the efficiency, effectiveness, economy and timeliness of the commission and its systems and processes, including operational processes.
(3)The report must be accompanied by any financial or other reports the Minister requires to enable the Minister to assess the efficiency, effectiveness, economy or timeliness of the commission, including, in particular, the timeliness with which the commission deals with complaints.
(4)The commission must comply with a Ministerial request under this section.
(5)This section does not require the commission to give the Minister any details that, if given—
(a)would prejudice a current sensitive operation of, or investigation by, the commission; or
(b)may threaten—
(i)the security of a protected person; or
(ii)the integrity of the witness protection program or other witness protection activities of the commission.

s 260 amd 2006 No. 41 s 23

Division 7 Meetings and other business of commission

261Conduct of business

Subject to this division, the commission may conduct its business, including its meetings, in the way it considers appropriate.

262Chief executive officer or senior executive officer may attend meetings

The chief executive officer or a senior executive officer may attend commission meetings but is not entitled to vote at a meeting.

s 262 sub 2014 No. 21 s 56; 2016 No. 19 s 34

263Times and places of meetings

(1)Commission meetings are to be held at the times and places the chairperson decides.
(2)However, the chairperson must call a meeting if asked, in writing, to do so by the Minister or at least the number of commissioners forming a quorum for the commission.

s 263 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

264Quorum

(1)A quorum for a commission meeting is any 3 commissioners.
(2)However, if a report is to be presented to the commission for adoption, the quorum for the meeting is any 4 commissioners.

265Presiding at meetings

(1)The chairperson is to preside at all commission meetings at which the chairperson is present.
(2)If the chairperson is absent from a commission meeting, the deputy chairperson is to preside at the meeting.
(3)If both the chairperson and deputy chairperson are absent from a commission meeting, the commissioner chosen by the commissioners present is to preside at the meeting.

s 265 amd 2014 No. 21 s 57; 2016 No. 19 s 45 (1)

266Conduct of meetings

(1)A question at a commission meeting is decided by a majority of the votes of the commissioners present.
(2)Each commissioner present at the meeting has a vote on each question to be decided and, if the votes are equal, the person presiding also has a casting vote.
(3)A commissioner present at the meeting who abstains from voting is taken to have voted for the negative.
(4)The commission may hold meetings, or allow commissioners or officers mentioned in section 262 to take part in its meetings, by using any technology allowing reasonably contemporaneous and continuous communication between persons taking part in the meeting.

Example of technology allowing reasonably contemporaneous and continuous communication—

teleconferencing
(5)A person who takes part in a commission meeting under subsection (4) is taken to be present at the meeting.
(6)A resolution is validly made by the commission, even if it is not passed at a commission meeting, if—
(a)a majority of the commissioners gives written agreement to the resolution; and
(b)notice of the resolution is given under procedures approved by the commission.

s 266 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 35

267Disclosure of interests

(1)This section applies to a commissioner (the interested person) if—
(a)the interested person has a material personal interest in an issue being considered, or about to be considered, by the commission; and
(b)the interest could conflict with the proper performance of the person’s duties about the consideration of the issue.
(2)As soon as practicable after the relevant facts come to the interested person’s knowledge, the person must disclose the nature of the interest to a commission meeting.
(3)Unless the commission otherwise directs, the interested person must not—
(a)be present when the commission considers the issue; or
(b)take part in a decision of the commission about the issue.
(4)The interested person must not be present when the commission is considering whether to give a direction under subsection (3).
(5)If there is another person who must, under subsection (2), also disclose a material personal interest in the issue, the other person must not—
(a)be present when the commission is considering whether to give a direction under subsection (3) about the interested person; or
(b)take part in making the decision about giving the direction.
(6)If—
(a)because of this section, a commissioner is not present at a commission meeting for considering or deciding an issue, or for considering or deciding whether to give a direction under subsection (3); and
(b)there would be a quorum if the member were present;

the remaining persons present are a quorum of the commission for considering or deciding the issue, or for considering or deciding whether to give the direction, at the meeting.

(7)A disclosure under subsection (2) must be recorded in the commission’s minutes.
(8)A failure to disclose a material personal interest does not, of itself, invalidate a commission decision.
(9)In this section—
material personal interest means—
(a)a direct or indirect interest relating to the personal affairs of the commissioner that may have, or be seen to have, a significant influence on the conduct of the commissioner at the meeting; or
(b)a personal or political association that might influence the commissioner in the discharge of the commissioner’s duties.

268Minutes

(1)The commission must keep—
(a)minutes of its meetings; and
(b)a record of any resolutions made under section 266(6).
(2)Subsection (3) applies if a resolution is passed at a commission meeting by a majority of the commissioners present.
(3)If asked by a commissioner who voted against the passing of the resolution, the commission must record in the minutes of the meeting that the commissioner voted against the resolution.

Division 8 Delegations and authorised commission officers

269Delegation—commission

(1)The commission’s functions and powers under this Act or another Act, other than the commission’s functions under sections 234, 251(1) and (2) and 259, are delegated to—
(a)for a function or power under sections 40, 245, 254, 256, 258, 260 and 346B, the commission’s financial accountability functions and the commission’s public record powers—the chief executive officer; or
(b)otherwise—the chairperson.
(2)However, in issuing a direction under section 40, the chief executive officer is subject to the direction and control of the chairperson.
(3)The chief executive officer may sub-delegate a function or power of the commission delegated to the chief executive officer under subsection (1) to an appropriately qualified commission officer.
(4)However—
(a)the commission’s powers under section 254 in relation to the appointment of a person at a level equivalent to or above the level of a senior officer can not be sub-delegated by the chief executive officer; and
(b)the commission’s functions and powers under section 346B, and the commission’s public record powers, may only be sub-delegated to a senior executive officer.
(5)The chairperson may sub-delegate a function or power of the commission delegated to the chairperson under subsection (1) to an appropriately qualified commission officer.
(6)However, the commission’s powers under the provisions mentioned in column 1 of the following table may only be sub-delegated to the commission officer or officers mentioned in column 2 of the table—

Provision

Commission officer

section 50 (Commission may prosecute corrupt conduct)

senior executive officer

section 257(2) (Commission officers)

chief executive officer

(7)In this section—
commission’s financial accountability functions means the commission’s functions under the Financial Accountability Act 2009.
commission’s public record powers means the commission’s powers under the Public Records Act 2002 as the responsible public authority for a public record.

Note—

For an example of the commission’s public record powers, see the Public Records Act 2002, section 19.

s 269 amd 2006 No. 41 s 24; 2013 No. 51 s 228B

sub 2014 No. 21 s 58

amd 2016 No. 19 ss 36, 45 (1); 2018 No. 29 s 25

270Delegation—chairperson

(1)The chairperson may delegate the chairperson’s powers under this or another Act, other than under the Police Powers and Responsibilities Act 2000, section 674, to an appropriately qualified commission officer.
(2)However—
(a)the chairperson’s powers under section 82(6) may only be delegated to the senior executive officer (crime); and
(b)the chairperson’s powers under section 272 may only be delegated to a senior executive officer.

s 270 amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86) (amdt could not be given effect); 2007 No. 37 s 162 sch; 2013 No. 45 s 33; 2014 No. 21 s 59; 2016 No. 19 s 45 (1)–(2); 2016 No. 62 s 52

271Delegation—chief executive officer and senior executive officer

The chief executive officer or a senior executive officer may delegate the officer’s powers under this Act to an appropriately qualified commission officer.

s 271 sub 2014 No. 21 s 60

272Authorised commission officer

(1)The chairperson may authorise an appropriately qualified officer or employee of the commission to perform the functions of, exercise the powers of, or for any purpose to be, an authorised commission officer under a provision of this Act or another Act.
(2)The chairperson may authorise a police officer who is a member of a police task force established under section 32 that is undertaking an investigation in cooperation with the commission to perform the functions of, exercise the powers of, or for any purpose to be, an authorised commission officer under a provision of this Act or another Act.
(3)An authorisation may be given on conditions and may impose limitations on the exercise of powers.
(4)A reference in a provision of this or another Act to an authorised commission officer is a reference to a person who is an authorised commission officer under this section.

s 272 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

273Commission officer’s identity card

(1)The chief executive officer must give each commission officer an identity card.
(2)The identity card must—
(a)contain a recent photo of the officer; and
(b)contain a copy of the commission officer’s signature; and
(c)identify the person as a commission officer under this Act; and
(d)state an expiry date for the card.
(3)A person who stops being a commission officer must return the person’s identity card to the chief executive officer as soon as possible (but within 21 days) after the person stops being a commission officer, unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

(4)This section does not prevent the giving of a single identity card to a person for this Act and other purposes.
(5)In this section—
commission officer does not include—
(a)a police officer who is a member of a police task force established under section 32; or
(b)a person engaged under section 256.

s 273 amd 2014 No. 21 s 61

Division 9 Disciplinary action for senior officers and commission staff and agents etc.

ch 6 pt 1 div 9 hdg ins 2014 No. 21 s 62

Subdivision 1 Preliminary

ch 6 pt 1 div 9 sdiv 1 hdg ins 2018 No. 29 s 26

273ADefinitions for div 9

In this division—
disciplinary action see section 273C(1).
disciplinary finding means a finding that a disciplinary ground exists.
disciplinary ground means a ground for disciplining a relevant commission officer or former relevant commission officer under section 273B.
employment, in relation to a person, includes secondment and engagement.
former relevant commission officer see section 273D(1)(a).
prescribed employee means a prescribed employee under the Public Service Act 2008, section 186A, other than a relevant commission officer.

s 273A def prescribed employee ins 2018 No. 29 s 27

relevant commission officer means—
(a)a senior officer; or
(b)a person employed under section 254 or seconded under section 255; or
(c)a person engaged under section 256.
relevant employee means—
(a)a public service employee; or
(b)a prescribed employee.

s 273A def relevant employee ins 2018 No. 29 s 27

s 273A ins 2014 No. 21 s 62

273AA References to relevant employees

(1)This section provides for the meaning of particular terms used in this division relating to a person who is or was a relevant employee.
(2)A reference to the person’s current or previous chief executive is a reference to—
(a)for a person who is or was a public service employee—the chief executive of the department in which the person is or was employed as a public service employee; or
(b)for a person who is or was a prescribed employee—the person’s current or previous chief executive under the Public Service Act 2008, section 186B(2).
(3)A reference to a relevant disciplinary law for the person is a reference to any of the following—
(a)the Public Service Act 2008, chapter 6;
(b)a law that is a relevant disciplinary law for the person under the Public Service Act 2008, section 186B(3).

Note—

The laws mentioned in this subsection also provide for disciplinary action against a person who was, but is no longer, a relevant employee.
(4)In subdivision 3
(a)a reference to a relevant disciplinary ground for the person is a reference to a disciplinary ground under a relevant disciplinary law for the person; and
(b)a reference to a disciplinary finding in relation to a relevant disciplinary ground for the person is a reference to a finding that a relevant disciplinary ground for the person exists.

s 273AA ins 2018 No. 29 s 28

Subdivision 2 Grounds and disciplinary action generally

ch 6 pt 1 div 9 sdiv 2 hdg ins 2018 No. 29 s 28

273BGrounds for discipline

(1)The chief executive officer may discipline a relevant commission officer if the chief executive officer is reasonably satisfied the officer has—
(a)performed the officer’s duties carelessly, incompetently or inefficiently; or
(b)been guilty of misconduct; or
(c)been absent from duty without approved leave and without reasonable excuse; or
(d)contravened, without reasonable excuse, a direction given to the officer by a responsible person; or
(e)used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the officer’s duties; or
(f)contravened, without reasonable excuse, a requirement of the chief executive officer under section 273G(1) in relation to the officer’s employment by, in response to the requirement—
(i)failing to disclose a serious disciplinary action; or
(ii)giving false or misleading information; or
(g)contravened, without reasonable excuse—
(i)a provision of this Act; or
(ii)a standard of conduct applying to the officer under an approved code of conduct under the Public Sector Ethics Act 1994; or
(iii)a standard of conduct, if any, applying to the officer under an approved standard of practice under the Public Sector Ethics Act 1994.
(2)Also, the chief executive officer may discipline a former relevant commission officer under section 273D on the same grounds mentioned in subsection (1).
(3)A disciplinary ground arises when the act or omission constituting the ground is done or made.
(4)In this section—
misconduct means—
(a)inappropriate or improper conduct in an official capacity; or
(b)inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the commission.

Example of misconduct—

victimising another commission officer in the course of the other officer’s employment or engagement with the commission
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

s 273B ins 2014 No. 21 s 62

273CDisciplinary action that may be taken against a relevant commission officer generally

(1)In disciplining a relevant commission officer, the chief executive officer may take the action, or order the action be taken, (disciplinary action) that the chief executive officer considers reasonable in the circumstances.

Examples of disciplinary action—

termination of employment
reduction of classification level and a consequential change of duties
transfer or redeployment to another unit of the commission
forfeiture or deferment of a remuneration increment or increase
reduction of remuneration
imposition of a monetary penalty
if a penalty is imposed, a direction that the amount of the penalty be deducted from the officer’s periodic remuneration payments
a reprimand
counselling
(2)A monetary penalty can not be more than the total of 2 of the relevant commission officer’s periodic remuneration payments.
(3)Also, an amount directed to be deducted from any particular periodic remuneration payment of the relevant commission officer—
(a)must not be more than half of the amount payable to or for the officer in relation to the payment; and
(b)must not reduce the amount of salary payable to the officer in relation to the period to less than—
(i)if the officer has a dependant—the guaranteed minimum wage for each week of the period; or
(ii)otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
(4)An order under subsection (1) is binding on anyone affected by it.

s 273C ins 2014 No. 21 s 62

amd 2018 No. 29 s 29

Subdivision 3 Disciplinary action against a relevant commission officer who was a relevant employee

ch 6 pt 1 div 9 sdiv 3 hdg ins 2018 No. 29 s 30

273CA Application of subdivision

(1)This subdivision applies if—
(a)a person is a relevant employee and a relevant disciplinary ground arises in relation to the person; and
(b)after the relevant disciplinary ground arises, the person stops being employed as a relevant employee and starts employment as a relevant commission officer.
(2)However, this subdivision does not apply if the person’s previous chief executive has taken, is taking, or intends to take, disciplinary action against the person, under a relevant disciplinary law, in relation to the relevant disciplinary ground.

s 273C ins 2018 No. 29 s 30

273CB Action previous chief executive may take

(1)The person’s previous chief executive may make a disciplinary finding about the relevant disciplinary ground for this subdivision.
(2)The previous chief executive may take disciplinary action about the relevant disciplinary ground as provided under section 273CC(2).
(3)Despite subsection (1) and without limiting or being limited by any other power of delegation under any Act, the previous chief executive may delegate to the chief executive officer the authority under subsection (1) to make a disciplinary finding about the person.
(4)The previous chief executive may give to the chief executive officer any information about a person or a relevant disciplinary ground relating to the person to help the chief executive officer to perform a function under section 273CC(2) or (4) in relation to the person.

s 273CB ins 2018 No. 29 s 30

273CC Action chief executive officer may take

(1)Subsection (2) applies if—
(a)the previous chief executive makes a disciplinary finding about the relevant disciplinary ground; and
(b)the previous chief executive and the chief executive officer agree that disciplinary action against the person is reasonable in the circumstances.
(2)The chief executive officer may take disciplinary action against the person under section 273C as if a disciplinary ground under section 273B exists.
(3)Subsection (4) applies if—
(a)the previous chief executive delegates to the chief executive officer the authority under section 273CB(1) to make a disciplinary finding about the person; and
(b)the chief executive officer makes a disciplinary finding about the person.
(4)The chief executive officer may take disciplinary action against the person under section 273C without the agreement of the previous chief executive.

s 273CC ins 2018 No. 29 s 30

Subdivision 4 Disciplinary action against a former relevant commission officer

ch 6 pt 1 div 9 sdiv 4 hdg ins 2018 No. 29 s 30

273DDisciplinary action that may be taken against a former relevant commission officer

(1)This section applies if—
(a)a disciplinary ground arises in relation to a relevant commission officer (the former relevant commission officer); and
(b)after the disciplinary ground arises, the officer’s employment as a relevant commission officer ends for any reason.
(2)However, this section does not apply in relation to a person who is a former relevant commission officer if the chief executive officer is aware—
(a)the person is a relevant employee; and
(b)the person’s current or previous chief executive has taken, is taking, or intends to take disciplinary action against the person, under a relevant disciplinary law, in relation to the disciplinary ground.
(3)The chief executive officer may make a disciplinary finding, or take disciplinary action under this section, against the former relevant commission officer in relation to the disciplinary ground.
(4)The disciplinary finding or disciplinary action must be made or taken within a period of 2 years after the end of the relevant commission officer’s employment.
(5)For subsections (3) and (4), the chief executive officer takes disciplinary action against a former relevant commission officer by making a disciplinary declaration against the officer.
(6)The chief executive officer may only make a disciplinary declaration if the disciplinary action that would have been taken against the former relevant commission officer if the officer’s employment had not ended would have been—
(a)dismissal; or
(b)reduction of classification level.
(7)The making of the disciplinary declaration does not affect the way in which the relevant commission officer’s employment ended, or any benefits, rights or liabilities arising because the employment ended.
(8)In this section—
disciplinary declaration means a declaration of—
(a)the disciplinary finding against the former relevant commission officer; and
(b)the disciplinary action that would have been taken against the relevant commission officer if the officer’s employment had not ended.

s 273D ins 2014 No. 21 s 62

amd 2018 No. 29 s 31

Subdivision 5 Information about disciplinary action

ch 6 pt 1 div 9 sdiv 5 hdg ins 2018 No. 29 s 32

273DA Information about disciplinary action to be given by chief executive officer

(1)This section applies if—
(a)a relevant official asks the chief executive officer for disciplinary information that the chief executive officer has about a person who is or was a relevant commission officer; and
(b)the information is reasonably necessary for the relevant official to make a decision about—
(i)an appointment or continued appointment, or employment or continued employment, of the person by the official; or
(ii)a disciplinary finding, disciplinary action or disciplinary declaration the official is considering in relation to the person under a relevant disciplinary law.
(2)The chief executive officer must give the disciplinary information to the relevant official unless the chief executive officer is reasonably satisfied that giving the information may prejudice the investigation of a suspected contravention of the law in a particular case.
(3)In this section—

disciplinary information, about a person, means information about the following made or taken against the person under this Act by the chief executive officer—
(a)a current investigation into whether the person should be disciplined;
(b)a finding that the person should be disciplined;
(c)possible disciplinary action under consideration;
(d)disciplinary action, including a disciplinary declaration.
relevant official means—
(a)the chief executive of a department; or
(b)the chief executive (however described) of an entity whose employees are prescribed employees; or
(c)the commissioner of police.

273DA ins 2018 No. 29 s 32

273DB Information about disciplinary action to be given to chief executive officer

(1)This section applies if—
(a)the chief executive officer asks a relevant official for disciplinary information that the official has about a person who is or was a relevant employee; and
(b)the information is reasonably necessary for the chief executive officer to make a decision about—
(i)the employment or continued employment of the person as a relevant commission officer; or
(ii)a disciplinary finding, disciplinary action or disciplinary declaration the chief executive officer is considering in relation to the person under this Act.
(2)The relevant official must give the disciplinary information to the chief executive officer unless the official is reasonably satisfied that giving the information may prejudice the investigation of a suspected contravention of the law in a particular case.
(3)In this section—

disciplinary information, about a person, means information about the following made or taken against the person under a public sector disciplinary law by a relevant official or another entity—
(a)a current investigation into whether the person should be disciplined;
(b)a finding that the person should be disciplined;
(c)possible disciplinary action under consideration;
(d)disciplinary action, including a disciplinary declaration.
public sector disciplinary law means—
(a)a public sector disciplinary law under the Public Service Act 2008; or
(b)another law under which a prescribed employee may be disciplined.
relevant employee includes a police officer.
relevant official means—
(a)the chief executive of a department; or
(b)the chief executive (however described) of an entity whose employees are prescribed employees; or
(c)the commissioner of police.

s 273DB ins 2018 No. 29 s 32

Subdivision 6 Other provisions about disciplinary action

ch 6 pt 1 div 9 sdiv 6 hdg ins 2018 No. 29 s 32

273ESuspension of relevant commission officer liable to disciplinary action

(1)The chief executive officer may suspend a relevant commission officer from duty if the chief executive officer reasonably believes the officer is liable to disciplinary action under this Act.
(2)However, before suspending the relevant commission officer, the chief executive officer must consider all alternative duties that may be available for the officer to perform.
(3)During the period of the suspension the relevant commission officer is entitled to normal remuneration, less any amount earned by the officer from alternative employment that the officer engages in during the period.
(4)For subsection (3), alternative employment does not include employment of the relevant commission officer if—
(a)the officer was engaged in the employment at the time of the suspension; and
(b)the officer’s engaging in the employment was not in contravention of this Act or an obligation imposed on the officer under a code of conduct approved under the Public Sector Ethics Act 1994.
(5)The deduction under subsection (3) must not be more than the amount of the relevant commission officer’s normal remuneration during the period of the suspension.
(6)The continuity of the relevant commission officer’s service as a relevant commission officer is taken not to have been broken only because of the suspension.
(7)The chief executive officer may cancel the suspension at any time.

s 273E ins 2014 No. 21 s 62

273FProcedure for disciplinary action

(1)In disciplining a relevant commission officer or former relevant commission officer or suspending a relevant commission officer, the chief executive officer must comply with this Act and the principles of natural justice.
(2)However, natural justice is not required if the suspension is on normal remuneration.
(3)If the chief executive officer decides to suspend or terminate the employment of a relevant commission officer, the chief executive officer must give the officer notice of the suspension or termination.
(4)The notice must state—
(a)for a suspension—
(i)when the suspension starts and ends; and
(ii)the remuneration to which the relevant commission officer is entitled for the period of the suspension under section 273E; and
(b)for a termination—the day when it takes effect.

s 273F ins 2014 No. 21 s 62

Division 10 Other provisions about senior officers and commission staff and agents

ch 6 pt 1 div 10 hdg ins 2014 No. 21 s 62

amd 2018 No. 29 s 33

273GRequirement to disclose previous history of serious disciplinary action

(1)If the chief executive officer proposes to employ a person as a relevant commission officer, the chief executive officer may require the person to disclose to the chief executive officer particulars of any serious disciplinary action taken against the person.
(2)The person must comply with the requirement before the employment takes effect and within the time and in the way stated by the chief executive officer.
(3)The chief executive officer may have regard to information disclosed by the person under this section in deciding whether to employ a person as a relevant commission officer.
(4)The chief executive officer is not required to further consider the person for employment as a relevant commission officer if the person—
(a)fails to comply with the requirement; or
(b)gives false or misleading information in response to the requirement.
(5)In this section—
disciplinary action, for a person, means any action of a disciplinary nature taken against the person under this Act or a public sector disciplinary law.
disciplinary declaration means—
(a)a disciplinary declaration under section 273D; or
(b)a disciplinary declaration within the meaning of the Public Service Act 2008, schedule 4, definition disciplinary declaration, paragraph (a).
employ, in relation to a person, includes second and engage.
public sector disciplinary law means a public sector disciplinary law under the Public Service Act 2008.
relevant commission officer means—
(a)a senior officer; or
(b)a person employed under section 254 or seconded under section 255; or
(c)a person engaged under section 256.
serious disciplinary action, in relation to a person, means—
(a)disciplinary action taken against the person, involving—
(i)termination of employment; or
(ii)reduction of classification level or rank; or
(iii)transfer or redeployment to other employment; or
(iv)reduction of remuneration level; or
(b)a disciplinary declaration that states a disciplinary action mentioned in paragraph (a)(i) or (ii) as the disciplinary action that would have been taken against the person if the person’s employment had not ended.

s 273G ins 2014 No. 21 s 62

273H Relevant prosecuting authority to notify chief executive officer of prosecution proceeding

(1)This section applies if—
(a)the commissioner of police or the director of public prosecutions (a relevant prosecuting authority) is aware a person charged with a relevant offence is a relevant commission officer; and
(b)a relevant event happens in relation to the person.
(2)The relevant prosecuting authority must, within the relevant period for the relevant event, give the chief executive officer a notice stating each of the following matters—

(a)the person’s name;
(b)the date the relevant event happened;
(c)particulars of the relevant offence to which the relevant event relates;
(d)if the relevant event is that the person is committed by a court for trial for a relevant offence—
(i)the court that committed the person for trial; and
(ii)the court to which the person was committed;
(e)if the relevant event is that the person is convicted by a court of a relevant offence—
(i)the court that convicted the person; and
(ii)the sentence imposed by the court;
(f)if the relevant event is that an appeal against a conviction of the person for a relevant offence has been decided—
(i)the court in which the appeal was decided; and
(ii)the particulars of the decision;
(g)if the relevant event is that the prosecution of the person for a relevant offence has ended in a court, without the person being convicted of the offence—the court in which the prosecution of the person ended.

(3)In this section—
relevant event, for a person charged with a relevant offence, means—
(a)the person is committed by a court for trial for a relevant offence; or
(b)the person is convicted by a court of a relevant offence; or
(c)if the person is convicted as mentioned in paragraph (b) and the person appealed against the conviction—the appeal is finally decided or has otherwise ended; or
(d)the prosecution of the person for the relevant offence ends without the person being convicted of a relevant offence because—
(i)a nolle prosequi is entered on the indictment presented against the person for the offence; or
(ii)the person is acquitted of the offence; or
(iii)the prosecution of the person otherwise ends.
relevant offence means—
(a)an indictable offence; or
(b)a disqualifying offence within the meaning of the Working with Children (Risk Management and Screening) Act 2000, section 168, that is not an indictable offence.
relevant period, for a relevant event, means—
(a)generally—7 days after the event happens; or
(b)if the relevant event is the conviction of a person for a relevant offence—7 days after the court imposes a sentence for the offence.

s 273H ins 2018 No. 29 s 34

Part 2 Crime Reference Committee

Division 1 Establishment of Crime Reference Committee

274Establishment

The Crime Reference Committee is established.

Division 2 Functions and support

275Functions of reference committee

The reference committee has the following functions—
(a)to refer, as provided under chapter 2, part 2, division 2, major crime to the commission for investigation;
(b)to authorise the commission, as provided under chapter 2, part 4, division 2A, to undertake specific intelligence operations;
(c)to review general referrals under section 30A;
(d)to coordinate, to the extent the committee considers appropriate, investigations into major crime conducted by the commission in cooperation with a police task force or another entity.

s 275 amd 2009 No. 12 s 12; 2013 No. 45 s 34

276Commission to give committee administrative support

The commission must give the reference committee reasonable administrative services and support to enable the committee to perform its functions.

Division 3 Oversighting role

277Reference committee may obtain information from commission

(1)The senior executive officer (crime) must—
(a)keep the reference committee informed of the general conduct of the senior executive officer’s operations in the performance of the commission’s functions in relation to—
(i)major crime; or
(ii)an authorisation under section 55A to undertake specific intelligence operations, including any hearing held under the authorisation; and
(b)notify the reference committee when the commission commences a particular crime investigation under a general referral to the commission by the reference committee under section 27(1)(b).
(2)The notification mentioned in subsection (1)(b) must be given as soon as practicable after the particular crime investigation commences.
(2A)The senior executive officer (corruption) must keep the reference committee informed of the general conduct of the senior executive officer’s operations in the performance of the commission’s function in relation to authorisations under section 55A to undertake specific intelligence operations if the operation involves suspected corruption.
(3)Subsection (4) applies if the reference committee asks the senior executive officer (crime) to give to it information—
(a)concerning a matter relating to the commission’s operations in relation to major crime or an authorisation under section 55A to undertake specific intelligence operations; or
(b)in relation to a particular crime investigation conducted, or being conducted, under a general referral to the commission by the reference committee under section 27(1)(b).
(4)The senior executive officer (crime) must comply with the request and give the help the reference committee needs to consider the information.
(4A)Subsection (4B) applies if the reference committee asks the senior executive officer (corruption) to give it information concerning a specific intelligence operation authorised under section 55A if the operation involves suspected corruption.
(4B)The senior executive officer (corruption) must comply with the request and give the help the reference committee needs to consider the information.
(5)Information provided to the reference committee is confidential.

s 277 amd 2009 No. 12 s 13; 2013 No. 45 s 35; 2013 No. 64 s 43; 2014 No. 21 s 94 (1) sch 1 (amdt could not be given effect to the extent it subs assistant commissioner, misconduct’s with senior executive officer (corruption)’s)

Division 4 Provisions about membership

278Membership of reference committee

(1)The reference committee consists of the following members—
(a)the chairperson of the commission, who is the chairperson of the reference committee;
(b)the senior executive officer (crime);
(c)the commissioner of police;
(d)the principal commissioner under the Family and Child Commission Act 2014;
(e)subject to subsection (1A), the chief executive officer of the Australian Crime Commission;
(ea)subject to subsection (1B), the senior executive officer (corruption);
(f)2 persons appointed by the Governor in Council as community representatives (each of whom is an appointed member), of whom 1 at least must have a demonstrated interest in civil liberties and 1 at least must be a female.
(1A)The chief executive officer of the Australian Crime Commission is a member of the reference committee only when the committee is performing a function that relates to a function that may be conferred under an Act of the State on the chief executive officer under the Australian Crime Commission Act 2002 (Cwlth) or another Commonwealth Act or regulation.
(1B)The senior executive officer (corruption) is a member of the reference committee only when the committee is performing a function that relates to an authorisation under section 55A for a matter involving suspected corruption.
(2)The Minister must advertise throughout the State for applications from suitably qualified persons to be considered for selection as community representatives.
(3)Subsection (2) does not apply to the reappointment of a person as a community representative.
(5)An ineligible person or a commission officer can not be appointed, or continue, as a community representative.
(6)Any thing done by or in relation to the reference committee is not invalid only because of a defect or irregularity in the appointment of a member or because the reference committee was not properly constituted.

s 278 amd 2004 No. 13 s 102 sch 2 pt 2; 2003 No. 83 s 68 sch 1; 2013 No. 45 s 36; 2014 No. 21 s 63; 2014 No. 27 s 52 sch 1 pt 2; 2016 No. 19 s 45 (1); 2018 No. 29 s 35

279Deputy committee member

(1)The chairperson of the commission may appoint as the chairperson’s deputy for a reference committee meeting another commissioner or the senior executive officer (corruption) (deputy committee member).
(2)The commissioner of police may appoint as the commissioner’s deputy for a reference committee meeting an officer holding rank at least equal to assistant commissioner (also a deputy committee member).
(3)The principal commissioner under the Family and Child Commission Act 2014 may appoint as the commissioner’s deputy for a reference committee meeting an appropriately qualified person nominated by the commissioner (also a deputy committee member).
(4)The chief executive officer of the Australian Crime Commission may appoint as the chief executive officer’s deputy for a reference committee meeting an appropriately qualified person nominated by the chief executive officer (also a deputy committee member).
(5)A person appointed as a deputy committee member for a reference committee meeting under this section is, for the purposes of the meeting, taken to be the committee member for whom the person is deputy.

s 279 amd 2003 No. 83 s 68 sch 1; 2007 No. 37 s 162 sch; 2014 No. 21 s 64; 2014 No. 27 s 52 sch 1 pt 2; 2016 No. 19 s 45 (1)–(2)

279A Delegation of functions of committee chairperson

(1)The chairperson of the commission may delegate his or her functions as chairperson of the reference committee to the senior executive officer (crime).
(2)If the chairperson of the commission delegates functions as mentioned in subsection (1), the senior executive officer (crime) is taken to be the chairperson of the reference committee.
(3)This section applies even if the chairperson has appointed a deputy under section 279(1).
(4)In this section—
functions includes powers.

s 279A ins 2018 No. 29 s 36

280Duration of appointment of appointed member

An appointed member holds office for the term, not longer than 3 years, stated in the instrument of appointment.

281Terms of appointment of appointed member

(1)An appointed member is appointed on a part-time basis.
(2)To the extent that appointed member’s terms and conditions are not provided for by this Act, the appointed member holds office on the terms and conditions decided by the Governor in Council.

282Resignation of appointed member

An appointed member may resign by signed notice given to the Minister.

283Termination of appointment of appointed member

(1)The Governor in Council may terminate the appointment of a person as an appointed member, if the person—
(a)stops being eligible for appointment as an appointed member; or
(b)becomes incapable of satisfactorily performing the member’s duties; or
(c)is guilty of corruption that could warrant dismissal from the public service if the member were a public service officer.
(2)The office of an appointed member is vacated if the person becomes an ineligible person.

s 283 amd 2014 No. 21 s 94 (1) sch 1

Division 5 Meetings and other business

284Conduct of meetings and other business

Subject to this division, the reference committee may conduct its business, including its meetings, in the way it considers appropriate.

285Times and places of meetings

(1)Reference committee meetings are to be held at the times and places the chairperson of the reference committee decides.
(2)However, the chairperson of the reference committee must call a meeting if asked, in writing, to do so by the Minister or at least the number of members forming a quorum for the reference committee.

s 285 amd 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 37

286Quorum

A quorum for a reference committee meeting is any 4 members.

287Presiding at meetings

(1)The chairperson of the reference committee is to preside at all meetings at which the chairperson is present.
(2)If the chairperson of the reference committee is absent from a meeting, the following person is to preside at the meeting—
(a)if the chairperson of the reference committee is the chairperson of the commission and the senior executive officer (crime) is present at the meeting—the senior executive officer (crime);
(b)if the chairperson of the reference committee is the senior executive officer (crime) and the chairperson of the commission is present at the meeting—the chairperson of the commission;
(c)otherwise—the committee member chosen by the committee members.

s 287 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

sub 2018 No. 29 s 38

288Conduct of meetings