Part 7Miscellaneous
78AVetting of prospective
staff
(1)
Vetting information that is held by the Inspector
or Commission or obtained under this section may be used in determining
whether to appoint a person (an applicant) as an officer of the
Inspector or the Commission.
(2)
For the purposes of this section, vetting
information is information of the following kind about an
applicant, or about an associate or relative of an applicant:
(a)
any criminal intelligence report or other
criminal information,
(b)
information held in the Births, Deaths and
Marriages Register,
(c)
information held by Roads and Maritime Services
relating to licences or other authorities, offences or
penalties,
(d)
information held by Corrective Services NSW,
Department of Attorney General and Justice,
(e)
information held by CrimTrac,
(f)
information held by a law enforcement
agency,
(g)
information held by an agency of the Commonwealth
or of the State or another State or Territory investigating public sector
corruption,
(h)
information held by an agency of a jurisdiction
outside Australia, being an agency responsible for the enforcement of laws of
that jurisdiction,
(i)
information prescribed by the regulations that is
held by a public authority or held by a Government agency of another
jurisdiction (whether in or outside Australia).
(3)
The Inspector or Commission may, with the consent
of an applicant, request a public authority or other person or body to
disclose vetting information about the applicant.
(4)
The Inspector or Commission may also, without
consent, request a public authority or other person or body (not being an
agency of a jurisdiction outside Australia) to disclose vetting information
about associates or relatives of the applicant.
(5)
The Inspector or Commission must notify an
applicant that the Inspector or Commission has the power under this section to
request a public authority or other person or body (not being an agency of a
jurisdiction outside Australia) to disclose vetting information about
associates or relatives of the applicant. The notice must be given when the
consent of the applicant is sought under subsection (3) or, if consent has not
been sought for the purposes of that subsection, before the first request for
information about associates or relatives of the applicant is made under this
section.
(6)
A public authority that holds, or is responsible
for the disclosure of, vetting information is authorised to disclose the
information to the Inspector or Commission for the purposes of this
section.
(7)
The Commissioner of Police is authorised at any
time to disclose (or arrange for a member of the NSW Police Force to disclose)
to the Inspector or Commission information about the criminal history of a
person for the purposes of this section, including the following:
(a)
information relating to spent convictions,
despite anything to the contrary in the Criminal Records
Act 1991,
(b)
information relating to criminal charges, whether
or not heard, proven, dismissed, withdrawn or discharged,
(c)
information relating to offences, despite
anything to the contrary in section 579 of the Crimes Act
1900.
(8)
For the purposes of the collection, disclosure or
use of vetting information under this section or section 78B, the information
may be collected, disclosed or used despite any other Act or
law.
Note—
Section 80 makes it an offence for an officer or
former officer of the Inspector or Commission to disclose information obtained
in the exercise of functions under this Act.
(9)
This section does not restrict or prevent:
(a)
the Inspector or Commission or any other person
from collecting, disclosing or using any information that the Inspector,
Commission or other person may otherwise lawfully collect, disclose or use,
or
(b)
the Inspector or Commission from considering
information other than vetting information in determining whether or not to
appoint an applicant as an officer of the Inspector or
Commission.
(10)
In this section and section 78B:
appoint includes engage, make use of
the services of and second.
law
enforcement agency means the following:
(a)
the NSW Police Force,
(b)
a Police Force of another State or
Territory,
(c)
the Australian Federal
Police,
(d)
any other authority or person responsible for the
enforcement of the laws of the Commonwealth or of the State or another State
or Territory.
public
authority has the same meaning as it has in the Independent Commission Against Corruption Act
1988.
s 78A: Ins 2013 No
35, Sch 2 [1].
78BSafeguards relating to use of
vetting information
(1)
The relevant body for a record must, for the
period of 2 years commencing on the commencement of this section (the review period), keep a record of
each occasion when vetting information about an associate or a relative of an
applicant is considered under section 78A.
(2)
The relevant body is to record whether vetting
information was the basis (wholly or partly) of a decision not to appoint the
applicant and the information relied on for that
purpose.
(3)
A person appointed by the Attorney General is to
review the records kept under this section at the end of the review
period.
(4)
The person appointed must be a person who
is:
(a)
a former Judge of the Supreme Court of the State
or of any other State or Territory, a former Judge of the Federal Court of
Australia or a former Justice of the High Court of Australia,
or
(b)
a person qualified to be appointed as (but who is
not) a Judge or Justice of any such court.
(5)
The relevant body may, at the request of the
person conducting the review, make available any records kept by the body
under this section and any further information requested by the person that is
reasonably related to the review.
(6)
The person conducting the review must, not later
than 6 months after the end of the review period, report on the records to the
Minister and the Attorney General and provide a copy of the report to the
relevant body.
(7)
A report may contain recommendations relating to
the collection, use and disclosure of vetting information under section 78A
and related procedures or practices of the relevant
body.
(8)
The relevant
body for a record relating to the use of information about
an associate or a relative of an applicant for appointment in a
position:
(a)
as an officer of the Inspector—is the
Inspector, or
(b)
as an officer of the Commission—is the
Commission.
s 78B: Ins 2013 No
35, Sch 2 [1].
79Public sittings and
bulletins
(1)
The Commission may hold sittings in public for
the purpose of informing the public of, or receiving submissions in relation
to, the general conduct of its operations and the administration of its
affairs.
(2)
At any such public sitting, the Commission may be
constituted by one or more executive officers who have special legal
qualifications.
(3)
The procedure for the calling and conduct of the
sittings is, subject to this Act, to be as determined by the
Commissioner.
(4)
The Commission may publish bulletins for the
purpose of informing the public of the general conduct of its
operations.
(5)
The Commission must not:
(a)
divulge in the course of a sitting held under
this section, or
(b)
include in a bulletin published under this
section,
any matter the disclosure of which to members of the
public could prejudice the safety or reputation of a person or prejudice the
fair trial of a person who has been or may be charged with an
offence.
80Secrecy
(1)
This section applies to a person:
(a)
who is or was an executive officer,
and
(b)
who is or was a member of the staff of the
Commission, and
(c)
who is or was an Inspector or a member of the
staff of the Inspector, and
(d)
who is or was an Australian legal practitioner
appointed to assist the Commission or who is or was a person who assists, or
performs services for or on behalf of, such an Australian legal practitioner
in the exercise of the Australian legal practitioner’s functions as
counsel to the Commission, and
(e)
who is or was a member of a task force assisting
the Commission in accordance with an arrangement under section 58,
and
(f)
to whom information is given by the Commission or
by a person referred to in paragraph (a), (b), (c), (d) or (e) after expressly
informing the person that the information is to be treated by the person as
confidential.
(1A)
This section applies to a person conducting a
review under section 78B in relation to the person’s functions under
that section.
(2)
A person to whom this section applies must not,
directly or indirectly, except for the purposes of this Act or otherwise in
connection with the exercise of the person’s functions under this
Act:
(a)
make a record of any information,
or
(b)
divulge or communicate to any person any
information,
being information acquired by the person because of, or
in the course of, the exercise of functions under this Act.
Maximum penalty: 50 penalty units or imprisonment
for 12 months, or both.
(3)
A person to whom this section applies cannot be
required:
(a)
to produce in any court any document or other
thing that has come into the person’s possession, custody or control
because of, or in the course of, the exercise of the person’s functions
under this Act, or
(b)
to divulge or communicate to any court any matter
or thing that has come to the person’s notice in the exercise of the
person’s functions under this Act.
(4)
Despite this section, a person to whom this
section applies may divulge any such information:
(a)
for the purposes of and in accordance with this
Act, or
(b)
for the purposes of a prosecution or disciplinary
proceedings instituted as a result of an investigation conducted by the
Commission in the exercise of its functions, or
(c)
in accordance with a direction of the
Commissioner, Inspector or Management Committee, if the Commissioner,
Inspector or Chairperson of the Management Committee certifies that it is
necessary for the information to be divulged in the public interest,
or
(d)
to any prescribed authority or
person.
(5)
An authority or person to whom information is
divulged under subsection (4), and any person or employee under the control of
that authority or person, is, in respect of that information, subject to the
same rights, privileges, obligations and liabilities under subsections (2) and
(3) as if he or she were a person to whom this section applies and had
acquired the information in the exercise of functions under this
Act.
(6)
In this section:
court includes any tribunal,
authority or person having power to require the production of documents or the
answering of questions.
produce includes permit access to or
inspection of.
s 80: Am 2013 No 35,
Sch 2 [2].
80ADisclosure of information and
giving of evidence by Commission to Ombudsman
(1)
The Commissioner, and any officer of the
Commission acting with the approval of the Commissioner, may:
(a)
furnish to the Ombudsman information obtained by
the Commissioner or officer in exercising functions in relation to the
Commission, or
(b)
give evidence before the Ombudsman and produce
any document to the Ombudsman in respect of any such
information.
(2)
The Commissioner, and any officer of the
Commission, can be compelled to give evidence before the Ombudsman or produce
a document before the Ombudsman in respect of information obtained by the
Commissioner or officer in exercising functions as referred to in subsection
(1) only if:
(a)
a matter has been referred by the Inspector of
the Crime Commission, or the Inspector of the Police Integrity Commission, to
the Ombudsman for investigation, and
(b)
the evidence or document is relevant to the
matter referred.
(3)
The Ombudsman may exercise the Ombudsman’s
powers under section 19 (2) of the Ombudsman Act
1974 for the purposes of subsection
(2).
(4)
This section applies despite section 80 and any
other law.
s 80A: Ins 2012 No
100, Sch 2 [2].
81Disclosures prejudicing
investigations
(1)
A person who is required:
(a)
by a production notice under section 28 or 29 to
furnish information or to attend and produce a document or other thing,
or
(b)
by a summons under section 24 to give evidence or
to produce a document or other thing,
must not disclose any information about the notice or
summons that is likely to prejudice the investigation to which it
relates.
Maximum penalty: 50 penalty units or imprisonment
for 12 months, or both.
(2)
Subsection (1) does not apply to a notice or
summons unless it (or a notice accompanying it) specifies that information
about the notice or summons must not be disclosed.
(3)
A person does not contravene this section
if:
(a)
the disclosure is made to an employee, agent or
other person in order to obtain information to comply with the notice or
summons and the employee, agent or other person is directed not to inform the
person to whom the information relates about the matter,
or
(b)
the disclosure is made to obtain legal advice or
representation in relation to the notice or summons, or
(c)
the disclosure is made for the purposes of, or in
the course of, legal proceedings.
(4)
A reference in this section to the disclosure of
any information about a notice or summons includes a reference to:
(a)
a disclosure about the existence or nature of the
notice or summons or of the investigation to which it relates,
and
(b)
a disclosure of any information to a person from
which the person could reasonably be expected to infer the existence or nature
of the notice or summons or of the investigation to which it
relates.
82Annual
report
(1)
The Commission must, within the period of 4
months after each 30 June, prepare a report of its operations during the year
that ended on that 30 June and furnish the report to the Management Committee
for transmission, together with such comments on the report as the Committee
thinks fit, to the Minister.
(2)
A report by the Commission under this section in
relation to a year must include the following:
(a)
a description of the matters that were referred
during that year to the Commission for investigation,
(b)
a description, which may include statistics, of
any patterns or trends, and the nature and scope, of organised and other crime
that has come to the attention of the Commission during that year in the
course of its investigations,
(c)
any recommendations for changes in the laws of
the State, or for administrative action, that, as a result of the exercise of
its functions, the Commission considers should be made,
(d)
the general nature and the extent of any
information furnished by the Commission during that year to an investigative
agency,
(e)
the extent to which its investigations have
resulted in the prosecution in that year of persons for
offences,
(f)
particulars of warrants issued by the
Commissioner under section 36, including whether a warrant was issued for a
failure to appear as a witness at a hearing before the Commission or because
the Commissioner was satisfied that a person intended not to appear at such a
hearing,
(g)
particulars of the number and results of:
(i)
applications made to the Supreme Court under
section 33 for review in respect of decisions of the Commission,
and
(ii)
other court proceedings involving the
Commission,
being applications and proceedings that were determined,
or otherwise disposed of, during that year.
(3)
A report by the Commission under this section
must not:
(a)
identify persons as being suspected of having
committed offences, or
(b)
identify persons as having committed offences
unless those persons have been convicted of those
offences.
(4)
In any report by the Commission under this
section the Commission must take reasonable care to ensure that the identity
of a person is not revealed if to reveal it might, having regard to any
material appearing in the report, prejudice the safety or reputation of a
person or prejudice the fair trial of a person who has been or may be charged
with an offence.
(5)
A report by the Commission under this section
that contains particulars of a warrant issued by the Commissioner under
section 36 must not reveal the identity of the person against whom the warrant
was issued.
(6)
For the purpose of enabling the final report of
the Commission to be prepared and dealt with in accordance with this section,
the Minister may give directions as to the manner and time of preparation, but
not the contents, of that report.
(7)
The Minister must cause a copy of:
(a)
a report of the Commission under this section
that is received by the Minister, and
(b)
any comments made on the report by the Management
Committee, being comments that accompanied the
report,
to be laid before each House of Parliament within 15
sitting days of that House after the report is received by the
Minister.
(8)
For the purposes of subsection (7), sitting days
are to be counted whether or not they occur in the same
session.
83Counsel assisting
Commission
The Commission may appoint an Australian legal
practitioner to assist the Commission as counsel, either generally or in
relation to a particular matter or matters.
84Service of
documents
(1)
A document that is authorised or required by this
Act or the regulations to be served on any person may be served by:
(a)
in the case of a natural person:
(i)
delivering it to the person personally,
or
(ii)
sending it by post to the address specified by
the person for the giving or service of documents or, if no such address is
specified, the residential or business address of the person last known to the
person giving or serving the document, or
(iii)
sending it by facsimile transmission to the
facsimile number of the person, or
(b)
in the case of a body corporate:
(i)
leaving it with a person apparently of or above
the age of 16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate or to an address
specified by the body corporate for the giving or service of documents,
or
(ii)
sending it by facsimile transmission to the
facsimile number of the body corporate.
(2)
Nothing in this section affects the operation of
any provision of a law or of the rules of a court authorising a document to be
served on a person in any other manner.
85Proceedings for
offences
(1)
Except where otherwise expressly provided by this
Act, proceedings for an offence against this Act are to be dealt with
summarily before the Local Court.
(2)
Despite any Act or law to the contrary
(including, in particular, Division 2 of Part 4 of the Crimes
(Sentencing Procedure) Act 1999), the court by which a
person is sentenced to imprisonment under this Act may direct the sentence to
be cumulative on any previous sentence which has been imposed on the person by
the court or to which the person is otherwise subject.
86Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
A regulation may create an offence punishable by
a penalty not exceeding 10 penalty units.
87
s 87: Rep 1987 No 15,
sec 30C.
88Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the commencement of this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.