South Australia: Independent Commission Against Corruption Act 2012 (SA)

South Australia Independent Commission Against Corruption Act 2012 An Act to establish the Independent Commission Against Corruption and the Office for Public Integrity; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Primary objects 4 Interpretation 5 Corruption, misconduct and maladministration 6 Parliamentary privilege unaffected Part 2—Independent Commission Against Corruption 7 Establishment and functions of Commission 8 Commissioner 9 Deputy Commissioner 10 Pension rights 11 Acting Commissioner 12 Employees 13 Use of services or staff of other government entities 14 Examiners and investigators 15 Cooperation with law enforcement agencies 16 Delegation Part 3—Office for Public Integrity Division 1—Establishment and functions 17 Establishment of Office and functions 18 Director of OPI Division 2—Complaints and reports 18A Complaints system 18B Reporting system 18C Obstruction of complaint or report 18D False or misleading statements in complaint or report etc Division 3—Assessment 18E Assessment of complaint or report Division 4—Referrals 18F Action that may be taken following assessment 18G Referral to inquiry agency Part 4—Procedures and powers of Commission Division 2—Investigations 24 Action that may be taken 25 Public statements 26 Standard operating procedures 27 Management of investigation 28 Production of statement of information 29 Examination and production of documents and other things 29A Power to authorise inspection of financial records etc 30 Power to require person to disclose identity 31 Enter and search powers under warrant 32 Seizure and retention order procedures 33 Obstruction 34 Limiting action by other agencies and authorities 35 Injunction to refrain from conduct pending investigation 36 Prosecutions and disciplinary action 36A Determination of Commission's jurisdiction 39 Request for Auditor‑General to examine accounts 39A Information to be provided Division 3—Evaluation of agency or authority practices 40 Evaluation of practices, policies and procedures Division 4—Recommendations and reports by Commission 41 Recommendations 42 Reports Division 5—Miscellaneous 43 Referral of matter etc does not limit performance of functions 44 Public authority to assist with compliance by public officers Part 5—Accountability 45 Annual reports by Office and Commission 46 Reviews 47 Crime and Public Integrity Policy Committee 48 OPI and Commission websites 49 Provision of information to Attorney‑General Part 6—Miscellaneous 50 No obligation on persons to maintain secrecy 51 Arrangements for provision of information by Commissioner of Police 52 Commission to be regarded as law enforcement body 53 Impersonation 54 Confidentiality 55 Proceedings to be heard in private 56A Use of evidence or information 57 Victimisation 58 Service 59 Evidence 59A Legal assistance 60 Regulations Schedule 1—Public officers, public authorities and responsible Ministers Schedule 2—Examination and production of documents and other things 1 Interpretation 2 Examinations 3 Conduct of examination 4 Power to summon witnesses and take evidence 5 Power to obtain documents 6 Disclosure of summons or notice may be prohibited 7 Offences of disclosure 8 Failure of witnesses to attend and answer questions 9 Warrant for arrest of witness 10 False or misleading evidence 11 Protection of witnesses from harm or intimidation 12 Contempt of Commission 13 Supreme Court to deal with contempt 14 Conduct of contempt proceedings 15 Person in contempt may be detained 16 Examiner may withdraw contempt application 17 Legal protection of examiners, counsel and witnesses 18 Order for delivery to examiner of passport of witness 19 Offence to hinder, obstruct or disrupt Schedule 3—Search warrants and privilege 1 Interpretation 2 Privilege claims in relation to search warrants 3 Application to Supreme Court to determine privilege 4 Determination of privilege claims Schedule 4—Inspector and reviews Part 1—Preliminary 1 Interpretation Part 2—Inspector and Deputy Inspector 2 Inspector 3 Deputy Inspector 3A Delegation 4 Use of services or staff of administrative units Part 3—Powers 5 Evidence 6 Issue of summons 7 Production of documents etc 8 Entry and search Part 4—Reviews 9 Reviews Schedule 5—Reimbursement of Legal Fees Policy 1 Interpretation 2 Who can claim for reimbursement 3 Additional criteria for reimbursement 4 Reasonable costs 5 Procedure for reimbursement 6 Interim payments Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Independent Commission Against Corruption Act 2012. 3—Primary objects (1) The primary objects of this Act are— (a) to establish the Independent Commission Against Corruption with functions designed to further— (i) the identification and investigation of corruption in public administration; and (ii) the prevention or minimisation of corruption in public administration, including through referral of potential issues, education and evaluation of practices, policies and procedures; and (b) to establish the Office for Public Integrity to manage complaints about public administration with a view to— (i) the identification of corruption, misconduct and maladministration in public administration; and (ii) ensuring that complaints about public administration are dealt with by the most appropriate person or body; and (c) to achieve an appropriate balance between the public interest in exposing corruption, misconduct and maladministration in public administration and the public interest in avoiding undue prejudice to a person's reputation (recognising that the balance may be weighted differently in relation to corruption in public administration as compared to misconduct or maladministration in public administration). (2) Whilst any potential issue of corruption, misconduct or maladministration in public administration may be the subject of a complaint or report under this Act and may be assessed and referred to a relevant body in accordance with this Act, it is intended— (a) that the Commission will exercise its functions only in relation to corruption in public administration; and (b) that matters raising potential issues of misconduct or maladministration in public administration will be referred to another inquiry agency or to a public authority. 4—Interpretation (1) In this Act, unless the contrary intention appears— Australian Parliament means— (a) the Parliament of this State or any other State of the Commonwealth; or (b) the Parliament of the Commonwealth; or (c) a Legislative Assembly of a Territory of the Commonwealth; Commission means the Independent Commission Against Corruption; Commissioner means the person holding or acting in the office of the Independent Commissioner Against Corruption; complaint about public administration includes— (a) a complaint alleging corruption, misconduct or maladministration in public administration; and (b) any complaint about a public authority or public officer; contract work means work performed by a person as a contractor or as an employee of a contractor or otherwise directly or indirectly on behalf of a contractor; contravention includes failure to comply; corruption in public administration—see section 5; Director of OPI means the person holding or acting in the office of the Director of OPI under Part 3; disciplinary action includes any process for termination of employment or dismissal from office; document includes a written record that reproduces in an understandable form information stored by computer, microfilm or other process; examiner—see section 14; inquiry agency means— (a) the Commission; (b) the Ombudsman; (c) the Judicial Conduct Commissioner; investigator—see section 14; judicial body means a court, tribunal, body or person invested by law with judicial or quasi‑judicial powers; Judicial Conduct Commissioner means the person for the time being holding or acting in the office of Judicial Conduct Commissioner under the Judicial Conduct Commissioner Act 2015; judicial officer means a person who alone or with others constitutes a judicial body; law enforcement agency means— (a) the Australian Crime Commission; or (b) the Australian Federal Police; or (c) the Australian Commission for Law Enforcement Integrity; or (d) South Australia Police; or (f) the police force of another State or a Territory of the Commonwealth; or (g) in relation to New South Wales—the Crime Commission, the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the Police Integrity Commission or the Inspector of the Police Integrity Commission; or (h) in relation to Queensland—the Crime and Corruption Commission; or (i) in relation to Tasmania—the Integrity Commission; or (j) in relation to Victoria—the Office of Police Integrity, the Independent Broad‑based Anti‑corruption Commission or the Independent Broad‑based Anti‑corruption Commission Committee; or (k) in relation to Western Australia—the Corruption and Crime Commission or the Parliamentary Inspector of the Corruption and Crime Commission; or (l) a Royal Commission of the Commonwealth, the State or another State or a Territory of the Commonwealth; or (m) a person or body declared by regulation to be a law enforcement agency; local government body means a council or a subsidiary of a council established under the Local Government Act 1999; maladministration in public administration—see section 5; Minister responsible for a public authority—see Schedule 1; Minister responsible for an inquiry agency means the Minister responsible for administration of the Act under which the agency is constituted or, if some other Minister is declared by regulation to be responsible for the agency, that Minister; misconduct in public administration—see section 5; Office means the Office for Public Integrity; personal details of a person means— (a) the person's full name; and (b) the person's date of birth; and (c) the address of where the person is living; and (d) the address of where the person usually lives; and (e) the person's business address; prescribed offence means corruption in public administration or an offence against this Act; public administration—without limiting the acts that may comprise public administration, an administrative act within the meaning of the Ombudsman Act 1972 will be taken to be carried out in the course of public administration; public authority—see Schedule 1; public officer—see Schedule 1; public sector agency has the same meaning as in the Public Sector Act 2009; public sector employee has the same meaning as in the Public Sector Act 2009; publish means publish by— (a) newspaper, radio or television; or (b) internet or other electronic means of creating and sharing content with the public or participating in social networking with the public; or (c) any similar means of communication to the public; seconded—a police officer or special constable is seconded to assist the Commissioner for the purposes of this Act if the police officer or special constable is employed in accordance with an arrangement whereby the police officer or special constable is granted leave without pay in relation to his or her appointment under the Police Act 1998 for the purpose of being engaged as an employee under section 12 of this Act; statement of information—see section 28; vehicle means a vehicle, vessel or aircraft and includes a caravan, trailer and anything attached to a vehicle. 5—Corruption, misconduct and maladministration (1) Corruption in public administration means conduct that constitutes— (a) an offence against Part 7 Division 4 (Offences relating to public officers) of the Criminal Law Consolidation Act 1935, which includes the following offences: (i) bribery or corruption of public officers; (ii) threats or reprisals against public officers; (iii) abuse of public office; (iv) demanding or requiring benefit on basis of public office; (v) offences relating to appointment to public office; or (b) an offence against the Public Sector (Honesty and Accountability) Act 1995 or the Public Corporations Act 1993, or an attempt to commit such an offence; or (ba) an offence against the Lobbyists Act 2015, or an attempt to commit such an offence; or (d) any of the following in relation to an offence referred to in a preceding paragraph: (i) aiding, abetting, counselling or procuring the commission of the offence; (ii) inducing, whether by threats or promises or otherwise, the commission of the offence; (iii) being in any way, directly or indirectly, knowingly concerned in, or party to, the commission of the offence; (iv) conspiring with others to effect the commission of the offence. (3) In this Act— maladministration in public administration has the same meaning as in the Ombudsman Act 1972; and misconduct in public administration has the same meaning as in the Ombudsman Act 1972. 6—Parliamentary privilege unaffected Nothing in this Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees or members and powers under this Act may not be exercised in relation to any matter to which parliamentary privilege applies. Note— Examples of material that falls within this section include statements made or documents or material tabled or received in the course of the proceedings of the Parliament or a committee of the Parliament. Part 2—Independent Commission Against Corruption 7—Establishment and functions of Commission (1) There is to be an Independent Commission Against Corruption with the following functions: (a) to identify corruption in public administration and to— (i) investigate and refer it to a law enforcement agency for any further investigation and prosecution; or (ii) refer it to a law enforcement agency for investigation and prosecution; (b) to evaluate the practices, policies and procedures of inquiry agencies and public authorities with a view to advancing comprehensive and effective systems for preventing or minimising corruption in public administration; (c) to conduct or facilitate the conduct of educational programs designed to prevent or minimise corruption in public administration; (d) if, in the course of performing functions in relation to potential corruption in public administration, any suspected misconduct or maladministration or any offences (not being offences that constitute the potential corruption in public administration) are identified—to report the matter to the Office or the Ombudsman for assessment or refer the matter to a law enforcement agency, the Ombudsman or a public authority or public officer, as the Commission considers appropriate. (2) The Commission is not subject to the direction of any person in relation to any matter, including— (a) the manner in which functions are carried out or powers exercised under this or any other Act; and (b) the priority that the Commission gives to a particular matter in carrying out functions under this or any other Act. (4) The Commission is to perform its functions in a manner that— (a) is as open and accountable as is practicable, while recognising, in particular, that examinations relating to corruption in public administration must be conducted in private; and (b) deals as expeditiously as is practicable with allegations of corruption in public administration; and (c) as far as is practicable, deals with any allegation against a Member of Parliament or member of a council established under the Local Government Act 1999 before the expiry of his or her current term of office. (5) For the purposes of exercising its functions under subsection (1)(b) or (c), the Commission— (a) may conduct a public inquiry; and (b) may regulate the conduct of the inquiry as the Commission thinks fit, (and, for the avoidance of doubt, the inquiry will not be a proceeding for the purposes of section 55). (6) The Commission— (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) is capable of suing and being sued in its corporate name. 8—Commissioner (1) The Commissioner will be the principal officer of the Commission and is to be appointed by the Governor for a term not exceeding 7 years and on conditions determined by the Governor. (2) A person appointed to be the Commissioner is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as Deputy Commissioner or Acting Commissioner) that exceed 10 years in total. (3) A person is only eligible for appointment as the Commissioner if the person— (a) is a legal practitioner of at least 7 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State) or a former judge of the High Court of Australia, the Federal Court of Australia or the Supreme Court or any other court of a State or Territory of the Commonwealth; and (b) is not a judicial officer or member of an Australian Parliament. (4) Before a person is appointed to be the Commissioner, the Attorney‑General must ensure that the position is advertised in a newspaper or newspapers circulating in each State and Territory. (5) A person may only be appointed to be the Commissioner if, following referral by the Attorney‑General of the proposed appointment to the Statutory Officers Committee established under the Parliamentary Committees Act 1991— (a) the appointment has been approved by the Committee; or (b) the Committee has not, within 7 days of the referral, or such longer period as is allowed by the Attorney‑General, notified the Attorney‑General in writing that it does not approve the appointment. (6) Despite the Parliamentary Committees Act 1991, the Statutory Officers Committee must not report on, or publish material in relation to, matters referred to the Committee under subsection (5) except to the extent allowed by the Attorney‑General (but this subsection does not derogate from section 15I(2) of the Parliamentary Committees Act 1991). (7) If a person is a judicial officer immediately before being appointed to be the Commissioner— (a) the conditions of the appointment should not be less favourable to the person than the conditions of his or her judicial office (when viewed from an overall perspective); and (b) for the purposes of determining the person's entitlement to recreation leave, sick leave, long service leave or any other kind of leave under this or another Act, the appointment may, at the option of the person, be taken to be a continuation of his or her service as a judicial officer. (8) The Commissioner must not, without the consent of the Attorney‑General, engage in any remunerated employment or undertaking outside official duties. (9) The Governor may, on the address of both Houses of Parliament, remove the Commissioner from office. (10) The Governor may suspend the Commissioner from office for— (a) contravention of a condition of appointment; or (b) misconduct; or (c) failure or incapacity to carry out official duties satisfactorily; or (d) failure to provide information to the Attorney‑General as required under section 49. (11) If the Governor suspends the Commissioner from office, a full statement of the reason for the suspension must be laid before both Houses of Parliament within 7 days after the suspension if Parliament is then in session or, if not, within 7 days after the commencement of the next session of Parliament. (12) If, at the end of 20 sitting days after the statement is laid before Parliament, neither House of Parliament has presented an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is removed from office. (13) If within 20 sitting days after the statement is laid before Parliament either House of Parliament presents an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is restored to office. (14) The office of Commissioner becomes vacant if the holder— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Governor; or (d) is appointed to judicial office; or (e) is nominated for election as a member of an Australian Parliament; or (f) becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; or (g) is convicted of— (i) an indictable offence against the law of this State; or (ii) an offence against the law of this State that is punishable by imprisonment for a term of at least 12 months; or (iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or (h) is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or (i) is removed from office by the Governor under this section. (15) Except as is provided by this section, the Commissioner may not be removed or suspended from office, nor will the office of the Commissioner become vacant. (16) The Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 9—Deputy Commissioner (1) There is to be a Deputy Commissioner responsible for assisting the Commissioner as directed by the Commissioner. (2) The Deputy Commissioner is to be appointed by the Governor for a term not exceeding 7 years and on conditions determined by the Governor. (3) A person appointed to be the Deputy Commissioner is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as Commissioner or Acting Commissioner) that exceed 10 years in total. (4) A person is only eligible for appointment as the Deputy Commissioner if the person— (a) is a legal practitioner of at least 7 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State) or a former judge of the High Court of Australia, the Federal Court of Australia or the Supreme Court or any other court of a State or Territory of the Commonwealth; and (b) is not a judicial officer or member of an Australian Parliament. (5) The Deputy Commissioner must not, without the consent of the Attorney‑General, engage in any remunerated employment or undertaking outside official duties. (6) The Deputy Commissioner may— (a) act as the Commissioner during any period for which— (i) no person is for the time being appointed as the Commissioner; or (ii) the Commissioner is absent from, or unable to discharge, official duties; and (b) when not so acting, perform functions or exercise powers at the direction of the Commissioner. (7) The Governor may remove the Deputy Commissioner from office for— (a) contravention of a condition of appointment; or (b) misconduct; or (c) failure or incapacity to carry out official duties satisfactorily. (8) The office of Deputy Commissioner becomes vacant if the holder— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Governor; or (d) is appointed to judicial office; or (e) is nominated for election as a member of an Australian Parliament; or (f) becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; or (g) is convicted of— (i) an indictable offence against the law of this State; or (ii) an offence against the law of this State that is punishable by imprisonment for a term of at least 12 months; or (iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or (h) is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or (i) is removed from office by the Governor under subsection (7). (9) Except as is provided by this section, the Deputy Commissioner may not be removed from office, nor will the office of the Deputy Commissioner become vacant. (10) The Deputy Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 10—Pension rights (1) The Governor may, by instrument in writing made at the time a person is appointed to be the Commissioner or Deputy Commissioner, apply the Judges' Pensions Act 1971 to or in relation to the Commissioner or Deputy Commissioner as if the Commissioner or Deputy Commissioner were a Judge as defined in that Act and service as the Commissioner or Deputy Commissioner were judicial service as defined in that Act. (2) The instrument may— (a) impose conditions on the application of the Judges' Pensions Act 1971 (including a condition that the Act will only apply if the person is made a Judge following his or her term of office as Commissioner or Deputy Commissioner); and (b) apply the Judges' Pensions Act 1971 subject to any modifications specified in the instrument. (3) Unless the Governor otherwise directs, no pension is to be payable under the Judges' Pensions Act 1971 if the Commissioner or Deputy Commissioner vacates the office due to insolvency or conviction or sentencing for an offence or is removed from office. (4) If a person who is or has been the Commissioner or Deputy Commissioner is appointed as a Judge as defined in the Judges' Pensions Act 1971 and was, immediately before being so appointed, in receipt of a pension under that Act, that pension ceases on the appointment. 11—Acting Commissioner (1) The Governor may appoint a person (who may be a Public Service employee) to act as the Commissioner during any period for which— (a) no person is for the time being appointed as the Commissioner or the Commissioner is absent from, or unable to discharge, official duties; and (b) no person is for the time being appointed as the Deputy or the Deputy is absent from, or unable to discharge, official duties. (2) The terms and conditions of appointment are to be determined by the Governor, except that the person may not act as the Commissioner for more than 6 months in aggregate in any period of 12 months. (3) A person appointed to act as the Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 12—Employees (1) The Commission may engage employees on terms and conditions determined by the Commissioner. (2) The employees are not Public Service employees but are to be taken to be public sector employees, employed by the Commission, for the purposes of the Public Sector (Honesty and Accountability) Act 1995 and section 74 of the Public Sector Act 2009. 13—Use of services or staff of other government entities (1) The Commission may, under an arrangement established by the Minister administering an administrative unit of the Public Service, make use of the services or staff of that administrative unit. (2) The Commission may, under an arrangement established by the Commissioner of Police, make use of members of South Australia Police, special constables or the services of South Australia Police. (3) The Commission may, under an arrangement established by the Director of Public Prosecutions, make use of the services or staff of the Office of the Director of Public Prosecutions. 14—Examiners and investigators (1) The Commissioner may appoint suitable persons to be examiners or investigators for the purposes of this Act. (2) An appointment may be made subject to conditions specified in the instrument of appointment. (3) The Commissioner may, at any time, revoke an appointment of a person or vary or revoke a condition of appointment or impose a further condition of appointment. (4) A police officer or special constable seconded to assist the Commission is an investigator. (4a) Unless otherwise agreed, by instrument in writing, between the Commissioner and the Commissioner of Police, a police officer or special constable seconded to assist the Commission may continue to exercise all powers and authorities vested in the person by or under the Police Act 1998, or another Act or law, as a member of South Australia Police or constable in the exercise of functions and powers under this Act during the period of secondment (and section 67(3) of the Police Act 1998 does not apply in relation to the secondment). (5) An investigator who is not a police officer or special constable must be issued with an identity card— (a) containing the person's name and a photograph of the person; and (b) stating that the person is an investigator under this Act. (6) If the powers of an investigator have been limited by conditions, the identity card issued to the investigator must indicate those limitations. (7) An investigator must, at the request of a person in relation to whom the investigator intends to exercise powers under this Act, produce for the inspection of the person— (a) in the case of an investigator who is a police officer or special constable and is not in uniform—an official card, document or badge identifying the person as a police officer or special constable; or (b) in the case of an investigator appointed under this Act—his or her identity card. 15—Cooperation with law enforcement agencies The Commission is to cooperate with other law enforcement agencies insofar as that is consistent with the proper conduct of its functions. 16—Delegation (1) Subject to subsection (1a), the Commissioner may delegate to a person (including a person for the time being performing particular duties or holding or acting in a specified position) a function or power under this or any other Act. (1a) The Commissioner— (a) may only delegate a function or power under section 31 to an examiner; and (b) may not delegate a prescribed function or power. (2) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. (3) A delegation— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the delegator to act in a matter; and (d) is revocable at will. Part 3—Office for Public Integrity Division 1—Establishment and functions 17—Establishment of Office and functions (1) The Office for Public Integrity continues in existence with the following functions: (a) to receive and assess complaints about public administration from members of the public; (b) to receive and assess reports about corruption, misconduct and maladministration in public administration from inquiry agencies, public authorities and public officers; (c) to refer complaints and reports to inquiry agencies, public authorities and public officers or to determine to take no action in accordance with this section. (2) The Office is to be comprised of— (a) the Director of OPI; and (b) Public Service employees assigned to the Office. (3) While a Public Service employee is assigned to the Office, directions given to the employee by the Director of OPI prevail over directions given to the employee by the chief executive of the administrative unit of the Public Service in which the employee is employed to the extent of any inconsistency. 18—Director of OPI (1) There is to be a Director of OPI appointed by the Governor for a term not exceeding 7 years and on conditions determined by the Governor. (2) A person appointed to be the Director of OPI is, at the end of a term of appointment, eligible for reappointment. (3) A person is only eligible for appointment as the Director of OPI if the person— (a) is a legal practitioner of at least 7 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State) or a former judge of the High Court of Australia, the Federal Court of Australia or the Supreme Court or any other court of a State or Territory of the Commonwealth; and (b) is not a judicial officer or member of an Australian Parliament. (4) The Director of OPI must not, without the consent of the Attorney‑General, engage in any remunerated employment or undertaking outside official duties. (5) The Governor may remove the Director of OPI from office for— (a) contravention of a condition of appointment; or (b) misconduct; or (c) failure or incapacity to carry out official duties satisfactorily. (6) The office of Director of OPI becomes vacant if the holder— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Governor; or (d) is appointed to judicial office; or (e) is nominated for election as a member of an Australian Parliament; or (f) becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; or (g) is convicted of— (i) an indictable offence against the law of this State; or (ii) an offence against the law of this State that is punishable by imprisonment for a term of at least 12 months; or (iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding subparagraph; or (h) is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or (i) is removed from office by the Governor under subsection (5). (7) Except as is provided by this section, the Director of OPI may not be removed from office, nor will the office of the Director of OPI become vacant. (8) The Director of OPI is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. Division 2—Complaints and reports 18A—Complaints system (1) A system for the receipt of complaints about public administration is to be established for the Office by the Director of OPI. (2) The system must permit the making of complaints relating to matters that are (in the opinion of the Director of OPI) sensitive, complex or of significant public interest to be made in person to a member of the Office. (3) The system must ensure that the Office gives consideration to the motives of a complainant and that complaints that are apparently made in bad faith, for an improper purpose, are vexatious or that otherwise amount to an abuse of the complaints system are not received for consideration by the Office. 18B—Reporting system (1) The Director of OPI must prepare directions and guidelines governing reporting to the Office of matters that an inquiry agency, public authority or public officer reasonably suspects involves corruption in public administration. (2) The directions and guidelines— (a) must include provisions specifying the matters required to be reported and guidance as to how they should be reported; and (b) may require matters to be reported even if the matter has been referred to the inquiry agency, public authority or public officer under another Act; and (c) must be made available free of charge on the Internet, and at premises established for the receipt of complaints or reports by the Office, for inspection by members of the public. (3) The directions and guidelines must not require— (a) a public officer to report to the Office any information that is subject to legal professional privilege or parliamentary privilege; or (b) a judicial officer to report to the Office any information that has been received by the judicial officer in the exercise of their judicial functions; or (c) a member of Parliament to report to the Office any information that has been received by the member in the exercise of their functions as a member of Parliament. (4) An inquiry agency, public authority or public officer— (a) must make reports to the Office in accordance with the directions; and (b) may report to the Office any matter that the agency, authority or officer reasonably suspects involves corruption in public administration. (5) The Attorney‑General may, in any event, report such matters to the Office for consideration as the Attorney‑General considers appropriate. 18C—Obstruction of complaint or report A person must not— (a) prevent another person from making a complaint or report under this Act about a matter that may involve corruption in public administration; or (b) hinder or obstruct another person in making such a complaint or report. Maximum penalty: $10 000 or imprisonment for 2 years. 18D—False or misleading statements in complaint or report etc A person must not— (a) make a statement knowing that it is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular) in information provided in a complaint or report; or (b) make a complaint or report knowing that there are no grounds for the making of the complaint or report. Maximum penalty: $10 000 or imprisonment for 2 years. Division 3—Assessment 18E—Assessment of complaint or report (1) On receipt by the Office of a complaint or report, the matter must be assessed as to whether— (a) it raises a potential issue of corruption in public administration that could be the subject of a prosecution and should be referred to the Commission; or (b) it raises some other issue that should be referred to another inquiry agency; or (c) it is trivial, vexatious or frivolous, it has previously been dealt with by an inquiry agency or a public authority and there is no reason to reexamine it or there is other good reason why no action should be taken in respect of it, and a determination made as to whether or not action should be taken to refer the matter to a law enforcement agency or an inquiry agency. (2) An inquiry agency may also require the Office to assess, according to the criteria set out in subsection (1), any other matter identified by them in the course of performing functions under any Act. (3) The Office may, for the purpose of assessing a matter, by written notice, require a public authority or public officer— (a) to produce a specified document or a document relating to a specified matter; or (b) to produce a written statement of information about a specified matter or to answer specified questions, within a specified period and in a specified form, verified if the written notice so requires by statutory declaration. (4) A person must not refuse or fail to comply with a requirement of a notice under subsection (3). Maximum penalty: $10 000 or imprisonment for 2 years. Division 4—Referrals 18F—Action that may be taken following assessment (1) Following an assessment the Office may take action in relation to a matter as follows: (a) if the matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution, the matter must be referred to the Commission; (b) if the matter is assessed as raising other issues that should be dealt with by an inquiry agency, the matter must be referred, or the complainant or reporting agency advised to refer the matter, to the agency. (2) The same matter, or different aspects of the same matter, may be dealt with contemporaneously under more than 1 paragraph of subsection (1). (3) The making of an assessment, and whether action is taken, and what action is taken, by the Office in respect of the assessment is at the absolute discretion of the Director of OPI. (4) A matter may be dealt with under this section even if it is a matter referred to an inquiry agency or a public authority under another Act. (5) Subject to subsection (6) and any directions by the Director of OPI, reasonable steps must be taken to ensure that a complainant or reporting agency receives an acknowledgment of the complaint or report and is informed as to the action, if any, taken in respect of the matter. (6) If the Office has determined that no action should be taken in relation to a complaint in accordance with section 18E(1)(c), the Office must notify the complainant of that determination as soon as practicable after the determination is made. 18G—Referral to inquiry agency The Office must, before referring a matter to an inquiry agency, take reasonable steps to obtain the views of the agency as to the referral. Part 4—Procedures and powers of Commission Division 2—Investigations 24—Action that may be taken (1) If a matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution and is referred to the Commission, the matter must be— (a) investigated by the Commission; or (b) referred to South Australia Police or other law enforcement agency. (2) Whether action is taken, and what action is taken, in respect of a matter that has been referred to the Commission is at the absolute discretion of the Commissioner. (3) Subject to any directions of the Commissioner, reasonable steps must be taken to ensure that a complainant or reporting agency is informed as to the action, if any, taken by the Commission in respect of the matter. 25—Public statements (1) The Office must not make any public statement that discloses, or contains information from which a person could infer, that a particular matter is, is proposed to be or was the subject of a complaint or report under this Act. (2) The Commission must not make any public statement that discloses, or contains information from which a person could infer, that a particular matter is being or is proposed to be investigated under this Act. (3) After an investigation of a particular matter under this Act has concluded— (a) if the matter has been referred to any law enforcement agency, inquiry agency or public authority—the Commission must not make any public statement that discloses, or contains information from which a person could infer, that the matter has been the subject of an investigation under this Act (except in a report that complies with section 42); or (b) in any other case—if the Commissioner is satisfied that no criminal proceedings, proceedings for the imposition of a penalty or disciplinary action will be commenced as a result of the investigation, the Commission may make a public statement in relation to the matter. (4) The Commission must, before making any public statement under subsection (3)(b), have regard to the following: (a) the benefits that might be derived from making the statement; (b) whether the statement is necessary in order to allay public concern or to prevent or minimise the risk of prejudice to the reputation of a person; (c) the risk of prejudicing the reputation of a person by making the statement; (d) if an allegation against a person has been made public and, in the opinion of the Commissioner following an investigation, the person is not implicated in corruption in public administration—whether the statement would redress prejudice caused to the reputation of the person as a result of the allegation having been made public; (e) whether any person has requested that the Commission make the statement. (5) For the avoidance of doubt— (a) nothing in this section affects the provision of information to the Crime and Public Integrity Policy Committee of the Parliament; (b) a public statement must not include any findings or suggestions of criminal or civil liability and must not include any findings that, if proved to the requisite standard by a court, would constitute a criminal offence or a civil wrong. 26—Standard operating procedures (1) The Commission must prepare standard operating procedures governing the exercise of powers by investigators for the purposes of an investigation into corruption in public administration. (2) The standard operating procedures must— (a) include provisions designed to ensure that persons in relation to whom powers are to be exercised under this Act are provided with appropriate information about their rights, obligations and liabilities under this Act; and (b) be made available free of charge on the Internet, and at premises established for the receipt of complaints or reports by the Office, for inspection by members of the public. (3) Contravention of the operating procedures constitutes a ground for suspending, dismissing or taking other disciplinary action against the investigator (but the validity of the exercise of a power cannot be questioned on the ground of contravention of the operating procedures). 27—Management of investigation (1) If the Commission decides to investigate a potential issue of corruption in public administration, the Commissioner must oversee the investigation. (2) The Commissioner— (a) may determine to head the investigation himself or herself or appoint the Deputy Commissioner or an examiner to head the investigation and report to the Commissioner; and (b) may appoint 1 or more legal practitioners to assist as counsel in relation to the investigation. 28—Production of statement of information For the purposes of an investigation into corruption in public administration, the person heading the investigation may, by written notice, require an inquiry agency, public authority or public officer to produce a written statement of information about a specified matter, or to answer specified questions, within a specified period and in a specified form, verified if the person so requires by statutory declaration. 29—Examination and production of documents and other things (1) An examination may be conducted for the purposes of an investigation into corruption in public administration as set out in Schedule 2. (2) A person may be required to produce a document or thing for the purposes of an investigation into corruption in public administration as set out in Schedule 2. 29A—Power to authorise inspection of financial records etc (1) For the purposes of an investigation into corruption in public administration, the Commissioner may, by written notice, authorise an investigator to inspect and take copies of financial records. (2) A copy of an authorisation under this section must be served on the relevant deposit holder not less than 3 clear days before the inspection is to occur, unless the Commissioner otherwise directs. (3) An investigator may, for the purpose of inspecting and taking copies of financial records in accordance with an authorisation under this section, give directions to, or impose requirements on, the deposit holder or an officer or employee of the deposit holder. (4) In this section— deposit holder means— (a) an ADI; or (b) a friendly society; or (c) a person or an organisation that holds money in accounts on behalf of other persons; or (d) a person who carries on business as a pawnbroker; or (e) an institution of a kind declared by regulation to be a deposit holder; financial records means any of the following in the possession or control of a deposit holder: (a) books of account, accounts, and accounting records (including working papers and other documents necessary to explain the methods and calculations by which accounts are made up); (b) books, diaries, or other records used in the course of carrying on the business of a deposit holder; (c) cheques, bills of exchange, promissory notes, deposit slips, orders for the payment of money, invoices, receipts and vouchers; (d) securities, and documents of title to securities, and includes such records kept in electronic form. 30—Power to require person to disclose identity For the purposes of an investigation into corruption in public administration, an investigator may require a person who the investigator reasonably suspects has committed, is committing, or is about to commit, a prescribed offence, or may be able to assist an investigation of a prescribed offence, to state all or any of the person's personal details and to produce evidence of those details. 31—Enter and search powers under warrant (1) The Commissioner may, on application by an investigator or on his or her own initiative, issue a warrant authorising an investigator or a police officer to enter and search— (a) a place occupied or used by an inquiry agency, public authority or public officer; or (b) a vehicle owned or used by an inquiry agency, public authority or public officer. (2) A judge of the Supreme Court may, on application by an investigator, issue a warrant authorising an investigator or a police officer to enter and search any place or vehicle. (3) A warrant may only be issued if the Commissioner or the judge is satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration. (4) An application for a warrant may be made personally or, if, in the opinion of the applicant, the warrant is urgently required and there is not enough time to lodge a written application and attend in person, by fax, email or telephone in accordance with practices and procedures prescribed, in the case of an application to the Commissioner, by the regulations and, in the case of an application to a judge of the Supreme Court, by rules of the court. (5) The grounds of an application for a warrant must be verified— (a) if the application is made to the Commissioner—by statutory declaration; or (b) if the application is made to a judge of the Supreme Court—by affidavit. (6) A warrant must— (a) specify the place or vehicle to which the warrant relates; and (b) state whether entry is authorised at any time of the day or night or during specified hours of the day or night. (7) A warrant authorises an investigator or a police officer— (a) to enter and search and, if necessary, use reasonable force to break into or open— (i) the place or vehicle to which the warrant relates; or (ii) part of, or anything in or on, a place or vehicle to which the warrant relates; and (b) to give directions with respect to the stopping or movement of a vehicle to which the warrant relates; and (c) in the course of executing the warrant— (i) to take photographs, films or audio, video or other recordings; and (ii) to examine, copy or take extracts from a document connected with the investigation or any other investigation into corruption in public administration; and (iii) to examine or test any thing connected with the investigation or any other investigation into corruption in public administration, or cause or require it to be examined or tested; and (iv) if the investigator or police officer reasonably suspects that a person who is or has been on or in the place or vehicle has on or about his or her body evidence of a prescribed offence, to search the person; and (v) to seize and retain anything that the investigator or police officer reasonably suspects has been used in, or may constitute evidence of, a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator; and (vi) to seize and retain anything that the investigator or police officer reasonably suspects has been used in, or may constitute evidence of, an offence other than a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator, if the investigator or police officer reasonably believes that it is necessary to do so in order to prevent its concealment, loss, mutilation or destruction or its use in committing such an offence. (8) In executing a warrant, the investigator or police officer may be assisted by such persons as the investigator or police officer considers necessary in the circumstances. (9) An investigator or police officer may require an occupier of a place or a person apparently in charge of a document or thing to give to an investigator or police officer, or a person assisting an investigator or police officer, such assistance as is reasonably required by the investigator or police officer for the effective execution of a warrant. (10) In searching a person under this section, the investigator or police officer— (a) may run his or her hands over the person's outer clothing; and (b) may require the person to remove a coat, jacket, hat or shoes the person is wearing, and may run his or her hands over the person's remaining outer clothing; and (c) if the investigator or police officer sees or detects any thing that he or she reasonably suspects is, or contains, evidence of a prescribed offence, may require the person to surrender that item for inspection; and (d) may use reasonable force to remove an item from a person if the person does not comply with a requirement to remove or surrender the item under paragraph (b) or (c); and (e) may inspect an item that a person has removed or surrendered, or that has been removed from a person; and (f) must conduct the search in a manner that affords, to the extent that the circumstances of the search permit, reasonable privacy to the person being searched; and (g) must conduct the search as quickly as is reasonably practicable in the circumstances of the search. (11) A search must be conducted by a person of the same sex as the person being searched unless it is not reasonable or practicable to do so in the circumstances of the search. (12) A warrant, if not executed at the expiration of 1 month from the date of its issue, then expires. (13) The Supreme Court may make rules of court providing for the Chief Justice to determine the judge to whom an application is to be made or otherwise regulating practice and procedure for the purposes of this section. (14) The provisions set out in Schedule 3 apply in relation to a warrant under this section. 32—Seizure and retention order procedures (1) A retention order under section 31— (a) must be in the form of a written notice given to the owner or person apparently in control of the thing to which the order relates; and (b) may be varied or discharged by further such written notice. (2) If a retention order is issued, a person who, knowing of the order, removes or interferes with the thing to which the order relates without the approval of the Commissioner or an investigator before the thing is dealt with under this section or the retention order discharged is guilty of an offence. Maximum penalty: $5 000. (3) Subject to this section, if any thing has been made the subject of a retention order under section 31, the following provisions apply: (a) if proceedings are not instituted for an offence relating to the thing within the designated period after the issuing of the retention order, the retention order is taken to have been discharged on the expiration of the designated period; (b) if proceedings for an offence relating to the thing are instituted within the designated period after the issuing of the retention order, the court dealing with the proceedings may order that it be forfeited to the Crown (but if no such order is made, the retention order is taken to have been discharged); (c) if the Commissioner or an investigator subsequently determines that the thing should be seized, an investigator may, without warrant, enter and search and, if necessary, use reasonable force to break into or open— (i) the place at which, or vehicle in which, the thing is reasonably suspected to be located; or (ii) part of, or anything in or on, a place at which, or vehicle in which, the thing is reasonably suspected to be located, and may seize and retain the thing (and section 31(8) and (9) apply to the exercise of such powers as if the powers were being exercised pursuant to a warrant under that section). (3a) If any thing has been seized under section 31 or under subsection (3)(c), the following provisions apply: (a) the thing must be held pending proceedings for an offence relating to the thing seized, unless the Commissioner, on application, authorises its release to the person from whom it was seized, or to a person who had legal title to it at the time of its seizure, subject to such conditions as the Commissioner thinks fit; (b) if proceedings for an offence relating to the thing are instituted, the court dealing with the proceedings may order— (i) that it be forfeited to the Crown; or (ii) that a person to whom it was released under paragraph (a) or the defendant pay to the Attorney‑General an amount equal to its market value at the time of its seizure as the court thinks fit; or (iii) that it be released to any person. (4) In this section— designated period means 2 years or such longer period as a judge of the Supreme Court may, on application by the Commissioner, allow. 33—Obstruction (1) A person must not— (a) refuse or fail to provide a statement of information as required by the person heading an investigation; or (b) include information in a statement of information knowing that it is false or misleading in a material particular; or (c) without lawful excuse, refuse or fail to comply with a requirement or direction of an investigator under this Act; or (d) alter, destroy, conceal or fabricate a document or other thing knowing that it is or is likely to be required by an investigator performing functions under this Act; or (e) otherwise hinder or obstruct an investigator, or a person assisting an investigator, in the performance of his or her functions. Maximum penalty: $10 000 or imprisonment for 2 years. (2) An investigator may arrest a person without warrant if the investigator reasonably suspects that the person has committed, is committing, or is about to commit, an offence against subsection (1) and— (a) when required to do so by an investigator the person failed to state truthfully his or her personal details or to produce true evidence of those details; or (b) the investigator has reasonable grounds for believing that the person would, if not arrested— (i) fail to attend court in answer to a summons issued in respect of the offence; or (ii) continue the offence or repeat the offence; or (iii) alter, destroy, conceal or fabricate evidence relating to the offence; or (iv) intimidate, harass, threaten or interfere with a person who may provide or produce evidence of the offence. (3) On arresting a person under this section, the investigator must immediately deliver the person, or cause the person to be delivered, into the custody of a police officer (and the person will, for the purposes of any other law, then be taken to have been apprehended by the police officer without warrant). 34—Limiting action by other agencies and authorities (1) The Commission may, by written notice, require a South Australian law enforcement agency, inquiry agency or public authority to refrain from taking action, in respect of a particular matter being investigated by the Commission under this Act or to conduct a joint investigation with the Commission in respect of a particular matter (and the agency or authority must comply with the requirement even if the agency or authority is otherwise required or authorised to take action under another Act). (2) The notice must specify the period for which it is to apply and set out details of the action that is not to be taken or the requirements governing any joint investigation. (3) The Commission must consider any comments of the agency or authority with respect to the terms of the notice. 35—Injunction to refrain from conduct pending investigation (1) The Supreme Court may, on application made by the Commission (in a case where section 34 does not apply or the Commission does not consider it appropriate to issue a notice under that section), grant an injunction restraining a person from engaging in conduct that is the subject of, or affects the subject matter of, an investigation or proposed investigation by the Commission. (2) The Supreme Court must not grant an injunction under this section unless it is satisfied— (a) that the conduct sought to be restrained is likely to impede the investigation or proposed investigation; or (b) that it is necessary in the public interest to do so. 36—Prosecutions and disciplinary action (1) On completing an investigation or at any time during an investigation, the Commission may do either or both of the following: (a) refer a matter to the relevant law enforcement agency for further investigation and potential prosecution; (b) refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible. (1a) For the avoidance of doubt, the Commission must not refer a matter directly to a prosecution authority but may only refer it to a law enforcement agency who will be responsible for any further investigation and prosecution of the matter. (2) The Commission may disclose to the relevant law enforcement agency or public authority any evidence or information that the Commission has in respect of the matter. (3) The Commission need not obtain the views of a public authority before referring a matter under this section. (4) If a matter is referred to a public authority under subsection (1)(b), the Commission may give directions or guidance to the authority, which may include (without limitation)— (a) a requirement that the authority submit a report or reports on action taken in respect of the matter as set out in the directions; and (b) a recommendation as to the action that should be taken by the authority and the period within which it should be taken. (5) The Commission may not give directions to the Governor or a judicial officer or to the Attorney‑General in relation to a matter concerning the Governor or a judicial officer. (6) The Commission may not give directions to a House of Parliament or the Joint Parliamentary Service Committee in relation to a matter concerning a public officer. (7) The Commission may at any time— (a) revoke a referral to a public authority; or (b) revoke or vary directions or guidance given to a public authority or give further directions or guidance, as the Commission sees fit. (8) If— (a) a referral of a matter by the Commission under this section included a requirement that the public authority submit a report or reports on action taken in respect of the matter; and (b) the Commission is not satisfied that a public authority has duly and properly taken action in relation to the matter, the Commission must inform the authority of the grounds of the Commission's dissatisfaction and give the authority an opportunity to comment within a specified time. (9) If, after considering any comments received from the public authority within the specified time, the Commission is still not satisfied, the Commission may submit a report to the Minister responsible for the authority setting out the grounds of dissatisfaction, together with any comments from the authority. (10) If, after considering any comments received from the Minister responsible for the public authority within 21 days after the report was submitted to the Minister, the Commission is still not satisfied, the Commission may provide to the President of the Legislative Council and the Speaker of the House of Assembly a report setting out the grounds of dissatisfaction. (11) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after receiving a report, lay it before their respective Houses. 36A—Determination of Commission's jurisdiction If— (a) an investigation has been commenced or is proposed under this Act; and (b) a question arises as to whether the Commission has jurisdiction to conduct the investigation, the Supreme Court may, on the application of the Commission, a public officer or a public authority, determine the question and make any orders necessary to give effect to the determination. 39—Request for Auditor‑General to examine accounts The Commission may, if the Commission considers it appropriate in respect of any matter subject to investigation or referral under this Act, request the Auditor‑General to conduct an examination of accounts under the Public Finance and Audit Act 1987. 39A—Information to be provided If— (a) on completing the investigation of a matter involving potential issues of corruption in public administration, the Commission determines not to refer the matter to a relevant law enforcement agency or to a public authority; or (b) a relevant law enforcement agency or public authority to whom a matter is referred by the Commission determines not to further investigate or deal with the matter, reasonable steps must be taken by the Commission, or by the agency or authority (as the case may be), to ensure that each person who was the subject of the investigation is informed of that determination as soon as practicable. Division 3—Evaluation of agency or authority practices 40—Evaluation of practices, p