Acts Amendment (Official Corruption Commission) Act 1994 (WA)

WESTERN AUSTRALIA

ACTS AMENDMENT (OFFICIAL

CORRUPTION COMMISSION)

ACT 1994

No. 14 of 1994

AN ACT to amend —

the Official Corruption Commission Act 1988;

the Parliamentary Commissioner Act 1971; and

the Salaries and Allowances Act 1975.

[Assented to 22 April 1994.]

The Parliament of Western Australia enacts as follows:

Short title

1. This Act may be cited as the Acts Amendment (Official

Corruption Commission) Act 1994.

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Commencement

2. This Act shall come into operation on such day as is fixed by

proclamation.

Principal Act

3. In this Act, the Official Corruption Commission Act 1988* is

referred to as the principal Act.

[* Act No. 52 of 1988.

For subsequent amendments, see 1992 Index to Legislation of Western Australia, Table 1, p. 149.]

Long title amended

4. The long title of the principal Act is amended by deleting the

passage beginning with "appointment" and ending with "public

officers and for" and substituting the following —

establishment of an Official Corruption Commission to receive, consider and, if it thinks fit, refer to persons or bodies for investigation or the taking of action, or both, allegations of corruption or of the commission of certain offences made against public officers and certain other persons, and for related or

Section 3 amended

5. Section 3 of the principal Act is amended by —

(a) deleting "context otherwise requires" and substituting

the following —

contrary intention appears

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(b)	inserting before the definition of "Commission" the following definition —

"allegation" means an allegation referred to in section 7 (1) (a), (aa) or (ab);

(c)	inserting before the definition of "member" the following definitions —

"Deputy Director of Public

Prosecutions" means a person for

the time being holding or acting in the office of Deputy Director of Public Prosecutions under the Director of Public Prosecutions Act 1991;

"Deputy Parliamentary Commissioner"

means a person for the time being holding the office of Deputy Parliamentary Commissioner for Administrative Investigations under the Parliamentary Commissioner Act 1971;

"Director of Public Prosecutions"

means a person for the time being holding or acting in the office of Director of Public Prosecutions under the Director of Public Prosecutions Act 1991;

(d) deleting "and" at the end of the definition of

"member";

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(e)	inserting before the definition of "public officer" the following definitions —

"member of the staff of the Director of

Public Prosecutions" means a

member of the staff referred to in section 30 of the Director of Public Prosecutions Act 1991;

"officer of the Parliamentary

Commissioner" has the meaning

given to "officer of the Commissioner" by the Parliamentary Commissioner Act 1971;

"Parliamentary Commissioner" means a person for the time being holding or acting in the office of the Parliamentary Commissioner for Administrative Investigations under the Parliamentary Commissioner Act 1971;

"preliminary inquiry" means a

preliminary inquiry referred to in

section 7 (1) (ac);

(f)	deleting the fullstop at the end of the definition of "public officer" and substituting a semicolon; and
(g)	inserting after the definition of "public officer" the following definitions —

"seconded officer" means a person of whose services the Commission makes use under an arrangement referred to in section 6A (1);

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"scheduled offence" means an offence specified in the Schedule;

"standing committee" means —

(a)

a standing committee of either

House of Parliament; or

(b)

a joint standing committee of

both Houses of Parliament;

"the Fund" means the Official Corruption

Commission Fund referred to in

section 71 (2).

Section 5 amended

6. Section 5 of the principal Act is amended

(a) in subsection (2) by deleting paragraph (a) together with "and" at the end of that paragraph and substituting the following —

(a) one shall be a person who

(i) has held office as a Judge, District Court Judge or magistrate; or

(ii) has held office as a commissioned officer of the Police Force; or

(iii) is or has been a barrister or solicitor of the Supreme Court of not less than 5 years' standing and practice, but is not a judicial officer;

and

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and

(b) by repealing subsection (7).

Section 6A inserted

7. After section 6 of the principal Act, the following section is

inserted —

Use by Commission of government staff, etc.

6A. (1) Subject to subsection (2), the Commission may by arrangement between the Commission and the Minister concerned make use, either full-time or part- time, of —

(a)	the services of staff employed in the Public Service of the State or in a State agency or instrumentality or otherwise in the service of the Crown in right of the State; or
(b)	any facilities of a department of the Public Service of the State or of a State agency or instrumentality.

An arrangement under subsection (1) shall be made on such terms as the Commission, the Minister concerned and the Public Service Commissioner agree.

(2)

A seconded officer shall, before he commences his duties as such, take an oath or affirmation, to be administered by the chairman of the Commission, that, except in accordance with this Act, he will not divulge any information received by him under this Act.

(3)

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Section 7 amended

8. Section 7 of the principal Act is amended —

(a) in subsection (1) by deleting paragraphs (a) and (b), and "and" after paragraph (b), and substituting the following —

(a) receive information furnished to it by any person who alleges that a public officer has —

(i) corruptly acted or corruptly failed to act in the performance of the functions of his office or employment; or

(ii) corruptly taken advantage of his position as holder of his office or employment to obtain any benefit for himself or any other person; or

(iii) committed a scheduled offence whilst acting or purporting to act in his official capacity; or

(iv) committed an offence under section 552 of The Criminal Code by attempting, whilst acting or purporting to act in his official capacity, to commit a scheduled offence; or

(v) committed an offence under section 553 of The Criminal Code by inciting, whilst acting or purporting to act in his

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official capacity, the commission

of a scheduled offence; or

(vi) committed an offence under section 558 of The Criminal Code by conspiring, whilst acting or purporting to act in his official capacity, to commit a scheduled offence;

(aa) receive information furnished to it by any person who alleges that another person has been involved in the commission of an offence —

(i) referred to in paragraph (a) (iii),

(iv), (v) or (vi); and

(ii) committed by a public officer,

in such a manner as under Chapter II of The Criminal Code to be deemed to have taken part in committing, or to have committed, that offence or to have been an accessory after the fact to that offence;

(ab) consider, in the light of its own experience and knowledge and independently of any allegation referred to in paragraph (a) or (aa), whether or not the Commission ought itself to allege that a public officer has conducted himself, or that another person has been involved, in a manner described in paragraph (a) or (aa);

(ac) make such preliminary inquiry, if any, as it considers necessary to

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enable it to form an opinion under

paragraph (b);

(b) consider whether or not, in its opinion, there are reasonable grounds for an allegation to be referred to a person or body (other than the Parliamentary Commissioner) who, or which, is empowered by law to investigate or take action, or both, in relation to allegations of conduct or involvement of a kind described in paragraph (a) or (aa); and

If;

(b) in subsection (1) (c) by deleting "furnished" and

substituting the following —

forwarded

(i) inserting after "(1) (a)" the following —

or (aa)

"; and

(ii) deleting "fulfil" and substituting the following —

perform

(d) in subsection (3) by

(i) deleting "a matter should" and substituting the

following —

there are reasonable grounds for an

allegation to

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(ii)

deleting "forward" and substituting the

following —

71;

refer the allegation by forwarding

(iii) deleting "the matter" and substituting the following —

the allegation

f);

(iv) inserting before "inform the person" the following —

, in the case of an allegation referred

to in subsection (1) (a) or (aa),

and

(v)	deleting "the allegations concerned" and substituting the following —

that allegation

(e) in subsection (4) by —

(i) deleting "a matter" and substituting the following —

an allegation referred to in subsection

(1) (a) or (aa)

(ii) inserting after "subsection (1) (b)" the following —

or to the Parliamentary

Commissioner under section 7C (1)

and

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(iii)

deleting "the allegations concerned" and

substituting the following —

that allegation

(f)	by inserting after subsection (4) the following subsection —

(4a) When an allegation is referred to a person or body referred to in subsection (1) (b) who or which is empowered by law to investigate that allegation, the Commission may make recommendations to that person or body in relation to the relevant investigation, but shall not give directions to that person or body in relation to that investigation.

33;

(g)

in subsection (5) by deleting —

(i)	"Where a matter" and substituting the following —

When an allegation

(ii) "discharging" and substituting the following —

f f

performing

(iii) "that matter" in both places where it occurs and substituting in each case the following —

the allegation

"; and

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(iv) "the action taken" and substituting the following —

the investigation made, or action

taken, or both,

and

(h) by repealing subsections (6), (7) and (8).

Sections 7A, 7B, 7C, 7D, 7E, 7F, 7G, 7H and 71 inserted

9. Part II of the principal Act is amended by inserting after

section 7 the following sections —

Commission may report to Parliament

7A. (1) During or after any investigation or taking of action by a person or body to whom or which an allegation has been referred under section 7, the Commission may report to each House of Parliament that the Commission considers that that investigation or taking of action is not being, or has not been, properly, efficiently or expeditiously carried out.

(2) After considering any report forwarded to it under section 7 (5) or by the Parliamentary Commissioner (in this subsection and in section 7B called "the first report"), the Commission may report to each House of Parliament —

(a) on any finding of illegality made in the first

report; or

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(b) on any request made by a person to whose alleged conduct or involvement the first report relates that the findings of the first report be publicly disclosed.

(3) In making a report under this section, the Commission shall —

(a)	report facts only and shall not express ethical or other opinions; and
(b)	before reporting any facts adverse to a person or body, give the person or body a reasonable opportunity to make representations to the Commission concerning those facts.

(4) The Commission may make such recommendations as it thinks fit in a report made under this section.

Public disclosure of findings

7B. If, following the making by the Commission of a report under section 7A, either House of Parliament approves the public disclosure of the findings of the first report, a person may, notwithstanding section 11B, publicly disclose those findings, whether by publication in any newspaper or other written publication or by radio or television or otherwise.

Reference of matters to Parliamentary

Commissioner

7C. (1) The Commission may in writing refer an allegation relating to a member of the Police Force or Police Department to the Parliamentary

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Commissioner instead of referring that allegation to the Commissioner of Police under section 7 (3).

The Commission shall refer an allegation to the Parliamentary Commissioner under subsection (1) by forwarding a report and any recommendations it wishes to make on the allegation to the Parliamentary Commissioner and shall, in the case of an allegation referred to in section 7 (1) (a) or (aa), inform the person who made that allegation that it has done so.

(2)

A reference under subsection (1) shall be treated by the Parliamentary Commissioner as if it were a complaint duly made under section 17 of the Parliamentary Commissioner Act 1971 and that Act shall apply to and in relation to that reference accordingly.

(3)

Consultation

7D. The Commission may, notwithstanding section 11, consult the Parliamentary Commissioner or the Director of Public Prosecutions concerning any allegation.

Review of decisions not to refer matters

7E. (1) A person may, within 30 days after having been informed under section 7 (4), or such longer period as the Commission may allow, in writing request the Commission to review its opinion that the reference of the relevant allegation is not warranted.

(2) On receiving a request made under subsection (1), the Commission shall

(a)	review; and
(b)	confirm or reverse,

the opinion to which that request relates.

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(3) The Commission shall inform each person who makes a request under subsection (1) of its decision under subsection (2) (b) on the request within 15 days after the making of the request, or such longer period as is agreed between the Commission and that person.

Duty to notify Commission of possible corrupt conduct

7F. (1) This section applies to a person who is —

(a)	the Parliamentary Commissioner;
(b)	the principal officer of a public authority; or
(c)	an officer who constitutes a public authority,

but does not apply to the Director of Public

Prosecutions.

(2) A person to whom this section applies shall report to the Commission any matter —

(a)	which that person suspects on reasonable grounds concerns or may concern conduct or involvement referred to in section 7 (1) (a) or (aa); and
(b)	which, in the case of a person referred to in subsection (1) (b) or (c), is of concern to that person in his official capacity.

(3) The Commission may make guidelines indicating what matters are or are not required by subsection (2) to be reported to the Commission, and may amend or repeal any such guidelines.

(4) This section has effect despite any duty of

secrecy or other restriction on disclosure imposed

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under a written law, whether enacted before or after the commencement of section 9 of the Acts Amendment (Official Corruption Commission) Act 1994, and a person who complies with this section does not commit any offence by reason of that compliance.

(5) Rules of Parliament made under section 12 may prescribe who is the principal officer of a public authority, but, in the absence of any such Rules of Parliament applying in relation to a particular public authority, the principal officer of that public authority is —

(a)	the person who is the head of that public authority, its most senior officer or the person normally entitled to preside at its meetings; or
(b)	in the case of a public authority which is a department or organization within the meaning of the Public Service Act 1978, the chief executive officer of that department or organization.

(6) If a person to whom this section applies does not comply with subsection (2), the Commission may, after considering any guidelines made under subsection (3) and affording that person a reasonable opportunity to be heard by the Commission, report that non-compliance to any person or body who or which has the power to take disciplinary action against the person to whom this section applies.

(7) In this section —

"public authority" means —

(a) department or organization within the meaning of the Public Service Act 1978; or

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(b)	statutory authority within the meaning of the Financial Administration and Audit Act 1985;

(c)

government department or other authority to which the Parliamentary Commissioner Act 1971 applies; or

(d)

person or body, or holder of an office —

(i)	under whom or which a public officer holds office or by whom or which a public officer is employed; or
(ii)	who or which is prescribed for the purposes of this subparagraph,

but does not include the President of the Legislative Council or the Speaker of the Legislative Assembly.

Director of Public Prosecutions to notify

Commission of certain matters

7G. The Director of Public Prosecutions shall —

(a) report to the Commission any matter which the Director of Public Prosecutions suspects on reasonable grounds concerns or may concern conduct or involvement referred to in section 7 (1) (a) or (aa) on the part of the Deputy Director of Public Prosecutions or of a member of the staff of the Director of Public Prosecutions; and

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(b) provide the Commission with such statistics as are specified from time to time by the Commission by writing given to the Director of Public Prosecutions, being statistics relating to the number and types of allegations of the kind referred to in section 7 (1) (a) or (aa) or both received by the Director of Public Prosecutions during each calendar year or during such other period as is specified by the Commission.

Any person may notify Commission of possible corrupt conduct

711. (1) A person (including a public officer) may

report to the Commission any matter which that person suspects on reasonable grounds concerns or may concern conduct or involvement referred to in section 7 (1) (a) or (aa).

(2) This section has effect despite any duty of secrecy or other restriction on disclosure imposed under a written law, whether enacted before or after the commencement of section 9 of the Acts Amendment (Official Corruption Commission) Act 1994, and a person who exercises the power conferred by subsection (1) does not commit any offence by reason of that exercise.

Funds of Commission

71. (1) The funds available for the purpose of

enabling the Commission to perform its functions

consist of —

(a) moneys from time to time appropriated by Parliament and paid to the Commission;

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(b)	interest paid to the credit of the Fund under subsection (4); and
(c)	any moneys, other than moneys referred to in paragraphs (a) and (b), lawfully received by, made available to or payable to the Commission.

(2) The funds referred to in subsection (1) shall be placed to the credit of an account at the Treasury to be called the "Official Corruption Commission Fund", which account shall form part of the Trust Fund referred to in section 9 of the Financial Administration and Audit Act 1985.

(3) The funds recorded as standing to the credit of the Fund shall be applied to —

(a)	the remuneration and allowances payable to members and officers of the Commission;
(b)	moneys payable under an arrangement referred to in section 6A;
(c)	expenditure incurred by the Commission in the performance of its functions; and
(d)	all expenditure, other than expenditure referred to in paragraphs (a), (b) and (c), lawfully incurred by the Commission for the purposes of, or in meeting the costs and expenses of the administration of, this Act.

(4) All funds recorded as standing to the credit of the Fund may, until required by the Commission for the purposes of this Act, be temporarily invested as the Treasurer directs in any securities in which funds standing to the credit of the Public Bank Account within the meaning of the Financial Administration and Audit Act 1985 may lawfully be invested and the

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Treasurer shall cause all interest derived from that investment to be paid to the credit of the Fund.

Section 8 amended

10. Section 8 of the principal Act is amended by deleting "The

provisions" and substituting the following —

Subject to section 71, the provisions

Part IIA inserted

11. After Part II of the principal Act the following Part is

inserted

PART HA — PRELIMINARY INQUIRIES

Requests for information

8A. (1) In making a preliminary inquiry, the

Commission may request, orally or in writing, any person or body to supply to the Commission such information as is specified in that request in such manner, and within such period, as is so specified.

A person who fails, without reasonable excuse, to comply with a request in writing made under subsection (1) commits an offence and is liable to a penalty of $2 000.

(2)

This section has effect despite any duty of secrecy or other restriction on disclosure imposed under a written law, whether enacted before or after the commencement of section 11 of the Acts Amendment (Official Corruption Commission) Act 1994, and a person who complies with a request made

(3)

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under subsection (1) does not commit any offence by

reason of that compliance.

Requests for documents, etc.

8B. (1) In making a preliminary inquiry, the Commission may request, orally or in writing, any person or body to produce to the Commission such document or other thing as is specified in that request in such manner, and within such period, as is so specified.

A person who fails, without reasonable excuse, to comply with a request in writing made under subsection (1) commits an offence and is liable to a penalty of $2 000.

(2)

(3)

Section 9 amended

12. Section 9 (1) of the principal Act is amended by deleting "or

an officer of the Commission" and substituting the following —

, an officer of the Commission or a seconded officer

Section 10 repealed

13. Section 10 of the principal Act is repealed.

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Section 11 amended

14. Section 11 of the principal Act is amended (a) in subsection (1) by deleting

(i) "or an officer of the Commission" and

substituting the following —

, an officer of the Commission or a

seconded officer

(ii) "or exercise";

(iii) in paragraph (a) "or officer of the Commission" and substituting the following —

, officer of the Commission or

seconded officer and

77.

and

(iv) "$2 500 or imprisonment for three months, or both" and substituting the following —

77,

$8 000 or imprisonment for 2 years

and

(b) by inserting after subsection (1) the following

subsections -

(2) A person who is a member, an officer of the Commission or a seconded officer may for the purposes of this Act

(a) divulge or communicate to a

person who is

(i) the Parliamentary

Commissioner or the

Deputy

Parliamentary

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Commissioner, or an officer of the Parliamentary Commissioner authorized for the purposes of this subparagraph by the Parliamentary Commissioner or the Deputy Parliamentary Commissioner; or

(ii) the Director of Public Prosecutions or the Deputy Director of Public Prosecutions, or a member of the staff of the Director of Public Prosecutions authorized for the purposes of this subparagraph by the Director of Public Prosecutions or the Deputy Director of Public Prosecutions,

information received by him in his capacity as member, officer of the Commission or seconded officer; or

(b) produce to a person referred to in paragraph (a) (i) or (ii) a document furnished for the purposes of this Act.

(3) A person who is a member may for the purposes of this Act —

(a) divulge or communicate to any standing committee appointed to monitor and review the performance of the functions of

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the Commission or to any person assisting, and authorized for the purposes of this subparagraph by, any such standing committee information received by him in his capacity as a member; or

(b) produce to a standing committee or person referred to in paragraph (a) a document furnished for the purposes of this Act.

Sections 11A, 11B and 11C inserted

15. Part III of the principal Act is amended by inserting after

section 11 the following sections —

Victimization of persons assisting Commission,

etc.

11A. (1) A person shall not —

(a)

prejudice, ,

or threaten to prejudice, the

safety or career of; or

(b)	intimidate or harass, or threaten to intimidate or harass; or
(c)	do any act that is, or is likely to be, to the detriment of,

another person because the other person

(d)	has assisted, is assisting or will or may in the future assist the Commission in the performance of its functions; or

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(e)	has furnished, is furnishing or will or may in the future furnish information to the Commission; or

(0 has been or is, or has been or is employed by or acting on behalf of, a person or body to whom or which an allegation has been or is referred under section 7 (3), or has been or is, or has been or is acting on behalf of, the Parliamentary Commissioner, the Deputy Parliamentary Commissioner or an officer of the Parliamentary Commissioner acting in relation to an allegation referred under section 7C (1); or

(g) has exercised a power, or performed a duty, conferred or imposed by this Act on the other person or is exercising or performing, or will or may in the future exercise or perform, any such power or duty.

Penalty: $8 000 or imprisonment for 2 years.

(2) A person who —

(a)	attempts; or
(b)	intending that the offence created by subsection (1) be committed, incites another person; or
(c)	conspires with another person,

to commit the offence created by subsection (1) commits an offence and is liable to the penalty set out in subsection (1).

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Restriction on publication of certain

information or allegations

11B. (1) Subject to subsection (2), a person shall

not publish or cause to be published in any newspaper or other written publication or by radio or television —

(a)	the fact that the Commission has received;

(b)	any details of,

any information or allegation referred to in

section 7 (1), unless that fact or those details —

(c)	is or are so published; or
(d)	has or have already been publicly disclosed,

under, or in connection with the execution of, this Act.

Penalty: $8 000 or imprisonment for 2 years.

(2) Nothing in this section prevents the compilation and publication by —

(a) the Commission of statistics relating to the number and types of allegations dealt with under this Act during any period, or of any other information of a general nature that could not be expected to lead to the identification of any person (other than the Commission, a member, an officer of the Commission or a seconded officer) to whom it relates; or

(b) any standing committee referred to in section 11 (3) (a) of any report.

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General offences

11C. (1) A person shall not —

(a)	without reasonable excuse, wilfully obstruct, hinder, resist or threaten the Commission, a member, an officer of the Commission or a seconded officer in the performance of its or his functions under this Act; or
(b)	wilfully make any false statement to, or mislead, or attempt to mislead, the Commission, a member, an officer of the Commission or a seconded officer in the performance of its or his functions under this Act; or
(c)	disrupt any proceeding of the Commission.

Penalty: $8 000 or imprisonment for 2 years.

A person shall not, knowing that any document or other thing is or may be required in connection with a preliminary inquiry, wilfully destroy it or render it incapable of identification or, in the case of a document, render it illegible, indecipherable or unusable, with intent to prevent it from being used in connection with the preliminary inquiry.

(2)

Penalty: $8 000 or imprisonment for 2 years.

A person shall not directly or indirectly represent that he is a member, an officer of the Commission or a seconded officer unless the person is a member, an officer of the Commission or a seconded officer, as the case requires.

(3)

Penalty: $8 000 or imprisonment for 2 years.

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(4) For the purposes of subsection (3), a person represents that a state of affairs exists if the person does or says anything, or causes, permits or suffers anything to be done or said, by which it is represented, or by which a belief may be induced, that the state of affairs exists.

Section 14 repealed

16. Section 14 of the principal Act is repealed.

Schedule added

17. After Part III of the principal Act, the following Schedule is

added -

SCHEDULE 1

[Section 3]

OFFENCES UNDER THE CRIMINAL CODE

Offence under section 60, 61, 81, 82, 83, 85, 86, 87, 88, 122, 169, 170, 172, 173, 177, 178, 378, 379, 380, 381, 383, 384, 385, 386, 387, 388, 389, 390, 390B, 409, 414, 416, 418, 419,

420, 421, 424, 440A, 473, 529, 530, 532, 533, 534, 535, 536

or 537.

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Minor amendments

18. Each provision of the principal Act specified in column 2 of

the Table to this section is amended in the manner set out in

column 3 of that Table.

TABLE

Column 1

Column 2

Column 3

Item

Provision amended

Manner of amendment

Section 4

Delete "exercise" and

substitute the following —

perform

Section 6 (1)

Delete "carried out" and

substitute the following —

performed

Section 12 (1)

Delete "exercise" and

substitute the following —

performance

Parliamentary Commissioner Act 1971 amended

19. (1) Section 13 (2) of the Parliamentary Commissioner Act 1971* is amended by inserting after paragraph (d) the following paragraph —

(da) the Official Corruption Commission established under the Official Corruption Commission Act 1988;

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(2) Section 23 (1) of the Parliamentary Commissioner

Act 1971* is amended by —

(a)	deleting "or" at the end of paragraph (a);
(b)	deleting the fullstop at the end of paragraph (b) and substituting the following —

; or

"; and

(c)	inserting after paragraph (b) the following paragraph —

with —

(i) the Official Corruption Commission established under the Official Corruption Commission Act 1988 (in this paragraph called "the Official Corruption Commission"); or

(ii) the Director of Public Prosecutions within the meaning of the Director of Public Prosecutions Act 1991,

concerning any matter relevant to the functions of the Official Corruption Commission.

[* Reprinted as at 21 October 1992.

For subsequent amendments, see Act No. 59 of 1992.]

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Salaries and Allowances Act 1975 amended

20. Section 7 (1) of the Salaries and Allowances Act 1975* is amended by inserting before "and if the Tribunal" the following —

and members of the Official Corruption Commission established under the Official Corruption Commission Act 1988,

[* Reprinted as at 16 November 1988.

For subsequent amendments, see 1992 Index to Legislation of Western Australia, Table 1, p. 188.1