Independent Commission Against Corruption Regulations 2013 (SA)

South Australia

Independent Commission Against Corruption Regulations 2013

under the Independent Commission Against Corruption Act 2012

Part 1Preliminary1Short title

These regulations may be cited as the Independent Commission Against Corruption Regulations 2013.

3Interpretation

In these regulations—

Act means the Independent Commission Against Corruption Act 2012.

3ADeclared law enforcement agency

In accordance with paragraph (m) of the definition of law enforcement agency in section 4(1) of the Act, each of the following is declared to be a law enforcement agency:

1. (a)

   the Australian Competition and Consumer Commission established by section 6A of the Competition and Consumer Act 2010 of the Commonwealth;

2. (b)

   the National Anti-Corruption Commission established by section 20 of the National Anti-Corruption Commission Act 2022 of the Commonwealth.

Part 2Procedures for urgent applications for warrant to Commissioner

4Procedures for urgent applications for warrant to Commissioner (section 31(4) of Act)

1. (1)

   If an application for a warrant is made to the Commissioner by fax or email, the following provisions apply:

   1. (a)

      the applicant must be available to speak to the Commissioner by telephone;

   2. (b)

      the Commissioner is entitled to assume, without further inquiry, that a person who identifies himself or herself as the applicant acting in the capacity of an investigator during a telephone conversation with the Commissioner is indeed the applicant acting in that capacity;

   3. (c)

      the application must be accompanied (through fax or email) by a statutory declaration made by the applicant verifying the application;

   4. (d)

      the Commissioner must forward the warrant to the applicant by fax or email.

2. (2)

   If an application for a warrant is made to the Commissioner by telephone, the following provisions apply:

   1. (a)

      the applicant must inform the Commissioner of the applicant's name and identify himself or herself as an investigator and the Commissioner, on receiving that information, is entitled to assume its accuracy without further inquiry;

   2. (b)

      the applicant must inform the Commissioner of the purpose for which the warrant is required and the grounds on which it is sought;

   3. (c)

      the Commissioner may, on being satisfied as to the grounds for the issue of the warrant, inform the applicant of the facts on which the Commissioner relies as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make a statutory declaration verifying those facts;

   4. (d)

      the Commissioner must inform the applicant of the terms of the warrant;

   5. (e)

      the applicant must fill out and sign a warrant form (the duplicate warrant) that—

      1. (i)

         specifies the person authorised to exercise the powers conferred by the warrant; and

      2. (ii)

         specifies the place or vehicle to which the warrant relates; and

      3. (iii)

         states whether entry is authorised at any time of the day or night or during specified hours of the day or night;

   6. (f)

      the applicant must, as soon as practicable after the issue of the warrant, forward to the Commissioner a statutory declaration verifying the facts referred to in paragraph (c) and a copy of the duplicate warrant.

Part 3Property in custody of Commission5Application of Part

This Part applies subject to any other Act or regulation.

6Interpretation

In this Part, unless the contrary intention appears—

money includes a negotiable instrument;

prescribed account means an ADI account established and maintained by the Commission for the purpose of holding money that is in the custody of the Commission or the proceeds of the sale of other things in the custody of the Commission;

property includes anything that has been seized or made the subject of a retention order under section 31 of the Act;

unclaimed property means property that has been in the custody of the Commission for the period of at least 2 months after the designated period in respect of the property and in relation to which—

1. (a)

   there is no person who appears, to the satisfaction of the Commissioner, to be the owner of the property; or

2. (b)

   there is such a person but that person has not been located after reasonable inquiry; or

3. (c)

   there is such a person but that person has not exercised his or her right to recover the property.

7Custody of property

1. (1)

   The Commission must ensure the safety and security of property in the custody of the Commission.

2. (2)

   If an investigator seizes or otherwise takes custody of property, the investigator must cause—

   1. (a)

      a record of the property to be made in the manner approved by the Commissioner; and

   2. (b)

      subject to this Part, the property to be kept in the manner and place approved by the Commissioner; and

   3. (c)

      a receipt to be issued, as soon as is reasonably practicable and in the manner approved by the Commissioner, to the person from whom the property was seized or otherwise obtained.

3. (3)

   An investigator must not use property that is in the custody of the Commission for purposes other than—

   1. (a)

      those for which it was received, seized or otherwise taken; or

   2. (b)

      purposes authorised under these regulations.

8Money

1. (1)

   Money that is in the custody of the Commission must, unless it is required in specie for evidentiary purposes in legal proceedings or to assist in the identification of its owner, be paid into a prescribed account by the Commission.

2. (2)

   If the money is not in Australian currency, it must be converted to Australian currency for retention in the account.

3. (3)

   On payment of money into a prescribed account—

   1. (a)

      the amount in Australian currency paid into the account; and

   2. (b)

      any interest earned on the amount,

is to be taken to constitute the relevant money for the purposes of the disposal of property in accordance with these regulations.

9Investigation of ownership

The Commission must cause all reasonable efforts to be made to determine and locate the owner of property that is in the custody of the Commission.

10Disposal of property

Subject to section 32(3) of the Act, property that is in the custody of the Commission must be disposed of as follows:

1. (a)

   if a court makes an order for the disposal of the property, the property must be disposed of in accordance with the order;

2. (b)

   if proceedings to determine the ownership of the property have commenced, the property must be retained by the Commission until those proceedings have been completed or discontinued;

3. (c)

   if there is a person who appears, to the satisfaction of the Commission, to be the owner, the property must be returned to that person unless he or she—

   1. (i)

      cannot be located after reasonable inquiry; or

   2. (ii)

      does not exercise his or her right to recover the property;

4. (d)

   if the property is unclaimed property, it must be disposed of as unclaimed property in accordance with these regulations.

11Perishable, unsafe, unlawful etc property

Despite these regulations—

1. (a)

   if property in the custody of the Commission is of such a nature that no person is lawfully entitled to it, the Commission must, if the property is not required for use in connection with any legal proceedings or official investigations, cause the property to be destroyed; and

2. (b)

   subject to paragraph (a), if it appears to the Commission that property in the custody of the Commission whose owner is not known, cannot be located or does not exercise his or her right to recover the property—

   1. (i)

      is perishable or may rapidly depreciate in value; or

   2. (ii)

      is of such a nature or in such condition that it would be dangerous, not reasonably practicable or unduly costly for the Commission to retain the property,

the Commission may cause the property to be sold, destroyed or otherwise disposed of at such time and in such manner as the Commission thinks fit.

12Unclaimed property

1. (1)

   The Commission may cause the whole or any part of unclaimed property, other than unclaimed money, that is in the custody of the Commission to be sold, destroyed or otherwise disposed of at such time and in such manner as the Commission thinks fit.

2. (2)

   Unclaimed money in the custody of the Commission is to be dealt with in accordance with regulation 8.

13Effect, proceeds of sale

1. (1)

   A person who buys property sold by or on the authority of the Commission under this Part obtains good title to that property.

2. (2)

   The proceeds of a sale of property under this Part must be applied as follows:

   1. (a)

      firstly, in payment of the expenses occasioned by the sale;

   2. (b)

      secondly, in payment of storage or other expenses incurred by the Commission in relation to the property;

   3. (c)

      thirdly, by payment of the balance into a prescribed account.

14Proceeds, unclaimed money to be paid into Consolidated Account

1. (1)

   Proceeds of sale and unclaimed money held in a prescribed account under this Part must be retained in the account for a period of 6 months, after which the principal and any interest must be paid into the Consolidated Account.

2. (2)

   If unclaimed money held in a prescribed account was not unclaimed money at the time it was paid into the account but subsequently became unclaimed, the 6 month period referred to in subregulation (1) commences at the time at which the money became unclaimed.

15Return of unclaimed property, proceeds of sale

The Commissioner may, at his or her discretion—

1. (a)

   if a person who appears, to the satisfaction of the Commission, to be the owner of property claims the property after it has become unclaimed property but while it remains in the custody of the Commission, authorise the property to be returned to the person;

2. (b)

   if a person who appears, to the satisfaction of the Commission, to have been the owner of property before it was sold under this Part claims the balance of the proceeds of the sale while the money continues to be held in a prescribed account under this Part, authorise the payment of the balance (and any interest on the balance) to the person.

16Commissioner may prepare instruments

The Commission may prepare and execute all instruments necessary for carrying into effect the sale, destruction or other disposal of property under this Part.

Part 4Miscellaneous16ADeposit holders (section 29A of Act)

1. (1)

   In accordance with paragraph (e) of the definition of deposit holder in section 29A(4) of the Act, an institution that is a credit provider is declared to be a deposit holder.

2. (2)

   In this regulation—

credit provider means a credit provider within the meaning of the National Credit Code in Schedule 1 to the National Consumer Credit Protection Act 2009 of the Commonwealth.

17Service (section 58 of Act)

1. (a1)

   Without derogating from section 58(e) of the Act, a notice or other document required or authorised to be given to or served on a company or registered body within the meaning of the Corporations Act 2001 of the Commonwealth may be transmitted by email to an email address provided by the company or registered body for that purpose (in which case the notice or other document will be taken to have been given or served at the time of transmission).

2. (1)

   If a person refuses to accept personal service of a notice or other document that is required to be served on the person, the notice or document will be taken to have been served personally on the person if the person serving the notice or document—

   1. (a)

      puts it down in the person's presence; and

   2. (b)

      tells the person what the notice or document is.

3. (2)

   It is not necessary to show the original of the notice or document to the person being served.

4. (3)

   A summons issued under Schedule 2 clause 4 or Schedule 4 clause 6 of the Act requiring a person to appear before an examiner or the Inspector (as the case requires) must be served on the person—

   1. (a)

      at least 5 days before the day specified in the summons as the day on which the person is required to appear before the examiner or the Inspector; or

   2. (b)

      at an earlier or later date specified in the summons.

18Witness and production fees

1. (1)

   Subject to this regulation, where a person has been summoned to appear at an examination under the Act, the following amounts may be certified by the Commissioner or, in a case where the summons was issued under Schedule 4 clause 6 of the Act, by the Inspector:

   1. (a)

      the actual amount lost, or the expenses necessarily incurred, by the person by reason of his or her absence from home or business for the purpose of attending at the examination or $100 per day, whichever is the lesser;

   2. (b)

      an allowance for the travelling expenses of the person in attending at the examination, calculated on the basis of travel by public transport to and from the place where the examination is held, or, if the use of public transport by the person is not reasonably practicable, $0.20 per kilometre necessarily travelled to and from the place where the examination is held;

   3. (c)

      if the person is required at the examination to produce documents or things referred to in the summons—the expenses incurred by the person in complying with this requirement as determined by the Commissioner or the Inspector (in a case where the summons was issued under Schedule 4 clause 6 of the Act) to be just and reasonable in the circumstances;

   4. (d)

      if the person is necessarily absent from home overnight—the accommodation and meal expenses reasonably incurred by the person;

   5. (e)

      if the person is necessarily accompanied by another person—an amount equal to that which could be certified in accordance with these regulations in respect of that other person if he or she were required to attend at the examination.

2. (2)

   If—

   1. (a)

      the amount lost, or the expenses incurred by the person exceed the amount determined in accordance with subregulation (1)(a); or

   2. (b)

      the travelling expenses incurred by the person exceed the amount determined in accordance with subregulation (1)(b),

the amount certified may include such further amount as the Commissioner or the Inspector (in a case where the summons was issued under Schedule 4 clause 6 of the Act) thinks just and reasonable in the circumstances.

1. (3)

   Subject to this regulation, if a person is required by notice in writing to produce a document or thing specified in the notice at a specified time and place, the Commissioner may certify that an amount determined by the Commissioner to be just and reasonable in the circumstances is payable to the person for expenses incurred in complying with the requirement.

2. (3a)

   Subject to this regulation, if a person is required by order under Schedule 4 clause 7 to produce a document or thing, the Inspector may certify that an amount determined by the Inspector to be just and reasonable in the circumstances is payable to the person for expenses incurred in complying with the requirement.

3. (4)

   A claim for fees or expenses under this regulation must be verified by a declaration in writing signed by the person making the claim.

4. (5)

   No amount is to be certified in respect of a person required to attend at an examination who is an officer or employee of the State or Commonwealth, including a police officer but excluding an officer or employee who is on leave during the period of attendance at the examination.

19Declared public officers, public authorities and responsible Ministers (Schedule 1 of Act)

The table below specifies—

1. (a)

   public officers; and

2. (b)

   the public authorities responsible for the officers; and

3. (c)

   the Ministers responsible for the public authorities,

that are declared in accordance with Schedule 1 of the Act.

 

Public officers	Public authority	Minister
an accredited professional within the meaning of the Planning, Development and Infrastructure Act 2016 (other than an accredited professional who only performs the functions of a relevant authority under that Act as a member of an assessment panel or as an assessment manager for an assessment panel)	the Minister responsible for the administration of the Planning, Development and Infrastructure Act 2016	Premier
a member of a joint planning board or a subsidiary of a joint planning board established under the Planning, Development and Infrastructure Act 2016 an employee of a joint planning board or a subsidiary of a joint planning board	the joint planning board	the Minister responsible for the administration of the Planning, Development and Infrastructure Act 2016
a private certifier within the meaning of the Development Act 1993	the Minister responsible for the administration of the Development Act 1993	Premier
an authorised examiner appointed under the Motor Vehicles Act 1959 (other than a police officer)	the Registrar of Motor Vehicles under the Motor Vehicles Act 1959	the Minister responsible for the administration of the Motor Vehicles Act 1959

20Prescribed form (Schedule 3 of Act)

Notice of an application under Schedule 3 clause 3 of the Act must be in the form prescribed in Schedule 1.

21Relevant complaint (Schedule 4 of Act)

A relevant complaint under Schedule 4 of the Act—

1. (a)

   may only be made by—

   1. (i)

      email addressed to [email protected]; or

   2. (ii)

      mail addressed to The Inspector, GPO Box 2371, Adelaide, SA, 5001; and

2. (b)

   must include—

   1. (i)

      details of the alleged conduct that is the subject of the complaint; and

   2. (ii)

      contact details for the complainant.

22Prescribed modifications (Schedule 4 of Act)

Pursuant to Schedule 4 clause 6(4) of the Act, the following modifications to Schedule 2 of the Act are prescribed:

1. (a)

   references in Schedule 2 to a summons under clause 4 of that Schedule are taken to be references to a summons issued under Schedule 4 clause 6 of the Act;

2. (b)

   references in Schedule 2 to an oath or affirmation under clause 4 of that Schedule or to a requirement to take such an oath or make such an affirmation pursuant to clause 4 of that Schedule are taken to be references to an oath or affirmation under Schedule 4 clause 5 of the Act or to a requirement to take such an oath or make such an affirmation pursuant to Schedule 4 clause 5 of the Act (as the case may be);

3. (c)

   references in Schedule 2 to an investigation into corruption in public administration (or to an investigation) are taken to be references to a review by the Inspector under Schedule 4 of the Act;

4. (d)

   references in Schedule 2 to the Commission, the Commissioner or the Office are taken to be references to the Inspector;

5. (e)

   references in Schedule 2 to a member of the staff of the Commission (or to a member of the staff of the Commission approved by the examiner) are taken to be references to the Deputy Inspector and to staff referred to in Schedule 4 clause 4 of the Act who have been approved by the Inspector.

Schedule 1—Prescribed form

NOTICE OF APPLICATION TO DETERMINE CLAIM OF PRIVILEGE

Independent Commission Against Corruption Act 2012 Schedule 3 Clause 3

To: INDEPENDENT COMMISSION AGAINST CORRUPTION

Address: Level 1, 55 Currie St ADELAIDE 5000

Claimant: [insert name of claimant]

Address: [insert address of claimant]

You are notified that, having made a claim of privilege in relation to a document or a thing at a search of [insert place or vehicle] on [insert date], the claimant has applied to the Supreme Court under Schedule 3 Clause 3 Independent Commission Against Corruption Act 2012 for a determination of the claim of privilege with respect to [list documents or other things over which the claim is made*] on the basis that [identify nature of the claim*].

* attach schedule if insufficient space

A copy of the application bearing the seal of the Supreme Court is attached.

The application will be heard in the Supreme Court at 1 Gouger St, Adelaide on [insert hearing date] at [insert time of hearing] or so soon afterwards as the business of the Court allows.

Signed…………………………………………………

Name: [insert name]

Claimant/Solicitor for the Claimant (delete whichever is inapplicable)

Date: [insert date]

Address for service: [insert address for service]

Schedule 2—Savings and transitional provisions (Schedule 1 clause 76 of Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021)

1—Application of laws to continuing complaints etc

1. (1)

   The Act as in force before the commencement of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 continues to apply in relation to a complaint made on or before 25 August 2021 under any of the integrity Acts.

2. (2)

   In this clause—

integrity Acts means each of the following:

1. (a)

   Judicial Conduct Commissioner Act 2015;

2. (b)

   Ombudsman Act 1972;

3. (c)

   Police Complaints and Discipline Act 2016.

Legislative history

Notes

• •

  Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.

• •

  Earlier versions of these regulations (historical versions) are listed at the end of the legislative history.

• •

  For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or Commissioner Against Corruption Regulations 2013

  Principal regulations and variations

  New entries appear in bold.

  Year	No	Reference	Commencement
  2013	204	Gazette 15.8.2013 p3507	1.9.2013: r 2
  2014	282	Gazette 11.12.2014 p6762	11.12.2014: r 2
  2015	217	Gazette 15.10.2015 p4611	15.10.2015: r 2
  2017	198	Gazette 11.7.2017 p2851	15.7.2017: r 2
  2017	284	Gazette 26.9.2017 p4193	26.9.2017: r 2
  2019	176	Gazette 27.6.2019 p2556	1.7.2019: r 2
  2020	11	Gazette 6.2.2020 p225	6.2.2020: r 2
  2021	157	Gazette 7.10.2021 p3716	7.10.2021: r 2
  2022	113	Gazette 15.12.2022 p6918	15.12.2022: r 2
  2023	10	Gazette 23.3.2023 p565	23.3.2023: r 2
  2023	73	Gazette 27.7.2023 p2386	27.7.2023: r 2

  Provisions varied

  New entries appear in bold.

  Entries that relate to provisions that have been deleted appear in italics.

  Provision	How varied	Commencement
  Pt 1
  r 1	varied by 157/2021 r 4	7.10.2021
  r 2	omitted under Legislation Revision and Publication Act 2002	11.12.2014
  r 3
  Act	varied by 157/2021 r 5	7.10.2021
  r 3A	inserted by 217/2015 r 4	15.10.2015
  substituted by 73/2023 r 3	27.7.2023
  Pt 3
  heading	varied by 157/2021 r 6	7.10.2021
  r 6
  prescribed account	varied by 157/2021 r 7	7.10.2021
  unclaimed property	varied by 157/2021 r 7	7.10.2021
  r 7
  r 7(1)	varied by 157/2021 r 8	7.10.2021
  r 7(3)	varied by 157/2021 r 8	7.10.2021
  r 8
  r 8(1)	varied by 157/2021 r 9	7.10.2021
  r 9	varied by 157/2021 r 10	7.10.2021
  r 10	varied by 157/2021 r 11	7.10.2021
  r 11	varied by 157/2021 r 12	7.10.2021
  r 12
  r 12(1)	varied by 157/2021 r 13	7.10.2021
  r 12(2)	varied by 157/2021 r 13	7.10.2021
  r 13
  r 13(1)	varied by 157/2021 r 14	7.10.2021
  r 13(2)	varied by 157/2021 r 14	7.10.2021
  r 15	varied by 157/2021 r 15	7.10.2021
  r 16	varied by 157/2021 r 16	7.10.2021
  Pt 4
  r 16A	inserted by 217/2015 r 5	15.10.2015
  r 16A(1)	varied by 157/2021 r 17	7.10.2021
  r 16B	inserted by 217/2015 r 5	15.10.2015
  deleted by 157/2021 r 18	7.10.2021
  r 17
  r 17(a1)	inserted by 217/2015 r 6	15.10.2015
  r 17(3)	substituted by 10/2023 r 3	23.3.2023
  r 18
  r 18(1)	amended by 10/2023 r 4(1)—(3)	23.3.2023
  r 18(2)	amended by 10/2023 r 4(4)	23.3.2023
  r 18(3a)	inserted by 10/2023 r 4(5)	23.3.2023
  r 19	inserted by 282/2014 r 4	11.12.2014
  varied by 217/2015 r 7	15.10.2015
  varied by 284/2017 r 4	26.9.2017
  varied by 176/2019 r 4	1.7.2019
  varied by 11/2020 r 4	6.2.2020
  r 20	inserted by 198/2017 r 4	15.7.2017
  r 21	inserted by 198/2017 r 4	15.7.2017
  amended by 113/2022 r 3(1)—(3)	15.12.2022
  r 22	inserted by 10/2023 r 5	23.3.2023
  Sch 1	inserted by 198/2017 r 4	15.7.2017
  varied by 157/2021 r 19	7.10.2021
  Sch 2	inserted by 157/2021 r 20	7.10.2021

  Historical versions

  11.12.2014

  15.10.2015

  15.7.2017

  26.9.2017

  1.7.2019

  6.2.2020

  7.10.2021

  15.12.2022

  23.3.2023