The National Anti-Corruption Commission (NACC) has been established to address growing public distrust in the federal government and public institutions and will commence on 1 July 2023, under the National Anti-Corruption Commission Act 2022 (NACC Act).
The NACC is an independent Commonwealth agency, headed by the National Anti-Corruption Commissioner, whose functions are to detect corrupt conduct and investigate and publicly report on corruption issues which, in the opinion of the Commissioner, could involve corrupt conduct that is serious or systemic, involving Commonwealth public officials. The terms ‘serious’ and ‘systemic’ are not defined in the NACC Act. Whether corrupt conduct is ‘serious’ or ‘systemic’ will ultimately be a matter to be determined by the Commissioner.
Investigations carried out by the NACC must involve a Commonwealth public official in some way, the NACC has a considerably broader jurisdiction relative to its predecessor, the Australian Commission for Law Enforcement Integrity (ACLEI). ACLEI’s jurisdiction was limited to the investigation of the conduct of staff members working in law enforcement agencies, and other agencies performing law enforcement functions.
In contrast, the NACC can investigate the conduct of any person (whether or not a public official), so long as the conduct being investigated adversely affects, or could adversely affect, a public official carrying out their official role in a dishonest or biased manner.
“Public official” is defined broadly in the NACC Act and notably includes the following individuals:
- Ministers, Senators and members of the House of Representatives, and their staff;
- staff members of Commonwealth agencies and Commonwealth companies;
- where a Commonwealth agency is responsible for administering a Commonwealth contract, individuals who are either:
- the contracted service provider for the contract; or
- both an officer or employee of the contracted service provider for the contract and someone who provides goods or services for the purposes (whether direct or indirect) of the contract;
- staff members of the NACC; and;
- people acting for, on behalf of, as a deputy or delegate of, any of the above persons or bodies.
The inclusion of private contractors providing goods and services to the Commonwealth under Commonwealth contracts within the definition of a ‘public official’ has the implication of including companies, their directors, officers, and employees within the NACC’s investigative purview.
Any person may voluntarily refer a corruption issue or provide other information about a corruption issue to the NACC.
The NACC Act also imposes mandatory requirements on agency heads and agency Public Interest Disclosure officers (PID Officer) to refer certain corruption issues of which they become aware. Those mandatory requirements will commence from 28 July 2023 for any relevant conduct of which they become aware on or from 1 July 2023. An agency head, parliamentarian or PID Officer can choose to voluntarily refer that conduct before the mandatory referral requirements commence on 28 July 2023, and may also voluntarily refer, at any time, any corrupt conduct of which they were already aware prior to 1 July 2023.
Mandatory Referrals –
Public interest disclosure officers
PID Officers (being Commonwealth agency staff members who have functions under Division 1 or 2 of Part 3 of the Public Interest Disclosure Act 2013 (PID Act)) are required to report to the NACC (or, where the agency is a Commonwealth intelligence agency, the Inspector General of Intelligence and Security (IGIS)) any corruption issue:
- concerning the conduct of a person who was a staff member of the PID Officer’s agency while that person is, or was, a staff member of the agency;
- of which the PID Officer becomes aware in the course of performing or exercising their functions or powers as a PID Officer; and
- which the PID Officer suspects could involve serious or systemic corrupt conduct.
Some limited exemptions are available in circumstances where a mandatory referral will cause a PID Officer to breach a secrecy obligation under an exempt secrecy provision (as defined in the NACC Act).
Commonwealth agency heads
Heads of Commonwealth agencies (as defined in section 11 of the NACC Act) are similarly under an obligation to make a referral to the NACC (or, if the agency is a Commonwealth intelligence agency, the IGIS) if they become aware of a corruption issue concerning the conduct of a person who was or is a member of their or their agency’s staff which they suspect could involve serious or systemic corrupt conduct.
Any person may choose to make a referral to the NACC of a corruption issue (anonymously or otherwise). It will be up to the Commissioner to determine whether to consider or respond to the referral (noting that the Commissioner will not always choose to investigate) and make a determination as to whether the conduct in question is serious or systemic.
Any person who makes a voluntary or mandatory referral will be exempt from civil, criminal or administrative liability for the disclosure, and no contractual or other remedy or right may be enforced or exercised against the person on the basis of the disclosure. However, these protections will not apply to civil, criminal or administrative liability (including disciplinary action) for knowingly making a statement that is false or misleading, or for liability for certain offences under the Commonwealth Criminal Code.
Protections provided under the NACC are complimented by the protections that exist under the Public Interest Disclosure Act 2013 with regard to public interest disclosures in the Commonwealth sector
If the Commissioner becomes aware of a corruption issue through a mandatory or voluntary referral or through another NACC investigation, their options are as follows:
- Commence a preliminary investigation to determine how to deal with the corruption issue, noting that if an investigation is commenced and it is determined that the issue does not involve serious or systemic conduct, the NACC must stop investigating.
- Investigate the corruption issue alone or with the relevant Commonwealth agency or state/territory government entity if the Commissioner thinks the issue may involve serious or systemic corrupt conduct.
- Refer the corruption issue to the Commonwealth agency to which it relates, for investigation.
- Refer the corruption issue to an alternative Commonwealth agency or state/territory government agency for consideration/investigation as it may fall within another jurisdiction.
- Determine not to take any action (noting the Commissioner is not required to take action on all referrals).
General powers to compel the production of documents, summons people to give evidence or apply for search warrants
The Commissioner has powers under the NACC Act to:
- issue a notice to produce, if there are reasonable grounds to suspect a person holds relevant information, to require any person to provide information, a document or item to the NACC;
- issue a summons requiring a person to appear to give evidence at a hearing that is being held for the purposes of a corruption investigation; or
- apply for search warrants to conduct searches of people, places and vehicles.
The Commissioner also has information and evidence gathering powers under certain other Commonwealth money laundering, proceeds of crime, surveillance devices, telecommunications and telecommunications interception legislation.
NACC Powers & Commonwealth Agencies
The NACC also has a range of information gathering, investigation and enforcement powers that it can use in relation to Commonwealth agencies, including the power to:
- issue a “stop action direction”, directing an agency to cease a specific action in relation to a corruption issue;
- issue a direction to produce requiring an agency to provide information, a document or item to the NACC; or
- enter any place occupied by a Commonwealth agency (including a parliamentarian’s parliamentary office) to carry on an investigation of that premises and inspect any relevant documents, without the need for a warrant.
The Commissioner has the power to hold a hearing for the purpose of a corruption investigation in a manner they see fit. Generally, a hearing will be held in private, however, the Commissioner may decide to hold a public hearing, or part of a hearing publicly, if they are satisfied that it is in the public interest to do so or there are exceptional circumstances which justify holding it in public.
Privileges and protections
Abrogation of the privilege against self-incrimination
A person cannot rely on the privilege for self-incrimination in a NACC hearing on the basis that their answer or information would tend to incriminate them or expose them to a penalty. However, (subject to some exceptions) the answer or information they provide will not be admissible in a criminal proceeding, a proceeding for the imposition or recovery of a penalty or a confiscation proceeding.
Abrogation of legal professional privilege and other public interest privileges
Subject to some exceptions, generally a person will not be excused from providing information or providing a document or item required by a notice or direction to produce or at a hearing, on the grounds that doing so would disclose legal advice given to a person or a communication that is protected against disclosure by legal professional privilege, it would breach a secrecy provision (except if exempt) or it would be contrary to the public interest.
Protection of witnesses
A person providing information or documents for the purposes of a NACC hearing, has the same protection as a witness in a proceeding in the High Court, and the Commissioner may make arrangements to prevent any prejudice to the safety of a person or to protect a person from intimidation or harassment as a result of their responding to a notice or providing evidence at a NACC hearing. Such arrangements may include (without limitation) arrangements with the Minister, the AFP Commissioner or the head of the police force of a State or Territory.
The NACC has jurisdiction to investigate any individual who has acted in a way that possibly involves ‘serious’ or ‘systemic’ corrupt conduct (irrespective of when that conduct took place, including if it took place prior to the commencement of the NACC Act).
An individual’s departure from public office does not limit the Commission’s jurisdiction to investigate and make findings relating to corrupt conduct involving that individual while they were in public office.
Corrupt conduct is defined by the NACC Act to be conduct falling within of one or more of the following four categories, which are interchangeable and not mutually exclusive.
Type of Corrupt Conduct under the NACC Act:
Public officials may be found to have engaged in this type of corrupt conduct if they have exercised their public powers for an improper purpose. Powers that confer a public benefit may still fall within this category.
The conduct of a public official may be considered corrupt under this category if the public official knowingly engages in improper acts or omissions in their official capacity. Intention to cause detriment to others or confer a private benefit onto oneself will also be relevant.
Broad considerations apply to the determination of whether a public officer has misused information or documentation acquired by reason of their public position.
It is not necessary for the Commissioner to consider that a public official intended to benefit themselves, cause detriment to others, act dishonestly, or act with bias in making a finding that an action falls under this category of corrupt conduct. Mere misuse of information is sufficient.
Any action, by any person, which is capable of causing a public official to exercise their powers or perform their duties dishonestly or in a biased manner will qualify as corrupt conduct under this category. This includes mere planning or offering to cause a public official to act with dishonesty or bias.
Judges, staff members of the High Court or Federal Court exercising judicial functions, Royal Commissioners, the Governor-General, or the Inspector of NACC are not covered by this category.
Actions falling into any of these categories must potentially involve ‘serious’ or ‘systemic’ corrupt conduct to be the subject of a NACC investigation. Although this threshold is not defined in the NACC Act, it is expected that these terms will be treated by the Commissioner interchangeably and in accordance with their ordinary meanings. Conduct relating to or affecting a system holistically, or a pattern of conduct may be relevant.
Following the conclusion of a corrupt conduct investigation, the Commissioner must write a report setting out their opinions, findings (including the evidence upon which these are based) and their recommendations (if any, including the reasons for those recommendations). The report must state whether the Commissioner found evidence of serious or systemic corrupt conduct.
Before including in an investigation report an opinion, finding or recommendation that is critical of a Commonwealth agency, a State or Territory government entity or any other person, the Commissioner must give the head of the agency, the head of the entity or the other person concerned a statement setting out the opinion, finding or recommendation and a reasonable opportunity to respond. They may request that their response be included in the final report.
A Commissioner can make any recommendation they deem appropriate, provided the reasons for making the recommendation are set out in the report. For example, recommendations could include recommendations about actions that should be taken against a specific person, or by a specific agency to address the consequences of corrupt conduct or prevent reoccurrence.
If the Commissioner recommends that an agency take a particular action, the Commissioner may request the head of the agency to provide details of any action it has taken or proposes to take with respect to the recommendation, within a timeframe specified by the Commissioner, and the head of the agency must comply with that request. If the Commissioner is not satisfied with the response, the Commissioner may escalate the matter in parliament.
It is important to note that a finding made by the NACC that a person has engaged in corrupt conduct, does not mean that person has been found guilty under the law – a finding of guilt can only be determined by a court.
The NACC has power in certain cases, if they find evidence of a crime during the course of their investigation, to disclose that evidence to the head of a police force or a director of public prosecutions, who can then consider whether to commence a criminal investigation or prosecution.
The NACC must exclude sensitive information from their investigation report if it is not within the public interest for it to be published, for example, information that relates to Australia’s national security, defence or international relations.
The following people must be provided with the final investigation report:
- Attorney General (who is required to table the report in Parliament if public hearings were held during the investigation);
- Prime Minister (where the investigation concerned the conduct of a current Minister);
- The head of the Commonwealth Agency (where it was a member of their staff whose conduct was investigated); and
- The speaker of the House of Representatives or the President of the Senate (where the corruption involved the conduct of a Commonwealth Agency Head).
The Commissioner may make the final investigation report publicly available, if they are satisfied that it is in the public interest to do so.
A person will be in contempt of the NACC if the person:
- when served with a summons to attend a hearing
- fails to attend;
- fails to appear and report from day to day if the Commissioner has not excused or released them from further attendance;
- refuses or fails to take an oath or make an affirmation at the hearing;
- refuses or fails to answer a question at the hearing that the Commissioner requires them to answer; or
- refuses or fails to give information or produce a document or thing that is required at the hearing.
- is a legal practitioner and refuses to provide details in accordance with s 115 (details of the person who holds a privilege claim) to the Commissioner when requested;
- knowingly gives false or misleading information or documentation;
- engages in insulting or disturbing conduct at a hearing towards the Commissioner;
- obstructs or hinders a NACC staff member who is carrying out their functions, powers or duties in connection with the hearing;
- disrupts a hearing; or
- threatens a person present at a hearing.
If a person is in contempt, the Commissioner may make an application to the Federal Court or the Supreme Court of the state or territory in which the contempt occurs, to deal with the contempt. If contempt proceedings are instituted and the court finds that the person was in contempt of the NACC, the court may deal with the person as if their actions or omissions constituted a contempt of Court. It is therefore important that people understand what is required of them when they are served with a summons to attend a hearing.
If you have any inquiries about the NACC, please don't hesitate to reach out to the contacts below.