The National Anti-Corruption Commission: What will it look like?
One of Australia’s largest changes to government law enforcement in recent years will come into effect later this year when the National Anti-Corruption Commission (NACC) goes into operation. James Lavery and Sarah Colman from management consultancy Proximity outline the NACC’s mandate and key areas of governance.
On 28 September 2022 the National Anti-Corruption Commission Bill 2022 (Bill) was introduced into the House of Representatives. Having received Royal Assent, the National Anti-Corruption Commission is expected to be operational by mid-2023.
The NACC will have broad jurisdiction to investigate public sector corruption and will have prevention and education functions to improve anti-corruption efforts in the Commonwealth public sector.
The NACC has a similar mandate to the existing Australian Law Enforcement Integrity Commission (ACLEI). The NACC establishment modernises and future proofs the underpinning legislation. This is extremely important, as the Law Enforcement Integrity Commissioner Act 2006, which established ACLEI, had not kept pace with the evolving law enforcement environment.
The NACC will have an appointed Commissioner and up to three Deputy Commissioners, and a CEO. Oversight will be undertaken by an independent Inspector and Joint Parliamentary Committee.
The Bill has been well received by the public and is supported by both parties. However, the contentious issues we expect to be raised in the House of Representatives and the Senate are:
Whether hearings should be public or private
Under the Bill, hearings are private by default but can be public in exceptional circumstances. The “exceptional circumstances” test is similar to test used by the Victorian Independent Broad-based Anti-Corruption Commission. The NSW Independent Commission Against Corruption, however, does not have the “exceptional circumstances” test and frequently conducts public hearings.
Public hearings are likely to be seen as a mechanism for promoting integrity and exposing corruption.
Whether the budget and appointments should be independent
An Oversight Parliamentary Committee will deal with appointments and review the NACC’s budget. The Chair of this Committee must be a member of the Government, giving the government control of the appointments and funding of the NACC.
Jurisdiction of the NACC
NACC will have broad jurisdiction to investigate Commonwealth Ministers, Parliamentarians, persons engaged under the Members of Parliament (Staff) Act 1984, the heads and employees of Commonwealth agencies, government contractors and their employees, members of the ADF, statutory office holders and appointees, and officers and directors of Commonwealth companies.
The NACC will also have jurisdiction to investigate people or bodies providing services, exercising powers or performing functions on behalf of the Commonwealth – this includes secondees and employees of contracted service providers to an agency.
Serious or systemic corrupt conduct
The Commissioner can commence an investigation (following a public complaint, agency referral or on their own initiative) in relation to a corruption issue that in the Commissioner’s opinion could involve serious or systemic corrupt conduct.
Corrupt conduct is defined to include any conduct of a person (including a public official) that adversely affects, or could adversely affect, the honest or impartial exercise or performance of any public official’s powers, functions or duties. Corrupt conduct would also include any conduct of a public official that:
- constitutes or involves a breach of public trust;
- constitutes, involves, or is engaged in for the purpose of abuse of the person’s office as a public official;
- constitutes or involves the misuse of information acquired in the person’s capacity as a public official; or
- constitutes, involves, or is engaged in for the purpose of corruption of any other kind.
Retrospective application
The Commissioner can investigate serious or systemic corrupt conduct that occurred prior to the NACC’s establishment, the conduct of former public officials while they were public officials, and the misuse of information by a former public official that was acquired by the former public official in the course of their functions or duties as a public official.
Although the issue of retrospectivity has been frequently raised, in reality this is no different from the police who can investigate retrospectively and would, at present, be the default investigative agency for the conduct which will be the jurisdiction of the NACC.
NACC’s powers
The NACC will have extensive powers which include, but surpass, accepted policing powers including execution of search warrants, controlled operations, integrity operations and use of surveillance in accordance with the legislative requirements.
Hearings
The Commissioner will be able to hold hearings which under the Bill are private by default, but can be public in exceptional circumstances. At these coercive hearings the Commissioner can compel witness testimony (even when doing so may self-incriminate, though any self-incriminating testimony will be inadmissible in proceedings against that witness).
Search powers
The NACC’s search powers are broad and include entering any premises of a Commonwealth agency to inspect, copy, or take any extracts of documents relevant to the corruption investigation; or seize documents or anything that the NACC believes on reasonable grounds is relevant to an indictable offence and the seizure of the document is necessary to prevent its concealment, loss, or destruction. Warrants can be executed on non-government premises.
Whether or not the NACC chooses to use these powers, or to revert to court issued search warrants to maintain judicial scrutiny and accompanying protections, remains to be seen.
Investigations
The Commissioner can also direct other Commonwealth agencies to investigate a matter where the Commissioner believes serious or systemic corrupt conduct may be involved. The Commissioner may oversee investigations of Commonwealth agencies, require a Commonwealth agency to join an investigation, make comments on the agency’s reports and require follow-up measures be taken.
Findings
The Commissioner may make findings of fact in reports, including findings of corrupt conduct in investigation reports, but cannot make determinations regarding criminal liability. The Commissioner may refer briefs of evidence to the Commonwealth Director of Public Prosecutions for consideration of criminal prosecutions.
Whistle blower protections
The Bill provides protections for persons who refer allegations or information raising corruption issues and includes criminal offences for taking, or threatening to take, reprisal action that causes detriment to whistle blowers who provide information to the NACC, and immunity from criminal, administrative and civil liability.
These protections complement existing protections under the Public Interest Disclosure Act 2013 (Cth) for public officials making disclosures.
How Proximity can help
Proximity sexperts have significant experience in assisting to establish, run and respond to Royal Commissions, having worked on or in response to the Royal Commission into Institutional Responses to Child Sexual Abuse, the Royal Commission into the Protection and Detention of Children in the NT, the Royal Commission into the Prevention of Violence, abuse, neglect and exploitation of people with disability, the Victorian Crown Casino Royal Commission and the Royal Commission into Victoria’s Mental Health System.
