National Anti-Corruption Commission Legislation
The Australian Government committed to legislating a powerful, transparent and independent National Anti-Corruption Commission by the end of 2022.
On 30 November 2022, the National Anti-Corruption Commission Act 2022 and National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 were passed by the Australian Parliament. These Acts received Royal Assent on 12 December 2022.
The legislation provides for the establishment of the Commission, and for the transitional arrangements for the existing Australian Commission for Law Enforcement Integrity to be subsumed into the Commission.
The National Anti-Corruption Commission 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.
To find out more about the legislation, visit the APH website.
For an overview of the government's design principles and the legislation, visit the NACC publications page.
Establishment of the Commission
The government expects the Commission will begin operations in mid-2023. The Attorney General's Department and the Australian Commission for Law Enforcement Integrity are working closely to achieve this.
Further information to support agencies ahead of the establishment of the Commission will be provided in the coming months.
Independence from Government
The Commission will operate independently of government.
The Commissioner and Inspector will have discretion in how they perform their roles. This includes whether to commence an investigation, and how they will conduct their investigations.
Similar to a federal judge, the Commissioner, Deputy Commissioners and Inspector will have security of tenure. Their appointment will be approved by a Parliamentary Joint Committee, and the Commissioner will be appointed for a single, non-renewable, fixed 5-year term.
Jurisdiction of the Commission
The Commission will have broad jurisdiction to investigate serious or systemic corruption, including criminal and non-criminal conduct and conduct that occurred before it was established.
The Commission will be able to investigate the conduct of public officials and those who seek to corrupt public officials. This includes the power to investigate ministers, parliamentarians and their staff, statutory office holders, employees and contractors of government agencies and contracted service providers.
There will also be appropriate coverage of third parties, including those whose conduct adversely affects, or could adversely affect, the honesty or impartiality of the performance of a public official's functions.
The Commission will be able to undertake preliminary investigations in order to determine the existence or nature of a corruption issue and whether it could involve serious or systemic corrupt conduct. It will be able to investigate issues that could involve serious or systemic corruption and to refer corruption issues it does not investigate to other agencies to consider or investigate as appropriate.
Matters such as external fraud against the Commonwealth that do not involve the corruption or attempted corruption of public officials will continue to be dealt with by the AFP and other agencies.
Referring issues to the Commission
Any person will be able to refer a corruption issue to the Commission. The Commission could also commence an investigation on its own motion.
Commonwealth agency heads will have mandatory referral obligations where they suspect an issue could involve serious or systemic corrupt conduct.
Protections for disclosers
The legislation provides a range of protections for people who disclose information or evidence to the Commission.
These protections provide immunity from civil, criminal and administrative liability for those making disclosures, and criminal penalties for anyone taking, or threatening to take reprisal action against a whistleblower or witnesses assisting the Commission.
Public officials making disclosures to the Commission will also be able to access protections under the Public Interest Disclosure Act 2013.
The Commission will have discretion in how it deals with matters referred to it and will not be subject to ministerial direction.
It could investigate serious or systemic corruption on its own initiative (alone or jointly with another agency), refer an allegation to another agency, or take no action.
The Commission will have a suite of investigative powers similar to those of a Royal Commission.
These powers include holding hearings, entering and searching Commonwealth premises without a warrant, telecommunications interception, surveillance device and search warrant powers and powers to obtain assistance from telecommunications and technology industry participants.
The Commissioner will have discretion to hold a hearing in public if satisfied it will be in the public interest and exceptional circumstances justify doing so.
A witness will be unable to refuse to answer a question or provide information to the Commission on the basis that the response or information is self-incriminatory. However, in most circumstances, such self-incriminatory information will not be admissible in a criminal trial. The legislation will preserve parliamentary privilege.
The Commission will be able to obtain legally privileged information, which is consistent with the powers available to the NSW Independent Commission Against Corruption.
Protections for journalists
The legislation contains a range of safeguards to protect the identities of journalists' informants and uphold the public interest associated with a free press.
Journalists, their employers and those assisting a journalist in their professional capacity will not be required to do anything under the Act that would disclose the identity of an informant or allow it to be found out.
Legal professional privilege will be retained for legal advice given and communications made in the course of a person's work as a journalist and powers for the Commission to conduct warrantless searches of Commonwealth agencies will not apply to ABC or SBS premises.
An additional test will apply where a search warrant is sought in relation to a journalist, their employer or premises occupied or controlled by a journalist or their employer. In those circumstances, the issuing authority must balance the public interest of issuing a search warrant against the public interest in protecting the source's identity.
Findings of fact and reporting
The Commissioner must prepare a report on a completed investigation and provide it to the Attorney-General.
The Commissioner will be able to publish reports where it is in the public interest to do so. The Commissioner's reports must also be tabled in Parliament if the Commissioner has held a public hearing in the course of an investigation.
The Commissioner can make recommendations and findings of fact, including a finding of corrupt conduct or a recommendation of disciplinary action.
A person or agency subject to an adverse opinion, finding or recommendation will have an opportunity to respond before the report is tabled or published.
A person subject to a critical finding can also apply for judicial review under the Administrative Decisions (Judicial Review) Act 1977.
The Commissioner cannot make determinations of criminal guilt or liability. Only a court can determine criminal liability. The Commissioner can refer evidence of an offence to the Commonwealth Director of Public Prosecutions for further consideration.
Corruption education and prevention
The Commission will also have a prevention and education function.
The Commission will have discretion to conduct public inquiries into corruption risks, vulnerabilities and measures to prevent corruption in Commonwealth agencies.
It will be able to provide education and raise awareness of corruption issues, and make recommendations to enhance both systemic reform and entity-specific corruption prevention arrangements.
Oversight of the Commission
The Commission will be overseen by a Parliamentary Joint Committee and an Inspector.
The Parliamentary Joint Committee will oversee the Commission's performance, including its budget and finances. It will also approve the appointment of the Commissioner, Deputy Commissioners and the Inspector, to ensure they have the confidence of the Parliament.
The Parliamentary Joint Committee will have a function to review the Commission's budget and finances and report to the Parliament on whether its resources are sufficient to effectively perform its functions and whether its budget should be increased.
The Inspector of the Commission will investigate corruption within the Commission, deal with complaints involving the conduct of the Commission or its staff, audit the Commission's compliance with Commonwealth laws and detect agency maladministration and officer misconduct.
Find out more
For more information or assistance, email NACCenquiries@ag.gov.au