How can the NACC Commissioner deal with a corruption issue?
The National Anti-Corruption Commission commenced operations on 1 July 2023.
Please visit the NACC website for more information.
This page explains what options are available to the Commissioner of the NACC under the National Anti‑Corruption Commission Act 2022 (the NACC Act) and other legislation to respond to a corruption issue.
A ‘corruption issue’ is an issue of whether a person has engaged, is engaging or will engage in corrupt conduct. For more information on corrupt conduct see What is corrupt conduct?.
The Commissioner may become aware of a corruption issue in a variety of ways, including:
- through a voluntary referral from anyone in the community
- from a mandatory referral from an agency head or person with responsibilities under the Public Interest Disclosure Act 2013 (PID Act), or
- in any other way, including from another NACC investigation.
Additional information is available about the various referral pathways:
- Mandatory referrals: Commonwealth agencies
- Mandatory referrals: Intelligence agencies
- Mandatory referrals: PID Act officials
- Voluntary referrals
How the Commissioner can deal with a corruption issue
The Commissioner may deal with a corruption issue in one or more of the following ways:
- conducting a preliminary investigation to find out more information to help them decide how to deal with the issue.
- if the Commissioner is of the opinion that the issue could involve serious or systemic corrupt conduct – investigating the issue alone or with the relevant Commonwealth agency or a state or territory government entity.
- referring the issue to the Commonwealth agency that the issue relates to for them to investigate.
- referring the issue to another Commonwealth agency or state or territory government entity for consideration. The Commissioner might choose to do this, for example, if the matter could fall within the jurisdiction of another agency.
- taking no action. The NACC does not have to consider or respond to every referral it receives. The Commissioner can also decide not to take any action in relation to a referral.
If there is not enough information to decide whether a corruption issue could involve serious or systemic corrupt conduct, the Commissioner may ask the person who referred the issue to provide more information.
If the Commissioner decides that the NACC will investigate a corruption issue and later forms the view that the matter does not involve serious or systemic corrupt conduct, the NACC must stop investigating.
The Commissioner may, at any time, reconsider whether or how to deal with a corruption issue, and may investigate multiple corruption issues together.
See National Anti-Corruption Commission Act 2022, section 41
Matters dealt with by other integrity agencies
In some limited cases, the Commissioner can only investigate a matter if another integrity agency specifically refers it to the NACC. This limitation applies:
- if the matter could be audited or decided on by the Independent Parliamentary Expenses Authority (IPEA) because it relates to the conduct of parliamentarians or their staff members and concerns the use of work or travel resources, or expenses or allowances.
- if the matter could be investigated by the Australian Electoral Commission (AEC) because it concerns compliance with the Commonwealth Electoral Act 1918.
In other cases, the Commissioner can investigate a matter even if another integrity agency has already dealt with or is currently investigating the same matter. In doing so, the Commissioner must consider the standard criteria for investigations (see above) as well as whether it is in the public interest to investigate the corruption issue again.
Re-investigations and the public interest
It is up to the Commissioner to decide whether it is in the public interest to re-investigate something that another integrity agency has already investigated. The Commissioner does not have to consider anything specific when making that decision. The Commissioner could consider the following factors when deciding to re-investigate:
- how significant the corruption issue may be
- their knowledge of the other integrity agency’s investigation, such as:
- what did the other integrity agency find when they investigated the issue?
- did the other integrity agency investigate facts pertaining to the alleged corrupt conduct?
- does the NACC have new evidence?
- does the NACC think the issue has been fully investigated?
- whether another investigation would be unfair to anyone involved.
See National Anti-Corruption Commission Act 2022, section 45
How the Commissioner can investigate a corruption issue
The Commissioner may investigate a corruption issue as they see fit. This means they will make decisions about which powers to use during an investigation, and how to conduct investigations in general. The NACC Commissioner has broad powers to investigate corruption issues. These include:
- general investigatory powers (subject to the appropriate thresholds)
- additional powers in relation to Commonwealth agencies, and
- powers to hold private hearings and, in exceptional circumstances, public hearings.
The NACC’s general powers to investigate
The NACC has general powers to investigate corruption issues. Under the NACC Act, it may:
- require any person to give information, a document, or item to the NACC, by issuing a ‘Notice to Produce’
- issue a summons requiring any person to appear and give evidence at a hearing, and
- apply for search warrants to search places, vehicles and people.
The NACC also has powers under other legislation to investigate corruption. It may do any of the following:
- issue a notice under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, requiring a reporting entity or person to give information or documents to a NACC officer
- authorise covert law enforcement operations and acquire and use assumed identities under the Crimes Act 1914
- require and receive information from a cash dealer about transactions under the Financial Transaction Reports Act 1988
- apply for freezing orders on financial institution accounts under the Proceeds of Crime Act 2002
- apply for surveillance device warrants, computer access warrants and emergency authorisations under the Surveillance Devices Act 2004
- apply for warrants and telecommunications data authorisations under the Telecommunications (Interception and Access) Act 1979
- issue assistance requests and notices to designated communications providers under the Telecommunications Act 1997.
NACC powers and Commonwealth agencies
The NACC has some powers that it can only use in relation to Commonwealth agencies. These include the ability to:
- direct an agency to stop taking a specific action in relation to a corruption issue (called a ‘stop action direction’)
- require an agency to give information, a document or item to the NACC (under a ‘direction to produce’), and
- enter and search most premises occupied by Commonwealth agencies without a warrant.
Stop action directions
The Commissioner can direct a Commonwealth agency to stop taking specific action in relation to a corruption issue after consulting with the agency head. A stop action direction can prevent an agency from taking particular action in relation to the issue or from taking any action at all.
The Commissioner can only direct an agency to stop taking action if the direction is required to ensure the effectiveness of any action the Commissioner has taken, or might take, in relation to the corruption issue. For example, to avoid prejudicing the NACC’s corruption investigation. The Commissioner must withdraw the direction as soon as it is no longer required.
See National Anti-Corruption Commission Act 2022, section 43
Example: a stop action direction
An agency has initiated an investigation into a suspected breach of the APS Code of Conduct. In the course of the investigation, the agency head becomes aware of suspected corrupt conduct. The alleged corruption may result in significant financial loss to the agency and the agency head therefore suspects the matter could be serious corrupt conduct.
The agency head refers the issue to the NACC. The NACC Commissioner decides it raises a corruption issue that could involve serious or systemic corrupt conduct and that the NACC will investigate the matter.
The Commissioner issues a stop action direction in relation to the agency's Code of Conduct investigation to avoid any prejudice to the NACC’s investigation. The agency is unable to continue its Code of Conduct investigation for as long as the stop action direction remains in place.
Directions to produce
If the Commissioner suspects on reasonable grounds that a Commonwealth agency has information, documents or items relevant to a corruption investigation, the Commissioner may direct the head of that agency to give them to a specified NACC officer.
Agency heads must comply with directions to produce as soon as practicable. If they do not provide the information, document or item, the NACC may issue a direction to produce (see below) which carry criminal penalties for non-compliance.
See National Anti-Corruption Commission Act 2022, section 57
Example: a direction to produce
The Commissioner decides to investigate an allegation of serious corrupt conduct involving a staff member of a Commonwealth agency. Based on the information the NACC already has about the matter, the Commissioner suspects that the staff member’s emails during the time the conduct allegedly took place would be relevant to the investigation.
The Commissioner issues the agency head with a direction to produce these emails, despite not knowing exactly what they contain. It is enough that the Commissioner reasonably suspects that the emails exist and may be relevant to the investigation.
Entry and search of Commonwealth premises
Authorised NACC officers may enter and search most places occupied by Commonwealth agencies without a search warrant as part of a corruption investigation. They will be able to do any of the following:
- enter any place occupied by a Commonwealth agency at any reasonable time of day
- carry on a corruption investigation at that place
- inspect any documents relevant to the investigation that are kept in that place
- make copies or take extracts from any documents, and
- seize documents or items at that place. This applies if the authorised NACC officer suspects on reasonable grounds that it is relevant to an indictable offence, and seizure will prevent its:
- loss or destruction, and
- use in committing an indictable offence.
There are certain Commonwealth places that NACC officers may not enter or search without a search warrant. These include the following:
- premises occupied by the High Court or a federal court
- any place in the Parliamentary precincts, including parliamentary offices and departments located in Parliament House
- parliamentarians’ electorate offices made available under the Parliamentary Business Resources Act 2017. This includes the Commonwealth Parliamentary Offices in most capital cities that parliamentarians use for their parliamentary work or as their electorate offices.
- premises occupied by the ABC or SBS
- certain Defence Force areas under the Defence (Special Undertakings) Act 1952, unless with Ministerial approval, and
- a place the Attorney-General is satisfied would prejudice the security or defence of the Commonwealth if NACC officers entered without a search warrant and investigated there. In this case, the Attorney-General may declare that unless the NACC has a search warrant, that place can only be entered with the approval of the Attorney-General, in line with any conditions they impose.
The NACC may still apply for a warrant to enter and search these places or do so with the agreement of the relevant agency head or Minister, as appropriate.
See National Anti-Corruption Commission Act 2022, section 117
Investigations and hearings
The Commissioner may choose to hold hearings to investigate a corruption issue. During a hearing, the Commissioner will question witnesses in order to gather information and evidence for the purposes of supporting an investigation. Unlike a court hearing, the purpose of a NACC hearing is not to decide an issue, but to progress an investigation by assisting the Commissioner to discover facts that may lead to further action being taken.
Convening a hearing will enable the Commissioner to obtain information that would not otherwise be available – in particular if the information is something that only that person would know – or that could only be obtained after long and complex investigations.
Summons to attend a hearing
The Commissioner may request a person to attend a hearing and give evidence if they suspect on reasonable grounds that the person has evidence that is relevant to a corruption investigation. This must be done via a document called a summons. The Commissioner may summon any person, including:
- a person whose conduct is being investigated
- another person who may have relevant evidence.
A person who receives a summons must attend the hearing. At the hearing they are required to:
- take an oath or affirmation that their evidence will be truthful
- answer all questions truthfully (it is an offence to give false or misleading evidence)
- produce documents or other things as required by the Commissioner.
It is an offence for a person who is given a summons to:
- fail to attend the hearing
- fail to give required information or produce a required document or item at a hearing
- conceal or destroy a document or item that is, or is likely to be, required under a notice to produce at a hearing
- knowingly give false or misleading evidence, information or documents at a hearing
- obstruct or hinder a hearing, or
- threaten a person at a hearing.
A person who is summoned to give evidence at a hearing may consult and be represented by a legal practitioner. Financial assistance to meet the costs of legal representation will be available in appropriate cases. More information about how to apply for legal financial assistance will be released shortly.
See National Anti-Corruption Commission Act 2022, sections 62 to 72
Private and public hearings
A hearing must be held in private, unless the Commissioner decides to hold the hearing, or part of the hearing, in public. In deciding whether to hold a hearing in public, the Commissioner may consider:
- the extent to which the corruption issue could involve corrupt conduct that is serious or systemic
- whether certain evidence is confidential, or relates to the commission (or alleged or suspected Commission) of an offence
- any unfair prejudice to a person’s reputation, privacy, safety or wellbeing that may be caused
- whether a person giving evidence has a particular vulnerability, such as working directly to someone in a position of power, and
- the benefits of exposing corrupt conduct to the public.
Some evidence must be given in a private hearing. This applies to:
- evidence that would breach a secrecy provision if disclosed
- legal advice, or other communications, protected against disclosure by legal professional privilege
- information defined as sensitive information under the NACC Act (such as information which could prejudice the security of Australia or disclose Cabinet decisions or deliberations)
- intelligence information, and
- information about which the Attorney-General has issued a certificate prohibiting public disclosure on specific grounds under the NACC Act.
See National Anti-Corruption Commission Act 2022, sections 73 to 77
Refusing to give evidence or assist a NACC investigation
Under Australian law, a person is sometimes able to refuse to give information or evidence during an investigation or proceeding. Some of these privileges will not apply during a corruption investigation under the NACC Act.
Normally, a person can refuse to give evidence relating to an offence they may have committed. This is known as the privilege against self-incrimination.
However, the NACC Act provides that a person who receives a notice or direction to produce or a summons to appear at a hearing must give information, documents, items to the NACC even if it may relate to an offence they have or might have committed and it might incriminate them or expose them to a penalty.
As an important safeguard, the incriminating information will not be admissible in evidence against that person in a criminal, civil penalty or confiscation proceeding.
See National Anti-Corruption Commission Act 2022, section 113
Public interest grounds
Normally, a person cannot be required to give evidence or disclose certain information to an investigation or inquiry where:
- the information is protected by legal professional privilege
- disclosing the information would breach a secrecy obligation under another law, or
- the person claims an immunity because disclosing the information is not in the public interest.
However, the NACC Act provides that a person cannot generally claim these privileges, obligations or immunities as legitimate reasons to refuse to comply with a notice or direction to produce, a summons to appear or a requirement to answer a question in a hearing. This means the person must still give information, documents, things or evidence as the NACC requires, even if doing so would:
- disclose legal advice given to a person or a communication that is protected by legal professional privilege
- breach a secrecy provision under another law (with exceptions as outlined below), or
- otherwise be contrary to the public interest.
A person may still refuse to provide information or evidence:
- on the basis that doing so would breach one of the limited ‘exempt secrecy provisions’ provided in the NACC Act
- if the person is a journalist and the information or evidence relates to legal advice given or communications made for the purpose of, or during, a person’s work as a journalist.
A person may still claim legal professional privilege over information, documents or things in circumstances outside of the NACC investigation.
See National Anti-Corruption Commission Act 2022, section 114
Protections for people involved in a NACC investigation
The NACC Act provides a range of protections to people who provide evidence or information to the NACC. These protections include immunity from civil, criminal and administrative liability in relation to information a person provides to the NACC (unless the person knowingly provides false or misleading information), and criminal penalties for anyone taking, or threatening to take reprisal action against them.
The protections under the NACC Act are complemented by the framework for managing public interest disclosures within the Commonwealth public sector under the Public Interest Disclosure Act 2013.
See National Anti-Corruption Commission Act 2022, part 4
In addition, the Commissioner will be able to make a public statement at any time, including to avoid damage to a person’s reputation – for example, to clarify the capacity in which a person is assisting the NACC’s investigation.
The NACC Act also includes specific measures to protect the identities of journalists’ confidential informants. These protections are particularly relevant given the ABC and SBS fall within the NACC’s jurisdiction and are intended to uphold the public interest associated with a free press. The protections mean that a journalist, their employer and other people employed by the journalists’ employer or assisting the journalist in a professional capacity cannot be required to provide information to the NACC that would disclose the identity of the informant.
For further information and resources, visit NACC downloadable resources.