Who can the NACC investigate?

The National Anti-Corruption Commission commenced operations on 1 July 2023.

Please visit the NACC website for more information.

This page replicates the content of a downloadable fact sheet in an accessible format. To download, see NACC downloadable resources.

To investigate corruption, the Commissioner of the National Anti-Corruption Commission (NACC) must have information raising the possibility that a person has done or could do something that:

  1. involves, or could involve, a public official
  2. is, or could be, corrupt conduct under the NACC Act, and
  3. could be serious or systemic corrupt conduct.

This page explains who will be a public official under the National Anti-Corruption Commission Act 2022 (NACC Act). This is important because the NACC will only be able to investigate corrupt conduct that involves a public official in some way. People who can be investigated by the NACC are ‘in the NACC’s jurisdiction’.

For more information about corrupt conduct, see What is corrupt conduct?

Who is a public official?

Many people are public officials under the NACC Act. Most people who work for, exercise the powers of, or perform functions for, the Australian Government or the Australian Parliament are likely to be considered public officials under the NACC Act.

The NACC Act specifically says that the following people are public officials:

  • members and senators of the Australian Parliament, including ministers, and the people who work for them
  • staff members of Commonwealth agencies including employees of Australian Government departments, Commonwealth companies and statutory bodies and contracted service providers (including consultants, independent contractors, labour-hire contractors, and others providing contracted services to the government)
  • staff members of the NACC.

See National Anti-Corruption Commission Act 2022, sections 10-13
and the Explanatory Memorandum at paragraphs 2.95-2.117.

The NACC will only be able to investigate matters relating to Australian Government public officials. It will not be able to investigate concerns relating to state, territory or local government officials. Each state and territory has a similar integrity or anti-corruption commission that may be able to investigate those matters.

It is important to remember that the NACC will be able to investigate any person, even if they are not a public official, so long as they do something that might cause a public official to carry out their official role in a dishonest or biased way.

Staff members of Commonwealth agencies

If an organisation is a Commonwealth agency, then the head of the agency, its employees, contractors and consultants are likely to be public officials under the NACC Act.

What is a Commonwealth agency?

Most organisations controlled or owned by the Commonwealth, or that perform official functions for the Commonwealth, are Commonwealth agencies under the NACC Act. For example, the following are all Commonwealth agencies under the NACC Act:

  • departments of state and parliamentary departments – like the Attorney-General’s Department or the Department of Parliamentary Services
  • other entities prescribed under the Public Governance, Performance and Accountability Act 2013 – like the Australian Taxation Office, the Australian Defence Force or the Australian Federal Police
  • bodies corporate established under Commonwealth legislation – like the Commonwealth Scientific and Industrial Research Organisation (CSIRO) or land councils
  • Commonwealth companies – like NBN Co – and their subsidiaries
  • the High Court (excluding judges).

Under the NACC Act, the offices of parliamentarians are also Commonwealth agencies.

Under the NACC Act, the NACC will not be considered a Commonwealth agency. However, its staff will be public officials. The NACC and its staff will be subject to special oversight arrangements to ensure that any allegations of corrupt conduct involving the NACC can be properly investigated.

See National Anti-Corruption Commission Act 2022, section 11
and the Explanatory Memorandum at paragraphs 2.118-2.150.

Who is a staff member of a Commonwealth agency?

Most people who do work for a Commonwealth agency will be staff members of that agency for the purposes of the NACC’s jurisdiction. Only very limited exceptions apply.

This means a person can be a staff member of a Commonwealth agency, and therefore a public official, even if they are not directly employed by that agency.

Staff members of Commonwealth agencies include:

  • employees of Commonwealth departments, Commonwealth companies and other statutory bodies
  • agency heads
  • people who are responsible for delivering goods or services to a Commonwealth agency under a Commonwealth contract (known as contracted service providers)
  • people who work for parliamentarians under the Members of Parliament (Staff) Act 1984, including consultants
  • secondees to Commonwealth agencies
  • officers and employees of the federal courts and the High Court, excluding judges
  • other people who exercise powers or perform functions under certain Commonwealth laws.

See National Anti-Corruption Commission Act 2022, section 12.

Contracted service providers

Contracted service providers

People who are responsible for providing goods or services (or who carry out functions) under a Commonwealth contract will be public officials under the NACC Act. These people, or the organisations they work for, are known as contracted service providers.

See National Anti-Corruption Commission Act 2022, section 13.

A Commonwealth contract is a contract, arrangement, agreement, deed or understanding:

  • between the Commonwealth or a Commonwealth agency and another organisation or individual
  • under which goods or services are to be provided to the Commonwealth, to a Commonwealth agency, or in connection with the activities of the Commonwealth or an agency.

A person will be a contracted service provider within the NACC’s jurisdiction if they are responsible for carrying out functions, or providing goods or services, under or in connection with the Commonwealth contract. In that case, the person will be treated as a staff member of the Commonwealth agency that is responsible for the contract.

This will include people who are responsible for carrying out functions or providing goods or services under a Commonwealth contract (for example, a consultant) because they are:

  • a party to the contract themselves
  • an employee of a contracted service provider who is responsible for doing something required by the Commonwealth contract
  • a subcontractor to a contracted service provider who is responsible for doing something required by the Commonwealth contract.

Employees of a contracted service provider who do not have responsibilities under the Commonwealth contract are not considered staff members of the Commonwealth agency.

Examples of people who will be staff members of a Commonwealth agency as contracted service providers:

  • An independent contractor is engaged by a Commonwealth agency to review the agency’s recruitment and human resources policies. The Commonwealth contract is the contract between the agency and the independent contractor. The contractor is a staff member of the agency under the NACC Act as they are a party to the Commonwealth contract, and are responsible for providing goods or services under that contract.
  • A Commonwealth agency contracts an ICT business to upgrade their software, hardware and equipment. That ICT business subcontracts 3 individuals as independent contractors to go into the agency and actually do the upgrades. The Commonwealth contract is the contract between the agency and the ICT business. The 3 subcontractors are staff members of the agency under the NACC Act, as they are a party to a contract with the ICT business and are responsible for providing the ICT upgrades under the Commonwealth contract.
  • A labour hire firm is contracted to provide workers for a Commonwealth agency. The labour hire firm directly employs people who it then sends to work for the agency. The Commonwealth contract is the contract between the agency and the labour hire firm – which means the labour hire firm is a contracted service provider. The employees of the labour hire firm who are sent to work at the agency are staff members of the agency under the NACC Act as they are employees of a contracted service provider (the labour hire firm), and are responsible for providing goods or services for the Commonwealth contract.
  • A consulting firm is contracted to advise a Commonwealth agency on its upcoming restructure. Employees and officers of the consulting firm are responsible for preparing this advice for the agency as part of their regular duties. The Commonwealth contract is the contract between the agency and the consulting firm; the consulting firm is a contracted service provider under the NACC Act. The employees and officers of the firm who are responsible for providing the restructure advice for the agency are staff members of the agency under the NACC Act, as they are employees or officers of the contracted service provider (the consulting firm) who are responsible for providing goods or services for the Commonwealth contract.
  • A Commonwealth agency engages a private company to provide call centre services to the public on its behalf. The employees and individual of that company who deliver those services are responsible for providing services in connection with the activities of the Commonwealth agency and are staff members of the agency under the NACC Act.

Examples of people who will not be staff members of a Commonwealth agency as contracted service providers:

  • A labour hire firm is contracted to provide contractors or workers for a Commonwealth agency. The labour hire firm also provides people to work for clients who are not Commonwealth agencies. The subcontractors or workers working for non-Commonwealth clients are not staff members under the NACC Act as they are not responsible for providing goods or services for the Commonwealth contract.
  • A consulting firm is contracted to advise a Commonwealth agency on its upcoming restructure. Some employees and officers of the firm are not providing restructure advice under the Commonwealth contract. Those employees and officers are not staff members of the agency as they are not responsible for providing goods or services for the Commonwealth contract.

Can other governments be contracted service providers?

Can other governments be contracted service providers?

The Australian Government often enters agreements or contracts with other governments to deliver goods or services. For example, the Australian Government might agree to pay money to a state government to deliver services to a specific group of people in that state.

The NACC Act specifically says that these contracts are not Commonwealth contracts and that a government of a state, territory or foreign country is not a contracted service provider for a Commonwealth contract. This means any employee or subcontractor of these governments would also not be a contracted service provider.

See National Anti-Corruption Commission Act 2022, subsection 13(3).

Secondees

Secondees to a Commonwealth agency are considered staff members of that agency, and therefore are public officials who can be investigated by the NACC.

Generally, an individual will only be a staff member of a single agency. However, there may be some circumstances where an individual is deemed to be a staff member of multiple agencies. For example, secondees from one Commonwealth agency to another may be considered a staff member of both their home agency and the host agency.

In such cases, this will not affect a secondee’s capacity as a public official. But it may have implications for each agency’s mandatory reporting obligations. More information on mandatory referral obligations will be published on this website soon.

Parliamentarians and their staff

Parliamentarians, including ministers, are considered to be public officials under section 10 of the NACC Act. Parliamentarians re-contesting elections will still be treated as parliamentarians under the NACC Act during the election period (while the relevant House of Parliament is dissolved).

People who work for parliamentarians, including as consultants, are also public officials under the NACC Act, and the parliamentarian for whom they work is considered to be their ‘agency head’. This means that parliamentarians will have mandatory obligations to refer corruption issues to the NACC relating to the people who work in their parliamentary office. More information on mandatory referral obligations will be published soon.

Who is not a public official?

For the purposes of the NACC Act, the following are not public officials subject to the NACC’s jurisdiction:

  • judges
  • the Governor-General and Deputy Governor-General
  • a Royal Commissioner
  • the Inspector of the NACC or a person assisting the Inspector
  • foreign governments (including contracted service providers).

Learn more

For further information and resources, visit NACC downloadable resources.

Related websites

National Anti-Corruption Commission