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Anti-corruption
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These documents outline the government's design principles for the National Anti-Corruption Commission, and provide an overview of the structure and key features of the Commission and NACC legislation

NACC publications

This section replicates the content in the NACC Design Principles download in an accessible form.

Broad jurisdiction

The National Anti Corruption Commission will have broad jurisdiction to investigate Commonwealth ministers, public servants, contractors, statutory office holders, government agencies, parliamentarians, and staff of politicians and any person whose conduct adversely affects the honest or impartial exercise of a public official's functions.

Independence

The Commission will carry out its functions independently of government, with discretion to commence inquiries into serious or systemic corruption on its own initiative or in response to referrals, including from whistleblowers and complaints from the public. To ensure the commission's independence, the commissioner and any deputy commissioner will serve for a fixed term and have security of tenure comparable to that of a federal judge.

Oversight

The Commission will be overseen by a statutory Joint Standing Committee of the Parliament, empowered to require the commission to provide information about its work. The committee will be responsible for confirming the commissioners nominated by the government.

Retrospective powers

The Commission will have the power to investigate allegations of serious or systemic corruption that occurred before or after its establishment.

Public hearings

The Commission will have the power to hold public hearings where the commission determines it is in the public interest and exceptional circumstances justify doing so.

Findings

The Commission will be empowered to make findings of fact, including a finding of corrupt conduct, but not to make determinations of criminal liability. Findings that could constitute criminal conduct will be referred to the Australian Federal Police or the Commonwealth Director of Public Prosecutions for further consideration.

Procedural fairness

The Commission will operate with procedural fairness and its findings will be subject to judicial review.

This section replicates the content in the Overview of the NACC download in an accessible form.

Structure

Commission

The National Anti-Corruption Commission will be led by a Commissioner and up to 3 Deputy Commissioners, with support from a Chief Executive Officer.

Oversight

The Commission will be overseen by a Parliamentary Joint Committee and an Inspector.

Broad jurisdiction

The Commission can investigate 'serious' or 'systemic' corrupt conduct:

  • by Commonwealth ministers, parliamentarians and their staff, statutory office holders, staff of Commonwealth entities and companies, and contracted service providers;
  • by any person that adversely affects the honest or impartial exercise of a public official's functions or duties; and
  • whether criminal or non-criminal, and occurring before or after the commission's establishment.

Independence from government

The Commission's independence will be reinforced by:

  • security of tenure for the Commissioner and up to 3 Deputy Commissioners, whose appointments must be approved by a Parliamentary Joint Committee
  • the ability to conduct own-motion investigations and to receive referrals from any source (including mandatory referrals from agency heads)
  • discretion in dealing with corruption issues.

The Commission's discretion in dealing with corruption issues includes:

  • taking no action;
  • investigating, either solely or jointly with another agency
  • referring to another agency (for investigation or information).

Comprehensive powers

The Commission will have a full range of investigation powers, including to:

  • enter Commonwealth premises and require Commonwealth information without a warrant
  • compel production of documents and things and search premises
  • conduct private hearings and, if it is in the public interest and exceptional circumstances justify doing so, public hearings
  • intercept telecommunications and use surveillance devices.

Accountability and reporting

The Commission will be required to prepare reports on its investigations, which:

  • must be provided to the minister and, where a public hearing has been held, tabled in Parliament
  • can include findings of corrupt conduct (but not findings of criminal guilt).

The Commission can also publish reports or other information relevant to its activities if satisfied it is in the public interest to do so.

Protections

Protections for whistleblowers and safeguards against undue reputational damage will include:

  • offences for reprisal action, and protection for persons making a disclosure to the commission and Inspector under their legislation and the Public Interest Disclosure Act 2013
  • protections for journalists and their sources
  • provision for the commissioner to make public statements to clarify the status of those appearing as witnesses, and to make findings that a person has not engaged in corruption
  • limitations on investigating a matter already dealt with by another integrity agency
  • procedural fairness afforded to persons subject to potential adverse findings, and availability of judicial review.

Oversight

The Commission will be overseen by:

  • a Parliamentary Joint Committee, which will review the Commission's performance and budget, and approve Commissioner, Deputy Commissioner and Inspector appointments
  • an Inspector, who will be an independent officer of Parliament able to investigate any corruption issues involving the Commission, audit the operations of the Commission and handle other complaints.

This section replicates the content in the Detailed Overview of the NACC Bill download in an accessible form.

Broad jurisdiction

The National Anti-Corruption Commission will be able to investigate if the Commissioner is of the opinion that an issue could involve corrupt conduct that is serious or systemic.

Corrupt conduct is broadly defined as:

  • any conduct of any person (including a public official, but extending to third parties) that adversely affects, or that could adversely affect, either directly or indirectly:
  • the honest or impartial exercise of any public official's powers; or
  • the honest or impartial performance of any public official's functions or duties;
  • any conduct of a public official that constitutes or involves a breach of public trust;
  • any conduct of a public official that constitutes, involves or is engaged in for the purpose of abuse of the person's office as a public official; or
  • any conduct of a public official that constitutes or involves the misuse of information or documents acquired in the person's capacity as a public official.

A person will not engage in corrupt conduct, if they claim allowances or entitlements, or use public resources in accordance with the Parliamentary Business Resources Act 2017 or the Members of Parliament (Staff) Act 1984.

A person will also not engage in corrupt conduct, if they engage in political activity and their conduct does not involve or affect the exercise of a power, or the performance of a function or duty, by a public official, or the use of public resources.

'Serious or systemic' will not be defined and those terms will have their ordinary meaning as applied by the Commissioner.

Broad definition of 'public official' covering Commonwealth ministers, public servants, statutory office holders, Commonwealth entities and companies, parliamentarians and their staff, and government contractors.

The Commission will have the power to investigate allegations of serious or systemic corruption that occurred before or after its establishment.

Independence

The Commission will be able to investigate on its own motion and receive complaints or referrals from any source, including the public.

  • Commonwealth agency heads will have mandatory referral obligations to refer corruption issues to the Commission where the agency head suspects the corrupt conduct could be serious or systemic.
  • The heads of intelligence agencies will be able to make a mandatory referral either directly to the Commission or to the Inspector-General of Intelligence and Security (the IGIS). If the agency head makes a referral to the IGIS, the IGIS will be required to refer it to the Commission if the IGIS is satisfied that it is likely to involve serious or systemic corruption.

The Commission will have discretion as to how it deals with a corruption issue.

  • The Commission will be able to investigate a corruption issue alone or jointly with a Commonwealth, state or territory agency if of the opinion that the issue could involve corrupt conduct that is serious or systemic.
  • The Commissioner will also be able to:
    • refer the corruption issue back to the responsible agency, for internal investigation;
    • refer the corruption issue to a Commonwealth, state or territory agency for consideration; or
    • take no action.
  • If the Commission refers a matter back to the responsible agency for investigation, the Commission will be able to oversee the investigation.

The Commissioner and Deputy Commissioners will have security of tenure:

  • Appointments will be made by the Governor-General (on the recommendation of the minister) after the recommended candidate has been approved by the Parliamentary Joint Committee.
  • Limited terms:
    • The Commissioner will have a single, non-renewable fixed term of 5 years.
    • Deputy Commissioners will be appointed for up to two terms of 5 years each.
  • Removal from office on the grounds of misbehaviour or physical or mental incapacity will require a request of each House of the Parliament. The appointments must also be terminated if the person holding the office becomes bankrupt.

Full suite of powers

The Commission may hold hearings for the purpose of investigating a serious or systemic corruption issue.

  • Hearings will be required to be held in private unless the Commissioner is satisfied that it is in the public interest to hold a hearing, or part of a hearing, in public, and that exceptional circumstances justify doing so.
  • Certain evidence would be required to be given in private, including where disclosing the information would disclose legal advice or breach a secrecy provision, or where it relates to an intelligence agency.

The Commission will be able to direct Commonwealth agencies to provide information, documents or things if they are relevant to a corruption investigation and will have power of entry to Commonwealth premises (with limited exceptions, including for courts and special Defence premises).

Notice to produce powers will be available where the Commissioner has reasonable grounds to suspect that a person has information, a document or thing relevant to a corruption investigation. These powers will not be limited to Commonwealth agencies and may be used for private sector entities or members of the public.

The Commission will be able to use the search powers under the Crimes Act 1914 to enter premises and seize evidential material (being material relevant to an offence or material that, if required to be produced under a notice to produce, would be lost or destroyed).

Consequential amendments will provide for the Commission to be able to access other law enforcement powers, including telecommunications interception, surveillance devices, computer access, controlled operations, and assumed identities.

The Federal Court will be able to order a person to deliver a travel document in order to ensure that a person cannot leave Australia to avoid giving evidence at a hearing or producing a document or thing that is relevant to the investigation.

The Commission will have preliminary inquiry powers allowing it to require the production of information to allow it to determine whether a referral or complaint involves corrupt conduct and whether it could be serious or systemic.

Reporting

The Commission will be required to prepare a report on each corruption investigation, which must set out:

  • the Commissioner's findings or opinions on the corruption issue;
  • a summary of the evidence and other material on which those findings or opinions are based; and
  • any recommendations the Commissioner sees fit to make and the reasons for those recommendations.

The Commission will be prevented from making findings of criminal guilt.

The Commission will provide reports to the minister, unless the report involves the conduct of the minister. In this case, the report would go to the Prime Minister.

Reports must be tabled in Parliament if the Commission has held a public hearing. The Commissioner will also be able to publish reports if they are satisfied it is in the public interest to do so.

The Commission must exclude certain sensitive information from reports and must consult with relevant Commonwealth entities in deciding whether the information is sensitive. Sensitive information that is excluded from an investigation report will still be provided to the minister in a separate, protected information report.

Oversight

The Commission will be overseen by a Parliamentary Joint Committee on the National Anti-Corruption Commission (PJC-NACC). The PJC-NACC's functions will include:

  • considering proposed recommendations for certain appointments
  • examining reports tabled in Parliament relating to the Commission and Inspector
  • examining trends and changes in corruption and reporting to Parliament on desirable changes to the functions, powers, procedures, structure and staffing of the Commission or Inspector
  • reviewing the sufficiency of the Commission's budget and finances and reporting on the outcome of that review.

The PJC-NACC would not be able to review operational decisions, methods or activities.

There will be an Inspector of the National Anti-Corruption Commission, who will be an independent officer of the Parliament.

The Inspector will:

  • be appointed by the Governor-General, on the minister's recommendation (which must be approved by the PJC-NACC)
  • hold office for a single period not exceeding 10 years
  • have the same security of tenure as the Commissioner and Deputy Commissioners.

The Inspector's functions are to:

  • investigate allegations of serious or systemic corrupt conduct within the NACC
  • investigate complaints about the NACC
  • audit the Commission's operations to monitor compliance with Commonwealth laws and detect agency maladministration and officer misconduct.

The Inspector will be able to conduct joint investigations with the Commissioner, and with the AFP or a police service of a state or territory.

Protections – whistleblowers and reputational damage

There will be protections for whistleblowers who provide information to the Commission:

  • There will be protection from civil, criminal or administrative liability (including disciplinary action) for anyone providing information to the Commission about a corruption issue.
  • There will be criminal offences for taking, or threatening to take, reprisal action against anyone providing information to the Commission.
  • Public officials will be able to make disclosures directly to the Commissioner and have protections under the existing public interest disclosure scheme.
  • Where a corruption issue has previously been investigated by a Commonwealth integrity agency, the Commission will only be able to conduct a further corruption investigation if the Commissioner is satisfied it is in the public interest to do so.
  • Where a corruption issue has been, or could be, reviewed or audited by the Independent Parliamentary Expenses Authority (IPEA), or has been, or could be, investigated by the Australian Electoral Commission (AEC), the Commission will only be able to conduct its own corruption investigation if IPEA or the AEC has referred the issue to the Commission accompanied by a statement setting out why IPEA or the AEC considers the issue could be serious or systemic.

The Commissioner may make public statements during an investigation.

The Commissioner will also have powers and obligations to make statements, or include statements in reports, to avoid damage to the reputation of those who have been investigated or who have given evidence at a hearing. For example:

  • Where a person has been investigated, and the Commissioner forms the opinion that they have not engaged in corrupt conduct, the Commissioner must include a statement to that effect in their report at the completion of the investigation.
  • Where the person has given evidence at a hearing and is not the subject of any findings or opinions in relation to the investigation, the Commissioner may include a statement to that effect in their report at the completion of the investigation, if they are satisfied it is appropriate and practicable to do so to avoid damage to the person's reputation.

The Commission must give procedural fairness to individuals or agencies who will be the subject of adverse opinions or findings in the report, and judicial review of findings will be available. They must include a summary of the relevant submissions made by the person or agency in the report, if requested.

Prevention and education

The Commission will have prevention and education as part of in its functions, and will be able to undertake a public inquiry for the purpose of examining corruption risks and vulnerabilities and measures to prevent corruption in Commonwealth agencies.