Publications

National Anti-Corruption Commission: What is it and how does it work?

Published on October 16, 2023 by Charles Harrison and Harrison Butler

The National Anti-Corruption Commission (NACC) came into effect on 1 July 2023. It is a newly created and independent Commonwealth Government agency with the role of detecting, investigating, and reporting on serious and patterned corruption in Australia’s public sector.

The purpose of this article is to answer some of the key questions about the NACC and the way it operates.

What is the National Anti-Corruption Commission (NACC)?

The NACC is given its power and is created through the National Anti-Corruption Commission Act 2022 (Cth) (the NACC Act). In addition to its role in detecting, investigating, and reporting on serious and systematic corruption in Australia’s public sector, the NACC will also serve the role as being an educator for the public service and the public at large about corruption risks, how to identify them, and how to prevent them.

Section 3 of the NACC Act states that the objects of the Act are to:

• Facilitate the detection of corrupt conduct and the timely investigation of corruption issues that could involve corrupt conduct that is serious or systemic;
• Enable, after investigation of a corruption issue, the referral of persons for criminal prosecution, civil proceedings or disciplinary action;
• Prevent corrupt conduct;
• Educate and provide information about corruption and the detrimental effects of corruption on public administration and the Australian community

Its independence will mean that the Commonwealth Government will not be able to provide the body with instructions as to what it can and should investigate (or conversely, what not to investigate). The NACC will have its own Commissioner and as many as three Deputy Commissioners all supported by a Chief Executive Officer.

The NACC will be focused on unravelling and investigating “serious and systematic” corruption. These are not terms that are defined by the NACC Act and rather will be at the discretion of the Commissioner to decide whether an investigation should be pursued, based on whether the matter at hand could involve corruption of a serious or systematic kind.

There are a range of factors which could compel the Commissioner of the NACC to find certain conduct as sufficiently “serious”:

• A criminal offence;
• A financial gain or loss;
• The misuse of information;
• The seniority of the role the person committing the alleged conduct holds;
• For people attempting to cause a public official to act dishonestly, the significance of the detriment for society if the official does act dishonestly.

Systematic corruption must involve an established pattern of conduct.

What powers does it have?

The NACC Act provides the NACC with the power to investigate any person, provided they have potentially done something that has or could adversely affect the honesty or impartiality of a public official in the way that they have carried out their official duties.

This means that the NACC will have the power to investigate public officials if they engage in conduct which satisfies the definition/s of “corrupt conduct” as defined at section 8 of the NACC Act:

• Adversely affect their own, or another public official’s honesty or impartiality in the way they carry out their official duties: This means facilitating one’s role in public office with honesty and without lying. Members of the public can be subject to investigation if they are the person trying to deceive or cause a public officer to be dishonest;
• Breach public trust: This means a public official is no longer using their assigned powers in the interests of the Australian public;
• Abuse their official office as a public official: This form of corrupt conduct involves improper acts/omissions (such as misusing information) in the official capacity, but also knowing the improper nature of their acts and intending to gain for themselves or someone else (at the detriment of another);
• Misuse information they have gained in their capacity as a public official: This refers to accessing, changing, disclosing, or selling government information

Attempting to do any of the above will amount to “corrupt conduct”. A public official’s conduct can be investigated for multiple and varied types of corrupt conduct.

Powers of the NACC

The NACC will have powers of legal compulsion and information-gathering powers under the NACC Act, including the power to:

• Compel the production of documents and other evidence;
• Compel individuals to participate in a hearing;
• Obtain warrants to search properties;
• Intercept telecommunications and use surveillance devices

The NACC will also have powers to conduct a hearing and summon a person to attend the hearing to give evidence or produce a document or anything else that might be relevant.

How will it work in practice?

The Hon Paul Brereton AM RFD SC has been appointed as the inaugural Commissioner of the NACC. The appointment is for a 5-year term.

In leading the NACC, the Commissioner will ensure that the NACC meets the procedural requirements for any investigation. The NACC can either investigate the issue alone, or jointly with a Commonwealth agency or even refer the issue to the agency for them to conduct the investigation instead.

The NACC will conduct its investigations as follows:

1. The NACC will notice and identify a relevant issue, either through receiving a complaint (such as a direct referral by a member of public or whistle blower, through the media or by its own investigation/findings;
2. Undertake a forensic information-gathering process, using the powers outlined above;
3. A NACC hearing will occur. Hearings are to be conducted in private except where there are exceptional circumstances, and it is in the public interest to know of the proceedings. These hearings will not follow precedents like the common law system, instead decisions will be made on a case-by-case basis;
4. Finalising the investigation. The NACC does not make findings of criminal guilt. If a criminal offence is found to have occurred or there is a reasonable basis for believing that such an offence has occurred, then a brief of evidence may be supplied to the Commonwealth Department of Public Prosecutions (DPP). At the conclusion of an investigation, a report will be prepared for the Attorney-General.
   • The report must set out the findings, a summary of evidence and any recommendations the Commission sees fit to remedy the impugned conduct in question.
   • Public hearings must be tabled in Federal Parliament

Summary

With the NACC in its infancy, having been in operation since 1 July 2013, time will ultimately tell as to whether the NACC is poised to be an effective anti-corruption watchdog to address the issue of corruption in Federal politics and more broadly in the public sector. As reported by The Guardian Online, on its first day of operation, the NACC received 44 online referrals of alleged corrupt conduct which ought to be investigated by the NACC [1]. Further, as reported by ABC News[2], as at 13 September 2023, the NACC has received 988 referrals. Of those 988, 310 were dismissed because they did not involve a Commonwealth public official or did not raise a corruption issue.

The NACC Act provides the Commission with the powers of legal compulsion which provide for the gathering and provision of important evidence, compel attendance at and evidence before hearings, and the monitoring of communications and surveillance footage.

The final report from each investigation to be issued to the Commonwealth Attorney-General should act as an effective encouragement for Commonwealth agencies, the Commonwealth DPP to remedy the impugned conduct in question (to the extent that it is found to have occurred).

Carroll & O’Dea Lawyers has significant expertise in Royal Commissions and other Commissions of Inquiry and are well suited to assist anyone compelled to respond to a request from or appear at/or give evidence before the NACC. Please contact us on 1800 059 278 or via our Contact Page.