National Anti-Corruption Commission

On 1 July 2023, the long awaited National Anti-Corruption Commission (the NACC) will begin its task of preventing, detecting and investigating corrupt conduct at the Commonwealth level. As many readers would be aware, the introduction of the NACC marks the first time an independent body of this nature has covered the Commonwealth public sector in its entirety.

The NACC and its underpinning legislation introduce new standards that apply to both public officials and members of the broader public. It has powers equivalent to a standing Royal Commission, including the ability to hold public hearings.

It is therefore vitally important that members of the Australian Public Service understand what is expected of them under the new integrity framework. While we recommend all Commonwealth departments, agencies and bodies provide their teams with specific training on the NACC, below are five things we think you should be aware of.

1. How the NACC operates

The NACC will be led by its inaugural Commissioner, the Hon Justice Paul Brereton AM RFD. Commissioner Brereton will act independently of government and will be responsible for enforcing the standards imposed by the National Anti-Corruption Commission Act 2022 (Cth) (the NACC Act).

The Commissioner will be supported by three deputies: Nicole Rose PSM, who departs as AUSTRAC CEO to take up this position; Dr Ben Gauntlett who was previously Disability Discrimination Commissioner; and the current Integrity Commissioner for the Australian Commission for Law Enforcement Integrity Jaala Hinchcliffe, who will act in a deputy role for up to 12 months.

The NACC will be overseen by an independent Inspector, Ms Gail Furness SC, as well as parliamentary oversight from the Parliamentary Joint Committee on the National Anti-Corruption Commission.

2. The conduct NACC will investigate

The NACC will be able to investigate serious or systemic instances of “corrupt conduct” involving Australian Government public officials. “Corrupt conduct” is defined by the Act broadly in two ways:

1. Any conduct of any person that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of any public official’s powers as a public official; or the honest or impartial performance of any public official’s functions or duties as a public official; and
   
   
2. Any conduct of public officials that:
   • constitutes or involves a breach of public trust;
   • constitutes, involves or is engaged in for the purpose of abuse of the person’s office as a public official; or
   • constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official (or a former public official).

If these definitions sound broad, it is because they are intended to be. Broadly defined standards allow for a range of conduct to be captured and potentially investigated, which will be at the discretion of the Commissioner.

3. NACC can make findings (which may be retrospective)

The Commissioner will be able to make a finding that a person has engaged in “corrupt conduct”. This is not a finding of criminal guilt, but could still have serious consequences for a person’s reputation and employment. If the NACC finds evidence of a crime in the course of an investigation, it may be able to share this evidence with the police or prosecuting authorities, and the person may then face criminal charges.

The Commissioner will be able to make findings about the conduct of Commonwealth agencies. It will also be able to make findings about private sector entities or individuals, if they are involved in corrupt conduct that involves Australian government officials.

The new standard of corrupt conduct can also be applied retrospectively to conduct that occurred before the NACC Act commenced.

4. The powers NACC will have

Similar to its counterparts at the state and territory level, the NACC will have powers akin to a Royal Commission. It will be able to hold public or private hearings where witnesses will face compulsory questioning. It will have the power to compel the production of documents and things, including those otherwise protected by legal professional privilege. It will be able to apply for search warrants, telephone interception warrants, and to confiscate passports. Its agents can also use assumed identities.

5. Agency heads must refer corruption issues

If an agency head becomes aware of a corruption issue they must refer it to the Commissioner if it concerns the conduct of a person who is, or was, a staff member of the agency, and they suspect it could involve corrupt conduct that is serious or systemic.