The National Anti-Corruption Commission (NACC) commenced operation on 1 July 2023 with the Honourable Paul Brereton AM RFD SC as its inaugural Commissioner, for a term of five years.
The NACC’s stated mission is to enhance integrity in the Commonwealth public sector by deterring, detecting and preventing corrupt conduct involving Commonwealth public officials through education, monitoring, investigation, reporting and referral.[1]
The NACC operates pursuant to the National Anti-Corruption Act 2022 (Cth) (NACC Act). Broadly speaking, the Commissioner’s functions under s 17 of the NACC are to detect corrupt conduct and conduct investigations into corruption issues, amongst other things.
A corruption issue, for the purposes of the NACC Act, is information, or an allegation, that raises a question of whether a person:
- has engaged in corrupt conduct in the past,
- is currently engaging in corrupt conduct, or
- will engage in corrupt conduct in the future.[2]
A person engages in corrupt conduct, for the purposes of the NACC Act, if:
- they are a public official[3] and they breach public trust;
- they are a public official and they abuse their office as a public official;
- they are a public official or a former public official and they misuse information they have gained in that capacity;
- they do something that adversely affects a public official’s honest or impartial exercise of powers or performance of official duties.[4]
Referrals to the NACC
Anyone can make a referral to the NACC,[5] through the NACC website or via telephone, and referrals may be made anonymously. As you may have heard via media reports, Commissioner Brereton noted in his opening address made on 3 July 2023 that as at 5 pm on 2 July 2023, the NACC had received approximately 44 online referrals.
Importantly, the Commissioner may also deal with a corruption issue on his own initiative.[6] The Commissioner is entitled to commence an investigation into a corruption issue where a Commonwealth integrity agency (for example, the Commonwealth Ombudsman or the Auditor-General) has previously concluded an investigation into that matter, if satisfied that it is in the public interest to do so.[7]
Further, there are provisions requiring mandatory referrals in respect of Commonwealth agency heads and other Commonwealth agency staff.[8]
Protection for participants in NACC investigations
Under the NACC Act, persons who make disclosures to the NACC are protected from civil, criminal or administrative liability (including disciplinary liability), as well as from contractual remedies arising from the disclosure. Those persons will also have absolute privilege in respect of defamation proceedings,[9] and will be protected from reprisals or threats of reprisals. Relevantly, taking a reprisal against another person or threatening to do so constitute offences under the NACC Act which are punishable by imprisonment for two years. [10]
The Commissioner’s coercive powers extend to issuing notices to produce, even where the person to whom the notice is addressed has been charged, or a confiscation proceeding has been commenced against them, and the information/document/thing to be produced includes the subject matter of the charge or confiscation proceeding.[11] The Commissioner also has the power to summon persons to appear at a hearing[12] and to search premises and seize documents or things.[13]
As has been widely reported, a hearing must be held in private, unless the Commissioner decides to hold it in public. If a hearing is to be held in public, the Commissioner must be satisfied that exceptional circumstances justify doing so, and it is in the public interest to do so.[14] Although s73(3) of the NACC Act sets out some of the matters the Commissioner may have regard to in deciding whether to hold a hearing in public, it is not exhaustive.
S 73 can be contrasted with the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic), which stipulates that examinations must not be held in public unless the IBAC considers on reasonable grounds that there are exceptional circumstances and it is in the public interest to do so,[15] and the Independent Commission Against Corruption Act 1988 (NSW), which provides that ICAC may conduct a public inquiry if satisfied it is in the public interest to do so.[16]
Use of investigation material
The NACC may disclose material obtained through an investigation to a prosecutor of a witness under s 105 of the NACC Act and to proceeds of crime authorities under s 109. However, if the disclosure is to be made after the witness has been charged with an offence, the NACC may only disclose the investigation material pursuant to a court order, in circumstances where the court is satisfied the disclosure is required in the interests of justice.[17] Certain information however (set out in s 99 of the NACC Act), such as the identity of a person who has given evidence at a hearing, can be disclosed to prosecutors without a court order.[18]
A prosecutor, including a proceeds of crime authority, that may lawfully use or disclose investigation material may also use or disclose the investigation material for the purposes of obtaining derivative material.[19]
The investigation material and any derivative material obtained can then be used by prosecutors to decide whether to prosecute the witness, and in any criminal prosecution. However, such use is limited by the direct-use immunity contained in s 113 of the NACC Act and any direction made by the Commissioner under s 100 that the material is to be used subject to specified conditions.[20]
Like many other ad-hoc and standing commissions, the privilege against self-incrimination has been abrogated by s 113(1) of the NACC Act, and s 113(2) provides for a direct use immunity in respect of criminal proceedings, confiscation proceedings and/or proceedings for the imposition or recovery of a penalty, subject to a number of exceptions (for example, proceedings for an offence relating to false or misleading information or documents).[21] Legal professional privilege is also abrogated by s 114 of the NACC Act subject to a number of exceptions.
What can we expect from the NACC?
In his opening address, Commissioner Brereton said that he wanted the NACC “to have the reputation of being fearless, but fair, independent and impartial”. He also said that he would use his power to make public statements about corruption issues in order to avoid damage to reputations where the NACC is sought to be “weaponised” and used to make inappropriate and unfounded referrals.
Given the large number of referrals already received and the publicity surrounding the NACC, it will be interesting to see precisely where, and how, the NACC will start its work.
[1] www.nacc.gov.au.
[2] NACC Act, s 9.
[3] A public official pursuant to s 10 of the NACC Act is defined as being a:
- parliamentarian;
- a staff member of a Commonwealth agency
- a staff member of the NACC
[4] NACC Act, s 8.
[5] Ibid, s 32
[6] Ibid, s 40.
[7] Ibid, s45.
[8] Ibid, ss 33 – 38.
[9] Ibid, s 24.
[10] Ibid, s 29 and 30.
[11] Ibid, s 58.
[12] Ibid, s 63.
[13] Ibid, s 117.
[14] Ibid, s 73.
[15] Independent Broad Based Anti-Corruption Commission Act 2011 (Vic), s 117.
[16] ICAC Act 1988 (NSW), s 31.
[17] Ibid, s 106.
[18] Ibid, s 107.
[19] Ibid, s 104.
[20] Ibid, s 108.
[21] Ibid, s 113.