The National Anti-Corruption Commission (NACC) is an Australian Government agency that focuses on deterring, detecting, and preventing corrupt conduct involving Commonwealth public officials, including ministers, parliamentarians and their staff, and Commonwealth agencies.
The NACC operates under the National Anti-Corruption Commission Act 2022 (NACC Act) and investigates allegations of serious or systemic corruption within the Commonwealth public sector.
What does the NACC investigate?
The NACC investigates serious or systemic corrupt conduct. The NACC will investigate a person engaging in four types of corrupt conduct:
- They are a public official and they breach public trust by exercising an official power for an improper purpose (e.g. issuing a permit in exchange for personal financial gain).
- They are a public official and they abuse their office as a public official by engaging in improper acts or omissions in their official capacity (e.g. not declaring a conflict of interest) or by intending to gain a benefit for themselves or another person or cause a detriment to another person (e.g. obtaining property for themselves).
- They are a public official or former public official and they misuse information they have gained in their capacity as a public official (e.g. accessing documents that they are not supposed to have access to).
- They do something that adversely affects a public official’s honest or impartial exercise of powers or performance of official duties. The NACC states that any person can engage in this type of corrupt conduct, even if they are not a public official themselves (e.g. offering a public official a bribe).
The NACC is not able to investigate concerns relating to state, territory, or local government officials. Each state and territory has a similar integrity or anti-corruption commission, such as the NSW Independent Commission Against Corruption (ICAC), that may be able to investigate those matters.
Who does the NACC investigate?
The NACC investigates matters relating to Australian Government public officials, this includes:
- Ministers.
- Parliamentarians and their staff.
- Staff members of Commonwealth agencies.
- Contract service providers.
The NACC Act also includes people or organisations that provide goods or services, or who carry out functions, under a Commonwealth contract as public officials. These people or organisations are known as “contract service providers”.
The NACC cannot investigate the following public officials under the NACC Act:
- 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 their contracted service providers).
What can the NACC do with corruption issues?
The NACC may deal with a corruption issue in one or more of the following ways:
- Conduct a preliminary investigation to gather further information.
- If the issue could involve serious or systemic corrupt conduct, investigate the issue alone or with the relevant Commonwealth agency or a state or territory government entity.
- Refer the issue to the Commonwealth agency that the issue relates to for them to investigate.
- Refer the issue to another Commonwealth agency or state or territory government entity for consideration.
- Take no action.
The Commission may also conduct a preliminary investigation to decide whether a referral raises a corruption issue and whether the corruption issue is serious or systemic.
When conducting an NACC investigation, the Commissioner can decide at any time that no further action is necessary, and discontinue the investigation.
What are the NACC’s powers?
The NACC has various powers and tools to collect information during its investigations into corruption. These powers allow the NACC to obtain information through persons, physical and electronic documents, records and data.
The NACC’s powers for gathering information include:
- Authority to demand the submission of documents or other relevant items.
- Authority to compel individuals to provide information, either through participation in a hearing or by producing documents and other relevant items.
- Ability to obtain search warrants for property searches.
- Ability to intercept telecommunications and employ surveillance devices.
What does the NACC do after an investigation?
Once the investigation is completed, the NACC Commissioner must prepare a report for the Attorney-General (unless the report is related to the conduct of the Attorney-General, in which case it is directed to the Prime Minister). The report must include:
- Findings or opinions of the Commission concerning the corruption matter;
- A summary of the evidence and other pertinent material upon which those findings or opinions are based; and
- Any recommendations deemed appropriate by the Commission, along with the rationale behind those recommendations.
The Commission can make any recommendation considered appropriate in their report, provided they state the reasons for making them. Recommendations can include instructions for the agency head to respond to the investigation findings, for example, to address the corrupt practices found, or improve any policies, procedures or practices that enabled the corruption to occur.
It is important to note that the NACC does not make determinations of criminal guilt. If evidence of a criminal offence is discovered, a summary of evidence may be forwarded to the Commonwealth Department of Public Prosecutions (CDPP) for their consideration of potential charges based on the available evidence.
If a public hearing was conducted by the Commission, the report must be presented in Parliament. The Commissioner has the discretion to publish reports when satisfied that it is in the public interest to do so.
Reporting suspected corruption to the NACC
The NACC has two types of referrals: mandatory and voluntary referrals.
Mandatory referrals
The NACC Act refers to mandatory referral obligations for three types of public officials:
- Public Interest Disclosure Officers (PID officers) – authorised officers under the Public Interest Disclosure Act 2013.
- Commonwealth agency heads, including ministers, accountable authorities of departments and agencies, Chief Executives of the High Court or Federal Courts; and
- Heads of intelligence agencies, such as the Australian Security Intelligence Organisation (ASIO) and Australian Security Intelligence Service (ASIS).
Voluntary referrals
Anyone can make a voluntary referral to the NACC through its webform if they believe they have information that relates to the actual or potential corruption of a Commonwealth public official.
Reports can be anonymous; however, this will prevent the NACC from being able to liaise with the reporting person to progress the case, and to ensure that measures are in place to protect the person or others involved in their referral.
Protections for whistleblowers
The NACC provides two key protections for whistleblowers and others who provide information to the NACC:
- Anyone who makes a referral, provides information or gives evidence to the NACC about a corruption issue is protected from civil, criminal or administrative liability (including disciplinary action) for doing so, and no contractual right or remedy can be taken against them. However, this does not prevent action being taken for making false or misleading statements.
- It is a criminal offence punishable by imprisonment for anyone to take any reprisal action against a person for making a referral, providing information, or giving evidence to the Commission.
A person does not receive protection from liability for their own conduct by disclosing it to the NACC. For example, a public servant who misuses an official power to advance a personal interest and then refers their own conduct to the NACC in the hope of avoiding liability for that conduct does not obtain protection.
A person who knowingly makes a false or misleading disclosure to the NACC is not protected from liability for false or misleading statements.
