The Federal Attorney-General, Mr Mark Dreyfus, introduced the new Bill – the National Anti-Corruption Commission Bill 2022 (Bill), together with the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 – into Parliament on 28 September 2022. The Bill is a key ALP election commitment. It's expected to pass before the end of the year. It will establish a new anti-corruption commission (NACC) at federal level.
Significantly, the Bill covers, not just parliamentarians and public servants, but “any person” who “could” seek to corrupt a public official.
“In relation to third parties, the commission will have broad powers to investigate allegations of serious or systemic corruption of or by a public official”, Mr Dreyfus said.
Key points:
What’s corrupt conduct?
This is the central concept. The Bill defines corrupt conduct as any conduct that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise or performance of a public official’s powers, functions or duties as a public official.
It also includes a breach of public trust by a public official and misuse of position or information by a public official.
Finally, there is an open-ended “catch-all” – conduct “for the purpose of corruption of any other kind”.
Mr Dreyfus pointed out that some examples of “pork barrelling” could be caught — if it involves potentially serious and systemic corrupt conduct.
Does it have to be serious or systemic corruption?
Anyone can refer conduct to the NACC, but corruption investigations can only be conducted if the NACC’s of the opinion that the issue “could” involve serious or systemic corrupt conduct.
Retrospectivity
The Bill is retrospective — NACC can investigate serious or systemic corruption that occurred before or after its establishment.
Who can be investigated?
Anyone can engage in corrupt conduct. To be corrupt, conduct must have an adverse effect on a public official. Public officials include Ministers, parliamentarians and their staff, statutory officer holders, employees of all government entities.
Independence
The NACC will be independent of Government. It can set its own work program. It can choose what matters it will investigate. It can act on referrals, whistleblower reports or off its own bat. Mr Dreyfus said that the Government “won’t” direct it on what matters to investigate.
Oversight
There’ll be a Parliamentary Joint Committee to oversee the NACC’s work.
Public inquiries and hearings
The NACC can hold public inquiries into corruption risks and vulnerabilities in Commonwealth agencies. These are general inquiries, unrelated to investigations of specific cases of potential corruption.
Hearings in connection with investigations into potential or alleged corrupt conduct must be in private unless the NACC is satisfied that both exceptional circumstances justify holding the hearing and it is in the public interest to do so. There has already been criticism of this element of the Bill.
While hearings are a judicial proceeding for the purposes of the Crimes Act and the Criminal Code, the NACC can take evidence that would not be admissible in a trial, such as hearsay.
You can’t refuse to answer a question at a hearing on the ground that the answer may incriminate you, but the answer can’t be used in criminal, penalty or confiscation proceedings against you.
Findings
The NACC can make findings of fact on an investigation, including findings of corrupt conduct, and refer conduct that could constitute criminal conduct to the Australian Federal Police or the Commonwealth Director of Public Prosecutions.
Procedural fairness
The Commission will be subject to procedural fairness rules and its findings will be subject to judicial review.
What does it all mean?
The key change is that there will now be a mechanism at federal level to investigate potential serious and systemic corrupt conduct.
It can catch anyone who interacts with a Commonwealth agency. This includes contractors, service-providers, unions, employer groups and lobbyists.
What is corrupt conduct is open-ended and not clearly defined. The extent to which taking political aims and objectives into account (obtaining a political advantage) will lead to conduct being regarded as corrupt is not clear.
The Explanatory Memorandum issued with the Bill spends 10 pages or more on discussing these key concepts. But it’s worth noting that similar expressions in corresponding State legislation have led to a number of high profile court cases.
