Fearless, fair, independent and impartial: the new National Anti-Corruption Commission

As of 1 July 2023, Australia has its very own federal National Anti-Corruption Commission (NACC). Within its first 48 hours, the NACC had received over 40 alleged corrupt conduct referrals. By close of business on 4 July, that number had risen to over 300. The NACC is the result of over a decade of pro-integrity advocacy by NGOs and independents like Cathy McGowan and Helen Haines.

What is the NACC?

The NACC exists to detect, investigate and report on corruption as it relates to federal public officials.?It isn’t just about federal parliamentarians, any person who works for the Australian government (such as a government department or a statutory corporation) is a public official. ‘Work for’ doesn’t simply mean government employees, it has a broad meaning which includes contractors (and employees of contracting companies).

Any person can make a referral of alleged corrupt conduct to the NACC.

Does this mean only government employees or contractors can be investigated?

No. The NACC can investigate any person, even if they are not a public official, as long as they do something that might cause a public official to carry out their official role in a dishonest or biased way.

How will the NACC decide what to investigate?

NACC Commissioner, the Hon Justice Brereton AM RFD has said that the NACC’s main guiding principle when deciding whether to investigate a referral will be “whether a corruption investigation by the commission would add value in the public interest, especially in the light of any other inquiries or investigations that are happening, and whether there is any real prospect of a finding of corrupt conduct”.

Brereton also said he wants the NACC “to have the reputation of being fearless and fair, independent and impartial” and acknowledged that “[w]hile the legislation gives us great powers, with that comes great responsibility.”

Can the NACC be ‘weaponised’ by politicians?

The opening days of the NACC saw several high-profile referrals – relating to PwC and confidential workplace settlements between the Commonwealth and individuals.

Using the term ‘weaponise’ to describe the referral of high-profile incidents to the NACC risks undermining its purpose: to investigate allegations of serious corrupt conduct in our federal political and bureaucratic sphere. Inherently, these will often involve people, companies or circumstances of significant public interest.?It is why it is so important that the NACC now exists.

The Commissioner is clearly alive to the potential issue of potentially trivial or weaponised reports from politicians. He has said that the “people of the Commonwealth are no longer prepared to tolerate practices which might once have been the subject of, if not acceptance, at least acquiescence”. The NACC will be able to make public statements about corruption issues to avoid damage to reputations and can call out such referrals as inappropriate.

What can the NACC do?

The NACC has said that its aim is to finalise 90% of referred matters within 12 months – with speedy resolutions of complaints being front of mind in the wake of the length of time it has taken NSW ICAC to resolve high public interest investigations. In the course of these investigations, the NACC has the power to tap phones, search premises, compel testimony and demand documents.

The biggest controversy in the creation of the NACC is the default position that hearings will be held in private. To hold a public hearing the Commissioner must be satisfied that there are exceptional circumstances and that it is in the public interest to do so.?

This is the opposite of the NSW ICAC structure which operates on the principle that not only must justice be done, but it must be seen to be done. A key part of that is transparency in process.?

Let’s hope that the NACC lives up to its aspirations to be fearless, fair, independent and impartial.

See also Michael Bradley’s article for Crikey.

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