Cth Introduces Bill to Establish National Anti-Corruption Commission

On 28 September 2022, the National Anti-Corruption Commission Bill 2022 (Cth) (‘the Bill’) was introduced to the House of Representatives by Federal Attorney-General Mark Dreyfus.

The Bill was introduced alongside the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (Cth), which seeks to amend various Acts to give effect to the proposed Commission.

Both Bills were subsequently referred to the  Joint Select Committee on National Anti-Corruption Commission Legislation. The Committee is due to report on the Bills on or before 10 November 2022. Neither Bill have passed the lower house.

How will the National Anti-Corruption Commission be established?

The Bill proposes that the National Anti-Corruption Commission (‘the NACC’) be led by the National Anti-Corruption Commissioner ('the Commissioner') and up to three Deputy Commissioners, with the support of a Chief Executive Officer. 

Some of the key functions of the Commissioner include:

• detecting , investigating and reporting on corrupt conduct;
• reporting on public inquiries;
• referring corruption issues to relevant government entities;
• overseeing investigations conducted by Commonwealth agencies;
• conducting public inquiries into the risk of corrupt conduct occurring and measures directed at dealing with that risk and preventing that conduct; and
• reporting and making recommendations to the Minister regarding legislative or administrative reform in relation to anti-corruption matters.

The Bill would also provide for oversight mechanisms including providing for the appointment of an independent inspector and the establishment of the Parliamentary Joint Committee on the National Anti-Corruption Commission to oversee the NACC. This Joint Committee would also be responsible for dealing with complaints made against the NACC.

What is a corruption issue?

The Bill seeks to define a corruption issue as an issue of whether a person has engaged, is engaging or will engage in corrupt conduct.

Corrupt conduct is also defined under the Bill and according to the Second Reading Speech:

According to the Bill's Explanatory Memorandum, the Commissioner can be made aware of a corruption issue through a referral. The Bill would allow any person to refer a corruption issue to the NACC. The Bill would also establish an obligation on agency heads and persons with responsibilities under the Public Interest Disclosure Act 2013 (Cth) to refer such conduct to the NACC, as soon as they are reasonable able, after being made aware any information or allegations regarding corrupt conduct.

Alternatively, the Commissioner may also commence an investigation into a corruption issue under their own initiative.

How would the Commissioner deal with corruption issues?

If assented, clause 41 of the Bill provides that the Commissioner may investigate or jointly investigate the issue independently or with an Australian government entity. The Commissioner would also be able to refer to either investigation or consideration, the issue to another government entity.

What powers does the Commissioner have to conduct a corruption investigation?

Under the Bill, the Commissioner may conduct or continue to conduct a corruption investigation only if the Commissioner is of the opinion that the corruption issue could involve corrupt conduct that is serious or systemic.

Once a corruption investigation is initiated, the NACC will, according to the Second Reading Speech, have “a full suite of powers similar to those of a royal commission”.

Protection for whistleblowers and persons providing information

The Bill also seeks to provide whistleblower protections. This includes a proposed provision, which states that a person who makes a NACC disclosure is not subject to any civil, criminal or administrative liability for the disclosure.

The Bill also provides specific protections for journalists informants, including a provision which exempts journalists from answering questions or providing information that would enable the identity of a source to be obtained.

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National Anti-Corruption Commission Bill 2022 (Cth) and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (Cth) and explanatory materials available from TimeBase's LawOne Service