Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697641016032.pdf (Australia)
October 2022 Joint Select Committee on the National Anti-Corruption Commission Legislation Attorney-General’s Department Submission National Anti-Corruption Commission Bills 2022Submission 35 Introduction The Attorney-General’s Department welcomes the opportunity to make a submission to the Committee on the National Anti-Corruption Commission Bill 2022 (NACC Bill) and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (C&T Bill).
This submission seeks to provide the Committee with an overview of the key features of the National Anti-Corruption Commission (the Commission).

Attachment A to this submission provides a detailed overview of these features in table form.

The design of the Commission has been informed by consultation with leading integrity experts, and has drawn on lessons from state and territory anti-corruption commissions and the Australian Commission for Law Enforcement Integrity (ACLEI).
Consistent with the Government’s design principles, the Commission will: • • • • • have broad powers to investigate Commonwealth ministers, parliamentarians and their staff, statutory officer holders, employees and contractors of all government entities, and contracted service providers carry out its functions independent of government, with discretion to commence investigations on its own initiative or in response to referrals from anyone (including from whistleblowers, members of the public and anonymous referrals) have the power to investigate both criminal and non-criminal corrupt conduct where it could be serious or systemic, including conduct that occurred before its establishment, and have the power to hold public hearings, where it is in the public interest and exceptional circumstances justify doing so be subject to effective oversight, including by a Parliamentary Joint Committee and an Inspector.
The Commission will be a specialist agency, with a dedicated focus on detecting and investigating serious or systemic corruption.
The Commission will strengthen the Commonwealth’s existing integrity framework, and will complement the work of other existing Commonwealth integrity agencies, including: • • • the AFP, which works with partner agencies across the Commonwealth to leverage expertise, capabilities and information holdings to respond to serious, complex and organised criminal offences, including fraud and foreign bribery the Commonwealth Ombudsman, which considers and investigates complaints where people believe they have been treated unfairly by an Australian Government department, and the Australian National Audit Office, which undertakes performance audits and assurance reviews of Commonwealth entities.
The Government is separately progressing a range of initiatives to strengthen the broader Australian Government integrity framework, including: introducing new requirements under the Public Governance, Performance and Accountability Rule 2014 for Commonwealth entities to take measures to prevent, detect and deal with corruption improving protections for whistleblowers by progressing reforms to the Public Interest Disclosures Act 2013 (PID Act) to address issues identified by Mr Philip Moss AM in his 2016 review of that Act, followed by considering the establishment of a Whistleblower Protection Commissioner or Authority progressing recommendations for Government in the Set the Standard report into Commonwealth Parliamentary workplaces by the Sex Discrimination Commissioner, Kate Jenkins, to ensure these workplaces are safe and respectful • • • 2 National Anti-Corruption Commission Bills 2022Submission 35 • • • looking at ways to enhance the transparency and integrity of political donations in Australian federal election processes, and to strengthen grants requirements considering a federal judicial commission to investigate complaints about the judiciary, and ensuring that processes for appointments to key independent institutions are transparent and merit-based.
Key features of the National Anti-Corruption Commission Functions of the National Anti-Corruption Commissioner The National Anti-Corruption Commissioner’s (the Commissioner) and Commission’s functions are outlined in clauses 17 and 22 of the NACC Bill and will include: • • • • investigating corruption issues that could involve corrupt conduct that is serious or systemic conducting public inquiries into the risk of corrupt conduct occurring, and measures directed at dealing with that risk and preventing that conduct preventative and educative functions, including providing education and information in relation to corrupt conduct and preventing that conduct and collecting, correlating, analysing and disseminating general information and intelligence about corrupt conduct, and reporting on corruption investigations and public inquiries.
The Commissioner’s key functions, including the combination of investigative and prevention and education functions, are broadly consistent with those of state and territory anti-corruption commissions.

Prevention and education functions, including public inquiries Corruption prevention and education will be core functions for the Commission.
These functions will be informed by the insights the Commission will draw from its investigations, and the intelligence it obtains about corruption risks and vulnerabilities.

These functions will also be supported by the Commission’s ability to conduct public inquiries into corruption risks, vulnerabilities and measures to prevent corruption in Commonwealth agencies.
Public inquiries will focus on broader systemic issues in the Commonwealth public sector rather than a specific corruption issue concerning the conduct of an individual.

The Commissioner will be able to commence a public inquiry on their own initiative and exercise powers to invite submissions, hold hearings, and compel the production of documents or information from Commonwealth entities in support of a public inquiry.
Following a public inquiry, the Commissioner could provide advice on corruption risks and strategies to address them, or make recommendations for legislative or administrative reform.

The Commission will provide guidance and information to support the public sector to understand the concept of corrupt conduct, identify and address vulnerabilities to corruption, and to strengthen their internal frameworks to prevent corruption and promote integrity.
The department expects that the Commission will work closely with its partner agencies in each state and territory, and internationally, to leverage and share good practices, understand emerging corruption threats and trends, and to promote innovative approaches to prevention.

The Commission will also engage in broader public education about its role, corruption risks, and avenues to report corrupt conduct.
3 National Anti-Corruption Commission Bills 2022Submission 35 Independence The Commissioner’s actual and perceived independence from Government will be critical to their credibility and effectiveness.
The NACC Bill contains safeguards for the Commissioner’s independence, including: • • • • the appointments of the Commissioner and Deputy Commissioners will be subject to approval by a Parliamentary Joint Committee, following a recommendation by the Attorney-General (clause 178), ensuring that appointees have Parliamentary support the Commissioner and Deputy Commissioners will also have security of tenure comparable to that of a federal Judge (clause 250), ensuring the officers of the Commission can undertake corruption investigations without fear of removal from office due to any findings they might make the Commissioner will be able to consider referrals from any person under clause 32, and will have the power to commence investigations and public inquiries on their own initiative (clauses 40 and 161).
the Commissioner will also have discretion in the way they handle corruption issues and conduct corruption investigations and public inquiries (clauses 41, 56 and 161).

This will ensure that the Commission operates at arm’s length from Government.

Resourcing for the Commission The Government has fully funded the Commission, committing $262.6 million over four years from 2022-23 to support its establishment and operation.
This will ensure the Commission has the full range of resources and capabilities it will require to effectively fulfil its functions.

It also ensures that other agencies such as the Commonwealth Director of Public Prosecutions, the Ombudsman and the Inspector-General of Intelligence and Security can undertake functions in support of, or arising from, the operation of the Commission.
The Parliamentary Joint Committee on the National Anti-Corruption Commission will have an express function of reviewing the Commission’s budget and reporting to both Houses of Parliament on its adequacy, with the ability to request the Inspector’s assistance with such a review.

This will ensure the Parliament can inform itself about, and make recommendations on, resourcing for the Commission.
The Commissioner’s jurisdiction The Commissioner will have broad jurisdiction to investigate serious or systemic corrupt conduct by individuals carrying out official functions on behalf of the Commonwealth.

The Commissioner’s jurisdiction will also extend to third parties, where their conduct could affect the honesty or impartiality of a public official’s conduct, or where they are engaged in a conspiracy with a public official to engage in serious or systemic corrupt conduct.
As an independent statutory office-holder, the Commissioner will have broad discretion in how they deal with corruption issues, and how they investigate serious or systemic corruption.

Definition of corrupt conduct The definition of corrupt conduct will be foundational to the Commission’s jurisdiction.
The Commission can: investigate corruption issues that could involve serious or systemic corrupt conduct refer corruption issues to a Commonwealth agency to which they relate for internal investigation, or to another investigation agency for consideration educate public officials and the public on corrupt conduct generally, including on its prevention, and conduct public inquiries into corruption risks and measures to prevent corruption.
• • • • 4 National Anti-Corruption Commission Bills 2022Submission 35 Clause 8 of the NACC Bill defines corrupt conduct, which will include any conduct of: • a public official: • • • that constitutes or involves a breach of public trust that constitutes, involves or is engaged in for the purpose of abuse of the person’s office, or that constitutes, involves or is engaged in for the purpose of corruption of any other kind • • a public official, or a former public official, that constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official, or any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of any public official’s powers, functions or duties.
This definition reflects common core elements of definitions in state and territory legislation establishing anti-corruption commissions and in the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act).

Conduct that does not constitute corruption but which could adversely affect public administration will continue to be dealt with by existing law enforcement and integrity agencies.
This would include, for example, external frauds against the Commonwealth, and the investigation of offences relating to individuals or businesses misleading or deceiving public officials.

This will ensure the Commission is not diverted from its core purpose of tackling corruption.

The Commonwealth has well-established and effective arrangements for dealing with external fraud and other conduct that adversely affects the efficacy of public administration.
The Commissioner will be able to investigate serious or systemic corrupt conduct that occurred before the Investigating historical conduct Commission was established (subclauses 8(4) and (5)).

This is appropriate, as the NACC Bill would not establish new standards of conduct.

For the Commissioner to undertake a criminal investigation, the conduct in question would need to have constituted a criminal offence at the time it was undertaken.
For non-criminal investigations, the definition of corrupt conduct in the NACC Bill reflects long-standing expectations of public officials, including the expectation that public officials will not abuse their office or breach the public trust.

The NACC Bill also provides that certain conduct is not corrupt conduct.
In some cases, these provisions Conduct that is not corrupt conduct create substantive exceptions from the Commissioner’s jurisdiction; in other cases, these provisions provide clarity about the scope of the definition on the face of the Bill.

Subclauses 8(6) and (7) provide that conduct engaged in by a staff member of the High Court or of a court created by the Parliament to exercise a power, or perform a function or duty, of a judicial nature will not be corrupt conduct.
These are substantive exceptions from the definition, and ensure that the Commissioner will not have jurisdiction to investigate conduct that involves the exercise of federal judicial power, in recognition of the constitutional separation of powers between the Executive and Judiciary.

Complaints about judicial conduct should continue to be resolved through appeals processes, and established judicial complaints mechanisms.
The Government is also considering the establishment of a federal judicial commission.
Subclauses 8(11) to (13) provide that the following conduct is not corrupt conduct: the use by a parliamentarian, or a staff member of a Commonwealth agency, of public resources to conduct parliamentary business in accordance with the Parliamentary Business Resources Act 2017 or the Members of Parliament (Staff) Act 1984 conduct engaged in as part of a political activity, if the conduct does not involve or affect: • • 5 National Anti-Corruption Commission Bills 2022Submission 35 • • the exercise of a power, or the performance of a function or duty, by a public official, or the use of public resources (within the meaning of the Public Governance, Performance and Accountability Act 2013).
These provisions clarify the scope of the definition, and reflect existing rules for political and parliamentary activities, and will assist to reduce the risk that the Commissioner’s role may be politicised as a result of the referral of political issues that do not constitute corruption.
In particular, these provisions recognise that: • • members of Parliament are able to access public resources for reasonable costs incurred in conducting their parliamentary business and employing staff, and that where they do so in accordance with the relevant statutory frameworks and ruling provided by the Independent Parliamentary Expenses Authority, they will not engage in corrupt, and political activities that do not involve or affect public administration or the use of public resources, such as political campaigning or the internal activities of political parties or candidates’ campaigns, would not constitute corrupt conduct.
Who falls within the Commission’s jurisdiction The Commission’s jurisdiction will include Commonwealth ministers, parliamentarians and their staff, statutory office holders, staff and contractors in all government entities, persons authorised to exercise Commonwealth functions or powers, and contracted service providers (clauses 10 to 14).
As mentioned above, the Commission will also be able to investigate any person: • • whose conduct could adversely affect the honest or impartial exercise of a Commonwealth public official’s powers, functions or duties (subclause 8(1)), or who attempts or conspires to improperly influence a Commonwealth public official, or participates in such conduct (subclauses 8(9) and (10)).
It is appropriate that the NACC be able to investigate people other than public officials where they engage in serious or systemic conduct that could adversely affect the probity of a public official’s conduct, and therefore the integrity of public administration.

Whistleblower protections Part 4 of the NACC Bill contains protections for persons providing evidence or information to the Commission in relation to a corruption issue.
These protections will provide immunity from civil, criminal and administrative liability for whistleblowers and other persons, and would impose criminal penalties for anyone taking, or threatening to take reprisal action against, a whistleblower (clauses 24 and 30).

The protections are modelled on those in the PID Act, but will be available for all persons—not just public officials.
Part 2 of Schedule 1 of the C&T Bill will also amend the PID Act itself, to ensure that public officials are able make public interest disclosures directly to the Commission (instead of or in addition to making an internal disclosure to their supervisor or an authorised officer within their agency).

These amendments would also extend protections contained in the PID Act to cover public officials who make a PID directly to the NACC.
Disclosers will be able to provide information to the Commission anonymously.

The staff of the Commission will be subject to strict confidentiality requirements when recording or sharing information that is capable of identifying a person who has disclosed information to the Commission, under Part 11 of the NACC Bill.
The Commissioner and Inspector will also be able to impose restrictions on the further disclosure of information 6 National Anti-Corruption Commission Bills 2022Submission 35 shared with other parties, including for the purposes of protecting the identity of a person who has provided information in connection with an investigation (clause 233).

Referring corruption issues to the Commission Under Part 5 of the NACC Bill, any person will be able to refer a corruption issue to the Commissioner.
This will ensure that public officials, contractors and members of the public who may have knowledge of potential corruption can provide that information to the Commissioner.

Commonwealth agency heads, and persons performing functions under the PID Act, will have mandatory obligations to refer corruption issues concerning the staff of their agency that they become aware of to the Commissioner, if they suspect that the issue could involve serious or systemic corrupt conduct.
This will ensure that potential serious or systemic corruption is drawn to the Commissioner’s attention.

Clauses 34 and 35 contain modified mandatory referral obligations for intelligence agencies, under which referrals may be made to either the Commissioner or the Inspector-General of Intelligence and Security (IGIS).
Where an issue is referred to the IGIS in the first instance and the IGIS is satisfied that the issue is likely to involve serious or systemic corruption, the IGIS will be required to refer the issue to the Commissioner.

The IGIS was established following the recommendations of the 1983-84 Royal Commission into Australia’s Security and Intelligence Agencies and has powers akin to a standing Royal Commission, to inquire into the legality and propriety of the conduct of the intelligence agencies.
The ability for intelligence agencies to refer matters to either the Commissioner or to the IGIS will enable those agencies to determine which is the most appropriate body to consider the issue, in the first instance, on a case-by-case basis.

For example, there may be circumstances where it is more appropriate for a referral to be made to the IGIS given its oversight role and extensive experience in relation to the legality and propriety of the conduct of intelligence agencies.
Dealing with corruption issues Under Part 6 of the NACC Bill, the Commissioner will have the discretion to deal with corruption issues of which they become aware (either through a referral or otherwise) as they see fit.
Options will include: • • • • investigating the corruption issue, either alone or jointly with another Commonwealth, state or territory agency, if the investigation threshold outlined below is met referring the corruption issue to the Commonwealth agency to which it relates for internal investigation, if the Commissioner is satisfied the agency has the capabilities to investigate the issue referring the corruption issue to a Commonwealth, state or territory investigative agency for consideration—for example, referring the issue to the AFP to consider whether to conduct a criminal investigation which could cover a wider range of criminal conduct, and taking no further action—for example, where the issue is already being investigated.
This will allow the Commission to focus its resources on the most serious or systemic corruption issues, and refer other issues back to agencies for internal investigation where appropriate.

If the Commissioner refers a corruption issue to a Commonwealth agency for investigation, the Commissioner may oversee that investigation, and may require progress reports and a final report on the investigation (Division 2 of Part 6).
Where a corruption issue concerns a particular agency, the Commissioner will have the power to direct that agency to not take specified action, where required to ensure the effectiveness of any action the Commissioner might take in relation to the issue (clauses 43 and 44).
This will enable the Commissioner to ensure that agencies do not, for example, inadvertently take action that may tip off a person to the existence 7 National Anti-Corruption Commission Bills 2022Submission 35 of a covert investigation, or result in the loss of evidence, and will be particularly useful where the Commission is working with agencies that have more limited internal investigative expertise.
This power will not, however, enable the Commissioner to direct another independent law enforcement or integrity agency, such as the AFP or the Auditor-General, to stop an investigation, inquiry or audit.

Investigation threshold: serious or systemic corrupt conduct The Commissioner will be able to commence or continue a corruption investigation where they are of the opinion that the corruption issue concerned could involve corrupt conduct that is serious or systemic (subclause 41(3)).
The terms ‘serious’ and ‘systemic’ will take their ordinary meaning, and are not defined in the NACC Bill.

This is similar approach as is taken in other jurisdictions, including in NSW and Victoria.

There is not a single specific threshold for what constitutes ‘serious’ corrupt conduct that would be appropriate for the different factual circumstances, both criminal and non-criminal, that may come before the Commission.
It would be a matter for the Commissioner to form an opinion about whether particular corrupt conduct could be ‘serious’.
The following kinds of factors would be relevant to this determination: • • • • • the degree of deception or deliberate intent involved the quantum of any financial or other material loss or gain caused the extent of any harm caused by the conduct for criminal conduct—the penalty for the offence for conduct involving an abuse of office—whether the person holds a position of particular trust or sensitivity and the manner in which the person is alleged to have abused that position of trust.
An instance of corrupt conduct would be systemic where, on its ordinary meaning, it occurs as part of a pattern of corrupt conduct, for example in one or more Commonwealth agencies.

Under clause 279 of the NACC Bill, the Commissioner will be able to issue guidelines to assist agencies to determine whether corrupt conduct could be serious or systemic, including when considering whether to refer matters to the Commission under clauses 33 and 34.
Preliminary investigations The Commissioner will be able to undertake a preliminary inquiry to confirm the existence or nature of a corruption issue (including whether a corruption issue could involve corrupt conduct that is serious or systemic), or to assist them to decide whether or how to deal with a corruption issue (clause 42).

The Commissioner will be able to direct agency heads to provide information and issue notices to produce to assist with preliminary investigations.
Timeliness of investigations The Commissioner will be expected to conduct corruption investigations in a timely manner (clause 3).

This is an important safeguard to ensure that allegations of corruption do not weigh on a person for an excessive length of time.

What constitutes the ‘timely’ investigation of a particular corruption issue will depend on the scale and complexity of the issue, and all of the circumstances of a case.
There may also be circumstances in which it is appropriate for the Commissioner to defer the finalisation of an investigation and the associated report—for example, to await the outcome of a related prosecution to avoid any risk of prejudice to a person’s fair trial.

As such, it would be inappropriate for the NACC Bill to direct the Commissioner towards any particular timeframe for investigations.
The question of whether the Commission would be capable of undertaking an 8 National Anti-Corruption Commission Bills 2022Submission 35 investigation in a ‘timely’ manner would, however, be a relevant consideration for the Commissioner when considering whether to commence an investigation.
The importance of the timeliness of investigations is also reflected in the design of the Commission’s powers, and the obligations imposed on Commonwealth agencies and other persons under the NACC Bill, including: • • • • requirements for agency heads and persons with responsibilities under the PID Act to refer corruption issues as soon as reasonably practicable after becoming aware of the issue discretions for the Commissioner and Inspector to deal with corruption issues, supported by powers to conduct preliminary investigations (described above) to assist them to decide whether or how to deal with the issue in a timely fashion powers for the Commissioner and Inspector to obtain information and documents from Commonwealth agencies with a minimum of formality, as well as a broader suite of investigative powers—including, in particular, powers to require the production of information or documents within a specified timeframe, or a person’s attendance at a hearing at a particular time, and a reporting process that facilitates the timely finalisation and provision of reports, subject to procedural fairness requirements.
Matters within the jurisdiction of the Independent Parliamentary Expenses Authority or the Electoral Commissioner The NACC Bill aims to avoid the politicisation or re-litigation of matters that fall within the jurisdiction of the Independent Parliamentary Expenses Authority (IPEA) or the Electoral Commissioner, by providing that the Commissioner may only investigate such matters if: • • IPEA or the Electoral Commissioner refers the matter to the Commissioner, accompanied by a statement that they consider the issue could involve serious or systemic corrupt conduct, and the Commissioner is also of the opinion that the issue could involve serious or systemic corruption.
Powers for corruption investigations and public inquiries It is common for persons engaged in serious or systemic corruption to take significant steps to conceal or obfuscate their activities.

The Bill provides the Commissioner with strong investigative powers, similar to those of a Royal Commission, to uncover the full extent of the evidence.
Part 7 of the Bill will provide the Commissioner with powers to: • • • • • direct the heads of Commonwealth agencies to provide information, documents and things issue notices requiring people to produce information, documents and things issue summonses requiring people to attend hearings enter and search premises occupied by Commonwealth agencies, to obtain relevant material, and obtain search warrants to enter and search any premises, to obtain relevant material.
The C&T Bill will provide the Commission with access to covert investigative powers under the Crimes Act 1914, Surveillance Devices Act 2004 the Telecommunications (Interception and Access) Act 1979, including powers to obtain telecommunications interception warrants and to conduct controlled operations.

These powers will enable the Commission to obtain information about corruption that would otherwise be unobtainable.
The Commission’s access to covert powers will be provided on the same basis as ACLEI, state anti-corruption commissions and other law enforcement agencies, including thresholds, safeguards and oversight.
For 9 National Anti-Corruption Commission Bills 2022Submission 35 example, the Commission will be able to apply for a telecommunications interception warrant, where it is investigating a ‘serious offence’ within the meaning of the Telecommunications (Interception and Access) Act 1979 (being an offence generally punishable by a maximum penalty of at least seven years’ imprisonment).
Hearing powers As outlined above, the Commissioner will have the power to summon persons to appear before the Commission and answer questions.

The Bill contains a presumption that hearings will be held in private (subclause 73(1)).

However, where the Commissioner is satisfied that it would be in the public interest and that exceptional circumstances justify doing so, the Commissioner will have the discretion to hold part or all of a hearing in public (subclause 73(2)).
Without limiting what the Commissioner can consider when determining whether to hold a hearing in public, subclause 73(3) will set out a number of factors, including: • • • the nature of the corruption issue any unfair prejudice to reputation, privacy, safety or wellbeing that may be caused, and the benefits of public awareness.

The decision about whether to hold a hearing in private or public will be a matter for the Commissioner.
The experience of ACLEI and state and territory anti-corruption commissions is that most hearings are in private.
Private hearings will often be more appropriate including, for example, where: • • the hearing is being conducted at a relatively early stage of an investigation, where a commission is seeking to establish key facts, or the person appearing before a commission is a whistleblower or witness of fact, rather than the subject of the investigation, and the risks to the person’s reputation, safety or wellbeing from holding a public hearing outweigh the benefits of a public hearing.
The Commission’s powers to require persons to answer questions at hearings will be comprehensive, and will include powers to require persons to provide information that is subject to legal professional privilege or that would ordinarily be protected by public interest immunity, as well as to abrogate the privilege against self-incrimination (discussed further, below).
Given the particularly sensitive nature of the information that could be disclosed during hearings, clause 74 of the Bill will require that evidence must be heard in private, if giving the evidence would breach a secrecy provision, or would disclose: • • • • legal advice or legally privileged communications information that the Commissioner is satisfied is ‘sensitive information’ (clause 227), including matters the identity of confidential informants, information that would prejudice the fair trial of any person or the proper enforcement of the law if disclosed, Cabinet deliberations and decisions, and information that could prejudice Australia’s security, defence or international relations information that is covered by a certificate issued by the Attorney-General under clause 235 of the NACC Bill, on the basis that the public disclosure of the information would be contrary to the public interest on certain, specified grounds—those grounds are similar to, but narrower than, those set out in the definition of ‘sensitive information’, described above, or ‘intelligence information’, which is defined in clause 240 of the NACC Bill.
Protecting journalist’s sources The NACC Bill contains a number of safeguards to protect the identities of journalists’ informants and uphold the public interest associated with a free press.

Journalists and their employers will not be required to do anything under the NACC Bill that would disclose the identity of the informant or enable that identity to be 10 National Anti-Corruption Commission Bills 2022Submission 35 ascertained (clause 31).
In particular, this will mean that journalists and media organisations will not be able to be compelled to identify their sources in response to a notice to produce, or at a hearing.

The NACC Bill will preserve legal professional privilege for legal advice given and communications made for the purposes of, or in the course of, a person’s work as a journalist in a professional capacity (subclauses 114(3) and (4)).
The NACC Bill will introduce an additional test that would apply where the Commission seeks a search warrant that relates to a journalist or their employer and the evidential material sought relates to the alleged commission of a secrecy offence by a person other than the journalist (clause 124).
The issuing officer would be required to weigh the public interest in issuing the warrant against the public interests in protecting the source’s identity and in facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest.
This safeguard is separate to broader measures to respond to the recommendations of parliamentary committees in their recent reports on press freedoms, but is consistent with the recommendations for additional protections in those reports.

The government may revisit the drafting of these provisions as part of broader work that is underway to respond to those reports, to ensure a consistent approach is taken across all relevant laws.
The Commission’s right of entry onto Commonwealth agencies’ premises would not apply to premises occupied by the Australian Broadcasting Corporation or Special Broadcasting Service (subclause 117(2)).
Access to the industry assistance framework for the Commission and state anti-corruption and investigative agencies Part 3 of Schedule 1 of C&T Bill will provide the Commission and certain state anti-corruption and investigative commissions with access to the industry assistance framework under Part 15 of the Telecommunications Act 1997 to support their exercise of other powers, such as the execution of telecommunications interception warrants.
The nature of corruption and corrupt relationships means the ability to obtain technical assistance from communications industry participants will greatly assist the work of these agencies when exercising investigative powers in relation to serious, criminal conduct.

The Commonwealth Ombudsman will inspect and publicly report on agency compliance with the framework.
Conferring these powers on the Commission and state agencies is consistent with Recommendation 1 of the Independent National Security Legislation Monitor’s 2020 Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.

Application of privileges Corruption investigations are inherently concerned with how and why decisions were made.
It will therefore be critical for the Commission to have broad access to information that may inform or influence decision- making processes, including legal advice and information that would traditionally be subject to public interest immunity.

It will also be essential that the Commissioner can require public officials and third parties to explain why they made particular decisions or engaged in particular conduct, even where that may be self- incriminatory.

These would be significant powers.


Accordingly, the Bill contains a number of safeguards to protect information that the Commissioner or Inspector may obtain due to the abrogation of privileges or immunities, as outlined below, as well as the requirement that certain evidence be heard in private, as discussed above.
11 National Anti-Corruption Commission Bills 2022Submission 35 Legal professional privilege The abrogation of legal professional privilege will not apply to: • • advice or communications related to a person’s compliance with a direction or notice to produce, or their attendance or reasonably anticipated attendance, at a hearing (subclause 114(2)), or legal advice given, or communications made, for the purposes of, or in the course of, a person’s work as a journalist in a professional capacity (subclauses 114(3) and (4)).
Additionally, while the NACC Bill will preclude a person from refusing to answer a question or comply with a notice to produce on the basis of legal professional privilege, the Bill will not otherwise affect claims of privilege over that information (subclause 114(5)).
This would ensure that, while the Commissioner would be able to obtain and rely on legally privileged material for the purposes of a corruption investigation, including in a private hearing, a person could later claim the privilege to resist: • • • the admission of the material in a subsequent prosecution or other proceeding the publication of the material, including in an investigation report, or the disclosure of the material, for a purpose unrelated to the corruption investigation.
Public interest immunity The Commissioner will be required to include sensitive information, which includes information over which public interest immunity could normally be claimed, in non-public versions of reports (clauses 151 and 164).

Privilege against self-incrimination Answers, information, documents and things provided by a person will not be admissible in evidence against them in most criminal, civil penalty and confiscation proceedings (clause 113).
Further material derived from such material would be admissible.

Provision of a use immunity, but not derivative use immunity, is consistent with the LEIC Act and arrangements for most state and territory anti-corruption commissions.

Parliamentary privilege Clause 274 of the NACC Bill will preserve parliamentary privilege as it relates to the Commissioner’s and the Inspector’s access to information.
This is consistent with the approach taken in the LEIC Act, and for comparable bodies, such as Australian National Audit Office.

It is anticipated that the Commissioner and Inspector would seek to develop a memorandum of understanding with the Parliament on the process to be followed where the Commission seeks to investigate conduct involving a member of the Parliament or parliamentary staff.
Reporting and findings Reporting at the end of corruption investigations and public inquiries will provide transparency regarding the outcome and next steps following a corruption investigation or public inquiry.

Reporting will also support the Commission’s prevention and education function.

After completing a corruption investigation or inquiry, the Commissioner will be required to prepare a report setting out their findings, opinions and recommendations (clauses 149 and 164).
The report will also set out a summary of the evidence and other material on which any findings or opinions are based and the reasons for any recommendations.

Reports will be required to be tabled in each House of the Parliament where a public hearing has been held during the course of an investigation or inquiry (clauses 155 and 168).
The Commissioner will also be able to 12 National Anti-Corruption Commission Bills 2022Submission 35 publish reports when satisfied it is in the public interest to do so (clauses 156 and 169).

Procedural fairness requirements will apply before any opinions, findings or recommendations critical of an agency or person are included in a report (clauses 153, 157, 166 and 170).
The Commissioner’s powers to make findings of fact are integral to the Commission’s transparency, accountability and procedural fairness.

A finding of fact necessarily requires the decision-maker to set out the reasons and evidence on which the finding is made.

Further, the Commissioner’s findings signal the definitive conclusion of a corruption investigation or public inquiry, providing certainty to all parties involved.
The Commissioner will be able to make findings of fact, including about corrupt conduct, but will not be permitted to make findings of criminal guilt or liability (clauses 149, 150 and 164).

Criminal liability can only be determined by a court.

Procedural fairness The Commissioner would be required to provide procedural fairness by ensuring that those who are to be the subject of a critical finding, opinion or recommendation in a report are afforded an opportunity to respond (clauses 153 and 166).
Where the finding is that a person has engaged in corrupt conduct, the Commissioner must also include a summary of the substance of the response in the report, if requested by the person.

Similar procedural fairness requirements apply for public disclosures by the Commissioner in the public interest under clauses 230 and 231.
In addition, the Commissioner may only publicly disclose information that includes an opinion or finding about whether a particular person engaged in corrupt conduct if that information is contained in a report (subclause 230(4)).

Review of findings The Commissioner’s recommendations and findings, including findings of corrupt conduct and any other findings critical of an individual or entity, will be reviewable under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).
In particular, the ADJR Act would enable a court to make orders quashing or setting aside the decision to make one or more findings or recommendations, or refer the decision back to the Commissioner for further consideration.

Reputational safeguards The Government is conscious of the risk of reputational harm to witnesses and persons of interest in corruption investigations.
The Commissioner’s investigation function would be balanced with strong safeguards to ensure that corruption investigations do not cause undue reputational damage, including: providing for investigations to be conducted in a timely manner, so as to ensure allegations of corruption do not impact on a person for an excessive length of time (clause 3) an express ability for the Commissioner to make public statements at any time to avoid damage to a person’s reputation (clause 48) allowing the Commissioner to clarify the capacity in which a witness is appearing at a public hearing (subclause 73(5)) providing a person with a reasonable opportunity to respond to any adverse opinion, finding or recommendation in relation to a person or entity (clauses 153, 157, 166 and 170) including certain sensitive information, including information that would unfairly disclose a person’s personal affairs, in a non-public version of the report (clauses 151 and 164), and provision for the inclusion of statements in investigation reports where it is appropriate and practicable to avoid damage to a person’s reputation, in particular: • • • • • • 13 National Anti-Corruption Commission Bills 2022Submission 35 • • if the Commissioner forms the opinion that a person investigated has not engaged in corrupt conduct, a statement to that effect, and if a person gives evidence at a hearing and is not the subject of any findings or opinions in relation to the corruption investigation, a statement to that effect (clause 149).
Oversight Given the significant powers available to the Commission, and the significance of its findings, it will be important for the Commission to be subject to comprehensive and effective oversight.

The Commission will be overseen by an independent Inspector and a Parliamentary Joint Committee (Part 10 of the NACC Bill).

The Commission’s use of covert powers will be overseen by the Commonwealth Ombudsman, consistent with arrangements for ACLEI and other law enforcement agencies.
Parliamentary Joint Committee on the National Anti-Corruption Commission The Commission and the Inspector will be overseen by a multi-partisan Parliamentary Joint Committee on the National Anti-Corruption Commission, established under Division 1 of Part 10 of the NACC Bill.
The Committee’s functions will include: • • • • considering proposed recommendations for the appointment of the Commissioner, Deputy Commissioners and the Inspector monitoring and reviewing the performance of functions by the Commissioner and the Inspector examining trends and changes in corruption among those subject to the NACC Bill and reporting to both Houses of Parliament, and reviewing the NACC’s budget and finances, and reporting to both Houses of Parliament.
The Committee will consist of 12 members, comprising six members appointed by each House of Parliament.

Of the six members from each House, three will be members of the Government, two will be members of the Opposition and one will be a member of neither the Government nor the Opposition.

The Committee will be established as soon as practicable after the first session of each Parliament.
It will be important for the first Committee to be established promptly after the passage of the NACC Bill, to ensure the first Commissioner, Deputy Commissioners and Inspector may be appointed in order to commence their terms when the Commission is established.
Inspector of the National Anti-Corruption Commission Divisions 2, 3 and 4 of Part 10 of the NACC Bill will provide for an Inspector of the National Anti-Corruption Commission, who will be an independent officer of the Parliament (clause 182) with complete discretion in the performance or exercise of their functions or powers, and who will not be subject to direction from anyone when doing so (clause 183).
The Inspector’s functions are set out in clause 184 and will include: • • investigating ‘NACC corruption issues’ (described below) that could involve serious or systemic corrupt conduct, and investigating complaints made in relation to the conduct or activities of the Commission or its staff.
With the exception of covert investigative powers, the Inspector will have similar powers to the Commission for the purposes of NACC corruption investigations, and slightly more limited powers for the purposes of complaint investigations (clause 214).

As the Inspector will be a specialist oversight body for the Commission alone, their office will be small, and will not have the capacity to develop and sustain the capabilities required to exercise covert investigative capabilities in-house.
However, the Inspector will be able, and the 14 National Anti-Corruption Commission Bills 2022Submission 35 department expects they will, partner with the AFP, and other Commonwealth, state and territory agencies (as appropriate) that have access to such powers.

The C&T Bill will ensure the Inspector can obtain and use information obtained through other agencies’ use of covert investigative powers where relevant to their functions.
‘NACC corruption issue’ is defined in clause 201, and will include corrupt conduct engaged in by, or in NACC corruption issues conspiracy with, a staff member of the Commission, as well as any attempts to corrupt the Commission’s staff.

While any person may refer a NACC corruption issue to the Inspector, the Commissioner will be required under clause 203 to refer all such issues to the Inspector—even issues that do not meet the ‘serious or systemic’ threshold used elsewhere in the NACC Bill.
It will be important for the Inspector to be aware of all NACC corruption issues.

However, the Inspector will have discretion under clause 210 to deal with NACC corruption issues by investigating themselves (whether alone or jointly), referring the issue to the Commission for investigation or referring the issue to a Commonwealth, state or territory agency.
This will allow the Inspector to refer issues to other investigative agencies for their consideration, and give the Inspector flexibility to refer matters back to the Commission where that is appropriate (for example, lower- level matters that can be dealt with effectively through internal processes, or matters that the Inspector is satisfied do not involve impropriety on behalf of the Commission’s staff).
Commonwealth Ombudsman oversight of covert powers The Commission’s use of covert powers will be overseen by the Commonwealth Ombudsman.

This is consistent with the arrangements for other law enforcement agencies authorised to use these powers.
The Ombudsman will conduct inspections and report publicly on the Commission’s compliance with: • • • • surveillance devices and computer access powers under the Surveillance Devices Act 2004 telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the Telecommunications (Interception and Access) Act 1979 industry assistance powers under the Telecommunications Act 1997, and controlled operations under the Crimes Act 1914.
The Ombudsman and the Inspector will be able to share information.

This will ensure a seamless approach to oversight of the Commission while leveraging the Ombudsman’s expertise in overseeing covert powers.

Implementation Subject to the passage of legislation, the department and ACLEI are working to enable the Commission and Inspector to commence operations in mid to late-2023.
The Government has committed $262.6 million over four years for the establishment and ongoing operation of the Commission, ensuring it has the appropriate resources, capabilities and capacity needed to manage referrals and conduct investigations.
This will include funding for ACLEI and the department to support preparations for the Commission, including for ACLEI to expand its staffing and establish a new ICT environment to support the transition into the Commission, and ongoing funding to support the Commission’s establishment and operations following the passage of legislation.
15 National Anti-Corruption Commission Bills 2022Submission 35 Funding will also be allocated over the forward estimates and ongoing to: • • • • • provide legal financial assistance to support witnesses and persons summoned to a hearing before the Commission, through schemes administered by the department support the Office of the Commonwealth Ombudsman in perform its oversight role, including the inspection and monitoring of certain covert and intrusive powers exercised by the Commission ensure the Inspector-General of Intelligence and Security can undertake its role under the NACC Bill, including making referrals and undertaking joint investigations with the NACC enable for the Commonwealth Director of Public Prosecutions to undertake prosecutions arising from the Commission’s investigations, and enable the Inspector to consider complaints and undertake NACC corruption investigations.
Approach to implementation The department and ACLEI are working closely to: • • • support the establishment of the Commission and Inspector ensure ACLEI’s functions and resources transition smoothly to the Commission assist the Commonwealth public sector to prepare for the Commission’s commencement, ahead of the appointment of the Commissioner-designate following the passage of the NACC Bill.

This work is overseen by a Sponsoring Group jointly chaired by the Secretary and the Integrity Commissioner.
Under the guidance of this group, the department and ACLEI will: • • • • • • support processes to appoint the Commissioner, Deputy Commissioners, Chief Executive Officer and Inspector undertake significant recruitment to increase ACLEI’s staffing in preparation for the Commission’s commencement develop policies and processes aligned with the NACC Bill and C&T Bill to support the operations of the new agency, for the new Commissioner’s consideration establish a new, secure ICT environment for the Commission including critical digital forensics and triage and assessment functionality ensure the Commission has appropriate facilities to accommodate additional staff and perform its functions effectively engage with Commonwealth agencies and other stakeholders to assist them to prepare for the Commission’s commencement.
Transitional arrangements following the establishment of the Commission Schedule 2 of the C&T Bill contains transitional arrangements following the repeal of the LEIC Act and the commencement of the NACC Bill, including a framework for managing any ACLEI investigations and public inquiries that remain ongoing once the Commission is established.
By default, where an ACLEI investigation or public inquiry has commenced but is not yet completed at the time of the NACC Bill’s commencement, the Commissioner may complete the investigation or public inquiry under the LEIC Act, despite its repeal (item 2).

Alternatively, the Commissioner will be able to make a ‘transition determination’ under item 3, which will enable the investigation or public inquiry to be dealt with under the NACC Bill (item 3).
The Commissioner 16 National Anti-Corruption Commission Bills 2022Submission 35 could make such a determination where it would be more appropriate to deal with the issues under the NACC Bill, and where the issues could involve serious or systemic corrupt conduct within the meaning of the Bill.

It will be a matter for the NACC Commissioner to determine how specific investigations and public inquiries should be transitioned, within the legislative framework.
The C&T Bill also contains transitional arrangements for: • applications, orders, warrants and notices relating to corruption issues being investigated by ACLEI, that are on foot or in force when the Commission commences (Schedule 2, Part 4) annual reporting requirements for ACLEI and the Commission for the financial year before transition, and in the financial year in which transition occurs (items 40 and 41) the transfer of ACLEI’s staff to the Commission (items 44-48); records or documents in the possession of the Integrity Commissioner, Assistant Integrity Commissioner or ACLEI (item 51).
• • • Item 57 of Schedule 2 of the C&T Bill will enable the Minister to make transitional rules.

The transition of ACLEI to the Commission will be complex, and the department expects it will be necessary for rules to be made to enable a smooth and effective transition.

17 National Anti-Corruption Commission Bills 2022Submission 35