ARTICLE
2 November 2022

Independent Commission Against Corruption (ICAC)

HL
HHG Legal Group

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The NACC will focus on serious or systemic corruption across the Commonwealth government and public service.
Australia Criminal Law
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On 28 September 2022, the government tabled their National Anti-Corruption Commission Bill 2022. This bill, which is expected to pass through parliament, will establish the federal National Anti-Corruption Commission (NACC).

What can the NACC do?

The mandate of this watchdog will be to:

  • Investigate and report on serious or systemic corruption in the Commonwealth public sector;
  • Refer evidence of criminal corrupt conduct for prosecution; and
  • Undertake education and prevention activities regarding corruption.

Furthermore, the NACC will have broad powers to decide what inquiries it launches and will be able to receive referrals from any source.

Who can the NACC investigate?

The NACC will operate on a federal level and will focus on serious or systemic corruption across the Commonwealth government and public service. The Commission will have the power to investigate criminal and non-criminal corrupt conduct that has occurred both before and after its establishment. They will have the power to investigate:

  • Ministers;
  • Parliamentarians and their staff;
  • Statutory office holders
  • Employees of all government entities; and
  • Contractors.

The Commission will not be able to investigate parties outside the public sector unless they have contracts with the government.

What is “Corrupt Conduct”?

The NACC bill defines corrupt conduct to include:

  • Any conduct of any person, whether or not a public official, that adversely affects, or that could adversely affect, either directly of indirectly the honest or impartial exercise of any public official's powers as a public official or performance of their functions or duties as a public official;
  • Any conduct of a public official that constitutes a breach of public trust or is an abuse of the person's office;
  • Any conduct of a public official that constitutes a breach of public trust or is an abuse of the person's office;
  • Any misuse of information or documents acquired in a person's capacity as a public official;
  • ‘Corruption of any other kind';
  • Any attempt to engage in corrupt conduct.

Notably, a person may be found to have engaged in corrupt conduct acting alone or in concert with others. They also do not need to have personally benefitted from the corrupt conduct.

Who will oversee the NACC?

This body will operate independently of government but will be monitored by a Parliamentary Joint Committee and an independent Inspector.

Will the NACC operate in the public eye?

Yes and no. The Commission as currently proposed would be able to hold public hearings in “exceptional circumstances” that were in the public interest. However, the default position is for hearing to be held in private.

The government has not defined what constitutes “exceptional circumstances” however the legislation provides guidance on the factors the Commission will considering in determining whether it is in the public interest to hold a public hearing. These factors include:

  • Any unfair prejudice to a person's reputation, privacy, safety, or well being if the hearing were to be held in public; and
  • If there is any benefit of making the public aware of corruption.

Overall, the Commission will operate more like a Royal Commission than a court. It will be able to make findings of corrupt conduct but not of criminal guilt. At the end of an investigation, the NACC will be required to produce a report containing findings and recommendations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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