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3. Three step assessment process
Introduction
3.1 All assessment decisions are to made on a case-by-case basis, having regard to the
particular features of the information and circumstances. The assessment process
contained in this policy is intended to ensure that a consistent approach that has
regard to relevant considerations is applied to the assessment of corruption issues.
3.2 The process for assessing information about a corruption issue involves three
stages:
• first, determine whether there is a corruption issue,
• secondly, decide whether or not to deal with the corruption issue, and
• thirdly, decide how to deal with the corruption issue.
Information gathering for assessments
3.3 The Commissioner may deal with a corruption issue that has been referred, or that
the Commissioner becomes aware of in any other way.4
3.4 In the assessment process, the Commissioner is not limited to the information
provided by the person who makes a referral, or the person on whose behalf the
referral was made, and the Commissioner may inform themselves as they think fit.5
3.5 Additional information may be gained through:
• seeking further information from the referrer,
• searching for information in the Commissioner’s existing holdings, to the extent
allowed by law,
• searching for information in the public domain, and
• seeking further information from third parties.
Preliminary investigations
When the Commissioner conducts preliminary investigations
3.6 To inform the assessment process, the Commissioner may conduct a preliminary
investigation in order to:6
• confirm the existence or nature of a corruption issue (at the first stage),
• assist in deciding whether to deal with a corruption issue (at the second stage),
and
• assist in deciding how to deal with a corruption issue (at the third stage).
________________
4
National Anti-Corruption Commission Act 2022, s 40.
5
National Anti-Corruption Commission Act 2022, s 42(5).
6
National Anti-Corruption Commission Act 2022, s 42.
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3.7 A preliminary investigation begins when the Commissioner decides that it is
necessary or desirable to conduct a preliminary investigation for one of the
purposes listed at paragraph 3.6 above.
3.8 Generally, the Commissioner will only decide that it is necessary or desirable to
conduct a preliminary investigation if it has not been possible otherwise to obtain
sufficient information to make the relevant decision (including from the measures
referred to in paragraph 3.5 above), and it appears likely that the additional powers
of a preliminary investigation may produce information that will better enable an
informed assessment.
3.9 Generally, the Commissioner will not:
• notify the referrer before conducting a preliminary investigation, or
• notify the referrer of the outcome of a preliminary investigation, unless the
outcome is a decision to take no further action on the referral.
4. Deciding if there is a corruption issue
Authority to make a decision under the NACC Act
4.1 The Commissioner only has jurisdiction to deal with a “corruption issue”.7 A
corruption issue is an issue of whether a person has engaged, is engaging, or will
engage, in corrupt conduct.8
4.2 Corrupt conduct means:9
a.
any conduct of any person that could adversely affect the honest or impartial
exercise or performance of any public official’s powers, duties or functions,
b.
any conduct of a public official that constitutes or involves a breach of public
trust,
c.
any conduct of a public official that constitutes, involves or is engaged in for
the purpose of abuse of the person’s office as a public official, or
d.
any conduct of a public official, or former public official, that constitutes or
involves the misuse of information or documents acquired in the person’s
capacity as a public official.
4.3 Conduct can include doing or omitting to do something, conspiring with another
person to do something and attempting to do something.10
4.4 A public official means a parliamentarian (of the Australian Parliament), a staff
member of a Commonwealth agency, a staff member of the Commission, and any
person who is acting for and on behalf of, or as a deputy or delegate of, any of
those persons.11 A staff member of a Commonwealth agency includes an individual
________________
7
National Anti-Corruption Commission Act 2022, ss 40, 41.
8
National Anti-Corruption Commission Act 2022, s 9.
9
National Anti-Corruption Commission Act 2022, sub-s 8(1).
10
National Anti-Corruption Commission Act 2022, sub-ss 8(9) and (10).
11
National Anti-Corruption Commission Act 2022, s 10.
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who is employed by or engaged in assisting the agency, or a contracted service
provider under a contract administered by the agency.12
The elements of corrupt conduct
4.5 There will be a
corruption issue capable of investigation, only if each of the
elements of one or more of the types of
corrupt conduct defined under the NACC
Act
could be established. At the assessment stage, the question is only whether
they
could ultimately be established, not whether they
are established. Those
elements vary depending on the type of corrupt conduct.
4.6 A single referral may raise more than one type of corrupt conduct.
4.7 The elements of the type of corrupt conduct referred to at paragraph 4.2(a) above
(conduct that adversely affects the honest or impartial exercise of a public official’s
powers) are:
• that a person engaged, is engaging or will engage in conduct
• that the conduct actually had an adverse effect (directly or indirectly) on the
honest or impartial exercise of powers, functions or duties
or
the conduct could have an adverse effect (directly or indirectly) on the honest or
impartial exercise of powers, functions or duties, and
• that those powers, duties or functions were the powers, duties or functions of a
public official as a public official.
4.8 The elements of the type of corrupt conduct referred to at paragraph 4.2(b) above
(breach of public trust by a public official) are:
• that a person engaged, is engaging or will engage in conduct
• that at the time of the conduct, the person held an office as a public official
• that the conduct relates to a matter of public trust, and
• that the conduct constitutes or involves a breach of that public trust.
4.9 The elements of the type of corrupt conduct referred to at paragraph 4.2(c) above
(abuse of office by a public official) are:
• that a person engaged, is engaging or will engage in conduct
• that at the time of the conduct, the person held an office as a public official, and
• that the conduct constitutes or involves an abuse of that office.
4.10 The elements the type of corrupt conduct referred to at paragraph 4.2(d) above
(misuse of information by a current or former public official) are:
• that a person acquired information or a document
• that at the time the person acquired the information or document, the person
was a public official
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12
National Anti-Corruption Commission Act 2022, s 12
.
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• that at the time the person acquired the information or document, the
information or document was acquired by the person in their capacity as a
public official, and
• that the person engaged, is engaging or will engage in conduct that constitutes
or involves the misuse of the information or document.
4.11 If it appears that one (or more) elements of a type of corrupt conduct
could not be
established, then there is no corruption issue to be investigated.
4.12 Further, if the conduct in question involves political activities, then there is no
corruption issue to be investigated if the conduct does not involve or affect:13
• the exercise of a power or the performance of a function or duty, by a public
official (including a parliamentarian); or
• the use of public resources.
5. Deciding whether or not to deal with a corruption
issue
Authority to make a decision under the NACC Act
5.1 The Commissioner may decide to take no action in relation to a corruption issue.14
Authority to make this decision has been delegated to staff in the Intake and
Assessment Section at the level of EL2.15
No obligation to consider dealing with a corruption issue
5.2 The Commissioner does not have a duty to consider whether to deal with a
corruption issue, whether the Commissioner is requested to do so by the referrer or
by any other person, or in any other circumstances.16
Relevant considerations in deciding whether or not to deal with a corruption
issue
5.3 When deciding whether or not to deal with a corruption issue, potentially relevant
considerations include (but are not limited to):
a.
The nature of the allegation, including its inherent plausibility and objective
seriousness, and relationship to NACC priorities –
The nature of an allegation is relevant to its plausibility. Impossible or
implausible allegations are less amenable to investigation and ultimately
findings of fact.
The objective seriousness of a corruption issue is a highly relevant
consideration; the more serious the issue, the more likely it is to require
________________
13 Section 8(13) of the
National Anti-Corruption Commission Act 2013
14 NACC Act, s 41(6).
15 National Anti-Corruption Commission (National Anti-Corruption Commission Act 2022) Delegation
2023, CM23#1226DOC.
16
National Anti-Corruption Commission Act 2022, sub-par 41(7).
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investigation. The objective seriousness of an allegation will also interact with
other considerations. For example, the objective seriousness of an allegation
may warrant the Commission making a final and decisive determination of an
issue, notwithstanding that it has already been investigated by an agency
internally, whereas a less serious allegation might not.
The Commission will from time to time have priority areas of interest. An
issue that falls within a priority area of interest is more likely to warrant
investigation.
b.
The cogency, clarity and particularity of the allegation –
The particularity of an allegation is relevant to the capacity of the matter to
be determined. Focussed and precise allegations are more amenable to
investigation and findings, than vague, imprecise or incoherent allegations.
c.
The completeness and credibility of the information provided by the referrer,
informed by the referrer’s capacity to provide such information –
Allegations that are corroborated by information that is within the capacity of
the referrer to provide are inherently more plausible than unsupported, bare
allegations. The unexplained withholding of information that would ordinarily
be within the capacity of the referrer to lawfully obtain and provide to the
Commission may be relevant to the credibility of any information that the
referrer provides in support of their allegation, although care must be taken
to the application of this in the context of whistle-blowers.
The thoroughness and completeness of information that is contained within a
referral will also inform other considerations in this list.
The Commission may give weight to the credibility and reliability of existing
evidence. However, in doing so, the Commission must take care not to
prejudge or prematurely close-off actionable information.
d.
The availability of investigative pathways (including the various options open
at stage 3, below) –
Where investigative pathways exist that may shed light on the truth of an
allegation, it is more likely that the referral will put forward a question that
can be determined, than where available investigative pathways offer a very
small prospect of a conclusive outcome.
e.
The extent to which the issue has previously been investigated (including any
previous investigation, litigation or other scrutiny of the allegations) –
The history of the referral is relevant to whether further investigation of the
allegation is appropriate, or likely to lead to a determination of the matter.
Allegations that have not been scrutinised prior to their referral are more
likely to leave questions to be investigated. Conversely, allegations that have
already been fully investigated, scrutinised or litigated leading to a conclusive
outcome are less likely to be appropriate for further investigation. However,
in some cases a corruption investigation regarding the alleged conduct of a
public official may be warranted, even if a Commonwealth integrity agency
has previously concluded an investigation into that alleged conduct, having
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regard to the public interest, the nature of the earlier investigation, the
availability of new evidence, and other factors.
5.4 It will generally be appropriate to decide not to deal with a corruption issue and to
take no further action if:
a.
There appears to be no real prospect that an investigation will obtain evidence
of corrupt conduct. However, sometimes it will be in the public interest to
proceed to investigation, in order to clear the air; or
b.
There has been a previous adequate investigation of the conduct in question.
However, it is necessary to maintain an open mind to the possibility that a
previous investigation has failed to uncover the truth, and that referrals which
may appear querulous not infrequently have at their origin a legitimate
grievance which has not been adequately addressed.
6. Deciding how to deal with a corruption issue
Authority to make a decision under the NACC Act
6.1 If the Commissioner decides to deal with a corruption issue, then the Commissioner
can do so in any one or more of the following ways:17
•
investigate – either alone or jointly with a Commonwealth agency or a State or
Territory government entity, subject to some qualifications,18 if the issue could
involve corrupt conduct that is serious of systemic. These are called “corruption
investigations”;
•
refer for investigation – to a Commonwealth agency to which the corruption
issue relates, if the Commissioner is satisfied that the agency has appropriate
capabilities to investigate the issue; or
•
refer for consideration – to a Commonwealth agency or a State or Territory
government entity.
6.2 Authority to make this decision has been delegated to staff in the Intake and
Assessment Section at the level of EL2.19
________________
17
National Anti-Corruption Commission Act 2022, sub-s 41(1).
18 The
National Anti-Corruption Commission Act 2022 places some restrictions and qualifications on the
Commissioner’s ability to investigate:
matters that have already been investigated by Commonwealth integrity agencies: s 45
certain matters that can be dealt with, are being dealt with, or have been dealt with, by
Independent Parliamentary Expenses Authority: s 46,
certain matters that can be dealt with, are being dealt with, or have been deal with, by the
Electoral Commissioner: s 47.
Those restrictions and qualifications are dealt with at paragraphs 6.13 – 6.15 below.
19 National Anti-Corruption Commission (National Anti-Corruption Commission Act 2022) Delegation
2023, 23#1226DOC.
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The Commissioner is to deal with corruption issues in the most appropriate way
having regard to all the circumstances
6.3 When deciding between the options referred to at paragraph 6.1 above, the
Commissioner may have regard to:
a.
whether the corruption issue could involve corrupt conduct that is serious or
systemic;
b.
the significance of the corruption issue, including:
i.
to the public,
ii.
to the referrer,
iii.
to the agency concerned;
c.
the need to ensure that the corruption issue is appropriately investigated;
d.
any need for a perception of independence in the investigation;
e.
the capability and capacity (including coercive powers) of the Commission to
investigate the corruption issue;
f.
the capability, capacity, expertise and willingness of any other relevant
agency to investigate the corruption issue;
g.
the desirability of oversight, including statutory reporting requirements; and
h.
any other matter the Commissioner thinks fit in the circumstances.
Deciding to conduct a corruption investigation, alone or jointly
When to investigate
6.4 The Commissioner may not investigate a corruption issue unless the Commissioner
is of the opinion that the issue could involve corrupt conduct that is serious or
systemic.2021
Corrupt conduct that is serious
6.5 When deciding whether corrupt conduct is serious, the Commissioner will have
regard to the weight or importance or significance of the conduct, and the gravity
of its actual or potential consequences. Conduct is serious if it is significant or
worrying, not slight or negligible, but it does not have to be “severe” or “grave”.
6.6 When considering the weight or importance of corrupt conduct, regard may be had
to:
a.
whether the conduct constitutes or enables, or would constitute or enable, the
commission of an offence; if so, the seriousness of that offence, compared to
other offences, using its maximum penalty as a guide;
________________
20
National Anti-Corruption Commission Act 2022, sub-s 41(3).
21 Refer also Standard Operating Procedure; Managing Corruption Issues, regarding serious and systemic
considerations.
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b.
whether the conduct involves planning or coordination, and if so, the degree
of planning or co-ordination;
c.
the extent to which the conduct departs from accepted norms and practices;
d.
the extent to which the person or persons responsible knew that they were
engaging in corrupt conduct, including whether they had been warned
previously;
e.
whether the conduct was done covertly or involved deception; and
f.
the actual or potential consequences of the conduct, including:
i.
whether the conduct results, or would result, in an advantage or benefit,
and if so, nature of that advantage or benefit, including who enjoys the
advantage or benefit and its amount or value,
ii.
whether the conduct results, or would result, in harm, loss or
disadvantage, and if so, nature of that harm, loss or disadvantage,
including who suffers and its amount or value,
iii.
whether the conduct involves or affects, or would involve or affect, a
person who is not party to the corrupt conduct; and
iv.
whether and to what extent the conduct would significantly erode public
faith in the individuals and institutions entrusted with the power.
6.7 The Commissioner may have regard to more specific considerations in some
contexts. They do not exclude the general considerations set out above, which may
exist alongside and overlap in some circumstances.
6.8 The following specific considerations may arise in cases of corrupt conduct that
involves, or affects, an exercise of power:
a.
the nature of the power and the circumstances surrounding its exercise,
including:
i.
whether the power is exercised by one person, or a limited group of
people (abuse of a power entrusted only to a few may be more serious
than where entrusted to many),
ii.
the character of the power, including whether it is general or technical in
nature (abuse of a technical power may be more serious than of a
general power),
iii.
whether processes leading to, or surrounding, the exercise of power are
transparent (abuses of a power that are not transparent may be
regarded as more serious than of those which are transparent),
iv.
whether the exercise of power involves a significant imbalance between
the person exercising the power and other individuals (abuse of a power
where there is an imbalance may be more serious than where there is
not); and
b.
institutional checks on exercises of the power (which may make abuse of the
power less significant), including:
i.
independent oversight, and
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ii.
a right to review exercises of the power on the merits.
6.9 The following specific considerations may arise in cases of corrupt conduct that
involves the use of Commonwealth resources:
a.
whether those resources are resources that are only available to certain public
officials; and
b.
whether the use of resources would result in loss.
6.10 The following specific considerations may arise in cases of corrupt conduct that
involve misuse of information:
a.
whether the information was valuable or sensitive, and if so, the value of the
information or reasons for its sensitivity;
b.
whether the information was put to any use beyond mere access, and if so
what use; and
c.
whether the dealing involved circumvention of measures taken to secure the
information, and if so, the level of sophistication involved in circumventing
those measures.
Corrupt conduct that is systemic
6.11 When deciding whether corrupt conduct is systemic, regard may be had to whether
the conduct:
• is other than an isolated occurrence;
• forms part of a pattern of conduct, or
• although a singular act, affects a system or organisation as a whole, such as a
process undertaken by an agency, or an agency or the public service as a
whole.
Deciding to investigate
6.12 Subject to paragraphs 6.15 - 6.17 below, the Commissioner will generally decide to
investigate a corruption issue that could involve corrupt conduct that is serious or
systemic if:
• the Commission has the capability and capacity to investigate the corruption
issue, and
• there is no other agency with appropriate capabilities that is able and willing and
appropriate to investigate the corruption issue.
Joint or separate investigation
6.13 The Commissioner may decide to investigate jointly with another Commonwealth
agency. However, the Commissioner will not investigate jointly with an agency to
which the corruption issue relates, if a joint arrangement might compromise the
investigation, or be unworkable or impractical.
6.14 Generally, where there are cross-jurisdictional issues, the Commissioner will
investigate jointly with a relevant State or territory government entity.
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Restrictions on investigating certain parliamentary expense and electoral matters
6.15 The Commissioner must not commence a corruption investigation into a corruption
issue involving conduct that has been or could be dealt with by the Independent
Parliamentary Expenses Authority or the Electoral Commissioner, except on referral
by the Authority or the Electoral Commissioner respectively.22
6.16 If a referral relates to a corruption issue that the Commissioner is prevented from
investigating because the referral was not made by the Independent Parliamentary
Expenses Authority or the Electoral Commissioner, then the Commissioner may:
• refer the issue (under s 41(1)(d)) for consideration by the Independent
Parliamentary Expenses Authority or the Electoral Commissioner; or
• inform the referrer that the matter should be referred to the Independent
Parliamentary Expenses Authority or the Electoral Commissioner, as the case
may be.
Public interest test where matter already dealt with by an integrity agency
6.17 If a Commonwealth integrity agency has previously concluded an investigation into
a matter regarding the conduct of a public official, then the Commissioner may only
commence an investigation into a corruption issue involving the conduct if the
Commissioner is satisfied that it is in the public interest to do so.23 In making that
decision, relevant considerations include, without limitation:
• the significance of the corruption issue;
• the details of the investigation undertaken by the Commonwealth integrity
agency;
• any conclusions or findings of the integrity agency;
• whether the Commissioner has any new evidence;
• any unfairness to a person that may arise as a result of the Commissioner
conducting a further investigation; and
• the need to ensure that the corruption issue is fully investigated.
________________
22 See
National Anti-Corruption Commission Act 2022, ss 46, 47.
23 Refer to s 45 of the
National Anti-Corruption Commission Act 2022. Under sub-s 45(3), when
determining whether it is in the public interest to investigate, the Commissioner may have regard to any
matter including:
•
the significance of the corruption issue
•
the details of the investigation undertaken by the Commonwealth integrity agency
•
any conclusions or findings of the integrity agency
•
whether the Commissioner has any new evidence in relation to the corruption issue
•
any unfairness to a person that may arise as a result of the Commissioner conducting a further
investigation into the corruption issue, and
•
the need to ensure that the corruption issue is fully investigated.
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Deciding to refer to a Commonwealth agency for investigation
When to refer to a Commonwealth agency for investigation
6.18 The Commissioner may only refer a corruption issue for investigation to a
Commonwealth agency to which the issue relates if the Commissioner is satisfied
that the agency has appropriate capabilities to investigate the issue.24
6.19 In deciding whether the Commonwealth agency to which the issue relates
Commissioner has appropriate capabilities to investigate the issue, the
Commissioner will take into account:
a.
the nature of the corruption issue, including whether it is serious or systemic,
b.
the existence, independence and expertise of investigators within the agency,
c.
the investigatory powers of the agency,
d.
any perceived need for independence from the agency,
e.
the views of the agency head, and
f.
any other matter that the Commissioner thinks fit.
6.20 The Commissioner will generally decide to refer a corruption issue to the
Commonwealth agency to which the investigation relates for investigation if:
a.
the Commissioner considers that the corruption issue is one which warrants
investigation but is not of the opinion that it could involve corrupt conduct
that is serious or systemic; or
b.
the Commissioner is of the opinion that the corruption issue could involve
corrupt conduct that is serious or systemic, but the agency has relevant
specialist knowledge or responsibility, and has the capacity and is willing to
conduct an adequate investigation.
When the Commissioner will oversee investigations
6.21 If the Commissioner deals with a corruption issue by referring it to a
Commonwealth agency for investigation, then the Commissioner may decide to
oversee the investigation,25 and may give the agency directions about the planning
and conduct of the investigation.
6.22 Generally, the Commissioner will undertake the type of oversight referred to at
paragraph 6.21 if the Commissioner is of the opinion that the corruption issue could
involve corrupt conduct that is serious or systemic.
6.23 Generally, the Commissioner will not give the agency detailed directions about the
planning and conduct of the investigation.
When the Commissioner will direct final reports on investigations
6.24 If the Commissioner deals with a corruption issue by referring it to a
Commonwealth agency for investigation, then the Commissioner may require the
________________
24
National Anti-Corruption Commission Act 2022, sub-par 41(1)(c).
25
National Anti-Corruption Commission Act 2022, s 50.
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head of the agency to provide either or both or (a) progress reports from time to
time, and (b) a report on the completion of the investigation (
completion report).26
6.25 Generally, the Commissioner will require the head of the agency to provide a
completion report if the Commissioner is of the opinion that the corruption issue
could involve corrupt conduct that is serious or systemic.
6.26 Generally, the Commissioner will request that the completion report contains the
following:
• the steps taken by the agency to investigate the corruption issue,
• the agency’s conclusions or findings on the corruption issue, and
• action taken by the agency following the agency’s investigation, if any.
Deciding to refer to a Commonwealth agency for consideration
6.27 Generally, the Commissioner will decide to refer a corruption issue to another
agency for consideration where:
a.
the other agency has the capabilities to investigate the issue, and the
Commissioner considers that whether it warrants investigation is best
determined by the other agency; and
b.
it would not be possible, necessary or otherwise appropriate to exercise any
of the Commissioner’s oversight or reporting powers in respect of the other
agency.
Other powers
Public comment
6.28 The Commissioner may at any time issue a public statement about a corruption
issue, subject to requirements of procedural fairness.27
6.29 Generally, the Commissioner will only make a public statement about a corruption
issue if the Commissioner is satisfied that:
a.
it is appropriate and practicable to do so to avoid damage to a person’s
reputation, or
b.
it is necessary to appeal to the public, or a section of the public, for
information about the corruption issue, or
c.
it is otherwise in the public interest to do so.
Reconsideration
6.30 The Commissioner may, at any time, reconsider whether or how to deal with a
corruption issue.28
________________
26
National Anti-Corruption Commission Act 2022, s 52.
27
National Anti-Corruption Commission Act, s 48.
28
National Anti-Corruption Commission Act, sub-s 41(5).
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