The National
Anti-Corruption
Commission
Council of Australasian Tribunals
NSW Chapter: Annual Conference
nacc.gov.au

Scope
•
Origin and functions:
•
Purpose and mission, jurisdiction
•
How we receive referrals and decide what to investigate
•
The first year:
•
Emerging trends
•
Priorities
•
Corruption prevention:
•
Corruption prevention strategies
•
Corruption prevention themes
•
Opportunities for cooperation

Origins and establishment
Integrity
Mandate
Leadership
APS leadership
A key election issue
A government acting
embedding a
clearly expressed by
on that expressed
pro-integrity culture
the Australian people
desire
at all levels

Purpose and Mission
Purpose: To provide independent assurance to the
Australian community that corrupt conduct involving
Commonwealth public officials is prevented, detected,
investigated, and responded to appropriately.
Mission: To enhance integrity in the Commonwealth
public sector, by deterring, detecting and preventing
corrupt conduct involving Commonwealth public
officials, through education, monitoring,
investigation, reporting and referral.

Organisation
Commissioner
Deputy
Commissioners
CEO
Governance
Communications
Operations
Capabilities
Evaluation
Legal
and Corruption
Enabling
Prevention&
Services
Education
Investigations
Intelligence
Intake and
Operational
Prevention &
Property
Triage
Engagement
Surveillance
Corporate
ICT
Assessments
Media &
Referred
Comms
Finance
Investigations
Security
HR

A corruption issue: s9
The touchstone of the Commission’s jurisdiction is a
“corruption issue”.
That is a question of whether a person has engaged, is
engaging, or wil engage in, corrupt conduct.

What is corrupt conduct?
Misuse of
Breach of
public trust
Abuse of office
information or
documents
An act that leads to a public official behaving other than
honestly and impartial y

Breach of public trust: s8(1)(b)
• Public powers are conferred on public officials for the public
benefit
• It wil be a breach of public trust if a power is not exercised
honestly for the purpose for which it is conferred
• The key feature of a breach of trust is the exercise of a
power, or the performance of a function, for an improper
or collateral purpose.
• This could include the use official powers to advance a personal
interest; or applying public resources for a purpose for which
they were not appropriated.

Abuse of office: s8(1)(c)
• The concept of an abuse of office by a public official involves the
official intentionally engaging in improper acts or omissions in
their official capacity, to gain a benefit for themselves or another
person, or to cause a detriment to another person.
• An abuse of office can be committed through the exercise of
influence arising from the person’s public office or the use of
information obtained in their capacity as a public official.

Misuse of official information: s8(1)(d)
• Any conduct of a public official, or a former public official, that
constitutes or involves the misuse of information or documents
acquired in the persons capacity as a public official, is corrupt
conduct
• That includes:
• Unauthorised access
• Unauthorised disclosure
• Unauthorised use

Conduct affecting honesty or impartiality
• Any conduct of any person that adversely affects, or could
adversely affect, directly or indirectly, the honest or impartial
performance of any public official’s functions as a public
official.
• Includes a public official’s own conduct if it has or could have the
specified effect in relation to the official’s own functions.

Serious or systemic
Serious
Systemic
Something that is
Something that is more
significant; something
than an isolated case
more than ‘negligible’ or
and involves a pattern of
‘trivial’, but it does not
behaviour, or something
have to be ‘severe’ or
that affects or is
‘grave’
embedded in a system

Some important qualifications
• The notion is concerned with probity in public
administration.
• Mere maladministration is not corruption:
• General y, bad faith and/or personal benefit (for self
or another) is necessary to make it corrupt.
• The Act does not legislate new standards of behaviour:
• The conduct it characterises as corrupt conduct has
always been regarded as improper.
• Retrospective operation is therefore appropriate.

Jurisdiction of the NACC
Commonwealth
public officials
Parliamentarians
Staff members
of agencies

Staff members
An individual who
An individual
is employed by or
involved in
An official
engaged in
providing services
of the entity
assisting an agency
to or for an
(including
agency under a
consultants)
Commonwealth
contract

Referrals to the Commission
Voluntary
Mandatory
Own motion
Anyone can submit a
If an agency head
The Commission can
corruption report to
suspects serious or
investigate a
the Commission or
systemic corruption
corruption issue it
provide information
involving a staff
member, they must
becomes aware
about a corruption
report it to the
of on its own motion
issue
Commission
without a referral

Making a referral
Online
Phone
Post
nacc.gov.au
1300 489 844
GPO Box 605
Canberra ACT 2601

Whistleblower protections
Protection: Not subject to civil, criminal, or administrative
liability (including disciplinary action) for making disclosure
Contractual rights: No contractual or other right or remedy
can be enforced against whistleblowers
Reprisals: It is a criminal offence to take reprisals against
whistleblowers
Exception: Making false or misleading statements to the NACC

Dealing with a corruption issue: s 41
• If it could be serious or systemic:
• Investigation by Commission (s41(1)(a))
• Joint investigation with another Commonwealth or State
agency (s41(1)(b))
• Refer to another agency for investigation (s41(1)(c))
• Refer to another agency for consideration (s41(1)(d))
• Take no further action (s41(6))
• No duty to consider dealing with a referral (s41(7))

Assessment of referrals
Triage
Assessment
• Does the referral concern a • Serious or systemic?
Commonwealth public
• Should the Commission deal with
official?
the issue and if so, how?
• Does the referral raise a
• Preliminary investigation?
corruption issue?

Evaluation of referrals
Pathways and Prospects
Scale and gravity
Strategic Corruption
Public interest
Priorities
Will a NACC
Will an inquiry
investigation add value?
‘clear the air’?

Investigatory powers
Require the
Search premises,
people, intercept
Summon witnesses
production of
communications and
for examination at
documents and
use surveillance
hearings
information
devices under warrant

Investigation conclusion and reporting
• Commission’s role: At the conclusion of an investigation, the
Commission provides a report to the Attorney-General
• Findings: The report may include a finding that a person has
engaged in ‘corrupt conduct’. This is an administrative finding,
not a finding of criminal guilt
• Recommendations and referrals: The Commission can also
make recommendations, including to terminate the
employment of an APS employee, under section 15(2) of the
Public Service Regulations 2023; and refer matters to
prosecutorial agencies

Judicial review
• No duty to consider whether to deal with a corruption
issue, regardless of by whom referred: s 41(7)
• No obligation to give reasons for not dealing with an
issue.
• Decisions whether or not or how to deal with a referral
are not amenable to judicial review.
• A finding of corrupt conduct is an administrative finding
of fact: s 149(3)
• Briginshaw standard
• Rules of procedural fairness apply: s 150
• Such a finding is amenable to judicial review.

Independence and accountability
• Fixed term appointment, not renewable
• No one can direct the Commission what to investigate
• Reinforced by s 41(7) and own motion powers
• Oversight by
• Inspector
• Parliamentary Joint Committee

Statistics – 1 July 2023 to 30 June 2024
3,189
29
26
referrals
preliminary
corruption
investigations
investigations
(+ 361)
(+ 4)
(+ 3)
7
5 matters in
3 convictions
investigations
court
from ACLEI
(+ 2)
1 committal
As at 28 August 2024

Emerging trends in public sector corruption
Procurement
Public/private
Recruitment
interface
Preferring
Use of
family,
friends and
insider
associates
information
Compromised
Conflict of
decision
making
interests

Priorities
To assist in prioritising
our efforts logically, the
Commission has
adopted 6 Strategic
Corruption Priorities to
guide its work

Current investigations
• 6 relate to former or current parliamentarians
• 3 relate to former or current parliamentary staffers
• 4 relate to contractors or consultants
• 7 relate to senior executive officials
• 8 relate to law enforcement officials
• 8 relate to procurement
• 1 relates to recruitment
• 4 relate to the border
• 4 relate to law enforcement misconduct
• 3 relate to grants
• Most investigations do not result in a finding of corrupt conduct

Operation Kingscliff
Issue: Procuring appointment of relative without
disclosing relationship
Corrupt conduct: Abuse of office to dishonestly obtain a
benefit for another
Investigation:
• Departmental documentary record
• POI communications
• Compulsory examinations
Corruption risk: Recruitment - preference of associates,
use of inside information

Operation Pelican
Issue: Soliciting a secret commission for awarding a
Commonwealth contract.
Corrupt conduct: Abuse of office to dishonestly obtain a
benefit for self
Investigation:
• Telecommunication intercepts
• Surveil ance devices
• Controlled operation
Corruption risk: Procurement

Transparency v Secrecy
• Weekly statistics
Referrals and
• Subject matter or status not disclosed
Investigations
• Unless or until court or other public action
• Generally in private; public in exceptional
circumstances only
Hearings
• Unfair premature damage to reputations
• To elicit information and evidence
• Often facilitates evidence and disclosures
• Where there has been a public hearing
• If satisfied it is in the public interest to do so
Reports
• Where there has been a finding of corrupt
conduct
• To clear the air of unsubstantiated allegations

Corruption prevention strategies
Support
Grow a
potential
Encourage
culture which
Conduct
targets to
and facilitate
does not
public
recognise
reporting
tolerate
inquiries
and resist
corruption

Corruption prevention themes
Ethical
Issues
Conflicts
of interest
decision
associated with
making
elections

The impact of organisational culture
How people respond to ethical dilemmas
is determined more by organisational culture
than by policy and protocol
Culture establishes
Culture provides
accepted bounds
organisational norms
and decision
and boundaries for
points for behaviour
value-based decisions

The National
Anti-Corruption
Commission
nacc.
n
g
acc. ov
o .
v au
.

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