National Anti-Corruption Commission: how will it work and who is in favour?
Australia’s attorney general, Mark Dreyfus, has introduce the National AntiCorruption Commission bill – the first time it has been seen by the Coalition and crossbench.
We’ve checked how the Nacc will be set up, what its powers are, and when it will hold public hearings.
What is the Nacc?
The National Anti-Corruption Commission is a body to investigate and report on serious or systemic corruption in the commonwealth public sector.
It will be led by a commissioner and up to three deputy commissioners, who will have security of tenure. The commissioner will serve one fixed term of five years, but deputies will be able to serve two terms.
What can it investigate?
The Nacc has a broad jurisdiction to investigate commonwealth ministers, parliamentarians, staff, the heads and employees of commonwealth agencies, government contractors and their employees, defence force members, statutory office holders and appointees, officers and directors of commonwealth companies, and people or bodies providing services, exercising powers or performing functions on behalf of the commonwealth.
Sign up to receive an email with the top stories from Guardian Australia every morning
It will be able to investigate both criminal and non-criminal corrupt conduct, such as abuse of office, breach of public trust, and misuse of information.
It can investigate conduct occurring before its establishment, meaning its powers are retrospective.
What about third parties?
The definition of corrupt conduct includes that of “any person (whether or not a public official) that adversely affects, or that could adversely affect” the honest or impartial exercise of a public official’s powers or duties.
Crossbench MPs and the Greens lobbied for inclusion of third parties so that the Nacc could investigate entities without government contracts, like political donors or those seeking to corrupt government decisions.
How will investigations start?
The Nacc is able to begin inquiries on its own initiative or in response to referrals from anyone, including members of the public and whistleblowers. Referrals can be anonymous.
What are its powers?
The Nacc will be able to compel the production of documents or information, obtain a warrant to enter and search premises, enter certain commonwealth premises without a search warrant, seize evidence and exercise limited powers of arrest to ensure attendance at a hearing.
It will also have covert investigative powers such as telecommunications interception powers and the ability to use surveillance devices, subject to existing safeguards.
When will it hold public hearings?
Dreyfus has said that “most” of the commission’s hearings will be in private.
The commissioner may decide to hold public hearing if he or she is satisfied that “exceptional circumstances” justify it and it is “in the public interest to do so”.
The bill does not define what exceptional circumstances are, which transparency stakeholders have warned could encourage parties under investigation to appeal to the courts to block a public hearing.
The bill does contain a list of matters the commission may consider in determining whether public hearings should be held, including: the extent to which the corruption might be serious or systemic; whether evidence is of a confidential nature or relates to a potential offence; “any unfair prejudice to a person’s reputation, privacy, safety or wellbeing”; whether a person giving evidence has “a particular vulnerability”, including their position relative to a person with power over them; and the benefits of exposing corrupt conduct to the public.
Is this how it works in the states?
The “exceptional circumstances” requirement echoes the Victorian regime. It guarantees that public hearings are at least a possibility, unlike in South Australia.
But it is a higher bar than in New South Wales, Tasmania, Queensland, the Northern Territory, ACT and Western Australia.
For example, in Queensland and WA, private hearings are the default, but public hearings can be held if they would be “more effective and not unfair or contrary to the public interest”, or “in the public interest”.
Can it make findings of corruption?
The Nacc will be able to make findings of fact in reports, including findings of corrupt conduct, but not to make determinations of criminal liability.
The commissioner could refer evidence of alleged criminal conduct to appropriate agencies, such as the commonwealth director of public prosecutions, for further consideration.
Will the Coalition and crossbench support it?
On Monday’s Four Corners program, the opposition leader, Peter Dutton said he suspected the Coalition would “be in a position to support” the bill, after the government had addressed concerns about “show trials” and the breadth of the Nacc’s scope.
On Wednesday, after the bill’s release, Dutton said the government had “got the balance right” on public hearings. He said the Coalition “supports a very strong” anti-corruption commission model but the party room was yet to determine its final position.
The crossbench have been highly supportive of many elements of the Nacc, although many have expressed concerns about the threshold for public hearings.
Senator Jacqui Lambie said it is “just about going to kill off trust that we’re trying to establish with the Australian people”.
Greens senator, David Shoebridge, said the exceptional circumstances threshold was “exceptionally unhelpful”.
Senator David Pocock told Guardian Australia “the independent commission should be able to make hearings public if they believe it is in the public interest, not be constrained to do so [only] in ‘exceptional circumstances’”.
Will there be parliamentary oversight?
Yes. The government will establish a parliamentary joint committee on the national anti-corruption commission.
The committee of 12 will consist of three government members, two opposition members and one crossbench member from both the House of Representatives and Senate.
The committee will be able to report on the sufficiency of the Nacc’s budget and have a role in considering appointments to the Nacc, although these are ultimately a decision for cabinet.
What happens now?
The bill will be considered by a joint select committee inquiry.
The government aims to pass the bill this year, which can be done with a vote in the House of Representatives in early November and in the Senate in the final sitting fortnight in late November.