Information for ministers, parliamentarians and their staff

The National Anti-Corruption Commission (the NACC) will be an independent Commonwealth agency responsible for detecting, investigating and reporting on serious or systemic corrupt conduct in the Commonwealth public sector. The NACC will also educate the public sector, and the community, about corruption risks and prevention.

The NACC will be able to investigate certain conduct involving Commonwealth public officials. This includes members of the Australian Parliament, as well as individuals engaged under Parts II, III or IV of the Members of Parliament (Staff) Act 1984, including people engaged as consultants or contractors.

This factsheet provides information on:

• the NACC’s jurisdiction in relation to ministers, parliamentarians and their staff
• matters the NACC can investigate
• when referrals can (or must) be made to the NACC
• protections available to those who make referrals to the NACC
• how the NACC may investigate a corruption issue.

The NACC will have jurisdiction in relation to ministers, parliamentarians and their staff

Under the National Anti-Corruption Commission Act 2022 (the NACC Act), parliamentarians, including Ministers, and people they employ or engage as consultants under the MoPS Act are considered to be ‘public officials’.

This means the NACC will be able to investigate allegations of serious or systemic corrupt conduct in connection to ministers, parliamentarians, MoPS Act staff and consultants of parliamentary offices.

For more information on who is a ‘public official’ under the NACC Act, see Who can the NACC investigate?

The NACC will investigate serious or systemic corrupt conduct

The NACC may decide to investigate allegations that a person has done something that involves serious or systemic corrupt conduct under the NACC Act. There are 4 types of corrupt conduct under the NACC Act. A person engages in corrupt conduct if:

• they are a public official and they breach public trust
• they are a public official and they abuse their office as a public official
• they are a public official or former public official and they misuse information they have gained in their capacity as a public official
• they do something that could cause a public official to behave dishonestly or in a biased way when they carry out their official duties – any person can engage in this type of corrupt conduct, even if they are not a public official themselves.

A person also engages in corrupt conduct if they try or plan to do any of those things, or conspire with someone else to do them.

The NACC Act clarifies that engagement by ministers, parliamentarians or their staff in conduct in pursuit of their political activities or parliamentary business will not constitute corrupt conduct where:

• the conduct was engaged in as part of a political activity and does not involve or affect the use of public resources, or the exercise of official powers or performance of official functions, or
• the conduct involved the use of public resources to conduct parliamentary business consistent with the legislative framework for the use of parliamentary resources.

See the National Anti-Corruption Commission Act 2022, subsection 8(13)
and the Explanatory Memorandum at paragraphs 2.77 to 2.83

The NACC will only be able to investigate alleged corrupt conduct if the Commissioner of the NACC is of the opinion that it could be serious or systemic. It will be up to the Commissioner of the NACC to decide if they think a particular allegation of corrupt conduct is serious or systemic.

For more information on what might constitute corrupt conduct, see What is corrupt conduct?

Ministers and parliamentarians must refer certain matters to the NACC

Under the NACC Act ministers and parliamentarians will have mandatory referral obligations. If a parliamentarian becomes aware of corrupt conduct they must tell the NACC about it if:

• the corrupt conduct concerns a person who is, or was, a staff member within their office while that person is, or was, a staff member within their office; and
• the parliamentarian suspects the corrupt conduct could be serious or systemic.

The terms ‘serious’ and ‘systemic’ are not defined in the NACC Act and will take their ordinary meaning.

The NACC will provide more information about how to make a referral and the information that must be provided.

For more information on mandatory referral obligations, please see Mandatory referrals: Commonwealth agency heads.

Anyone can make a voluntary referral to the NACC

Any person (including members of the public and public officials) can voluntarily refer a corruption issue, or provide information about a corruption issue, to the NACC.

A person can provide information about a corruption issue to the NACC anonymously.

However, making an anonymous referral means the NACC Commissioner cannot:

• seek more information from a person about their referral
• notify a person of the outcome of any investigation related to their referral
• ensure measures are in place to protect the person or others involved in their referral

For more information on voluntary referral of matters to the NACC, please see Voluntary referrals.

Protections for people who disclose information to the NACC

Protection from liability

The NACC Act provides a range of protections to any person who provides information or evidence about a corruption issue to the NACC (unless the person knowingly provides false or misleading information). These include protection from:

• civil, criminal and administrative liability, including disciplinary action for the disclosure
• enforcement of contractual or other remedies or rights on the basis of the disclosure.

This means, for example, that a person who refers a corruption issue would have immunity from defamation proceedings in respect of the disclosure to the NACC. Similarly, a contract to which the person is a party could not be terminated for breach of contract on the basis of the disclosure.

Protection from reprisal action

The NACC Act also makes it a criminal offence for anyone to take, or threaten to take, reprisal action against another person.

A 'reprisal' is when a person causes another person detriment because they believe or suspect that the other person has, may or could disclose a corruption issue to the NACC.

Detriment includes:

• dismissal from employment
• injury in employment
• detrimental changes to an employment position
• discrimination between a person and other employees of the employer.

The maximum penalty for taking a reprisal, or threatening to take a reprisal, against a person is imprisonment for 2 years.

Reasonable administrative action by an organisation to protect a person from detriment is not a reprisal. For example, if a person makes a disclosure about practices in their immediate work area, it may be appropriate to help them transfer to another area so they do not experience any detriment.

Exceptions to protections

These protections from liability or reprisal are generally available to any person who refers or provides other information about a corruption issue to the NACC. This applies even where their disclosure involves breaching another law, although this is subject to some exceptions (see below).

There are circumstances where a person will not receive protections if their disclosure to the NACC breaches another law.

A person will not receive protection from liability if they disclose their own conduct to the NACC in the hope of avoiding liability for that conduct. For example, a public servant who misuses an official power to advance a personal interest and then refers their own conduct to the NACC to avoid criminal liability.

A person who knowingly makes a false or misleading disclosure to the NACC can also still be liable for false or misleading statements. The NACC Act does not provide a person with protection from:

• criminal liability
• civil liability (such as defamation or breach of employment contract)
• administrative liability (such as a public official being suspended or having their security clearance revoked).

What happens after a referral is made?

The NACC does not have to consider or respond to every referral it receives. The NACC Commissioner can also decide not to take any action in relation to a referral.

If a referral raises a corruption issue, the NACC Commissioner may deal with it in one or more of the following ways:

• conduct a preliminary investigation to find out more information to help them decide how to deal with the issue
• if the issue could involve serious or systemic corrupt conduct – investigate the issue alone or with the relevant Commonwealth agency or a state or territory government entity
• refer the issue to the Commonwealth agency that the issue relates to for them to investigate
• refer the issue to another Commonwealth agency or state or territory government entity for consideration
• take no action.

If there is not enough information to decide whether the referral could involve serious or systemic corrupt conduct, the NACC Commissioner may ask the person who referred the issue to provide more information.

Matters dealt with by other integrity agencies

In some limited cases, the Commissioner can only investigate a matter if another integrity agency specifically refers it to the NACC. This limitation applies:

• if the matter could be audited or decided on by the Independent Parliamentary Expenses Authority (IPEA) because it relates to the conduct of ministers, parliamentarians or their staff members and concerns the use of work or travel resources, or expenses or allowances.
• if the matter could be investigated by the Australian Electoral Commission (AEC) because it concerns compliance with the Commonwealth Electoral Act 1918.

In other cases, the Commissioner can investigate a matter even if another integrity agency has already dealt with or is currently investigating the same matter. In doing so, the Commissioner must consider the standard criteria for investigations (see above) as well as whether it is in the public interest to investigate the corruption issue again.

For more information on how the NACC Commissioner can deal with a corruption issue, see How can the NACC Commissioner deal with a corruption issue?

What powers does the NACC have to investigate?

The Commissioner may investigate a corruption issue as they see fit. This means they will make decisions about which powers to use during an investigation, and how to conduct investigations in general. The NACC Commissioner has broad powers to investigate corruption issues. These include:

• general investigatory powers (subject to the appropriate thresholds)
• additional powers in relation to Commonwealth agencies, and
• powers to hold private hearings and, in exceptional circumstances, public hearings.

The NACC has general powers to investigate corruption issues. Under the NACC Act, it may:

• require any person to give information, a document, or item to the NACC, by issuing a ‘Notice to Produce’
• issue a summons requiring any person to appear and give evidence at a hearing, and
• apply for search warrants to search places, vehicles and people.

The NACC also has powers under other legislation to investigate corruption. It may do any of the following:

• issue a notice under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, requiring a reporting entity or person to give information or documents to a NACC officer
• authorise covert law enforcement operations and acquire and use assumed identities under the Crimes Act 1914
• require and receive information from a cash dealer about transactions under the Financial Transaction Reports Act 1988
• apply for freezing orders on financial institution accounts under the Proceeds of Crime Act 2002
• apply for surveillance device warrants, computer access warrants and emergency authorisations under the Surveillance Devices Act 2004
• apply for warrants and telecommunications data authorisations under the Telecommunications (Interception and Access) Act 1979
• issue assistance requests and notices to designated communications providers under the Telecommunications Act 1997.

Entry and search of Commonwealth premises

Authorised NACC officers may enter and search most places occupied by Commonwealth agencies without a search warrant as part of a corruption investigation. They will be able to do any of the following:

• enter any place occupied by a Commonwealth agency at any reasonable time of day
• carry on a corruption investigation at that place
• inspect any documents relevant to the investigation that are kept in that place
• make copies or take extracts from any documents, and
• seize documents or items at that place. This applies if the authorised NACC officer suspects on reasonable grounds that it is relevant to an indictable offence, and seizure will prevent its:
  • concealment
  • loss or destruction, and
  • use in committing an indictable offence.

There are certain Commonwealth places that NACC officers may not enter or search without a search warrant. These include the following:

• premises occupied by the High Court or a federal court
• any place in the Parliamentary precincts, including parliamentary offices and departments located in Parliament House
• ministers’ or parliamentarians’ electorate offices made available under the Parliamentary Business Resources Act 2017. This includes the Commonwealth Parliamentary Offices in most capital cities that ministers or parliamentarians use for their parliamentary work or as their electorate offices.
• premises occupied by the ABC or SBS
• certain Defence Force areas under the Defence (Special Undertakings) Act 1952, unless with Ministerial approval, and
• a place the Attorney-General is satisfied would prejudice the security or defence of the Commonwealth if NACC officers entered without a search warrant and investigated there. In this case, the Attorney-General may declare that unless the NACC has a search warrant, that place can only be entered with the approval of the Attorney-General, in line with any conditions they impose.

The NACC may still apply for a warrant to enter and search these places or do so with the agreement of the relevant agency head or Minister, as appropriate.

Hearings

The Commissioner may request a person to attend a hearing and give evidence if they suspect on reasonable grounds that the person has evidence that is relevant to a corruption investigation. This must be done via a document called a summons. The Commissioner may summon any person, including:

• a person whose conduct is being investigated
• another person who may have relevant evidence.

A person who receives a summons must attend the hearing. At the hearing they are required to:

• take an oath or affirmation that their evidence will be truthful
• answer all questions truthfully (it is an offence to give false or misleading evidence)
• produce documents or other things as required by the Commissioner.

It is an offence for a person who is given a summons to:

• fail to attend the hearing
• fail to give required information or produce a required document or item at a hearing
• conceal or destroy a document or item that is, or is likely to be, required under a notice to produce at a hearing
• knowingly give false or misleading evidence, information or documents at a hearing
• obstruct or hinder a hearing, or
• threaten a person at a hearing.

A person who is summoned to give evidence at a hearing may consult and be represented by a legal practitioner. Financial assistance to meet the costs of legal representation will be available in appropriate cases. More information about how to apply for legal financial assistance will be released shortly.

Private and public hearings

A hearing must be held in private, unless the Commissioner decides to hold the hearing, or part of the hearing, in public. In deciding whether to hold a hearing in public, the Commissioner may consider:

• the extent to which the corruption issue could involve corrupt conduct that is serious or systemic
• whether certain evidence is confidential, or relates to the commission (or alleged or suspected Commission) of an offence
• any unfair prejudice to a person’s reputation, privacy, safety or wellbeing that may be caused
• whether a person giving evidence has a particular vulnerability, such as working directly to someone in a position of power, and
• the benefits of exposing corrupt conduct to the public.

Some evidence must be given in a private hearing. This applies to:

• evidence that would breach a secrecy provision if disclosed
• legal advice, or other communications, protected against disclosure by legal professional privilege
• information defined as sensitive information under the NACC Act (such as information which could prejudice the security of Australia or disclose Cabinet decisions or deliberations)
• intelligence information, and
• information about which the Attorney-General has issued a certificate prohibiting public disclosure on specific grounds under the NACC Act.

Application of parliamentary privilege

Under the NACC Act, parliamentary privilege is preserved.

As a ‘tribunal’ under the Parliamentary Privileges Act 1987 (PP Act), the NACC will be not be able to use information in a manner inconsistent with section 16 of the PP Act. This includes restrictions on using protected material in proceedings, including hearings.

For more information on the NACC’s investigatory powers, see How can the NACC Commissioner deal with a corruption issue?

What happens at the end of an investigation?

Once a corruption investigation is complete, the Commissioner must prepare a report and give it to the Attorney-General. The report must include:

• the Commissioner’s findings or opinions on the corruption issue and summarise the evidence on which those findings or opinions are based
• any recommendations the Commissioner thinks appropriate (such as how an agency should respond to the findings).

The Commissioner will sometimes include a critical (express or implied) finding, recommendation or opinion about a person, Commonwealth agency or state or territory government entity in a report.

Examples of critical opinions or findings are that:

• a person has behaved corruptly
• a Commonwealth agency took too long to refer a corruption issue to the NACC, and
• an organisation’s culture and practices did not adequately prevent the corruption from occurring.

An example of a critical recommendation is that an agency should improve their recruitment practices to more effectively screen candidates who will have access to high-value agency resources and assets.

The NACC cannot finalise a report until those who are the subject of critical findings, opinions or recommendations have had an opportunity to respond in writing. The NACC must wait a reasonable time for the person or entity to respond. An individual can have someone respond on their behalf, such as their lawyer. A person who is the subject of a finding or opinion that they engaged in corrupt conduct can request that the NACC include their response in the final report, and the Commissioner must generally comply.

Learn more

For more information and resources, visit NACC downloadable resources.