How to make a referral to the NACC

This fact sheet provides preliminary guidance on:

• what to consider in deciding to refer to the NACC
• what information can be provided to the NACC
• how to lodge a referral

For further information on referrals, please see the following:

• Mandatory referrals: Commonwealth agencies.
• Mandatory referrals: Intelligence agencies.
• Mandatory referrals: PID officers.
• Voluntary referrals.

Making a referral

Under the National Anti-Corruption Commission Act 2022 (NACC Act), the NACC will only be able to investigate corrupt conduct that involves a public official in some way. People who can be investigated by the NACC are ‘in the NACC’s jurisdiction’.

Here are some considerations before making a referral:

1. Did the corrupt conduct involve a current or former public official?
2. Do you suspect this conduct could be serious or systemic? A suspicion is enough.

To understand who is a ‘public official’ under the NACC Act, please see Who can the NACC investigate?

To understand what could be ‘serious or systemic’ corrupt conduct, see What is corrupt conduct?

Information that can be provided

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.

Some people must refer certain matters to the NACC and these are called “mandatory referrals”. All other referrals are voluntary. For more information on voluntary referral of matters to the NACC, please see Voluntary referrals. For more information on mandatory referral obligations for PID authorised officers, see Mandatory referrals: PID officers. For more information on the mandatory referral obligations for heads of intelligence agencies, see Mandatory referrals: Intelligence agency heads.

Information relevant to a corruption issue may include (but is not limited to):

1. the names of any public official you suspect has engaged in corrupt conduct
2. the names of any private individuals or entities involved
3. the names of any Commonwealth agency involved
4. a description of the conduct, including dates that the conduct occurred
5. any supporting documents or evidence
6. whether the matter has been referred to, or investigated by, any other agency
7. any other relevant information.

Agency heads and PID officers must make a referral as soon as practicable after they become aware of a relevant issue. If the agency head or PID officer becomes aware of new information after making a referral, they must provide it to the NACC as soon as reasonably practicable.

There are exceptions for where a PID officer or intelligence agency head has already made a referral to the IGIS.

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

Secrecy obligations and classified information

If you need to disclose classified or protected information please contact the NACC or, if applicable, the IGIS first so that appropriate steps can be taken to enable you to make a disclosure without breaching security procedures or any applicable privileges.

The NACC Act requires agency heads and PID officers to comply with their mandatory referral obligations, even if doing so would breach a secrecy obligation under another law.

However, there are some exceptions. If one of the following secrecy obligations (known as ‘exempt secrecy provisions’) applies to information about a corruption issue, the agency head or PID officer is not required to provide that information in a referral to the NACC (but the referral must still be made without the protected information):

• Part 11 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
• Section 34 of the Inspector-General of Intelligence and Security Act 1986
• Secrecy provisions under the My Health Records Act 2012
• Secrecy provisions in Part VIIIA of the Privacy Act 1988
• Sections 45 and 45B of the Surveillance Devices Act 2004
• Sections 63 and 133 of the Telecommunications (Interception and Access) Act 1979
• a secrecy provision that is a provision of a taxation law
• a secrecy provision in another law that says it still applies despite the NACC Act.

Lodging a referral with the NACC

The NACC website (nacc.gov.au) will be available from 1 July 2023 and will contain comprehensive information about making a referral.

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).

For more information on protections for disclosures to the NACC, please see Voluntary referrals.

Learn more

For more information and resources, visit NACC downloadable resources.