National Anti-Corruption Commission Bills 2022
The Law Council was pleased to make a submission to the Joint Select Committee on National Anti-Corruption Commission Legislation to assist in its inquiry into the National Anti-Corruption Commission Bills 2022 (Cth).
In the submission, the Law Council supports the establishment of the National Anti-Corruption Commission (NACC). It particularly welcomes that the Bills:
- give the NACC broad jurisdiction to investigate serious or systemic corrupt conduct across the Commonwealth public sector;
- provide oversight of the NACC by way of a Parliamentary Joint Committee and independent Inspector;
- enable the NACC to operate independently of government and with procedural fairness;
- promote a consistent approach to processes, powers and requirements when dealing with corruption across law enforcement and the public sector;
- provide broad referral pathways;
- emphasise the NACC’s preventative and educative functions;
- exclude the judiciary from the NACC’s jurisdiction; and
- provide for whistleblowing protections, noting intersections with the Public Interest Disclosure Act 2013 (Cth) and recognising that broader whistleblowing reforms are understood to be underway.
However, the Law Council draws attention to a number of matters with the NACC Bill in its submission, particularly in relation to:
- its ongoing position that hearings should generally be conducted in private, unless the Commissioner considers that a closed hearing would be unfair to the person or contrary to the public interest. It further suggests that measures be adopted to increase the likelihood that public hearings can have the requisite degree of fairness;
- the abrogation of privileges, such as legal professional privilege, when a person is giving an answer or information, or producing a document or thing, under a notice to produce or at a hearing;
- the approach taken with regards to post-charge coercive powers and post-charge disclosures of information to a prosecutor. Preserving the distinction between the investigative nature of the NACC and the criminal justice process is critical;
- the need for a ‘reasonable suspicion’ threshold to be in place for the Commissioner to investigate a corruption issue;
- tightening key definitions and removing future corrupt conduct from the definition of a corruption issue;
- the availability of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), given that transparent and public judicial review for at least substantial interim decisions is a crucial element of oversight to ensure confidence in NACC and its processes; and
- the broader appropriateness of existing safeguards and oversight mechanisms for intrusive search powers afforded to the proposed NACC and other eligible law enforcement and security agencies more generally, particularly with respect to telecommunications interception and surveillance.
Accordingly, the Law Council makes a range of recommendations to improve the effectiveness and fairness of the proposed NACC.