A National Anti-Corruption Commission (NACC)? Will it stACC up?

The Australian Government recently introduced the highly anticipated National Anti-Corruption Commission Bill 2022 (Bill) and National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (together, Bills) into Parliament.

The Bills have been referred to an inquiry of the Joint Select Committee on National Anti-Corruption Commission Legislation (inquiry). If enacted, the Bills will establish a National Anti-Corruption Commission (NACC) to investigate and report on serious or systemic corruption in the federal public sector.1

The Bills have received preliminary endorsement from the Coalition and are expected to pass both houses of Parliament by the end of the year. The Bills have also been welcomed by key industry and legal stakeholders, including the Law Council of Australia and Queensland Law Society, which have long advocated for the establishment of an integrity body at the federal body.2

Previous QLS submissions have supported the establishment of a federal integrity body, recognising that a robust, but proportionate, NACC will promote a strong and independent system of government.

In the 2022 Federal Election Call to Parties Statement, the Society called on the Australian Government to establish a NACC (alongside a federal Judicial Commission) on the basis that these bodies are an essential component of maintaining public confidence in the administration of justice and the promotion of the separation of powers.3

Despite broad support for the establishment of a NACC, certain aspects of the Bills remain contentious; for example, the NACC’s proposed wide jurisdiction and extraordinary coercive powers.


Public versus private hearings

One sticking point in the debate is how the NACC should conduct hearings as part of a corruption investigation, and whether it should be empowered to hold public hearings in exceptional circumstances (similar to the Victorian Independent Broad-based Anti-Corruption Commission)4 or be provided with a wider discretion to hold public hearings (consistent with the New South Wales’ Independent Commission Against Corruption).5

As the Bill is currently drafted, the NACC will have access to a broad range of powers to investigate corruption issues, including the power to hold hearings.6

The Bill stipulates that a hearing must be held in private, unless the commissioner decides that exceptional circumstances justify holding the hearing in public and it is in the public interest to do so.7 The Bill also outlines a non-exhaustive list of matters the commissioner may have regard to in determining whether to hold a public hearing, which includes, for example, any unfair prejudice to a person’s reputation, privacy, safety or wellbeing that would be likely to be caused if the hearing were to be held in public.8

The Society made a submission to the inquiry which expressed strong support of the current default position that corruption investigation hearings be held in private, unless there are exceptional circumstances justifying a public hearing.

Further, the Society submitted that the commissioner should be required to give consideration to the matters listed in s73(3) of the Bill. The mandatory consideration of these factors would ensure that hearings may be held in public where it is in the public interest to do so, but only after sufficient consideration has been given to the impact of a public hearing on, for example, a person’s safety or particular vulnerability.

Open justice is one of the fundamental attributes of a fair trial. As the Australian Law Reform Commission has identified, “[t]hat the administration of justice must take place in an open court is a fundamental rule of the common law”.9 Indeed, the High Court has stated that “the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances”.10


However, the proposed NACC is not a court; nor is it a prosecutorial body. Rather, its stated objects are to detect and investigate corrupt conduct, and after investigation of a corruption issue, to refer persons for criminal prosecution, civil proceedings or disciplinary action.11

Its primary function, therefore, is the investigation of corruption. To hold NACC hearings in public would be analogous to the Australian Federal Police broadcasting an interview with a suspect or witness during the course of a criminal investigation.

While public hearings in and of themselves may operate to deter corrupt conduct, they can also have significant and long-lasting adverse consequences for individuals, even in circumstances where the investigation results in no adverse findings or criminal charge. Accordingly, the threshold for public hearings should be sufficiently high to negate them becoming political and media ‘show trials’.

The Society’s position in respect of public versus private hearings must also be considered in the context of the NACC’s proposed broad remit and its extraordinary coercive powers to compel evidence that would ordinarily attract privileges seen as fundamental to our modern legal system.

Jurisdictional issues

As currently drafted, the Bill gives the NACC a broad jurisdiction to investigate any conduct of a person that adversely affects, or could adversely affect, the honest or impartial exercise or performance of any public official’s powers, functions or duties.12 The NACC’s jurisdiction also extends to any conduct of a public official that constitutes, involves, or is engaged in for the purpose of corruption of any other kind.13

A broad definition of corrupt conduct is important to ensure the NACC has the capacity to investigate a range of possible corrupt conduct. However, in the Society’s view, the terminology ‘corruption of any other kind’ is vague, undefined and circular. The extension of the definition to ‘corruption of any other kind’ will make it difficult, if not impossible, for a public official to know what conduct will be captured by this category. The Law Council of Australia, in its submission to the inquiry, agreed that “‘corruption of any other kind’ … would benefit from clarification”.14


The Bill also provides the NACC with the power to deal with corruption issues, defined to include an issue of whether a person has engaged in, is engaging in, or will engage in corrupt conduct.15 In effect, this definition of a ‘corruption issue’ will empower the NACC to investigate conduct that has not yet occurred.

While the Society supported the NACC’s ability to investigate acts that may amount to an attempt or conspiracy to engage in corruption, there are significant issues with empowering the NACC to investigate persons who ‘will engage in’ corrupt conduct.

In particular, it is difficult to require the NACC to make that assessment and also for a person to be accused, investigated and potentially penalised for conduct that has not yet occurred. In this respect, the Society argued including future conduct is ambiguous and wholly speculative. It is also an inappropriate use of both the NACC’s power and resources.

The abrogation of certain fundamental privileges

Importantly, the Bill abrogates two fundamental privileges: the right to claim privilege against self-incrimination and, legal professional privilege.

The right to claim the privilege against self-incrimination is contained in art.14.3(g) of the International Covenant on Civil and Political Rights,16 which provides that, in the determination of any criminal charge, everyone shall be entitled not to be compelled to testify against themselves or to confess guilt.17

Nonetheless, the right to claim privilege against self-incrimination is not absolute and may be removed or diminished by statute, “based on perceptions of public interest, to elevate that interest over the interests of the individual in order to enable the true facts to be ascertained”.18


Legal stakeholders, including QLS and the Law Council of Australia, have consistently maintained that witnesses appearing before any anti-corruption commission should be able to refuse to answer a question or provide information to the commission on the grounds that such information may incriminate the person.

To do otherwise “would undermine some of the fundamental principles of the criminal justice system”.19 In this respect, the Law Council of Australia recommended that the privilege only be abrogated to the extent to which both a direct use and derivative use immunity apply in both civil and criminal proceedings.20

The Bill also completely abrogates 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.21 A person is not excused from giving information or producing a document or thing on the ground that doing so would disclose legal advice given to a person, or disclose a communication protected against disclosure by legal professional privilege.

Legal stakeholders have expressed strong concerns with the proposed abrogation of legal professional privilege, on the basis that explanations provided for the abrogation do not fully grapple with the rationale for legal professional privilege, and that the abrogation of such a fundamental right remains unjustified.22

What’s next?

The Bills are currently with the Joint Select Committee on National Anti-Corruption Commission Legislation for inquiry and report. The committee is due to report on or before 10 November. If the Bills pass later this year, the NACC is expected to be established in mid-2023.

This article has been prepared by the Queensland Law Society’s Legal Policy team, based on their submission to the Joint Select Committee on National Anti-Corruption Commission Legislation.


1 National Anti-Corruption Commission Bill 2022 (Cth) s3.
2 Law Council of Australia, Commonwealth Integrity Commission: Proposed Reforms (2019).
3 Queensland Law Society, 2022 Federal Election Call to Parties Statement (2022) 5; Queensland Law Society, Federal Election 2019 Call to Parties Statement (2019) 9.
4 Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s117.
5 Independent Commission Against Corruption Act 1988 No 35 (NSW) 31. A distinction is drawn here between public hearings forming part of an investigation and public hearings forming part of a public inquiry, which focus on broader systemic issues, rather than a specific corruption issue concerning the conduct of an individual.
6 National Anti-Corruption Commission Bill 2022 (Cth) s62.
7 Ibid s73.
8 Ibid s73(3).
9 Australian Law Reform Commission, Traditional Rights and Freedoms Encroachments by Commonwealth Laws (Final Report, ALRC Report 129, December 2015) 231 [8.53].
10 Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
11 National Anti-Corruption Commission Bill 2022 (Cth) s3.
12 National Anti-Corruption Commission Bill 2022 (Cth) s8.
13 Ibid s8(1)(e).
14 Law Council of Australia, National Anti-Corruption Commission Bills 2022 (2022) 14.
15 National Anti-Corruption Commission Bill 2022 (Cth) s9.
16 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS (entered into force 23 March 1976).
17 The High Court has confirmed the influence of art 14 of the ICCPR on the common law: Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 499 (Mason CJ and Toohey J).
18 Ibid 503 (Mason CJ and Toohey J).
19 Law Council of Australia, submission to the Inquiry into the National Anti-Corruption Commission Bill 2022 (submission 49, 14 October 2022) 36 [152].
20 Ibid [154].
21 National Anti-Corruption Commission Bill 2022 (Cth) cl.114.
22 Law Council of Australia, submission to the Inquiry into the National Anti-Corruption Commission Bill 2022 (submission 49, 14 October 2022) 40 [179].

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