Unveiling the National Anti-Corruption Commission – Power, Privilege and Public Scrutiny

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Andrew GeorgeThe article Unveiling the National Anti-Corruption Commission – Power, Privilege and Public Scrutiny is written by Andrew George, Director, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.

Andrew has over 25 years of experience as a criminal defence lawyer. He has appeared in all Victorian criminal courts, various tribunals, and at Royal Commissions. He also practises international criminal law representing clients with interests overseas.

Andrew has been an accredited criminal law specialist ever since 1995. He has lived and worked in Papua New Guinea assisting in the establishment of that country’s first community legal service. He also represented an accused person in IBAC’s first major prosecution, Operation Fitzroy.

Commission HearingThe National Anti-Corruption Commission commenced operation on 1 July of this year, opening its doors to referrals relating to serious or systemic corrupt conduct in the Commonwealth Public Sector. Paul Brereton AM RFD SC, a former NSW Court of Appeal Judge known for leading the Inquiry into War Crimes by the Australian Defence Force in Afghanistan, indicated a desire for the Commission to attract a reputation of “being fearless but fair, independent, and impartial.”

The fearlessness of the National Anti-Corruption Commission (‘NACC’)’s remit provides it with the power to investigate without the safeguards and fundamental protections ordinarily expected in a criminal justice process.

We are often approached by clients who are required to give evidence at hearings held by investigating bodies and Commissions who are unfamiliar with their rights and obligations.

Advising our clients on how to exercise their rights is complex. Ordinarily, it will start with an enquiry into the scope of the statutory power and whether there is an expressed intention to abrogate rights through compulsive powers, such as the right to silence.

For the newly established NACC, that intention is made clear. The exercise of compulsive powers under the National Anti-Corruption Commission Act 2022 (Cth) (‘the Act’), entitles the NACC to investigate corrupt conduct and subsequently refer the matter for criminal prosecution. This investigation includes both past and presently occurring corrupt conduct.

Who is Liable to Be Investigated?

The Act defines ‘public official’ to include a parliamentarian, a staff member of a Commonwealth Agency or a staff member of the NACC.1 It also includes people ‘acting as, or for and on behalf of, a deputy or a delegate of’ any of the aforementioned people. The powers conferred to the NACC include requiring people to answer questions in hearings, whether or not they have engaged in or are the subject of investigation for criminal conduct.

When the Bill was introduced in 2022, it was made clear that these powers reach third parties whose conduct ‘could be expected to induce or influence a public official to exercise a power dishonestly or partially’.2

Rights Set Aside

The privilege against self-incrimination “reflects the long-standing apathy of the common law to compulsory interrogations about criminal conduct”.3 This apathy derives from the notion that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction.

The absence of the privilege against self-incrimination in NACC hearings is at odds with the common law philosophy that “the State must prove its case without recourse to the suspect”.4 Instead, the NACC possesses coercive powers to demand answers and attendance or be liable to criminal charges.

A witness or person of interest must give evidence irrespective of whether they have engaged in any criminal conduct. Direct use immunity provides that the answers are not admissible in subsequent criminal proceedings. However, it does not stop other use of that evidence by authorities,5 such as to obtain or assemble other admissible evidence.

The requirement to give answers in respect of an offence of which a person is suspected, or in relation to which he or she is a person of interest, “fundamentally alters the accusatorial process for the investigation, prosecution and trial of that offence.”6

Public or Private Hearings?

The NACC’s default position is that hearings are to occur in private. This is with the view to balance the interests of private citizens and the potential reputational damage of public hearings, with the public benefit of exposing corrupt conduct.

To displace the default position, the Commission must be satisfied that there are ‘exceptional circumstances’ or that it is in the public interest to do so.7 This approach differs from the state approaches to corruption commissions which varies from state to state.8

The test in Victoria requires that the Independent Broad-Based Anti-Corruption Commission be satisfied that exceptional circumstances warrant it being held in public; that it is in the public interest;9 that the hearing can be held in public without causing “unreasonable damage to a person’s reputation, safety or wellbeing”; as well as that the conduct “may” constitute “serious or systemic corrupt conduct”.10

We are acutely aware of how public hearings in this context has the capacity to cause irreparable damage, even where a finding is that the allegation of corruption is unfounded.

Giving evidence on oath in any matter is daunting. Let alone before the National Anti-Corruption Commission, potentially in the eyes of the public and worse still – without the fundamental tenets of the presumption of innocence, the right to silence or the privilege against self-incrimination.

At least the NACC leaves one fundamental tenet, the right to be represented at a hearing.

One of our expert lawyers are ready to assist.

[1] National Anti-Corruption Commission Act 2022 (Cth) s 10(1).
[2] Explanatory Memorandum, National Anti-Corruption Commission Bill 2022 (Cth) [2.23].
[3] Lee v New South Wales Crime Commission [2013] 251 CLR 196 [1].
[4] Re Application Under the Major Crime (Investigative Powers) Act 2004 [2009] 24 VR 415, 448 [146].
[5] National Anti-Corruption Commission Act 2022 (Cth) s 114-115.
[6] Strickland (a Pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53 [77].
[7] National Anti-Corruption Commission Act 2022 (Cth) s 73(2).
[8] See for example Independent Commission Against Corruption Act 1988 (NSW) s31(1); Independent Commission Against Corruption Act 2012 (SA) s 7(4)(a).
[9] Independent Broad-based Anti-Corruption Commission Act 2011 (Vic), s117(1)(a)-(b); see R and M v IBAC, where the High Court upheld the decision of the Court of Appeal which analogised “exceptional” with Victoria’s bail legislation – “circumstances that rarely occur and perhaps could be outside reasonable anticipation or expectation” at [68].
[10] Independent Broad-based Anti-Corruption Commission Act 2011 (Vic) s 117.

Date Published: 27 September 2023

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