Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

PART 3 THE NATIONAL ANTI-CORRUPTION COMMISSION

3.1 This Part would establish the NACC and the statutory offices of the NACC, and set out the functions of the NACC and those offices.

Division 1-The Commissioner

3.2 This Division would establish the office of the Commissioner and set out their functions.

Clause 16-The Commissioner

3.3 This clause would establish the office of the National Anti-Corruption Commissioner, who will be the head of the NACC. Provisions regarding the appointment of the Commissioner would be contained in Division 1 of Part 12.

Clause 17-Functions of the Commissioner

3.4 This clause would outline the Commissioner's functions. The Commissioner would have the following functions:

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to detect corrupt conduct;

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to conduct preliminary investigations into corruption issues or possible corruption issues;

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to conduct corruption investigations into corruption issues that could involve corrupt conduct that is serious or systemic;

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to report on corruption investigations and public inquiries;

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to refer corruption issues to Commonwealth agencies and State or Territory government entities;

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to oversee investigations into corruption issues conducted by Commonwealth agencies;

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to conduct public inquiries into:

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the risk of corrupt conduct occurring; and

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measures directed at dealing with that risk and preventing that conduct;

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to provide education and information in relation to corrupt conduct and preventing that conduct;

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to collect, correlate, analyse and disseminate general information and intelligence about corrupt conduct;

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to report, and make recommendation, to the Minister concerning the need for, or desirability of, legislative or administrative reform in relation to any matters dealt with by this Bill;

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to provide relevant information and documents to the Committee (see Division 1 of Part 10);

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to receive and deal with PIDs;

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any other functions conferred on the Commissioner by this Bill or another Act; and

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to do anything incidental or conducive to the performance of any of the above functions.

3.5 These functions would enable the Commissioner to further the objects of the NACC Bill, as outlined in clause 3 (see paragraphs 1.9 to 1.21), and are consistent with the NACC's role as a specialist investigative body, responsible for investigating allegations of serious or systemic corrupt conduct in the Commonwealth public sector.

3.6 In addition to its investigative functions, the Commissioner would also have education and prevention functions, including the ability to conduct public inquiries into corruption risks, vulnerabilities and measures to prevent corruption in Commonwealth agencies and measures aimed at dealing with and preventing corruption. These functions are common among anti-corruption commissions at a State and Territory level, and would allow the Commissioner to enhance corruption prevention across the Commonwealth.

3.7 Another function of the Commissioner would be to receive PIDs under the PID Act. This is part of a comprehensive framework in the NACC Bill to ensure that persons who make disclosures directly to the NACC receive appropriate protections (see Part 4).

Division 2-The Deputy Commissioners

3.8 This Division would establish the office of the Deputy Commissioners, and outline their functions.

Clause 18-The Deputy Commissioner

3.9 This clause would provide that there are to be up to three Deputy Commissioners. Provisions regarding the appointment of the Deputy Commissioners would be in Division 1 of Part 12.

Clause 19-Functions of a Deputy Commissioner

3.10 This clause would outline the functions of a Deputy Commissioner. A Deputy Commissioner would have functions to assist the Commissioner in the performance of the Commissioner's functions, and to perform any other function conferred on the Deputy Commissioner by other provisions of this Bill, or by another Act. For example, a Deputy Commissioner would have functions under the Crimes Act 1914 as an authorising officer for a controlled operation.

3.11 The Commissioner would have discretion to determine the responsibilities of each of the Deputy Commissioners, and would be able to delegate any or all of their powers, functions or duties to a Deputy Commissioner (see clause 276). This would provide the Commissioner with flexibility to manage the workload of the NACC.

3.12 In performing their functions, a Deputy Commissioner would be required to comply with any directions of the Commissioner. Given the Commissioner would be delegating their functions to a Deputy Commissioner, it is appropriate that the Commissioner is able to provide direction as to the exercise of those functions. This ensures the Commissioner-as the person on whom substantive functions are conferred (see clause 17)-remains responsible for how those functions are performed in practice.

3.13 A direction given to a Deputy Commissioner by the Commissioner would not be a legislative instrument. This statement is included in the NACC Bill to assist readers, as a direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Division 3-The National Anti-Corruption Commission

3.14 This Division would establish the National Anti-Corruption Commission as a Commonwealth entity and outline its functions.

Clause 20-Establishment of the National Anti-Corruption Commission

3.15 This clause would establish the NACC and provide that it is a listed entity for the purposes of finance law (see paragraph 1.76).

3.16 The NACC would be a non-corporate Commonwealth entity subject to the rules and obligations in the PGPA Act. A non-corporate Commonwealth entity is defined in the PGPA Act as a Commonwealth entity that is not a corporate Commonwealth entity. This means the NACC would legally form part of the Commonwealth and would not have a separate legal identity. As a non-corporate Commonwealth entity, the NACC would be able to enter into arrangements and commit relevant money on behalf of the Commonwealth. It would also be required to prepare a corporate plan and annual report each year.

3.17 The CEO would be the accountable authority of the NACC. As the accountable authority, the CEO would be responsible for managing the NACC's affairs and ensuring the NACC performs its functions (see clause 252). The CEO would have specific duties under Division 2 of Part 2-2 of the PGPA Act, for example to govern the NACC in a way that promotes the proper use and management of public resources and establish and maintain appropriate risk oversight and management systems.

3.18 Staff members of the NACC (as listed in clause 266) are officials for the purposes of the PGPA Act. As officials, staff members of the NACC would have specific duties under Division 3 of Part 2-2 of the that Act, such as the duty to act honestly, in good faith and for a proper purpose. An official's employment may be terminated if they contravene these duties.

3.19 The PGPA Act requires accountable authorities to govern a Commonwealth entity in a way that promotes the achievement of the purposes of the entity. In addition to the purposes of a Commonwealth entity set out in the PGPA Act (the objectives, functions or role of the entity), this clause would provide that the purposes of the NACC for the purposes of the finance law would include:

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the functions of the Commissioner referred to in clause 17;

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the functions of a Deputy Commissioner referred to in clause 19;

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the functions of the NACC referred to in clause 22; and

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the functions of the CEO referred to in clause 252.

Clause 21-Constitution of the NACC

3.20 This clause would outline the constitution of the NACC. The NACC would consist of:

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the Commissioner;

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any Deputy Commissioners;

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the CEO; and

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the staff referred to in clause 262. These staff would be engaged under the Public Service Act 1999 and do not include consultants, secondees or a counsel assisting the NACC.

Clause 22-Functions of the NACC

3.21 This clause would set out the functions of the NACC, which would be to assist the Commissioner in performing their functions and to assist any Deputy Commissioner in performing their functions. As outlined in clause 17, the substantive functions conferred by this Bill are conferred on the Commissioner personally rather than the NACC as a Commonwealth entity. These functions could be delegated to a Deputy Commissioner. As such, the NACC has no functions as an entity other than to support the Commissioner, and any Deputy Commissioner, in performing their functions.