By Calvin Gnech, Criminal Lawyer and Legal Practice Director at Gnech and Associates
10 August 2023
On the 23rd of February this year, Gnech and Associates published an article detailing the future creation of the National Anti-Corruption Commission (“NACC”), a federal body responsible for probing corruption claims within the federal public sector. On 1 July 2023, the NACC commenced operation. The Hon Paul Brereton SC has been appointed Commissioner of the NACC. The NACC is governed by the National Anti-Corruption Commission Act 2022.
Our previous article outlined one difference between the NACC and the Crime and Corruption Commission (“CCC”) here in Queensland is their jurisdiction, with the NACC investigating corruption at the federal level and the CCC investigating corruption at the state level. Now that the NACC is operational, it is relevant to discuss the breadth of this difference.
Whilst both commissions possess the authority to investigate only serious corruption claims, each operates within a different scope. The NACC is granted the power under its governing act, to investigate matters of “serious or systemic corrupt conduct” as decided by the commissioner, involving:
- Australian Government public officials
- commonwealth agency staff
- contractors; and
- parliamentary staff.
However, this power does not extend to investigating state, territory or local government officials. That power remains exclusively with the relevant integrity commissions of each state, that being the CCC in Queensland.
The CCC is tasked with investigating serious allegations of corruption within:
- Queensland state and local governmental departments;
- Queensland agencies; and
- Queensland statutory bodies.
This also extends to investigating state
- government occupied businesses
- tertiary education providers
- correctional centers
- courts; and
The power to investigate and oversee corruption within the Queensland Police Service therefore also remains with the CCC.
Witness Protection in both Commissions
Another interesting difference is the witness protection functions of each commission. The administration of witness protection functions here in Queensland has for decades been criticised for being inadequate. The CCC are legislated to provide protections to witnesses who are either themselves or their families in danger as a result of assisting a law enforcement body in Queensland. The types of services available include protection, additional court security, the controlling of video evidence, safe relocation and identity altering alongside the provision of welfare etc. These measures focus on the protection of witnesses in dangerous circumstances.
The NACC has introduced witness protections for its jurisdiction which encompass a wider variety of civil circumstances. Most interestingly, the NACC has an obligation to either make or include statements within commission reports to mitigate any damage to the reputation of persons who assist in the proceedings that have not themselves engaged in corrupt conduct or are not the subject of the findings. Further, witnesses are protected from reprisal or the threat of reprisal as a result of being involved with an investigation, with offences carrying the threat of imprisonment of two years for either action enacted.
More broadly, and consistent with state legislation, privilege against self-incrimination is abrogated under the NACC legislative regime. Upon the privilege being abrogated such evidence cannot be used against the person giving the evidence in any civil, criminal or administrative proceedings unless the information being provided is false or misleading.
The identified differences between the two different regimes highlight the CCC continues to play a substantial, ongoing role in the investigation of corruption in Queensland, despite the introduction of the NACC at a federal level.
Experience demonstrates newly established integrity commissions often attempt to justify their establishment and ongoing existence which results in ‘overreach’ rather than a strict focus on the original, more narrow purpose, for which the commission was established and resourced.
Here, the concerning feature of the regime is despite the legislative objective of the NACC being to investigate “serious or systemic corrupt conduct”, such a term is not defined. Therefore, the interpretation and discretion then individually rests with the appointed Commissioner of the NACC.
Again, experience demonstrates firstly, this type of widely drafted legislation fails to enforce any boundaries or restrictions upon the jurisdiction and therefore allows for a culture of ‘overreach’ to evolve. Secondly, like minds will differ in this regard and therefore when there is a change in leadership the ‘goalposts’ often shift depending on individual attitudes, political motivations and community environmental factors at the time. Thirdly, the ‘overreach’ into matters that are not examples of serious or systemic corrupt conduct means resource allocations become inadequate which routinely produces unnecessary delays. Delays by integrity commissions are often the central cause to a loss of community confidence in the organisation.
We look forward to the NACC navigating these known difficulties in a more satisfactory way then history has demonstrated the state integrity commissions have.
Gnech & Associates are experts and experienced in corruption investigations. If you are being investigated or have been charged by the Crime and Corruption Commission or the National Anti-Corruption Commission we recommend you contact us for advice and representation.