The National Anti-Corruption Commission (Nacc) has hit the ground running, with commissioner Paul Brereton revealing by 5pm Sunday it had already received 44 referrals online.
At its opening ceremony in Canberra on Monday, Brereton promised “we will listen to you”, referring to the fact that “anyone can refer corruption issues to the commission”, as well as its ability to commence investigations of its own motions.
These mark two contrasts with the integrity commission proposed, but never legislated, by the Coalition government.
Brereton said the Nacc was “obviously aware of a number of matters which have been mentioned in the media and elsewhere as potential subjects for investigation”.
The Greens fired the starter’s gun by announcing on Sunday they had referred the PwC tax leak scandal, part of a wishlist of ten priorities they would like investigated.
The Nacc’s main guiding principle in deciding whether to investigate is “whether a corruption investigation by the commission would add value in the public interest, especially in the light of any other inquiries or investigations that are happening, and whether there is any real prospect of a finding of corrupt conduct,” Brereton said.
He said the Nacc will “more likely be interested in investigating matters that have current practical relevance, rather than those that are historic”.
Those comments make some of the Greens’ requests seem unlikely starters, including robodebt, which is the subject of a royal commission that will report on Friday, and the Morrison multiple ministry saga, which former high court justice Virginia Bell has already examined.
It also puts a question mark over other topics that have already been checked by the Australian National Audit Office, such as the sports rorts affair, the western Sydney airport (Leppington triangle) land sale and the Hunter class frigate program.
Other items on the Greens’ wishlist have not received as much scrutiny: MTC’s Nauru contracts, a water licence acquisition from Eastern Australia Agriculture and illegal land clearing by Angus Taylor’s family-owned company Jam Land.
On Monday the shadow veterans’ affairs minister, Barnaby Joyce, accused the Greens of politicising the commission, but his Coalition colleague senator Linda Reynolds has said she may refer the commonwealth’s settlement with her former staffer Brittany Higgins to the Nacc.
The government services minister, Bill Shorten, is seeking advice from Services Australia about a signed statement to a parliamentary committee that Synergy 360 proposed a structure designed to allow former Coalition minister Stuart Robert to profit from government contracts he helped win for its clients.
Robert has rejected the allegation “in the strongest possible terms”, said there is “zero evidence” in the submission, and that he has never lobbied to assist any firm or received payment for doing so.
The commission has a wide discretion on what it chooses to investigate, and Brereton warned only a “very small proportion” would reach a full investigation.
The conduct of a former MP or minister, for example, could be dismissed as “historic” or deemed to expose a weakness in the system that could be exploited by others.
Brereton also noted the commission “may decide to investigate some of these matters in order to clear the air, even if there does not appear to be a significant prospect of a finding of corrupt conduct”.
And what is corruption? Unlike Victoria, where only conduct that would constitute a criminal offence counts, Brereton explained that under the Nacc’s rules “conduct can be corrupt without being criminal”.
That makes the Nacc more akin to the New South Wales Independent Commission Against Corruption, which made findings against former NSW premier Gladys Berejiklian but said her breaches of the ministerial code could not be demonstrated to merit criminal punishment.
Brereton indirectly weighed into this debate by arguing “it is precisely in the area where it may not be possible to establish criminal conduct to the high criminal standard of proof that the commission’s work can be most important in enhancing integrity by investigating and exposing corrupt conduct”.
Brereton warned he would use his power to make public statements to call out “inappropriate” referrals designed to “weaponise the commission”.
Brereton promised that (some) hearings will be held in public – but only “when the circumstances and the public interest justify an exception to the general rule that they be held in private”.
Aspects of the Nacc’s work will be shrouded in secrecy, by design of the legislation. “Sensitive information” contained in a “protected information report” (essentially, the sealed section) is protected by penalties of two years in prison for its disclosure.
The attorney general has the power to issue certificates declaring that disclosure of particular information is against the public interest, giving them ample (although not unlimited) grounds to force evidence into private hearings.
With an aim of finalising 90% of matters within 12 months, the Nacc could investigate for many months using its coercive and at times clandestine powers (such as wiretaps) before the public is aware of the subject of investigations.
Eventually, the Nacc’s findings will be presented in public investigation reports.
