AUSTRALIA Trends and Developments Contributed by: Dennis Miralis, Kartia Zappavigna, Dr Emma Collins and Henry Yu, Nyman Gibson Miralis
particularly the restrictions on public hearings, limits its visibility and deterrent effect. Questions regarding the Commission’s leadership have also undermined public confidence in the NACC. The NACC’s handling of the Robodebt referral has emerged as its most publicly scrutinised action to date, drawing widespread criticism and testing its credibility in the early stages of operation. The Com - mission’s initial decision not to investigate six indi - viduals referred by the Robodebt Royal Commission was subject to significant public criticism and was reviewed by the NACC Inspector. The Inspector con - cluded that, by virtue of his declared conflict of inter - est, the Commissioner should have removed himself from the decision-making process and that the failure to do so amounted to maladministration. Consequently, the NACC appointed former High Court Justice Geoffrey Nettle KC to conduct an independent review of the matter. In February 2024, he reversed the original decision and determined that the NACC would investigate the referrals. That investigation is now underway, led by Deputy Commissioner Kylie Kilgour, with Mr Nettle KC as Chief Adviser. The Commissioner and other Deputy Commissioners who were involved in the original decision not to investigate the refer - rals are not participating in the investigation. Whilst the independent scrutiny of the NACC’s operation served to rebuild some public trust in the Commis - sion, it continues to face criticism about the perceived slow progress and lack of transparency in relation to this high-profile investigation. A key challenge for the Commission has been balanc - ing the need for public hearings with fairness to the individuals under investigation. Arguably, the require - ment under the NACC Act that hearings are private except where exceptional circumstances justify going public restricts unduly the Commissioner’s discretion when deciding to hold public hearings. The absence of any public hearings to date has engendered sus - tained and significant criticism, undermining public confidence in the NACC. There are calls for Parliament to review and amend this high threshold to be more in line with state corruption commissions, such as New South Wales’ Independent
Commission Against Corruption (ICAC), which rou - tinely uses public hearings and live-streams as part of its model of public exposure and deterrence. ICAC sees public hearings as an important tool in exposing corruption and maintaining public confidence. Nevertheless, positive developments in the work of the Commission can be seen in the published inves - tigation reports on its website. These include the fol - lowing. • Operation Kingscliff – this investigation concerned a Senior Executive Service Officer in the Depart - ment of Home Affairs and her role in transferring her sister’s fiancé to the Department under Section 26 of the Public Service Act 1999. The Commis - sion found she had engaged in corrupt conduct by abusing her office to provide an improper benefit to her sister and her sister’s fiancé and by misusing official information. • Operation Elektra – this was a joint investigation by the former Australian Commission for Law Enforce - ment Integrity (ACLEI), the Department of Home Affairs, and the Australian Federal Police into Serco officers who allegedly provided telephone services and official information to detainees in immigration detention centres. On 1 July 2023, ACLEI was sub - sumed into the NACC. The Commissioner made two findings of corrupt conduct and the matter resulted in two charges and one conviction. • Operation Wilson – this joint investigation with the Department of Home Affairs, the AFP and Victo - ria Police examined an Australian Border Force officer’s involvement in the importation of illicit tobacco. The matter transitioned to the NACC on 1 July 2023. Under the transitional arrangements, the Commissioner reviewed the evidence and com - pleted the investigation report. The investigation resulted in two charges and a guilty plea. The work of the Commission will continue to be watched closely by supporters and critics alike, with the Robodebt investigation likely to be a real litmus test for its perceived effectiveness and legitimacy. Failure to prevent foreign bribery After six years of trying unsuccessfully, Australia finally introduced its new corporate offence, “failure to pre -
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