May 2026
Submission to the Parliamentary Joint Committee on the National Anti-Corruption Commission
Inquiry into aspects of the National Anti-Corruption Commission’s performance of its functions.
Authorised by agreement of the Accountability Roundtable Board
About the Accountability Round Table
The Accountability Round Table (ART) is a non-partisan, civic organisation concerned with improving government accountability and democratic practices. ART is dedicated to strengthening integrity, transparency, ethical behaviour and democratic practice governments. ART’s board includes senior legal practitioners, former judges, former parliamentarians, and others with substantial experience of Commonwealth integrity arrangements. ART works in partnership with other civic organisations and research institutes where our values align.
ART advocated for a federal anti-corruption commission for over fifteen years. Its board members have contributed to the development of integrity legislation at the Commonwealth and State levels. ART welcomed the introduction of the National Anti-Corruption Commission Bill in September 2022; and ART was a signatory to the joint integrity-sector statement on the Bill in November 2022.
Summary and recommendations
This submission addresses the performance issues in the five Terms of Reference, and is particularly relevant to Terms of Reference 3, 4 and 5.
ART also submits that it is necessary to take account of the opaque and unsatisfactory nature of the executive-controlled appointment framework which urgently requires reform.
The Commissioner and Deputy Commissioners are appointed on the recommendation of the Attorney-General, subject only to a reactive parliamentary Committee veto. The Act requires no independent body oversight or open process, yet in similar important appointment processes, since at least 2022, there have been such processes for the Australian Human Rights Commission and the Administrative Review Tribunal. The omission from the NACC Act of the need for such an appointment process is a choice, not an oversight.
The result is a structural conflict: the institution exists to scrutinise the executive; its leadership is selected by the executive through a process that lacks legislated process, transparency and is unsatisfactory.
Some parts of the Commission’s operational record, discussed in this submission, reflect the fact that a more rigorous process independent of the executive government would have been more likely to have led to recognition that there were unacceptable risks in making the existing appointments.
Accordingly, ART makes the following recommendations:
Recommendation 1. Reform of the NACC appointment framework should apply immediately, by ministerial decision in advance of legislative change, to the Deputy Commissioner and Commissioner replacement now in prospect (ToR 5)
Recommendation 2. Reform should be paired with statutory protection of the Parliamentary Joint Committee’s information access, composition and independence, recognising that the Committee is the only existing and parliamentary check on appointments.(ToR 5)
Recommendation 3. The NACC Act should be amended to require a transparent, merit-based, appointment process assessed by an independent body for the Commissioner and Deputy Commissioners, modelled on the frameworks already legislated for the Administrative Review Tribunal and the Australian Human Rights Commission.
Recommendation 4. The independent statutory review of the NACC currently scheduled for 2027 should be brought forward, with immediate consideration to its powers to hold public hearings, and broadening the powers of the NACC Inspector under s 184 to include oversight of its performance, the time taken to complete inquiries and supporting the effectiveness of its corruption prevention activities and overall performance of its functions. (ToR 4 and 5)
Recommendation 5. The establishment of a Whistleblower Protection Authority to protect those reporting potential corruption to the NACC (ToR 3), these measures having been contained in the original proposal for an integrity watchdog
ART acknowledges the limitation in section 177 of the NACC Act on the Committee’s functions: the Committee cannot investigate individual matters or reconsider particular decisions of the Commission. This submission draws on specific matters only as illustrations of the structural and systemic issues the Committee is examining under the Terms of Reference.
An anti-corruption watchdog must be independent of the government.
The National Anti-Corruption Commission (NACC) was established to investigate and address serious or systemic corrupt conduct involving Commonwealth public officials, including ministers, parliamentarians, agency heads, senior public servants and contracted service providers. The Commissioner and Deputy Commissioners, are on the recommendation of the responsible Minister, the Attorney-General and then approved by the Parliamentary Joint Committee on the NACC, and must meet minimum eligibility criteria. It does not require a transparent selection process or assessment by an independent body, statutory protection against ministerial direction of the selection process, or publication of the reasons for selection.
This produces a structural conflict: the institution exists to scrutinise the executive, yet its senior leadership is selected by the executive through a process that is opaque and lacking independence from Executive Government. An open appointment protects appointees as well being the public interest. Individuals of integrity should welcome being appointed under a transparent system that allows their suitability to be validated before they take office.
This is the basis on which ART invites the Committee to read its evidence on each of the five Terms of Reference. The Round Table notes the limitation in section 177 of the NACC Act This submission accordingly draws on specific matters – including those arising from the Royal Commission into the Robodebt Scheme, the Inspector of the NACC’s findings of October 2024, and the Inspector’s second investigation commenced 6 February 2026, and now a third investigation – for the purpose of identifying weaknesses in the institution’s functions.
The Parliament has shown what reform of the appointment process looks like elsewhere.
The Attorney-General’s portfolio has legislated open, merit-based appointments for the Australian Human Rights Commission and the Administrative Review Tribunal. The omission from the NACC Act is a choice, not an oversight.
Since 2022, the Australian Government has legislated open, merit-based appointment frameworks for two integrity bodies in the Attorney-General’s own portfolio. The Australian Human Rights Commission appointments were reformed in 2022 to address international accreditation concerns arising from handpicked appointments. The Administrative Review Tribunal appointment process was reformed in 2024, with a competitive appointment process for non-judicial members, and with candidates assessed by an independent body.
These frameworks require published selection criteria, an independent assessment panel, the publication of panelists’ names, an explicit statutory prohibition on ministerial direction of panel members, and prescribed steps before an applicant can be assessed as suitable. The NACC Act framework, drafted by the same government, contains none of these features.
Appointments to integrity bodies, including to the AHRC and AUSTRAC roles subsequently relevant to the Commission’s senior leadership took place without an open, merit-based process.
Deputy Commissioner Nicole Rose PSM came to the NACC from AUSTRAC, to which she had been appointed by the then Justice Minister in October 2017; she has since resigned. Deputy Commissioner Dr Ben Gauntlett came from the Australian Human Rights Commission, where his appointment as Disability Discrimination Commissioner had been made by the Morrison Government, Both were subsequently appointed to the NACC by the Attorney-General and approved by the Parliamentary Joint Committee in 2023; both appointees thus held their previous integrity-adjacent positions through pre-reform appointment processes.
The Albanese government, drafted the NACC Act with the present framework, made the inaugural Commissioner and Deputy Commissioner appointments without an open, merit-based legislative framework, and the Minister’s explanation does not explicitly say if the appointments were made as standard or direct appointments and has not since legislated reform of the appointment process. Both major parties, when in government, benefit when independence is compromised at appointment.
A transparent process with applications, published criteria, and an independent selection panel to constrain ministerial discretion would protect the Commission’s purpose and public confidence. The existing appointment framework is a cost to the institution, to transparency and potentially to future appointees..
ART is unambiguous on this point: It does not seek to criticise any individual officeholder; it makes no claim about the personal integrity, professional competence, or conduct of any appointee; its argument is exclusively that the pre-reform framework has significantly contributed to the loss of public confidence in the NACC
Reform of the appointment framework is essential.
In fewer than 19 months, there have been two completed investigations and a third currently underway into the conduct of the same Commissioner. This is a remarkable signifier. The Commissioner’s long standing career in the Australian Army Reserve in which he rose to the highest rankings is well documented as his assignment by the Inspector General of the ADF to investigate allegations of war crimes committed by Australian forces in Afghanistan from 2005 to 2016 (the Afghan Inquiry report). In this report he found varying levels of serious misconduct committed by certain ADF members resulting in the establishment of the Office of the Special Investigator, to investigate criminal conduct by Australian Forces. All this would have been known to those public officers involved in the task of selecting the first NACC Commissioner.
After his appointment as NACC Commissioner, in matters relating to Defence, the NACC Commissioner maintained an undisclosed consulting relationship with the Inspector-General of the Australian Defence Force on the Afghanistan war crimes inquiry while the NACC was handling Defence-related corruption referrals.
The NACC’s public characterisations of the relationship were found to be materially incorrect, with the CEO of the NACCsubsequently apologising to the Parliament for giving misleading evidence at Senate Estimates, and the Inspector commenced a second formal investigation into possible agency maladministration or officer misconduct.
The relevance to this submission is not the grave misconduct set out in the Afghan Inquiry report, but the failure in the process of appointing the Commissioner to the NACC to considering his relationship with the ADF and the prominent risk that it would give rise to a conflict of interest with his role as Commissioner. These risks became a reality. Further it manifested in an unsatisfactory institutional response to serious matters touching powerful institutions and senior figures which tended towards caution rather than scrutiny.
How the public perceive the independence and integrity of the NACC is essential to its operation. The current vacancies represent a perfect moment to reform not only the appointment process but to permit the NACC to hold public hearings whenever it’s in the public interest to do so to promote the effectiveness of the Commission’s corruption prevention and education activities and to provide support to those engaging with the NACC by legislating whistleblower protections. This was missing from the legislation that the Albanese Government introduced and was passed by the Parliament, despite 84% of Australian’s supporting the introduction of a Whistleblower Protection Authority.
The most significant referral the NACC has received in its operational history was the set of Robodebt referrals from the Royal Commission, transmitted to the Commission in its first week of operation. Commissioner Brereton declared a perceived conflict of interest but remained involved throughout and attended a substantive decision meeting, provided input into the reasons for the decision and ‘settled the minutes’ of the key meeting, sought internal legal advice on the matter, and authorised the public media release. The NACC Inspector found that he had made a ‘mistake of law or fact’ and had engaged in ‘officer misconduct’ within the meaning of section 184(3) of the NACC Act, and that he had caused the NACC to make a ‘misleading statement’ in its media release. The NACC Inspector expressly made no criticism of the Deputy Commissioner who made the decision under delegation.
The NACC has a general disposition to lack of transparency, defensiveness and secrecy. Since its establishment, the NACC has held no public hearings, characterising the threshold of ‘exceptional circumstances’ as conditions that ‘have not arisen yet’. It disposed of the Robodebt referrals through a two-page public statement, In 2023–24 it operated a surplus and under budget on its two largest operational expenditure categories — while completing no corruption investigations in the reporting period and being unable to report against its own key performance indicator for investigation duration.
Each of these decisions, taken on its own, might be described as institutionally confined or a ‘one-off’. Taken together, and in light of the appointment of a Commissioner drawn from a hierarchical, security-classified institutional culture, they are evidence of what can happen where leadership is selected through an opaque, process with no public examination of how a candidate’s professional formation will interact with the role – the resulting leadership tends to exercise its discretion in a manner that is deferential to, and reluctant to hold to account, the executive. This becomes the cultural norm within the organisation
This failure of performance has persisted despite the Inspector’s 2024 finding of officer misconduct; despite the Inspector’s commencement of a second investigation in February 2026; and a third in 2026; despite the legislative precedent of reform; and despite the findings of a Royal Commission.
The findings of the Royal Commission into the Robodebt Scheme in respect of the conduct of Mr Scott Morrison, culminated in the exposure of the NACC’s structural weakness and failure to meet ministerial responsibility, allowing Cabinet to be misled and exerting pressure on departmental officials. The Royal Commission also rejected as untrue part of Mr Morrison’s evidence.
There is no effective mechanism to address the structural issue. The Statement of Ministerial Standards does not apply to former Ministers and is administered by the Prime Minister. The NACC, following the Royal Commission’s referrals, applied the higher threshold of ‘corrupt conduct’ that is ‘serious or systemic’ under section 8 of the NACC Act, and found that Mr Morrison had not engaged in such conduct.
A Royal Commission is the highest and most powerful form of public inquiry available under Australian law, and it made findings of fact about Mr Morrison’s conduct but it is not a court: it can investigate systemic failures, determine accountability and recommend reform, but it cannot make findings of civil liability or criminal guilt, and the government of the day is not obliged to implement its recommendations. No body in the Australian framework has jurisdiction to address the question the Royal Commission’s findings raise – whether a Minister has properly discharged the responsibilities of office except the NACC.
The issue of Mr Morrison’s undisclosed self-appointment to five additional ministries described as a “crisis in accountability in Australian parliament” The constitutional concern engaged by both is that the Australian framework provides an inadequate mechanism through which the responsibilities of ministerial office may be examined and adjudicated.
Corruption prevention, public reporting and communication with the public.
“An integrity body which substitutes education for completed investigations and public hearings is not, in fact, doing the work an integrity body exists to do” – Professor Anne Twomey.
The NACC’s reluctance to hold public hearings is not a matter of disposition alone; it is reinforced by the statutory test it must apply. Section 73 of the NACC Act requires hearings to be held in private unless the Commissioner is satisfied that ‘exceptional circumstances justify’ holding the hearing in public and that it is in the public interest to do so. This is a double hurdle: the public-interest test alone, as is applied by the NSW Independent Commission Against Corruption, would not suffice. The ‘exceptional circumstances’ test is an additional and higher threshold layered on top of it.
The provision was contested from the outset. The Accountability Round Table and the Centre for Public Integrity, opposed the ‘exceptional circumstances’ test when the Bill was before the Parliament and called for its removal. Amendments to remove the test, so public hearings could be held where the Commissioner was satisfied it was in the public interest, were moved by the crossbench.
Those amendments were defeated, with the major parties voting together against them
The NACC held no public hearings, in its first full year, Asked what would constitute exceptional circumstances, the Commissioner offered only that the NACC would ‘know exceptional circumstances when we see them’. A threshold that the Commission itself cannot define in advance is not a workable basis on which the public can assess whether the Commission is meeting its purpose.
The NACC reading of its own remit on the Robodebt referrals is illuminating. The Deputy Commissioner to whom the substantive decision was delegated gave evidence to a Senate inquiry misinterpreted the NACC’s function. The NACCs defensive communication is not confined to a single matter. The same disposition is visible across its handling of the Robodebt referrals and of the Defence-related matters. In each, the NACC managed the matter internally, communicated defensively, and under-disclosed or mischaracterised facts. In the Defence matter, the NACC’s public communication of the Commissioner’s external consulting relationship were materially incorrect. That a misleading account reached the Parliament, and had to be corrected by apology is a further demonstration of its secretive culture.
The Commission’s own public explanation of the Robodebt outcome, that it would ‘remain focused on preventing similar conduct in the future particularly through the ethical decision-making stream of its corruption prevention priorities’ makes this substitution of education explicit.
NACC Committee should not be controlled by the government
The Committee’s existing veto power over appointments is the legislative recognition that executive control of selection requires a parliamentary check.
That check is itself structurally constrained. The Committee’s role is limited in practice by its composition and is controlled by the government, with the Chair being a member of the Government and has a deliberative vote, and if votes are equal a casting vote. Parliamentary committees operate with imperfect access to executive information and further statutory protection of the Committee’ independence is essential.
The appointment framework this submission addresses is not contained in a single provision. It is produced by the interaction of several provisions of the National Anti-Corruption Commission Act 2022 (Cth) (‘the NACC Act’), and is best understood against the differently designed frameworks the same portfolio has enacted for comparable bodies. This section sets out those interactions, the relevant provisions, and the applicable instruments.
The Commissioner and Deputy Commissioners are appointed by the Governor-General under sections 241 and 242 of the NACC Act, on the recommendation of the Attorney-General. Before the Minister may make that recommendation, section 178 requires the proposed recommendation to be referred to, and approved by, the Parliamentary Joint Committee on the NACC; This is the only non Executive Government check, and it operates only on a candidate the Minister has already selected: the Committee cannot initiate the process, advertise the vacancy, propose alternative candidates, or require any particular selection method.
The Act imposes minimum criteria: the Commissioner and at least two Deputy Commissioners must be a current or former judge, or a legal practitioner of at least five years’ standing. The current cohort meets but does not exceed that threshold.
The process for approval of acting appointments warrants the Committee’s specific attention, in light of the Commissioner and Deputy Commissioner vacancies, to the extent that an acting appointment may be made without the s 178 safeguard,The Accountability Round Table asks Committee to clarify its own or an equivalent safeguard role in acting appointments of any substantial duration.The appointment process and the integrity framework are not separate matters, an appointment process that does not surface a candidate’s existing relationships or professional background at the threshold leaves the conditions-of-office provisions to operate reactively. The contrast is not one of legislative error or drafting capacity. The current Government can act to reform this.
Finally, the appointment framework interacts with the broader accountability architecture of the Royal Commissions Act and the Statement of Ministerial Standards, a non-statutory instrument. a Royal Commission’s findings carry no power of enforcement, and the Statement of Ministerial Standards is administered by the Prime Minister alone. The Commission’s own discretion is, in consequence, the effective point at which independence and integrity are essential.
That is why the manner of the Commission’s leadership selection carries the weight this submission attributes to it: the appointment provisions do not operate in isolation, but as the determinant of how an institution with this much unreviewable discretion will, on balance, exercise it.
Conclusion
The failures described in this submission are not isolated lapses by particular officers; they are a consistent institutional and cultural pattern. The apology to the Parliament was the point at which that pattern became visible across the NACC’s functions, connecting the slow progress of its investigative work with the conduct of its administrative and parliamentary accountable work.
The problem is structural, and our analysis is non-partisan. The current cloud of secrecy results in potential harm to people engaging with the NACC, including whistleblowers. Not confined to one individual or any single decision: it reaches every level, and those who interact with it, and without restoring the NACC’s authority by rebuilding the public’s trust it cannot appropriately support people engaging with it.
The Accountability Round Table submits that the procedural reforms are required because the current framework structurally aligns executive interest against the NACC’s purpose. Published selection criteria, assessment by an independent body, and statutory protection against ministerial direction should apply immediately to the Commissioner and Deputy Commissioner vacancies then be legislated through amendment of the NACC Act to make future appointments modelled on those already legislated for, the Administrative Review Tribunal and the Australian Human Rights Commission and pair them with protections for whistleblowers, and protection of the Committee’s including statutory requirements on the provision of selection material to the Committee and protection of the Committee’s composition against control by the government of the day; and be supported by bringing forward the independent statutory review of the NACC, currently scheduled for 2027, so that the institutional questions identified in this submission can be examined in their fuller context.
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