Dear election participants,
Corruption risks and vulnerabilities in the context of an election
Corrupt conduct involving public officials, or the perception of it, can undermine public confidence in our democratic system of government.
Elections are a critical aspect of the democratic process. They can also exacerbate corruption risks and vulnerabilities for public officials. Some of these risks are obvious, such as the misuse of public funds and resources. Others are more nuanced, such as the making of public sector appointments. These risks and vulnerabilities are relevant to parliamentarians and people who work for them, including as consultants and volunteers, as well as Australian Government employees.
There are a range of legal and policy frameworks governing the behaviour of public officials in the context of an election, some of which are referred to below. The Guidance on Caretaker Conventions issued by the Department of the Prime Minister and Cabinet before each general election provides advice to public officials about the appropriate management of government activities after the House of Representatives is dissolved. However, conduct can be corrupt, even if it appears to comply with applicable laws and policies, if it involves a breach of public trust, an abuse of office, or involves a dishonest exercise of public powers, functions and duties. Corrupt conduct can occur before or after the caretaker period begins. The relevance of an election is that it can increase the incentive for, and thus the risk of, corrupt conduct.
Corrupt conduct and the role of the Commission
The functions of the National Anti-Corruption Commission (Commission) include providing education and information about, and preventing, corrupt conduct. The purpose of this letter is to provide information in relation to corruption risks and vulnerabilities that can arise in the lead up to, during, and after an election, to help public officials and other participants avoid them. This is different from ensuring electoral integrity through safeguarding the integrity of election events and the administration of the Commonwealth funding and disclosure scheme, which are functions of the Australian Electoral Commission (AEC). The AEC provides guidance on its website to assist electoral participants to meet their obligations: www.aec.gov.au.
Under the National Anti-Corruption Commission Act 2022 (Cth) (NACC Act), ‘public officials’ include parliamentarians (including Ministers), their staff, and staff members of Commonwealth agencies. Corrupt conduct includes:
- conduct of any person that causes a public official to act other than honestly and impartially, such as threats, bribes, or inducements. This includes a public official’s own conduct
- breach by a public official of public trust: this means the performance of a public function for an improper purpose
- abuse by a public official of their public office: this means using their official position improperly to gain a benefit or inflict a detriment
- misuse by a public official or former public official of official information: including unauthorised access, use or disclosure of information received in an official capacity.
However, conduct engaged in as part of a political activity is not corrupt conduct under the NACC Act, so long as it does not involve or affect the use of public resources or the performance of a public official’s functions.
Use of parliamentary resources and staff
Under the Parliamentary Business Resources Act 2017, parliamentarians are personally responsible and accountable for their use of public resources for conducting their parliamentary business. They must be prepared to justify publicly their use of those resources, and they must act ethically and in good faith in using and accounting for them. Resources provided by the Commonwealth must not be used other than for the dominant purpose of conducting the member’s parliamentary business.
Staff employed under the Members of Parliament (Staff) Act 1984 (MOP(S) Act) are engaged to assist Parliamentarians to carry out their parliamentary business and other duties as a Member of Parliament and are remunerated by the Commonwealth on that basis. Among other things, ‘parliamentary business’ includes a limited scope of party political duties, including in an election context. These are defined in the Parliamentary Business Resources (Parliamentary Business) Determination 2025, and include, for example, the parliamentarian, in their capacity as an elected senator or member: participating in a formal meeting of a political party or a national, state or territory conference of a political party; and, as a member of a political party or in collaboration with another group of members, developing policies, proposals and plans and engaging or working with an administrative support function or headquarters used by a political party or by a group of members; including in the context of a federal election. The Members of Parliament (Staff) (Employee Direction) Determination 2025 provides that parliamentarians may direct their staff to undertake activities that support, assist or facilitate the parliamentarian’s duties, including the conduct of their parliamentary business. A parliamentarian must not direct MOP(S) Act employees to undertake activities that do not support, assist or facilitate the conduct of the employing parliamentarian’s parliamentary business or other duties.
The use of resources or staff for purposes that are unrelated to a member’s parliamentary business could constitute corrupt conduct. Although the legal frameworks have differences, the use of staff by parliamentarians in the context of elections has attracted the attention of other Australian anti-corruption commissions: see Independent Broad-based Anti-corruption Commission Victoria and Victorian Ombudsman Operation Watts Special Report; Western Australia Corruption and Crime Commission Significant misconduct risks to good government; Office of the Independent Commissioner Against Corruption Northern Territory Investigation Report – Operation Jupiter: Allegations of improper conduct in the lead up to the 2020 General Election.
Use of information
Parliamentarians, ministerial and parliamentary staff and members of the Australian Public Service have access to official information and documents in the course of their duties and because of the position they hold. The misuse of official information by a current or former public official is corrupt conduct under section 8(1)(d) of the NACC Act. This can include downloading official documents to personal devices for personal or non-official use, and unauthorised destruction of official documents. It can also include the use of personal contact information held by agencies of grantees, suppliers, non-government entity stakeholders and other individuals to distribute messaging for personal or party political purposes.
Public sector appointments
Governments have a wide discretion in making appointments to judicial and representational positions, commissions and tribunals, and heads or board members of Commonwealth agencies in accordance with relevant governing legislation. Governments are entitled to have regard to policy considerations in making such appointments, and parliamentarians and former parliamentarians, including political affiliates of the government (such as former Ministers, former parliamentarians, and staff members) are not disqualified from consideration, and may sometimes have highly relevant experience. Absent specific legislative requirements, governments are not bound by recommendations made by selection panels or Departments and are entitled to depart from them.
By convention governments defer making significant appointments during the caretaker period. Appointments to judicial, statutory and other positions by a government in the lead up to an election do not of themselves constitute corrupt conduct, unless other factors are present. The Australian Government’s Merit and Transparency Policy provides guidance on the appointment of most Australian Public Service (APS) agency heads and statutory office holders working in or with APS agencies. The enabling legislation of some entities specifies appointment processes for relevant officeholders. An appointment that involves an abuse of office, or is made predominantly for an improper purpose, may be corrupt conduct. More commonly, there is a risk of a perception of corrupt conduct when a government appoints political affiliates, including former Ministers, parliamentarians and their staff members. This perception can be damaging both to the individual appointee, and to the institution to which the appointment is made. This risk can be minimised by adhering to established merit-based selection processes where applicable, and appointing individuals who are indisputably well-qualified.
Grants
The making of election commitments to electors, and the subsequent delivery of those commitments by an elected government, is a feature of Australia’s representative democratic process. As has been mentioned, conduct engaged in as part of a political activity is not corrupt conduct if it does not involve or affect the use of public resources or the performance of a public official’s functions, and so the making of such commitments to electors is unlikely to involve corrupt conduct. However, regardless of election promises, all grants awarded by a government must comply with the requirements of the Public Governance, Performance and Accountability Rule 2014, with a particular focus on the proper use and management of public resources, and the Commonwealth Grants Rules and Principles 2024. For that reason, it is important that consideration is given to the implementation of the commitment in a lawful way, and which complies with the relevant frameworks governing the administration of grants. This can help avoid problems when it comes to delivery.
While a government may continue to make grants, even during the caretaker period, corruption risks can arise if grants are designed and delivered to targeted electors or electorates for predominantly personal or partisan political purposes rather than public benefit. The approval and announcement of grants for a predominantly private or partisan purpose may involve a breach of public trust or an abuse of public office, and therefore may be corrupt conduct under the NACC Act. So may the approval and announcement of grants other than in compliance with the frameworks mentioned above, as this may involve the unauthorised expenditure of public funds for a purpose for which they are not given. Departmental officials have an obligation to clearly communicate any risk that a proposed grant may be non-compliant to the relevant Minister.
Government advertising
There are established robust policies and procedures to avoid the misuse of government advertising in a way that could deliver unfair political advantage to the incumbent government and potentially constitute an improper use of public resources. The Guidelines on Information and Advertising campaigns by non-corporate Commonwealth entities require that Australian Government campaigns must be free from political content and relevant to government responsibilities. The Guidance on Caretaker Conventions explains that during the caretaker period, agencies should avoid actively distributing material which promotes government policies or emphasises the achievements of the government or a minister.
Donations and other gifts
Donations (and gifts of other benefits) to political parties are an inherent part of our political system. Soliciting, giving and receiving gifts is not corrupt conduct, but gifts must be reported and disclosed to the AEC in accordance with the Commonwealth Electoral Act 1918.
Receiving or making a donation or a gift of any kind with the intention of acting, or influencing a recipient to later act, other than honestly or impartially as a public official could constitute corrupt conduct. Candidates and other political participants should take care to avoid creating any actual or implied reciprocal obligation to a donor that could compromise the integrity of an elected parliamentarian.
Making a referral to the Commission
All parliamentarians are agency heads for the purposes of the NACC Act, and as such have a statutory obligation to make mandatory referrals to the Commission of corruption issues of which they become aware as soon as reasonably practicable if:
- the issue concerns the conduct of a person who is, or was, a staff member of their parliamentary office while that person is, or was, a staff member; and
- they suspect that the issue could involve corrupt conduct that is serious or systemic.
Referrals can be made via the Commission’s webform.
Publicising allegations of corrupt conduct
The Commission welcomes and encourages appropriate referrals of potential corrupt conduct. However, please think carefully before publicising referrals made to the Commission. Publicity can compromise the Commission’s ability to carry out investigations and can also cause unfair reputational damage.
It is inappropriate to announce a referral to the Commission for collateral, including political, purposes. A public accusation of corruption is a very serious matter, and should only be made responsibly. As the Commission has previously stated, although the Commission usually refrains from commenting publicly on referrals and investigations, if referrals to the Commission are weaponised in this way, it will use its power to make public statements where it is in the public interest to do so, if necessary to avoid unfair damage to reputations.
Yours sincerely,
The Hon PLG Brereton AM RFD SC
Commissioner