National Anti-Corruption Commission: implications for private businesses

13/12/2022

The National Anti-Corruption Commission Act 2022 (Act) finally passed both houses of Parliament on 30 November 2022 and received royal assent yesterday. The Act establishes the National Anti-Corruption Commission (NACC). It invests it with broad powers to investigate and conduct inquiries (whether following a public complaint, agency referral or on their own initiative). The NACC will be tasked with investigating corruption issues that the Commissioner believes could involve serious or systemic corrupt conduct.

The NACC will have broad and retrospective powers impacting not only Government but also those in the private sector who work with Government.

Steps you can take

The NACC’s retrospective powers have ramifications for private sector companies that engage with Government. Proactive steps you can take ahead of the NACC’s creation include:

reviewing anti-bribery and corruption policies and compliance with best practice models (such as maintaining a gifts and hospitality register);
ensuring staff awareness of policies and procedures, conducting an audit into past conduct; and
developing a plan to respond to any NACC investigation.

What powers will the National Anti-Corruption Commission have?

The NACC would have a broad jurisdiction to investigate corrupt conduct involving Commonwealth Ministers, parliamentarians and their staff, the heads and employees of Commonwealth agencies, government contractors and their employees, members of the Australian Defence Force, statutory office holders and appointees, officers and directors of Commonwealth companies, and people or bodies providing services, exercising powers or performing functions on behalf of the Commonwealth.

Corrupt conduct

This would include conduct that could constitute a criminal offence (such as bribery or abuse of office), as well as non-criminal conduct, including:

any conduct of a person (including a public official) that adversely affects, or could adversely affect, the honest or impartial exercise or performance of any public official’s powers, functions or duties; and
any conduct of a public official that constitutes or involves a breach of public trust, abuse of office or misuse of information acquired in the person’s capacity as a public official.

Corrupt conduct need not be for the person’s personal benefit and includes conspiracy or an attempt to engage in corrupt conduct.

The NACC will be able to investigate conduct occurring now or in the past

Importantly, the Act will invest the Commissioner with the power to investigate and hold public inquiries concerning past conduct, including conduct that occurred before the commencement of the legislation and conduct involving persons who have since left public office. However, the Commissioner would only be able to conduct a criminal investigation where the conduct in question could have constituted a corruption-related offence at the time it was alleged to have been committed.

How will the National Anti-Corruption Commission conduct its investigations?

The Commissioner’s investigative powers would be similar to a Royal Commission, including a power to hold hearings and powers to:

compel witnesses (including public and private sector witnesses and private individuals) and exercise limited powers of arrest to ensure attendance at a hearing;
compel the production of documents and information;
obtain a warrant to enter and search premises, enter certain Commonwealth premises without a search warrant and seize evidence;
intercept telecommunications and use surveillance devices, subject to existing thresholds for the use of those powers by law enforcement agencies.

The Act provides protections for whistleblowers and safeguards against undue reputational damage, including procedural fairness requirements and the availability of judicial review.

Public and private hearings

Any hearings will be held in private unless the Commissioner is satisfied that a public hearing is justified by “exceptional circumstances” and is in the public interest. A person would not be excused from giving information or documents on grounds that it is self-incriminatory or legally privileged.

What are the outcomes of an investigation?

The Commissioner will be able to make recommendations and findings of fact, including a finding of corrupt conduct or a recommendation of disciplinary action, and refer evidence of criminal conduct to appropriate agencies, such as the Commonwealth Director of Public Prosecutions.

The Commissioner must report on completed investigations to the Attorney-General and table reports in Parliament if a public hearing was held and can publish reports where it is in the public interest.

4 Key amendments to the Bill which were agreed by Parliament

Disclosure to medical and legal practitioners

The Act makes it an offence to disclose a notice to produce or private hearing summons in contravention of a non-disclosure notation or to use or disclose investigation material in contravention of a direction by the Commissioner not to do so. However, the Bill was amended to permit disclosure to a legal practitioner or legal aid officer to obtain assistance, advice or representation concerning the investigation or to a medical practitioner or psychologist to obtain medical or psychiatric treatment, care or counselling.

Audit powers

The Act creates an Inspector of the NACC, whose role includes ensuring the NACC is operating fairly and effectively. The Bill was amended to invest the Inspector with additional powers to audit the NACC’s operations for compliance with Commonwealth laws and to detect agency maladministration and officer misconduct, and to make recommendations to the NACC on the outcomes of such audits.

Removal of the catch-all definition of ‘corrupt conduct’

The definition of ‘corrupt conduct’ was amended to remove the catch-all limb of ‘corruption of any other kind’. This amendment is unlikely to narrow the scope of the NACC’s jurisdiction significantly, given the breadth of the remaining limbs of the definition.

Notification of the outcome of a corruption investigation:

The Bill was amended to ensure that anyone whose conduct is investigated as part of a NACC investigation will be advised of the outcome regardless of the finding (unless it is not reasonably practicable to do so, or to do so would be against the public interest).

What happens next?

The Act received Royal Assent on 12 December 2022, and part of the Act dealing with oversight of the NACC commenced on 13 December 2022. The remainder of the legislation will commence on a date fixed by proclamation, or if no such proclamation is made within 12 months of royal assent, the day after that 12-month period ends. The Prime Minister and Attorney-General have said the NACC will be established by mid-2023.