The National Anti-Corruption Commission: what you need to know about its powers to require information and documents
17 August 2023
17 August 2023
When the NACC Commissioner becomes aware of a corruption issue, they can conduct a preliminary investigation to confirm the existence or nature of the corruption issue, or to decide whether or how to deal with the corruption issue (see section 42 of the NACC Act). The Commissioner may then conduct a more comprehensive investigation into the corruption issue. It is also open to the Commissioner to proceed straight to a full corruption investigation without a preliminary investigation.
The investigation process may involve gathering information, documents or things under compulsion from government agencies, private organisations, or individuals. The Commissioner can use the power to compel the production of information, documents or things to the NACC at any time during any stage of investigation.
Section 57 of the NACC Act provides that if the NACC Commissioner has reasonable grounds to suspect that a Commonwealth agency has information, documents, or things relevant to a corruption investigation, the Commissioner may direct the head of the agency (usually its Secretary or CEO) to give the information, documents or things to the NACC. The agency head must comply with the direction as soon as practicable.
Section 58 of the NACC Act provides that if the NACC Commissioner has reasonable grounds to suspect that a person (including a corporation) has information, documents or things relevant to a corruption investigation, they may require the person to give the information, documents or things to the NACC.
The notice must be served on the person and specify the period within which, and the manner in which, the person must comply with the notice.
The notice may require information to be given to the NACC in writing.
The minimum time period for complying with a notice to produce is 14 days after the notice is served (section 59), though it can be shorter if the Commissioner considers that 14 days would significantly prejudice a corruption investigation.
Our experience from recent inquiries and Royal Commissions is that requests for information and documents are becoming increasingly broad and burdensome on recipients, requiring the collection and assessment of extremely large volumes of documents. We expect the NACC will be no different. It is important for recipients of notices to produce to act promptly in order to meet often tight time frames.
The person who receives a notice to produce must comply within the period specified on the notice (being at least 14 days) unless they apply to, and are granted an extension by, the Commissioner before the period specified in the notice expires or as soon as possible after that (section 59).
Failure to comply with a notice to produce within the specified period is an offence under the NACC Act, unless it is not reasonably practicable for the person to comply with the notice within the required period (section 60).
Knowingly producing false or misleading information or documents in response to a notice to produce is an offence under the NACC Act (section 61).
A person is not excused from giving information, documents or things, as required by a notice to produce, on the ground that doing so would tend to incriminate them or expose them to a penalty. However, the information, document or thing will not be admissible in evidence against the person in a criminal or penalty proceeding only because it was disclosed to the NACC (section 113).
A notice to produce may contain a non-disclosure notation, which is a requirement included in a notice to produce that prohibits disclosure of information about the fact of the notice or any official matter connected with the notice (section 95).
A notation may also permit the disclosure of information about the fact of the notice in specified circumstances.
The Commissioner must include a non disclosure notation in a notice to produce if satisfied that not doing so would reasonably be expected to prejudice:
Section 98 of the NACC Act makes it an offence to disclose information contrary to a non-disclosure notation.
Non-disclosure notations will pose additional complexity and risk for persons responding to notices to produce information, documents or things. Collating documents for production in response to a notice often requires consultation across a business and with external parties, including contractors and service providers. If a non-disclosure notation is included in a notice to produce, careful attention to the requirements of that notation will be necessary to ensure response processes are conducted in a way to avoid inadvertent breaches or non-compliance with the terms of the notice.
A person or organisation that is required to give information, a document or a thing to the NACC must do so, even if the information, document or thing is covered by legal professional privilege or disclosing it would breach a secrecy provision of another law (except a small number of exempt secrecy provisions that are defined in section 7 of the NACC Act), or would be contrary to the public interest (section 114).
Section 114 of the NACC Act provides that a person does not commit an offence, and is not liable to any penalty, as a result of giving information, documents or things to the NACC as required by a direction or notice to produce. That is, the NACC Act will generally override offence provisions found in other legislation that would otherwise prohibit the disclosure of protected information, documents or things.
Some narrow categories of privilege remain unaffected, such as advice about the notice to produce itself, and advice given to journalists. We will be addressing the topic of privilege in NACC investigations in more detail in a future publication.
If your organisation is issued a direction or notice to produce information, documents or things by the Commissioner, Ashurst and our eDiscovery service can help you by:
Authors: Melanie McKean, Partner; Rani John, Partner; and Edward Elliott, Senior Associate.