The National Anti-Corruption Commission: What you need to know about privileges and the NACC
13 September 2023
13 September 2023
The Courts have often said that fundamental privileges such as legal professional privilege (which can protect documents and information from compulsory disclosure) can only be abrogated by Parliament's express and unambiguous intention. In the case of the NACC Act, Parliament has done exactly that. Section 114 says that a person is not excused from giving an answer or information, or producing a document or thing in response to NACC notices or directions to do so, on the grounds that doing so would disclose legal advice given to a person, or would disclose a communication protected by legal professional privilege.
There is, however, a narrow exception to this position. Legal professional privilege over legal advice about compliance with NACC directions or notices, or concerning a person's actual or anticipated attendance at a NACC hearing, is not abrogated. That means the NACC cannot compel a person to disclose legal advice received about those matters.
The other category of legal professional privilege which survives the NACC Act relates to advice given to journalists, discussed further below.
Section 114(5) makes it clear that the requirement to give answers or produce information to the NACC which would otherwise be legally privileged does not otherwise affect a claim of legal professional privilege. For example, just because a legally privileged report is compulsorily produced to the NACC does not mean that privilege has been waived over the report or is unable to be asserted in other forums (e.g. a civil proceeding). This may provide some comfort to persons who want to cooperate with the NACC but are concerned about waiving privilege over a report or other document.
Notwithstanding the abrogation of legal professional privilege by section 114, it is still important to identify whether documents or information to be produced to the NACC are subject to privilege claims. That is so because:
Section 114 of the NACC Act also overrides most statutory secrecy provisions, by stating that they are not an excuse for not giving an answer or information, or producing a document or thing to the NACC. Section 114(6) makes it clear that a person does not commit an offence, and is not liable to any penalty under the provisions of any other enactment, because they give information as required by a NACC direction or notice to produce, or give an answer as required at a NACC hearing.
The NACC Act defines 'secrecy provisions' as laws of the Commonwealth (or anything done under a provision of a law of a Commonwealth) that prohibit the use or disclosure of, or dealing with, information, documents or things. The section 114 override does not extend to 'exempt secrecy provisions', which are defined in section 7 to include certain secrecy provisions in anti-money laundering, health, intelligence, privacy, surveillance, taxation and telecommunications legislation.
An important legal question, not yet determined, is whether the NACC Act either requires or permits information or documents to be given to the NACC in contravention of State and Territory laws. The assumption in the Explanatory Memorandum accompanying the NACC Act is that the NACC Act will override State and Territory laws, but this is not clear from the text of the legislation itself. Whether it will in fact do so will depend on the application of constitutional legal principles.
Given the complexity associated with complying with competing statutory obligations, anyone who receives a notice to give information, documents or things under the NACC Act that may be subject to statutory secrecy provisions should promptly obtain legal advice to avoid inadvertent breaches of any law.
The NACC Act also, by section 113, abrogates the privilege against self-incrimination. A person is not excused from giving an answer or information, or producing a document or thing, to the NACC on the ground that doing so would tend to incriminate them or expose them to a penalty. It does, however, also provide that any information given is not admissible against the person in a criminal or penalty proceeding, or a confiscation proceeding, unless the thing given is a document that forms part of a business record, or is admissible against the person in certain specified types of proceedings (largely, proceedings concerned with providing false or misleading information to, or obstructing, the NACC).
Persons who are required to give information or produce documents or things to the NACC, or who are called to appear as a witness at a hearing, and who are concerned that they may incriminate themselves by doing so, should promptly seek legal advice about any protections available to them.
The NACC Act provides a number of protections for journalists and their sources, most notably in section 31. That section provides that if an informant gives information to a person who works in a professional capacity as a journalist, and it was on the express or implied understanding that the informant's identity would not be disclosed, then the journalist, their employer, or anyone assisting them is not required to do anything under the NACC Act which would disclose the informant's identity.
The other privilege available to journalists is a carve out from the abrogation of legal professional privilege. Privilege in legal advice given in relation to a person's work as a journalist in a professional capacity is not abrogated (sections 114(3) & (4)). If you are a journalist who has been required to give information to the NACC, it is important to promptly seek legal advice on what protections may be available under the NACC Act.
Section 114 has the effect of removing public interest immunity as a basis on which to resist giving information, documents or things to the NACC. This is most likely to affect Commonwealth agencies who are required to give information or documents to the NACC, or public officials who are called to give evidence at a hearing.
The NACC Act does, however, by section 235, allow the Attorney-General to issue a certificate that disclosure of specified information would be contrary to the public interest on one or more of the grounds set out in section 235(3). A certificate issued under this section does not have the effect that disclosure is excused, but that information subject to the certificate must not be published or disclosed, and evidence about it can only be given in a private hearing.
The Attorney-General may also issue a certificate under section 236 that disclosure of information would be contrary to the public interest on the grounds that it would affect international relations. A person must not disclose information if doing so would contravene an international relations certificate, notwithstanding any other provision of the NACC Act.
The NACC Act expressly abrogates or overrides a number of fundamental privileges, including legal professional privilege and public interest immunity, as well as most statutory secrecy provisions. It does, however, preserve certain aspects of those privileges, and it is important for anyone who is required to give information to the NACC to understand their obligations and any privileges available to them.
Author: Rani John, Partner; Melanie McKean, Partner; and Edward Elliott, Senior Associate.