The new National Anti-Corruption Commission commences on 1 July 2023 - are you prepared?
28 June 2023
28 June 2023
This update is the fourth instalment in our series of updates on the National Anti-Corruption Commission (NACC). In this update, we review some key features of the NACC legislation and consider:
a) what Commonwealth agencies, and private organisations dealing with the Commonwealth, should do to be ready for the NACC;
b) the course of a NACC investigation; and
c) privileges and protections under the NACC legalisation.
Commonwealth agencies, and private entities dealing with the Commonwealth, should continue their work to embed and maintain a culture of integrity, reporting and compliance. Employees should receive training on the NACC framework so that their statutory obligations, as well as their rights and protections, are well understood.
Commonwealth agencies should consider the aspects of their commercial arrangements where integrity risks are highest, such as procurement and contracting practices (including relevant operational guidelines). It is worth considering how current practices will hold up to scrutiny if considered in a NACC investigation, both in their design and implementation. All Commonwealth entities should ensure contractors to the Commonwealth are aware that they may be subject to the NACC too.
Commonwealth agencies should update their policies and procedures to ensure compliance with the various obligations relating to the NACC, including mandatory referrals by Agency Heads and PID officers, responding to NACC directions to produce, and responding to NACC investigations. There will also be NACC related changes to the PID Act from 1 July 2023, so PID Act policies and procedures should be updated to incorporate those changes (in addition to the recent amendments to that Act).
Commonwealth agencies also need to be ready to manage and support staff who may become involved in a NACC investigation. This could present real complexities if a large scale NACC investigation involves your agency or organisation. New NACC Regulations have recently been made which provide some guidance on how the Commonwealth will provide financial assistance for legal representation for witnesses at hearings.
Agencies will need to be prepared to navigate the complex interaction between multiple processes that could be triggered by a corruption issue, including internal disciplinary processes, investigations under the PID Act, and potential criminal investigations. Agencies and private entities also need to be aware of the protections under the legislation for both whistle-blowers and witnesses to the NACC, and take steps to ensure that staff who are dealing with these processes are aware of these protections.
Commonwealth agencies should also consider how NACC recommendations relating to disciplinary action for agency staff will be implemented, particularly in light of the recent Public Service Regulations 2023 regarding termination of employment following a NACC recommendation.
The NACC will be able to commence an investigation on its own motion, or on referral from a Commonwealth agency head, a PID Act officer, or members of the public. Referrals can be made anonymously.
From 28 July 2023, Agency Heads and PID officers must refer a corruption issue that they have become aware of after 1 July 2023 to the NACC, where they suspect that issue could involve serious or systemic corrupt conduct. If the Agency Head was aware of the issue prior to 1 July 2023, they are not required to refer it to the NACC, but could choose to do so voluntarily.
The NACC will only investigate "serious or systemic" corrupt conduct, as defined by sections 8(1) and 41(2) of the Act. This includes breaches of public trust, abuse of office, and misuse of information by public officials. It also includes conduct by any person (including non-public officials) that adversely affects the honest and impartial exercise of a public official's powers, functions or duties.
This means that the conduct of private sector entities could be subject to investigation where the entity contracts or interacts with the Commonwealth.
The NACC can also refer matters back to the relevant agency for investigation.
Once a decision that the NACC will investigate a corruption issue has been made, the NACC will begin to gather information. The NACC will be able to issue a direction or notice to produce if there are reasonable grounds to suspect a person has information, documents or anything else relevant to a corruption investigation. Directions can be issued to Commonwealth agencies and Notices can be issued to public and private entities and individuals.
The NACC may enter premises occupied by a Commonwealth agency to inspect, copy or extract documents relevant to a corruption investigation and to seize a document or thing that the NACC believes is relevant to an indictable offence and the seizure is necessary to prevent concealment, loss, or destruction (some Commonwealth agencies and sites exempt).
NACC investigators will be able to obtain search warrants and use other investigative powers in accordance with the Crimes Act and other legislation.
The legislation provides that hearings are to be held in private by default, and are only to be held publicly where the Commissioner is satisfied there are 'exceptional circumstances' justifying a public hearing.
It remains to be seen what constitutes 'exceptional circumstances', as the term is not defined in the Act, although some guidance can be found in the explanatory memorandum, which indicates that a range of matters may be relevant including the confidentiality of the evidence, any unfair prejudice to a person's reputation, privacy or safety, the overall benefit of exposing corrupt conduct to the public and where the person giving evidence has a particular vulnerability.
The 'exceptional circumstances' threshold was the subject of much debate prior to the legislation being enacted. In particular, independent parliamentarians argued that hearings should be public by default, in the interest of transparency. The government ultimately retained the 'exceptional circumstances' threshold, arguing that it reflects an appropriate balance given the potential reputational consequences for people compelled to answer questions in a public hearing.
The NACC will have a broad power to control who is present during a hearing. In general, a witness's legal representative will be able to attend hearings at which the witness is giving evidence. However, lawyers for other parties involved in the NACC matter, members of the public, and the media will not be permitted to attend in most cases.
The Commissioner of the NACC is required to prepare a report at the conclusion of each investigation. The Commissioner can make findings or express opinions on the corruption issue and make recommendations. They cannot make findings of criminal guilt or impose punishment.
If the Commissioner makes a finding of corrupt conduct, the matter may be referred to the Australian Federal Police or the Commonwealth Director of Public Prosecutions for further investigation or prosecution.
The NACC Act imposes a statutory procedural fairness obligation in respect of any finding, opinion or recommendation that is expressly or impliedly critical, and is proposed to be published in a report.
If one or more public hearings are held, the report must be tabled in Parliament and will be publicly available. If only private hearings are held, the report is not required to be published but may be published if the Commissioner decides it is in the public interest to do so.
Sensitive information can be excluded from the investigation report and placed in a ‘protected information report’. Agencies will generally be consulted as to the sensitive nature of information contained in draft reports.
The NACC will have jurisdiction over public officials, parliamentary members and staff, statutory office holders, government contractors and related third parties.
Commonwealth agencies and private sector entities interacting with the Commonwealth should have clearly defined processes in place for:
Legal privilege will not exempt a person from producing relevant documents to the NACC under a direction, notice, or during a hearing.
Public interest immunities and other confidentiality claims will also not operate as exemptions from providing information to the NACC under compulsion.
A person will also not be excused from providing the NACC with information or material under compulsion on grounds of self-incrimination, nor on the basis of many secrecy provisions in Commonwealth legislation (noting there are a small number of 'exempt secrecy provisions' referred to in the NACC Act).
However, the NACC's authority to compel production of information does not override parliamentary privilege. Rather, the NACC legislation expressly states it does not affect the law relating to the powers, privileges and immunities of Parliament, its members and committees.
The Act provides a range of whistle-blower protections for both disclosers and witnesses to the NACC. These protections align with the protections in the recently amended PID Act.
In particular, the legislation provides an immunity from any civil, criminal or administrative liability (including disciplinary action) for the person making a bona fide disclosure to the NACC.
It is also an offence to take, or threaten to take, a reprisal action (meaning any action causing detriment) against a person who makes a disclosure to the NACC. If the action is taken on the basis of mere suspicion or belief that the person has made a disclosure to the NACC, that may constitute a reprisal action.
We can support Commonwealth government agencies and private sector entities who interact with the Commonwealth to prepare for, engage with, and respond to the NACC, across the entire life-cyle of a potential corruption issue. This includes assisting in identifying and mitigating risks of corrupt conduct, responding to a NACC investigation, and managing the commercial and employment implications that arise.