Australia's Anti-Corruption Commission is now operational – What does it mean for you?

If a company contracts with the Commonwealth or a Commonwealth agency for the provision of goods or services, then its officers, employees and subcontractors who are responsible for the provision of such goods or services will be deemed to be ‘public officials’ for the purposes of the NACC Act, and subject to the same public standards of probity and integrity, and potential scrutiny by the NACC.

The NACC Act creates a new avenue for reporting and investigating corrupt conduct involving public officials at the Commonwealth level. Its objectives are to facilitate the timely detection and investigation of serious and systemic corruption issues, and if possible, prevent them from occurring in the first place. The NACC also has an educational role to play in providing information and raising awareness of “the detrimental effects of corruption on public administration and the Australian community”.¹

Over time, we expect the NACC to be an important source of best practice guidance for integrity frameworks not only for Commonwealth agencies but Australian businesses more broadly.

The NACC Act does not replace any other integrity legislation or whistleblowing frameworks in the Public Interest Disclosure Act 2013 (Cth), Corporations Act 2001 (Cth) or Tax Administration Act 1953 (Cth), but will stand alongside those frameworks and other investigative bodies and agencies, such as State anti-corruption commissions.

The NACC comprises of highly regarded senior public officials with a wealth of experience and expertise which will play an influential role in shaping how the NACC exercises its mandate in its early years. Appointments include:

• Commissioner: The Hon Justice Paul Brereton AM RFD.
• Deputy Commissioner: Ms Nicole Rose PSM.
• Deputy Commissioner: Dr Ben Gauntlet.
• Interim Deputy Commissioner: Ms Jaala Hinchcliff.
• Chief Executive Officer: Mr Philip Reed.
• Inspector: Ms Gail Furness SC.

We expect that Commissioner Brereton will set the tone on public hearings and play a lead role in any investigations against well-known public figures.

In his inaugural address, Commissioner Brereton made the following important remarks²:

• By 5pm Sunday 2 July, the NACC had already received 49 referrals (44 online referrals and 5 telephone requests for call-backs).
• Similar to State anti-corruption commissions, only a small proportion of matters referred to the NACC are expected to reach the stage of full investigation. In deciding whether to investigate a corruption issue, the NACC will have regard to the seriousness and scale of the alleged conduct, whether there is a realistic prospect of a finding of corrupt conduct, whether there have been other investigations of the alleged conduct, or whether it is preferable that another agency investigate the alleged conduct. Most importantly, the NACC will focus on whether and to what extent a corruption investigation by the NACC is likely to ‘add value in the public interest’.
• The NACC is more interested in investigating matters of current practical relevance rather than historic.
• The NACC will aim to complete 90% of its investigations within 12 months.
• Should there be any attempts to ‘weaponise’ the NACC by making inappropriate or unfounded referrals, the Commissioner will not hesitate to use the power to make public statements about corruption issues to avoid damage to reputations and to call out the referral as inappropriate.

Any person can voluntarily contact the NACC to provide information or evidence about a corruption issue. This can also be done anonymously.

Similar to other whistleblowing regimes, a person who makes a disclosure to the NACC will be entitled to certain protections under the NACC Act including immunity from civil, criminal and administrative liability. They are also entitled to protection from reprisals such as dismissal, injury, alteration of an employee’s position to their detriment, or discrimination.

There are mandatory referral obligations on the heads of Commonwealth agencies and other staff members of Commonwealth agencies who become aware of a corruption issue in the course of exercising functions and powers under the Public Interest Disclosure Act in allocating and investigating public interest disclosures.

The scope of the NACC’s investigation powers is similar to other corruption commissions at the State level. However, some significant powers to be aware of include the following:

• A person may receive a notice to produce (information or documents) that contains a ‘non-disclosure notation’, restricting the recipient from sharing the content or existence of the notice to produce with anyone, even their employer.³
• A person is not permitted to withhold information or documents subject to a notice to produce on the basis of legal professional privilege or self-incrimination privilege.⁴ However, the production of such material to the NACC will not amount to a waiver of privilege and cannot be used against the individual in criminal proceedings.⁵ Legal professional privilege may still be claimed over legal advice provided in relation to appearing before or producing material to the NACC.⁶
• The NACC can hold private hearings and may only conduct public hearings in exceptional circumstances. The Attorney-General has implied that this should be less than 5% of hearings (noting that is the current frequency with which NSW ICAC hearings are public).⁷
• Premises occupied by Commonwealth agencies can be searched by the NACC without a warrant and any documents can be inspected, copied, or seized.⁸ The NACC may also apply for and execute search warrants for places, vehicles and people.⁹

At the conclusion of a corruption investigation the NACC must produce a report of its findings for the Attorney-General and may be publish the report in whole or in part if the NACC determines it is in the public interest to do so.¹⁰ A NACC investigation and report can therefore have significant reputational implications for any individual or company involved.

However, critical findings or opinions will not be published without the affected person having the opportunity to be heard and make submissions in advance.¹¹

The NACC’s remit extends beyond just Commonwealth government bodies and Commonwealth agencies and has the potential to impact any companies or individuals who do business with the Commonwealth. Some ways organisations can prepare for the NACC include:

• reviewing your policies and procedures relating to integrity and whistleblowing within your organisation to ensure they are up to date and consider potential touch points with the NACC
• ensuring your organisation fosters a culture where employees feel comfortable reporting suspected corrupt conduct internally
• reviewing the guidance being published by the Attorney-General’s Department on the NACC’s operation
• if you are a Commonwealth agency, understanding the mandatory referral obligations that apply to your CEO and PID Officers and make sure they are equipped to discharge that obligation where it arises, and
• consider what you need to communicate to your employees internally as well as suppliers in terms of integrity and probity expectations within your organisation.

No, a Commonwealth agency is not prevented from continuing to take action in relation to corrupt conduct simply because it has made a referral.

However, the NACC may issue a ‘stop action direction’ which requires the Commonwealth agency to stop taking certain action in relation to a corruption issue while the direction is in place. This may occur in circumstances where actions being taken by the Commonwealth agency has the potential to prejudice or undermine the effectiveness of any actions taken by the NACC. However, the NACC Act balances this power against the need to ensure Commonwealth agencies are always permitted to take actions to address imminent risks to a person’s safety, protect security interests, or prevent an irrecoverable loss to the Commonwealth.

The NACC Act does not create any new corruption offences. Although an investigation report by the NACC may conclude that a person engaged in corrupt conduct and this can have significant reputational implications, this does not amount to an offence. However, where an investigation uncovers evidence that may establish a criminal offence, the NACC can refer the evidence to the appropriate prosecuting authority.

The only offences created by the NACC Act relate to failures to comply with the NACC Act itself, such as failing to attend a hearing or providing false or misleading information to the NACC.

Entities that are subject to both private sector whistleblower provisions in the Corporations Act (and Tax Administration Act), as well as potential NACC jurisdiction, should be reviewing their policies and procedures to ensure they are clear on how to appropriately identify, handle and escalate potential corruption concerns.

While various provisions of the NACC Act address its interaction with the Public Interest Disclosure Act, the NACC Act does not specifically address interaction with private sector whistleblower provisions. We expect that, as operations commence, the NACC will need to turn its attention to some of the practical issues that may arise.

In particular, greater clarity would be useful around how entities should manage confidentiality obligations (particularly regarding the discloser’s identity) alongside obligations to refer and provide information to the NACC. The extent to which this issue crystallises may depend on how the NACC decides to operate, and the extent of information it requires be provided to it.

One solution may be for the NACC to be prescribed as an entity under existing Corporations Act provisions¹² that is authorised to receive identifying information in relation to a whistleblower report, like ASIC and APRA. Another alternative could be for an exception to be introduced similar to section 20(3) of the Public Interest Disclosure Act which permits the disclosure or use of identifying information for the purposes of a law of the Commonwealth.

In short, yes. A company with a Commonwealth contract will be a ‘contracted service provider’ meaning any of its officers or employees involved in providing goods and services for the Commonwealth contract are deemed to be ‘public officials’. The conduct of any person (whether or not a public official) that seeks to influence the honest or impartial exercise of the company’s duties in respect to the Commonwealth contract may constitute corrupt conduct that may be investigated by the NACC.  

The subcontractor may also be deemed to be a public official and subject to the probity standards expected of this role.