The newly formed National Anti-Corruption Commission (NACC) commenced operating in July this year and is described as “an independent Australian Government agency that detects, investigates and reports on serious or systemic corrupt conduct in the Australian Government public sector.”
Whilst the NACC will be responsible for educating the public sector on corruption risks and prevention strategies, it seems the bulk of the new Commissioner’s work will be undertaking investigations with there being more than 1673 referrals to the Commission already with at least 186 having passed triage stage and progressing to assessment. The power to undertake investigations is broad in that:
“The NACC will also be able to investigate any person, even if they are not a public official, who does something that causes or could cause a public official to carry out their official duties in a dishonest or biased way.”
It is clear that the investigative powers of the Commission are far reaching.
This alert provides a brief overview of the investigations, Powers, Hearings and Outcomes and Oversight.
Investigations
Investigations can be initiated by voluntary referral and of the Commission’s own motion. The National Anti-Corruption Commission Act 2022 (Cth) (the Act) also requires certain Commonwealth Agencies to make mandatory referrals when they become aware of a corruption issue.
Given the number of referrals already in the pipeline, it is likely the Commission will utilise their powers to conduct preliminary investigations in private. The purpose of which is to confirm the existence or nature of a corruption issue or to assist in deciding whether, or how, to deal with a corruption issue.
During a preliminary investigation the Commissioner can issue a Notice to Produce (NTP) if he has reasonable grounds to suspect a person has information, or a document or thing relevant to a corruption investigation. Such notices can be issued without holding a hearing and the recipients have only 14 days to comply, and failure to do so is an offence which carries a sentence of 2 years imprisonment.
Powers
Persons can also be summonsed to attend a hearing and both NTPs and Summonses to appear to give evidence are likely to include non-disclosure prohibitions regarding the NTP or Summons. Exceptions to non-disclosure are available such as when seeking legal advice in relation to the NTP and Summons however care should be taken given the heavy penalty of 5 years imprisonment for breaching such provisions.
Other powers available to the Commission include:
- Requiring the delivery of travel documents to the Commissioner of summonsed persons pursuant to an order of the Court;
- Applying for a warrant to arrest a witness; and
- Entering premises without the need for a search warrant.
Hearings
The general rule under the Act is that hearings will be held in private unless the Commissioner decides that exceptional circumstances exist, and it is in the public interest for the hearing to be public. This departs from legislation in States where anti-corruption bodies generally hold public inquiries albeit often after preliminary private hearings are held. This rule has come under some criticism from the media, complaining that Commission hearings will not serve justice if held in private. Clearly the legislator’s intentions here include the avoidance of a trail by media occurring.
A witness may make a request to the Commissioner for the hearing to be held in private.
A summons must set out the general nature of the information a person is required to give evidence of and the Act permits examination and cross-examination at hearings. Having a legal representative from the outset is crucial to ensuring procedures are complied with and there is compliance with NTPs.
Witnesses are offered some protection from self-incrimination under the Act, however there are certain circumstances where evidence will be admissible over the privilege against self-incrimination such as production of a document that is part of a record of an existing or past business.
Severe penalties of between 2-5 years imprisonment apply:
- where there is destruction of documents or things, either by act or omission;
- in providing false or misleading information, evidence or documents;
- in obstructing, hindering or disrupting a hearing; or
- threatening a person at a hearing.
Outcome and Oversight
An investigation will usually conclude with the creation of a report however the Act stipulates publication of the reports can only occur following consultation with Commonwealth Department Heads regarding sensitive information which is to be withheld in a “protected information report”. This raises questions as to the transparency of the Commission’s work and what information will be available to the public. This has been ventilated in the media by the recent referral of a sealed chapter of the Report of the Royal Commission into the Robodebt Scheme.
Concern such as those highlighted above are sought to be addressed in the oversight provisions found in Part 10 of the Act. Not only will there be a Parliamentary Joint Commission, but Ms Gail Furness SC has been appointed the Inspector of the NACC. The Inspector will oversee the NACC and investigate any corruption within the commission itself however, paradoxically, one of the powers it has it to refer corrupt conduct from within the NACC to the NACC.
How we can help
If you are concerned you may be involved, inadvertently or otherwise, within an investigation, contact a member from our Dispute Resolution team who will be able to advise you of your rights.
Alternately, if you receive a NTP or Summons from the NACC and would like our advice or representation at a hearing, we have experienced lawyers willing to help.
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