• Tue. Nov 29th, 2022

National Anti-Corruption Commission: Implications for the Private Sector

ByChad J. Johnson

Oct 7, 2022

The National Anti-Corruption Commission Bill 2022 (Invoice) proposes to create the National Commission for the Fight against Corruption (NACC) and invests it with broad powers of investigation and conduct of inquiries (whether following a complaint from the public, a referral from an organization or on its own initiative). The NACC will be responsible for investigating corruption issues that the commissioner believes may involve serious or systemic corrupt conduct.

The NACC will have sweeping and retroactive powers that will impact not only the government but also those in the private sector who work with the government.

Steps you can take

The NACC’s retroactive powers have ramifications for the private sector in working with government. Proactive steps you can take before the NACC is created include:

  • review of anti-bribery and corruption policies and compliance with best practice models (such as keeping a register of gifts and hospitality);
  • ensure that staff are aware of policies and procedures, conduct an audit of past behaviors; and
  • develop a plan to respond to any CNLA inquiries.

What powers will the NACC have?

The NACC would have broad jurisdiction to investigate acts of corruption involving Commonwealth ministers, parliamentarians and their staff, heads and employees of Commonwealth agencies, government contractors and their employees, members of the Australian Defense Force, statutory office holders and appointees, officers and directors. Commonwealth companies and persons or bodies providing services, exercising powers or performing functions on behalf of the Commonwealth.

Corrupt conduct

This includes conduct that could constitute a criminal offense (such as bribery or abuse of power), as well as non-criminal conduct, including:

  • any conduct by any person (including a public official) which interferes or could interfere with the honest or impartial exercise or performance of the powers, functions or duties of a public official;
  • any conduct by a public official which constitutes or involves a breach of public trust, abuse of office, misuse of information acquired in his capacity as a public official; and
  • any other conduct for corrupt purposes of any kind.

Corrupt conduct need not be for the personal benefit of the person, and includes conspiracy or attempt to engage in corrupt conduct.

The NACC will be able to investigate behaviors that are happening now or in the past

It is important to note that the bill proposes to vest the Commissioner with the power to investigate and conduct public inquiries into past conduct, including conduct that occurred before the legislation came into force and conduct involving people who have since left the public service. However, the Commissioner would only be able to conduct a criminal investigation if the conduct in question could have constituted a corruption-related offense at the time it was committed.

How will the NACC conduct its investigations?

The commissioner’s investigative powers would be similar to those of a royal commission, including the power to hold hearings and the power to:

  • compel witnesses (including public and private sector witnesses and individuals) and exercise limited powers of arrest to ensure their attendance at a hearing;
  • require the production of documents and information;
  • obtain a warrant to enter premises and search, enter certain Commonwealth premises without a search warrant and seize evidence; and
  • intercept telecommunications and use surveillance devices, subject to existing thresholds for the use of these powers by law enforcement.

The bill provides protections for whistleblowers and safeguards against undue reputational damage, including procedural fairness requirements and the availability of judicial review.

Public and private hearings

All hearings will be held in camera unless the Commissioner is satisfied that a public hearing is warranted by “exceptional circumstances” and is in the public interest. A person would not be excused from providing information or materials on the grounds that they are self-incriminating or protected by law.

What are the results of an investigation?

The commissioner will be able to make recommendations and findings of fact, including a finding of corrupt conduct or a recommendation for disciplinary action, and refer evidence of criminal conduct to the appropriate bodies, such as the Commonwealth Director of Public Prosecutions.

The Commissioner must report on completed investigations to the Attorney General and table reports in Parliament if a public hearing was held, and may release reports when it is in the public interest.

Broader context

The experience of equivalent state-based bodies has shown that many corruption investigations occur in the context of public procurement processes. For the Commonwealth, this means that any process conducted by the NACC should also be considered alongside any rights that affected parties may have under the Commonwealth Procurement Rules or the Commonwealth Procurement (Judicial Review) Act 2018which provide that suppliers can file complaints and take action related to covered procurement.

What happens next?

The Albanian government has committed to legislating the NACC by the end of 2022 and plans to establish the NACC in mid-2023.