Ready or not? Here we go. What to expect in a NACC new world

The National Anti-Corruption Commission (NACC) has now officially opened its doors, having formally commenced over the weekend from 1 July 2023. 

In our previous insight, we looked at what conduct the NACC will investigate. Importantly, the NACC can only investigate a corruption issue if it could, in the NACC’s opinion, involve corrupt conduct that is serious or systemic. The meaning of ‘corrupt conduct’ is broader than what you might expect from the ordinary meaning of the term – it will cover a breach of public trust and misuse of information, as well as the more obvious abuse of someone’s office as a public official.

The term ‘serious or systemic’ is not defined in the relevant law, but we have the following guidance from the explanatory memorandum to the NACC Bill:

• Whether corrupt conduct is ‘serious’ involves consideration of whether there is a criminal offence, whether there is financial loss or gain associated with the corrupt conduct, whether the misused information is sensitive, whether there is deception, and whether the conduct was deliberate.
• Corrupt conduct could be ‘systemic’ if it occurs as part of a pattern (for example, in one or more Commonwealth agencies), but the conduct doesn’t need to be coordinated in any way.

With the NACC now operational, it’s timely to consider what to expect if you have witnessed potentially serious or systemic corrupt conduct and want to make a referral, or if you are otherwise involved with a NACC investigation.

You have seen potential serious or systemic corrupt conduct and want to make a referral

The NACC is now able to receive and consider referrals made by anyone – whether you are a public official or not. If you make a voluntary referral, it is important to remember:

• You do not need to be sure that the suspected corrupt conduct is “serious or systemic” – this is an assessment the NACC itself will make;
• You can choose to make an anonymous referral, although this will then limit what the NACC can do in respect of the referral, in particular to make sure there are protections in place for you;
• You will have the benefit of a range of protections that are similar to those available to public officials who make a public interest disclosure under the Public Interest Disclosure Act 2013 (Cth) (PID Act). These include:
• immunity from proceedings for civil, criminal and administrative liability in respect of the disclosure;
• protection from enforcement of contractual or other remedies or rights on the basis of the disclosure. This includes, for example, that your employment contract can’t be terminated for breach on the basis of your disclosure about corruption issues to NACC.

Some people have mandatory referral obligations. Specifically, if you are:

• the head of a Commonwealth agency (or intelligence agency); or
• a staff member of a Commonwealth agency who performs or exercises particular functions or powers under the PID Act;

then you have a positive obligation and must refer any corrupt conduct that you suspect is serious or systemic you become aware of to the NACC. 

Your colleague has made a referral, what can and can’t you do

Any referrer to the NACC has the benefits of the protections set out above. It is important that your organisation does not cause detriment to a person where it believes, or suspects, someone has, may or could disclose corrupt conduct to the NACC.  This would include:

• Terminating someone;
• Demoting someone, or placing them in a position where their role or duties is less favourable; and
• Discriminating between the person and other employees.

It is a criminal offence to take, or threaten to take, reprisal action against anyone who refers or gives information on a corruption issue to the NACC or is suspected of making a NACC disclosure.

While reasonable administrative action by an organisation will not be a reprisal, (including taking steps to protect a person from detriment such as moving them to another work area to ensure they are not subject to detriment) there may be a fine line between this type of action and causing detriment which amounts to a reprisal.

You receive a notice to produce or summons. What is next?

The NACC can issue compulsory Notices to Produce requiring a person to produce information, documents or some other item. If you receive a notice you need to consider:

• Is there a non-disclosure notation which limits what you can disclose about the notice (and could include the fact you have received the notice at all)? If so, read this carefully and make sure you comply with it, as there are serious penalties for any breaches.
• Are the materials requested held by you, or by your employer? If the documents are held by your employer, you need to be mindful of any non-disclosure notations which may prevent you from discussing the notice. In these circumstances, you should liaise with the NACC.
• Under the relevant legislation, you will be required to produce material that usually would be able to be withheld. All of the following material needs to be disclosed to the NACC:
• Material subject to legal professional privilege (LPP). However, you should identify if the material you are producing is subject to LPP, as it will impact how that material is dealt with by the Commission.
• Material subject to secrecy obligations (with some exceptions).
• Material that would be self-incriminating. Although, this material won’t be admissible in criminal proceedings.
• Materials that would be subject to a claim for public interest immunity unless it concerns national security. It is also possible that the Attorney General will issue a certificate to protect certain information, but this will be rare.

You could also receive a summons to attend and give evidence at a hearing. If this occurs:

• The summons should set out the ‘general nature’ of the matters the NACC intends to question you about. However, you may not receive notice of the documents you will be referred to or asked to comment on until you appear at the hearing.
• You may want to consider seeking legal advice (it is anticipated that the NACC will pay for an amount of legal assistance for witnesses, which is consistent with what occurs in other anti-corruption/ integrity commissions).

Additionally, it is possible that the NACC may refer to you in a final report. If this is going to happen:

• The NACC is required to give you a statement setting out any ‘critical’ (expressly or impliedly) opinion, finding or recommendation that is proposed to be included in a report; and
• You must be given a reasonable opportunity to respond. The time to provide this response may be tight.

You are the subject of an investigation. What can you do?

If you are the subject of an investigation, or closely involved, it is important you obtain legal advice. The outcomes of an investigation can have serious consequences. At a high level:

• You need to co-operate with the investigation. This will include complying with any notices to produce and summonses to appear.
• The NACC has various options available to it when conducting an investigation, and you may be able to make submissions about the most appropriate approach, for example whether the hearing is in public or private. The NACC will need to consider the impact of the investigation on your reputation, so it is important you raise these concerns early.
• After an investigation, the NACC will prepare a report which will likely include recommendations. These recommendations could include:
• terminating a person’s employment;
• taking action to improve a person’s performance;
• taking acting to mitigate the effects of any corrupt conduct; and
• adopting measures to remedy deficiencies in relation to the corrupt conduct or failure to detect that corrupt conduct.
• If the NACC is intending to make a critical opinion, finding or recommendation about you, it is required to give you a statement setting this out and giving you a reasonable opportunity to respond.
• A finding contained in a report can be reviewed (judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judiciary Act 1903 (Cth)). You may be able to challenge a finding if the NACC has committed an error of law, for example by failing to afford you procedural fairness.