On 24 November 2022, the Australian Parliament passed the National Anti-Corruption Commission (NACC) Act, with the expectation that the NACC will be in operation by mid-2023. The Act grants the NACC wide investigative powers including the ability to intercept telecommunications and to enter and search certain premises without a search warrant.
The NACC Act has been drafted to incorporate powers from sections of the Crimes Act 1914 (Cth) (Crimes Act) granting authorised officers extensive search powers. Officers of the NACC are able to apply to a magistrate for search warrants to access computer data and systems if they reasonably suspect that an offence has been committed or corrupt conduct has been engaged in. The definition of “Offence” in the Crimes Act has been amended to also include a corruption issue as defined in the NACC Act.
In addition to the NACC Act, the Government also passed the NACC Consequential and Transitional Provisions Act 2022 (NACC Provisions Act). The NACC Provisions Act amends the Telecommunications (Interception and Access) Act 1979 (Cth) to permit NACC Inspectors to make use of or make a record of general computer access intercept information and lawfully intercepted information collected by regulators, subject to exceptions.
Further, the NACC Provisions Act also amends the Surveillance Devices Act 2004 (Cth) to allow the NACC to apply for warrants to use tracking, and surveillance devices for the purposes of its investigations.
The NACC Act grants the Commissioner of the NACC the power to require a person to give information, documents, or things, relevant to a corruption investigation to a specialised staff member of the NACC. A notice to produce must be complied within 14 days of service. Failing to comply with a notice to produce is an offence and carries a penalty of up to two years imprisonment. It is a further offence to produce false or misleading information to the Commission which carries a penalty of up to five years imprisonment.
The NACC Commissioner is also granted the power to summon persons to attend hearings, if they have reasonable grounds to suspect that a person has evidence relevant to a corruption investigation. The summons must set out, so far as reasonably practicable, the general nature of the matters in relation to which the Commissioner intends to question the person. It is an offence to fail to attend a hearing, with a penalty of up to two years imprisonment. Failing to give information to the NACC also carries a term of imprisonment of up to two years.
The NACC also may compel individuals to keep confidential the fact they have been issued with a notice to produce or summons. The penalty for failing to comply with a non-disclosure notation is up to five years imprisonment. The penalty does not apply when a disclosure of prohibited material is made by a witness to a legal practitioner for the purposes of obtaining legal advice, a medical practitioner for the purposes of obtaining medical or psychiatric care or after the prohibited information has already been lawfully published.
The NACC Act grants the Commissioner (or another authorised officer) the power to enter any place occupied by the Commonwealth without a search warrant and inspect documents and make copies of any documents inspected, as well as to seize documents or things that are relevant to an indictable offence or necessary to prevent its concealment, loss or destruction or its use in committing an indictable offence.
If you have, are or intending to engage with Federal Government Agencies or become the subject of, or witness in any NACC investigation, you should be aware of the extensive powers of the NACC. You should also consider establishing a response plan in the event that your organisation or employees are compelled to provide information to the NACC or are the target of an investigation by the NACC.
For further information or advice in relation to the NACC and how it might impact your organisation, contact Cinzia Donald, Partner, in Lavan’s Corporate Crime & Investigations Team.
