The National Anti‑Corruption Commission Bill 2022 (NACC Bill) was introduced to Parliament on 28 September 2022. It is currently anticipated that the legislation may pass before the end of 2022, with the National Anti‑Corruption Commission (NACC) expected to commence operations in mid‑2023.
When passed, this legislation will establish the NACC who will investigate and report on serious and systemic corruption in the Commonwealth public sector and refer criminal corrupt conduct for prosecution. The proposed investigative powers of the NACC are broad and will affect any companies and individuals who have in the past, are currently, or intend to in the future provide services to the Federal Government. Further, the NACC will have unlimited power to operate retrospectively and will be able to investigate conduct which has taken place prior to the commencement of the legislation.
What you need to know about the introduction of the NACC
The NACC has the power to investigate corrupt conduct that is serious or systemic.
The NACC Bill defines ‘corrupt conduct’ to include any conduct of a person that adversely affects, or could adversely affect, the honest or impartial exercise or performance of any public official’s powers, functions, or duties.
Corrupt conduct will also include any conduct of a public official that breaches public trust,
is an abuse of office, involves the misuse of information or amounts to corruption of any other kind.
Importantly, any person or organisation could be investigated by the NACC if they adversely affect the honest or impartial exercise or performance of a public official’s power, functions or duties.
The NACC’s investigative powers
The NACC Bill provides the NACC with access to covert investigative powers, including data surveillance devices, listening devices, optical devices, tracking devices, telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the Telecommunications (Interception and Access) Act 1979 (Cth).
To use these powers the NACC will need to apply to eligible judges of a Court or nominated members of the Administrative Appeals Tribunal (AAT) to issue a warrant.
The NACC Bill 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 or 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.
NACC can investigate past conduct
The NACC will have the power to investigate corrupt conduct even if it may have occurred prior the commencement of the proposed NACC legislation. Even if a contract may have ended a decade ago or a person has long since left the public service, arguably the NACC will still have the power to investigate if the conduct is considered to be serious or systemic.
What happens after the NACC has completed its investigation?
Once an investigation is complete, the Commissioner will report to the Attorney-General as to the outcome of the investigation and refer evidence of criminal conduct to the Commonwealth Director of Public Prosecutions.
The NACC also has the power publish reports or other information relevant to its activities if satisfied it is in the public interest to do so.
If you have, are or intending to engage with Federal Government Agencies you should be proactive and ensure that your guidelines and policies in relation to bribery and anti-corruption, are up to date and are being complied with.
You should also consider establishing a response plan in the event that your organisation is 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.