The National Anti-Corruption Commission (NACC) officially opened its doors on 1 July and is set to have its hands full with 44 referrals having already been made.
Headed up by the former NSW Court of Appeal Judge, Paul Brereton AM RFD SC, the NACC will investigate serious or systemic instances of corrupt conduct by Commonwealth officials. In a recent statement, Mr Brereton expressed a desire for the Commission to attract a reputation of “being fearless but fair, independent, and impartial.”
Commissioner Brereton is joined by three deputies:
NACC’s Chief Executive Officer is Philip Reed, the former CEO of the NSW ICAC.
Any person may, anonymously or otherwise, make a voluntary referral to the NACC regarding corrupt conduct. The Commissioner can decide whether or not to commence an investigation, refer the corruption issue to a Commonwealth agency to which it relates for investigation or determine not to take any action. While anonymous referrals can be made, any subsequent statements made to the NACC as part of its investigation cannot be anonymous.
This broad scope to make referrals has meant the following matters have already been referred to the NACC for possible investigation:
Beyond voluntary referrals, the NACC Act places an obligation on agency heads and agency public interest disclosure officers to make mandatory referrals of corruption issues they become aware of. This mandatory requirement commences on 28 July 2023 for any relevant conduct they become aware of on or from 1 July 2023. Heads of Commonwealth agencies are also obliged to make a referral to the NACC if they become aware of a corruption issue concerning the conduct of a person who was or is a member of their staff which they suspect could be involved in serious or systemic corrupt conduct.
The NACC will be able to hold hearings for the purpose of its investigation in any manner they deem necessary. Where the NACC decides to conduct a hearing, it will generally be held in private unless the Commission is satisfied that it is in the public interest to do so or there are exceptional circumstances which justify a public hearing. The public may therefore not become aware of which conduct the NACC is actively investigating.
The NACC has the power to investigate a broad scope of conduct by any person (whether or not a public official), so long as the conduct under investigation adversely affects, or could adversely affect, a public official carrying out their role in a dishonest or biased manner. Under the powers of the NACC, ‘public official’ is given a broad interpretation to include the following categories of people:
Despite this broad definition of ‘public official’, there are doubts around whether the NACC can investigate PwC and its partners and employees as it is unclear whether the PwC partner who obtained the information fits into one of the above categories. The conduct of the Commonwealth entities in response to the knowledge of the allegedly corrupt behaviour may fall within the scope of the NACC’s power.
As we reported in October last year, the NACC will have a “full range of investigative powers” and the power to investigate both past and presently occurring corrupt conduct. This means there will be increased accountability for businesses and their officers dealing with government entities.
Undoubtedly, the NACC will significantly impact how government bodies engage with private sector companies going forward. To that end, you should:
Holding Redlich regularly acts for clients who are subject to investigation by anti-corruption agencies, including IBAC, ICAC and CCC. We are well-placed to assist your organisation in responding to any investigation that the NACC may institute in time.
If you require any assistance or have any questions about the NACC, please get in touch with a member of our team below.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.