The National Anti-Corruption Commission and the Australian public sector

The National Anti-Corruption Commission Act 2022 (the Act) establishes an integrity body with considerable powers to investigate and deal with corrupt conduct by public officials. In this HWL Ebsworth Insights, we ask what the new Commonwealth integrity body means for federal government agencies and their staff, and how agencies can prepare to respond to investigations and notices which may be issued.

While public officials have always been subject to considerable scrutiny, the creation of the National Anti-Corruption Commission (Commission) raises that scrutiny to a new level. As we said in our recent presentation on ‘Integrity in the Commonwealth’¹ we see this a step towards the establishment of an ‘integrity’ branch of government charged with continual oversight of other government institutions, in some ways like a standing Royal Commission.²

The Commission began operating on 1 July 2023. The Commission is headed by the Hon Paul Brereton AM RFD SC, a former New South Wales appellate judge, who has said that he will carry out his role ‘fearlessly, fairly, and impartially’.

By Monday 7 August 2023, the Commission had received 587 referrals to investigate allegations of corruption.

Who, what and when can the Commission investigate?

The Commission can investigate any ‘serious’ or ‘systemic’ corrupt conduct by Commonwealth ‘public officials’, whether that conduct was engaged in before or after 1 July 2023. ‘Serious or systemic’ is not defined in the Act, and this gives the Commissioner significant interpretative latitude to form the relevant opinion that would enliven the power to initiate or continue a corruption investigation.

The definition of a public official includes Commonwealth ministers, public servants, statutory office holders, Commonwealth entities and companies, parliamentarians and their staff. It also includes government contractors, as well as anyone who is acting for and on behalf of, or as a deputy of, any public official.

There are three pathways for corruption issues to come to the Commission:

1. Commonwealth agency heads and agency public interest disclosure officers will be obliged to refer potential serious or systemic corruption conduct to the Commission;³
2. any other person or entity can voluntarily refer a corruption issue to the Commission; and
3. the Commission will also have the power to commence investigations on its own motion.

The Commission’s powers

The Commission’s broad investigative powers will have significant implications for Commonwealth agencies and their staff, including:

• Notices to produce: The Commissioner has power to issue notices to produce information, documents, and things if there are reasonable grounds to suspect that a person has information, a document, or anything else that is relevant to a corruption investigation. Notices to produce may be issued to both government entities as well as individuals (including employees and whistle-blowers), and private sector entities.
• Search powers: Subject to some limited exceptions, the Commission may enter any premises occupied by a Commonwealth agency to: inspect, copy, or take any extracts of documents relevant to the corruption investigation; or seize documents or anything that the Commission believes on reasonable grounds is relevant to an indictable offence and the seizure of the document is necessary to prevent its concealment, loss, or destruction. The Commission has the power to seek and execute search warrants in respect of non-government premises. The Commission also has access to a range of covert investigative capabilities, such as intercepting telecommunications.
• Public and private hearings: As a default, hearings about alleged corrupt conduct must be conducted in private unless the Commission decides to hold the hearing (or part of the hearing) in public. The Commission may hold the hearing, or part of the hearing, in public only if the Commission is satisfied that there are exceptional circumstances that justify the public hearing, and that it is in the public interest to do so. This sets a high threshold for the holding of a public hearing.
• Protection for witnesses: While witnesses may be legally represented, legal professional privilege and self-incrimination protections do not apply. There are strong whistle-blower protections and prohibitions on reprisal actions.
• Power to refer conduct: The Commission has the power to refer a corruption issue to a Commonwealth agency to which it relates for investigation, either separately or jointly with the Commission. The Commission’s ambit is with respect to corrupt conduct and not criminal conduct, which remains in the purview of prosecuting agencies. Accordingly, where there is evidence of criminal conduct the Commission may refer that conduct for criminal investigation.

The Act also contains extensive non-disclosure requirements. When issuing a notice to produce or a summons to a public or private hearing to a person, the Commission may include, or in some circumstances be required to include, a ‘non-disclosure notation’. This prohibits disclosure of information about the notice or summons, except for the purpose of seeking legal advice or medical assistance in relation to it.

The effect of these provisions is that circumstances may arise in which the Commission could summons a member of staff of a Commonwealth agency to a private hearing, and the staff member is prohibited from disclosing information about the summons to anyone at their workplace. This could raise legal issues but also broader issues of how to support staff through their engagement with the Commission’s work. It is important that any integrity procedures or policies address this to inform and guide staff in the event the situation arises.

What does the National Anti-Corruption Commission mean for you?

Government agencies and private organisations (and their staff) may be tasked with responding to a Commission investigation and therefore must familiarise themselves with the Commission’s mandate, and take action to strengthen internal protections against, and responses to, serious or systemic corruption.

We suggest the following steps to prepare for assisting the Commission with its work and strengthening protections against corrupt conduct:

• Risk assessment: Given the Commission’s retrospective powers, consider conducting an audit and risk assessment to identify areas of risk to capture areas of current practical relevance. This could include a review into any past conduct such as gifts given or received, hospitality, engagement via third parties, matters involving conflicts of interest and certain procurements. The Commissioner has also indicated that the delivery of Commonwealth services by consultants and contracted service providers will attract considerable interest from the Commission⁴ and any risk assessment should also encompass an agency’s engagement with consultants and external providers.
• Awareness and education: As the Commission’s investigative scope extends to any staff member of a Commonwealth agency, education and awareness of public officials’ obligations with respect to anti-corruption practices, probity requirements, recognising corruption vulnerabilities and managing conflicts of interest is extremely important. Raise awareness of the Act’s requirements and its implications for public servants, as well as government contractors or those engaging with the government. Refresh anti-corruption training and encourage reporting of issues through internal whistleblower channels and other reporting mechanisms.
• Policy and procedures: Review internal policies and procedures (including for internal investigations) to account for potential involvement with the Commission. Commonwealth agencies should have a response plan in the event that the agency or a staff member is compelled to provide information.
• Support: Agency staff who are involved in a Commission investigation may experience significant stress and other challenges. We recommend that agencies re-visit their staff support mechanisms to ensure that they are appropriate for supporting staff through their engagement with the Commission.
• Documents and records: Responding to a notice to produce from the Commission could be similar to a notice from a Royal Commission, with the agency required to input search terms and review potentially large volumes of documents for relevance. We recommend that agencies audit their document management and record keeping protocols to ensure that the agency is able to identify, locate, collate and provide documents and information in the event documents are required to be produced. Importantly, consider protocols where documents may be archived, or may not stored on the agency’s electronic document and records management system.
• Contractual clauses: Update anti-bribery and corruption contractual clauses to account for investigation of third parties by the Commission.

HWL Ebsworth regularly acts for clients who are subject to investigation by integrity agencies. We are well placed to assist government agencies to prepare for, and respond to, matters relating to the Commission. If you require assistance or have any questions, please reach out to the authors of this article.

This article was written by Kristina Mihalic, Partner, Neil Cuthbert, Special Counsel and Ali Gorman, Solicitor.

¹See also our presentation ‘Administrative law in 2022 and the year ahead in 2023’ https://hwlebsworth.com.au/wp-content/uploads/2023/04/HWLE-Lawyers-Admin-Law-Year-in-Review-2023.pdf at p 2.
²James J Spigelman, ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724.
³Other than mandatory referrals, the Act does not impinge upon the operation of the Public Governance, Performance and Accountability Act 2013, the Public Interest Disclosure Act 2013, and the Australian Public Service Code of Conduct.
⁴The Hon PLG Brereton AM RFD SC, ‘Keynote Address: The Launch of the National Anti-Corruption Commission’, 18 July 2023, UN Global Compact Network Australia, 2023 Australian Dialogue on Bribery and Corruption.