The current Labor government passed legislation establishing the National Anti-Corruption Commission (NACC) in November last year.
The NACC opened its doors at the beginning of July 2023, and more than 550 referrals have already been received.
The NACC is headed up by former NSW Court of Appeal Judge Paul Brereton AM RFD SC, who is joined by three deputies: Dr Ben Gauntlett, former Disability Discrimination Commissioner at the Australian Human Rights Commission; Nicole Rose PSM, the former CEO of AUSTRAC; and Jaala Hinchliffe, the former Integrity Commissioner and agency head for the Australian Commission for Law Enforcement Integrity. Taking the chief executive’s position is Philip Reed, the former CEO of the NSW ICAC.
At the centre of the NACC’s role is its mission to investigate serious or systemic instances of corrupt conduct by Commonwealth officials. In a statement, Commissioner Brereton expressed a desire for the Commission to attract a reputation of “being fearless but fair, independent and impartial.”
Anyone can make a voluntary referral, either anonymously or otherwise, to the NACC regarding corrupt conduct, and it’s the Commissioner’s role to decide whether to investigate. They can also decide to refer the issue to a Commonwealth agency to which it relates for further action or can choose to not take any action. Although referrals can be anonymous, any subsequent statements made to the NACC as part of its investigation are not.
The Commissioner may also elect to make hearings public, although this is not guaranteed.
What companies need to know
It’s critical for any organisation engaged in business with a government entity to know that they, too, can be investigated by the NACC if they’re implicated in corrupt conduct.
For this reason, companies doing business with the government must prepare for the possibility of investigation by the NACC.
A key step an organisation can take is to conduct a thorough review of its anti-corruption and bribery policies and procedures. Companies must also have a process in place outlining how they will respond to an NACC investigation, or any requests for documents made.
Staff who act as government contractors or otherwise engage with the government also need training about their obligations, particularly regarding gifts and hospitality. Organisations also benefit from creating a culture of transparency designed to encourage staff who may have concerns about potentially corrupt conduct to report.
The upshot of the NACC’s establishment is there will be increased accountability for organisations doing business with the government, as well as for the officers of those companies dealing with government entities.
Companies wanting to get ahead of the curve when it comes to the NACC’s powers should also think about identifying areas of risk within the business as it relates to dealing with government officials. Policies and procedures should then be strengthened to take any risks identified into account.
Finally, given the NACC has the power to demand documents, including privileged documents, are produced as part of an investigation, organisations need to undertake a thorough review of how they handle those documents and any internal investigations, which may take place in anticipation of an NACC request.
Who – and what – is already under investigation
The broad scope to make referrals means the NACC already has a lot on its plate, with the following matters suggested for possible investigation:
- PwC’s recent tax leaks scandal involving its government consulting arm
- Former PM Scott Morrison’s secret ministries
- Former cabinet minister Bridget McKenzie’s handling of the Community Sport Infrastructure Grant Program
- referrals resulting from the Robotdebt Royal Commission after Commissioner Catherine Holmes requested a one-week extension for the inquiry’s reporting date to enable her to make a direct referral to the NACC.
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 commenced on 28 July 2023 for any relevant conduct they become aware of on or from 1 July 2023.
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.
By Holding Redlich Partner Howard Rapke, Senior Associate Gemma Hannah and Undergraduate Alex Stiliadis