The New Anti-Corruption Commission and its suite of investigatory powers

On 1 July 2023, the National Anti-Corruption Commission (Commission) commenced its operations in detecting, investigating, and reporting on serious or systemic corruption within the public sector.

By 14 August 2023, the Commission had received 624 referrals through their online webform, with approximately 13% of the referrals relating to matters well publicised in the media such as PwC's recent tax leak scandal and the Robodebt Royal Commission. Of the 624 referrals, 177 were at the stage whereby the Commission had identified a corruption issue and were deciding whether to deal with the corruption issue. The purpose of this article is to provide a brief overview of the Commission's procedures and steps to consider if you or your organisation are involved or concerned with an investigation of the Commission.

‍What is "corrupt conduct"?

‍The new Commission can investigate matters if the Commissioner is of the opinion that an issue could involve corrupt conduct that is serious or systemic.

The National Anti-Corruption Commission Act 2022 (Cth) (NACC Act) defines 'corrupt conduct' to include any conduct of a public official that involves a breach of public trust, an abuse of that person's office as a public official or the misuse of information or documents acquired in the person's capacity as a public official. Importantly, corrupt conduct extends to any person that adversely affects the honest and impartial exercise of any public official's powers as a public official or the honest and impartial performance of a public official's powers, functions or duties.

‍Who can be investigated?

‍When investigating a corruption issue, the Commission's jurisdiction allows it to investigate any person, even if they are not a public official, so long as they do something that might cause a public official to carry out their official role in a dishonest or biased way. The Commission's jurisdiction also includes people who are responsible for delivering goods or services to a Commonwealth agency under a Commonwealth contract (known as contracted service providers). Therefore, individuals, contractors, subcontractors and companies (including their directors and employees) can fall within the Commission's investigative jurisdiction.In his 18 July 2023 speech at the Australian Dialogue on Bribery and Corruption, the head of the Commission, the Honourable Paul Brereton spoke on the Commission's jurisdiction extending far beyond investigating parliamentarians.

The Commissioner said, "in the light of the extent to which Government has in recent years retained external consultants, and the extent to which the delivery of many Commonwealth services is outsourced to contracted service providers, this is a large field, which I expect will attract considerable interest from the Commission."

‍What are the Commission's procedures?

‍The Commission can investigate corruption issues on its own initiative when it becomes aware of it in any way or when an issue is referred to the Commission (either by voluntary or mandatory referral). The Commission may investigate in such a manner as the Commissioner thinks fit and can use its powers to, among other things:

• conduct private hearings and, if it is in the public interest and exceptional circumstances justify doing so, conduct public hearings;
• make Commonwealth agencies, private sector entities or members of the public produce documents to the Commission;
• enter and search premises and seize evidential material; and
• access a range of covert investigative capabilities, such as intercepting telecommunications.

When conducting a hearing, the Commission may summon a person to attend a hearing and give evidence if they suspect on reasonable grounds that the person has evidence that is relevant to the corruption investigation. A Commission hearing is distinct from a Court hearing because its purpose is not to decide on an issue but rather to assist the Commission to discover facts that may lead to further action being taken.

A person who is required to attend a hearing is entitled to be represented by a legal practitioner. When giving evidence, a person is not excused from giving an answer or information, or producing a document or thing on the ground that doing so would tend to incriminate the person. However, the evidence given is not admissible against the person in a criminal proceeding, a proceeding for the imposition or recovery of a penalty or a confiscation proceeding (subject to some exceptions).Furthermore, subject to some exceptions, a person is not excused from giving an answer or information, or producing a document or thing on the ground that doing so:

• would disclose legal advice given to a person; or
• would disclose a communication that is protected against disclosure by legal professional privilege; or
• would breach a secrecy provision (other than an exempt secrecy provision); or
• would be otherwise contrary to the public interest.

Once a corruption investigation is complete, the Commissioner is required to produce a report that sets out its opinions, findings and recommendations. The report may be published if the Commissioner has already provided a copy to the relevant Minister or the Prime Minister, and they are satisfied that it is in the public interest. However, a report cannot be finalised until those who are the subject of critical findings have had an opportunity to respond. In producing a report, the Commission will be prevented from making findings of criminal guilt.

‍Contempt of the Commission

‍If a person is found in contempt of the Commission, the Commissioner may apply to the Federal Court or the Supreme Court (in the State or Territory in which the contempt occurs) to deal with the contempt as if the person's actions or omissions constituted a contempt of the Court. A person is in contempt of the Commission if the person:

• fails to attend a hearing as required by the summons;
• fails to appear and report from day to day unless excused or released from further attendance by the Commissioner;
• refuses or fails to take an oath or make an affirmation at the hearing;
• refuses or fails to answer a question at the hearing that the Commissioner requires the person to answer;
• refuses or fails to give information, or produce a document or thing, as required at a hearing;
• is a legal practitioner who refuses, at a hearing, to give the Commissioner the name and address of a person in accordance with section 115 (material sought from legal practitioners)
• gives evidence or information, or produces a document, at a hearing that the person knows is false or misleading in a material particular
• insults, disturbs or uses insulting language towards a Commissioner who is holding a hearing;
• obstructs or hinders a staff member of the Commission in the performance or exercise of the staff member's functions, powers or duties in connection with a hearing;
• disrupts a hearing; or
• threatens a person at a hearing.

What does this mean for you?

‍The establishment of the Commission and its broad range of investigative powers will mean that Government agencies and the companies or individuals engaged with that agency will be investigated and held accountable for corrupt conduct.

Pragma Lawyers regularly acts for parties who are summonsed to appear before bodies or inquiry. Pragma Lawyers has recent experience acting for parties in the Robodebt Royal Commission, Crown Perth Royal Commission and City of Perth Royal Commission.

If you are subject to an investigation by the Commission, we are equipped to help you or your organisation through the investigative process. If you require assistance in relation to any of the information provided above, Pragma's disputes and litigation lawyers can provide advice to you and your business to minimise your future risk.

Contact Aaron McDonald or Nick Malone today on hello@pragma.law or you can call us on (08) 6188 3340.