The Australian government established a new act, The National Anti-Corruption Commission Act 2022 (the Act), that creates an organisation tasked to investigate and deal with corruption. This article explores 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 that may be issued.

Anti-corruption commission

Although public officials have since been subjected to the watchful eye of scrutiny, establishing the National Anti-Corruption Commission (Commission) grants a new watchful eye. The formation of this commission is a further development towards establishing an ‘integrity’ branch of government charged with continual oversight of other government institutions, in some ways like a standing Royal Commission.

The commission commenced operations on the 1st of July, 2023. Headed by Hon. Paul Brereton AM RFD SC, a former New South Wales appellate judge, who stated that he and the commission would perform their role ‘fearlessly, fairly, and impartially’. Since then, the Commission has had 587 referrals to investigate corruption claims as of Monday, the 7th of August, 2023.

The commission targets

The commission’s objectives are to investigate any “serious” or “systemic” corruption by “public officials” of the Commonwealth. The commissioner can determine whether a corruption inquiry should be started or continued, as the Act did not define the term “serious or systemic”. The commissions consider parliamentarians and their staff as public officials, Commonwealth ministers, public employees, people who hold statutory office and Commonwealth organisations and businesses. 

Specifically, the commission conducts an investigation based on referrals from commonwealth agency heads, agency public interest disclosure officers, or voluntary referrals from any other person or entity. At the same time, the commission can also commence an investigation based on its own decisions.

Powers of the commission

On the basis of the established Act, The commission has multiple investigative powers, including: 

• Notices to produce: If the Commissioner has a good faith suspicion that a person has information, a document, or anything else relevant to a corruption inquiry, the Commissioner may issue a notice to produce that information, document, or item. Governmental bodies, people (such as employees and whistle-blowers), and private sector organisations may all get notices to produce.
• Search powers: With some limited exceptions, the Commission may enter any location used by a Commonwealth agency to: inspect, copy, or take extracts of any documents pertinent to the corruption investigation; or seize any documents or other items that the Commission reasonably believes are relevant to an indictable offence and that need to be seized to prevent their concealment, loss, or destruction. 
• Public and private hearings: Hearings on alleged corrupt behaviour must be held privately unless the Commission agrees to hold the hearing (or a portion of the hearing) in public.
• Protection for witnesses: Legal professional privilege and self-incrimination safeguards are not applicable, even if counsel may represent witnesses. Whistle-blowers are well protected, and retaliation is not permitted.
• Power to refer conduct: The Commission has the authority to refer a corruption matter for inquiry to a Commonwealth agency to which it pertains, independently or with the Commission. 

The Act also contains additional stringent non-disclosure obligations. The Commission may include a “non-disclosure notation” when it issues a notice to produce or a summons for a public/private hearing. Except when seeking legal or medical advice, disseminating information about the notice or summons is prohibited by this. These regulations may cause the Commission to call a Commonwealth agency’s staff to a secret hearing. The employees are not permitted to discuss the summons at work. Legal and other general support difficulties arise for personnel interacting with the Commission. This should be included in explicit integrity processes and regulations to help personnel when such circumstances arise.

How it affects all

Many institutions, private and public, are tasked to follow a Commission investigation and thus familiarise the Commission’s mandates and implement strong internal defence and responses against corruption.

To contribute to the efforts of the Commission, here are the following steps:

• Risk assessment: Risk assessment is to be conducted to identify areas of risk to capture areas of current practical relevance. This includes reviewing past conduct such as gifts given or received, hospitality, engagement via third parties, matters involving conflicts of interest and certain procurements. 
• Awareness and education: Public officials must be educated on their responsibilities concerning anti-corruption laws, probity standards, corruption vulnerabilities, and handling conflicts of interest. 
• Policy and procedures: Review internal policies and processes to prepare for possible participation with the Commission. If the agency or a staff member is required to provide information, the Commonwealth agencies should have a response strategy.
• Support: Agency employees that are part of a Commission investigation could go through a lot of stress and face additional difficulties. We advise agencies to review their staff support systems to ensure they can assist staff as they interact with the Commission.
• Documents and records: The agency must conduct extensive document reviews for relevancy using search phrases. It is advised that agencies audit their document management and record-keeping procedures. Having protocols in place for papers that have been archived or are not kept in the agency’s electronic document system is essential.
• Contractual clauses: Contractual provisions against bribery and corruption should be updated to consider the Commission’s examination of third parties.

In conclusion, the National Anti-Corruption Commission Act 2022 (the Act) has been established in order to combat corruption within the Australian Government. This has led to the creation of the National Anti-Corruption Commission, which can conduct investigations based on referrals by individuals from both the private and public sectors.

The commission is headed by Hon. Paul Brereton, a further development towards establishing an ‘integrity’ branch of government charged with continual oversight of other government institutions, in some ways like a standing Royal Commission. As such, public and private institutions must be aware and take steps to contribute to the efforts of the Commission.

Jomar Teves

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After four years in business school and working for multinational clients, Jomar believes he can improve the world through his writings via Public Spectrum, by informing the public on the latest news and updates happening around the government and society. Jomar has eight years experience as a writer and has a degree in Business Administration and Entrepreneurial Marketing.

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