On 1 July 2023, the Australian government established the National Anti-Corruption Commission (NACC) under the National Anti-Corruption Commission Act 2022 (NACC Act) to combat corruption and lack of transparency within the federal government and address growing public concerns about corruption of public officials.
Given the potentially significant implications for various sectors, businesses that deal frequently with federal government agencies, such as those in the transport and logistics industry, should be particularly vigilant about its impact.
Purpose of the NACC
Established due to declining public trust in Australian institutions, the NACC’s main objectives are:
- detecting and addressing corrupt conduct;
- investigating potential serious or systemic corruption; and
- educating the public about corruption and its effects.
Scope and powers
Operating independently from government, the NACC has the authority to probe allegations within the Australian government public sector. It can investigate matters that adversely impact a public official’s integrity, including misuse of office or mismanagement of information.
The NACC’s key powers include:
- accessing Commonwealth data and premises without a warrant;
- applying for search warrants to search other places, vehicles and people;
- compelling document production and appearance at hearings to give evidence;
- utilizing covert investigative and surveillance techniques; and
- conducting public hearings, if in the broader interest.
However, not all issues will be investigated with only cases of suspected serious or systemic corruption falling within the jurisdiction of the NACC.
Who’s under the lens?
The definition of ‘public official’ in the NACC Act is extensive. Including but going beyond members and staff of federal government agencies and the Australian Parliament, it encompasses contracted service providers – consultants, independent contractors, labour-hire agents, and others linked to government services.
Defining corrupt conduct
Corruption, per the NACC Act, is defined as instances where a public official breaches trust, misuses their role, or mishandles information. Such cases of corrupt conduct can include:
- misuse of information by a public official obtained in the course of performing official duties;
- bias or dishonesty by a public official in the course of conducting official duties; and
- private businesses or individuals trying to influence a government official to engage in corrupt conduct.
How issues reach the NACC
Referral of matters to the NACC are made through:
- voluntary referrals, which are open to anybody to refer a potential corruption issue to the NACC; and
- mandatory referrals, including Heads of Commonwealth agencies and Public Interest Disclosure officers, who are obligated to notify the NACC about any suspicious and serious corrupt activities.
Typically, under Australian law, individuals can decline to provide evidence regarding an offence they might have committed due to the privilege against self-incrimination. However, the NACC Act generally mandates that people must supply information, documents, or items to the NACC even if it might incriminate them.
In addition, a person will not be excused from providing information, or a document required by a notice or direction to produce at a hearing, on the grounds that doing so would disclose legal advice given to a person or a communication, that is protected against disclosure by legal professional privilege.
However, the NACC Act does include a safeguard which ensures that such incriminating details will not be admissible as evidence against the individual in criminal proceedings, proceedings for the imposition or recovery of a penalty, or confiscation proceedings. There is also a protection against enforcement of contractual or other remedies or rights based on the disclosure made to the NACC.
On concluding investigations, the NACC Commissioner will release a report detailing findings and recommendations. These might range from individual actions to policy rectifications. Some evidence might be shared with the police or prosecutors if deemed criminal. Agencies must respond to these recommendations within a set timeframe.
Implications for the transport and logistics industry
The NACC’s scope of jurisdiction is not limited to public officials. Any action made by a private entity influencing, or trying to influence a public official to engage in corrupt conduct can be considered a breach. This may include unduly pressuring officials during a tender process or offering any kind of reward, financial or otherwise, to a public official in return for a ‘favour’.
It is important for those in the transport and logistics industry that deal with various federal government agencies and officials on a regular basis, to be aware of the implications of the NACC Act. We urge businesses to educate their teams about NACC regulations, ensuring compliance and safeguarding against potential breaches.
With the arrival of the NACC, businesses, especially in transport and logistics, must be cautious and informed about their engagements with government officials.
If you are an Australian company or individual requiring advice on any aspect of the NACC Act, or would like to discuss the NACC in greater detail, please contact our Customs & Trade team.
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