Commonwealth anti-corruption body to cover private companies

Scope

The Bill delivers on Labor’s election commitment to establish an independent anti-corruption body with public hearings and Royal Commission level powers. As we predicted prior to its release, the NACC’s jurisdiction extends to the private sector and will not be limited to politicians and public servants.

Its broad jurisdiction encompasses conduct by any person that could, even indirectly, adversely affect the honesty or impartiality of any public official’s conduct. In addition, the conduct needs to be either serious or systemic.

In practice this means that any private sector individual or company which engages (or has engaged) with public officials – whether that be regulators, bureaucrats, politicians or their staff – will be under the NACC’s microscope.

Contracted service providers, procurement programs and grants are also in scope, raising the prospect of inquiries into allocations of taxpayer funds and services being provided to or on behalf the Commonwealth. The retrospective nature of the Bill also means that the new standard of corruption will be applied against conduct that occurred in the past, including programs such as JobKeeper.

Powers

The NACC will have sweeping powers, including:

• Telephone intercept and computer access powers and search warrants;
• Power to compel the production of documents or things;
• Public and private hearings with compulsory questioning and no protection from self-incrimination. Public hearings are permitted in “exceptional circumstances”, but that will also be left to the discretion of the Commissioner;
• The ability to make public findings of corrupt conduct; and
• The power to override legal professional privilege.

Next steps

The Bill has been referred to a special Parliamentary Select Committee for an inquiry. This will provide an opportunity for submissions and public hearings to identify unintended consequences of the proposed model.

That inquiry will report by 10 November 2022 before the Bill reaches a vote in the Senate either late this year or early next. It’s likely that legislative amendments will be made during this process as a result of negotiations with the Opposition and/or the crossbench.

It will be important for businesses to assess the implications for their business models and understand the new standards being imposed. In today’s media cycle, the mere accusation of corrupt conduct can be enough to impact share prices and end careers, even if the conduct is not ultimately proved.

With leading experience in these policy issues, NRF and CLA can provide expert advice on what the legislation means for your business, whether alternative policy solutions can be developed and how to train staff according to the new standards.

This includes:

• online compliance modules, custom built according to the final legislative provisions;
• tailored training sessions for senior executives, boards and those involved in government engagement such as procurement, sales and government relations officials; and
• advice on compliance with mandatory obligations and allegations of improper behaviour, including reputational risk advice.

About the authors

CLA is a public policy and reputational risk advisory firm founded by two directors, Tim Wellington and Daniel Ward. In 2022 CLA and Norton Rose Fulbright entered into a strategic alliance in order to offer integrated policy and legal advice.