This article applies to all organisations in Australia.

National Anti-Corruption Commission Act 2022 No.88 (Cth)

On 1 July 2023, relevant provisions of the new National Anti-Corruption Commission Act 2022 (Cth) (the new Act) commenced operation.

The key changes introduced by the new Act are discussed below.

Establishment of new National Anti-Corruption Commission

The purpose of the new Act is to facilitate the detection of corrupt conduct, and to investigate corruption issues that could involve serious or systemic corrupt conduct.

Central to the operation of the new Act is the new Federal anti-corruption body, the National Anti-Corruption Commission (NACC) and the new National Anti-Corruption Commissioner (the Commissioner).

Under the new Act, the NACC has the power to investigate, hold hearings and prepare reports on any findings of serious and systemic corruption occurring within Commonwealth agencies. The Commissioner is empowered to investigate corruption issues that could involve serious or systemic corrupt conduct.

What is corrupt conduct?

Corrupt conduct is defined in section 8 of the new Act as:

• any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly:
  • the honest or impartial exercise of any public official’s powers as a public official; or
  • the honest or impartial performance of any public official’s functions or duties as a public official,
• any conduct of a public official that constitutes or involves a breach of public trust;
• any conduct of a public official that constitutes, involves or is engaged in for the purpose of abuse of the person’s office as a public official;
• any conduct of a public official, or former public official, that constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official.

We note that under the new Act, corrupt conduct is broad and covers a range of conduct within the subsections of section 8 to also include conduct that occurred before 1 July 2023.

A public official is defined in section 10 of the new Act and includes a staff member of a Commonwealth agency. Additionally, section 12 of the new Act provides that the following are staff members of a Commonwealth agency, (specifically, section 12(f) provides that):

• if the agency is responsible for administering a Commonwealth contract, an individual who is either of the following:
  • a contracted service provider for the contract;
  • both an officer or employee of a contracted service provider for the contract and someone who provides goods or services for the purposes (whether direct or indirect) of the contract.

Moreover, section 13 defines a contracted service provider for a Commonwealth contract as:

• a person (other than the Commonwealth or a Commonwealth agency) who:
  • is a party to the Commonwealth contract; and
  • is responsible for the provision of goods or services (or both) under the Commonwealth contract; or
• a person who:
  • is a party to a contract (the subcontract) with a person who is a contracted service provider for the Commonwealth contract under the point above (or under a previous application of this paragraph); and
  • is responsible under the subcontract for the provision of goods or services (or both) for the purposes (whether direct or indirect) of the Commonwealth contract.–

Protection of persons from liability

To ensure individuals are not legally prevented or deterred from making a NACC disclosure where they have information concerning potential corrupt conduct, the new Act contains protections for persons who make a NACC disclosure.

Section 23 of the new Act provides that a person makes a NACC disclosure if:

• the person refers, or provides other information about, a corruption issue to the Commissioner or the Inspector-General of Intelligence and Security (IGIS) under Part 5 of the new Act; or
• the person refers, or provides other information about, a NACC corruption issue to the Inspector of the National Anti-Corruption Commission (Inspector) under section 202 or 203; or
• the person gives evidence or information, or produces a document or a thing, under the new Act to a NACC Commissioner, the IGIS or the Inspector in relation to any of the following:
  • a corruption issue;
  • a NACC Act process;
  • a NACC corruption issue;
  • a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.

Organisations should be aware that under section 24 of the new Act, if a person makes a NACC disclosure, no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against that person, on the basis of their NACC disclosure. This means for example, that a contractual remedy (such as compensation for breaching a non-disclosure agreement) cannot be obtained on the basis that the person has made a NACC disclosure.

Furthermore, under section 24 of the Act, a contract to which the person is a party must not be terminated on the basis that their NACC disclosure constitutes a breach of the contract.

Protection from reprisals – new offence

Organisations should also be aware that under section 30 of the new Act, it is an offence for a person to engage in conduct that causes detriment (or threatens to clause detriment), to another person, because they believe or suspect that the other person has, may, proposes to, or could make, a NACC disclosure. The penalty for a breach of section 30 is significant, with the penalty being 2 years imprisonment.

Under section 29 of the new Act, detriment includes (without limitation) any of the following:

• dismissal of an employee;
• injury of an employee in their employment;
• alteration of an employee’s position to their disadvantage;
• discrimination between an employee and other employees of the same employer;
• harassment or intimidation of a person;
• harm or injury to a person, including psychological harm;
• damage to a person’s property;
• damage to a person’s reputation;
• damage to a person’s business or financial position;
• any other damage to a person.

Conclusion

In light of the broad definition of ‘corrupt conduct’ in section 8 of new Act, and with a view to ensuring that staff do not engage in corrupt conduct, your organisation may wish to provide training on what constitutes ‘corrupt conduct’ under the new Act.

Organisations should also update their anti-corruption/whistleblower policies to state that it is an offence under section 30 of the new Act to take reprisal against a person in relation to NACC disclosures, as discussed above.