Protections from liability and reprisals
The National Anti-Corruption Act 2022 (the Act) provides protections to persons who provide information or complain to the Inspector. The Act provides:
- A person is not subject to any civil, criminal or administrative liability as a result of providing evidence or information, or producing a document or a thing to the Inspector about
- A NACC Act process (including investigations by the Inspector)
- a NACC corruption issue
- a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.
and no contractual right or remedy can be taken against them.
It is a criminal offence punishable by imprisonment for anyone to take reprisal action, or threaten to take reprisal action, against a person for providing evidence or information, or producing a document or a thing to the Inspector.
Protection from liability and reprisals
The protection from liability includes, for example, that a person who refers a NACC corruption issue or concerns about maladministration or officer misconduct relating to the NACC to the Inspector, has immunity from defamation proceedings in respect of the disclosure. Similarly, a contract to which the person is a party could not be terminated for breach of contract on the basis of the disclosure. Disciplinary action cannot be taken against them for making the disclosure.
It is also a criminal offence for anyone to take, or threaten to take, reprisal action of any kind against a person for providing evidence or information, or producing a document or a thing to the Inspector. A ‘reprisal’ is when a person causes another person detriment because they believe or suspect that the other person has, may, or could, make a disclosure to the Inspector in accordance with
the Act.
A detriment could include things like:
- dismissal from employment
- injury in employment
- detrimental changes to an employment position
- discrimination between a person and other employees of the employer
The maximum penalty for the offence of taking a reprisal or threatening to take a reprisal against a person, is two years’ imprisonment.
Reasonable administrative action by an organisation to protect a person from detriment is not a reprisal. For example, if a person makes a disclosure about practices in their immediate work area, it may be appropriate to help them transfer to another area so they do not experience any detriment.
Reputational damage
The Inspector has powers and obligations to make statements, or include statements in investigation reports, to avoid damage to the reputation of persons who have been investigated or who have given evidence.
Where a person has been investigated for corrupt conduct, and the Inspector forms the opinion that the person has not engaged in corrupt conduct, the Inspector must include a statement to that effect in the report at the completion of the investigation.
Where a person has given evidence at a hearing and is not the subject of any findings or opinions in relation to a NACC corruption investigation, the Inspector may include a statement to that effect in the report at the completion of the investigation, if satisfied it is appropriate and practicable to do so to avoid damage to the person’s reputation.
Procedural fairness
The Inspector must give individuals or agencies who may be the subject of adverse opinions or findings in an investigation report an opportunity to respond. If the Inspector includes in their report, an opinion or finding that a person has engaged in corrupt conduct, the Inspector must also include a summary of any response given by that person if the person requests them to do so.
Exceptions to protections
A person does not receive protection from liability for their own conduct by disclosing it to the Inspector. A person who knowingly makes false or misleading disclosures to the Inspector is not protected from liability for false or misleading statements.