23 November 2022
I rise to speak in support of the National Anti-Corruption Commission Bill 2022, and I move:
That the following words be added after "protections":
(3) notes that the exceptional circumstances requirement for hearings to be heard in public is likely to lead to very few investigation hearings being held in public and is not in line with the public expectation of increased accountability and transparency".
This bill goes a long way to addressing one of the most important issues influencing the shape of Australian politics today. The crossbench has long campaigned for prioritising a federal integrity commission, and I'm glad that the government has made good on its election promise to create such a body and to ensure both that it has teeth and it has the power to investigate retrospectively.
We need this bill because at present, until the National Anti-Corruption Commission, the closest thing we have to an integrity commission is the Auditor-General's office—a body in the past few years which has questioned a long list of scandals including: car park rorts, the sports rorts scandal and the Leppington land sale of Sydney's second airport to name just a few. As a result of these scandals, public trust in Australian politicians and in our democracy is declining at a rapid rate. We need a National Anti-Corruption Commission to uphold standards of integrity, and demonstrate that our democracy is robust and people can trust us.
Importantly, this bill has the potential to create a serious National Anti-Corruption Commission. It will have broad jurisdiction to investigate public sector corruption. It will provide for prevention and education to bolster anticorruption measures. It will have retrospective powers. It will have the ability to hold public hearings, although limited—and, as such, the reason for my amendment. It will have the ability to initiate its own investigations and take referrals from the public and the parliament. It will be overseen by a parliamentary joint committee and an inspector. It's a good bill, but it can be improved.
The crossbench are again leading the charge to make this bill better. In several respects I believe it does not go far enough, and I will speak to these areas where I believe it is deficient. There are several issues. The first, and I believe the most critical, are the limitations on public hearings, the definition of 'corrupt conduct' and the identity of the chair of the parliamentary joint committee. I'm also concerned about the independent funding for the commission and the absence of a whistleblower protection commissioner. These two issues are far-reaching and important, and will probably need to be the subject of separate legislation, but I want to flag that without them I consider the proposed commission comes up far too short. I'm also concerned about referrals from parliament, as well as the need to set parameters for the timing of reports to ensure that the commission hands down reports in a timely way, for legal professional privilege and for opportunities to respond to findings of corruption.
Opinion polling and public commentary as well as electoral trends all indicate that the public feels strongly that legislation of this kind is needed. The government, in its explanatory memorandum, states:
The NACC Bill would strengthen corruption prevention across the Commonwealth government, by enabling the NACC to undertake public inquiries and provide advice on corruption risks and vulnerabilities and strategies to address them.
These aims are laudable, but I think the government's bill fails to achieve this in three major respects.
Firstly, I consider that corruption prevention is seriously constrained by forcing the commissioner to limit public hearings to where he or she decides there are exceptional circumstances. There are three main objections to the inclusion of this threshold. The first is that the word 'exceptional' is an uncertain requirement, which would encourage challenge in a court of law. I agree with the Centre for Public Integrity that this could be exploited by well-resourced litigants to both delay commission investigations and obtain knowledge of the material that the commission has against them. This is hardly likely to 'strengthen corruption prevention', to use the government's own words. The second objection is that no Australian jurisdiction other than Victoria has adopted this approach. In its submission to the parliamentary inquiry, the Victorian IBAC has stated that it believes this is an unnecessary hurdle which has hampered it in carrying out its role. The IBAC submission pointed out:
… the Victorian Court of Appeal has determined that, for circumstances to be 'exceptional' under s 117 of the IBAC Act, they must be 'clearly unusual and distinctly out of the ordinary' compared with the allegations of corrupt conduct ordinarily investigated by IBAC. This has had the effect of placing an artificial limit on IBAC's ability to conduct examinations in public.
Thirdly, if the concern is that public hearings may unfairly damage a person's reputation, I would point to the proposed section 73 of the bill, which already lists, amongst the matters which the commissioner may take into account in deciding whether to hold a hearing in public, 'any unfair prejudice to a person's reputation, privacy, safety or wellbeing that would be likely to be caused if the hearing, or the part of the hearing, were to be held in public'. Having taken this into account, I strongly agree with the Centre for Public Integrity that having to consider whether there are exceptional circumstances on top of that, on top of the public interest, is an unnecessary and inappropriate further hurdle.
Secondly, I have serious concerns about the definition of corrupt conduct. I support the amendment proposed by the member for Indi:
Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters …
And the proposed amendment goes on to list a number of matters. I strongly agree with the Centre for Public Integrity that, without this additional wording, the legislation would be inferior to that of all other Australian jurisdictions other than WA and Tasmania. I note that the government has said that other conduct that could adversely affect public administration, such as external fraud, will continue to be dealt with by existing integrity agencies such as the Australian Federal Police. However, I agree, again, with the Centre for Public Integrity that focus on individual criminal acts and actors may cause an anticorruption commission to miss the forest for the trees and may therefore militate against 'strengthening corruption prevention', the very lofty goal of the government's own explanatory memorandum.
Thirdly, I'm very concerned at the fact that the chair of the parliamentary joint committee must be a member of the government. Since the chair will have a casting vote, I'm concerned about the effect on the independence of the committee. I believe that the chair must not be a member of a political party that forms part of the government. I support the amendment proposed by the member for Indi to that effect. This is an opportunity for the government to be bigger than politics. With all the rhetoric and all the words that have been said in the public domain about wanting to improve trust in government and improve trust in politics, this is an opportunity to truly be multipartisan and establish a joint committee that will ensure independence. It is so incredibly important for the Australian public to have trust that this is done to the utmost degree, and here is an opportunity for the government to step up to the plate.
Next, I turn to the two issues which I mentioned earlier are also of great importance but which have wider-ranging implications and which justify consideration for separate legislation. The first is the need for independent funding of the commission. While I note that the parliamentary joint committee must report to both houses of the parliament on whether the commission has sufficient funding and whether its budget should be increased, I agree with the Centre for Public Integrity and other members of this place that this gives no long-term security for the commission. The centre has proposed a model which would set up an independent funding tribunal, which would oversee the annual budgets of key accountability institutions, including the commission. I commend the work done by the centre in this respect and consider that this proposal should be the subject of separate and more detailed consideration by the parliament.
Secondly, there is the need for a whistleblower protection commissioner. I welcome the fact that part 5 of the National Anti-Corruption Commission Bill allows any person to refer a corruption issue to the commissioner and provides that under certain circumstances heads of Commonwealth agencies, including intelligence agencies, must refer certain corruption issues to the commissioner. However, I note that the anticorruption bills introduced by the crossbench in 2018 and 2020, including by the member for Indi, would have established a whistleblower protection commissioner. Such a body is absent from the government's draft legislation. I refer to the joint statement of support for the commission signed by me and 14 other crossbenchers and to its call that the bill should include provision for a whistleblower protection commissioner. Given that the bill fails to do so, I believe that this should be further addressed and discussed by the parliament in separate legislation to be considered and proposed.
Finally, there are other issues on which amendments will be proposed at the consideration in detail stage. In summary, the first of these is that the commission should be obliged to deal with corruption issues referred to it by the houses of parliament. This would be an exception to the discretion which the commission would otherwise have as to whether or not to deal with corruption issues referred to it. This is a place where we represent our communities and the Australian people and, if it were determined in this place that a matter needed to be investigated by the commission, I believe it is appropriate that that should occur.
Secondly, I believe that the commissioner should have discretion in deciding whether or not to hear in private evidence that would disclose legal advice or a communication protected by legal professional privilege. I agree with the Centre for Public Integrity that to make this mandatory would be to leave it open to well-funded litigants to exploit this right, with the effect of delaying or disrupting the commission's work.
Thirdly, I believe that there must be a time limit on the opportunity for a person or entity that is the subject of a critical finding by the commission to respond to that finding. Currently it's stated to be 'a reasonable time', but I think that this should be changed to 'three months or such longer period as is determined by the commissioner'. We should not have a situation where persons investigated indefinitely delay the conclusion of an investigation by not providing that response.
Lastly, I believe the provisions relating to the requirement for and timing of tabling of investigation reports in parliament where public hearings have been held in respect of an investigation should be extended to all investigations, whether hearings have been held in public or in private. The Australian public want to know if investigations are being held, and they want to know the outcome of those investigations. At the moment, there is much too much provision in this bill that keeps it behind closed doors and provides a standard for politicians that is wholly different to what the rest of the public gets.
There should also be a time limit of 12 months for the tabling of a report after the last hearing is held, because as we see in numerous jurisdictions—I look at New South Wales, where it's been over 12 months without any report in relation to the investigation into the previous Premier of New South Wales—delay in reporting leaves a cloud of uncertainty over a person for an unreasonable amount of time. I think it is incredibly important that the legislation provide direction and a time limit of 12 months for the tabling of such reports.
Ultimately, I strongly support the establishment of a National Anti-Corruption Commission, along with many members of this crossbench and of this parliament. We know the public have had enough and they want to see government, politicians and third parties held to account. I strongly urge the government to consider the 2022 election outcomes and the strong community support for returning integrity, accountability and transparency to government. This can be done by accepting amendments proposed to better this legislation. Otherwise, it's disappointing. It's a good bill but not a great bill, and it is one that may well fail to deliver what Australians so clearly want: a return to transparency, accountability and integrity in Australian politics.
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