Parliament Updates

Zali Steggall NACC: legal professional privilege

24 November 2022


by leave—I move amendments (3), (4), (5), (6) and (7) as circulated in my name together.

(3) Clause 74, page 69 (lines 16 and 17), omit subparagraph (b)(ii).

(4) Page 69 (after line 21), after clause 74, insert:

74A Evidence involving legal professional privilege

The Commissioner may determine that evidence is to be given in private if giving the evidence would disclose a communication that is protected against disclosure by legal professional privilege.

(5) Clause 149, page 122 (after line 6), after subclause (1), insert:

(1A) The investigation report must be completed and tabled in each House of the Parliament as soon as practicable, and in any event within 12 months, after:

(a) if any public hearings are held in the course of the corruption investigation—the conclusion of the last public hearing that is held; or

(b) otherwise—the conclusion of the last hearing that is held in the course of the corruption investigation.

(6) Clause 155, page 128 (lines 5 to 7), omit all the words from and including "must" to the end of the clause, substitute:

must, within 14 days after receiving the report:

(c) table the report in each House of the Parliament; or

(d) if a House is not sitting—present the report to the Presiding Officer of that House for circulation to the members of that House.

(7) Clause 157, page 128 (line 32), omit "a reasonable opportunity", substitute "the period of 3 months, or such longer period as is determined by the Commissioner,".

Amendment (5) relates to setting a deadline for the tabling of reports from inquiries. Section 149 of the bill requires a commissioner to prepare a report on an investigation, and section 154 requires him or her to give a report to certain persons but provides no time frame in which that report should be provided. Parties subject to an investigation should have certainty around when a report will be released. This is so we don't have a situation such as the current one in New South Wales with the investigation into Gladys Berejiklian, where the report's release keeps getting delayed with no clear explanation, creating uncertainty for all sides. My proposal is that the report should be tabled within a year of the completion of public hearings or, where public hearings were not held, within a year of the last private hearing. This amendment will also require the tabling of reports to parliament to improve the transparency and accountability of the commission.

Amendments (6) and (7) set a deadline for the opportunity to respond to findings. Section 157 of the bill provides for the opportunity for any persons who have an adverse finding against them in a report to have a reasonable opportunity to respond. I believe this should be replaced with a fixed time frame in which to respond. The amendment proposes changing a reasonable opportunity to three months or such longer period as determined by the commissioner. Again, it is all about trying to provide a timeliness framework to investigations and reporting so that we don't have parties with deep pockets and an ability to bring on successive challenges in the legal sense that would delay the provision of reports. It is also because it can be politicised—we know this—and reports left without a specific time frame means they can be delayed purposefully or from an unintended consequence relating to when elections and other issues might be arising.

Amendments (3) and (4) relate to changing the threshold for the use of legal professional privilege so it cannot be so easily abused to avoid public hearings. The commissioner should have discretion in deciding whether or not to hear private evidence that may disclose legal advice or a communication protected by legal professional privilege. I agree with the Centre for Public Integrity to make this mandatory. The current legislation says it 'must be private in all circumstances', so to make it 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.

Historically, this has been shown. The New South Wales ICAC has been able to call legal representatives to the stand, which was critical to the success of the Eddie Obeid case. At a critical moment, an Obeid solicitor was able to be put on the stand to say that the Obeids had instructed them to do something quickly before it became public knowledge. Now, this was a crucial element to proving that the Obeids were acting on private government knowledge prior to the public release of the information. Corruption is usually carefully planned. Lawyers and accountants are engaged early in the act of corruption to develop the plan and approach. Accountancy firms usually have legally trained people to assist them with the establishment of legal professional privilege at an early stage. I strongly support legal professional privilege. I know it is an important cornerstone of the profession, but it is open to abuse. To get behind this and expose the corruption, you need to abrogate legal professional privilege. The New South Wales ICAC does so. This amendment simply says that the commission should maintain that discretion. It should not be a compulsory private hearing.

If the bill proceeds as it is, everybody except the witness would be sent out of the room during the private hearing and the evidence would be denied to the media and the public. So there would not be that accountability and transparency which I think is so central to a strong National Anti-Corruption Commission.