Tony Zappia (Makin, Australian Labor Party) Share this | Hansard source

I welcome the opportunity to say a few words in respect of this legislation, the National Anti-Corruption Commission Bill 2022 and the associated bill. Confidence in public administration, including in government, the parliamentary system, politics and politicians, is at an all-time low in Australia. We often speak with pride about Australian democracy, in particular of having a democratic political process. However, even democracy can be corrupted, as we have seen within Australia on too many occasions and as has been exposed by state and territory integrity commissions and other government initiated inquiries in the past.

Whilst corruption is often seen more so as a problem in overseas countries, the reality is that it can occur anywhere and it can take many forms. To quote Bono, someone who is well known as a musician:

The worst disease in the world today is corruption. And there is a cure: transparency.

Transparency is best served when there is nothing to hide, and that is more likely to occur when those holding positions of authority and power are themselves open to oversight and scrutiny.

That is exactly what this legislation does, and it is long overdue. Importantly, it should restore public trust in government and government departments. This legislation has been extensively and intensively scrutinised, perhaps more so than most other legislation that comes before this parliament. It also draws on years of experience of existing state and territory anticorruption commissions. Indeed, in my time in this parliament, I don't recall any legislation that has been scrutinised as much as this bill. The reality is discussion about this legislation has now been ongoing for five or six years, in the lead-up to this last election and before that, when there was discussion about the previous government's legislation.

Interestingly, in looking at this legislation and at the comparisons with the state jurisdiction legislation, it is notable there is a scarcity of overseas comparisons we can draw on. In that respect, it would be fair to say that Australia is possibly a leading country in the establishment of anticorruption commissions. That in itself is nothing to be proud of because it implies, perhaps, that we have a problem with corruption in this country, but the reality is it's more so the case that we want to ensure in this country that we don't have corruption, and that's why we have taken the initiative here in the federal parliament. States and territories did so earlier in their own jurisdictions for that very reason—to prevent corruption from occurring.

This legislation went to a joint select committee of this parliament, for it to look into the legislation in detail and to call for public submissions in respect of it. It was interesting that we were presented with a very wide range of diverse opinions from interested parties, each of whom were able to share their very personal understanding and experiences of dealing with corrupt matters. It wasn't simply a case of looking at submissions from people who had an opinion or a point of view; it was a case of looking at submissions from people who had had direct experience in dealing with matters of corruption, and, in some cases, from people who were in fact investigated. That enabled the committee, in my view, to look at the legislation in a much more precise way than would otherwise normally occur when we as a parliament establish committees and the committees look at submissions that are based on opinion more than fact. But, in particular, the committee heard from commissioners of the state and territory anticorruption commissions that have been in place, in some cases, for many, many years. In doing so, the committee was able to draw on the experience of anticorruption commissioners that had actually gone through all of the issues that are often raised and that have been raised in the course of this very debate.

I also note, and I stress this point, that the committee also heard from Jaala Hinchcliffe, who is the current commissioner for the Australian Commission for Law Enforcement Integrity, or ACLEI. That is an agency that has now been in place for about 15 years, operating at the federal level under very similar guidelines to what this legislation proposes for the National Anti-Corruption Commission. And I come to this debate having had the privilege of serving on the Parliamentary Joint Committee on Law Enforcement, which is the committee that oversees the work of that agency. So I have seen a federal anticorruption commission in operation, from the perspective of being a member of that committee. Again, when I look at this legislation, it's through the eyes of someone who has had the benefit of that experience, which others may not have had.

In the course of the joint select committee hearings, I noted that there were some amendments proposed that were ultimately adopted by the government. There were a number of suggestions made, in good faith, by people who had made submissions, that they believed would make the legislation just that little bit better. There were a lot of very good submissions, I have to say, but I want to refer to one in particular, which talked about a range of matters but focused on the issue of private and public hearings, which is one of the issues that seem to be the most contentious from what I hear from other members in respect of this proposed legislation. That comes from Mr Bruce McClintock SC.

Mr McClintock was the inspector of the New South Wales ICAC between 2017 and 2022. He is currently the inspector of the Northern Territory ICAC. But he has also been in the position, in 2005, where he conducted an inquiry into the New South Wales ICAC itself, and then he looked at the New South Wales legislation in 2015 as part of another inquiry. He's a person who has had an incredible amount of experience in actually overseeing how these commissions should and could work. With respect to the issue of public and private hearings and how well the agencies work, he made this point, which I think goes to the crux of what we need to be conscious of when we're looking at this legislation:

… ultimately the quality of these agencies—

he's referring to anticorruption agencies—

depends upon the people who are appointed by the government to run them. If you appoint a zealot to run an agency like ICAC, you'll have problems …

…   …   …   

Ultimately, you have to appoint the right people and trust them to get on with the job. If you appoint the wrong people it won't matter what's in the legislation …

I believe that that comment really sums up the situation as I see it, from the perspective of having watched a number of state based commissions operate over the years and also from the ACLEI committee hearings in Canberra.

It seems to me—and, again, I rely on all those experiences—this legislation gets the balance right. While the amendments that the government has taken on board, I believe, make some improvement to it, broadly speaking, the legislation from the outset was well structured and drew on the shortfalls and problems that had been highlighted from within those other commissions. This legislation, in my view, ensures that through the consultation period and by listening to all of those who made submissions based on the advice of people like Mr McClintock that it will get the effectiveness, the fairness and the public confidence restored as a result. It is much more likely to be effective if we get the right person in the role than anything else.

The parliamentary committee did make some recommendations in respect to the protection of journalists, the remit of the inspector, the commission's ability to initiate its own inquiries, permitting the disclosure of information to medical practitioners, removing the wording 'corruption of any other kind' in paragraph 8(1)(e), and informing a person of the outcome of the investigations. It also picked up on three recommendations from the Joint Committee on Human Rights.

I want to go to the issue of private and public hearings. It was clear to me from the evidence presented to the committee that there was overwhelming support from those experts in the field and those in the best position to know that private hearings is the way to go, other than in those exceptional circumstances—albeit that the wording has now been taken out. There might be occasions when a public hearing might be appropriate but, generally speaking, private hearings were supported, overwhelmingly, by those experts. And there is good reason for that, as other members have spoken about in this debate and highlighted. In particular, the legislation makes clear that the commissioner's role is to conduct an investigation. The second sentence in the very first paragraph of the explanatory memorandum says:

The NACC would be an independent agency that would investigate and report on serious or systemic corruption in the Commonwealth public sector, refer evidence of criminal corrupt conduct for prosecution, and undertake education and prevention activities regarding corruption.

The fact that it is an investigation makes it very, very different to other inquiries and certainly very different to a royal commission, which I have heard some people try to compare it with. It is not a royal commission; it is an investigation, and it is different to other public inquiries that are held from time to time. Indeed, there is no other government investigative agency that conducts public hearings. I can say that, over the past 15 years, the Australian Commission for Law Enforcement Integrity has never conducted a public hearing. Yet, in the time I have been a member of the committee that oversees that commission, I have never once seen anyone approach the committee and say, 'We need to change this and have those hearings in public.' We have never received anything of the sort, which, to me, suggests that there were no problems with the way that agency was conducting its responsibilities.

The critical thing that was also raised with respect to public hearings was this: if a public hearing is held then the evidence or the statements made at the public hearing may very well interfere with a possible prosecution that might follow from the investigation if a prosecution is recommended by the commissioner by the end of the investigation and that in itself would undermine the whole purpose of the anti-corruption commission.

I would like to go into many of the other matters. But, just in summing up, this legislation has been not only widely discussed out there but scrutinised by some of the best legal minds in this country. Whilst I accept that there are some minor changes that might make it a little bit better, at the end of the day it will only be when the legislation is in place and a commissioner appointed that we'll see how well it functions. At that point, if there have to be any other minor amendments, then so be it. But I suspect that, right here and now, the legislation as it stands is the way to go.

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