House debates

Wednesday, 23 November 2022

Bills

National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022; Second Reading

5:53 pm

Photo of Sam BirrellSam Birrell (Nicholls, National Party) Share this | Hansard source

I support an anticorruption commission. Corruption is insidious, and it undermines our public institutions. It must be rooted out—no ifs, no buts. But that's not to say that the pursuit of corrupt activity should all take place in the glaring spotlight of public hearings. The National Anti-Corruption Commission Bill 2022 will give extraordinary powers to the commission to investigate not only parliamentarians but also public servants, contractors and any person exercising powers under the laws of the Commonwealth. We must get the framework right. People in public life, particularly those elected to office, should not be immune from scrutiny, but there must be limits that protect fundamental rights that apply to every Australian citizen. The goal is integrity, not harm in the pursuit of it.

It is common, in my experience, for people who could and perhaps should make a contribution to public life to say they are deterred by the intense, unwavering and sometimes unfair scrutiny. The most basic right of any accused person is the assumption of innocence in the absence of finding guilt. We have seen all too frequently where the activities of integrity bodies enter the public domain and the allegations, often untested, take on a life of their own. Reputations can be ruined, careers can be destroyed and families can be torn apart. It can be trial by media sometimes. The commission has the power to impose nondisclosure notations or gag orders on people. These prevent them from disclosing that they have appeared before the commission. Our view on this side is that it is essential that there be limited exceptions to this in the interests of the mental health of the people who come before the commission. People should be able to make a disclosure to an immediate family member—as long as they are not also a person of interest—a medical professional or a mental health professional. This is essential to prevent people feeling like they have nowhere to turn and was supported by the Law Council of Australia.

The bill abrogates the privilege against self-incrimination and legal professional privilege. Our amendments ensure this is only done when absolutely necessary because of the significant impost on fundamental rights; again, these amendments were supported by the Law Council of Australia. We also think it is important that investigations do not go on indefinitely. Our amendment would impose a 12-month time limit on investigations. The National Anti-Corruption Commission must be framed for the real world, not for a misguided notion.

I and others in this place take offence to a line that is frequently peddled by some Independents and so-called Independents, that the political system is inherently corrupt, that political parties are corrupt and—if you follow the flawed logic—that the members of those parties are also corrupt. I entered this place not for personal gain but to serve the people of Nicholls and the nation, and I know that is true of many people on all sides of the chamber. The motivation is, I believe, universal, and matters that will fall under the ambit of the commissioner are the rare exception, I believe, not the rule. We do little to engender trust in political processes and politicians by framing the purpose for establishing an anticorruption body in this way. This place and the other place are the proper forums for prosecuting issues of competency and accountability. Sometimes for Independents, particularly, and others, having been elected in large part on claims of a lack of accountability, the answer is to use these processes in this place to expose that. A corruption commission is singly focused on corruption and should be framed as such. It should be framed as something that is focused on corruption and not as a political forum or, worse, as a political tool.

There is a glaring omission in this bill—that is, unions. While this bill proposes a commission with broad powers, the powers of a royal commission, there is a glaring omission when it comes to the reach of those powers. Parliamentarians and Canberra public servants, but also Australian Defence Force, Australian police, NDIS and aged-care workers, contractors, subcontractors can all be scrutinised but not unions. The amendments we propose would ensure the extraordinary powers of the commissioner apply in a fair and reasonable way, including closing the loophole that government has inserted for its union mates. Why shouldn't integrity also apply to unions? Why should they receive a 'get out of jail free' card?

This bill isn't perfect. There were six recommendations from the Parliamentary Joint Select Committee on National Anti-Corruption Commission Legislation—or the NACC, as it is called in offices around this place—and a plethora of additional comments from the coalition members of that committee. I particularly congratulate the newly elected member for Menzies on bringing his legal background to bear. Ensuring that the bill gets the balance right between stamping out corruption and protecting the rights of everyday people brought before it is an important balance. There is no place for corruption but there is also no place for trampling on the human rights of people.

Extensive recommendations from the Senate Standing Committee for the Scrutiny of Bills highlighted the concerns around lack of specificity in definitions and use of coercive powers without adequate safeguards when they're not truly a last resort. Further recommendations came from the Parliamentary Joint Committee on Human Rights, including concerns about the use of gag orders and their long application, which can harm the mental health of people brought before the commission, and about the broad use of contempt offences. The inquiry of the Parliamentary Joint Committee on Intelligence and Security into the telecommunications surveillance powers that would be given to the National Anti-Corruption Commission is still ongoing.

We've engaged in good faith because we want the National Anti-Corruption Commission to be, as the Attorney-General stated during question time, as good as it can be—thank you, Attorney-General. We want to strengthen the NACC. The coalition's amendments are about strengthening the National Anti-Corruption Commission and its ability to pursue corrupt conduct. This is sensibly balanced against protecting the fundamental rights of those who come before the Anti-Corruption Commission and restricting the harm that might be inflicted by the unnecessary or premature airing of allegations. Justice must be seen to be done, and this isn't always the case. It's most certainly not the case when the accused—who, if it were a criminal case, would have the right to face their accuser and to mount a defence—are, in this domain, subject to gag orders and an inability to participate in any public forum.

Eminent experts in this field, including the Law Council of Australia, the Queensland Council for Civil Liberties and the South Australian Bar Association, have sought to ensure that this bill has adequate protections. We think that our amendments reflect this and that the commissioner should not be the sole decision-maker on the commencement of a public hearing. We think that good governance would require that this power be shared between the commissioner and a deputy commissioner. This proposal was supported by the Australia Institute, the Victorian Inspectorate and others. It should be compulsory, not optional, for the commissioner to consider factors—including whether confidential information is involved, whether there would be unfair prejudice to a person's reputation and whether a person giving evidence has a particular vulnerability, such as being under direct instruction or control of another person—in determining whether a public hearing should be held. This was supported by the Queensland Law Society, the Australian Human Rights Commission and the Australia Institute.

It's appropriate to have a National Anti-Corruption Commission. The commission requires substantial powers in order to pursue corrupt activity. Corruption isn't endemic, but it's an ever-present threat to our institutions and proper governance. The powers of the commission need to be broad given the conduct it will be tasked to investigate, but it should not be unfettered power. There must be protections for those who will come before the commission, including sensible limits on public hearings and gag orders. The National Anti-Corruption Commission is not and cannot be a political forum, and it cannot under any circumstances be a political tool. It needs to exist to expose corruption and bring those engaged in it to account, and it should have the necessary powers to do that job but no more.

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