Phillip Thompson (Herbert, Liberal National Party, Shadow Assistant Minister for Defence) Share this | Hansard source

Thank you, Deputy Speaker, and I'd like to acknowledge you in this place and your support for an anticorruption commission and of course the member for Moncrieff and her support for an anticorruption commission, and everyone in this place who's contributed today.

We do support a National Anti-Corruption Commission, but we will be proposing amendments to ensure that it is done right. We support integrity in politics. We've been supporting it for a long time, and we supported it well before the election. There's no hiding the fact that integrity and the establishment of a national body to weed out bad behaviour became an election issue. In fact, we heard about it quite frequently throughout the election campaign, and it became quite political. It's now a long time since then, and a lot has happened. And here, today, we have a bill in front of us. We support an anticorruption commission, but we have serious concerns about the form it takes in this bill. While we need a powerful body that is strong enough to not only punish bad behaviour but also act as a deterrent to those who are tempted to do wrong, we must make sure those powers don't go too far.

That's where the concern lies. We need to take serious care to get it right, because these are extraordinary powers that we're talking about giving to the commission. I have a number of significant concerns about this bill. They include the fact that an extremely broad range of Australians come under it, not only parliamentarians and not just public servants but also the AFP, the NDIS, aged-care workers and even people who simply contract to the government. But most concerning for me is the brave men and women of the Australian Defence Force. Yet union officials, despite exercising power under a law of the Commonwealth, aren't covered. Another concern is the mental health implications of those who are subject to gag orders or public hearings. This could have significant ongoing impacts on people's lives and be detrimental to their overall wellbeing. We also have concerns about who decides whether hearings should go public—public hearings are important, but they must be in exceptional circumstances—and that a decision should be made by a higher power than the commissioner.

I want to firstly address who will come under the commission, as many others on this side of the House have also done today and yesterday. As I've said, it's not just us here in this building or ministers who approve grants or the public servants who work throughout the country. It's also the Australian Federal Police, the NDIS and aged-care workers. It's any contractor or subcontractor or person exercising a power under law of the Commonwealth. And it's members of the Australian Defence Force. Looking at the bill, particularly clause 8, we find the definition of 'corrupt conduct', and we see that there are those who are covered by it. Essentially it is any conduct of any person, whether or not a public official, that adversely affects or that could adversely affect, either directly or indirectly, the honest or impartial exercise or performance of any public official's powers, functions or duties. This definition extends to the conduct of people outside the Commonwealth parliament and the public sector.

As a former member of the Australian Defence Force and as the shadow assistant minister for defence, I want to reflect on the implications of this. On the face of it, the wording is fine. The exercise and performance of public officials' powers, functions and duties should be honest and impartial. That is what the NACC is all about and, yes, absolutely the Australian Defence Force members are public officials and, yes, we need our ADF to act with integrity and honesty and, in my view, almost all of them do. So we should have a means by which concerns and allegations can be investigated and people who do bad things are held to account. But my concern is what are going to be the practical implications of the NACC going around and investigating members of the ADF or the AFP, for that matter? The ADF has a difficult task doing its main job, which is to fight and win our wars. They need to be fully devoted to the task. They need to be undistracted. How much time will ADF members have to spend responding to and participating in investigations of the NACC? How many will have to think hard about whether the evidence they give endangers national security? If the complaints are genuine, I have absolutely no problem with that. All public officials should co-operate. But the fact is, with these anticorruption bodies, there's a lot of time spent on these matters, there are vexatious complaints, there are allegations for which there is not enough evidence and there is already a body in the Australian Defence Force, the tribunal, that looks at all allegations throughout the Australian Defence Force. This is duplicating something it said it would not duplicate.

In New South Wales, in the 2019-2020 financial year, the ICAC received 2,416 complaints. It started 14 investigations, and six people ended up being prosecuted. If we see the same sorts of rates with this body, with all sorts of people covered by definition, that is a lot of lost productivity and a lot of distraction from key tasks for our taxpayer funded public servants and officials.

I understand not every investigation results in prosecution; it's not possible. You need to run an investigation to gather evidence to mount a case, but the hypocrisy in all of this is that Labor's mates, the union officials, once again will get a free pass through this legislation. We have seen it in the IR bill getting rid of the militant union-busting Australian Building and Construction Commission and we're seeing it with the National Anti-Corruption Commission. Unions can be some of the most corrupt organisations in this country—not all, but some definitely are. Even if they are acting under the provisions of Commonwealth law, they are not covered by the NACC. In fact, they are not just not covered; they are specifically excluded. It is there in black and white at item 2 of the table within subclause 12-3, which specifically excludes an official of a registered industrial organisation from the class of people the bill applies to. How can it be that union officials wouldn't have to answer to the NACC, but soldiers, as the 3rd Brigade in Townsville, would? Once again, we have a government that talks a big game on integrity but shamelessly looks the other way when it comes to doing special deals with their mates and the unions. That's why we on this side of the House will put forward amendments to close this loop the government has inserted for its union mates.

As the shadow Attorney-General outlined in his second reading speech, the implications of gag orders on the mental health of those involved in public hearings could be very significant and concerning. There is nothing more important than life. That means we must always be on our guard against decisions we make in this place that could adversely affect people's health and wellbeing, particularly when it comes to someone's mental health.

As many in this place would be aware, I've had my own battles with mental illness. While they were a result of my service, people who have been involved in an ICAC style hearing in the state system have suffered severe health implications. A gag order which prevents someone from speaking to their psychologist or psychiatrist about an ongoing investigation that is a huge part of their life at the moment is not going to be a good thing for that person's wellbeing. Anyone with any experience in mental health will know that bottling things up and not being able to share them with other people can have serious repercussions.

When we have situations where many investigations do not lead to convictions, as I mentioned with those statistics before, we have a potential for cases where people who are being investigated but are actually innocent are still punished in the form of mental ill-health. They suffer as a result. This is something the Australian Psychological Society felt so concerned about that they made a submission to the Joint Select Committee on National Anti-Corruption Commission Legislation. In that submission they said the following:

One's reputation is fundamental to their status, and social disqualification or damage/loss of that reputation can therefore be devastating. Shame and reputational damage can be incredibly harmful, with victims at risk of serious and life-threatening mental health conditions. Individuals who experience public humiliation and shame can suffer major depressions, suicidality, extreme rage, severe anxiety and even psychosis. These effects can continue over the long term and even for the remainder of that person's life.

These are real risks for anyone who is unnecessarily dragged through a public hearing or investigation, or is subject to a gag order. While we might think that's a situational finding of actual corrupt conduct, that these things are just desserts for bad behaviour, when there comes the potential for someone to die by suicide we must have measures in place to reduce those at risk.

The Psychological Society also submitted to the committee:

Regard for the mental health and welfare of participants during public hearings should be informed by psychological best practice, such as trauma debriefing, particularly when a high level of media interest is expected.

Given the potential for psychological consequences, the APS recommends that appropriate measures be taken to protect the reputation of participants in such hearings, particularly those who may unexpectedly find themselves caught up in an investigation by virtue of their employment with or for individual or organisation being investigated.

That's so important. It's a very important point. There are likely to be a lot of innocent people caught up in investigations who might only be a witness, who are not corrupt or suspected of being corrupt themselves. This is why I would like to see the committee's recommendation adopted for a carve-out for gag orders for medical professionals and psychologists. It should also include family members unless they are also the subject of an investigation. For public hearings, the right support networks must be made available to those who are called to give evidence.

Finally, we need strict measures in place to determine whether an investigation must proceed to a public hearing. The bill mentions the 'exceptional circumstances' test. It's a good thing. Public hearings should be the exception, not the rule. Furthermore, the decision as to whether an investigation proceeds to a public hearing should not lie with the commissioner alone; the opposition believes this power should be exercised by an independent external party who was not involved in the investigation. This must be an independent judicial officer who can look without prejudice at all the circumstances and determine whether the 'exceptional circumstances' test has been met on the basis of that information.

The Law Council of Australia noted in its submission to the inquiry:

The Law Council maintains its position that hearings should generally be conducted in private, unless the Commissioner considers that a closed hearing would be unfair to the person or contrary to the public interest. This draws upon the approach under the Queensland Act. The Law Council understands that public hearings in Queensland are rare, with zero conducted from 2009 to 2017, and three public investigations conducted since then.

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… it's worth keeping in mind that the NACC is neither a court, nor is a prosecutorial body.

Plenty of concerns have been raised about this bill and throughout this time. We must protect those who are protecting us. I do not think that the Australian Defence Force should be included in this. There are already measures in place. Our brave men and women have a job to do. We need to protect them and we need to protect the mental health of Australians and of those who may be caught up in this bill.

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