Wednesday, 23 November 2022
National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022; Second Reading
When we vote on the National Anti-Corruption Commission Bill 2022, Australia will finally have a powerful National Anti-Corruption Commission. But the only reason for that is that Australians elected a Labor government. Let's be very clear. If the Liberals had their way there would not be a real National Anti-Corruption Commission. They spent years ducking and weaving, trying every trick in the book to make sure Australia would not have a proper NACC. They even came up with a con trick last term, which we had to endure day after day, of waving around a great big piece of draft legislation, pretending they wanted to act.
But that version would have been worse than useless. It would have been a protection racket for government and members of parliament, because the commission could have initiated investigations into MPs only with the permission of the government. It was truly ridiculous. The dead giveaway that they didn't mean it was that they refused to actually introduce that draft bill into the parliament, because they knew the parliament would have amended it to make it tougher. Former Prime Minister Morrison should, in my view, apologise for his dithering, delay and sneaky behaviour, pretending he was going to act but refusing to ever do so. For nearly a decade, while the Liberals were in office, to our great national shame delaying the introduction of an anticorruption commission, Australia fell from seventh place in 2012 to 18th place in 2021 on Transparency International's global corruption perception index. The main reason for this slide was the Liberals' shameful failure to act.
The government is honouring its election problem with this bill, which is on track to pass by the end of the year as promised. The Leader of the Opposition sniffed the political breeze and changed tack, recognising this legislation was going to pass the parliament one way or another; indeed, some of his own members would have crossed the floor to vote with Labor. So he did the politically convenient thing and decided to back the legislation. This is cynical but admittedly very welcome because I believe it is important for our country that this reform pass the parliament unanimously with the support of all members. Thanks to the good work of the committee chair, Senator Linda White, and the deputy chair, Dr Helen Haines, we are on track to do that—with the exception, of course, of One Nation, who oppose an anticorruption commission of any sort; let that sink in! I commend the committee for a unanimous report recommending that the bill pass with only minor changes. It's only natural there are different views, as we've heard, on matters of detail in the bill; the amendments allow for those debates. In the scheme of things, these are minor matters; the core of the bill and the government's model has been agreed.
When this bill passes, as it will, the National Anti-Corruption Commission can then be established by law. A truly independent commissioner will be appointed, requiring the endorsement of a joint parliamentary committee. The commissioner will have the full suite of powers akin to those of a standing royal commission. As a society, we should be very clear on what that phrase means; I just want to make this point because it contextualises the remarks I am going to make. These are very extreme powers which mean all the ordinary protections built into the legal system, hard-won in our democratic society over hundreds of years, do not apply. The right to silence will be gone. People can be legally forced to answer questions that may incriminate them or others, unlike in ordinary courts. Legal professional privilege is overridden. People's right to communicate in private with their lawyer is abrogated. Ordinary rules of evidence and basic procedural fairness are overridden. We should not legislate the withdrawal of these powers lightly. This is indeed a significant moment because the commissioner can use those coercive powers to investigate serious or systemic corruption. It's worth remembering that the Commonwealth is the last jurisdiction—a little embarrassing—to implement an anticorruption commission in this country. The small upside to that is we've had the opportunity to learn from the state and territory commissions.
The definition of 'corrupt conduct' is consistent with key elements of existing definitions at the state and territory level. It encompasses conduct by a public official that involves abuse of office, breach of public trust or misuse of information. I just want to make an observation about the scope which not all will agree with, particularly the more sanctimonious amongst us: misconduct is not and should not be labelled or pursued as corruption. We need to think and reflect on that. A breach of a code of conduct such as forgetting to declare a bottle of wine someone gave you, or a conflict of interest, or speaking rudely to someone, or even bullying, is not corruption; it is misconduct. Such breaches are unacceptable and should not go unremarked or unpunished, but they should not be pursued using the resources and powers of a standing royal commission, suspending all ordinary rights and procedures, or mislabelled as corruption. To do so would dilute the focus of the NACC on pursuing serious and systemic corruption, be a misallocation of resources and is simply wrong. Misconduct is misconduct. Breaches of codes of conduct are not always corruption. We should reserve the label of corruption in our society for genuinely serious or systemic activities, not weaponise or diminish it through too broad an application. To be labelled as corrupt can genuinely end a career, and, tragically, has caused people to take their own life or attempt to, even when unproven. In workplaces across the country ordinary breaches of codes of conduct may not be sacking offences and are not labelled as corruption, and the NACC should adopt a commonsense proportionate approach with respect to the public sector.
With regard to the many questions about where the NACC will focus and whether the former government will be found to be corrupt: specific allegations and instances are a matter for the commissioner, not for parliament or politicians, to dictate. The Attorney-General has wisely refused to engage in specifics, and so should other MPs. Time will tell, though, if we look at other jurisdictions, but as a general rule I would suggest: follow the money.
Contrary to popular belief in some quarters—social media, for sure—I do not believe that most corruption will be found in the parliament or amongst MPs. We're amongst the most scrutinised people in Australia. Outside of executive government, MPs are not actually public decision-makers in any event. It's far more likely that where we see corruption revealed will be in areas such as procurement, where people stand to make money from government decisions. In the Commonwealth sphere that would likely include defence procurement and sustainment and big service delivery areas, such as the NDIS.
I will make a brief comment on one matter of scope and approach that still troubles me regarding the activities of some state and territory ICACs, which I hope we will not see replicated at a Commonwealth level as the commission goes about its work. The concern is based on private discussions I have had over many years with academics and experts involved in designing state and territory ICACs. It relates, if you like, to the tension right at the heart of our Westminster system of government, whereby cabinets are rightly expected to act in the public interest, but, in doing so, are a place where political debates and considerations are addressed and resolved. This is not illegitimate. Balancing public policy considerations in a genuine search for the public interest alongside political realities and considerations, including the electoral implications of decisions and judgements about community confidence and the ability to maintain public support for causes of action, is not and should not be labelled as corruption.
Taking account of the political impact of decisions, community reaction, is part of the job of the government. We need to ensure that corruption commissions have a sufficient understanding of how decisions are made and how governments work and that they're not only staffed by lawyers. With the greatest of respect to lawyers and judges, many of them have never had to make significant or complex public policy decisions or, frankly, managed anything much aside from their secretary. I trust the commissioner will staff the commission with a good mix of skills, including people with experience in public administration and public service.
Similarly, engaging with and within your political party, or indeed your community movement if you're an Independent—the people who support and volunteer and contribute to your efforts—is not corruption. Political parties are legitimate and important institutions in our democracy, regulated by legislation. They're community organisations which bring people together with similar values, not always the same. They choose people to stand for public office—I was looking at you, Member for Bass, but trying not to—and hold them accountable in important ways. They're a vehicle for policy development, debate and campaigning. While Independents are very fashionable at present and politics is not a team game, government has to be. I'll always speak up in defence of the important role that real parties and their tens of thousands of members play in democracies. Just to be clear, I said 'real' not to have a go at the Independents at all, just to have a go at sham parties like Palmer and One Nation and a plethora of weird, wacky Victorian parties we've seen spring up in the upper house.
But communities who elect us expect us to deliver results, and part of that, for the significant majority of representatives, means you have to engage in your political party to get support for policy positions or things that your community wants. We're all ultimately just one vote here; we've got to work with other people. So I think it's completely absurd that the Victorian IBAC expressed shock, horror that an MP's staff member may be asked to attend a local branch meeting, as that is a private interest—which is in no way to defend the extreme or egregious behaviour of Adem Somyurek and his cronies. But it is a ridiculous proposition that it is okay for MPs or their staff to attend numerous local community organisations but not a local party meeting to listen and provide a report and debate policy positions. Such activity is legitimate, and it serves an important part of a healthy democracy.
Similarly, it should be entirely legitimate that MPs develop policy and advocate to advance issues within their party. That's what my community expects me to do here, as I am the community's representative in the parliament and the party, not the party's representative in the community. I would expect the Independents feel the same way. Such activity should not and must not be labelled as corruption, and I trust the national commission will do a more sophisticated job than some of the state and territory commissions in dealing with these issues. The federal parliament is not intending to do away with the role of parties or the proper roles of cabinet government to reconcile the public interest with political considerations.
The issue of whether hearings should be public or private has been the subject of significant debate and controversy in formulating this bill, as is appropriate. A balance needs to be struck between transparency and public accountability on the one hand and the rights of individuals on the other to a fair hearing, to natural justice and to not have their reputations unfairly destroyed—remembering, as I said, that all of the ordinary protections that apply in a public court of law do not apply in these kinds of commissions, because all your rights are suspended. I firmly believe this bill gets the balance right. I'm not resiling from saying that—not to be popular on social media. The commissioner will have discretion to decide when hearings should be held in public. We're not talking about politicians here; overwhelmingly, we'll be talking about good, decent people who are not guilty of corruption but who have to answer questions as the commission does its work. Every citizen, no matter their role, is entitled to fairness and a presumption of innocence. That is an old-fashioned concept in the trial by media these days. The powers of the NACC mean that ordinary protections afforded in courts do not apply, as legal rights are suspended. The unfortunate reality now is that, in the media and social media age, simply being hauled before a corruption commission can destroy any person's reputation and career or even cost them their life, if innocent. Hence the presumption that hearings are conducted in private, unless the commission determines otherwise, is reasonable.
I wish to record my personal grief and sadness at the passing of former Casey mayor Amanda Stapledon, a woman I knew well. Amanda was a Liberal and a thoroughly decent, caring Christian woman. We worked terrifically well together, and she was a damn fine human being. She was in local government for the right reasons and always focused on the community in every conversation we had. She fell in with the wrong crowd, and, in my view, did some naive things. Tragically, she reached the point where she concluded she could not see a way through and the rational thing to do was to take her own life. I dearly wish this was otherwise. I understand from reports this was driven by her love and her care for her disabled child and a belief that this was the best way to provide for her child, rather than spend what little money she had on legal bills.
Amanda's story has seared in my mind the need to afford procedural fairness to people accused of corruption or simply engaged in the commission's work and who may not even be accused, and reserve public hearings for times when the commission has established its case and there's a genuinely needed deterrence effect in public hearings. Ultimately, this bill ensures that all corruption must be reported in public, as is necessary and of course appropriate.
It has been amusing and instructive to watch the hyperbole and hypocrisy of much of the media on this question, as they earnestly proclaim that everything must always be conducted in public, and that to not do so is to cover up corruption. This is nonsense. Without betraying specific confidences, in the multiple conversations I've had over months with journalists on this question—they didn't say it was off the record, so I'm allowed to say this without attribution—they privately all admitted that the government's position is entirely correct and that there is no way anyone could get fair coverage in their newspapers or television shows if all hearings were conducted in public. That's what they say in private. We've seen in recent weeks in the Victorian election how incomplete inquiries can be weaponised effectively.
In closing, I note that this bill, in my view, is necessary but not sufficient. It's not the answer to all of the integrity questions that pervade the public sector or public life. I do believe we can look to other jurisdictions for additional safeguards—for example, the British Committee on Standards in Public Life. It's been going since the moat scandal, and it's actually proven to be a good institution which considers broader issues of integrity. There are lessons we can consider from the efforts in the UK to improve the ministerial code of conduct—breaches of which should not usually be termed as corruption.
This bill is a critical step forward to improving integrity in the Australian public sector and public life, and I commend the bill to the House.