Wednesday, 23 November 2022
National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022; Second Reading
Ahead of the election in May this year the Australian Labor Party pledged to return integrity, honesty and accountability to the national government, and we keep our promises. The National Anti-Corruption Commission Bill 2022 delivers on our commitment. We do so via legislating a powerful, transparent and independent National Anti-Corruption Commission. This Albanese government takes its commitment seriously. We are serious about restoring trust and integrity to Australian government. This nation desperately needs it.
Way back in 2018 the Morrison government promised to establish a Commonwealth integrity commission. They made a promise. But like everything else about that government, it was another in a long line of empty announcements that lead to nothing and led to nowhere. This legislation before the chamber delivers the single biggest integrity reform this parliament has seen in decades. It honours our commitment to Australians in both form and substance. The design principles we announced before the election are the design principles of the bill before the House. The design principles were developed with some of Australia's leading integrity advocates and endorsed by the Australian people at the election in May.
Crucially, the commission will operate independently of government and have broad jurisdiction to investigate serious or systemic corrupt conduct across the Commonwealth public sector. It will have the power to investigate ministers, parliamentarians and their staff, statutory officeholders, employees of all government entities and contractors. It will have discretion to commence inquiries on its own initiative or in response to referrals from anyone, including members of the public and whistleblowers, with referrals able to be anonymous. It will be able to investigate both criminal and non-criminal corrupt conduct and conduct occurring before or after its establishment. It will have the power to hold public hearings. It will also have the investigative powers to enter Commonwealth premises and request information from Commonwealth entities without a warrant, notices to produce, search warrants, surveillance and telecommunications interceptions powers. This will enable the commission to do its job effectively and root out corruption at the federal level.
Of course, prevention and education are important to us to stopping corruption before it happens. I was pleased to see the commission will also have a mandate to prevent corruption and educate Australians about such corruption. A parliamentary joint committee will oversee the commission and will be empowered to require the commission to provide information about its performance.
The remit of the National Anti-Corruption Commission, or the NACC, is to restore trust and transparency in our democratic institutions and aims to eliminate corruption in the federal public sphere. As I said earlier, the commission will be able to investigate serious or systemic corrupt conduct affecting any part of the federal public sector. The definition of corrupt conduct is central to the commission's jurisdiction, consistent with key elements of existing definitions at the state and territory level and in the Commonwealth Law Enforcement Integrity Commissioner Act 2006. It encompasses conduct by a public official that involves an abuse of office, breach of public trust, misuse of information or corruption of any other kind. It also includes conduct by any person that could adversely affect the honest or impartial exercise of a Commonwealth public official's functions.
Other conduct that could adversely affect public administration, such as external fraud, as is only appropriate, will continue to be dealt with by existing integrity agencies. This will ensure that the commission is focused on its core purpose, which is tackling and stamping out serious and systemic corruption.
There are well-established and effective arrangements for dealing with fraud and other crimes that affect Commonwealth interests. For example, in the last three years the AFP's dedicated fraud commander has undertaken over 250 investigations into serious or complex frauds. And the Commonwealth director of prosecutions has prosecuted over 1,400 fraud matters referred by the AFP and 30 other agencies in the same period, irrespective of who is the government.
The commission will be the lead Commonwealth agency for the investigation of serious or systemic corruption and will work in partnership with other agencies that form a part of the Commonwealth's broader integrity framework, including the Australian Federal Police and the Australian Public Service Commission. The commission will have the power to refer corruption issues to other Commonwealth, state and territory agencies for their consideration—for example, where an issue involves broader criminality or official misconduct which falls within the jurisdiction of another independent investigative agency.
The independence of the commission will be secured in a number of ways. The commission will be able to conduct investigations on its own initiative or in response to referrals or allegations from any source. Agency heads will be compelled to report any corruption issue in their agency to the commission if they suspect it could be serious or systemic. The appointment of the commissioner and deputy commissioners will be subject to approval by the parliamentary joint committee. The appointees will have limited terms and security of tenure during that term comparable to a federal judge. The commission will be overseen by a parliamentary joint and an inspector. These are good, sensible checks and balances, the hallmarks of good, strong liberal democracies.
The parliamentary joint committee will be multipartisan. As you well know, Deputy Speaker Goodenough, committees in this parliament do incredible work. They work in a bipartisan or tripartisan or multipartisan way to make sure that the business of democracy is protected irrespective of what goes on in the executive part of the building. The parliamentary joint committee will be multipartisan. It will have 12 members: three government, two opposition and one crossbencher from each of the chambers. I could make comment on the need for senators, but I'll leave that alone in the spirit of getting everyone to support this legislation. The committee will be responsible for approving the appointments of the commissioner, the deputy commissioners and the inspector. The committee will be able to review and report to both houses of Parliament on the sufficiency of the commission's budget, because we have seen governments starve integrity bodies in the past. The committee will also be able to review the commission's performance and its annual reports. The inspector will deal with any corruption issues arising in the commission and complaints about the commission.
The commission will have a full suite of powers similar to those of a royal commission, so in essence there will be a permanent standing royal commission into corruption at the Commonwealth level. That is a sentence I love to read. It will be able to use its powers to undertake an investigation into a corruption issue if it is of the opinion it could involve serious or systemic corrupt conduct. Significantly, the commission will be able to undertake preliminary inquiries, using powers to compel the production of information, which will enable the commission to determine whether an allegation could be serious or systemic.
The commission will be able to hold public hearings if it is satisfied it is in the public interest to do so, with the default position that hearings will be held in private, as is the case around the world and in other states and territories in Australia. The legislation will provide guidance to the commission on factors that may be relevant to determining the public interest in holding a public hearing—factors such as the unfair prejudice to a person's reputation, privacy, safety or wellbeing if the hearing were to be held in public. These factors also include the benefit of making the public aware of corruption.
At the end of an investigation the commission will be required to produce a report containing findings and recommendations. Criminal guilt will remain as a matter for a court to determine, which is an integral part of our justice system. In the case when hearings are held publicly a report will be tabled in parliament, while the other reports will be published by the commissioner when they believe it is in the public interest.
Prevention and education will be a core component of the commission, as the most efficient and best way to deal with corruption is to stop it happening in the first place. This legislation will give the commission a function to provide education and information about corrupt conduct and information on how such conduct can be prevented. It will provide guidance and information to support the public sector to identify and address vulnerabilities to corruption and to understand the concept of corrupt conduct. This work will be informed by the insights the commission draws from its investigations and the intelligence it collects about corruption. The commission will also engage in broader public education about its role and about corruption risks and avenues to report corrupt conduct. There's lots of sunlight out there.
It's also important that there are safeguards written into the legislation to prevent undue reputational damage and to provide protections for whistleblowers and journalists. I know the press gallery is empty at the moment, but I cannot stress enough how important a strong media is in making sure that democracy functions adequately. I think we might be the only parliament house in the world that has the media inside the parliament house. I always see that as a great symbol of how important the fourth estate is.
The commissioner will have the express ability to make public statements at any time to avoid damage to a person's reputation. The commissioner will also be able to clarify the capacity in which a witness is appearing at a public hearing. Reports on investigations will include statements that a person has not engaged in corrupt conduct or is not the subject of any findings, where that is appropriate, to avoid damage to the person's reputation. So, rather than an investigation being used to throw mud at somebody, there will be this mechanism. The commission must afford procedural fairness to individuals or agencies who are the subject of any adverse findings it proposes to include in a report, by providing them a reasonable opportunity to respond.
The legislation provides strong protections for whistleblowers against adverse consequences including criminal offences and immunities. Public officials making disclosures to the commission will also be protected under the Public Interest Disclosure Act 2013. I was also happy to see that the Attorney-General will be introducing separate reforms to the Public Interest Disclosure Act to improve whistleblower protections, with the aim of having these reforms in place when the commission commences operation. I know the member for Clark made reference to this, but I'm not sure that he was across that in making those comments. But I know he's got a 20-year history of protecting whistleblowers and I commend him for so doing.
Protections in the legislation also include journalists, with an exemption from answering questions or providing information that would enable the identity of a source to be ascertained—with I hope, some of my concerns about the definition of what a journalist is being properly considered. Thanks to MIA for the great work that they do in protecting the integrity and professionalism of journalists.
In keeping with providing protections, political parties and their activities—which are an important part of democracy, after all—will also be recognised, and existing rules for political and parliamentary activities will continue to exist with this legislation. The legislation makes it clear that the use of public resources to conduct parliamentary business in accordance with the Parliamentary Business Resources Act 2017 or the Members of Parliament (Staff) Act 1984 is not within the commission's jurisdiction. It also confirms that political activities that do not involve or affect the exercise of powers or functions by public officials or the use of public resources cannot constitute corrupt conduct. The commission will be able to investigate a matter that falls within the jurisdiction of the Independent Parliamentary Expenses Authority or the Australian Electoral Commission only if the IPEA or the AEC refer the matter to the commission. Before referring the matter, these authorities would need to form the view that the information raises a corruption issue that could be serious or systemic. The legislation also expressly preserves parliamentary privilege by providing that it does not affect the powers, privileges or immunities of each house of the parliament.
Of course, an effective National Anti-Corruption Commission requires proper resourcing, and the Albanese government has committed substantial funding of $262 million over four years for the establishment and ongoing operation of the commission. This funding will ensure that the commission has the staff, the capabilities and the capacity to triage referrals and allegations it receives, conduct timely investigations and undertake corruption prevention and education activities. Importantly for the future of the commission, the legislation provides for the parliamentary joint committee to regularly review and report on the sufficiency of the commission's budget.
To wrap up, this bill is the Albanese government fulfilling its election commitment to establish a powerful, transparent and independent National Anti-Corruption Commission. It's a significant step in restoring trust and integrity back into government, something that the Australian people wanted and voted for at the last election—and we see that corner of the parliament representing that fact as much as this side of the chamber. I remember speaking in the parliament back in June 2020 lamenting the fact that at that point the Morrison government still hadn't delivered on its promise to put forward draft legislation by 2019, which, as we know, they never did. What they did bring in was a weak, ineffective and opaque piece of legislation, after they'd spent the best of a decade trashing the trust and integrity of parliament. Thankfully the Australian people saw through them and voted for and will receive, thanks to the Albanese government, a National Anti-Corruption Commission that will restore trust and integrity back into politics.
I note—and I can't really speak to this, because I'm on the Parliamentary Joint Committee on Human Rights, which has looked at some government amendments—that there would be a lot of things I'd like to say about offering protection for people with disabilities and the like. But I'll leave that for when we've tabled our human rights committee report. It's a milestone occasion in Australian politics, and I wholeheartedly commend this bill to the House.