House debates

Wednesday, 23 November 2022


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

12:20 pm

Zoe Daniel (Goldstein, Independent) Share this | Hansard source

ANIEL () (): This is the legislation that will define this parliament and this government. Get it right, and the electorate will applaud; get it wrong, and the major parties and indeed this parliament will pay the price. In recent years Australia has plummeted in world rankings for integrity. In 2012 Australia received a score of 85 out of 100 in Transparency International's Corruption Perceptions Index. By 2021 that had collapsed to 73. This has economic costs. Credible research estimates the decline in Australia's rating cut economic growth by six-tenths of one per cent, with 60,000 fewer jobs and the annual loss of government revenue at no less than $10 billion. The coalition paid the price at the last election for breaking a solemn promise at the 2019 election to establish a national anticorruption commission. Its record of pork-barrelling, from sports rorts to commuter car parks, along with a decade of denial and delay on climate change, cost it government.

This is landmark legislation that will usher in once-in-a-generation reform. I note that we wouldn't be debating this legislation without the efforts of Independents who came before me to this place. The former member for Indi Cathy McGowan, the member for Clark, the member for Warringah and especially the current member for Indi put issue of integrity on the agenda and ensured it was one of the main priorities during the last election campaign. In standing up this commission the parliament will reflect the will of the people, a population that has lost trust in leadership. The public wants transparent oversight of decision-making, especially when it involves the use of public money. What could be more galling, after all, than dodgy use of public funds at a time when the average Australian family is struggling to fill up the car, pay the rent or mortgage and cover the power bill?

There is a view among our constituents that there is one rule for us and one rule for them. This disconnect between the people and those of us who represent them is dangerous. We have seen what happens elsewhere when voters lose trust in their institutions and their representatives. Democracy itself is put at risk, falling prey to cheap and angry populism which rips at the fabric of society. Repairing this trust should be in my view our paramount priority. The National Anti-Corruption Commission is at the core of an integrity system that will begin that process. It is the beginning, not the end, of a process to develop that integrity system that will ensure voters regain trust in government and our institutions.

In doing that I say to this government that this legislation, the form of it, the force of it and the execution of it will be your legacy. Do not blink. Do not pass a weaker version of this legislation than you need to, for the sake of political expediency. If you do, you will undermine the rebuilding of that trust before you even begin. The quality of being honest and having strong moral principles, as integrity is defined, is how you, the government, and this parliament should define yourselves in this legislation. After all, it was the absence of action by the previous government to establish such a commission with independence and teeth that helped put six new Independents on this crossbench in this House.

The Attorney-General, I'm aware, does not seek to put in place an integrity commission but does state that this is central to a broader integrity framework. To my mind that framework will be shaky from the beginning if the commission's work is compromised by guidelines that make public hearings the exception. Integrity, and with that the need for a national anticorruption commission, was by far the most profound priority of the people of Goldstein who elected me to this place. Taking away that transparency will leave them short-changed and disappointed.

I strongly believe that the bar of exceptional circumstances should be removed from this bill as a trigger for public hearings. Let's call a spade a spade. We all know why this test was added to the legislation at the eleventh hour. It's because, despite this expanded crossbench, the major parties are in the habit of self-protection. I do respect the Attorney-General's rigorous work on this bill. I understand the government's preference for consensus. But, in seeking that consensus, the integrity of the building itself should not be undermined. After careful consideration and expert advice, I believe that the test of public interest and the various requirements that the commission must consider are enough for us not to need the test of exceptional circumstances, particularly with the additional protections in the bill regarding reputational damage and safety, and the capacity of the commission to make clear publicly when a witnesses either cleared or not the subject of the probe. Reputations are important, and so is the mental health of those being investigated.

While portions of the press and politics would have you believe that integrity commissions flippantly launch cases to bring people down, those are simply not the facts. The New South Wales ICAC, for example, does not assume guilt before innocence. It investigates and makes recommendations, much like a royal commission. It does not convict people. What integrity commissions do in this fast-moving, information overloaded world of ours is stop the clock. They don't quickly lose interest. Their job is forensic investigation to get the facts. Public hearings must not require such a high bar that they thwart the process, as in Victoria, which with an exceptional circumstances provision has held only a handful of public hearings in the last decade, compared to its New South Wales counterpart without that provision.

The Victorian IBAC commissioner, Robert Redlich, has had real-life experience of what it has meant for IBAC to be constrained by that barrier. In a powerful submission and testimony to the joint select committee inquiry, he said that public examination of witnesses is crucial to giving the public confidence in a system of integrity, as well as making investigations more transparent and raising public awareness, and that the imposition of a requirement of exceptional circumstances had placed 'an artificial limit' on IBAC and was unnecessary for the NACC. He stated without reservation:

The NACC must be permitted to hold public examinations without a requirement for exceptional circumstances, so long as there is specific provision that the Commissioner cannot call a witness unless satisfied that there is no unreasonable damage to reputation and that there will be no damage to the witness's welfare.

That being the case in the NACC legislation, Commissioner Redlich concludes:

It is therefore IBAC's position that a requirement that exceptional circumstances must exist for a public hearing to be held is unnecessary given the safeguards that already exist within cl.73(3) of the Bill.

That clause states that the commissioner must, not may, consider a range of factors when deciding whether to hold a public hearing, including the extent of the corrupt conduct, whether it relates to the commission of an offence, any unfair prejudice, any particular vulnerability, and the benefits of public awareness. Public confidence is everything when it comes to the establishment of this commission. That's part of the point that Commissioner Redlich was striving to make.

Respected constitutional lawyer Anne Twomey put it even more powerfully in her submission to the inquiry. If the exceptional circumstances requirement remains, she argues, 'the NACC will be a body with great powers that can investigate matters in secret, hold secret hearings and issue secret reports containing secret findings. This will undermine public trust in the NACC and is inconsistent with the principle of transparency.' I agree.

Arguably, some say, there's a difference between a pork-barrelling in the form of car parks and sports rorts and outright corruption. However, as Stephen Charles from the Centre for Public Integrity says, pork-barrelling is outside the law. What it comes down to is using public money to benefit oneself or one's party politically. This fails the integrity test and should also come under the gamut of the commission. As I have previously written, even many journalists have come desensitised to this. It's so ubiquitous that it attracts little more than a shrug and an eye roll in many quarters. As the former commissioner of the New South Wales ICAC, the Hon. Peter Hall KC, told the joint select committee on this bill:

There is a need to address this question of electioneering promises, where there is currently, it seems—not always but in many cases—a lack of any proper business case or analytical attempt to truly determine what is in the public interest.

Third-party behaviour is another area where corrupt conduct would go uncaptured by the current iteration of this bill. On this, I concur with the language used in section 8(2A) in the New South Wales ICAC Act and most other similar Australian acts:

Corrupt conduct is also any conduct of any person … that impairs, or that could impair, public confidence in public administration—

It involves a list of matters including fraud and collusive tendering. As I have already made clear, public confidence and trust is everything.

Within that context, I've also drawn on my three decades as a journalist and foreign correspondent to propose several amendments to the media and informant provisions in this bill. There is a fine balance to be found between the ability of the commission to find information and to protect its process and the critically important public right to know, which intersects with the media and the protection of journalists' sources. On that basis, I've advocated for a range of changes that protect whistleblowers who provide information to journalists; safeguard journalists and whistleblowers from having to provide information about each other; protect all members of the editorial and administrative chain; protect media organisations from being searched without a warrant; require any warrants granted to be allocated by a judge; and allow media organisations to apply for nondisclosure notifications to be lifted.

I would like to thank the Attorney-General and his office for their consideration and for actively addressing my concerns in the government's amendments to provide stronger protections for reporters and their organisations as they uncover corrupt political activity and to require search warrants to be issued by a judge rather than a member of the AAT. Never again do we want to see reporters like Annika Smethurst, Dan Oakes and Sam Clark at risk of criminal prosecution simply for doing their jobs.

On that basis, I continue to have concern about the prospect of journalists who receive leaked documents being prosecuted, and I'm in continuing discussions with the government about this. This commission must not become a bastion of secrecy that not only restricts public hearings but forbids disclosures in a rigid way, leaving journalists with jail terms hanging over their heads even for reporting the truth. The commission should foster transparency and allow the sunlight in, not operate shrouded in darkness, thereby further fracturing public trust—the exact opposite of what it's intended to do.

I commend the government, and particularly the Attorney-General and his staff, for their work on this once-in-a-generation bill. I will support it, but I say again: this is your legacy. Don't blink.


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