House debates

Thursday, 24 November 2022

Bills

National Anti-Corruption Commission Bill 2022; Consideration in Detail

9:23 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I present a supplementary explanatory memorandum to the bill and—by leave—I move government amendments (1) to (36) on sheet TT149 as circulated together:

(1) Clause 7, page 10 (after line 1), after the definition of magistrate, insert:

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

(2) Clause 7, page 12 (after line 2), after the definition of protected suspect, insert:

psychologist means a person registered or licensed as a psychologist under a law of a State or Territory that provides for the registration or licensing of psychologists.

(3) Clause 8, page 14 (line 20), omit "official;", substitute "official.".

(4) Clause 8, page 14 (lines 21 to 23), omit paragraph (1)(e).

(5) Clause 31, page 39 (lines 15 to 18), omit subclause (2), substitute:

Protection of informant's identity

(2) None of the following is required to do anything under this Act that would disclose the identity of the informant or enable that identity to be ascertained:

(a) the journalist;

(b) the journalist's employer;

(c) a person assisting the journalist who is employed or engaged by the journalist's employer;

(d) a person assisting the journalist in the person's professional capacity.

(6) Clause 40, page 46 (line 4), before "The", insert "(1)".

(7) Clause 40, page 46 (after line 6), at the end of the clause, add:

(2) To avoid doubt, the Commissioner may deal with a corruption issue on the Commissioner's own initiative.

(8) Clause 63, page 64 (after line 23), at the end of the clause, add:

(8) The Commissioner must give to the Inspector, within 3 business days after the summons is issued:

(a) a copy of the summons; and

(b) a copy of the record made under subsection (5).

(9) A summons is not invalid merely because the Commissioner does not comply with subsection (8).

(9) Clause 74, page 69 (line 15), omit subparagraph (b)(i), substitute:

(i) legal advice that is protected against disclosure by legal professional privilege;

(10) Clause 82, page 74 (lines 3 to 5), omit paragraph (e).

(11) Clause 91, page 80 (after line 12), at the end of the clause, add:

(4) The Commissionermust give to the Inspector, within 3 business days after the warrant is issued:

(a) a copy of the warrant; and

(b) a copy of the application for the warrant; and

(c) if the information given under subsection 90(2) is given in writing—a copy of the document recording that information.

(5) A warrant is not invalid merely because the Commissioner does not comply with subsection (4).

(12) Clause 96, page 83 (after line 17), at the end of the clause, add:

Vulnerable persons and persons with disabilities

(4) If the Commissioner is aware that a non-disclosure notation will apply to a person who has a disability or vulnerability that could affect the person's ability to comply with the notice or summons concerned, the Commissioner must consider including permission in the notation for the disclosure of information to enable the person to obtain assistance in:

(a) complying with the notice or summons; or

(b) otherwise engaging with the processes of the NACC.

(13) Clause 98, page 84 (after line 26), after paragraph (3)(c), insert:

(ca) to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling); or

(14) Clause 100, page 87 (after line 7), at the end of the clause, add:

Vulnerable persons and persons with disabiliti es

(4) If the Commissioner is aware that the direction will apply to a person who has a disability or vulnerability that could affect the person's ability to comply with the direction, the Commissioner must consider directing that investigation material may be disclosed to enable the person to obtain assistance in:

(a) complying with the direction; or

(b) otherwise engaging with the processes of the NACC.

(15) Clause 101, page 87 (after line 16), after subclause (2), insert:

(2A) Subsection (1) does not apply in relation to the disclosure of investigation material by the witness:

(a) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the corruption investigation to which the investigation material relates; or

(b) to a legal aid officer for the purpose of seeking assistance in relation to the investigation; or

(c) to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

Note: A defendant bears an evidential burden in relation to the matters in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(2B) Subsection (1) does not apply to the use or disclosure of investigation material by a legal practitioner for the purpose of:

(a) obtaining the agreement of a person as mentioned in subsection 115(3) to the legal practitioner disclosing advice or a communication; or

(b) giving legal advice to, or making representations on behalf of, the witness.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2B): see subsection 13.3(3) of the Criminal Code.

(16) Clause 124, page 107 (lines 17 to 27), omit subclause (2A), substitute:

(2A) Subsection (2B) applies if the warrant is to search:

(a) a person (the journalist) who works in a professional capacity as a journalist; or

(b) the employer of the journalist (working in that capacity); or

(c) premises occupied or controlled by the journalist or the employer (in the capacities covered by paragraphs (a) and (b)).

(17) Clause 159, page 130 (lines 10 to 22), omit subclauses (1) and (2), substitute:

(1) The Commissioner must advise a person of the outcome of a corruption investigation if the Commissioner investigates a corruption issue concerning the conduct of the person.

(18) Clause 159, page 130 (line 23), omit "or (2)".

(19) Clause 159, page 130 (line 27), omit "or (2)".

(20) Clause 159, page 131 (line 4), omit "or (2)".

(21) Clause 159, page 131 (after line 15), at the end of the clause, add:

(7) However, subsection (1) does not apply if advising the person of the outcome of the investigation:

(a) is not reasonably practicable; or

(b) would be contrary to the public interest, including because it might prejudice:

(i) a person's fair trial; or

(ii) a NACC Act process; or

(iii) any other investigation that is being undertaken by a Commonwealth agency or a State or Territory government entity; or

(iv) any action taken as a result of a NACC Act process or an investigation covered by subparagraph (iii).

(22) Clause 184, page 149 (after line 4), after paragraph (1)(e), insert:

(ea) to review the conduct of, and determine the extent of compliance with the law by, the NACC in issuing summonses, and in applying for and executing warrants for arrest as mentioned in sections 90 and 91;

(eb) to make recommendations to the NACC on the outcomes of such reviews;

(23) Clause 185, page 149 (line 27), omit "(5)", substitute "(4)".

(24) Page 164 (after line 15), at the end of Subdivision A, add:

214A In spector's powers to conduct reviews

For the purposes of conducting a review as mentioned in paragraph 184(1)(ea), the Inspector:

(a) may, at all reasonable times, enter and remain on any premises occupied by the NACC; and

(b) is entitled to all reasonable facilities and assistance that the Commissioner is capable of providing; and

(c) is entitled to full and free access at all reasonable times to any information, documents or other property of the NACC; and

(d) may require a staff member of the NACC to provide any information the Inspector considers necessary, being information:

(i) that is in the staff member's possession, or to which the staff member has access; and

(ii) that is relevant to the review; and

(e) may examine, make copies of or take extracts from any information or documents.

(25) Clause 225, page 173 (lines 10 to 22), omit subclauses (1) and (2), substitute:

(1) The Inspector must advise a person of the outcome of a NACC corruption investigation if the Inspector investigates a NACC corruption issue concerning the conduct of the person.

(26) Clause 225, page 173 (line 23), omit "may", substitute "must".

(27) Clause 225, page 173 (line 28), omit ", (2)".

(28) Clause 225, page 173 (line 32), omit ", (2)".

(29) Clause 225, page 174 (line 10), omit ", (2)".

(30) Clause 225, page 174 (after line 21), at the end of the clause, add:

(8) However, neither subsection (1) nor (3) applies if advising the person of the outcome of the investigation:

(a) is not reasonably practicable; or

(b) would be contrary to the public interest, including because it might prejudice:

(i) a person's fair trial; or

(ii) a NACC Act process; or

(iii) any other investigation that is being undertaken by a Commonwealth agency or a State or Territory government entity; or

(iv) any action taken as a result of a NACC Act process or an investigation covered by subparagraph (iii).

(31) Clause 241, page 198 (line 15), omit "(5)", substitute "(4)".

(32) Clause 242, page 199 (line 15), omit "(5)", substitute "(4)".

(33) Heading to clause 276, page 217 (line 2), omit the heading, substitute:

276 Delegation by the Commissioner

(34) Heading to subclause 276(2), page 217 (line 11), omit the heading, substitute:

Appointment of CEO and decision to take no action

(35) Clause 276, page 218 (line 11), after "subsection (1)", insert "or paragraph (2)(b)".

(36) Page 218 (after line 12), after clause 276, insert:

276A Delegation by the Inspector

General delegations

(1) The Inspector may delegate all or any of the Inspector's functions, powers or duties to a person assisting the Inspector who:

(a) is an SES employee, or acting SES employee; or

(b) holds, or is acting in, an Executive Level 2, or equivalent, position.

Decision to take no action

(2) Despite subsection (1), the Inspector may delegate the Inspector's powers under the following provisions to any person assisting the Inspector:

(a) subsection 210(6) (decision to take no action in relation to a NACC corruption issue);

(b) section 214A (Inspector's powers to conduct reviews).

Limits on general delegations

(3) Subsection (1) does not apply to a function, power or duty under:

(a) Subdivisions A to D of Division 3 (hearings) of Part 7 (as modified by section 214); or

(b) paragraph 184(1)(eb) (recommendations on outcomes of reviews); or

(c) Subdivision B of Division 4 of Part 10 (reporting on NACC corruption investigations and NACC complaint investigations); or

(d) section 230 (disclosure by authorised discloser in public interest); or

(e) in relation to making an arrangement mentioned in subsection 239(3) (arrangements for dealing with intelligence information); or

(f) this section.

Form of delegation

(4) A delegation under this section must be in writing and signed by the Inspector.

Complying with directions

(5) In performing or exercising a function, power or duty delegated under subsection (1) or (2), the delegate must comply with any directions of the Inspector.

The amendments on sheet TT149 implement recommendations made by the Joint Select Committee on the National Anti-Corruption Commission Legislation in their advisory report on the bill. They also implement recommendations made by the Parliamentary Joint Committee on Human Rights in report No. 5 of 2022. And they implement three further amendments to address technical issues with the bill, including to permit the inspector of the National Anti-Corruption Commission to appropriately delegate their powers and functions to persons assisting the inspector.

I'll now outline briefly the amendments on sheet TT149. Amendments (5) and (16) broaden safeguards for the protection of journalists in relation to search warrants and extend protections for their sources. Amendments (1), (2), (12), (13), (14) and (15) improve safeguards for the wellbeing of persons who may require assistance to comply with the summons or notice to produce and expressly permit people to disclose information to a medical professional. Amendments (17), (18), (19), (20), (21), (25), (26), (27), (28), (29) and (30) require the commissioner to advise a person whose conduct has been investigated of the outcome of the investigation. Amendments (3), (4), (6) and (7) amend the definition of corrupt conduct and clarify that the commission may deal with a corruption issue on their own initiative. Amendments (8), (11), (22) and (24) enhance the power of the National Anti-Corruption Commission inspector regarding witness statements and arrest warrants. Amendment (10) narrows the grounds for bringing contempt proceedings, and amendment (9) amends the requirement that all evidence which discloses legal advice be given in private. Amendments (23), (31) and (32) correct a typographical error in cross-references to clause 178 of the bill, which deals with the approval of the appointment of the commissioner, deputy commissioners and inspector by the Parliamentary Joint Committee on the National Anti-Corruption Commission. Finally, amendments (33), (34), (35) and (36) make minor presentational changes to titles and headings to reflect the amendments to the commissioners' and the inspector's delegation powers.

9:26 am

Photo of Julian LeeserJulian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | | Hansard source

The coalition supports the government's amendments here. We thank the government for these amendments. Many of the amendments deal with matters that were part of the joint select committee recommendations; in fact they implement the recommendations from the joint select committee. Many of those matters were things that the coalition has been particularly pushing for, including the deletion of clause 8(1)(e) from the definition of corruption and providing an exemption from gag orders for medical professionals and psychologists. That doesn't go quite as far as we would like, and we've got amendments that I'll speak to later. We're also pleased to see that a person subject to an inquiry will be advised of the outcome and to see an expansion of the powers of the inspector. We think that these are all good amendments, and the other amendments are of a technical nature, which we also support.

9:27 am

Photo of Helen HainesHelen Haines (Indi, Independent) Share this | | Hansard source

I just rise to speak in support of these amendments and to thank the government for making these important amendments to what is an extremely important bill that is going through the House today. The work of the committee that I had the privilege of being part of and deputy chair of put forward many amendments, as did the human rights committee of this parliament. They're good amendments, and I thank the government for their consensus approach by implementing these amendments.

9:28 am

Max Chandler-Mather (Griffith, Australian Greens) Share this | | Hansard source

As the government amendments are being moved in a block, we will support them, but we will note some brief concerns and reserve our right to address these in the Senate. The majority of these changes come out of the inquiry process and improve the bill. A notable omission is removing the overly high bar from public hearings the exceptional circumstances test creates. This was not in the Labor election commitment on this and appears to have been created as the result of a deal between Labor and the coalition. In particular, clarifying that people in front of the NACC may disclose to a medical practitioner or psychologist that they have been called to appear allows them to receive appropriate support and health care. Likewise, additional supports to enable disabled and vulnerable people to comply with the non-disclosure requirement are entirely appropriate and respond to the evidence raised in the inquiry about the need for these. If a non-disclosure agreement is issued to someone who doesn't fully understand the requirements or penalties, then clearly that person requires additional support.

The changes that require summons and warrants issued by the NACC to be given to the inspector empower that body further, as is appropriate. The inspector should not just be looking for corruption within the NACC but have the powers and resources to consider overreach by the body. The issue of better protecting journalist informants was raised by many stakeholders in the course of the inquiry. A strong and independent press is a key feature of democracy and is in itself an anticorruption feature, so limiting the impact of the NACC on journalism is important. Where a warrant is issued for journalist materials, amendment (16) applies the public interest test, which better balances the need for the NACC to do its job with the protection of journalist access.

There are, however, some government amendments we oppose. Amendment (4) seeks to remove existing clause 8(1)(e) from the NACC Bill—and (3) is consequential on this. Clause 8(1)(e) reads as follows:

any conduct of a public official in that capacity that constitutes, involves or is engaged in for the purpose of corruption of any other kind.

It is intended to function as a catch-all clause for the definition of 'corrupt conduct' for the matters not covered under (a) and (b), which relate to breaches of public trust, abuse of office or misuse of information, specifically.

The primary concern is, if (e) is removed, there are potentially a class of matters where it is apparent that corruption has happened but the NACC is unable to investigate, at risk of serious legal challenges from cashed-up targets. Some of the actions the public would expect to be covered by the remit of the NACC could potentially be excluded following this amendment—for instance, the Morrison secret ministries, which the public sees as a deep abuse of process but it is possible they may not be seem to be covered by 8(a) to (d), and third parties trying to corrupt government through post-political employment, like Peter Reith with Tenix, and where political donations result in changed policy outcomes. The section is designed to futureproof the NACC's jurisdiction to catch changing and emerging activities that corrupt the federal government.

The argument against keeping the provision is that it's too broad. This misses the point that to be captured under this provision the conduct must be serious or systematic corruption. That's a pretty clear set of boundaries that most people outside of parliament can understand. We need a broad definition of 'corruption' for the NACC because the political system keeps coming up with new ways to betray the public interest. If you told someone 12 months ago the Prime Minister would grant himself a bunch of secret powers and ministries, they would have laughed. But politics keeps surprising us in new and novel ways, and we need the NACC to have the jurisdiction to keep on top of this.

9:31 am

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

I rise simply to say that I will be supporting the government's amendments. I thank the Attorney-General and his office for their engagement particularly on the issue of journalist and source protection. A free press is critical to our democracy. I believe there were some gaps in the original iteration of this bill which have been resolved with the government's amendments. This particularly goes to protection of journalists' sources. We do not want journalists to be caught up in investigations and penalised for doing their jobs, and I'm hopeful these amendments resolve those issues in part. I continue to be concerned about journalists potentially being caught up in legal action when they receive leaked documents; this is an issue I'm continuing to press with the government.

I also thank the Attorney-General for resolving the issue of warrants. Having Federal Court judges being responsible for the issuing of warrants is an important safety net in this bill, particularly for media organisations which we have seen raided inappropriately in the past; that's something we don't want to see again.

Question agreed to.

9:33 am

Photo of Helen HainesHelen Haines (Indi, Independent) Share this | | Hansard source

by leave—I move amendments (5) and (6), as circulated in my name, together:

(5) Clause 73, page 68 (lines 10 to 14), omit subclause (2), substitute:

(2) The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that it is in the public interest to do so.

(6) Clause 73, page 68 (line 16), omit "may", substitute "must".

I am a vocal supporter of this bill. I believe overall it's an exceptional model, an excellent model, and I applaud the government for prioritising the National Anti-Corruption Commission legislation as top order in their agenda since they came to parliament. We've been waiting a long, long time to see legislation such as this. I thank in particular the Attorney-General for the way in which he has gone about putting this bill together, for the consensus approach he has adopted as best he can, for the many roundtable meetings and for the work of his department and of his staff. This will indeed establish a powerful anticorruption commission. The fact we have worked so hard together across the parliament to pull together what I hope will ultimately be a consensus bill is something I have long called for—that we can, together, bring about this extremely important change.

But it could still be better, and I've long said that I won't finish until the absolute finish line, and we're getting close to that. This bill can be improved before we deliver to the Australian people the National Anti-Corruption Commission they truly deserve: an anticorruption commission that's fit for purpose and that fulfils its role not just now but into the future for many years to come. I urge all members of this House to think very carefully about what our nation has asked us to do and to consider my amendments on their merits. I ask you to support them so that we pass legislation for the best possible integrity body.

Our nation desperately wants to restore its trust in us. I know it does. Part of that is people seeing how we deal with corruption when it comes before us. I would never ask for carte blanche public hearings—not at all. That is not what I'm talking about here. What I'm talking about is that the public get to see, when it's in the public interest, an inquiry of the National Anti-Corruption Commission.

Amendment (5) will strike out the unnecessary and alarming exceptional circumstances requirement. In my mind, this is the single most important change to this bill. My amendment will ensure that the commissioner may decide to hold public hearings if the commissioner is satisfied that it would be in the public interest—tested, simple and safe. As deputy chair on the committee examining this bill, I sat through almost 40 hours of evidence from integrity experts, former judges past and current, ICAC and IBAC commissioners, and transparency advocates. We heard little support from witnesses or submissions for the exceptional circumstances test and, in fact, an overwhelming amount of evidence against it. Sufficient protections are provided by requiring a hearing to be public only when it's in the public interest. Coalition committee members indeed cited fears about grave mental health impacts that may arise from appearing in public, when arguing to keep the exceptional circumstances test. But I would point members to the government amendments which will allow additional protections to seek mental health support, because it is an important concern, and I share it, but the exceptional circumstances clause is not the way to fix it. These concerns can be addressed in a way that enhances protections but does not hide the most critical corruption investigations away in the dark.

That's why amendment (6) will make it mandatory for the commissioner to consider certain factors when deciding whether to hold a public hearing, including unfair prejudice to a person's reputation, privacy, safety or wellbeing caused by a public hearing. This amendment boosts the protection of people who would be affected by the decision to hold a hearing in public. It was supported by the Law Council of Australia. It's already in place for the Australian Commission for Law Enforcement Integrity Commissioner and in some state anticorruption commissions, including in New South Wales. This amendment was supported by coalition committee members inquiring into the bill. The opposition—and I spoke to them about inserting 'must' instead of 'may'—decided not to proceed, so they have the opportunity to back this amendment. So, if you're concerned about protecting the mental health and reputations of people who may be subject to a public hearing, I urge you to vote for this amendment.

9:38 am

Max Chandler-Mather (Griffith, Australian Greens) Share this | | Hansard source

I understand that the member for Indi is intending to move amendments separately. I won't seek to speak on all the amendments but would like to express support for all of the member for Indi's amendments.

These amendments all respond to the expert evidence received in the hearings and to the broad consensus on how to make the NACC independent and deliver on the mandate of the last election. Amendments to explicitly include pork-barrelling, collusive tendering and fraudulent appointments respond directly to revelations in the last few years. The public has been very clear that they think the NACC should be able to consider these matters.

Removing the exceptional circumstances test is supported by the Greens and by the majority of the evidence heard during the inquiry into the bill. The alternative proposed definition for exceptional circumstances as 'circumstances in which it is preferable or appropriate for evidence to be given in public' likewise appropriately clarifies the clause instead of leaving it as a potentially insurmountable obstacle to public hearings.

Amendment (8) changes the chair of the committee as being elected by the committee and not being a member of the government party, which removes the current government control of the oversight committee. You're setting a committee up to fail if you have it controlled by the government of the day whose actions regarding funding are likely to be one of the major things that has to be considered.

Likewise, amendment (10) requires the minister to table a statement of reasons if the government deviates from the recommendations of the parliamentary committee on budgets. This provides an opportunity for the community to be informed if the NACC's budget is less or more than requested and why this might be. The need for the committee to oversight the budget is to stop criticism-sensitive governments from hacking into the budget and stopping the commission from doing its important work. Amendment (11) requires that for decisions about appointing the commissioner, deputy commissioner and inspector the decision to approve or reject must be made by a majority of the committee, including at least two government members and two non-government members.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that the amendments be disagreed to, and I give the call to the Attorney-General.

9:40 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I am speaking to the first two amendments moved by the member for Indi. I thank the member for Indi for her amendments and for her constructive engagement on this legislation throughout. On the exceptional-circumstances point, throughout this debate and indeed throughout the development of these bills and the joint select committee process we've heard differing views on the circumstances in which the commission should be able to hold public hearings. This is a matter on which reasonable minds may differ.

The commissioner will have the discretion to hold public hearings if they're satisfied that it's in the public interest and exceptional circumstances justify doing so. This is an appropriate threshold which reflects the significant nature of the power to compel a person to answer questions at a public hearing and the sensitivities involved in holding public hearings—for example, the risk of prejudicing a future criminal investigation or trial and of course the risk of reputational harm that may arise. It will often be appropriate that hearings be conducted in private—for example, to avoid prejudicing an ongoing investigation or related criminal proceedings, to protect the privacy of witnesses or to ensure that national security information is protected from disclosure. It will be a matter for the commissioner to weigh up these considerations.

The threshold involving exceptional circumstances and consideration of the public interest will enable the commissioner to effectively investigate corruption issues. The government will not be supporting this amendment.

On the other amendment, which deals with mandatory considerations, the bill already sets out a number of factors which the commissioner may consider when determining whether to hold a hearing in public. The government does not consider that it is necessary or appropriate to require the commissioner to consider each of these factors in all cases. The commissioner will have the discretion to determine which factors are relevant to the question of whether or not it would be in the public interest to hold a public hearing and whether exceptional circumstances exist in the context of a specific investigation. There would be limited value in mandating consideration of a particular factor in circumstances where the factor is not relevant. The government does not support that proposed amendment.

9:42 am

Allegra Spender (Wentworth, Independent) Share this | | Hansard source

I rise to support the amendments moved by the member for Indi, and I speak because the exceptional circumstances have been set as a bar too high for public hearings. I'd like to address the examples the Attorney-General just raised in the chamber. The Attorney-General identified a number of exceptional circumstances where a public hearing would not be appropriate, with which I agree. There are absolutely circumstances, such as national security or where it could prejudice a criminal investigation, where a public hearing would not be appropriate. However, that doesn't actually cover the point, which is to say that no hearing should be public unless there are exceptional circumstances. I don't believe those examples actually go to the heart of this, which is that it's the prejudice to assume that it's only in exceptional circumstances—sorry: I think it goes to the opposite piece, where that's an argument to say, 'Well, under exceptional circumstances the hearing should be in private.' I 100 per cent agree. But that's not to assume that it's only exceptional circumstances where the hearings are in public.

I come from New South Wales, and one of the most egregious examples of corruption in New South Wales is the Eddie Obeid case, where the former New South Wales ICAC commissioner said, 'The operations behind these cases could not have been undertaken without public hearings.' As I said, this is one of the most egregious examples of corruption in New South Wales. The people of New South Wales are deeply appreciative of the ability to actually get awareness of this corruption, but this would not be possible under the circumstances outlined in the act.

The Victorian experience, when contrasted with the New South Wales experience, shows that there is a real difference in the operations of public hearings because of these exceptional circumstances. In the case of New South Wales, where there is a high bar to public hearings, we only get about five per cent of the hearings actually public. This is not something that is abused; this is something which is used extremely sparingly. So I agree with the member for Indi and I agree with the Law Reform Commission's example on this. Fundamentally, sunlight is the best disinfectant, and it is absolutely crucial that exceptional circumstances be removed from this legislation. I support the amendments from the member for Indi.

9:46 am

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

I rise also to support the amendments from the member for Indi, and I acknowledge her tireless work on this issue, along with other Independents sitting on this crossbench and others who are no longer sitting on this crossbench who have worked hard to bring this legislation to the parliament. I believe this is defining legislation, which will define not only this government but this parliament, and it is a legacy that this government and this parliament will leave.

In that context, I wonder why we would pass a weaker version of the legislation than we need to. I could guess at why we are doing so, and I think many of us know that conversations have been happening in the background to get us to where we are. But the government has the numbers, particularly with the members of this crossbench, to pass legislation that I believe is more workable than the bill that we are likely to put through this House today. On that basis, I endorse the amendments from the member for Indi, and I agree also with the member for Wentworth that the bar of exceptional circumstances is too high. If we are to put trust in the commissioner and commissioners to act in the public interest, I would argue that the checks and balances that are inherent within the legislation to protect safety, reputation, mental health and such are enough for those commissioners to make a decision in the public interest on public hearings.

Like my crossbench colleagues, I don't argue for across-the-board public hearings. I agree that there are arguments for hearings to be held in private, but I also would reverse the onus to say that private hearings should be held in exceptional circumstances, not the other way around. On that basis, I commend the member's amendments to the House.

9:48 am

Photo of Zali SteggallZali Steggall (Warringah, Independent) Share this | | Hansard source

I also commend the member for Indi for her amendment and all the members of the crossbench, and many in this parliament, who have been advocating for so long for sunlight to finally hit at federal level when it comes to integrity and anticorruption. We must have a strong national anticorruption commission, and throughout the last parliament and this parliament there has been much discussion about this.

What we have now before the parliament is a good bill—I commend the Attorney-General for that—but it is not a great bill. This is not capturing that opportunity to genuinely, truly deliver to the Australian people what they asked for at the election, which is public integrity and accountability. The threshold test of the commissioner needing to be satisfied that there are exceptional circumstances and in the public interest means, as the Victorian IBAC submission to the inquiry identified, that on top of the normal circumstances of corruption and integrity questions that are being investigated, the circumstances must be, in addition to that, exceptional in nature to then justify a public hearing. It is really important for the public to understand the high bar of this threshold.

What this also means, because it is not defined—the Attorney-General wants to leave this to the broad discretion of the commissioner—is that it is open to legal challenge. So what is likely to happen—and this is a broadly held view—is that in very few instances will a commissioner risk litigation by actually finding 'exceptional circumstances' and 'public interest' and going for public hearings. You can just see the simplicity of the route. The route will be: you keep it private, and an investigation can proceed, but the public will be in the dark. The public will not know what comes out of that investigation, and that is directly contradictory to what the public wants. In the circumstances of finding 'exceptional circumstances', you will then see litigation. That will be challenged in court. It will be held up. It will go all the way to the High Court, and the public, again, will not see the outcome of investigations.

At the election in 2022, I don't think there could have been any clearer or louder call that the public has had enough. They have had enough of politicians at the federal level being held to a different standard than everyone else. They want to see integrity returned to this place. For that, we have an opportunity. This is a moment in time. It's a culmination of a lot of work, and I urge the Attorney-General to really consider stepping up to the plate at this moment in time to make this a great bill and to endorse this amendment.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question before the House is that amendments (5) and (6), circulated in the name of the member for Indi, be disagreed to.

10:03 am

Photo of Helen HainesHelen Haines (Indi, Independent) Share this | | Hansard source

by leave—I move amendment (7) as circulated in my name.

(1) Clause 8, page 14 (after line 20), after paragraph (1)(d), insert:

(da) any conduct of a public official that involves the allocation of public funds or other resources to targeted electors for partisan political purposes;

(2) Clause 8, page 14 (after line 23), after subclause (1), insert:

(1A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:

(a) collusive tendering;

(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources;

(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;

(d) defrauding the public revenue;

(e) fraudulently obtaining or retaining employment or appointment as a public official.

(3) Clause 8, page 14 (line 24), omit "does not", substitute "and subsection (1A) do not".

(4) Clause 8, page 15 (line 15), after "paragraph (1)(a)", insert "or subsection (1A)".

(5) Clause 73, page 68 (lines 10 to 14), omit subclause (2), substitute:

(2) The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that it is in the public interest to do so.

(6) Clause 73, page 68 (line 16), omit "may", substitute "must".

(7) Clause 73, page 69 (after line 10), at the end of the clause, add:

Meaning of exceptional circumstances

(6) For the purposes of paragraph (2)(a), exceptional circumstances means circumstances in which it is preferable or appropriate for evidence to be given in public.

(8) Clause 177, page 144 (line 19), before "to review", insert "at least once every 12 months,".

(9) Clause 177, page 144 (after line 30), after subclause (2), insert:

(2A) If:

(a) in a report mentioned in paragraph (1)(g), the Committee makes a recommendation in relation to the NACC's finances and resources; and

(b) the Minister decides not to follow the recommendation;

then:

(c) the Minister must prepare a written statement of reasons for the decision not to follow the recommendation; and

(d) the Minister must cause a copy of the statement of reasons to be tabled in each House of the Parliament within 15 sittings days of that House after making the decision.

(10) Clause 178, page 146 (after line 17), after subclause (2), insert:

(2A) The decision to approve or reject a proposed recommendation is to be determined by a majority of all of the members of the Committee for the time being holding office. The majority must include:

(a) at least 2 Government members; and

(b) at least 2 non-Government members.

(11) Clause 178, page 146 (after line 17), after subclause (2), insert:

(2A) The decision to approve a proposed recommendation must be supported by at least a two-thirds majority of all of the members of the Committee for the time being holding office.

(2B) Paragraph 173(5)(b) does not apply in relation to a vote on a decision to approve or reject a proposed recommendation.

If exceptional circumstances is to remain in this bill, it should be defined. The public deserves to know what circumstances justify the holding of a public hearing. My amendment will define 'exceptional circumstances' to mean 'circumstances where it is preferable or appropriate for evidence to be heard in public'. This will ensure the number of private hearings are not unreasonably increased due to the ambiguity of the phrase. This remedy was supported by the Australian Federal Police Association, the Community and Public Sector Union and Transparency International Australia. This aims to limit litigation on the meaning of the phrase and would ensure that the number private hearings are not unreasonably increased due to the ambiguity of the phrase 'exceptional circumstances'.

I think it's really clear that those of us on the crossbench, my colleague from the coalition and the general public have incredible concern around the exceptional circumstances clause. I've just lost the division on the removal of the exceptional circumstances clause, but we have a second chance here to make sure that, if this is going to stay, we know exactly what it means. I would urge members of the House to think about that. It's a very sensible, very easy amendment to make, and it removes the ambiguity. I urge members of the House to have a look at that and think about this carefully. You can rescue the decision you just made by being clearer about this part.

I commend this amendment, and I ask that colleagues across the House look at this carefully and make sure that they're on the right side of history here—that we make it clear both to the commissioner and, importantly, to the public what we mean by 'exceptional circumstances'.

10:05 am

Photo of Zali SteggallZali Steggall (Warringah, Independent) Share this | | Hansard source

I'd like to support this amendment because it is clear that 'exceptional circumstances' is misunderstood, and, without definition, it raises great concerns. We know from the submission from the Victorian IBAC that it is about exceptional circumstances above and beyond the normal mill of integrity and anticorruption issues. So just what will qualify as exceptional circumstances?

Interestingly enough, I watched the Attorney-General with Sarah Ferguson on 7.30 recently, and she put it to him very specifically: 'What will be exceptional circumstances?' With respect, he dodged the question, saying he 'will leave that to the commissioner to determine', because, I would say, it's not clear in the government's mind what will be the exceptional circumstances. It leads to an inference that it's such a high bar that, in fact, there is an unwillingness to actually say just what will be exceptional circumstances. It undermines this legislation. I think, for the public to genuinely have confidence that we have the best possible National Anti-Corruption Commission, if we're going to keep a test of 'exceptional circumstances', it does need definition.

10:07 am

Photo of Andrew WilkieAndrew Wilkie (Clark, Independent) Share this | | Hansard source

Let's clear this up right now. Through you, Speaker, I put the question to the Attorney-General. Attorney-General, please tell us what your understanding is of 'exceptional circumstances'?

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I would again thank the member for Indi for her constructive engagement on this legislation. As I have said previously, this matter of 'exceptional circumstances' is certainly a matter on which reasonable minds can differ. The commissioner will have the discretion to hold public hearings, if they are satisfied that it is in the public interest and exceptional circumstances justify doing so. It's the government's view that this is an appropriate threshold which reflects the significant nature of the power to compel a person to answer questions at a public hearing. It reflects the sensitivities involved in holding public hearings—for example, the risk of prejudicing a future criminal investigation or trial. And it reflects the issues of reputational harm which may arise. It's appropriate that this discretion rests with the commissioner. The government doesn't support this amendment.

I just want to answer a comment that was made by the member for Wentworth. In her earlier remarks about public hearings, she quoted the late David Ipp, who provided such service to the people of New South Wales as the ICAC commissioner. It's very important that everybody understands that the bill does not ban public hearings. The comments of the late David Ipp that the member for Wentworth quoted were about whether or not to hold public hearings at all. The former government's proposal was not to hold public hearings at all. To the contrary, this bill leaves that question to the discretion of the commissioner.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that amendment (7), moved in the name of the member for Indi, be disagreed to.

10:20 am

Photo of Helen HainesHelen Haines (Indi, Independent) Share this | | Hansard source

by leave—I move amendments (1) to (4) as circulated in my name together:

(1) Clause 8, page 14 (after line 20), after paragraph (1)(d), insert:

(da) any conduct of a public official that involves the allocation of public funds or other resources to targeted electors for partisan political purposes;

(2) Clause 8, page 14 (after line 23), after subclause (1), insert:

(1A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:

(a) collusive tendering;

(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources;

(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;

(d) defrauding the public revenue;

(e) fraudulently obtaining or retaining employment or appointment as a public official.

(3) Clause 8, page 14 (line 24), omit "does not", substitute "and subsection (1A) do not".

(4) Clause 8, page 15 (line 15), after "paragraph (1)(a)", insert "or subsection (1A)".

These amendments are really important. They put beyond doubt that pork-barrelling falls within the definition of 'corrupt conduct' when it meets the threshold of being serious or systemic. Pork-barrelling under this amendment will be defined as any conduct 'that involves the allocation of public funds and resources to targeted electors for partisan political purposes'.

Let's call pork-barrelling out for what it is. It is buying votes with taxpayer money. It doesn't pass the pub test. My constituents are stumped as to why it still goes on. The public are sick and tired of it, because they know that every time a marginal electorate gets pork-barrelled important infrastructure in other electorates misses out. They are absolutely sick of it. In the last parliament, I heard the now Attorney-General standing in this place constantly—constantly!—calling out the then government on this. I heard the now Prime Minister do the same thing—constantly calling out pork-barrelling and constantly calling for an anticorruption commission that would fundamentally stop pork-barrelling.

Now that we have this government's National Anti-Corruption Commission legislation, I want to make sure that there is not one element of doubt that the commissioner can, when they determine that this is serious or systemic, go ahead and undertake an investigation into this egregious practice that has been going on across this nation for way too long. There is significant and growing concern about the alleged misuse of billions of dollars of public grant funds, and there should be absolutely no ambiguity regarding the NACC's ability to investigate what is a really, really disgraceful practice.

I want to be clear. This amendment does not force the commissioner to investigate all instances of pork-barrelling—though, I might say, it would be jolly good if there was some way that we could do that! The amendment doesn't do that at all. This amendment retains the discretion of the commissioner as to whether or not to commence an investigation, as it should be. These amendments also ensure that the conduct of any person—and, notably, third persons—that could impair public confidence in public administration can be investigated by the NACC, when it meets the threshold of being serious and systemic. These amendments on third-party involvement which impairs public confidence are really important. This is a tried and true provision in every single anticorruption body in Australia, apart from Western Australia and Tasmania, and it belongs in this body, too.

These are two really important amendments. Members of this place, you haven't got much time left now to make this bill the very, very best it can be. If, like me, you get tired of constituents coming to you when something good does happen in your electorate—the member for Bass talked to me about this yesterday, and it's so true. Members of this place work really hard with government to advocate for excellent policies and excellent infrastructure to come into their electorate. When that happens, to feel like you're then part of this great big bad situation of pork-barrelling actually undermines the good work that happens here, and it doesn't do anything about the bad stuff.

I say to you: if you want to regain the trust of the nation, if you want to walk out in your community and feel that, every time you work hard for them to get the infrastructure they need, it's going to be done in the right way, under clear guidelines and with real integrity, then you should be voting for this amendment, so we make this absolutely crystal clear. Members, think carefully about this one, and think carefully also about third parties and the erosion of public confidence in public officials. We can fix this now. I think the Attorney-General knows what I'm talking about. This is a real opportunity to get this bill as tight as we possibly can, to say to the public, 'We're here for you, right down to the wire, to make sure that we have an anticorruption commission that is absolutely fit for purpose and will restore your trust in us.'

10:25 am

Photo of Bob KatterBob Katter (Kennedy, Katter's Australian Party) Share this | | Hansard source

In speaking to this bill, I personally of course have been on the receiving end. In one election, quite literally every newspaper that came out in the Kennedy electorate had a picture of Senator Boswell handing out cheques during the election campaign. John Anderson stood down soon after the inquiry into the fact that most of the development moneys had been spent in the two electorates targeted by the National Party, which were the electorate of New England and the electorate of Kennedy. Mr Beazley was then the Leader of the Opposition, and he led the attack, and I suppose the member for New England and I enjoyed the game. But it was the third case, and no-one blew the whistle on him, and he was told to fix up the account. I told him bluntly that he either fixed up the account or there would be another investigation and he'd be leaving this place.

It gives me no joy to say—because I spent most of my life in the National Party—that, in that last case, it was a National Party leader; in the case before that, it was the National Party leader; and, in the case before that, it was the National Party leader. The last case did not politically involve Kennedy, but it concerned dairying, and I had probably the biggest dairying area in Australia. The dairy RAP money had gone to the minister's electorate and not to anyone else. So that was not politically motivated, just in his own personal interest. He thought it would be nice if he pork-barrelled for himself. But it is a very sorry record.

Now, I live in the real world. I'm a realist. If you're working with people, and they're your friends, then you are more inclined to do things for them because you just know what they're doing. You're working with them. They're people that you trust. In Queensland the relationship between the Thiess brothers and Bjelke-Petersen enabled that state to create the tourism industry, to create the coal industry and also to create the minerals-processing industry, which came out of my own electorate. They were all created out of that extremely tight relationship. We don't want pork-barrelling to cover things that are good for the nation, where you're going to spit on them just because they happen to be friends or they happen to be political supporters.

I want to make it perfectly clear that, whilst every one of us on the crossbench—and I'm not speaking for the crossbench, of course—want to go where Helen Haines is taking us in this debate and in this initiative, we must also understand that it can't punish people just because they happen to be friends and supporters of the Labor Party or the Liberal Party. I was at the CFMEU dinner last night. If there's a big construction job on and there's site coverage by the CFMEU, we're not going to allege—I hope that no-one in this place would allege—that therefore it's wrong because there's an association between the CFMEU and the ALP, which, of course, there is. They support them very substantially financially.

I just want to make the point that, whilst we're trying to attack an evil, an endemic evil in our system—and I've pointed out where it has occurred again and again and again. There was Ros Kelly, going back before the National Party's transgressions. It was unbelievable what she did there. But a similar thing had been done by one of the National Party leaders, only much worse, actually. So it's been going on and on and on, and it will continue to go on. We just hope this legislation will stop it. But we don't want the legislation to become a killing ground for things that are good for the government of Australia.

10:30 am

Photo of Luke HowarthLuke Howarth (Petrie, Liberal Party, Shadow Minister for Defence Industry) Share this | | Hansard source

In relation to these amendments, I find the member for Indi's amendments, quite frankly, offensive. I spoke about this last night in my own speech. I will leave it on the record there, but I certainly won't be supporting the amendments.

Photo of Andrew WilkieAndrew Wilkie (Clark, Independent) Share this | | Hansard source

I support the member for Indi's amendments, and I applaud the member for Indi for being such a principled member of this parliament and being prepared to tackle issues like this. I echo the member for Indi when she makes the distinction between, on the one hand, a member for parliament fighting for their electorate and the response of the government to those requests—that is, us fighting for our electorates and being successful—and, on the other hand, governments acting in corrupt ways with systemic pork-barrelling for political gains.

I think it is undeniable that the previous government's sports rorts program was unconscionable and unethical. It should be illegal, and it meets every reasonable definition of corruption. So too does what happened before last year's Tasmanian state election, when the Tasmanian government rolled out $15 million of grants, including to a number of community groups linked to state politicians and their families—for example, a grant of $150,000 to a rowing club of which a family member of a candidate was a member. That is corruption.

I echo the member for Indi's comments, and I also pick up on her point about her conversation with the member for Bass yesterday. I was a part of that conversation. The member for Bass does a really good job representing her community and fighting for her community, and it is quite offensive to the northern Tasmanian members personally when we talk about their electorates being pork-barrelled. I do talk about their electorates being pork-barrelled, and I criticise governments and political parties for pork-barrelling in those areas, but we've got to be careful to keep that as a completely separate matter to good members of parliament fighting for their groups and doing everything they possibly can to get federal funding for their community groups, for infrastructure et cetera.

10:32 am

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

I rise in support of the member for Indi's amendments. I feel that by not including pork-barrelling in this bill we're operating at cross-purposes with our electorates. Certainly, during the election campaign, constituents in Goldstein primarily spoke to me about pork-barrelling. It so happens that Goldstein was the recipient of no fewer than six car parks—or should I call them car porks?—to the tune of roughly $100 million. Even though those commuter car parks were supposed assets for the electorate, there was deep recognition within the community of Goldstein that these were blatant examples of pork-barrelling by the former government. Those car parks have now been axed by the current government in the most recent budget, but it echoes for me, having now been elected, how deeply this issue ran during the election campaign. Therefore, I feel that to exclude this as an explicit element of the bill is a mistake, and from that perspective I endorse the remarks of my colleagues.

I would also add that arguably some would say, 'Well, there's a difference between pork-barrelling and corruption,' but I don't think our constituents see it that way. Particularly in an environment of cost-of-living pressure—where people are struggling to pay for fuel for their cars, to pay their electricity bills and to pay their rent or mortgages—people find it deeply troubling and offensive that business cases are not stacked up for the way that taxpayers' money is spent. There should be transparent processes around the allocation of taxpayers' funds. So with that in mind I strongly support the member's amendment and I think my community would as well.

10:35 am

Monique Ryan (Kooyong, Independent) Share this | | Hansard source

I just want to speak briefly to echo the remarks made by my crossbench colleagues. One-third of Australians voted in May 2022 in favour of increased transparency and integrity in government. And, yes, we had carpark rorts, we had sports rorts, we had the Leppington Triangle and we had water rorts. It is only with the passage of time that we will understand the extent of the lack of integrity of the last government. These things are coming to light by the day. We have been like frogs being boiled. We have become inert to the extent to which integrity has been lost and that has been reflected in the fact that the Australian public has lost faith in the process. If we don't include pork-barrelling then something will remain rotten in the state of Victoria, in the state of Tasmania, in New South Wales. We have to uncover this corruption wherever it is. Without doing that we won't regain the trust of the Australian public, and I think it is really important we do everything in our power to do that.

10:36 am

Photo of Zali SteggallZali Steggall (Warringah, Independent) Share this | | Hansard source

I rise to strongly support this amendment. Pork-barrelling is the absolute scourge of government decision-making in Australia. I don't think there could have been a more audible gasp from the community when the previous Premier of New South Wales admitted on transcript that pork-barrelling is just the norm, that that is how you allocate public money.

In circumstances when so many now communities have lost trust and faith in government and in government decision-making and when there is such a history of decisions of spending of public money where it has not been on a prevailing merit base or need of the community but for an ulterior purpose which is a political purpose, I do find it ironic because, traditionally, it has been the coalition that argued that decisions need to done on merit, that we couldn't possibly have quotas on other issues and things like that. But when it comes to spending public money, the merit case is subjugated to an ulterior purpose. Pork-barrelling is just corruption. It has been recognised as such, the public thinks it is that and it is absolutely a scourge on government decision-making. By explicitly excluding it from this National Anti-Corruption Commission, it flies in the face, I believe, of the expectations of our communities. I think the government will be judged on that, particularly for having provided cover for pork-barrelling.

10:38 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Indi for raising the issue of the commission's ability to investigate serious or systemic corruption in relation to discretionary grants programs, commonly referred to as pork-barrelling. As I've said previously, there is a point at which the making of discretionary grants can cross the line into corruption, where public money is being given away for private purposes and that is what are talking about. Can I assure the member for Indi and all of the other members of the crossbench who have spoken in support of her amendment that the bill would enable the commission to investigate serious or systemic corrupt conduct in relation to a discretionary grants program where that conduct may involve a breach of public trust, or dishonest or partial conduct. It is simply not correct, as the member for Warringah has just attempted to suggest, that it is excluded from the work of the commission. It is included in the work of the commission. These are very well-established concepts. They have been considered relatively recently by the New South Wales Independent Commission Against Corruption in its Operation Jersey. If there are circumstances where grants are allocated dishonestly or for an improper purpose, the commission will be able to investigate if it is of the opinion that this could involve serious or systemic corruption.

I now turn to the other matter that's raised by this group of amendments, which is the question of third parties and external fraud. The commission will be a specialist body focused on preventing, detecting and investigating corruption involving public officials. The commissioner will be able to fully investigate serious or systemic corrupt conduct and transactions between public officials and third parties, as well as attempts by third parties to corrupt public officials. This includes the conduct referred to in the member for Indi's proposed amendment, where there is some involvement of a public official. Extending the commission's jurisdiction beyond matters involving corruption of a public official, to include external frauds against the Commonwealth that do not involve a public official, would divert the commission from its core purpose. The Australian Federal Police, the Commonwealth Director of Public Prosecutions and other agencies are effectively dealing with these matters—sadly, by the hundreds every year. The Australian Federal Police, in particular, has specialist fraud investigating teams. It works with the Australian Taxation Office on these matters. They are specialist agencies, they are dealing effectively with these matters and it's not necessary to amend the bill to expressly cover conduct of this kind. The government does not support this amendment.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is the amendments (1) to (4), moved by the member for Indi, be disagreed to.

10:51 am

Photo of Helen HainesHelen Haines (Indi, Independent) Share this | | Hansard source

by leave—I move amendments (8) and (9), as circulated in my name, together:

(8) Clause 177, page 144 (line 19), before "to review", insert "at least once every 12 months,".

(9) Clause 177, page 144 (after line 30), after subclause (2), insert:

(2A) If:

(a) in a report mentioned in paragraph (1)(g), the Committee makes a recommendation in relation to the NACC's finances and resources; and

(b) the Minister decides not to follow the recommendation;

then:

(c) the Minister must prepare a written statement of reasons for the decision not to follow the recommendation; and

(d) the Minister must cause a copy of the statement of reasons to be tabled in each House of the Parliament within 15 sittings days of that House after making the decision.

These amendments enhance budgetary transparency and oversight of the National Anti-Corruption Commission. Around Australia, anticorruption commissions have been starved of adequate funding. Even the threat of funding cuts could have a silencing effect on anticorruption commissions' capacity to undertake investigations. This is incredibly important as we set up this National Anti-Corruption Commission to last into future. We want to ensure that governments to come absolutely must provide transparency about the funding required to run an effective anticorruption commission

This amendment will also require the minister to table a statement of reasons if they deviate from the recommendations of the National Anti-Corruption Commission joint select oversight committee in relation to the budget. The amendment provides an additional layer of oversight and transparency over the National Anti-Corruption Commission's budget by requiring the government of the day to respond to a report regarding the adequacy of the NACC's budget. This not only is important for the corruption commission itself but, again, speaks to transparency and what the public needs to see. The public must have the opportunity to see whether the government is following its own oversight committee's recommendation regarding NACC funding and for the government to justify reasons if it chooses not to follow those recommendations.

My amendments also require the parliamentary joint committee to review the Anti-Corruption Commission's budget every 12 months. This amendment will ensure regular review of the NACC's budgets and prevent the powerful budget oversight power from going unused. Again, I put these amendments forward in good faith for protection into the future. We may not always have a government who wishes to see a powerful anticorruption commission succeed. These amendments will ensure that the review function is used and will give the public and this parliament the chance to scrutinise the government's decisions in relation to funding requests. This is extremely important. We need to make sure that this National Anti-Corruption Commission is fully independent and powerful. Having adequate funding to undertake its work is absolutely central to that. Thank you.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that the amendments moved by the honourable member for Indi be disagreed to. The member for North Sydney was on her feet before the member for Kennedy, so I will give the call to the member for North Sydney—but rest assured, the member for Kennedy will get a fair go as well.

10:54 am

Kylea Tink (North Sydney, Independent) Share this | | Hansard source

I wanted to speak to these particular amendments because I think they send a very important message to the Australian community about the visibility of how this National Anti-Corruption Commission is going to be established and about how its integrity in the longer term will be protected and sustained. I would argue in this House that actually one of the key measures of success of the National Anti-Corruption Commission will be its longevity and sustainability. We know all too well from the experiences of the last 15 years here in this place how easy it is, with a change of government, for bodies to be set up with the best of intentions and then to subsequently be gutted and become powerless in the face of a new power in politics.

I think the amendments the member for Indi has moved are infinitely reasonable. These are not things that require us as a parliament to go out of our way. They do not induce any level of discomfort for us. What they ask us to do is to ensure that all of us as parliamentarians remain transparent to the communities that we've been sent here to represent. I would also reflect on the fact that amendments very similar to this were recently introduced into the climate bills for exactly the same reason. Our democracy only becomes stronger when the people who send us here are given a very clear line of sight on the discussions we're having, the advice we're taking and what we are doing once we receive that advice. I commend the member for Indi for these amendments and support them very strongly.

10:56 am

Photo of Bob KatterBob Katter (Kennedy, Katter's Australian Party) Share this | | Hansard source

I'm very aware of the arguments against the initiatives that we are taking here. I saw so many totally innocent people completely destroyed in the Fitzgerald inquiry on police corruption in Queensland. I'll just give you one example. Any policeman that gave evidence against the corrupt police group that the Fitzgerald inquiry was investigating had child pornography put on their computers. There were, I think, something like 32 policemen and people who had done the right thing, who had the courage to do the right thing and who had their lives completely destroyed. They went to jail. Two of them committed suicide, I remember. I don't know how many ended up committing suicide. But they were the good guys. So I can see the inherent dangers here. I can also see the ineffectiveness of what has been done in Queensland. What we're doing here has been done in Queensland, and I'll come back to that.

But the other side of the argument is that, if we had had in place what the honourable member is putting up here today, would we have got into that situation in Queensland? There was a member of parliament called Ray Jones, an ALP member in Cairns, and he said that there were allegations of cattle thieving and drug running in the police force. He got a lot of publicity out of it, and I subsequently found out that there were two murders associated with this group. I rang him up, and he said, 'I don't know what you're talking about—never heard of it. I don't know what you're talking about.' I said, 'You're the front page of the Cairns Post and the Courier-Mail!' He said, 'I never heard about it,' and he hung up on me. If we'd had a crime and corruption commission, he would not have had to fight that fight, and I would not have been charged. The police had me up on two charges—the corrupt police. I wouldn't have had to go through that trauma if we'd had the means to do something about it, which we did not have in Queensland and which is being put in place here today.

There's just one other aspect of this that I would like to bring to the attention of the parliament. In Queensland, they have a criminal justice commission. They change the name fairly regularly, but the last time I looked it was called the Criminal Justice Commission, and it's a body similar to what we're setting up here. It was felt that that was inadequate, so they added an integrity commissioner as well. Now, in Queensland there were 17 applications for development, and nothing had happened with them. The front of the Sunday Mail, the second-highest circulation newspaper in Australia, had allegations that the minute a certain person left the ALP's set-up in the government of Queensland to become a lobbyist, all 17 of these proposals went through in the space of 13 months.

The Queensland Integrity Commissioner was looking at this and got a very intimidating letter from the Premier of Queensland asking about her travel, and the Integrity Commissioner—it was quite excellent, what she did—immediately gave to the Criminal Justice Commission the letter from the Premier, which a lot of people would believe was intimidating. So then what happened was the Premier raided the Integrity Commissioner's office, took the computer which had all the information on what was going on—there was no-one in the office at the time—and sacked the entire staff of the Integrity Commissioner in Queensland. The Integrity Commissioner's contract was up a few weeks after that, so needless to say her commission was not renewed.

So how effective was the CJC? Utterly ineffective. How effective was the Integrity Commissioner? Utterly ineffective. But I would still contend that if we'd had what is being proposed by the honourable member here today, we would not have had 42 murders— (Time expired)

11:02 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

These amendments that the member for Indi has put forward deal with budget matters, and I again thank the member for Indi for her amendments and for her constructive engagement on this legislation. The government has committed substantial funding of $262 million over four years for the establishment and ongoing operation of the commission. The Parliamentary Joint Committee on the National Anti-Corruption Commission will have the function of reviewing the commission's budget and finances and reporting to the parliament on whether the commission's resources are sufficient to effectively perform its functions and whether the budget should be increased. The parliamentary joint committee will be able to review the commission's budget at any time, and the commission will be subject to the usual budget estimates process three times each year. The parliamentary joint committee will also be able to request advice from the commission on its budget requirements for future years.

These arrangements will provide robust, powerful parliamentary oversight of the commission's budget. At some point you have to rely on the ability of the processes of this parliament, like establishing parliamentary oversight committees and having Senate estimates, and the effect that those processes can potentially have to impose political pressure by bringing this to public attention. The government's view is that the further amendments that the member for Indi is proposing would not meaningfully enhance the committee's role, and it doesn't support these amendments.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that amendments (8) and (9), moved by the member for Indi, be disagreed to.

11:12 am

Photo of Helen HainesHelen Haines (Indi, Independent) Share this | | Hansard source

Many people in this place might be relieved to know that, depending on what happens in the Senate, these could be my final words on the National Anti-Corruption Commission.

Hon. Members:

Honourable members interjecting

Photo of Helen HainesHelen Haines (Indi, Independent) Share this | | Hansard source

I know, I know! I hope I'll be back by popular demand, with some fantastic amendments coming through from the Senate! I move amendment (10) as circulated in my name:

(10) Clause 178, page 146 (after line 17), after subclause (2), insert:

(2A) The decision to approve or reject a proposed recommendation is to be determined by a majority of all of the members of the Committee for the time being holding office. The majority must include:

(a) at least 2 Government members; and

(b) at least 2 non-Government members.

This is a very important amendment because it speaks to independence again—the separation of the National Anti-Corruption Commission from the executive arm of government in a way that brings full transparency and accountability to this incredibly important legislation. The independence of this Anti-Corruption Commission from the executive is fundamental to the functioning of this body. It's crucial. This is a powerful body, and it must be seen to be a powerful body, and it must be seen in every way to be independent from the executive of the government.

This amendment will strengthen the all-important parliamentary oversight committee's role in keeping the NACC independent. This amendment requires that a majority of the parliamentary joint committee, when considering whether to approve or reject the appointment of a commissioner, a deputy commissioner or an inspector, must include at least two non-government members. The amendment will ensure that decision to approve or reject recommendations for the incredibly important appointment of the commissioner—the appointment of the commissioner is a make or break deal. We must make sure that it has the support of the whole parliament. So this amendment will ensure that that decision to approve or reject the recommendations for the appointment of the commissioner, deputy commissioner or inspector is a true consensus decision of this oversight committee, and not a government fait accompli.

This amendment adopts the appointment clause from my own bill, the Australian Federal Integrity Commission Bill, and I believe it's a very fair amendment. It ensures that the appointment decision has multipartisan support. It prevents the government appointing the commissioner, deputy commissioner or inspector when the proposal is only supported by the government. It ensures that when that crucial decision is made that at least two non-government members form part of the majority in approving that decision. I think it's a very important amendment.

I've considered the other proposals to amend this clause, including from the opposition—I had a very fruitful conversation with the shadow Attorney-General, and I thank him for that—and I believe the coalition also wish to see that we make sure this joint oversight committee has the capacity to keep the independence of this appointment of the commissioner and get a consensus appointment.

Ultimately, though, I've determined that my approach is the one that strikes the right balance between independence and a functioning body, and avoids unacceptable deadlocks in the appointment of the commissioner. I know my crossbench colleagues have some other remedies to this issue as well because it is so important. So I do ask the parliament to think about this very carefully. Understand, if you're on the government side, you won't always be in government. I know that's a shocking thought for you! Likewise, on this side, you were in government last time. Who knows when you will be again? For us here in the middle, we work with whoever's in this place—by golly, we do, don't we? And we're here to make amendments to legislation, every time in good faith. So colleagues I say to you today: look at this amendment; don't just follow along what your party tells you to do. Think like an Independent and pass this amendment!

11:17 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Indi for her amendment and for her constructive engagement throughout on this legislation, including long debate and, most recently, participation as deputy chair of the joint select committee of both houses of this parliament considering this legislation.

The appointments of the commissioner, the deputy commissioners and the inspector will be subject to approval by the parliamentary joint committee following a recommendation by the Attorney-General. The bill provides for multipartisan representation on the committee and ensures that the commission, including its key office holders have the confidence of the parliament. It is the government's intention and sincere hope that appointments to this commission will receive multipartisan support. Broad parliamentary support for appointments will be integral to the commission's credibility—a bit like broad parliamentary support for this legislation, which is also very important. Proposed recommendations for appointments will be subject to transparent and merit based processes and statutory eligibility criteria. This will ensure that appointments are subject to appropriate oversight and the recommended candidates for these very important roles have the confidence of the parliament. It's the government's view that a simple majority is sufficient to achieve this.

This parliament works by majority vote. It does not work by giving a veto power to some sections of either house. The bill already includes appropriate safeguards in the appointment process, including by ensuring that a decision is made within a required time frame, generally 14 days, so there can be no unnecessary delay. It's appropriate that the government of the day, which has responsibility for government decisions regarding the commission, such as funding, hold the role of the chair and have the casting vote. For that reason, the government will be opposing this amendment.

11:19 am

Photo of Bob KatterBob Katter (Kennedy, Katter's Australian Party) Share this | | Hansard source

This will be the last comment I make upon this. I was just reflecting upon the fact that Peter Costello, who for a large number of years was the Treasurer in this place and the Deputy Leader of the Liberal Party, had a great-great-grandfather who was the Mayor of North Melbourne. He was jailed, and it was simply nothing more than bitter, brutal infighting inside the labour party. It was nothing except internal fights within the labour party, and he went to jail. That was the great-great-grandfather of Peter Costello. John Maitland, the head of my union, the CFMEU, and one of the great industrial leaders of this nation in recent years, went to jail for two years—again, just an internal fight within the Labor Party, and he got caught in the crossfire. I think probably the most telling case was that of Graham Richardson. I did disclosures in this place, and the information I disclosed was given to me by two Labor members of parliament. So, again, people are going to jail and being destroyed as a result of political machinations.

I think the thing where the member for Indi's proposals bite deepest—and I will conclude on this note—is that, when I realised that the police were going to put me in jail, I rang up Premier Bjelke-Petersen, who I enjoyed a very close relationship with.

Hon. Members:

Honourable members interjecting

Photo of Bob KatterBob Katter (Kennedy, Katter's Australian Party) Share this | | Hansard source

No, just listen. No, you know what you see in the media. You don't know what really happened. He hyperventilated in fear on the telephone, and I thought, 'If the Premier is terrified of this mob, where does that leave me?' Well, we didn't have a weapon to fight with. Even though we were a powerful, centralised government, under considerable brutality, we had no weapon to fight these people with. Here was the leader. He was scared, and my reaction was, 'If he's scared, what the hell is going to happen to me?' So I've just given case after case after case emphasising the necessity, for which I think the member for Indi will probably be pretty famous for the rest of her life.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that amendment (10), moved by the member for Indi, be disagreed to.

11:31 am

Dai Le (Fowler, Independent) Share this | | Hansard source

by leave—I move amendments (1) to (3), as circulated in my name, together:

(1) Clause 63, page 64 (line 10), at the end of subclause (4), add:

; and (c) include contact details for translator services.

(2) Page 65 (after line 19), after clause 66, insert:

66A Services that must be provided to persons appearing at hearings

(1) The Commissioner must cause the following to be provided to a person who appears at a hearing:

(a) appropriate translation services during the hearing;

(b) mental health counselling and support services, provided by an appropriately qualified social support worker or health care professional (the treatment provider).

(2) If, under paragraph (1)(b), a person is provided with a counselling or support service by a treatment provider, neither the person nor the treatment provider is required to do anything under this Act that would disclose any statement made or any information given as part of the counselling or support service.

(3) Clause 73, page 68 (line 30), at the end of subclause (3), add:

; (f) whether a person giving evidence has a reasonable level of English language proficiency;

(g) the need for cultural sensitivity if the person giving evidence is from a non-English speaking background.

I know I'm constantly harping on about multicultural Australia, since being elected. In my electorate of Fowler, 70 per cent of our population was born overseas and speaks English as a second language, and, therefore, on every decision we make in this House, I have to take into consideration that which actually goes to my community.

First of all, I applaud the government for taking the necessary steps to end corruption and prevent future corruption. It is important to also note the tireless advocacy of crossbench members who have come before me, like the former member for Indi, Cathy McGowan, and those in other places. It is important to also give recognition to my colleague the current member for Indi, Dr Helen Haines. She has been a passionate driver of this bill. She holds herself to the highest standards not only in this House but in her community every day. She is a prime example of what it means to lead with integrity and transparency.

The amendments I have risen to move will do the following: increase cooperation between the commission and individuals of multicultural backgrounds; and assist those with language barriers to be fully understood and also to clearly communicate with the commission. Amendment (1) will ensure translation and interpretation services are available to Australians who require them. It means the commission will need to provide contact details for translator services in a situation where there is a language barrier. This amendment will ensure that is followed through to summons and the commission's investigative processes. Amendments (2) and (3) will ensure the commission will provide individuals with appropriate mental health resources and support through the commission process. Being called in front of an integrity commission can be daunting, can be shocking and can lead to suicide—and it has led to suicides. I want to ensure that, when the commission is established, investigating corruption is not at the cost of life, especially a life who was not corrupt or may have never been found corrupt.

I thank the government for making a note in the explanatory memorandum and for suggesting it will make sure the commission considers this important point in my amendments, but frankly I don't think that's enough. I understand the government believes all Commonwealth agencies should act with the highest standards and provide basic services like mental health support. But a suggestion is just that—a suggestion. It is not a mandate and it is not safeguarding the wellbeing of Australians or any individual that will appear before the commission.

I made my arguments for these amendments clear in my speech on the second reading debate of the bill, and I stand by those arguments. English is my second language. I learnt it, I grew up here, and I know how daunting it is when you get up in front of any authority, even for myself at times. So I thank the opposition for their support and those on the crossbench who will support and protect Australians, especially those of culturally and linguistically diverse backgrounds and, in fact, all communities across Australia.

11:35 am

Kylea Tink (North Sydney, Independent) Share this | | Hansard source

I want to thank the member for Fowler for moving these amendments. I think one of the things that is true of our society at the moment is that we are at a tipping point. We are going through a massive cultural change as a nation. While we proudly herald ourselves as an example of one of the strongest multinational countries in the world, all too frequently we still tend to lean towards one part of our history.

I think that what the member for Fowler has done here is provide us as a parliament with an opportunity to recognise that we need to shepherd our parliament through this cultural change. To her point, putting instructions such as these into notes in a memorandum is not strong enough in this case. In my seat of North Sydney, nearly 50 per cent of the community were not born in Australia or have a parent who was not born in Australia. Thirty per cent of my community speak a language other than English at home. I believe it is essential, as we start to develop processes and procedures like this, that we are ensuring that they are not Anglo- and English-centric and that we are enabling our entire community to be protected and participatory in the process.

The other point that I would make, as this National Anti-Corruption Commission comes into existence, is that we are actually living in a time of unprecedented mental distress across our community. People are already experiencing high degrees of stress as a result of COVID lockdowns, global tensions and climate pressure. Again, I commend the member for Fowler for identifying that this is a good safety net to bring into this process. I know that much has been made in this chamber about the fear of what would happen for people being brought in front of it. I think that this is an infinitely practical suggestion in terms of amendments that would make this legislation stronger.

11:37 am

Allegra Spender (Wentworth, Independent) Share this | | Hansard source

I just want to briefly add my support for these amendments from the member for Fowler, and just reflect on what makes Australia great. I think one of its key elements is its wonderful multicultural society. I believe that we are the most successful multicultural society in the world. But, as the child of a migrant and a grandchild of migrants, I'm very aware of the barriers that language can have for people, particularly when dealing with authorities. My grandmother never learnt to speak English, and that can be quite typical of communities. It's absolutely critical for those people to make sure that, in the very intimidating circumstances of an ICAC—which I think would intimidate any member of this House, let alone members of the community—we put safeguards in place to ensure that they have the best access to justice and the best ability to protect themselves.

11:38 am

Photo of Bob KatterBob Katter (Kennedy, Katter's Australian Party) Share this | | Hansard source

Just briefly, I've spoken about what we used to call new Australians. I want to speak about older Australians. There are a number of First Australians communities in the Cape York and Gulf Country where they still speak, as their language, the original language of that country, and they will also greet these amendments very favourably.

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Fowler for her amendments, and if I could simply say to her that it is not harping to express concern for multicultural Australia, to express concern about the need for translation services and to express concern about the need for support services for anyone that has any kind of disability being required to participate in this commission's activities. It is the government's expectation that the commission would make available appropriate translation, mental health and other support services to persons who require assistance to participate in a hearing.

As the member for Fowler has noted, updates to the explanatory memorandum will ensure the commissioner must consider permitting a person to disclose information to obtain assistance, including from an interpreter, to enable a person to engage fairly with the commission's processes. More broadly, it is my strong expectation that the commission will put in place procedures to ensure that a person has access to an interpreter or a sign language interpreter where required. This would be consistent with the approach that's taken by federal courts and by federal tribunals, as well as other Commonwealth agencies with hearing and examination powers. It will be managed as part of the commission's operating procedures.

Clause 73(3) of the bill sets out a range of factors that the commissioner may have regard to when deciding to hold a hearing or part of a hearing in public. This will include consideration of any unfair prejudice to a person's reputation, privacy, safety or wellbeing that would be likely to be caused if a hearing were held in public. The factors also include whether a person giving evidence has a particular vulnerability. The commissioner will be able to consider factors beyond these matters, as the list of factors at clause 73(3) is not intended to be exhaustive.

The government agrees that it is important for those participating in the commission's processes to be able to access appropriate mental healthcare assistance. We have introduced amendments responding to the recommendation of the joint select committee that would expressly permit such disclosures. The government does not support this amendment.

11:41 am

Photo of Helen HainesHelen Haines (Indi, Independent) Share this | | Hansard source

I applaud what the member for Fowler has put to us today with regard to her very deep and legitimate concerns for protections for people of non-English speaking backgrounds. I do have a problem though with the third amendment around the threshold for public hearings. I say to the member for Fowler that while I absolutely agree that all consideration must be given to ensure that people from non-English speaking backgrounds have every support enabled to them, I would agree with the Attorney-General on this point that the threshold for public hearings does allow for the commissioner to make special consideration of a person who may fall into this category. I would just like to put that on the record.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that amendments (1) to (3) moved by the member for Fowler be disagreed to.

11:51 am

Dai Le (Fowler, Independent) Share this | | Hansard source

by leave—I move amendments (4) and (5) as circulated in my name together:

(4) Clause 73, page 69 (line 10), at the end of subclause (5), add:

; (c) the context in which the witness is appearing at the hearing;

(d) the need for the public not to scrutinise a witness before the corruption investigation has been completed.

(5) Clause 95, page 82 (lines 9 and 10), omit subclause (2), substitute:

(2) The notation must permit disclosure of information to:

(a) the spouse of the recipient of the notice to produce or private hearings summons (unless the spouse is a subject of the corruption investigation in relation to which the notice or summons is given); and

(b) any mental health professional who is providing mental health care to the recipient of the notice to produce or private hearings summons.

My fourth amendment will seek to ensure that, when the commissioner plans to make a public statement about an investigation, they must consider the need to, firstly, provide the context in which a witness is called; and, secondly, provide support against the onslaught of public scrutiny that may arise throughout the investigation. The fifth amendment aims to sure that those who are facing an inquiry will be able to at least share the fact that they have been summoned with their spouse, unless the spouse is also under investigation, to alleviate pressures and provide support during a time that is no doubt stressful and, in some cultures, tremendously humiliating. These amendments tie in with amendments (1) to (3) to ensure that individuals who are called in to an inquiry will have the support they need, especially those from non-English-speaking backgrounds.

May I remind this House that one of our democratic cornerstones is the fact that people are innocent until found guilty. As I'm sure many in this House know, the 24/7 news cycle and social media can be the harshest of judges. They can be damaging to your reputation and mental health. Mental health awareness in Australia has been growing, particularly in the last few years due to COVID. However, for many CALD communities, mental health is often misunderstood and misrepresented due to language barriers. In my own language, the Vietnamese language, the direct translation of 'depression' is either 'mad' or 'sad'; there is not a word in the Vietnamese language that can properly convey the depths of despair one might feel if they were to go through a bad mental health spiral. For anyone caught in front of an inquiry, it's surely intimidating, but if English is not your first language—

Hon. Members:

Honourable members interjecting

Photo of Mike FreelanderMike Freelander (Macarthur, Australian Labor Party) Share this | | Hansard source

Order! The member is entitled to be heard in silence.

Dai Le (Fowler, Independent) Share this | | Hansard source

If English is not your first language and if your own experience with authorities has been in your home country with less democratic procedures, it would be terrifying.

Such was the case for the deputy general manager of the company Wu International, who took his own life after being called as a witness for a New South Wales ICAC investigation. While he was named in the media, I have chosen to be respectful and not name him again, due to cultural sensitivity. In his suicide note to his wife and daughter he wrote that having ICAC officers fronting up at his doorstep to serve the summons reminded him of his father back in China when the CCP officers turned up at their home to arrest him. He was also informed by ICAC not to share that he had been summoned with any individuals, including family members. Yesterday I read an excerpt of his suicide note reported into the Sydney Morning Herald and today I will read another:

I have decided to leave this world, which is also my last hardest attempt to prevent you and our daughter from becoming family members of a criminal; this is because I am still innocent at the time I wrote this letter

he wrote in his suicide note, which was translated into English.

Whether it is a private or a public hearing, it is clear that these investigations take a toll on an individual, especially if they're called as a witness and have not been found guilty yet. It takes a mental toll, even if they are called simply as a witness. Corrupt conduct must always be investigated, and perpetrators must always be held accountable. But this should not be at the expense of someone taking their own life. In the case I've just painted, had the director known he wasn't alone, had he known he didn't have to shoulder the burden alone and that he could have spoken to his wife and another mental health professional, then maybe he would still be alive today. Maybe his daughter would not be growing up without a father.

It is our responsibility as lawmakers to ensure that legislation doesn't have adverse impacts on individuals and communities. It's my hope that this these amendments will protect those who may be called into a public or private hearing to provide an honest account without being unjustly scrutinised by the media and overall by the public. After all, we live in a democracy, and we have the right to have a fair trial before proven guilty. Thank you.

11:56 am

Photo of Julian LeeserJulian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | | Hansard source

The coalition supports the amendments moved by the member for Fowler. Being called before the National Anti-Corruption Commission would be a very stressful process for individuals. I think, in the public mind, many people think that this commission will be dealing only with members of parliament. The truth is that it will be dealing with a very wide range of Australians. For anybody, being summonsed for questioning is an extremely stressful occasion.

I note the good work of the joint committee on this point, extending the range of people you can consult to include psychologists and medical professionals. I think what the member for Fowler has done here in making it broader, to include any mental health professional, is a good thing, given the availability of psychologists in various parts of Australia; there is a real shortage. Many people who are feeling distraught would want to call an organisation like Lifeline or see a counsellor, and people should be able to do that. It's also particularly oppressive where you have a family member who is not the subject of an investigation and you can't even talk to them about this.

In the context of thinking about the corruption commission and preparing the coalition's position on this I met with people who'd been bereaved by suicide as a result of having family members appear before the commission. I heard stories of people who were not able to tell their family member when they needed to travel interstate to appear before a corruption commission that they had to appear before the commission, for fear of breaching these gag orders. I think these gag orders that have existed at places and the potential for a gag order of this sort to exist at the federal level is oppressive to people. I commend the member for Fowler for these very good amendments, which the coalition supports.

11:58 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Fowler for her amendments. Just to deal with the existing provisions of the bill: where the commissioner holds a public hearing, the bill already provides that the commissioner will be able to make a statement about the circumstances and capacity in which a witness is giving evidence if the commissioner thinks it's appropriate to do so. This is an important reputational safeguard and would, for example, enable the commissioner to make a statement that a witness is appearing voluntarily and is not the subject of the corruption investigation—in other words, that a witness before the commission is just a witness of fact, that the witness is not being investigated. Clear statements from the commissioner is what we have in mind.

The commissioner could also make other public statements to avoid undue reputational damage. An example would be a statement that the investigation is not yet complete or, for example, making a statement that no finding of corruption has been made against a particular person. All of this will appropriately be left to the discretion of the commissioner and, in the view of the government, does not need to be specified in the legislation.

On the other matter that's raised by the member for Fowler's amendment, the bill already provides for the commissioner to include nondisclosure notations in a notice to produce information or a private hearing summons in certain circumstances, such as where not doing so might prejudice a person's safety or reputation or a fair trial. The notation may specify circumstances in which the disclosure of information is permitted. This would allow the commissioner to permit a person to disclose information about their participation in a corruption investigation to a spouse or a family member in appropriate circumstances. This will be appropriately left to the discretion of the commissioner and does not need to be specified in the legislation.

On the matter of disclosure to mental health professionals, the government does recognise the importance of ensuring appropriate safeguards are in place to protect the mental health and wellbeing of those who are the subject of, or otherwise involved in, corruption investigations. This includes ensuring that persons in that category are able to access support from a medical practitioner or psychologist or psychiatrist. The government has moved amendments to ensure that, where a person is issued a notice to produce or a summons with a nondisclosure notation, the person will be able to disclose information that's covered by the notation to a medical practitioner or a psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling, including psychological counselling. The government does not support this amendment.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that amendments (4) and (5) moved by the member for Fowler be disagreed.

12:10 pm

Dai Le (Fowler, Independent) Share this | | Hansard source

() (): I would like to thank the Attorney-General for his comments and for making clear the government's position. I am disappointed and, as I said—

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The member will resume her seat. The time for the debate for your amendments has concluded.

Photo of Zali SteggallZali Steggall (Warringah, Independent) Share this | | Hansard source

by leave—I move amendments (3), (4), (5), (6) and (7) as circulated in my name together.

(3) Clause 74, page 69 (lines 16 and 17), omit subparagraph (b)(ii).

(4) Page 69 (after line 21), after clause 74, insert:

74A Evidence involving legal professional privilege

The Commissioner may determine that evidence is to be given in private if giving the evidence would disclose a communication that is protected against disclosure by legal professional privilege.

(5) Clause 149, page 122 (after line 6), after subclause (1), insert:

(1A) The investigation report must be completed and tabled in each House of the Parliament as soon as practicable, and in any event within 12 months, after:

(a) if any public hearings are held in the course of the corruption investigation—the conclusion of the last public hearing that is held; or

(b) otherwise—the conclusion of the last hearing that is held in the course of the corruption investigation.

(6) Clause 155, page 128 (lines 5 to 7), omit all the words from and including "must" to the end of the clause, substitute:

must, within 14 days after receiving the report:

(c) table the report in each House of the Parliament; or

(d) if a House is not sitting—present the report to the Presiding Officer of that House for circulation to the members of that House.

(7) Clause 157, page 128 (line 32), omit "a reasonable opportunity", substitute "the period of 3 months, or such longer period as is determined by the Commissioner,".

Amendment (5) relates to setting a deadline for the tabling of reports from inquiries. Section 149 of the bill requires a commissioner to prepare a report on an investigation, and section 154 requires him or her to give a report to certain persons but provides no time frame in which that report should be provided. Parties subject to an investigation should have certainty around when a report will be released. This is so we don't have a situation such as the current one in New South Wales with the investigation into Gladys Berejiklian, where the report's release keeps getting delayed with no clear explanation, creating uncertainty for all sides. My proposal is that the report should be tabled within a year of the completion of public hearings or, where public hearings were not held, within a year of the last private hearing. This amendment will also require the tabling of reports to parliament to improve the transparency and accountability of the commission.

Amendments (6) and (7) set a deadline for the opportunity to respond to findings. Section 157 of the bill provides for the opportunity for any persons who have an adverse finding against them in a report to have a reasonable opportunity to respond. I believe this should be replaced with a fixed time frame in which to respond. The amendment proposes changing a reasonable opportunity to three months or such longer period as determined by the commissioner. Again, it is all about trying to provide a timeliness framework to investigations and reporting so that we don't have parties with deep pockets and an ability to bring on successive challenges in the legal sense that would delay the provision of reports. It is also because it can be politicised—we know this—and reports left without a specific time frame means they can be delayed purposefully or from an unintended consequence relating to when elections and other issues might be arising.

Amendments (3) and (4) relate to changing the threshold for the use of legal professional privilege so it cannot be so easily abused to avoid public hearings. The commissioner should have discretion in deciding whether or not to hear private evidence that may disclose legal advice or a communication protected by legal professional privilege. I agree with the Centre for Public Integrity to make this mandatory. The current legislation says it 'must be private in all circumstances', so to make it mandatory would be to leave it open to well-funded litigants to exploit this right, with the effect of delaying or disrupting the commission's work.

Historically, this has been shown. The New South Wales ICAC has been able to call legal representatives to the stand, which was critical to the success of the Eddie Obeid case. At a critical moment, an Obeid solicitor was able to be put on the stand to say that the Obeids had instructed them to do something quickly before it became public knowledge. Now, this was a crucial element to proving that the Obeids were acting on private government knowledge prior to the public release of the information. Corruption is usually carefully planned. Lawyers and accountants are engaged early in the act of corruption to develop the plan and approach. Accountancy firms usually have legally trained people to assist them with the establishment of legal professional privilege at an early stage. I strongly support legal professional privilege. I know it is an important cornerstone of the profession, but it is open to abuse. To get behind this and expose the corruption, you need to abrogate legal professional privilege. The New South Wales ICAC does so. This amendment simply says that the commission should maintain that discretion. It should not be a compulsory private hearing.

If the bill proceeds as it is, everybody except the witness would be sent out of the room during the private hearing and the evidence would be denied to the media and the public. So there would not be that accountability and transparency which I think is so central to a strong National Anti-Corruption Commission.

12:15 pm

Max Chandler-Mather (Griffith, Australian Greens) Share this | | Hansard source

The Greens will be opposing these amendments. While we appreciate the intention of amendment (5), we're concerned that, as currently drafted, it may unnecessarily constrain the commission on longer-running investigations. We would support an alternative to this, requiring that an update to the investigations be provided.

Likewise, we recognise that amendment (7) changes the period that must be given to an agency to respond before a critical finding is made against them from a 'reasonable opportunity' to three months, or a longer period, as determined by the commissioner. We appreciate what is being tried to be achieved here, but the existing drafting actually does provide a reasonable opportunity and is specific enough.

12:16 pm

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Warringah for her amendments and for her engagement on this legislation. The government amendments to clause 74 substantially address the member's concerns about legal professional privilege. The government's amendment will ensure that the requirement for evidence to be given in private does not apply to legal advice where privilege has been waived, for example, by the Commonwealth or a witness in the interests of transparency, or if the advice is not privileged, for example, because the advice was provided in furtherance of any legal or improper purpose. Where evidence properly attracts legal professional privilege and the privilege has not been waived, it is appropriate that the privilege be maintained. Any further amendments to this clause are unnecessary.

On the question of a deadline for the completion of investigation reports, the government does expect the commission to conduct investigations and finalise its reports in a timely manner. This is already reflected directly and expressly in the objects of the legislation, which include facilitating timely investigations. It would be inappropriate to require the commissioner to finalise an investigation within arbitrary time limits. It will be a matter for the commissioner to determine when an investigation is completed and when the subsequent report is to be prepared.

On the requirements for tabling of investigation reports, where a public hearing has been held during the course of the investigation, reports will be required to be tabled in each House of parliament within 15 sitting days after it is received. This will allow the government sufficient time to consider the report and any findings and recommendations. The commissioner will also be able to publish reports at any time when satisfied that it is in the public interest to do so.

Finally, in relation to the procedural fairness aspect of the amendments moved by the member for Warringah, the commissioner will be required to provide procedural fairness by ensuring that those who are the subject of a critical finding, opinion or recommendation in a report are offered an opportunity to respond. This will ensure procedural fairness for persons and agencies who are investigated by the commission.

It's appropriate that the commissioner determines what time period constitutes a 'reasonable opportunity' to respond, given that this will vary, depending on the circumstances. For example, a reasonable opportunity to comment on a single adverse opinion in a very short report will be different to what a reasonable opportunity would be in a case that involved a lengthy report and multiple interconnected adverse findings. The government does not support these amendments.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that amendments (3) to (7) moved together by the member for Warringah be disagreed to.

12:27 pm

Allegra Spender (Wentworth, Independent) Share this | | Hansard source

I move amendment (1) circulated in my name:

(1) Clause 178, page 146 (after line 17), after subclause (2), insert:

(2A) If the proposed recommendation is for the appointment of the Commissioner or a Deputy Commissioner, or the Inspector:

(a) the decision to approve or reject the recommendation is to be determined by a majority of all of the members of the Committee; and

(b) despite paragraph 173(5)(b), if the votes are equal, the Chair of the Committee does not have a casting vote.

Many of my colleagues have spoken in this debate about the loss of public trust in this place, and they have spoken about the corrosive impact that lack of integrity, accountability and transparency has had on our democracy. The National Anti-Corruption Commission is a crucial first step in re-invigorating our democracy and beginning to restore that trust. That's why I'm proud to support this bill and why I'm proud of the contribution of communities like mine in making this reform a reality. This is a good bill, but it is not perfect.

Members on all sides have spoken about the importance of the NACC's independence and particularly the independence of the commissioner, deputy commissioner and inspectors who will each play a crucial role in rooting out corruption in public life. Their independence is crucial. But, as currently drafted, it is possible that appointments to all these positions could be politicised. This is because the government of the day will always have the majority on the parliamentary committee that oversees and confirms these appointments. Even if an appointment is opposed by all non-government members of the committee, it could be waved through regardless. This is not independence.

When the Australian public voted in May for more integrity in politics, they did not vote for a captain's pick for the role of the NACC commissioner, but that is what this legislation currently provides for. And when people tell me that this kind of politicisation won't happen with the NACC, that this time it's different, I'm afraid my community wants more than verbal reassurance.

I acknowledge the earlier words of the Attorney-General in relation to an amendment similar to this moved by the member for Indi. In that speech he noted that the parliament 'operates by a majority vote'. That is obviously how the parliament works; however, I also note that you have acknowledged and criticised the politicisation of key appointments made in this parliament by governments in the past. Twenty per cent of the AAT's 320 tribunal members have a direct political connection to the government that appointed them. Half the Productivity Commission's board members have a political connection to the coalition, and members on both sides of the House have called out the Fair Work Commission for being stacked in favour of one party or the other. We had verbal reassurances that all these bodies would be independent from government, but that is clearly not the case. It is clear that no-one can guarantee that the government of the day won't put the interests of the party ahead of the interests of the country.

Politicisation damages public institutions and our democracy, and we cannot afford to undermine the NACC. My amendment addresses the risk of such politicisation without affecting the government's control over the parliamentary committee's other functions. It prevents the committee's chair from having the casting vote when it comes to appointing the commissioner, deputy commissioner or inspector. That means the majority of all committee members would be required to approve these appointments, including at least one crossbench or opposition member. My amendment will ensure that the people chosen for these critical roles enjoy multipartisan support and that they are truly independent from government. It is a commonsense way to ensure this commission delivers what the public expects. I call on the government to support it.

12:31 pm

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Wentworth for her amendment. Perhaps by way of comment on what she has said about the nature of these very important positions under the National Anti-Corruption Commission Bill, namely the positions of the commissioner, the deputy commissioners and the inspector: the independence of these officeholders is guaranteed by the provisions of this bill, which provides powers for the commissioner and other officeholders. It gives the commissioner and other officeholders clear duties. It directly describes the way in which those powers are to be exercised and makes it absolutely clear that those powers are theirs and theirs alone.

As to the parliamentary approval process for the appointment of these officeholders, which is what the amendment goes to: the government has provided for multipartisan representation on the parliamentary joint committee on the National Anti-Corruption Commission. There is an unusual membership for this parliamentary joint committee. It is to have 12 members—six senators and six members of the House of Representatives. Of those 12 members, there are to be six government members, four opposition members and two crossbench members, and, as the bill provides, there will be a casting vote which will belong to the government chair. Of course, the government intends and hopes that the appointments to this commission receive multipartisan support. As I said earlier in this debate, broad parliamentary support for appointments will be important for the commission's credibility.

The proposed recommendations for appointments to these important positions will be subject to transparent and merit based processes and statutory eligibility criteria. It's the government's view that this will ensure that appointments are subject to appropriate oversight and that the recommended candidates for these roles will have the confidence of the parliament. It's appropriate that the government of the day, which has responsibility for government decisions regarding the commission such as funding, hold the role of chair and have the casting vote. The government does not support an amendment which would in essence give a veto to non-government members of both houses of parliament.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that the amendment moved by the member for Wentworth in her name be disagreed to.

12:44 pm

Photo of Rebekha SharkieRebekha Sharkie (Mayo, Centre Alliance) Share this | | Hansard source

by leave—I move amendments (1) and (2) as circulated in my name together.

(1) Clause 278, page 219 (after line 8), after subclause (1), insert:

(1A) Without limiting subsection (1), the review must consider and report on the following:

(a) the role of the NACC;

(b) oversight of the NACC;

(c) the use and conduct of hearings;

(d) emerging best practice.

(2) Clause 278, page 219 (lines 27 to 29), omit subclause (6), substitute:

(6) The Minister must, as soon as practicable, and in any event within 14 business days, after receiving a copy of the report of the review, cause a copy of the report to be:

(a) laid before each House of the Parliament; or

(b) if a House is not sitting—presented to the Presiding Officer of that House for circulation to the members of that House.

I won't detain the House long; we have been here all morning on this bill. I'll just speak very briefly to these two amendments.

The first really relates to the fact that I think it's important to provide as much clarity as possible with respect to what must be put into the review. I'm sure it is self-explanatory. You would expect these points—the role of the NACC, the oversight of the NACC, the use and conduct of hearings, and emerging best practice—to be in a review. But this is really to make sure that we don't assume that it is really quite plain and simple.

Amendment (2) is to ensure that the minister—whoever the minister of the day is, for many parliaments to come—does provide to the parliament in a very timely manner a copy of the report of the review. What we have seen in the past—perhaps not in this parliament but in the past in parliaments gone by—is that sometimes ministers of the day have held on to reviews for a very long period of time and perhaps also released them at times when the rest of Australia is not paying attention. So this is really just about timeliness and about some detail of what is in that review.

I would hope that the government would consider and support these two very simple amendments to provide some strength and some clarity.

12:47 pm

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Mayo for her amendments. The bill does require a mandatory statutory review of the NACC legislation to be undertaken after five years of operation by a person or persons whom the minister considers possesses appropriate qualifications to undertake the review. The review would consider all aspects of the operation of the legislation, including the role of the National Anti-Corruption Commission, oversight and the use of hearings. Given this broad scope is already provided for in the bill, it's not necessary to prescribe additional matters to be considered. The bill requires the review to be tabled as soon as possible after it is received by the minister. The government expects this would be done in a timely matter. The government does not support these amendments.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that amendments (1) and (2) moved by the honourable member for Mayo be disagreed to.

12:55 pm

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

I move the amendment circulated in my name:

(1) Clause 8, page 16 (after line 21), at the end of the clause, add:

Journalist activities

(14) To avoid doubt, conduct engaged in by a person who is an employee, contractor or agent of any Commonwealth agency (including the Australian Broadcasting Corporation and the Special Broadcasting Service Corporation) that is engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media does not constitute corrupt conduct if:

(a) the person engaged in the conduct in the person's capacity as:

(i) a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; or

(ii) a person engaged as part of the editorial staff for the business of reporting news, presenting current affairs or expressing editorial or other content in news media; or

(b) at the time of engaging in the conduct, the person:

(i) was a member of the administrative or production staff of the Commonwealth agency or of a contractor or agent of the Commonwealth agency; and

(ii) was acting under the direction of a journalist, editor or lawyer who was an employee, contractor or agent of the Commonwealth agency.

This amendment goes to the leaking of documents and the potential for journalists, particularly from the public broadcasters, to be penalised for receiving such documents, the fear of which, I believe, can thwart investigative journalism and, by extension, damage democracy.

In 2017, ABC reporters Dan Oakes and Sam Clark published a series of news items about allegations of unlawful killings by Australian special forces in Afghanistan. They were based on hundreds of pages of defence department documents which had been given to the reporters. Following their publication, Oakes and Clark were threatened with criminal prosecution, effectively for being in receipt of stolen property. Those charges hovered over the reporters for three years. Then, out of the blue and without warning, AFP officers raided the ABC's headquarters seeking to find the source of the documents. What is clear is that they wanted to find out who had been the whistleblower. As ABC managing director David Anderson said at the time:

This … raises legitimate concerns over freedom of the press and proper scrutiny of national security and defence matters.

ABC editorial director Craig McMurtrie declared the raid 'a very unwelcome and serious development'.

Now to the NACC legislation. I am pleased that the Attorney-General has seen fit to raise the bar on applications for warrants to raid media organisations and their journalists, by agreeing that they should be scrutinised by a supreme court judge rather than a member of the AAT. The Attorney-General has also enhanced the protections for both reporters and whistleblowers. But I remain concerned about the effect of the meaning of 'corrupt conduct', with a section on reporters employed or engaged by public broadcasters, who are Public Service employees and are therefore captured under this section of the bill.

As a former journalist, I would like to point out that investigative journalism is hard. There are roadblocks. There are obstructions, sometimes of a legal nature, and there is sometimes danger and risk to the safety of the reporters involved. Any further roadblocks that we put in place could potentially paralyse investigations that are much needed for the sake of our democracy and for the kind of transparency that the NACC is supposed to facilitate. Adding fear of prosecution makes these investigations even harder and will potentially dissuade journalists from putting in this work.

The risk of an investigation into the legitimate work of ABC and SBS journalists potentially undermines the statutory independence of the public broadcasters. It could also hobble investigative journalism and media freedom. The government suggests that this won't happen and that, in any event, it would be addressed in prospective amendments to other legislation, including the Public Interest Disclosure Act. Respectfully, to the Attorney-General, I don't think that leaving a known gap, assuming some future change will occur, is appropriate. Therefore, I urge the House to support my amendment, which would put beyond doubt the exclusion of the possibility of its application to ABC and SBS journalists' use of leaked information or documents received in the normal course of their work.

12:59 pm

Photo of Bob KatterBob Katter (Kennedy, Katter's Australian Party) Share this | | Hansard source

With so many of the cases that are being referred to here, I cannot help but give reality to what the honourable member is proposing. The reality comes from arguably the most courageous journalist I've seen in my lifetime, Steve Austin, who was with the ABC in Brisbane. He did the expose which was one of the major lightning rods for the inquiry in Queensland which overcame the problem of continual murders by a group of policemen in that state. Steve did a 'Crooked Creek Cattle Company' series—which was the most startling and remarkable thing I'd ever heard on radio—with enormous courage, because he knew the number of people that had been murdered already, the number that had been set up on charges and the number of journalists that had been sacked. Yet he had the courage to go on and do the job.

It's no secret that the centre of the corruption was a Detective Sergeant Murphy, who was running what they called 'the Joke' throughout Queensland, and he had a house at Hedges Avenue on the Gold Coast, which is the most expensive address in Australia. Steve had the camera there—this was the second thing that he did; and he called me in and showed me—and he interviewed him. Tony Murphy came out, and Steve said, 'Detective Sergeant Murphy, you have a house in the most expensive address in Australia and two top-of-the-range Mercedes-Benz in the garage. Could you explain how you do this on a take-home pay of 70 grand a year?' I said to Steve Austin, 'I'm not going near you. I'm going to get caught in a ricochet. You've got a life expectancy of days.'

The point I want to make, in backing up the honourable member for Goldstein on this amendment, is that he was ordered not to use that tape exposing Tony Murphy. The ABC boss in Melbourne told him that not only was he not to use it but he was to send the reels down to Melbourne. Now, to show you the extraordinary courage of this man, he did send the tapes down to Melbourne, but he put copied tapes that night on national television. Whilst it was posthumous assistance for the 42 that were dead—of those 42, there were 21 burnt to death at Whisky Au Go Go. They hadn't paid their protection money, so their nightclub was burnt to the ground. But someone had locked the exit doors from the outside, and the people couldn't get out and were incinerated to death. In retrospect, I believe that these terrible happenings could have been avoided if people like Steve Austin had been given much greater licence and power to do the job that they wanted to do. So I very, very strongly back the amendment moved by the honourable member for Goldstein.

1:03 pm

Kate Chaney (Curtin, Independent) Share this | | Hansard source

I rise to back this amendment. It's really vital that we have a frank and fearless media, and that's part of the work that we need to do to rebuild trust in government. The ABC and SBS are in a different position to other media outlets, in that they are both Commonwealth public servants and they are in the business of reporting the news and potentially exposing corruption. So I'm very supportive of this amendment.

I don't think it's the intention of the government or of the legislation to put those journalists in a difficult position. There is at the moment a risk that they could be investigated for corrupt conduct for receiving documents in the course of doing their job in reporting the news. This amendment addresses that, for clarity, to ensure that it can't be used for that unintended purpose. The fundamental aim of the legislation is to strengthen our institutions, and this amendment is consistent with doing that for the purpose of ensuring that the public can see what's going on in government.

1:04 pm

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Goldstein for her amendments and for her constructive engagement on this legislation. The bill contains safeguards to protect the identities of journalists' sources and uphold the public interest associated with a free press. Journalists and their employers would not be required to do anything under the bill that would disclose the identity of their source or enable that identity to be ascertained.

In addition, the government has put forward amendments to further strengthen this protection in response to the recommendations of the joint select committee reviewing these bills and the Parliamentary Joint Committee on Human Rights. The amendments broaden the safeguards for the protection of journalists in relation to search warrants issued under the National Anti-Corruption Commission Bill and extend protections for journalists' sources to persons assisting the journalist who are employed or engaged by the journalist's employer and persons assisting the journalist in a professional capacity, for example camera operators or administrative staff. The government does not support the proposed amendment.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is that the amendment moved in the name of the member for Goldstein be disagreed to.

1:12 pm

Photo of Julian LeeserJulian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | | Hansard source

by leave—I move opposition amendments (1) to (8), (10) to (17) and (19) to (34), as circulated in my name, together:

(1) Clause 4, page 3 (lines 22 and 23), omit ", or that could adversely affect,".

(2) Clause 7, page 10 (lines 21 to 24), omit the definition of official of a registered industrial organisation.

(3) Clause 8, page 14 (line 6), omit "or that could adversely affect,".

(4) Clause 9, page 16 (line 25), omit "conduct; or", substitute "conduct.".

(5) Clause 9, page 16 (line 26), omit paragraph (1)(c).

(6) Clause 12, page 24 (table item 2, column headed "Individual"), omit "(other than an official of a registered industrial organisation)".

(7) Clause 14, page 27 (lines 2 and 3), omit "(other than an official of a registered industrial organisation)".

(8) Page 45 (after line 10), at the end of Division 3, add:

39A Offence — vexatious referrals

A person commits an offence if:

(a) the person refers a corruption issue to the Commissioner; and

(b) the Commissioner does not reasonably suspect that the conduct to which the issue relates has been, or is being, engaged in; and

(c) there is no basis on which a reasonable person could suspect that the conduct to which the issue relates has been, or is being, engaged in; and

(d) the referral is made with the intention of causing a detriment to another person.

Penalty: Imprisonment for 12 months.

39B Offence — disclosure of referrals

A person commits an offence if:

(a) a corruption issue is referred to the Commissioner; and

(b) the person discloses to the public that the corruption issue has been referred to the Commissioner; and

(c) the disclosure is not authorised by or under this Act.

Penalty: Imprisonment for 12 months.

(10) Clause 40, page 46 (after line 6), at the end of the clause, add:

(2) However, if the corruption issue could, in the Commissioner's opinion, involve corrupt conduct that occurred before the commencement of section 8, the Commissioner may deal with the corruption issue only if the Commissioner is satisfied that it is in the public interest to do so.

(11) Clause 45, page 50 (line 16), omit "is satisfied", substitute "and a Deputy Commissioner are satisfied".

(12) Clause 45, page 50 (line 17), after "Commissioner", insert "and a Deputy Commissioner".

(13) Clause 45, page 50 (line 23), omit "and the Commissioner considers", substitute "and the Deputy Commissioner and the Commissioner and the Deputy Commissioner consider".

(14) Clause 45, page 51 (line 7), after "Commissioner", insert "and a Deputy Commissioner".

(15) Clause 73, page 68 (line 8), omit all the words from and including "decides" to the end of subclause (1), substitute "and a Deputy Commissioner decide that the hearing, or part of the hearing, is to be held in public".

(16) Clause 73, page 68 (lines 10 and 11), omit all the words from and including "may decide" to and including "Commissioner is", substitute "and a Deputy Commissioner may decide that a hearing, or part of a hearing, is to be held in public if the Commissioner and the Deputy Commissioner are".

(17) Clause 73, page 68 (lines 15 and 16), omit all the words from and including "to hold" to and including "the Commissioner", substitute "a hearing, or part of a hearing, is to be held in public, the Commissioner and a Deputy Commissioner".

(19) Clause 73, page 69 (line 2), after "Commissioner", insert "and a Deputy Commissioner".

(20) Clause 81, page 72 (line 29), before "A person", insert "(1)".

(21) Clause 81, page 73 (after line 8), at the end of the clause, add:

(2) Subparagraph (1)(b)(ii) does not apply if the person was not given a reasonable opportunity to answer the question.

(22) Clause 82, page 73 (lines 23 to 26), omit paragraph (b).

(23) Clause 95, page 82 (lines 9 and 10), omit subclause (2), substitute:

(2) The notation:

(a) must permit disclosure of information to:

(i) the spouse of the recipient of the notice to produce or private hearings summons (unless the spouse is a subject of the corruption investigation in relation to which the notice or summons is given); and

(ii) any mental health professional who is providing mental health care to the recipient of the notice to produce or private hearings summons; and

(b) may permit disclosure of information in other specified circumstances.

(24) Clause 98, page 84 (line 32) to page 85 (line 6), omit paragraph (3)(e), substitute:

(e) by a legal practitioner for the purpose of giving legal advice to, or making representations on behalf of, the person on whom the notice or summons was served; or

(25) Clause 113, page 98 (lines 3 to 6), omit subclause (1), substitute:

(1) If:

(a) a person is required, by a notice to produce or at a hearing, to give an answer or information, or to produce a document or thing; and

(b) all other coercive powers available to the Commissioner to obtain the information, document or thing have been exhausted;

the person is not excused from giving the answer or information, or producing the document or thing, on the ground that doing so would tend to incriminate the person or expose the person to a penalty.

(26) Clause 113, page 98 (lines 7 to 11), omit subclause (2), substitute:

(2) However:

(a) the answer or information given, or the document or thing produced; and

(b) any information, document or thing obtained as a direct consequence of the giving of the answer or information or the production of the document or thing;

is not admissible in evidence against the person in:

(c) a criminal proceeding; or

(d) a proceeding for the imposition or recovery of a penalty; or

(e) a confiscation proceeding.

(27) Clause 113, page 98 (lines 17 to 20), omit subparagraph (3)(b)(i).

(28) Clause 113, page 99 (lines 1 and 2), omit the note.

(29) Page 99 (after line 5), after clause 113, insert:

113A Legal professional privilege

This Act does not affect the law relating to legal professional privilege.

(30) Clause 114, page 99 (lines 11 to 13), omit paragraphs (1)(a) and (b).

(31) Clause 114, page 99 (line 17) to page 100 (line 2), omit subclauses (2) to (5).

(32) Clause 115, page 100 (lines 12 to 28), omit the clause.

(33) Clause 154, page 127 (after line 32), at the end of the clause, add:

(7) The Commissioner must give an investigation report, or a protected investigation report, to a person in accordance with this section no later than 12 months (or such longer period as a court allows) after the earlier of the following:

(a) the time when the corruption issue to which the report relates was referred to the Commissioner;

(b) the time when the Commissioner became aware of the corruption issue to which the report relates.

(34) Clause 178, page 146 (after line 17), after subclause (2), insert:

(2A) If the proposed recommendation is for the appointment of the Commissioner or the Inspector, the decision to approve the recommendation must be supported by at least a three-quarters majority of all of the members of the Committee.

(2B) Paragraph 173(5)(b) does not apply in relation to a vote on a decision to approve or reject a proposed recommendation.

The coalition amendments are designed to improve the integrity, safeguards and operation of the National Anti-Corruption Commission. The National Anti-Corruption Commission has a very broad scope. It applies to parliamentarians and their staff, every Canberra public servant, our Defence Force, the Australian Federal Police, our diplomats and embassies around the world, and every contractor and every subcontractor who engages with the Commonwealth. It applies to almost every person exercising power under a law of the Commonwealth: pharmacists, NDIS workers, aged-care workers and Indigenous rangers.

One of my colleagues—I think it was the member for Menzies—estimated that probably around one million Australians are brought within the reach of this commission. But there's one group of people who are specifically carved out of the application of the commission—that is, union officials exercising a power under a law of the Commonwealth. For two months, we've been asking the Labor Party for an explanation about this carve-out for union officials exercising a power under a law of the Commonwealth. It's not mentioned in the explanatory memorandum. When questioned at the joint committee, the Attorney-General's Department couldn't give a satisfactory answer on the reasons for the exemption. When asked on Insiders about the carve-out, the Attorney-General initially denied it and then justified it on other grounds. The Prime Minister gave two different answers about it on two consecutive days, and last night, a little after 9.30, we got another different answer from the Attorney-General. Regardless, the coalition still believes that these provisions have no place in this bill. Any integrity commission worthy of the name should not have a carve-out for the owners of the Australian Labor Party. Our amendments seek to remove this carve-out.

Many of our other amendments are based on recommendations of the Law Council of Australia and other legal bodies. The words of the South Australia Bar Association capture the spirit of our amendments:

Corruption is wrong, but in our zeal to see corrupt public officials dealt with appropriately, we must not discard the protections of the rights and liberties that are central to our legal system.

On public hearings, we believe the safeguards could be further strengthened by mandating the factors to be taken into account when determining whether to have a public hearing. Our amendments provide for a better way of enhancing public confidence in the decision to hold a public hearing by having the commissioner determine exceptional circumstances and weigh those public interest factors in conjunction with a deputy commissioner.

A similar process should also be utilised when the commissioner is investigating a matter that has already been considered by another Commonwealth integrity agency. Our amendments also seek to further clarify the definition of corruption by amending section 8(1)(a) to remove the vague and superfluous phrase 'or that could adversely affect', consistent with the Law Council's submission, given that 'conspiracy' is included in section 8(10). We also seek to delete section 9(1)(c), which defines a corruption issue in relation to something that someone will do in the future. A person cannot be investigated and punished for actions they have not taken.

On retrospective investigations, section 8(4) enables the commission to investigate conduct that occurred prior to the establishment of the NACC, with no time limit on how far back that action may have occurred. The Law Council suggested including an additional threshold that will allow the NACC to conduct investigations into past conduct only when there's an identifiable public interest in doing so, and our amendments give effect to this. Our amendments also adopt provisions from the coalition's Commonwealth Integrity Commission Bill to make it an offence to make vexatious referrals or to disclose that a person has been referred to the NACC.

On the issue of privileges, our amendments seek to give effect to the Law Council's recommendation. Because the privilege against self-incrimination is waived, material that is elicited by the Anti-Corruption Commission in a scenario under which a person doesn't have the rights they would usually have in a criminal investigation process must not then be used either directly or derivatively in a criminal process. There are also good public policy reasons that a person should be able to consult with their lawyer in confidence. Our amendments also clarify that the bill does not affect the law relating to legal professional privilege.

Our amendments also seek to apply time limits to investigations so that the commission is required to complete investigations within a definite period of 12 months. Those time limits could be extended by application to a court, but we need to see investigations not remaining open indefinitely, as they have done in some jurisdictions.

Finally, we believe the appointments of the commissioner and inspector must be above politics, and, to that end, we believe that their appointment should be subject to a supermajority of nine out of 12 members of the joint standing committee. This ensures that those who fulfil these significant roles have bipartisan support. This particular recommendation was canvassed in the work of the Joint Select Committee on National Anti-Corruption Commission Legislation, and I thank all members of the joint committee. In particular, I want to acknowledge Senator Scarr and the member for Menzies, who thought deeply about these issues, but I do thank all members, including the member for Indi and the many government members who participated in that joint committee. I commend these amendments to the House.

1:18 pm

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | | Hansard source

I thank the member for Berowra for the opposition's amendments. I've addressed the substance of all of those amendments during the course of the debate. The government does not support the proposed amendments.

Photo of Milton DickMilton Dick (Speaker) Share this | | Hansard source

The question is opposition amendments (1) to (8), (10) to (17) and (19) to (34) moved by the member for Berowra be disagreed to.

The House divided. [13:22]

(The Speaker—Hon. Milton Dick)

1:26 pm

Kylea Tink (North Sydney, Independent) Share this | | Hansard source

by leave—I move amendments (1) and (2) together:

(1) Clause 173, page 141 (lines 24 to 26), omit subclause (1), substitute:

(1) There must be a Chair of the Committee, who:

(a) must be elected by the members of the Committee from time to time; and

(b) must not be from a recognised political party that forms part of the Government.

(2) Clause 178, page 146 (after line 17), after subclause (2), insert:

(2A) The decision to approve a proposed recommendation must be supported by at least a two-thirds majority of all of the members of the Committee.

(2B) Paragraph 173(5)(b) does not apply in relation to a vote on a decision to approve or reject a proposed recommendation.

The reality is there will always be powerful interests seeking to persuade the government of the day to downgrade the effectiveness of the National Anti-Corruption Commission. We need to ensure that, as elected representatives, we have a mechanism to watch the watchdog. I believe there is an opportunity to do something truly unprecedented in this place through the establishment of an independent commission by appointing a majority of non-government members to the parliamentary joint committee overseeing the National Anti-Corruption Commission. Why? Because for an agency such as this to be beyond reproach it must stand for and hold itself accountable to that which is larger than the government of any day—that is, the entire parliament.

I would like to see the bill amended on two elements, both of which would strengthen the National Anti-Corruption Commission's independence from the government of the day. The first of these is an amendment to ensure the chair of the committee is a non-government member of parliament. The second is an amendment to ensure the approval of the appointments to the commission is subject to a special majority.

During this debate, I have been a fierce and consistent advocate for the establishment of a multipartisan, balanced parliamentary joint committee to perform the role of oversight of the National Anti-Corruption Commission. I commend the government for the inclusion of just such an independent committee in this bill. However, in its current form the committee's independence has been overly compromised. The requirement that the chair be a member of the government and for that chair to hold the casting vote over commission appointments is a serious limitation upon the committee's true independence.

I note in the joint select committee's advisory report that the evidence provided by a range of expert witnesses supported just such a proposal. Witnesses at the inquiry argued that appointments should be subject to a vote requiring a special majority or a majority including either at least one member of the opposition or both Independents. I also note the coalition committee members indicated a super majority vote in these circumstances would be a desirable bipartisan confidence in the positions of commissioner and inspector to make it essential.

Strengthening the commission's independence in this way would help limit any undue influence and ensure we are setting up an enduring legacy that will be in place long beyond any electoral cycle, both in the immediate future and over the longer term. If this government can bring itself to truly place faith in the institution it has helped create, then the departure from tradition is warranted and would be seen as a historic and courageous stance taken by a government which is prepared to lead, not control. I commend the amendments to the House.

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The question is that the amendments be disagreed to.

Question agreed to.

Bill, as amended, agreed to.