Monday, 9 September 2019
National Integrity Commission Bill 2018 (No. 2); Second Reading
I rise this morning to talk on the National Integrity Commission Bill 2018 (No. 2), a private senator's bill of the Australian Greens for establishing the National Integrity Commission. A private senator's bill moved by the Australian Greens to set up the National Integrity Commission should ring alarm bells everywhere, so I am very surprised that it sounds like Labor might be deciding this morning to support what is a very flawed proposition. The proposition of a national integrity commission is not flawed. The Morrison government supports it. Senator Roberts supports it. The Labor Party is on the record as supporting it.
What is very important in this debate and what has been demonstrated by the conduct of independent corruption commissions across this country already is that design is critical. Senator Waters in her opening remarks this morning said that you get what you pay for. I disagree. As legislators what the parliament gets is what it designs for. It is interesting that in the contributions of Senator Waters and Senator Watt this morning we have had not a skerrick about the detail of the design of this National Integrity Commission Bill. That should ring alarm bells for everyone.
Senator Roberts is correct to have gone to the Scrutiny of Bills Committee's work on this matter. For those that aren't aware, the Senate Scrutiny of Bills Committee is effectively responsible for calling out and protecting the civil liberties of Australians when it comes to the design of our laws. It's a committee that doesn't get much attention outside of this Senate chamber; its work probably deserves to get considerably more attention than it does. But Senator Roberts's contribution was correct insofar as it highlighted a number of those civil liberties issues that the Scrutiny of Bills Committee itself had found, and it detailed for the Senate what the Australian Greens' response was to some of those issues. It's worth reminding the Senate that, on those big issues—every civil liberty issue is, I think, a big issue—on some of the most substantive issues, the Greens either didn't respond or didn't provide a thorough response.
Senator Waters, in her contribution, said that we've had six bills and it's taken 10 years. That's actually a demonstration, and that actually makes my point, that the design of these national integrity commission bills has been so poor—and I would argue that this is just as poor—as to not warrant the support of this Senate. This is a private senator's bill. It is worth drawing to people's attention that, if it should pass today, it does not mean that a national integrity commission will be legislated, because it will be necessary, of course, for the bill to pass the House of Representatives. Australians who are concerned about civil liberties, Australians who are worried that their reputations might be heavily tarnished, can breathe a little easier, because it is unlikely that this poorly designed, flawed bill will become law. I do want to reiterate that the theme of a national integrity commission has been endorsed and agreed to; it is now a debate about the detail.
Senator Watt, in his very own contribution, said that this bill is not perfect. Who pays for an imperfect bill? Who pays for an imperfect legislative remedy? The citizen. I'll come back to how the citizen pays for this, and I don't mean in a financial sense; I mean in a reputational sense.
Senator O'Neill interjecting—
I hear Senator O'Neill, who has a very senior position in this parliament as the Chair of the Privileges Committee, interjecting. She should carry a heavier burden than other senators when it comes to the reputational damage that citizens pay for when a bill is poorly designed. I'm not speculating about the reputational damage; I will demonstrate the very real reputational damage, and what bodies of our country, like the Law Council, have to say about that.
These are serious matters. No-one supports corruption in our public system, in our civil society, in our community. But how we repel corruption, how we deal with corruption when it appears, is a very critical issue. I had cause to write about this issue the day that the Morrison government agreed, conceptually, to a national integrity commission. I was privileged to have my comments on this matter reported in TheAustralian Financial Review, in an opinion piece that I had penned, under the heading 'Australia is no place for show trials'. I want to share with the Senate some remarks that I made in that opinion piece on the very issue of a corruption commission, but more particularly on what are the very real consequences of poor design.
In that opinion piece, I remark—this goes to the third point of Senator Waters's contribution. Senator Waters's contribution alluded to only one contestable issue among many, many issues when it comes to the design of a national integrity commission. She didn't even examine the issue; she only alluded to one issue. That is the very real debate about public versus private hearings. I'll be very interested to hear what Labor senators have to say about public versus private hearings, because if they have nothing to say about the merits of public versus private hearings or vice versa then they've come into this chamber ill-prepared. They've developed a position to support this bill that is ill-prepared and ignores—they are being consciously, dangerously ignorant of—what I argued privately is one of the fundamental issues when it comes to the design of a national integrity commission.
The establishment of a national integrity commission was examined in a lot of detail in the last parliament. I think its report was released in the last few sitting weeks of the last parliament. I participated in that Senate select committee inquiry into a national integrity commission, which was very ably chaired by Labor Senator Jacinta Collins. That is a very considered report into some of the very real tensions and contested ideas about the design of an integrity commission. That was the basis of an opinion piece that I had written for the Financial Review.
Let me go to this very important point of public versus private hearings. In the Australian Financial Review, I wrote of public versus private hearings, which Senator Waters only alluded to in the briefest of ways:
This issue is so hotly contested the Senate inquiry couldn't settle on an agreed position and was forced to leave the matter open.
In evidence to the Senate inquiry, lawyers from Gilbert and Tobin argued both sides, but noted the potential costs associated with holding public hearings, particularly on the "privacy and reputation of individuals involved".
And just remember that part—'the privacy and reputation of individuals involved'. It's very possible that an individual is found not guilty of anything, but their privacy and reputation not just get tarnished but are irrevocably damaged. I went on to write:
The Law Council of Australia encouraged great caution around the use of public hearings, suggesting private hearings should be the default position and cited the risk of "irreparable damage" upon those unfairly implicated in corruption hearings.
Even the officer which holds the notorious—
That's my word, 'notorious'—
NSW Independent Commission Against Corruption (ICAC) to account conceded public hearings left the community "confused" and could lead people to incorrectly conclude that functions of anti-corruption bodies were judicial proceedings.
This is not a trivial matter.
The danger with some independent corruption commissions in our country, and I put ICAC at No. 1 on the lead table in this regard, is that they have a perception of courts, but they are not a court. They do not uphold those longstanding criminal justice principles that many Australians take for granted and that the Scrutiny of Bills Committee exists to protect. I went on to say:
Most Australians would agree that a person should not have to suffer ongoing reputational harm once an anti-corruption commission finds insufficient or no evidence to support a prosecution.
Whatever the shortcomings of Australia's current multi-agency framework, it doesn't run "show trials" and it avoids the risk of prejudicing future criminal proceedings while at the same time upholding longstanding legal principles such as the presumption of innocence.
Poor design of a national integrity commission will come at a very, very high cost to Australian citizens. The Australian Greens support it, perhaps; we'll know in a few moments. The Australian Labor Party want to trample on people's civil liberties and human rights, want to sanction the creation of a poorly designed anticorruption commission—remembering that no-one in this place disputes anymore the need for one—but there is a very live and contested argument about how it should be constructed and what it should do. These issues are very important.
Let me just briefly demonstrate to you how dangerously broad I regard the private senator's bill that is before us today, brought to us by Senator Waters. Remember that poor definitions mean that people's liberties can get trampled on. That's the ultimate outcome. If things are not carefully and well designed, then the people who pay the cost are ordinary and, most definitely, innocent citizens. Under this proposal, 'corrupt conduct' can include something as minor as a disciplinary offence or any behaviour that gives rise to reasonable grounds for dismissal. Under the Greens bill, even an 'irregularity' that gives rise to disciplinary action could be considered corrupt conduct. You won't be surprised to hear that the government doesn't agree that something as minor as an irregularity should be deemed corrupt conduct. This would mean any such irregularity would be subject to the most extreme and coercive powers of a body like the proposed National Integrity Commission. It's worth noting that many codes of conduct already operate, already exist, across the Public Service to deal with what are effectively matters of misconduct, not corruption.
Let me provide you with a demonstration of how broad the retrospectivity is in this proposition and, we argue, how at odds it is with fundamental human rights. In this bill, the definitions of 'employee' and 'public official' are also very broad. They may even cover foreign governments if they provide a service to the Commonwealth—for example, for foreign aid purposes. It is a significant overreach that this proposed Integrity Commission could investigate the conduct of foreign governments. That is a demonstration of how poorly designed this bill is—and with poor design, I would argue, comes danger.
In the brief time available to me, I think it is important to be very clear about the government's position. The government's position is that we support an integrity commission. Our Integrity Commission will be the lead body in Australia's successful multi-agency anticorruption framework. This is a very important point: no-one has said that the current framework has failed. No-one has said that the current framework has failed, but they would like to throw the baby out with the bathwater, so to speak, in anticipation of this new model that is poorly designed. Not only do we have all of the risk of a new model that is poorly designed; we lose all of the benefit of that multi-agency framework that already has served Australia's national anticorruption efforts well.
The government is committed to ensuring that Australians remain confident about the conduct and representation of their Commonwealth parliamentarians and of the Australian Public Service more generally, and that that Public Service is operating in their best interests. Our proposed new Integrity Commission will have teeth, resources and proper legal processes to underpin the work it does to protect the integrity of Australia's Commonwealth public administration while avoiding the pitfalls, weaknesses and abuses in systems introduced by state jurisdictions and those in the alternative models being proposed. Let's be clear about this. The anticorruption bodies that exist in New South Wales, Queensland, Victoria and Western Australia are not perfect. I think ICAC, in the way it has conducted itself, should stand as a beacon to those people who are concerned about how anticorruption bodies can get ahead of themselves, operating as quasi-courts when in fact they are nothing of the sort.
Let me finish with this observation, and it goes to the heart of a matter which is which is very recent, very powerful and very much alive at this moment in my home state of Western Australia—and I note that Senator Cash is also in the chamber. In Western Australia, the Western Australia based corruption commission has—my words—overstepped the mark. It has absolutely overstepped the mark and failed to properly understand and observe that very, very important principle of parliamentary privilege—so much so, I'd argue, that the work of parliamentarians in Western Australia has been severely compromised. Let's not forget that many of the people that lead these ICAC bodies are very notable and very 'experienced'. But that does not mean that independent anticorruption bodies are free from overstepping their mark and undermining such a cherished and important principle as that of parliamentary privilege, which goes to the core of our successful parliamentary democracy.
If I had more time this morning I'd be happy to amplify and illuminate for the Senate that very real, potently dangerous issue that has emerged in Western Australia—this contest between the parliament and the independent crime commission. But time doesn't allow me to do that. I suspect that you, Senator Sterle, might even agree with my sentiment.
Senator Sterle interjecting—
You might agree with the sentiment of my comments—
Senator Sterle interjecting—