Senate debates

Monday, 28 November 2022


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

5:48 pm

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise to make a contribution to the National Anti-Corruption Commission Bill 2022 and a related bill. The coalition supports the National Anti-Corruption Commission. Let me be clear: corruption is wrong. It is corrosive of public trust. It undermines the very public confidence on which all of our institutions depend. The public should know that those who break the law should face the consequences, and the standards in public office should be high.

The passage of bills to establish this commission will mean that every jurisdiction in Australia will have an anticorruption commission. In participating in this debate, the coalition has sought to draw on the over 30 years of Australian experience of corruption commissions to make sure that this commission is effective and has appropriate safeguards built in. Anticorruption commissions have extraordinary powers to deal with corruption, a civil wrong—more powers than the police have in investigating crimes of murder or terrorism. Let me reiterate: the coalition supports the National Anti-Corruption Commission. The government has the balance right on several matters, but there is further work to do. The government has adopted the bipartisan recommendations of the joint select committee, but some additional measures are required. The coalition intends to bring forward amendments to deal with these measures. Our amendments are designed to implement safeguards to ensure that this very important bill gets the balance right.

The National Anti-Corruption Commission has a very broad scope. It applies to parliamentarians and their staff and to every Canberra public servant. What many perhaps do not know is that it also applies to our Defence Force, the Australian Federal Police, our diplomats and embassies around the world, and every cook, cleaner, gardener, Comcar driver, and contractor or subcontractor that the Commonwealth engages with. It applies to almost every person exercising power under a law of the Commonwealth: pharmacists, NDIS workers, aged-care workers and Indigenous rangers. In fact, it is estimated that probably around one million Australians are brought within reach of this commission.

We will be moving amendments to ensure that adequate safeguards are in place to enhance the way the commission operates and to ensure that the rights of individuals are protected. This commission will have extraordinary powers, and with extraordinary powers should come greater accountability. While it's important that serious corruption be identified and dealt with, a terrorism suspect prosecuted in a criminal court has more rights than a person brought before this commission. The words of the South Australian Bar Association are particularly worth noting:

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.

I want to turn to the issue of public versus private hearings which has consumed so much of the debate in relation to the commission. The default of private hearings is one important aspect of ensuring that the commission's focus is where it ought to be. A balance has been struck with section 73(2), which allows for a hearing to be held in public if exceptional circumstances justify holding the hearing or part of the hearing in public and it is in the public interest to do so. This balances the important investigative power of the commission whilst also protecting the rights of individuals and ensuring that any future prosecutions that may follow from an investigation are not unduly prejudiced. As the Queensland Law Society has said:

In our view, in order to preserve prosecutions, in order to maintain that prosecutorial authority with those bodies, as opposed to investigative bodies, and not unfairly damage reputations of people coming before the NACC, it's imperative that the default position be that private hearings are held, and obviously with the test of exceptional circumstances being employed.

We would like to see that test further strengthened. While the legislation presently lists a number of factors in section 73(3) that 'in deciding whether to hold a hearing or part of a hearing in public the Commissioner may have regard to', the word 'may' is insufficient. We believe that the commissioner should be required to have regard to those factors, which include the extent of corruption, the benefits of exposing corrupt conduct to the public and also, importantly, any unfair prejudice to a person's reputation, privacy, safety or wellbeing that would be likely to be caused if the hearing or part of the hearing were to be held in public. The need for section 73(3) to be strengthened in this way was endorsed by various submissions to the joint committee, including by the Australian Human Rights Commission.

Let me now turn to the definition of 'corruption'. We will move amendments to section 8(1)(a) to remove the vague and superfluous phrase 'or that could adversely affect', consistent with the Law Council's submission that such a phrase is unnecessary, given that conspiracy is included in section 8(10). The phrase 'or that could adversely affect' introduces uncertainty to the definition of 'corrupt conduct'.

We're also concerned that section 9(1)(c) defines a corruption issue not just as something that someone has done or is doing but also as something that a person will engage in in the future. This would see the commission investigate possible future conduct that has not actually been carried out. This provision should be removed. A person cannot be investigated and punished for actions they have not taken. We'll also move amendments to delete section 9(1)(c). Again, this view is consistent with the views of the Queensland Law Society and the Law Council.

Another issue in the public debate about the powers of the commission has been whether it should be retrospectively able to investigate conduct. The basic principle is that people should be able to know what the law is before they act so they can comply with it. Section 8(4) gives the legislation completely unbounded retrospective reach. We believe that an additional public interest test is needed if the commission decides to investigate conduct that occurred before the commencement of the National Anti-Corruption Commission. The Law Council suggested including an additional threshold that will allow the National Anti-Corruption Commission to conduct investigations into past conduct only where there is an identifiable public interest in doing so. This would bring the National Anti-Corruption Commission into line with similar provisions under the Victorian IBAC act.

The Prime Minister has said that this legislation is not designed to duplicate existing processes but instead is intended to fill gaps. Under section 45 the commission has the power to reinvestigate matters that have previously been investigated by another integrity agency. Section 45(3) lists the matters the commissioner may have regard to when deciding to commence an investigation into a matter previously investigated by a Commonwealth integrity agency. As with the decision to have public hearings, we believe that in exercising this power the commissioner and a deputy commissioner should be required to jointly sign off on decisions to reinvestigate matters that have already been considered by another integrity body.

I now turn to the application of the Administrative Decisions (Judicial Review) Act to this bill. The bill has limited the application of the ADJR act to a small number of matters. We believe that judicial review under the ADJR act should be available to all decisions under this bill, and we will move amendments to this effect. This is consistent, again, with the recommendations made by the Law Council. We believe that judicial review under the ADJR act, as I said, should be available to all decisions under this bill. The application of a gag order for people under investigation by the commission can present a real threat to a person's mental health. Not being able to talk to a mental health professional or to a family member can mean that, at a very stressful time, the usual supports that a person may rely on are not available. As the Australian Psychological Society told the committee:

Individuals involved in corruption commission inquiries are likely to be appearing in a professional capacity … For many people, their professional persona is core to their self-identity and any damage or threat to it is therefore amplified.

Gag orders therefore need to be balanced to ensure that people can access appropriate support.

I now come to the important issue of privileges. Rule of law principles exist for an important reason. They ensure that robust systems of justice are balanced with concern for individual rights. The bill abrogates a number of privileges that would exist in a criminal process, like the privilege against self-incrimination and legal professional privilege. Because the rights of a person under investigation are waived, it is very important that material elicited by the corruption commission, in a scenario under which a person doesn't have the right they would usually have in a criminal process, must then not be used either directly or derivatively in a criminal process.

A body with the extraordinary powers of this commission must itself be held to account. At present, the inspector's powers are insufficient. As the bill stands, the inspector is due to be the national anticorruption commission of the National Anti-Corruption Commission. We believe the inspector's role should be broader, and we will move amendments to strengthen the role of the inspector.

We also believe there should be time limits on investigations so that the commission is required to conclude investigations within a definite period. I note one of the foremost advocates for the National Anti-Corruption Commission, Geoffrey Watson SC, has argued for time limits on investigations. Time limits could be extended by application to a court, but we need to see investigations not remain open indefinitely. Our amendments seek to do this.

Finally, in relation to amendments, we believe the appointments of the commissioner and inspector must be completely above politics. To that end, the appointment of these roles should be subject to a supermajority of nine of the 12 members of the joint standing committee. It must be above politics. This ensures that those who fulfil these significant roles have bipartisan support. We will move amendments to this effect.

In conclusion, whilst we believe there are numerous measures that would strengthen this body and provide safeguards for individuals, I want to reiterate the coalition's support for the National Anti-Corruption Commission. The support for this body across the parliament is clear. It is a clear message to the Australian people that corruption is wrong and that the parliament is dealing with corruption seriously.


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