Tuesday, 29 November 2022
National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022; In Committee
David Shoebridge (NSW, Australian Greens) Share this | Hansard source
SHOEBRIDGE () (): I indicate to the Senate that I won't be moving amendment (9) on sheet 1714. In lieu of that, I seek leave to move amendment (1) on sheet 1778, which has been recently circulated.
Thank you, Senator Cash! I seek leave to move amendments (1) and (2) together.
I move Greens amendments (1) and (2) on sheet 1778 together:
(1) Clause 184, page 152 (line 18) to page 153 (line 20), omit the clause, substitute:
184 Functions of the Inspector
(1) The Inspector has the following functions:
(a) to detect corrupt conduct within, and relating to, the NACC;
(b) to undertake preliminary investigations into NACC corruption issues or possible NACC corruption issues;
(c) to conduct NACC corruption investigations into NACC corruption issues that could involve corrupt conduct that is serious or systemic;
(d) to refer NACC corruption issues to the NACC, Commonwealth agencies and State or Territory government entities;
(e) to investigate complaints of agency maladministration or officer misconduct made in relation to the conduct or activities of:
(i) the NACC; or
(ii) a staff member of the NACC;
(f) to audit the operations of the NACC for the purpose of:
(i) monitoring compliance with the laws of the Commonwealth; and
(ii) detecting agency maladministration and officer misconduct;
(g) to make recommendations to the NACC on the outcomes of such audits;
(h) to provide relevant information and documents to the Committee;
(j) to receive public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013) and to deal with those disclosures;
(k) to report, and make recommendations, to both Houses of the Parliament on the results of performing the functions mentioned in paragraphs (a) to (j).
(2) The Inspector also has such other functions conferred on the Inspector by this Act or by any other Act.
(3) For the purposes of this section:
agency maladministration means an act or omission engaged in by the NACC that:
(a) is unlawful conduct; or
(b) is not unlawful, but:
(i) is corrupt conduct; or
(ii) is unreasonable, unjust, oppressive or improperly discriminatory in its effect; or
(iii) arises, wholly or in part, from improper motives; or
(iv) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration; or
(v) arises, wholly or in part, from a mistake of law or fact; or
(vi) is conduct of a kind for which reasons should have, but have not, been given; or
(c) is in accordance with a law or established practice, being a law or practice that is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its effect.
officer misconduct means conduct engaged in by a staff member of the NACC, which, if engaged in by the NACC, would amount to agency maladministration.
(2) Clause 214A, page 168 (lines 16 to 33), omit the clause, substitute:
214A Inspector's powers to conduct audits
For the purposes of conducting an audit as mentioned in paragraph 184(1)(f), 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 audit; and
(e) may examine, make copies of or take extracts from any information or documents.
The bill as initially drafted gave a very narrow role for the inspector—simply to determine whether or not any serious or systemic corruption had occurred within the NACC. One would hope that would never happen. For that reason, the inspector may well have had almost no functions at all under the original drafting. There's been a very small increase, as a result of recommendations made by the committee, to provide some oversight of a small part of the compulsory powers of the NACC by the inspector.
Some of the most compelling evidence we had in the inquiry came from Bruce McClintock SC, the current inspector of the New South Wales ICAC and of the Northern Territory equivalent. When he read the bill, he was very surprised to see the very narrow scope given to the inspector. He in particular said the inspector really needs to have the ability to conduct ongoing audits of the NACC to ensure that it's not engaged in any kind of maladministration or abuse of powers.
We're giving this body, the NACC, extraordinary powers—appropriate extraordinary powers—to issue warrants, to compel witnesses to attend. We want to be sure there's somebody keeping an eye on that, especially as much of this may well be done in private hearings. If we don't have the ability to hold the NACC to account in public hearings, if much of this is happening in private hearings, who does someone go to if there is no natural justice in the hearings or if search warrants or other powers are being abused? Under the current drafting, there is nobody—maybe a complaint to the Ombudsman that might be heard in due course. If we're going to have an inspector, we should heed the advice given by people already doing the job and who, I think all of us would probably accept, are doing a bloody good job, like the inspector of the New South Wales ICAC and other inspectors around the country.
This amendment seeks to capture the recommendations given by Bruce McClintock. Indeed, I'm very grateful to him for providing the committee not just the submission but the initial drafting for this amendment, and I'm grateful for the cooperation we've had from the government to improve the drafting of it to make clearer what the role of the inspector is and to expressly set out what the inspector's powers will be in conducting audits. For that reason, I'm glad Senator Cash reminded me to move amendment (2) because it sets out in detail the ability of the inspector, when they are conducting an audit, to enter and remain on the premises of the NACC, to have access to the facilities and be entitled to full and free access to any of the information documents or other property of the NACC—critical powers the inspector should have.
I know we've had some division in this debate, and I know there has been a difference in views between the crossbench and the major parties on many issues. But what we're hoping for with this amendment is that we can all agree that a properly empowered inspector, with the right powers and extensive powers to check on potential maladministration—to ensure that the extraordinary powers of the NACC are not being abused and to ensure that natural justice is done, especially as many of the hearings will be in public—is a step forward for transparency and is an important measure to ensure that the promise of the NACC is not in some way betrayed or undermined by any kind of abuse of process, going forward. It's an important amendment, and I commend it to the house.