Senate debates

Tuesday, 29 November 2022

Bills

National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022; In Committee

5:16 pm

Photo of Dean SmithDean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | | Hansard source

The committee is considering the National Anti-Corruption Commission Bill 2022 and the related bill, and amendments (1) to (6) on sheet 1769, moved by Senator David Pocock. The question is that the amendments be agreed to. Senator Shoebridge.

5:17 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

nator SHOEBRIDGE () (): I rise to speak about amendments (5) and (6) on sheet 1769, moved by Senator David Pocock. I particularly want to draw the committee's attention to amendment (6).

This amendment is about ensuring, as best we can, the financial independence of the National Anti-Corruption Commission. I know from my experience in state politics and with the New South Wales ICAC that one of the most effective ways the government of the day had of limiting the reach of that state anticorruption body was to strangle its funding. We've seen over the last decade in particular moves by the current coalition government in New South Wales literally to starve the Independent Commission Against Corruption of funds, and to do so with minimal public scrutiny. There is a multiparty oversight committee for the ICAC in New South Wales, but it has a retrospective role in reviewing the previous year's budget of the Independent Commission Against Corruption. It doesn't have the capacity to review the draft budget at budget estimates nor to make recommendations to the government of the day in the budget-making process.

In the Commonwealth sphere, we have a very good working model in the role of the public finance committee, which is a multiparty committee. It reviews the finances of the Audit Office. We spoke to the Audit Office in the committee, and the Audit Office—admittedly, speaking only from their experience and, consciously, as good auditors do, not extending their practice themselves to the potential practice of the NACC oversight committee—said that it has worked extremely well for them. It has been a key reason why we have a genuinely independent and adequately funded Audit Office at the federal level. That's because the committee can review the budget estimates and make recommendations for the budget estimates in the budget process, to ensure that the Audit Office has the funds it needs.

What Senator Pocock's amendment is doing here is saying, 'Well, if this oversight committee for the NACC undertakes that role'—and we have amendments that would give that explicit role for the committee, and I understand that the government and the opposition may not support those amendments but nevertheless acknowledge that there can be that proactive budget role in this committee, and we will address that when we get to it—and 'if the committee makes a recommendation to the government about the NACC's finances, and the minister decides not to follow that recommendation not to provide the funding in accordance with the committee's recommendation, then the minister has to explain him- or herself.'

That is a key element of transparency. There are similar provisions that apply in other jurisdictions—most notably, right here in Canberra. The ACT Legislative Assembly's oversight committee has this exact same process. It is a committee with a non-government chair, a non-government majority, that oversights the budget of their anticorruption commission. When it makes a recommendation, if the ACT government does not accept it, if the treasurer doesn't accept the budget recommendation, then the treasurer has to explain that to the house in the course of the budget.

We see it as a core transparency measure. What I'd hoped to hear from the government is, if they don't accept it in black and white, do they accept that that's the process that they expect to follow—that if the NACC oversight committee does make a recommendation about funding without being compelled to by this amendment then does the government expect that that's the practice that will be followed in due course once we get this NACC up and running?

5:21 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

I addressed the government's position on this amendment when we were dealing with it before the break.

Photo of Dean SmithDean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | | Hansard source

The question is that amendments (1) to (6) on sheet 1769 moved by Senator Pocock be agreed to.

5:29 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

I move amendment (1) on sheet 1777:

(1) Clause 8, page 17 (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.

5:30 pm

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

The government's amendments, moved in the House of Representatives, on journalist protection action are the consensus recommendations of the joint committee regarding journalists. It is the position of the opposition that we believe that the government has got the balance right here and that the amendment that has been proposed is not required.

5:31 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

We will be opposing the amendment as well.

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

I want to thank Senator Lambie for bringing this issue to the Senate. It's my understanding that the concern that drives this amendment is to ensure there are adequate protections for journalists undertaking journalist activities within the Australian Broadcasting Corporation and the Special Broadcasting Corporation, the ABC and the SBS.

I note that, as a result of amendments in the other place, there have been increased protections for journalists from warrants that may be on them under the NACC's powers to seek warrants. I'm glad to see the Attorney moved beyond the very narrow recommendations that came out of the committee to provide broader protections for journalists in the amendments that the House adopted. They were amendments that I know myself, and I believe the deputy chair of that committee, the member for Indi, Dr Haines, were seeking to have adopted in that committee. We couldn't persuade the committee to move to adopt those greater protections, but I'm glad to see the Attorney, nevertheless, has adopted those greater protections from warrants for journalists.

I also note that clause 117 of the bill expressly protects the premises of the ABC and the SBS from the operation of search warrants under the act. So there are already express protections for the ABC and the SBS in the act. Our concern about the drafting of this amendment—and we accept it has been done in a great hurry—is that it potentially extends the protections I think we would all want for the ABC and SBS to any Commonwealth agency, and arguably anyone engaged in—I will read the amendment—'the business of reporting news, presenting current affairs or expressing editorial or other content in news media'. It arguably picks up any agency that has that kind of conduct in it. That broad definition might include the media officers in the Department of the Prime Minister and Cabinet. There would be occasions when we would want to ensure that the NACC could investigate what a media officer had put out if it was potentially trying to mask or hide corrupt conduct within PM&C. We'd say the same for the media unit of the Australian Federal Police. We would want to ensure that isn't shielded from the operations of the NACC.

I accept that this amendment has come through very late. I accept that it hasn't had the benefit of going to the committee and being reviewed by the committee. In its current format it would potentially, and I think quite likely, exclude a whole series of employees, and potentially agencies well beyond the ABC and the SBS, that should be within the purview of the NACC.

I want to say expressly, from the position of the Australian Greens—and I hope we get this echoed from the government and the opposition: individuals engaging in the practice and profession of journalism within the ABC and within the SBS are not intended to be caught within the provisions of the NACC, and challenging the government and potentially publishing and reporting on documents that there may be some statutory secrecy or some other kind of secrecy attached to would not and should not bring journalists within the ABC or the SBS within the purview of the NACC. I hope that's a united position we can adopt. At least this amendment allows us to share that acknowledged position in the chamber.

5:35 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

This is a really grey area here. I know we have whistleblower legislation coming up. If, for some reason, this gets nixed, that will be tackled; I believe the Attorney-General has made it quite clear he intends to get onto that very early next year. But I believe this is a grey area when it comes to journalists, and that worries me considerably. Without them, many things never come out into the open.

I understand we're probably not going to get support from both the major parties. That is worrying, and journalists will have to put up with this over the Christmas period—and that is worrying in itself—worrying about whether or not they are going to eventually end up at the NACC or in court. I am asking the government of the day, if it is not going to be dealt with today and we can't get clear air on this, sincerely to do the right thing: when you do the whistleblower legislation, look at it very thoroughly.

5:36 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

Just to add to what I said before: my understanding is we've literally just received this amendment, so there hasn't been adequate time to even consider it.

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

We know about adequate time!

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

Well, Senator Lambie, I don't think people just dump amendments on people and then expect them to vote for them. We will not be supporting the amendment. I'm reading this amendment for the first time myself. I can only come back to the general position, which is that the commission will have the power to investigate systemic and serious corruption. If behaviour does not amount to that, then people have nothing to be concerned about, whether they be journalists or anyone else.

Question negatived.

5:37 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

I move Greens amendment (1) on sheet 1714:

(1) Clause 73, page 70 (lines 20 to 24), 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.

This amendment seeks to remove the restraint on the National Anti-Corruption Commission in terms of holding public hearings. As senators would know, the Labor Party took to the election a very simple proposition—that the National Anti-Corruption Commission should be able to hold public hearings if the NACC thought it was in the public interest to hold public hearings. That should be the test. People voted on that basis in good faith, and that seemed to be the position when we were first having discussions with the government after the election, but then somewhere along the line, between the election and now, something happened that flipped the government to now move to this higher threshold which is contained in 73(2):

The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that:

(a) exceptional circumstances justify holding the hearing … and

(b) it is in the public interest to do so.

The exceptional circumstances test is, of course, no doubt convenient to the opposition, who would love to see fewer public hearings. We've suddenly seen some kumbaya between the government and the opposition on the whole issue of the NACC, once public hearings were shut down.

We heard from the New South Wales ICAC and the Victorian IBAC that this is a test that should not be put into the NACC Bill. The Victorian IBAC has it. They say don't repeat it, it doesn't work, it ties them up with lawyers and it prevents them doing the job. The New South Wales ICAC says they don't have it and they're very glad they don't have it because public hearings are a key way of fighting corruption. They bring out additional witnesses. They hold the institution itself to account. They hold anti-corruption commissions to account, because they have to justify their conduct and their use of public resources and they're dealing with witnesses in the full, bright glare of public view. That's an integrity measure for integrity commissions.

We heard from the inquiry a number of unsettling instances where state integrity commissions had had private hearings over months, and sometimes years, where the witnesses felt oppressed. They felt like they weren't getting natural justice, it was all happening in secret and they couldn't tell anyone about it. In pretty much all of the cases that I saw that were potentially disturbing about the way state anti-corruption commissions operated came from private hearings where witnesses felt they could not defend themselves in public. They had their careers put at risk. Councillors we know in Queensland have raised their concerns about private hearings of the Queensland anti-corruption commission. They've said that they are unfair.

Having public hearings is not just good for the integrity of the broader Commonwealth government and politicians. It's not just good for informing the public about what the bloody hell goes on in this place. It's also good for holding anti-corruption commissions to account. That's the lesson that the government and the opposition seem to be ignoring. It's almost as though there's a calculation between the government and the opposition in this, that they'd rather one bad story on shutting down public hearings and squashing the NACC's ability to have public hearings. They will take that one bad story because it will protect business as usual in this place from the next 40 or 50 stories that will play out in public hearings as the real way in which federal politics is done is exposed in the NACC in the years to come. One bad story of shutting down the NACC shuts down 40 or 50 future bad stories in full public glare about how business is done in this place. That's the calculation that's been made by the major parties in this place. That's why the crossbench have been pretty much united in saying let's have public hearings and let's expose how business is really done at a Commonwealth level. That's why we moved this amendment. It gets rid of exceptional circumstances, it reinstates Labor's promise in the election and it is critical for the functioning of the NACC.

5:42 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

I want to clarify something. I believe the NACC is supposed to be truly independent. Is that a yes or no? Is the NACC truly independent?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

Yes.

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

If the NACC is truly independent, why are you putting restrictions on it when you say only under 'exceptional circumstances'? You don't say that's dictating to how things will be? I don't understand how you say it's independent on one side and then you dictate to it how it's going to be and that public hearings will be in exceptional circumstances. How does that possibly make it independent?

5:43 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

In the discussion we were having about this bill before question time—and I don't think you were in the chamber at that point when this came up—Senator Shoebridge was asking why we weren't prepared to give examples of what exceptional circumstances might be. The answer I gave him was that we wanted to preserve the commission's independence by not dictating to them or limiting them as to what the exceptional circumstances could be. We're trying to strike the right balance here, between providing the commission with the measures that it requires along with making sure that people involved in the commission are given appropriate natural justice. We think that by granting the commission power to have public hearings in exceptional circumstances without setting down exactly what those circumstances are and leaving it to the commission to determine for themselves is the appropriate balance.

5:44 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

So you can't tell me either. To be exact, how does the commission itself interpret this? Seriously! Why did you bother putting it in there? Is it just a fear thing? Do you want most of the things done behind doors? Because that's how we understand it and that's how the public understands it.

5:45 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

I don't think that is how the public understands it. I think what the public understands is that, as a result of the change in government and with the support of the crossbench, we are going to have a national anticorruption commission for the first time in this country. That's what I think the country understands. I also think that the country understands that this commission will have the power to hold public hearings in exceptional circumstances. We think that's an appropriate threshold which reflects the significant nature of the power to compel a person to answer questions at a public hearing. It also reflects the sensitivities involved in holding public hearings—for example, the risk of prejudicing a future criminal investigation or trial and also the issues of reputational harm that may arise. But where the commission considers there are exceptional circumstances that justify having a public hearing, then it will be able to do that.

5:46 pm

Photo of David PocockDavid Pocock (ACT, Independent) Share this | | Hansard source

Thank you, Minister, for your explanation. Can I put on the record, from the consultations I've done across the ACT, how disappointed people are with the Labor government to have promised an independent commission against corruption where public hearings would be held when in the public interest to now have done a deal with the opposition to insert 'exceptional circumstances'. As we've heard from experts like Professor Twomey, it is almost impossible now for the NACC to have public hearings. I've had a number of former senior public servants raise concerns about this. It does not seem necessary. From my engagement in the committee process it seemed like, again and again, people talked about the need to keep it independent, to allow the NACC to decide for itself whether or not it was in the public interest.

5:47 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

I want to go back to 'public interest'. First of all, what does that look like? And how do they interpret that, since we can't interpret that in here?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

The bill doesn't refer to 'the public interest'. The bill refers to the commission having the power to hold public hearings in exceptional circumstances. The bill also sets out factors which the commission may consider when determining whether to hold a hearing in public. They include the seriousness or systemic nature of the corrupt conduct, any unfair prejudice to a person's reputation, privacy, safety or wellbeing that would be likely to be caused if the hearing were in public and the benefits of exposing corrupt conduct to the public and making the public aware of corrupt conduct. So if the commission considers that there are benefits in exposing corrupt conduct to the public and making the public aware of corrupt conduct, it has the power to decide to hold a public hearing if it wants to do so. It's not as if it is prevented from doing so. I'm sure this has been pointed out to all of the senators questioning us about this, but 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 national security information is protected from disclosure. It will be a matter for the commissioner to weigh up all of these considerations, but I would be surprised if any senator thought it would be a good idea to allow or force a corruption commission to hold a public hearing when that could prejudice an ongoing investigation or related criminal proceedings. That is the risk if the power is opened up more widely, as is being suggested. As I say, we think we've got the balance right in allowing the commission to hold those public hearings in exceptional circumstances—for instance, where it does think that there are benefits in exposing corrupt conduct to the public and where the seriousness or systemic nature of the corrupt conduct justifies it.

5:49 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

That would have to be some of the most balderdash, rubbish reading of how this bill works that I've ever heard! It does the minister no credit to deliberately, or perhaps 'accidentally', totally misrepresent how the bill works in practice. All of the elements the minister spoke about will be considered separately already, and are required to be considered separately by the commission when it's working out whether or not a hearing is in the public interest. So all those matters are already considered, and appropriately considered. The checks and balances are in place: no trial will be prejudiced and national security information, although extremely broadly defined, will be protected. All of those matters are already covered by the commission when considering the public interest.

Assume, on this bill's drafting, that the commissioner forms the view: 'Yes, I've considered that. All those elements are sorted, nothing's going to go wrong and it's in the public interest that we have public hearings. We absolutely want to do this. It's absolutely, 100 per cent in the public interest.' But then he says, 'Well, actually, we can't satisfy exceptional circumstances.' So all the protections are in place and it's clearly in the public interest to have a public hearing, but the government has decided—whether or not it's through a deal with the coalition or not; I suspect it is—that they want to bind the commission's hands and say, 'Even if it's in the public interest, even if all of those matters are protected, you still can't do it unless there's exceptional circumstances.'

We know from case law in Victoria that exceptional circumstances means what it says: exceptional. So there's a real doubt that any of the run-of-the-mill, ugly corruption that we've seen time and time again in the states and territories, and in this place, will get a public viewing, because they can't meet exceptional circumstances. This is not helping the commission; this is designed deliberately to tie its hands.

5:51 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

I want to ask the minister again, whether, given all the other checks and balances in the public interest—not prejudicing future legal cases—whether exceptional circumstances would apply for example, in equivalent cases to that of Premier Dan Andrews in Victoria. We're told, although it's been in secret, that there have been two hearings against him under the Victorian IBAC.

I campaigned very hard, and did lots of talking to many, many voters in the lead-up to the Victorian state election. Our state team had as part of their platform strengthening the Victorian IBAC so as to have more public hearings rather than the private hearings that are currently in place in Victoria. That's what this legislation seems to be modelled on. I can tell you, Minister, that there was a huge amount of support for having public hearings. People were very aware of the fact that there were private hearings involving their Premier that they were not privy to, that the Victorian public were being kept in the dark about, and comparing that with the situation in New South Wales, where, because of public hearings, when you had a Premier who was under scrutiny by the New South Wales ICAC, well—surprise, surprise!—the Premier decided that she had to resign.

So, Minister, would exceptional circumstances apply if it were a Premier who was under investigation, or if it were a Prime Minister or a minister of the Crown under investigation? Would those be exceptional circumstances, that, along with everything else—that it was in the public interest and no legal cases would be prejudiced—would that be the case?

5:53 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

I'm not going to get into what may or may not be exceptional circumstances, and I'm surprised that the very parts of this chamber which say they're about making sure we have an independent anticorruption commission now want to get a government minister to say what amounts to exceptional circumstances. I have no intention whatsoever to say what amounts to exceptional circumstances or what does not, based on hypothetical examples. That's because I respect the independence of the commissioner and I would encourage you to do so as well.

5:54 pm

Penny Allman-Payne (Queensland, Australian Greens) Share this | | Hansard source

Minister, of the 140 or so submissions made to the inquiry, do you accept that the overwhelming majority of those submissions were not in favour of including the exceptional circumstances test?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

I accept that there are a range of views on this matter. There were a range of views presented in submissions. There are a range of views within this chamber. I can't add to what I've already said as to why the government is going down this path, but the good thing is that at the end of this debate, once we see the Senate vote, we will for the very first time in this country have a strong, independent National Anti-Corruption Commission.

5:55 pm

Penny Allman-Payne (Queensland, Australian Greens) Share this | | Hansard source

Is the minister able to inform the chamber as to how many of those submissions were in favour of an exceptional circumstances test and how many were against?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

I'm happy to provide that on notice to Senator Allman-Payne, but what I am aware of is that there are a variety of interests. I understand the Greens don't support this. I understand there are some Independent senators who don't support this. But this is an appropriate balance to be struck. Unlike the Greens, a Labor government is delivering a National Anti-Corruption Commission for the very first time, and I'm very proud of that.

Penny Allman-Payne (Queensland, Australian Greens) Share this | | Hansard source

As a senator for Queensland I would like to place on the record that an overwhelming number of Queenslanders voted for parties that stood for an independent integrity commission, and those Queenslanders expected that justice would be done in public. They agree that daylight is the best disinfectant, and I think we can all agree that putting in this test does not do that.

5:56 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

I was just wondering: where did you get your advice from, then, to put in 'exceptional circumstances'? Could you provide that advice to us, please?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

As I've said before, we consulted broadly about this topic—

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

Was it with the Leader of the Opposition?

Photo of Claire ChandlerClaire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | | Hansard source

Senator Shoebridge, you don't have the call.

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

As I've said, we consulted widely about this. I accept that there are groups in the community that think that there should be public hearings in every instance. I also accept—and I don't know whether the senators asking these questions accept—that there are people who don't support that. What we have tried to do is strike a balance. I've already given the very good reasons why it is not wise to provide the commission with a default public hearing power, but they do have the powers to go down that path if they decide there are exceptional circumstances that warrant it. But I'd ask you to respect the fact there are actually people out there who disagree with you as well.

5:57 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

I'm wondering if you could please advise us a list of the people or the persons or the institutions out there who gave you advice to use those specific words 'exceptional circumstances'. You're being very broad there. It's pretty simple. Gee, there must be someone out there who had great legal advice to give you. You must have that on paper. Who gave you that advice to put those two words in the bill?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

I've already taken that on notice.

5:58 pm

Photo of David PocockDavid Pocock (ACT, Independent) Share this | | Hansard source

As I pointed out earlier, of the people who believe that there was no need for exceptional circumstances, may I just out that the Labor Party before the election was in that group, and you potentially would have been sitting alongside us on this one. Given the importance of this, I really do want to stress how important this is to so many Australians. This last election many Australians cast their vote thinking about transparency, wanting more transparency and more accountability, and elected a government who promised a NACC—which, as you point out, you're delivering. But a key part of that was public hearings, where it was in the public interest.

If the Senate would indulge me, I will just read some of the responses that I've had sent in to me. Susan Vickers in Red Hill says:

A federal integrity commission is crucial. Hearings should be public in interests of transparency and accountability.

Sarah in Giralang says:

This is really important, we need public hearings and action taken on outcomes. There needs to be a tightening on lobbyists and review of media power as this influenced election outcomes and ministerial decisions.

Caroline Reid in Fraser puts it:

The NACC Bill must be amended further as per Helen Haine's defeated amendments to ensure that public hearings are not restricted in any way because the low rate of prosecution of politicians through ICAC processes is too low to act as a deterrent against pork barrelling, nepotism and fraud.

Lastly, Gary Shapcott from Woden says:

A NACC that investigates secrecy, corruption and sleaze in government IN SECRET HEARINGS ain't gonna build public trust in government. A NACC is supposed to deliver TRANSPARENCY and accountability to the public, not another layer of smoke and mirrors.

6:00 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

tor WATT (—) (): Thanks, Senator Pocock. Again, I respect the fact that are people in that chamber and people in the community who have a different view on this point. But I think anyone who is listening to this debate needs to be assured that, as a result of this historic legislation being passed, we will have, for the very first time in Australia, a national anticorruption commission that is strong, that is independent, and that will dig out corruption within federal politics and federal government. That is a good thing.

It will have the power to act retrospectively. It will have the power to compel the production of documents. It will have the power to hold public hearings in exceptional circumstances. It will have the power to initiate investigations of its own accord, rather than only those investigations that the government of the day wants commenced. I think it would be a disservice if people were to shoot down this historic bill and this National Anti-Corruption Commission, which will do more for restoring public faith in our democracy in Australia than any other institution that this parliament has created.

6:01 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

South Australia's ICAC ran into real problems because everything was done in secret. This caused the public and parliament to lose confidence in South Australia's ICAC. Do you concede the secrecy you are proposing will erode public confidence in the NACC?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

No, I don't. For starters, there will be robust and transparent reporting at the end of corruption investigations and public inquiries, and that will provide transparency and support the commission's prevention and education function. It is incorrect for any Senator to be suggesting that the work of this anticorruption commission will be entirely done in secret and people will never find out about it. There will be times when private hearings will be held, and there will be times when public hearings will be held. At the end of those investigations, the findings of those investigations will be made public and, if appropriate, prosecutions will then commence.

6:02 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

Public hearings help to inform and educate the public and are used as a deterrent. They also help to education public servants, politicians and institutions by reinforcing the rules by which public administration must be conducted. Do you agree this is a political fix designed to protect the self-interest of the Labor and Liberal parties?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

No.

6:03 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

If there's a public hearing, the report must be made public. At least to that extent, the minister's correct. But if there are private hearings, there is absolutely no obligation for the report to be made public. The minister is either unintentionally or deliberately misleading the Senate and misleading the public. Far from taking comfort from what the minister said, people should be deeply troubled.

If that's what the government has been telling its less engaged ministers and backbenchers—'Don't worry, it will all become public after a private hearing'—that's totally wrong. The commissioner may make a hearing or a report public; it's totally discretionary. The only person we know will get a copy of a report if there's been a private hearing, the one person that is absolutely going to get a copy of the report, is the Attorney-General. That's the only person who can be guaranteed to get a copy of a report if there's a private hearing. The rest of the public may be kept in the dark for as long as we know. We may get some tiny clue, a crumb, in the annual report published by the commission where they have to, in a generic way, perhaps no more than one line long, describe the general nature of the investigations they've done.

Far from being comforted by what the minister has said, we should be deeply troubled that either the minister doesn't understand how the bill works or he's been badly briefed. These private hearings may never get the light of any public review, and the reports may never be seen by anyone other than the Attorney-General of the government of the day.

6:04 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

Thank you, Senator Shoebridge, for acknowledging that the commission can and may make findings of a private inquiry public. Thank you for acknowledging that.

6:05 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | | Hansard source

The Attorney-General has said that he won't use his powers to stop the prosecutions of whistleblowers like Richard Boyle and David McBride unless there are—what do you know?—exceptional circumstances. The Attorney-General has defined 'exceptional circumstances' as meaning almost never. So, that's what this bill is proposing, isn't it—that public hearings will be almost never?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

No.

The CH AIR: The question before the chair is that amendment (1) on sheet 1714 revised, standing in the name of Senator Shoebridge, be agreed to.

6:13 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

SHOEBRIDGE () (): I move Greens amendment (2) on sheet 1714:

(2) Clause 73, page 70 (after line 24), after subclause (2), insert:

(2A) For the purposes of subsection (2), exceptional circumstances include where it is preferrable and appropriate for evidence to be given in public rather than in private.

Given that the previous amendment to remove the exceptional circumstances test has not been accepted by either the government or the opposition, this amendment is designed to provide some certainty as to what 'exceptional circumstances' means and to do it in a way such that it encourages more rather than fewer public hearings. Rather than just a stab in the dark—have a guess, and you're not willing to say anything about what 'exceptional circumstances' means, which is the kind of go-to position from the government—this proposes to clearly say that for the purposes of section 73(2) of the NACC bill exceptional circumstances include where it's preferable and appropriate for evidence to be given in public rather than private. That obviously would be a major step forward for transparency. You get to keep the exceptional circumstances test that the government seems so attached to—the government has such emotional and political attachment to the exceptional circumstances test—and then we get to define it in a way such that it doesn't shut down the NACC.

I want to credit the CPSU in particular for their advocacy in the inquiry that we had, where they suggested this as a solution that might get past the political impasse of insisting on having the exceptional circumstances test. It's with hope that we can move beyond political deadlock, clearly define what exceptional circumstances mean and allow the NACC to do its job, and if it thinks it is in the public interest, and if they think it's preferable and appropriate for evidence to be given in public rather than private they can get on and do it.

6:15 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

Again, we will be opposing this amendment. It's passing strange that having just told us and lectured us on why we needed to make the Anti-Corruption Commission independent, Senator Shoebridge now wants to dictate to the commission what constitutes exceptional circumstances. As we have said all along, we think that the commission should be allowed to act independently without a government dictating to it what amounts to exceptional circumstances. We have full confidence in the commission being able to work that out by exercising their own discretion.

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

That is a bizarre contribution from the minister. The definition here is an inclusive definition designed to empower the NACC and it includes where it is preferable and appropriate for evidence to be given in public and there's a public interest in place. The minister's contribution does him no credit.

Photo of Andrew McLachlanAndrew McLachlan (SA, Deputy-President) Share this | | Hansard source

I put the question that amendment (2) on sheet 1714 revised, standing in the name of Senator Shoebridge, be agreed to.

Question negatived.

I understand that the amendments in the name of the Jacqui Lambie Network and Senator David Pocock will not be moved, so we come to amendments (3) and (4) on sheet 1714 revised.

6:17 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

Amendments (3) and (4) seek to do a very simple thing. They will allow a journalist, or an entity that employs a journalist, that's been served with a warrant to produce documents or to attend an examination—they will allow that journalist or that employer of the journalist—to contest the warrant, to be there in court and articulate to the judge why the warrant shouldn't be issued or why the warrant should be narrowed, or set out such other appropriate submissions, as journalists should be able to make, before the coercive powers of the NACC can be exercised against a journalist.

I've said before, and I'll repeat it, we think it's good that the Attorney moved beyond the recommendations that came from the committee, the very narrow recommendations that came from the committee, to slightly increase journalist protections, to ensure that when a warrant is going to be issued the public interest, protecting journalism and journalists protecting their sources must be considered by the court.

But this amendment goes that further necessary step to say unless there are reasonable grounds for believing that there is a serious material risk that the journalist will seek to conceal or destroy the evidence, unless there's that concern, that the journalist has to be given notice and allowed the opportunity to contest that warrant. Why do we do this? We do this because it is already in practice in the United Kingdom and it works in the United Kingdom. There is not a single instance from the practice in the UK where a journalist that has been served with a warrant and given the opportunity to contest it has ever destroyed the evidence. But it allows the public interest to be fully contested. It protects journalism. It would be a deep irony if this parliament, in moving to empower the National Anti-Corruption Commission and to create an anticorruption body at the centre of the Commonwealth integrity agencies, in the same move harmed journalism and made it harder to be a journalist and challenged the existing integrity measures in journalism. That's why I seek leave to move amendments (3) and (4) on sheet 1714 together, and commend them to the House.

Leave granted.

I move Greens amendments (3) and (4) on sheet 1714 together:

(3) Clause 124, page 111 (after line 23), after subsection 3E(2A) of the Crimes Act 1914, insert:

(2AA) Before deciding whether to issue a warrant, the issuing officer must:

(a) give a notice in writing to the journalist or the employer of the journalist, to whom the warrant relates, stating that an application for a warrant has been made; and

(b) give the journalist or the employer of the journalist, to whom the warrant relates, the opportunity to make written or oral submissions.

(2AB) The Minister may, in writing, prescribe the form for the notice under paragraph (2AA)(a).

(4) Clause 124, page 111 (after line 31), after subsection 3E(2B) of the Crimes Act 1914, insert:

(2BA) However, subsections (2AA) and (2B) do not apply if the issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for believing that if a person was given a notice, there is a serious material risk that the evidential material might be concealed, lost, mutilated or destroyed.

6:20 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

The government is committed to upholding and strengthening the freedom of the press in Australia. The bills contain strong protections for the identity of journalists' sources. The government has moved amendments to the bill in response to the recommendation of the Parliamentary Joint Committee on Human Rights to broaden the public interest test that would apply where the commission seeks a search warrant in relation to a journalist or their employer, to apply in relation to any such application rather than applications made as part of an investigation into a secrecy offence.

This amendment would require issuing officers to weigh the public interest in issuing the warrant against the public interest in protecting the source's identity and facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest. The bills also contain strong safeguards to protect the identities of journalists' sources and uphold the public interest associated with the free press. Journalists and their employers will not be required to do anything under the bill that would disclose the identity of their source or enable that identity to be ascertained.

The government has made amendments to the bill to strengthen those protections in response to recommendations made by the joint select committee reviewing the bills. The scope of the protection has been expanded to protect persons assisting a journalist who are members of staff of the same media organisation, as well as other persons assisting a journalist in their professional capacity. This will ensure persons who are assisting a journalist and who may be aware of the identity of confidential informants are protected—for example a camera person, editor or a lawyer providing legal advice in connection with an article.

The government has also broadened the public interest test that would apply where the commission seeks a search warrant in relation to a journalist or their employer, to apply in relation to any such application rather than applications made as part of an investigation into a secrecy offence. The government notes that the Parliamentary Joint Committee on Intelligence and Security considered, in its bipartisan 2020 press freedoms report, that warrants under section 3A of the Crimes Act should continue to be issued without notice to the relevant journalist or media organisation.

The government, for those reasons, does not support the proposed amendments.

6:22 pm

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

I note the comments that have been made by the minister. In that respect the coalition does believe that the government amendment has appropriately addressed the issue of journalist protections, in particular as highlighted in the consensus recommendation of the joint standing committee. As such, we will not be supporting the amendment.

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

Thankfully, the Attorney has gone well beyond the recommendation that came from the joint committee already, in amendments. But even with those amendments, which I accept were a step forward for the protection of journalists, all of these decisions will be made ex parte. Warrants will be issued, they'll be made often within chambers in the absence of any submissions from a journalist or any representations from a journalist about why warrants should not be issued.

The Greens firmly believe that in this space the interests of justice are best served by allowing the media themselves to make the arguments in court about why their sources, their work and their function should be protected—if it's appropriate—from the reach of the NACC. As I said before, we don't want to cruel journalism as we go through and create another anticorruption body, because up to now, and hopefully going forward, journalism has been one of the critical anticorruption measures.

Question negatived.

by leave—I move amendments (7) and (8) on sheet 1714 together:

(7) Page 147 (after line 12), after clause 176, insert:

176A Committee may request draft estimates for NACC

(1) The Committee may request the Commissioner to submit to the Committee draft estimates for the NACC for a financial year before the annual Commonwealth budget for that financial year.

(2) The Commissioner must comply with the request in time to allow the Committee to consider the draft estimates and make recommendations on them before the budget.

(8) Clause 177, page 148 (after line 18), after paragraph (1)(f), insert:

(fa) to consider draft estimates for the NACC submitted under section 176A;

(fb) to make recommendations to both House of Parliament, and to the Attorney-General, on draft estimates referred to in paragraph (fa);

Taken together, these amendments will expressly empower the oversight committee to request draft estimates—the draft budget, effectively—for the National Anti-Corruption Commission. They will then require the NACC to provide those draft estimates to the committee and then allow the committee expressly to make recommendations to both houses of parliament and to the Attorney-General on those draft estimates. In other words, if there's not enough money in the kitty for the NACC, if there's not enough money being provided for them to do their job, then the committee can recommend what the level of funding should be during the budget process.

As I said before, and I won't repeat the submissions we made about how this already works for the National Audit Office, these amendments seek to draw from that experience and the longstanding provisions for the National Audit Office. It simply repeats those workable, functioning provisions for the National Audit Office for the National Anti-Corruption Commission. For those reasons, we commend them to the committee.

6:26 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

Thank you, Senator Shoebridge, for your amendment. The bill already provides the parliamentary joint committee with a broad function to review the commission's budget and finances. This includes reporting to the parliament on whether the commission's resources are sufficient to perform its functions effectively and whether its budget should be increased. The powers and proceedings of the committee would be determined by resolution of both houses of the parliament. If both houses of the parliament provide the parliamentary joint committee with the powers to call witnesses and to require the production of documents, the committee could require the commission to provide information on the commission's budget and finances, and request a response within a given time frame. No amendment to the bill is required to achieve this. For that reason, the government does not support the amendments.

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

Again, on behalf of the opposition, I do note the reasons given by the minister. I would only add that the coalition believes that budgetary decisions in relation to any government agency should be left to the government of the day. As such, we also will not be supporting the amendments.

6:27 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

The difficulty, of course, with the opposition's proposition—and I think it's one of the concerns we have about their approach to the NACC—is to treat the NACC as just any government agency. It clearly isn't. Integrity agencies, whether the Audit Office or the NACC, are not just any government agencies that can either be starved of funds or not by the government of the day. These are agencies that we really should see as an extended fourth arm of government. We have the legislature, we have the executive, we have the judiciary and, given the complexity of modern government, we should also see integrity agencies effectively as a fourth arm of government that needs to have secure, independent funding.

Simply to say, as the opposition does, that they should be treated as any other government agency—able to be starved of funds by the government of the day at a whim—I think highlights a real concern we have about the approach that might be taken in the future to the finances and funding of the NACC. In fact, if ever there were a powerful reason to support the amendments that we have put here, it was the contribution we just heard, which seeks to treat the NACC as just any government agency. That is downright dangerous for the future operations of the NACC.

The CHAIR: The question is that amendments (7) and (8) on sheet 1714 as revised in the name of Senator Shoebridge be agreed to.

6:36 pm

Photo of David PocockDavid Pocock (ACT, Independent) Share this | | Hansard source

POCOCK () (): I, and on behalf of the Australian Greens, move:

(1) Clause 178, page 150 (after line 17), after subclause (2), insert:

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

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

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

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

This amendment would provide for the oversight committee when it's considering just two critical issues, which are the appointment of the commissioner and the appointment of the inspector. It would provide that the oversight committee could only make that decision by a simple majority of members—not a super majority but a simple majority of members. It also provides that when determining that majority the provisions that provide for a casting vote of the chair do not apply. So, in other words, 50 per cent plus one of the members in attendance of the committee have to agree to the appointment of a commissioner or an inspector. Why is that important? It's important because it's hard to think of a more critical job for the oversight committee than determining who the commissioner and inspector of the NACC will be. On the current drafting, where the committee is six members of the government chosen from both houses and six non-government members—four of the opposition and two of the crossbench—chosen from each house, if there is an equality of votes then the government chair gets to determine the outcome. That effectively hands complete control to the government of the day in that critical decision about the appointment of a commissioner.

I acknowledge there's been a fair bit of public debate about that in the last 24 hours. There are propositions being put forward by the opposition to have a 75 per cent super majority. And, indeed, in the course of the inquiry, we heard time and again from the government and the opposition that you don't need to have any kind of super majority because these things are always done by consensus. We are told that it will always be unanimous, that everyone will always agree because that's how these committees work. If that's the case, if the expectation is that the proposed appointments will be of such quality it will always be done by consensus, where's the harm in acquiring just a simple majority?

We've heard from the government. They were very concerned that this would somehow provide a veto to the opposition. Well, far from providing a veto for an opposition, this gives the government of the day three potential avenues to get their commissioner appointed. They can get either of the crossbench members to agree, and, if either of them agree, there's the simple majority, or they can get the opposition to agree. That's three different avenues to get the government's appointment agreed. Why is that important? That's because we want to put a check and balance not just on the current government but we want to put a check and balance on a future government that may be much more noxious. We may actually want to appoint a commissioner to do over the opposition. We may want to appoint a commissioner to do harm. And of course there should be somebody other than the government of the day having oversight of the appointment of the commissioner so that it's not just a blank cheque.

So, the Greens firmly believe that this amendment gets the balance right. And I say 'the Greens', but I think a substantial chunk of the crossbench believes it, and I'd include the member for Indi, Dr Haines. And I know this is an amendment that was moved by Senator Pocock, and I appreciate and respect his position in this debate. This amendment gets the balance right. It's not a blank cheque for the government. It's not a veto for the opposition. But it is a check on the executive, and it is not just for this government but is about future-proofing the NACC.

6:40 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

I thank Senators Pocock and Shoebridge for their amendment. The bill provides for multipartisan representation on the committee and ensures that the commission, including its key office holders, has the confidence of the parliament. It is the government's intention and sincere hope that appointments to the commission will receive multipartisan support. Broad parliamentary support for appointments will be integral to the commission's credibility. 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 that the recommended candidates for these important roles have the confidence of the parliament. It is 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 therefore does not support this amendment.

6:41 pm

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

The coalition will also not be supporting this amendment. The Senate will note that the coalition had previously moved an amendment in relation to, we believe, bipartisanship being best achieved with the three-quarters majority that we had proposed in our amendment, and I set out our reasons in my speech during the second reading debate. I do know that it was not supported by the Senate, and on that basis we won't be supporting this amendment, and the status quo as outlined by the minister will prevail.

Photo of David PocockDavid Pocock (ACT, Independent) Share this | | Hansard source

Minister, I'm interested in why you think we should leave it to hope when we have an opportunity to legislate that the government of the day needs to simply convince one other member of the committee that they have the right commissioner. We've heard much criticism, and rightly so, for captain's picks by the executive over the years, and clearly there's a feeling amongst Australians that that needs to end. And here we have an opportunity to legislate a NACC that will ensure that the government of the day cannot just put whomever they like in there. Why aren't we doing that now?

6:42 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

Thanks, Senator Pocock. As I indicated earlier, we believe that it is appropriate that the government of the day, which does have responsibility for government decisions regarding the commission, such as funding, also holds the role of chair and has the casting vote. But, as I said, it is certainly our intention that appointments to the commission will receive multipartisan support, and that's the way we'll be approaching it.

The CHAIR: The question before the chair is that amendment (1) on sheet 1775, standing in the names of Senators Pocock and Shoebridge, be agreed to.

6:50 pm

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.

Leave granted.

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.

6:55 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

The government certainly believes that it's important for the inspector to have powers, and that's exactly why, under the bill, the inspector is able to investigate complaints made in relation to the conduct or activities of the commission, or a staff member of the commission. The inspector would also be responsible for detecting and investigating corrupt conduct within the commission and reporting on the outcome of those investigations. The bill actually already provides those powers.

As Senator Shoebridge acknowledged, the government has also moved amendments to the bill in response to the recommendation of the joint select committee in relation to audit powers of the inspector, and for these reasons we don't think that this amendment is necessary. The sufficient powers are already provided to the inspector under the bill.

6:56 pm

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

I indicate that the coalition will be supporting this particular amendment moved by the Australian Greens. I do note that it has been slightly updated, and I appreciate the explanation in relation to the tightening of the actual drafting. The amendment, as Senator Shoebridge has stated, expands the powers of the inspector, but, importantly, the expansion is in line with the recommendations of former New South Wales ICAC inspector Bruce McClintock. Again, when you actually look at the amended provision, it clearly sets out what the functions of the inspector are, and, given that the inspector does provide an essential function in ensuring that the National Anti-Corruption Commission operates lawfully and fairly, the coalition, as I indicated, will be supporting this amendment.

6:57 pm

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

I rise in support of this amendment. I'm very pleased that this amendment has been proposed. I think a major theme coming from the hearings conducted by the joint select committee is the question that was first put by the Roman philosopher and poet Juvenal, which is 'Who watches the watchmen?' And the answer, under this legislation, is the inspector. The inspector is the authority who has the role of making sure that the commissioner and people within the commission don't go off the rails. We heard quite a bit of evidence from a number of jurisdictions about areas where other commissions have not acted as one would have hoped. In this case, by having a strong inspector, I think we maximise the opportunity to make sure that the NACC operates in the way that we all expect it to operate.

There are two other quick points I'd like to make. I'd like to echo the gratitude that was expressed to Mr Bruce McClintock KC, who took the time to make a very detailed submission to the joint select committee and gave some very passionate evidence and testimony which I found very convincing and I think other members of the committee found very convincing.

The last point I want to make is that, just as it's important that the NACC itself is provided with sufficient funding, it is important that the inspector is provided with sufficient funding. I think the first iteration of this bill, which has been substantially enhanced through the parliamentary processes, was underdone. It was underdone in terms of both the role of the inspector and how it was envisaged that the inspector would be resourced. I think we had very compelling testimony from the Victorian inspectorate that we actually need adequate resources for the inspector, as we need for the NACC. So I'm very pleased to see this amendment come before the Senate.

6:59 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

As Dr Seuss would say, 'Oh the jobs people work at!' We need a B-watch watcher, and that's what the inspector is here to do—to be the watcher and keep an eye on the operations of the NACC, going forward. It's an important integrity measure for the NACC. It's one of the measures that I hope that we can agree to so as to provide longevity for the NACC and ensure ongoing public confidence in the NACC. I thank members for their contributions.

Question agreed to.

This should be fairly straightforward and non-contentious. I move Greens amendment number (10) on sheet 1714 revised:

(10) Clause 241, page 203 (after line 25), after subclause (3), insert:

(3A) A person must not be appointed as the Commissioner if the person is or has been a member of:

(a) the Parliament of the Commonwealth; or

(b) the Parliament of a State; or

(c) the legislature of a Territory.

This amendment provides that a person must not be appointed as the commissioner if the person is or has been a member of the parliament of the Commonwealth, the parliament of a state or the legislature of a territory.

The main job of the NACC will be to keep an eye on politicians. Of course, public servants and third parties and some people in corporate Australia who might be seeking to improperly influence politicians and the Commonwealth need to be under the purview and observation of the NACC. But one of the critical jobs of the NACC will be to keep an eye on politicians. We should not, and we must not, appoint a politician to keep an eye on politicians. That's what this provision says. It's one of those cases where justice not only needs to be done but needs to be seen to be done. If the public see the government appointing a politician to keep an eye on politicians, that will inevitably undermine the integrity of the NACC. We believe this amendment is important. We believe that it supports the longevity of the NACC and public support for the NACC, because at the end of the day, we don't want police investigating police and we don't want politicians investigating politicians.

7:02 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

I thank Senator Shoebridge for his amendment. The proposed nominees for appointment to the roles of commissioner, deputy commissioner and inspector would be subject to transparent and merit based appointment processes and statutory eligibility criteria, as well as approval by the parliamentary joint committee. This would ensure that appoints are subject to appropriate oversight and that the recommended candidates for these important roles have the confidence of the parliament. It would be unlikely that a former member of parliament would be suitable for appointment as a commissioner. However, while this is not a qualification, it does not need to be an immediate disqualification. It is unnecessary for the bill to be amended to rule out this possibility, and therefore, the government does not support this amendment.

7:03 pm

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

I note the comments made by the minister. In the same regard, the coalition will not be supporting this particular amendment. The coalition believes that the position of the commissioner must be open to the most qualified and eminent person who applies.

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

One of the reasons we need a NACC is that there are too many jobs for the boys. People cycle in and out of politics and corporate Australia. One moment they are the minister; the next moment they're a lobbyist for the defence industry. One moment they're the Treasurer or the finance minister, and the next moment they're working for one of the major merchant banks. Surely, when it comes to the NACC, we can agree that at least in this one place there shouldn't be jobs for the boys, that there shouldn't be a revolving door that takes you from politics into the NACC. Surely, we can agree on that.

Question negatived.

7:04 pm

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

I move amendment (1) on sheet 1763:

(1) Schedule 1, item 2, page 5 (lines 3 to 11), to be opposed.

Briefly: this amendment ensures that all parts of the National Anti-Corruption Commission Bill 2022 will be subject to review under the Administrative Decisions (Judicial Review) Act. Given the extraordinary powers of the National Anti-Corruption Commission, we believe that it is important that decisions are subject to review in the same way as any other administrative decisions made by government bodies.

7:05 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

TT (—) (): Thanks, Senator Cash, for your amendment. We did discuss this earlier in the day, but just to put the government's position on the record: we will not be supporting this amendment. The consequential bill provides that decisions relating to the commencement of an investigation or inquiry, and intermediary or procedural steps by the commission on the way to reaching its findings, would not be subject to judicial review. This is appropriate, to ensure that the commission's statutory functions are not undermined and delayed as a result of lengthy litigation at each interlocutory step of an investigation, and that investigations and inquiries can be conducted in a timely manner. A person may still seek judicial review of these intermediary or procedural decisions under the Judiciary Act 1903, or in the High Court's original jurisdiction. The government, as I said, does not support this amendment.

7:06 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

nator SHOEBRIDGE () (): For the reasons actually articulated by the minister, the Greens won't be supporting the amendment either. If this amendment from the opposition got up, it would tie the NACC down in endless disputation and legal challenges under the ADJR act. That would largely be done by the powerful, the well-resourced corporations and individuals who we want the NACC to hold to account. It would produce endless legal challenges, delay to the work of the NACC and would largely cruel the ability of the NACC to do its job.

Question agreed to.

National Anti-Corruption Commission Bill 2022, as amended, agreed to; National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 agreed to.

National Anti-Corruption Commission Bill 2022, reported with amendments; National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 reported without amendments.