Tuesday, 29 November 2022
National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022; In Committee
Now that we're in the committee stage, I want to indicate to the chamber that I have only a few questions that I just want to put to the minister and then, obviously, I'm more than happy to move onto the consideration of the amendments so that we can facilitate the bill through the parliament.
Minister, in relation to section 73(3) of the National Anti-Corruption Commission Bill 2022, the Australian Human Rights Commission recommended that the factors in section 73(3) be made mandatory rather than optional. Why has the government not adopted that amendment? It is one of the amendments that the coalition is putting forward. I understand the government is not supporting that amendment. Given that, as I said, it is the Australian Human Rights Commission that have made this recommendation that the factors in section 73(3) be made mandatory and not optional, what is the rationale for the government not adopting this amendment? I understand the amendment we're putting forward will not have government support.
As Senator Cash revealed, where the bill sets out a number of factors which the commissioner may consider when determining whether to hold a public hearing, the government does not consider that it is necessary or appropriate to require the commissioner to consider each of those factors listed in all cases. The commissioner will have the discretion to determine which factors are relevant to the question of whether it would be in the public interest to hold a public hearing and whether exceptional circumstances exist in the context of a specific investigation. Under the bill, the commissioner will be required to be a former state or Federal Court judge or an experienced legal practitioner. As such, they could be expected to bring extensive legal expertise in determining whether the requirements for a public hearing are met. There is limited value in mandating a consideration of a particular issue in circumstances where it would not be a relevant factor.
Thank you for that explanation. Given that it was a recommendation of the Australian Human Rights Commission, did the Attorney-General or the government have discussions with the Australian Human Rights Commission in relation to why they made that recommendation and why the government—given it is the Australian Human Rights Commission—has decided not to? And what was the feedback given by the Australian Human Rights Commission?
Those views that were expressed by the Human Rights Commission were expressed in the context of the Senate inquiry. My understanding is that the inquiry did not make a recommendation to back in the view of the Human Rights Commission, so, yes, the Attorney-General considered those views in the context of the broader inquiry.
The opposition has also proposed an amendment that would require a commissioner and a deputy commissioner to act in concert to commence a public hearing. This was a recommendation of Dr James Renwick, the former Independent National Security Legislation Monitor. Again, could we just work through the rationale behind why the government has not adopted what many would say is a very sensible recommendation?
As Senator Cash has indicated, this is the subject of an amendment that the opposition will be moving. Fundamentally, what this comes down to is that the government considers that the commissioner will be best placed to determine whether to conduct a public hearing, including whether it is in the public interest and whether exceptional circumstances justify doing so. The commissioner will be required to ensure that the benefits of holding hearings in public are balanced with other potential negative impacts. We should not operate on the presumption that the commissioner, who will have extensive legal expertise, will not apply this test in a rigorous, fair and dispassionate manner.
These are amendments that we are putting forward. I understand they don't have the government's support but it is just about getting the rationale behind why the certain decisions were made. The Law Council made a suggestion 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. Again, given that this is a recommendation from the Law Council of Australia and they have recommend the addition of a public interest test, can I just better understand the rationale again behind why the government hasn't taken on this recommendation? And very similar to my first question in relation to the Australian Human Rights Commission, in making this determination, what discussions were had with the Law Council in relation to why their suggestion was not being adopted and what feedback the Law Council gave to the government?
The commissioner will be able to investigate serious or systemic corrupt conduct that occurred before the commission was established. It will be a matter for the commissioner to determine what matters involving past conduct to investigate. The government does not support limiting this discretion for the commissioner. It can be expected that the amount of time that has elapsed since the conduct is alleged to have occurred will be a factor considered by the commission in determining whether it is a priority for investigation. In some cases the passage of time will also affect the extent to which the commission is able to obtain information and evidence. These are entirely ordinary considerations for law enforcement and investigative agencies to take into account when deciding whether to open investigations into allegations relating to historic conduct. You will see a bit of a running theme between my responses to these questions, which is that we are trying to preserve the independence of the commission to make its own decisions about what to investigate—who, when—without tying it up with great limitations.
You referred to one factor that the commission might take into consideration, and that was in relation to the effluxion of time. Just again, for the benefit of the Hansard record in particular, what are the other factors that will be considered by the commissioner in determining whether or not they should conduct an investigation into past conduct?
I probably can't add a lot to what I've already said, but one of the things I also said which is related to time is, frankly, the strength of evidence. As Senator Cash would know being a former lawyer herself, there are usually evidentiary problems that arise the longer ago an incident occurred. So I would expect, obviously, the presence of evidence to support an allegation will be an important consideration, and that tends to decrease as time goes on.
Another recommendation by the Law Council of Australia was that the administrative appeals (judicial review) act be applied to all aspects of the National Anti-Corruption Commission Bill. As you would be aware, the bill currently has significant carveouts with part 6 on investigations and part 7 on hearings. They were excluded. Again, this was a recommendation from the Law Council: why doesn't the government want people brought before the National Anti-Corruption Commission? I know in the second reading speech that I presented to the Senate yesterday, it's not just obviously about a small group of people being parliamentarians; it does go to an estimated one million people who could possibly be brought within the remit of the National Anti-Corruption Commission. So it's the concern in relation to people being brought before the National Anti-Corruption Commission having that access to judicial review and I think in the examples that we gave yesterday—Comcar drivers, cleaners in Parliament House et cetera—to have access to judicial review as they would in relation to most other decisions of Commonwealth departments.
I think Senator Cash's question goes to an additional amendment that the opposition intends to move. The purpose of that amendment is to remove the provisions that would exempt certain decisions under the NACC Bill from review under the ADJR Act. The consequential bill that we're dealing with here 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 review under the ADJR Act. 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. That's why, when we get to it, the government will not be supporting this amendment.
Minister, again I have a number of questions coming out of the joint select committee which I served on. I appreciate you weren't there during the course of the hearing. The issue arose during the course of the hearing as to whether or not someone who's subject to a notice to produce or to testify at private hearings could tell their spouse, and we heard testimony during the course of the hearing about the psychological pressure that people are under in the context of a corruption inquiry. Why should someone not be permitted to tell their spouse, their closest psychological support, in circumstances where the spouse themselves is not the subject of a corruption investigation? Why is it that this bill doesn't provide that someone who's the subject of a corruption investigation can tell their spouse where their spouse is themselves not the subject of a corruption investigation? Doesn't that just reflect the reality of social relationships and the need for people to have the love and support of their closest person in this world?
Thanks, Senator Scarr. I can assure Senator Scarr that the legislation as it's currently drafted does provide the commissioner with the discretion to allow people who are the subject of a notice to produce or a private hearing summons to disclose that to their family members, but on a case-by-case basis. So there's not an across-the-board permission for someone who is the subject of that sort of notice to inform their spouse. That's because in many cases it may be that family members may also be subjects of the same investigation or separate investigations. They may be the beneficiaries of allegedly corrupt conduct or they may be key witnesses in their own right. Nevertheless, the legislation does provide discretion to the commissioner to allow a disclosure to a family member on a case-by-case basis.
But, in a situation where the spouse themselves is not the subject of the corruption investigation, doesn't it simply reflect the reality that one would reasonably expect a person who is the subject of a corruption investigation to communicate with their spouse and to seek love and support from their spouse? That is something human experience tells us should not be subject to the discretion of a commissioner or anyone in a position of power.
Well, I imagine that that is exactly the kind of situation where the commissioner may decide to allow someone to disclose this to a family member. But we think it's dangerous to allow that to happen in every single case without any reference to the commission itself, because there are cases where family members may also be the subject of the same investigation or separate investigations, and if we were to allow an across-the-board permission for people to disclose these types of matters to their spouse then that would potentially jeopardise investigations. But the case-by-case discretion for the commissioner exists under the legislation.
Minister, the Law Council of Australia raised concerns with respect to the abrogation of the privilege against self-incrimination. I know, given your experience, you're well acquainted with the foundation stones of the privilege against self-incrimination and also privileges relating to legal professional privilege. Why shouldn't the commission exhaust all other coercive powers before abrogating the principle against self-incrimination?
Thanks, Senator Scarr. Of course, the privilege against self-incrimination is an important principle in our justice system, and the bill does contain strong safeguards around the use of information that the commission obtains at hearings and in response to notices to produce. The bill does prohibit evidence obtained through the commission's coercive powers from being admitted in confiscation proceedings where those proceedings are already on foot or are imminent when the commission holds a hearing. We think that this strikes an appropriate balance to ensure that allegedly corrupt public officials can't retain the proceeds of their corruption, while ensuring the commission's powers cannot be used to advance proceedings that are imminent or already on foot. That point I'm making particularly relates to self-incrimination as it relates to confiscation proceedings.
More generally, our position is that corrupt conduct poses a significant risk to the community and corrodes public trust in public institutions. Corruption investigations are inherently concerned with how and why public officials have made allegedly corrupt decisions, and therefore require that anticorruption commissions have powers to require persons to explain their conduct. For this reason, the bill abrogates the traditional privilege against self-incrimination. This approach is consistent with that of all state and territory anticorruption commissions, and it's appropriate as it will ensure the commission can conduct corruption investigations in a timely fashion and hear evidence on matters that would ordinarily be protected, to ensure that the commissioner is fully informed.
Again, I know this relates to an amendment the opposition intends to move, which we will be opposing because we think that if the amendment were to pass it would significantly limit the commission's investigative powers.
For the purposes of time, a number of the questions we have do relate directly to the amendments the opposition will be moving. We won't ask further questions directly now; we'll ask them in the amendment stage. If the Australian Greens wanted to move their first amendment, we'd be—
The CHAIR: Senator Cash, I want to open up the call on those lines of questioning that the opposition have done. Does any honourable member wish to contribute to that line of questioning before we go to the amendment?
I have a separate line of questioning.
The CHAIR: I'm open to any line of questioning. I'm holding off going to the amendments for the benefit of honourable members.
My question is to the minister. Can you articulate what circumstances the government envisages would meet the exceptional circumstances test? Can you articulate one instance that would meet the exceptional circumstances test for the purposes of a public hearing?
I know that this is a point you've raised throughout the consideration of this legislation, Senator Shoebridge. I've heard you raise it several times in the media, as well.
As we have said on numerous occasions, we don't believe that it is useful to narrow the commission's discretion by explaining for the commission what 'exceptional circumstances' constitutes. What this all gets back to is the ability under the legislation for the commission to hold public hearings in exceptional circumstances. As I said earlier in response to a question—I think from Senator Cash—we have deliberately taken the position in constructing this legislation that the commission should have independence from the government to make its own decisions about what it investigates, who it investigates, the time frame of an investigation and whether it holds public hearings or not in exceptional circumstances. So I'm not going to give examples of what those exceptional circumstances might be, because I don't want to unreasonably constrain the independence of the commission.
That's interesting, but if you gave one non-exclusive example, far from limiting the commission's capacity, it would be a clear example that showed the government's intent. Is it really the case that you can't think of a single example where the government would be satisfied that the exceptional circumstances test is met? Is that really where we're at after a decade of debate and a Labor commitment before the election to have the test based on the public interest—and we're now here, in the last few hours of debate—that the government can't think of a single case that would see a public hearing being held?
I suspect this is something we're going to have to agree to disagree on. It's not that the government can't think of examples of exceptional circumstances; it's that the government does not wish to constrain the commission by giving examples of exceptional circumstances.
I can think of examples of what I'd think might be exceptional circumstances, and I'm sure that you can as well, Senator Shoebridge. But it's neither your job nor mine to decide for the commission what those exceptional circumstances are. It's the job of the commission, acting independently of government, without being constrained by examples or rules that a government puts down. We want this to be an independent body. We want it to make its own decisions about what it considers to be exceptional circumstances, which may very well be the same as I think, or it maybe something different.
If the government genuinely didn't want to constrain the NACC's ability to hold public hearings, then why did they move away from its election commitment to simply have a test based on the public interest, which works so well in jurisdictions like the New South Wales ICAC. Why did the government move away from that election commitment and insert the additional threshold of 'exceptional circumstances'? What was wrong with the public interest test that you took to the election?
Senator Shoebridge, while I didn't take part in the Senate inquiry, I have no doubt that this is something that you have asked repeatedly and had answered many times. I respect your right to keep asking the same questions, but you have heard these answers before.
The government has come to a view that the commissioner is best placed to determine that public hearings should be able to be held in exceptional circumstances. The reason we have taken that path is that we think it is the commissioner's role to make that decision, rather than setting a different test—the test that you are advocating yourself.
Minister, why does your government think that politicians in this place, in the federal parliament, should have that shield and protection from public scrutiny based on an exceptional circumstances test, when we know that in New South Wales, as a key example, that shield isn't there and the public interest test has been so effective in holding politicians to account at a New South Wales level? What's special about federal politicians that they need this protection?
I suspect this will be the first of many times that Senator Shoebridge seeks to mischaracterise the government's position. We've become pretty well acquainted with that style of debate from Senator Shoebridge in his short time here. But, as Senator Shoebridge knows, there are different approaches that are taken by different states as to how they handle public hearings. New South Wales takes a different approach to, for instance, what happens in South Australia, what happens in the Northern Territory, and possibly other jurisdictions.
Where the government has landed—and let's not forget there were people in this place who didn't think there should be any public hearings whatsoever, and that is not the position of our government. We think there is a place for public hearings, for corruption investigations, but we think they should apply in what the commission considers to be exceptional circumstances. I look forward to Senator Shoebridge telling me something different to what I just said, in his next contribution.
I have a question also relating to exceptional circumstances. I note the Labor Party's platform leading into the election. The National Anti-Corruption Commission fact sheet says, 'The commission will have the power to hold public hearings where the commission determines it is in the public interest to do so.' I've heard and take on board your feedback. My question is: given how much we've heard about election commitments, can you confirm that your government is open to changing its mind on an election commitment when presented with other information?
Thanks, Senator Pocock. Can I thank you for your co-operation and negotiation throughout this debate. I know this is something that's been important to you as well. I don't think I'm going to fall into the trap, though, of answering hypotheticals about what we might do about election commitments. I'd probably want to know a little bit more detail about what you're talking about before I answer that kind of question. But, in the process of drafting this legislation, we think that we've the balance right in limiting the commission's ability to hold public hearings to what it considers to be exceptional circumstances.
Thank you, Minister, for that. I appreciate your engagement on this issue. I just want to confirm that you accept the view that, if this is legislated in its current form, it will differ from what the now government went to the election promising the Australian people.
I don't think I'm going to get into how every word of what we've ended up presenting is identical or slightly different to an election commitment. I think it was very clear, heading into the election, that, if the Australian people voted for an Albanese Labor government, they would get a national anticorruption commission, something that the former government resisted every step of the way. I'm very proud that it is going to be an Albanese Labor government that delivers, for the very first time, a national anticorruption commission.
Minister, do you accept the basic premise of what Senator Pocock has put to you, which is that you went to an election promising public hearings based upon a public interest test, and you've now junked that commitment, and you've put in this additional—much, much harsher—test of 'exceptional circumstances', which is contrary to what you took to the election?
What I would accept is that it will be an Albanese Labor government that delivers a national anticorruption commission. That was our promise. That's what we're delivering. I think it's fabulous, and it's a great day for Australian democracy if we can get this passed and established. The final form of this bill, whether it be in relation to this matter or any other, is the result of extensive consultation that the government has undertaken since winning the election.
tor SHOEBRIDGE () (): I move amendment (1) on sheet 1730:
(1) Clause 3, page 3 (line 7), at the end of clause, add:
; (e) to establish an independent National Anti-Corruption Commission.
This amendment, if accepted, would fill a gap in the bill. The bill as proposed, in its principles and objects, does not contain one key statement of principle, which is that we are establishing an independent national anticorruption commission. We heard in the committee, from witnesses very familiar with the New South Wales commission, that that clear statement of intent in the objects of the bill, stating unambiguously that we are establishing an independent national anticorruption commission, will be important, because, if there is any ambiguity about how the act should operate, and it faces legal challenge, one of the first things a court will do is go back to the objects and say, 'What was parliament trying to establish here?' Surely we can unite on this and say that one of the key objects of this bill is to establish an independent national anticorruption commission. For those reasons, I commend the amendment to the house.
I thank Senator Shoebridge for his amendment. The government, of course, supports the independence of the National Anti-Corruption Commission. I've made that point several times myself this morning, and I know other members of our government—in particular, the Attorney-General, Mr Dreyfus—have made the same point repeatedly over the last few months. One of the seven design principles for the commission that the government took to the election was that the commission would operate independent from government. The independence of the commission will be critical to its credibility and effectiveness. The bill contains a number of provisions to ensure the commission's independence, including that the commissioner will be able to receive complaints or referrals from any source, including the public; the commissioner will be able to commence corruption investigations and public inquiries on their own motion; the appointments of the commissioner and deputy commissioners will be subject to approval by a multipartisan parliamentary joint committee; and the commissioner will be appointed for a single fixed term and will have security of tenure comparable to that of a federal judge, ensuring the officers of the commission can undertake corruption investigations without fear of removal from office due to any findings they might make.
The government does not, however, support amending the objects clause to include a reference to the commission's independence. The objects clause in the bill is intended to set out the ultimate purpose of the legislation which, in the case of the NACC Bill—as this bill has become known—is to enable or facilitate the prevention, detection, timely investigation and referral for prosecution of corrupt conduct and to educate and provide information about corruption. The commission will be the means through which these objects are achieved, and its independence will assist in achieving these objects. However, neither the commission nor its independent status are ends or objects in their own right. For that reason, the government does not support this amendment.
I will make some very brief comments on behalf of the opposition. The opposition also won't be supporting the amendment. We consider that the amendment is unnecessary. I understand it was not recommended by the committee that looked into the National Anti-Corruption Commission, and it does not reflect common drafting practice across the Commonwealth statute book.
I would like to thank the minister and Senator Cash for their contributions. Of course, the bill is the National Anti-Corruption Commission Bill. Its purpose is to establish a commission. It's hopeful that that commission will fight corruption and put in place education measures and—hopefully, if they can ever overcome the test of exceptional circumstances—expose any existing corruption to the full glare of public review to provide that ultimate discouragement from corruption. So, given that the bill is to create a national anticorruption commission—in fact the bill is a national anticorruption commission bill and not a national anticorruption measure—I cannot understand, Minister, why you can't see that one of the core objects should be to establish an independent national anticorruption commission? I can tell you now that the people of Australia want to see this. They don't just want some amorphous anticorruption measure. They want us to establish—unambiguously, in black and white—an independent national anticorruption commission Why won't you accept that as one of the key objects?
I refer to my previous answer. I can't really add much more to that, other than to remind Senator Shoebridge of the number of provisions in the bill which very strongly preserve the commission's independence.
The CHAIR: The question before the chair is that the amendment moved by Senator Shoebridge on sheet 1730 be agreed to.
by leave—I move opposition amendments (1) to (30) and (32) and (33) on sheet 1762 together.
(1) Clause 4, page 3 (lines 18 and 19), omit ", or that could adversely affect,".
(2) Clause 7, page 10 (lines 24 to 27), omit the definition of official of a registered industrial organisation.
(3) Clause 8, page 15 (line 6), omit "or that could adversely affect,".
(4) Clause 9, page 17 (line 25), omit "conduct; or", substitute "conduct.".
(5) Clause 9, page 17 (line 26), omit paragraph (1)(c).
(6) Clause 12, page 25 (table item 2, column headed "Individual"), omit "(other than an official of a registered industrial organisation)".
(7) Clause 14, page 28 (lines 2 and 3), omit "(other than an official of a registered industrial organisation)".
(8) Page 47 (after line 10), at the end of Division 3, add:
39A Offence — vexatious referrals
A person commits an offence if:
(a) the person refers a corruption issue to the Commissioner; and
(b) the Commissioner does not reasonably suspect that the conduct to which the issue relates has been, or is being, engaged in; and
(c) there is no basis on which a reasonable person could suspect that the conduct to which the issue relates has been, or is being, engaged in; and
(d) the referral is made with the intention of causing a detriment to another person.
Penalty: Imprisonment for 12 months.
39B Offence — disclosure of referrals
A person commits an offence if:
(a) a corruption issue is referred to the Commissioner; and
(b) the person discloses to the public that the corruption issue has been referred to the Commissioner; and
(c) the disclosure is not authorised by or under this Act.
Penalty: Imprisonment for 12 months.
(9) Clause 40, page 48 (after line 6), after subclause (1), insert:
(1A) However, if the corruption issue could, in the Commissioner's opinion, involve corrupt conduct that occurred before the commencement of section 8, the Commissioner may deal with the corruption issue only if the Commissioner is satisfied that it is in the public interest to do so.
(10) Clause 45, page 52 (line 20), omit "is satisfied", substitute "and a Deputy Commissioner are satisfied".
(11) Clause 45, page 52 (line 21), after "Commissioner", insert "and a Deputy Commissioner".
(12) Clause 45, page 52 (line 27), omit "and the Commissioner considers", substitute "and the Deputy Commissioner and the Commissioner and the Deputy Commissioner consider".
(13) Clause 45, page 53 (line 9), after "Commissioner", insert "and a Deputy Commissioner".
(14) Clause 73, page 70 (line 18), omit all the words from and including "decides" to the end of subclause (1), substitute "and a Deputy Commissioner decide that the hearing, or part of the hearing, is to be held in public".
(15) Clause 73, page 70 (lines 20 and 21), omit all the words from and including "may decide" to and including "Commissioner is", substitute "and a Deputy Commissioner may decide that a hearing, or part of a hearing, is to be held in public if the Commissioner and the Deputy Commissioner are".
(16) Clause 73, page 70 (lines 25 and 26), omit all the words from and including "to hold" to and including "the Commissioner", substitute "a hearing, or part of a hearing, is to be held in public, the Commissioner and a Deputy Commissioner".
(17) Clause 73, page 70 (line 26), omit "may", substitute "must".
(18) Clause 73, page 71 (line 14), after "Commissioner", insert "and a Deputy Commissioner".
(19) Clause 81, page 75 (line 7), before "A person", insert "(1)".
(20) Clause 81, page 75 (after line 17), at the end of the clause, add:
(2) Subparagraph (1)(b)(ii) does not apply if the person was not given a reasonable opportunity to answer the question.
(21) Clause 82, page 76 (lines 1 to 4), omit paragraph (b).
(22) Clause 95, page 85 (lines 9 and 10), omit subclause (2), substitute:
(2) The notation:
(a) must permit disclosure of information to:
(i) the spouse of the recipient of the notice to produce or private hearings summons (unless the spouse is a subject of the corruption investigation in relation to which the notice or summons is given); and
(ii) any mental health professional who is providing mental health care to the recipient of the notice to produce or private hearings summons; and
(b) may permit disclosure of information in other specified circumstances.
(23) Clause 98, page 88 (line 11 to 17), omit paragraph (3)(e), substitute:
(e) by a legal practitioner for the purpose of giving legal advice to, or making representations on behalf of, the person on whom the notice or summons was served; or
(24) Clause 113, page 102 (lines 3 to 6), omit subclause (1), substitute:
(a) a person is required, by a notice to produce or at a hearing, to give an answer or information, or to produce a document or thing; and
(b) all other coercive powers available to the Commissioner to obtain the information, document or thing have been exhausted;
the person is not excused from giving the answer or information, or producing the document or thing, on the ground that doing so would tend to incriminate the person or expose the person to a penalty.
(25) Clause 113, page 102 (lines 7 to 11), omit subclause (2), substitute:
(a) the answer or information given, or the document or thing produced; and
(b) any information, document or thing obtained as a direct consequence of the giving of the answer or information or the production of the document or thing;
is not admissible in evidence against the person in:
(c) a criminal proceeding; or
(d) a proceeding for the imposition or recovery of a penalty; or
(e) a confiscation proceeding.
(26) Clause 113, page 102 (lines 17 to 20), omit subparagraph (3)(b)(i).
(27) Clause 113, page 103 (lines 1 and 2), omit the note.
(28) Page 103 (after line 5), after clause 113, insert:
113A Leg al professional privilege
This Act does not affect the law relating to legal professional privilege.
(29) Clause 114, page 103 (lines 11 to 13), omit paragraphs (1)(a) and (b).
(30) Clause 114, page 103 (line 17) to page 104 (line 2), omit subclauses (2) to (5).
(31) Clause 115, page 104 (lines 12 to 28), to be opposed.
(32) Clause 154, page 131 (after line 32), at the end of the clause, add:
(7) The Commissioner must give an investigation report, or a protected investigation report, to a person in accordance with this section no later than 12 months (or such longer period as a court allows) after the earlier of the following:
(a) the time when the corruption issue to which the report relates was referred to the Commissioner;
(b) the time when the Commissioner became aware of the corruption issue to which the report relates.
(33) 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, the decision to approve the recommendation must be supported by at least a three-quarters majority of all of the members of the Committee.
(2B) Paragraph 173(5)(b) does not apply in relation to a vote on a decision to approve or reject a proposed recommendation.
I did refer to these amendments in my second reading speech. I have questioned the minister this morning in relation to the rationale behind the government not supporting them.
I won't respond to every one of those amendments but what I will say is the Greens' approach to this package of opposition amendments is that we don't support them because, by and large, they put in place a whole lot of trip wires for the commission's jurisdiction, which would allow empowered and wealthy individuals, and empowered and wealthy corporations, to bring a series of unmeritorious legal challenges which would ultimately delay the NACC's work by sometimes months or, as we've seen in Victoria, sometimes years through legal challenge after legal challenge.
We want ensure that the National Anti-Corruption Commission can get on and do its job and, if they were accepted, these amendments would prejudice the capacity of the NACC to do its work. We note as well that there are some other amendments here seeking to overtly rope in registered industrial officials by definition. We're firmly of the view that if any member of a union is exercising any federal power and acts in a potentially corrupt way then that conduct would already be the subject of review by the NACC. We don't see any merit in the proposed amendments being put forward. When I say that, I know the unions collectively are also perfectly comfortable with that position.
This bill will provide the appropriate level of accountability, and we won't be supporting these kinds of amendments that, I think, would by and large tie the commission down in endless legal challenges and prevent it from reviewing, amongst other things, what's happened in the last nine years in this place.
The government will also be opposing each of the opposition amendments. We've traversed why in the earlier discussions, so I won't go over it in great detail. I want to reinforce the point that one amendment that the opposition is moving, in our view, seeks to limit the past conduct that the anticorruption commissioner could investigate. The ability to investigate past conduct was an important difference between the model the government is putting forward and what the opposition put forward when they were in government. We don't think that we should be limiting the commission's powers to investigate past conduct. We think we should leave it to the commission to determine that rather than putting restrictions around that. We will be opposing these amendments for reasons I have gone into previously and for reasons the Attorney-General detailed in the House.
The CHAIR: I put the question, as moved by Senator Cash, that amendments (1) to (30), (32) and (33) be agreed to.
The CHAIR (12:57): I now put the question that clause 115 stand as printed.
Question agreed to.
At this stage, I move Greens amendment (2) on sheet 1730:
(2) Clause 8, page 15 (line 20), at the end of subclause (1), add:
; (e) any conduct of a public official in that capacity that constitutes, involves or is engaged in for the purpose of corruption of any other kind.
I'll speak to Greens amendments (1) and (3) at the same time, because that might be convenient.
Amendment (2) seeks to re-insert a provision that was stripped out by the other place in relation to the definition of 'corruption' found in section 8 of the bill. There was some discussion about this during the committee hearing in relation to the bill, and there were a minority of participants in that committee inquiry—the Queensland Bar Association and the South Australian Bar Association—who were anxious about what was then section 8(1)(e) of the bill. It had an extended definition of corruption for the purposes of the jurisdiction of the NACC, which included any conduct of a public official in that capacity which constitutes, involves or is engaged in for the purpose of corruption of any other kind. The concern that was raised by a minority of participants in the inquiry was that that was somehow too broad.
The Greens simply don't accept that, and I know that a number of other crossbench members, in the other place in particular, oppose the stripping out of that. That's for the very good reason that the argument that it's too broad fails to engage with how this provision fits within the bill. First of all, for this provision to be engaged, the NACC have to be satisfied that what they're looking at is corruption. Corruption has a well-understood definition and meaning and, as we've seen just from the last week in federal politics, politicians can keep coming up with new and novel ways to betray the public trust. We saw that in the report that was released on Friday by the honourable former Justice Bell in relation to the former Prime Minister, where we saw an example of what I would say is corrupt conduct that no-one would have thought possible 12 months ago. The now former Prime Minister sought to have multiple ministerial appointments and kept that secret from the public, the parliament and even his own colleagues: who would have thought that kind of corruption could have been cooked up 12 months ago?
We've also seen in the last week the conduct of another member of the other place exposed as being, basically, an agent for sale—seeking to lobby in his role as a backbencher for whoever was willing to put cash in his tin. He has been exposed for doing that. Maybe that kind of appalling behaviour is more predictable. But we can see, just from the last week, how politicians keep coming up with new and novel ways to corrupt this parliament and to engage in corrupt conduct. So of course we need a broad definition going forward, because heaven knows what they'll come up with next to try to corrupt the public interest.
Further: for this clause to be engaged the NACC also has to be satisfied that it's not just corruption but serious or repeated corruption. So the question we ask of both the government and the opposition is: what kind of serious or repeated corruption do you not want the NACC to look at? That's the ultimate test here. If they oppose reinserting this subsection 8(1)(e) then they're saying that there's some serious or repeated corruption that they don't want the National Anti-Corruption Commission to have jurisdiction in relation to. If that's so, tell us what it is. Tell us what that corruption is, because we don't think we should be shutting the gates and closing the categories of corruption. That's because we know how in the past politicians have kept coming up with new and novel ways to corrupt parliament, to corrupt government and to betray the public interest.
As I said, I think we're all becoming accustomed to Senator Shoebridge's style of argument, which is to say that if you don't agree with what he's saying then you're in some way a terrible person. We've heard that loud and clear. But we're confident that the legislation we have put forward to the parliament strikes the right balance and, for the very first time, sees an Australian government taking issues of corruption seriously at the federal level.
Senator Shoebridge's first amendment, item (2), seeks to reinsert a paragraph in the bill as to the definition of corrupt conduct: I'm sure Senator Shoebridge is aware that what we've done in omitting that paragraph is to accept the recommendation of the joint select committee that looked at this bill. That was a joint select committee that included representatives of the Australian Greens. That committee recommended this clause be omitted from the bill, that committee included members of the Greens, and that's what we're doing.
I might also point out that Senator Shoebridge has tried to characterise the people who support the government's position as being some kind of a minority. That's a minority that includes the Law Council of Australia and the Australian Human Rights Commission, who also agree with the government, and, for that matter, the joint select committee, that this clause should be omitted from the bill.
Paragraphs 8(1)(a) to 8(1)(d) of the bill, which are retained here, would provide the commission with broad jurisdiction to investigate corrupt conduct consistent with most state and territory models. The government is confident that the amended definition of 'corrupt conduct' will enable the commission to effectively investigate any form of serious or systemic corrupt conduct that is referred to it or that it may identify itself. For that reason, we won't be supporting that amendment.
In relation to the second amendment, item (3): as the Attorney-General has noted, there's a point at which the making of discretionary grants can cross the line into corruption—referred to as pork barrelling—where public money is being given away for private purposes. The bill would enable the commission to investigate serious or systemic corrupt conduct in relation to a discretionary grants program where that conduct may involve a breach of public trust or dishonest or partial conduct. These are well-established concepts which are being considered by the New South Wales Independent Commission Against Corruption in its Operation Jersey. If there are circumstances where grants are allocated dishonestly or for an improper purpose, the commission has the power to decide to investigate if it is of the opinion that this could involve serious or systemic corruption. There is a range of other activity going on within the Albanese government in this space, including the Minister for Finance considering opportunities to strengthen the Commonwealth Grants Rules and Guidelines. For these reasons, the government does not support this amendment.
I note that the Australian Greens have moved amendment (2) as opposed to amendments (2) and (3), but I will put on the record the coalition's comments in relation to both amendments (2) and (3).
As we have throughout the entire process—I know I have Senator Paul Scarr in the chamber with me—we approach this legislation in the spirit of bipartisanship. In particular, as the minister has outlined and as Senator Scarr knows, we accept the recommendations of the joint select committee. They were consensus recommendations. The committee investigated these matters in detail. They worked through these matters, listened to the evidence and, as I've said, made consensus recommendations, which we support.
Amendment (2) contradicts the consensus recommendations of the joint select committee. Even the Law Council, the Queensland Law Society and the Australian Human Rights Commission all expressed the view that the provision was both circular and unclear. To that extent, it will make it difficult, if not impossible, for public officials to know what conduct is actually captured within the provision. There is no clear or compelling case, in particular given the recommendations coming out of the joint select committee, for including this provision. I note that even the Attorney-General's Department, responsible for the drafting of the bill and the preparation of the explanatory materials, were themselves unable to identify a single example of conduct which would be captured by the clause.
In relation to amendment (3), we would say it is a legislative note but the amendment is actually unnecessary. Again, we have approached this bill in the spirit of bipartisanship; I thank Senator Paul Scarr for the work he undertook on behalf of the coalition. When you look at the joint select committee, it considered the definition of 'corrupt conduct' in detail. Again, when you look at the recommendations of the joint select committee, this is not a provision that was recommended. In addition to not being recommended by the committee, when you look at the drafting we have it is problematic in that it leaves the scope of the commission's jurisdiction unclear. We would say the better approach is to make clear that the commission's role is to investigate serious or systemic corrupt conduct, as the legislation currently does.
I reiterate that, as we have throughout, we approach this legislation in the spirit of bipartisanship, and we will support the consensus recommendations of the committee in that regard. The opposition will not be lending its support to either of these amendments.
SHOEBRIDGE () (): It might be convenient if I briefly speak now to amendment (3) on that sheet as well. First of all, in relation to both amendments (2) and (3) I note that the minister and Senator Cash have referred to the committee's review of this. Of course, these recommendations were not by consensus. In relation to the absence of an express definition of pork-barrelling, both the member for Indi, Dr Haines, and myself, on behalf of the Greens, indicated, and said unambiguously, that given the level of public concern regarding the alleged misuse of billions of dollars of public grants funds there is real merit in expressly addressing this in the definition of corruption. I don't know how clear you can be, but the failure to include an express roping in of pork-barrelling was not by consensus.
We've seen, in this parliament, billions of dollars of public money being rorted by way of pork-barrelling. I know from my experience in the New South Wales parliament that billions of dollars were rorted there too by way of pork-barrelling. There is real public revulsion about it. We want to be unambiguously clear that the NACC has the jurisdiction to look at pork-barrelling. In that regard, our amendment (3) is simply to put in a notation to the definition of corruption that provides, by way of guidance, that corrupt conduct may include conduct that constitutes pork-barrelling or political donations for the purpose of influencing a decision or policy made by a public official. Of course that should be in and of course the NACC should be able to look at that. I can't understand the resistance of both major parties from expressly including a reference to the corrupting power of both pork-barrelling and political donations. Of course, that would be consistent with the position that was adopted by the crossbench members in the parliamentary oversight.
When it comes to the removal of clause 8(1)(e), again, it's wrong to state that that was by consensus. On behalf of the Greens, I made it abundantly clear, including in the report, that the definition of corrupt conduct in 8(1)(e) should be retained. And I made the arguments, that you can hear today, that it is not an open-ended definition. It has to be serious or systemic and it has to be corruption.
What I fail to hear from either the government or the opposition is—the obvious question that's asked when you oppose this definition—what kind of serious or systemic corruption do you think the NACC should be able to investigate? What's the serious or systemic corruption that you think should not be able to darken the door of the National Anti-Corruption Commission? I commend both amendments (2) and (3) to the Senate for those reasons.
by leave—I move amendment (3):
(3) Clause 8, page 15 (after line 20), at the end of subclause (1), add:
Note: Corrupt conduct may include conduct that constitutes pork barrelling or political donations for the purpose of influencing a decision or policy made by a public official.
The CH AIR: The question before the chair is that amendments (2) and (3) on sheet 1730 standing in the name of Senator Shoebridge be agreed to.
The CHAIR (13:19): We now come to sheet 1769, standing in the name of Senator David Pocock.
by leave—I move amendments (1) to (4) on sheet 1769, circulated in my name, together:
(1) Clause 8, page 15 (line 20), at the end of subclause (1), add:
; (e) any conduct of a public official that involves the allocation of public funds or other resources to targeted electors for partisan political purposes.
(2) Clause 8, page 15 (after line 20), after subclause (1), insert:
(1A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:
(a) collusive tendering;
(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources;
(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;
(d) defrauding the public revenue;
(e) fraudulently obtaining or retaining employment or appointment as a public official.
(3) Clause 8, page 15 (line 21), omit "does not", substitute "and subsection (1A) do not".
(4) Clause 8, page 16 (line 15), after "paragraph (1)(a)", insert "or subsection (1A)".
These amendments were moved by the member for Indi, Helen Haines, in the lower house. Again, I would like to thank her for her work on this issue over many years.
These amendments make clear that pork-barrelling is corruption. We've seen concerns in communities across the country with the way that public funds have been allocated for political gain. This makes it clear that that can be investigated. I'm also concerned that this bill falls short when it comes to conduct by third parties that could impair public confidence in public administration—in particular, practices of collusive tendering, dishonestly obtaining benefit from public funding decisions and defrauding public revenue. This makes it clear that those are included.
It's clear that to restore public trust we need the very best model of a national anticorruption commission we can possibly have. We should be aiming for world-leading; that's what the Australian people have called for and expect. I believe these amendments go some way to ensuring that we make explicit what we are hearing is implied by this legislation.
Thank you, Senator Pocock, for your amendments. The commission will be a specialist body focused on preventing, detecting and investigating corruption involving public officials. The commissioner will be able to fully investigate serious or systemic corrupt conduct and transactions between public officials and third parties as well as attempts by third parties to corrupt public officials. This includes the conduct referred to in Senator Pocock's proposed amendment, where there is some involvement of a public official.
Extending the commission's jurisdiction beyond matters involving corruption of a public official to include external frauds against the Commonwealth that do not involve a public official would divert the commission from its core purpose. For that reason the government does not support items (2), (3) and (4) on Sheet 1769.
In relation to the yet-unmoved amendment items (5) and (6) on sheet 1769—and again I thank Senator Pocock for these amendments: the government has committed substantial funding of $262 million over four years for the establishment and ongoing operation of the commission. The parliamentary joint committee on the commission will have the function of reviewing the commission's budget and finances, of reporting to the parliament on whether the commission's resources are sufficient to effectively perform its functions and whether its budget should be increased. The committee would be able to review the commission's budget at any time. We think, therefore, that the commission's budget and the certainty around its budget is sufficiently preserved, and we do not consider that further amendments would meaningfully enhance the commission's role. For that reason we don't support these amendments either.
I note that Senator Pocock has moved amendments (1) to (4) on Sheet 1769. There are also amendments (5) and (6) on Sheet 1769, which he has not moved, but I will speak to both.
The opposition will not be supporting the amendments put forward by Senator Pocock. As I've already referred to in relation to the previous amendments that were before the Senate, these amendments, in part, would expand the definition of corruption. They would require that the committee review the National Anti-Corruption Commission budget annually, and require the minister to provide a statement of reasons in the event that they did not act in accordance with the recommendations of the committee on the finance and resources. In terms of the latter part, the coalition believes budgetary decisions in relation to any government agency should be left to the government of the day. In terms of the other amendments, we believe that the government has got the balance right in relation to the definition of corruption.
I'd also refer to the comments I made in relation to addressing amendments put forward by the Australian Greens, particularly following the government amendment in the House following, again, the consensus recommendation of the joint select committee. As such, the coalition will not be supporting these amendments.
Minister, could you clarify and confirm that the NACC will be able to investigate corruption when a public official is involved but is not actually aware that they're involved in corruption? For example, if there's collusion to withhold information from a public official that leads to a certain decision, so the public official is involved but doesn't necessarily know that they're involved. Can that still be investigated as part of the NACC?
Deputy President, I can indicate the Greens will be supporting amendments (1) to (4) as moved by Senator Pocock—I don't think amendments (5) and (6) have been moved yet, and I'll speak to them. One of the reasons is for the answer just given by the minister. We can think of many instances where there may be an attempt to mislead or provide false information to a public official which may have a deeply corrupting impact and where, in the opinion of the NACC, it may be appropriate to undertake an investigation to determine whether or not substantial amounts of public finances or some public policy has been corrupted and misapplied for that reason. Then the NACC can investigate it, expose it and come up with some corruption-fighting mechanisms and recommendations to prevent it happening again. We have faith in the commonsense of the commissioner—whoever will be chosen—to exercise this jurisdiction wisely. If it may be more appropriate in some instances for the Australian Federal Police or some external agency to undertake the investigation, then we have faith that the NACC would allow that to happen. But we see the opposition to this amendment coming from the government as troubling, because we know it happens and we know that we need systemic fixes and the best way of exposing and fixing it is through an empowered NACC.
The CHAIR: As there are no more contributions, Senator Pocock, I have the option to ask you to move amendments (5) and (6) on 1769, or we can leave that to later. The matter is entirely in your hands. This is in relation to budget.
I'm happy to do that, Chair. By leave—I move:
(5) Clause 177, page 148 (line 19), before "to review", insert "at least once every 12 months,".
(6) Clause 177, page 148 (after line 30), after subclause (2), insert:
(a) in a report mentioned in paragraph (1)(g), the Committee makes a recommendation in relation to the NACC's finances and resources; and
(b) the Minister decides not to follow the recommendation;
(c) the Minister must prepare a written statement of reasons for the decision not to follow the recommendation; and
(d) the Minister must cause a copy of the statement of reasons to be tabled in each House of the Parliament within 15 sittings days of that House after making the decision.
One of the common issues that emerged during the committee inquiry into this bill was that integrity bodies and other Australian jurisdictions are often not provided the resources that they need. I commend the government for allocating $260-odd million to the NACC in the most recent budget, but, once the NACC is up and running and will be potentially politically inconvenient to people in this place, there is always the risk that the government of the day will seek to reduce funding and to reduce the effectiveness of the NACC. Transparency is key here. This amendment will require the minister to table a statement of reasons if they deviate from the recommendations of the NACC joint select oversight committee in relation to the budget. This does not bind the government to giving them that money; it simply provides an extra piece of transparency so that Australians know if we are short-changing the body that is going to be tasked with holding people in these places, public servants and others, who are using valuable Australian resources that should be spent in the best interests of Australians, to account. I really believe that for the NACC to be independent and powerful it has to have the funding it needs, and I would really like more transparency around that process.
The CHAIR: Senator Shoebridge, you have a few seconds remaining before we hit the hard marker. In fact, we've hit the hard marker of 1.30 pm, so I have to report progress. My apologies, we will wait in anticipation for your contribution.