This summary of evidence contains extracts of evidence obtained through the submissions made to, and the public hearings of, the Joint Select Committee on National Anti-Corruption Commission Legislation (the Committee). Evidence is organised according to the following groups:
the Attorney-General’s Department;
other Commonwealth agencies;
past and present commissioners of state and territory based anti-corruption bodies;
past and present inspectors of state and territory-based anti-corruption bodies;
national security experts;
journalists and media organisations;
civil liberties groups; and
This summary relies upon draft transcripts of the public hearings (known as ‘Proof Committee Hansard’). Errors or omissions are possible and readers are encouraged to check final transcripts when they become available on the Committee’s website for verification.
This summary uses the following abbreviations for the National Anti-Corruption Commission legislation:
the National Anti-Corruption Commission Bill 2022 referred to as ‘the NACC Bill’; and
the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 referred to as ‘the NACC (C+TP) Bill’ (together, the Bills).
The Committee appreciates that many stakeholders addressed a variety of aspects of the Bills in useful detail. This Appendix, however, focusses on key recommendations and points raised in submissions or during oral evidence at public hearings. Where possible, key points are summarised according to the six pillars outlined in the Overview of the National Anti-Corruption Commission (NACC) published by the Attorney-General’s Department:
independence from government;
accountability and reporting;
Attorney-General’s Department
This section outlines the key points raised in the evidence provided to the Committee by the Attorney-General’s Department.
Broad jurisdiction
The broad jurisdiction of the proposed NACC means that it would be able to investigate ‘serious’ or ‘systemic’ corrupt conduct:
by Commonwealth ministers, parliamentarians and their staff, statutory office holders, staff of Commonwealth entities and companies, and contracted service providers;
by any person that adversely affects the honest or impartial exercise of a public official’s functions or duties; and
whether criminal or non-criminal, and occurring before or after the Commission’s establishment.
The Attorney-General’s Department discussed these aspects of the Bills throughout its evidence to the Committee. Key issues canvassed during this evidence included the definitions of ‘corrupt conduct’, ‘corruption issue’ and related matters.
Definition of ‘corrupt conduct’
The Committee examined evidence provided by the Attorney-General’s Department about the NACC Bill’s definition of ‘corrupt conduct’, particularly with respect to:
‘corruption of any other kind’;
coverage of conduct raised in the Operation Jersey report;
other parties within the scope of the definition of ‘corrupt conduct’;
parties not within the scope of the definition of ‘corrupt conduct’;
limitations on the scope of ‘corrupt conduct’; and
Attempts of corruption
The Attorney-General’s Department explained that conduct where someone had attempted to corrupt a public official and been unsuccessful would be within jurisdiction due to clause 8(10) of the NACC Bill. This clause would provide:
Conduct comprising conspiracy or an attempt to commit or engage in conduct covered by subsection (1) it itself corrupt conduct.
The ‘could’ test
The first limb of the definition of ‘corrupt conduct’ in clause 8(1)(a) of the NACC Bill states:
(1) Each of the following is corrupt conduct:
(a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly:
(i) the honest or impartial exercise of any public official’s powers as a public official; or
(ii) the honest or impartial performance of any public official’s functions or duties as a public official;
When questioned about the inclusion of ’could adversely affect’, the Department explained that this was a standard clause taken from state and territory anti-corruption commission legislation. Further:
The concept of ‘could adversely affect’ contained in paragraph 8(1)(a) is relevant to determining the potential impact of the relevant conduct on the honesty and impartiality of a public official, whereas subsection 8(10) is intended to capture situations where a person might attempt, but fail, to engage in corrupt conduct (as outlined in the Explanatory Memorandum for the NACC Bill, see paragraph 2.62). When taken together paragraph 8(1)(a) and subsection 8(10) mean that an attempt to engage in conduct that could adversely affect the honesty or impartiality of a public official would be covered.
To clarify this issue, the Department provided the following examples of conduct where a person was ‘attempting to engage in conduct’ that ‘could adversely affect’ a public official’s honesty or impartiality:
a potential supplier for a government procurement sends a text message offering a bribe to a public official who is responsible for evaluating a tender (conduct that could adversely affect the impartiality of the public official),
the public official does not receive the message because it was sent to the wrong number (in which case, the potential supplier has attempted, but not succeeded, to engage in corrupt conduct), and
there is nothing to suggest that the public official would have accepted the bribe and made a dishonest or partial decision if the official had received the offer of a bribe.
The Department highlighted that without the inclusion of ‘could adversely affect’ the Bills may not capture conduct that would warrant investigation by the NACC:
If subsection 8(1)(a) did not encompass conduct that ‘could adversely affect’ a public official’s honesty or impartiality, it would be necessary for the Commissioner to be satisfied that the conduct had, in fact, had an adverse effect. So, if a public official refused a bribe that was offered to them, and acted honestly and impartially, no corrupt conduct would have been engaged in and an investigation could not be instigated. Further, in the case of an attempt (under subsection 8(10)) it would be necessary to conclude that, had the attempted conduct been completed, it would have had an adverse effect. This would be very challenging to determine without undertaking an investigation and, in any case, would be difficult to establish to a level of certainty that would enable a finding of corrupt conduct.
Corruption of any other kind
The last limb of the definition of ‘corrupt conduct’ in clause 8(1)(e) of the NACC Bill states:
(1) Each of the following is corrupt conduct: […]
(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.
The Attorney-General’s Department explained that this limb was included for the following reasons:
…because it was in the Law Enforcement Integrity Commissioner Act and in case there were any unforeseen elements. But its scope is very much defined by the ordinary meaning of 'corruption', and the High Court has had a lot to say about the scope of that in the Cunneen decision. In terms of what it would cover, it's very much about exercising powers, duties and functions for an improper purpose, or conduct that involves impropriety by a public official. So it has a set scope of meaning. In terms of instances, we haven't at this point identified anything that that limb would capture that the preceding limbs of the definition wouldn't already pick up, but we have put it there as a catch-all that already exists in legislation.
Coverage of conduct raised in the Operation Jersey report
The Attorney-General’s Department told the Committee that it considered the types of conduct identified in the Operation Jersey report by the New South Wales Independent Commission Against Corruption (NSW ICAC) for its investigation into pork barrelling, released in August 2022.
In response to the Committee’s query about whether the NACC would cover breaches of the ministerial code of conduct, the Department advised:
You don't need a breach of the code of conduct. Our arrangements are at the Commonwealth level. I think [the Operation Jersey] report actually recommended following the Commonwealth's approach and having a provision that's similar to our Public Governance, Performance and Accountability Act provision about the use of public funds, for example. There are also grant guidelines that apply across the Commonwealth. I know the Minister for Finance is looking also at further revisions to that grants framework that would further bolster the integrity of those processes. But the particular elements that the ICAC referenced very much touch on the core elements captured by the definitions of exercising powers 'contrary to guidelines' and 'for improper purposes', and 'breach of public trust' and 'dishonest or partial exercise' of powers.
Third parties
The Attorney-General’s Department told the Committee that expanding the definition to include conduct by external parties that could impair the efficacy of public administration that does not involve any wrongdoing by a Commonwealth official, would extend the NACC’s jurisdiction beyond matters involving corruption:
As the majority of the High Court in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 stated, conduct that could adversely affect the efficacy of an exercise of an official function or power would encompass a wide range of criminal activity “having nothing to do with corruption in public administration as that concept is commonly understood”. The majority held that corrupt conduct by a public official must involve some dishonesty, partiality or other moral impropriety or wrongdoing on the part of a public official in the exercise of their official powers, functions or duties.
The Department provided further information on this issue at a public hearing on 21 October 2022:
We would be very concerned in particular about that broad concept of impairing the efficacy of public administration, where there's no wrongdoing or dishonesty, in fact or intended, by a public official. The inclusion of those terms would extend the jurisdiction of the commission not only to things like external fraud and cartel conduct but to other types of conduct. You can imagine quite a range of things—criminal activity that affects government—that really shouldn't be covered by an anticorruption commission. Cyberattacks against government systems, espionage, foreign interference, causing harm to public officials, providing them with false or misleading information, and stealing or damaging Commonwealth assets are all categories of conduct that could well impair the efficacy of public administration.
From our point of view, including those things would not only substantially detract from the commission's focus on serious or systemic corruption and the rationale for creating and establishing this commission but also undermine the existing effective arrangements for dealing with that range of conduct. That's particularly the case because there are mandatory referral requirements as well, so, for anything that fell within the commission's jurisdiction, every agency head would need to send those matters to the commission in the first instance. I think it's fairly readily apparent how problematic that would be, were you to capture that range of conduct. For external fraud alone, you just look at the sheer volume of those investigations undertaken by the [Australian Federal Police (AFP)] and other agencies—across the whole of the Commonwealth, 1,400 matters over three years. I think it would be fair to say that the commission would be then, potentially, quite distracted from its focus on serious or systemic corruption.
The Department explained that the definition intentionally does not cover external frauds against the Commonwealth and that there are existing, well-established arrangements for dealing with external criminal activity that are not intended to involve any corruption of a public official. Further:
From our point of view, including those things would not only substantially detract from the commission's focus on serious or systemic corruption and the rationale for creating and establishing this commission but also undermine the existing effective arrangements for dealing with that range of conduct. That's particularly the case because there are mandatory referral requirements as well, so, for anything that fell within the commission's jurisdiction, every agency head would need to send those matters to the commission in the first instance. I think it's fairly readily apparent how problematic that would be, were you to capture that range of conduct. For external fraud alone, you just look at the sheer volume of those investigations undertaken by the [Australian Federal Police] and other agencies— across the whole of the Commonwealth, 1,400 matters over three years. I think it would be fair to say that the commission would be then, potentially, quite distracted from its focus on serious or systemic corruption.
Instead, conduct that does not constitute corruption but could adversely affect public administration would continue to be dealt with by existing law enforcement and integrity agencies:
This would include, for example, external frauds against the Commonwealth, and the investigation of offences relating to individuals or businesses misleading or deceiving public officials. This will ensure the Commission is not diverted from its core purpose of tackling corruption. The Commonwealth has well-established and effective arrangements for dealing with external fraud and other conduct that adversely affects the efficacy of public administration.
The Department illustrated this point using an example scenario of a cyberhack on a government system. Where there is no involvement of any insider or attempt to involve an insider with access to information, such conduct would not be covered by the definition. They said that the AFP, the Australian Criminal Intelligence Commission (ACIC), the Commonwealth Fraud Prevention Centre within the Attorney-General's Department, and the Commonwealth Director of Public Prosecutions (CDPP) together address systemic fraud.
These agencies work with a range of other agencies who are also actively engaged in countering external fraud against the Commonwealth. More broadly, under the Public Governance, Performance and Accountability Act 2013 (Cth), Commonwealth entities are required put in place comprehensive fraud control programs, including taking action to reduce the risk of fraud occurring, discovering and investigating fraud when it occurs, and taking appropriate corrective actions to remedy the harm.
The Department also highlighted that collusive tendering would be covered by the Australian Competition and Consumer Commission’s (ACCC) jurisdiction over cartel conduct:
The ACCC can also work with law enforcement agencies, so it can work with the AFP. If there were a corruption element involved in any collusive tendering, that would also enable the National Anti-Corruption Commission to investigate, and in all likelihood it may well do so with the ACCC, which has particular expertise inclusive of tendering in cartel conduct. The ACCC has a track record of referrals of briefs of evidence to the CDPP on those matters.
Other parties within the scope of the definition of ‘corrupt conduct’
The Attorney-General’s Department explained that union officials (whether they are volunteers or not) would be within the NACC’s jurisdiction if their conduct affects or could adversely affect the honest or impartial exercise of a public officials’ functions:
They would be captured by, for example, the first part of the definition of 'corrupt conduct'. So, if any union official tried to adversely affect the honesty or impartiality of a public official's exercise of powers, functions or duties, they would be captured. The reason we have put that clause in section 12, along with officers in corporations, for example, and those acting in the ACT and Northern Territory governments—for all of those—is to make sure we don't inadvertently capture those categories in this extension of who's a public official, which applies to any individual performing or assisting a Commonwealth agency under a law of the Commonwealth. So the intent of what that provision is generally doing is to make sure that people can't escape the jurisdiction of the commission through a sort of outsourcing arrangement where someone else is given a function under statute. This makes it clear, though, that we're not intending to pick up various categories, including union officials but also those acting under body corporates et cetera who are undertaking regulated functions that you wouldn't ordinarily consider public functions in any event.
The Department also clarified that Commonwealth Ministers would be within the NACC’s jurisdiction both in their capacity as a parliamentarian and as a Minister.
Finally, in relation to the application of paragraph 8(1)(d) of the NACC Bill concerning journalists at the Australian Broadcasting Corporation (ABC) the Department described:
Journalists of the ABC are within the Commission’s jurisdiction as public officials because they are employees of the ABC, a corporate Commonwealth entity (see paragraph 12(1)(d) of the Bill). This is appropriate because although ABC journalists are not public servants, as employees of a Commonwealth entity they do form part of the Commonwealth public sector subject to the Commission’s broad oversight.
[…]
However, in terms of some of the scenarios of concern—the misuse of information being an example—we don't think an ABC journalist using government information to report a story would constitute corrupt conduct, because it would be them carrying out their function as intended. It's part of their role. I think that was the issue we covered for the ABC.
In relation to the ABC’s concern that the meaning of ‘misuse of information’ in paragraph 8(1)(d) may be interpreted broadly and capture the use of information or documents relating to the government received by an ABC journalist in the ordinary course of the journalist’s work, the Department said:
…the use of leaked information or documents relating to the government by an ABC journalist in that capacity would not amount to a misuse of information in the sense contemplated by section 8 of the Bill. An inherent requirement of a journalist’s role is to use information they acquire to inform their reporting. In other words, the use of that information would be within the ordinary and proper course of the journalist’s role. This remains the case notwithstanding the fact that a journalist employed by the ABC is a public official for the purposes of the Commission’s jurisdiction.
Evidence provided to the Committee by the ABC is discussed later in this Appendix.
Parties not within the scope of the definition of ‘corrupt conduct’
Clause 8(2) of the NACC Bill provides that certain persons would be excluded from the NACC’s jurisdiction, including:
the Governor-General and a Deputy Governor-General;
a Justice of the High Court or a judge of a court created by the Parliament;
a judge of a court of a State or Territory;
a member of a Royal Commission; and
the Inspector, or a person assisting the Inspector.
Conduct engaged in by a staff member of the High Court or of a court created by the Parliament to exercise a power, or perform a function or duty, of a judicial nature will not be corrupt conduct.
The Attorney-General’s Department said that these exceptions to the definition ensure that the Commissioner would not have jurisdiction to investigate conduct that involves the exercise of federal judicial power, in recognition of the constitutional separation of powers between the Executive and Judiciary.
With regards to the exclusion of the Governor-General and the Deputy Governor-General, the Department explained this is due to their vice-regal and constitutional position:
In accordance with constitutional convention, the Governor-General performs most of their functions and exercises most of their powers on the advice of Ministers who are responsible to the Parliament and accountable to the people. This is appropriate to ensure that Ministers alone are responsible for their decisions, including those given effect to by the Governor-General.
Limitations on scope of corrupt conduct
The NACC Bill provides that the following conduct is not corrupt conduct:
the use by a parliamentarian, or a staff member of a Commonwealth agency, of public resources to conduct parliamentary business in accordance with the Parliamentary Business Resources Act 2017 (Cth) or the Members of Parliament (Staff) Act 1984 (Cth); and
conduct engaged in as part of the political activity, if the conduct does not involve or affect:
the exercise of a power, or the performance of a function or duty, by a public official; or
the use of public resources (within the meaning of the Public Governance, Performance and Accountability Act 2013).
The Department said these provisions clarify the scope of the definition, reflect existing rules for political and parliamentary activities and will assist to reduce the risk that the Commissioner’s role may be politicised as a result of the referral of political issues that do not constitute corruption.
The Department elaborated that the provisions recognise:
that members of Parliament are able to access public resources for reasonable costs incurred in conducting their parliamentary business and employing staff, and that where they do so in accordance with the relevant statutory frameworks and ruling provided by the Independent Parliamentary Expenses Authority, they will not engage in corrupt; and
political activities that do not involve or affect public administration or the use of public resources, such as political campaigning or the internal activities of political parties or candidates’ campaigns, would not constitute corrupt conduct.
In relation to political activities, the Department said:
If the parliamentarian or minister were doing anything that involved their role as a parliamentarian or minister, clause 13 doesn't take that outside. It's really an avoidance of doubt provision that just makes it clear that purely political activity functions that don't have any effect on an official role are not covered.
The Department also drew the Committee’s attention to clause 8(13), which would provide:
…an avoidance of doubt provision that makes it clear that purely political activity functions that don’t have any effect on an official role are not covered.
Past conduct
The NACC Bills would enable the Commissioner to investigate serious or systemic corrupt conduct that occurred before the Commission was established. The Department said this was appropriate as the NACC Bill would not establish new standards of conduct and expounded:
For the Commissioner to undertake a criminal investigation, the conduct in question would need to have constituted a criminal offence at the time it was undertaken. For non-criminal investigations, the definition of corrupt conduct in the NACC Bill reflects long-standing expectations of public officials, including the expectation that public officials will not abuse their office or breach the public trust.
The Department also told the Committee that the Bills do not specify a timeframe for the past conduct to have occurred within:
…there's no time frame specified in the legislation. I would just say two things about that. It would have to be within the definition of corrupt conduct at the time it occurred. If conduct were picked up as corrupt, if it were criminal, for example, there would have to have been a criminal offence at the time that it occurred; for noncriminal conduct, it would have to be in breach of the standards that applied at the time. We would also expect that as more time elapses not only is it more challenging to get evidence; considering the seriousness threshold that applies for the commission, the commissioner would need to consider whether historic conduct which had been quite some time ago actually met that threshold. The further ago conduct has occurred, the less likely the commission would say it met that threshold and would be a priority, but there's no particular time frame.
Definition of corruption issue
In relation to the operation of clause 9 of the NACC Bill, which defines a corruption issue, alongside the definition of corrupt conduct in clause 8, the Attorney-General’s Department told the Committee that these sections:
…work together to link through to how the commission then exercises its powers and functions, so it's more a technical operation between the two. They're not expanding out the definition, per se. It's just that what the commission does is deal with corruption issues. The intention of section 9 is to make sure it can look into corruption in different temporal aspects.
Clause 9(1)(c), which provides that a corruption issue is an issue of whether a person will engage in corrupt conduct, is fundamental to how the commission uses its powers and relates to the operation of mandatory referral obligations. The Department highlighted:
…the importance of section 9 is it's an issue about 'whether'; that is where the emphasis is in that clause. Otherwise, you end up with a situation where things like the 'dealing with corruption issues' provisions, if you had just 'corrupt conduct' there, you would have to identify that it was corrupt conduct before you could then investigate whether there was corrupt conduct, if you like. It would make the commission's powers non-functional, so section 9 does very important work in making it clear it's about the issue of 'whether' there is. That is what it's doing.
In relation to whether clause 9(1)(c) should be amended to provide that a corruption issue is an issue of whether a person may engage in corrupt conduct, rather than will engage in corrupt conduct, the Department noted:
If a person is preparing to take steps which would amount to corrupt conduct but has not yet taken those steps, paragraph 9(1)(c) would enable the Commission to investigate the issue of whether the person ‘will engage’ in corrupt conduct that could be serious or systemic. This will ensure that the Commissioner would have the opportunity to investigate and prevent corrupt conduct from eventuating. The use of ‘will engage’ is appropriate in this context as the preceding language makes it clear that it enables the Commission to investigate the issue of whether or not the conduct will be engaged in (and does not require a conclusion that it will). The use of ‘may engage’ would be overly broad, particularly given that the provision is linked to the exercise of significant investigation powers by the Commission.
[…]
…[T]he term 'corruption issue' flows through to a few different parts in the bill. It's fundamental to how the commission uses its powers. It's also highly relevant to how the mandatory referral obligations on agency heads operate, such that if an agency head becomes aware of a corruption issue which might constitute a concern that a staff member in their agency has not yet but will engage in corrupt conduct, the term 'corruption issue' also enlivens their referral obligations so that that matter comes to the commission's attention.
Independence from Government
The NACC’s independence would be reinforced by:
security of tenure for the Commissioner and up to three Deputy Commissioners, whose appointments must be approved by a Parliamentary Joint Committee;
the ability to conduct own motion investigations and to receive referrals from any source (including mandatory referrals from agency heads); and
discretion in dealing with corruption issues, including:
investigating, either solely or jointly with another agency; or
referring to another agency (for investigation or information).
The Attorney-General’s Department outlined these provisions in its submission:
The Commissioner’s actual and perceived independence from Government will be critical to their credibility and effectiveness. The NACC Bill contains safeguards for the Commissioner’s independence, including:
the appointments of the Commissioner and Deputy Commissioners will be subject to approval by a Parliamentary Joint Committee, following a recommendation by the Attorney-General (clause 178), ensuring that appointees have Parliamentary support
the Commissioner and Deputy Commissioners will also have security of tenure comparable to that of a federal Judge (clause 250), ensuring the officers of the Commission can undertake corruption investigations without fear of removal from office due to any findings they might make
the Commissioner will be able to consider referrals from any person under clause 32, and will have the power to commence investigations and public inquiries on their own initiative (clauses 40 and 161).
the Commissioner will also have discretion in the way they handle corruption issues and conduct corruption investigations and public inquiries (clauses 41, 56 and 161). This will ensure that the Commission operates at arm’s length from Government.
The Department also discussed funding and resourcing for the proposed NACC:
The Government has fully funded the Commission, committing $262.6 million over four years from 2022-23 to support its establishment and operation. This will ensure the Commission has the full range of resources and capabilities it will require to effectively fulfil its functions. It also ensures that other agencies such as the Commonwealth Director of Public Prosecutions, the Ombudsman and the Inspector-General of Intelligence and Security can undertake functions in support of, or arising from, the operation of the Commission.
The Parliamentary Joint Committee on the National Anti-Corruption Commission will have an express function of reviewing the Commission’s budget and reporting to both Houses of Parliament on its adequacy, with the ability to request the Inspector’s assistance with such a review. This will ensure the Parliament can inform itself about, and make recommendations on, resourcing for the Commission.
Comprehensive powers
The NACC would have a full range of investigation powers, including to:
enter Commonwealth premises and require Commonwealth information without a warrant;
compel production of documents and things and search premises;
conduct private hearings and, if it is in the public interest and exceptional circumstances justify doing so, public hearings; and
intercept telecommunications and use surveillance devices.
Hearings
Clause 73 of the NACC Bill covers private and public hearings:
Hearings to be held generally in private
(1) A hearing must be held in private, unless the Commissioner decides to hold the hearing, or part of the hearing, in public.
When hearing may be held in public
(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, or the part of the hearing, in public; and
(b) it is in the public interest to do so.
(3) In deciding whether to hold a hearing, or part of a hearing, in public, the Commissioner may have regard to the following:
(a) the extent to which the corruption issue could involve corrupt conduct that is serious or systemic;
(b) whether certain evidence is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence;
(c) any unfair prejudice to a person’s reputation, privacy, safety or wellbeing that would be likely to be caused if the hearing, or the part of the hearing, were to be held in public;
(d) whether a person giving evidence has a particular vulnerability, including that they are under the direct instruction or control of another person in a relative position of power;
(e) the benefits of exposing corrupt conduct to the public, and making the public aware of corrupt conduct.
The Attorney-General’s Department discussed these provisions in its submission:
The decision about whether to hold a hearing in private or public will be a matter for the Commissioner. The experience of [the Australian Commission for Law Enforcement Integrity (ACLEI)] and state and territory anti-corruption commissions is that most hearings are in private. Private hearings will often be more appropriate including, for example, where:
the hearing is being conducted at a relatively early stage of an investigation, where a commission is seeking to establish key facts; or
the person appearing before a commission is a whistleblower or witness of fact, rather than the subject of the investigation, and the risks to the person’s reputation, safety or wellbeing from holding a public hearing outweigh the benefits of a public hearing.
The Commission’s powers to require persons to answer questions at hearings will be comprehensive, and will include powers to require persons to provide information that is subject to legal professional privilege or that would ordinarily be protected by public interest immunity, as well as to abrogate the privilege against self-incrimination… Given the particularly sensitive nature of the information that could be disclosed during hearings, clause 74 of the Bill will require that evidence must be heard in private, if giving the evidence would breach a secrecy provision, or would disclose:
legal advice or legally privileged communications;
information that the Commissioner is satisfied is ‘sensitive information’ (clause 227), including matters the identity of confidential informants, information that would prejudice the fair trial of any person or the proper enforcement of the law if disclosed, Cabinet deliberations and decisions, and information that could prejudice Australia’s security, defence or international relations;
information that is covered by a certificate issued by the Attorney-General under clause 235 of the NACC Bill, on the basis that the public disclosure of the information would be contrary to the public interest on certain, specified grounds—those grounds are similar to, but narrower than, those set out in the definition of ‘sensitive information’, described above; or
‘intelligence information’, which is defined in clause 240 of the NACC Bill.
The Department also gave evidence clarifying the inclusion of the ‘exceptional circumstances’ test in clause 73(2)(a):
We don't think it will add to the risk of court challenge. I think there's always the possibility of an individual seeking judicial review under the Constitution or the Judiciary Act. That possibility remains irrespective of whether that threshold is there or not, and it could exist for things like public interest, for example. So our view is that the addition of exceptional circumstances doesn't add materially to the chance of court challenge.
To assist the Committee the Department provided comparison of hearing powers across state and territory anti-corruption body models, available on pages 13 to 15 of Submission 35.1.
Public inquiries
In relation to clauses 40, 41 and 42 of the NACC Bill, the Attorney-General’s Department affirmed the NACC’s power to conduct own-motion inquiries:
We are aware that there have been submissions and evidence also provided that suggest that the commission may not, or it's not clear that it will have, an explicit own-motion investigation power. We think that the bill is very clear that it will. In particular, section 40 makes that abundantly clear. It provides that the commissioner may deal with a corruption issue that is referred to the commissioner or that the commissioner 'becomes aware of in any other way'. Sections 41 and 42 provide the commissioner with their own discretion on how they may deal with a corruption issue—obviously, by investigating it. Also, the discretion to investigate is provided that the threshold of 'serious or systemic corrupt conduct' is met. Section 42 also gives the commissioner a power to conduct preliminary investigations that they can exercise at their discretion. So we don't think that adding 'own motion' would be meaningful, and probably, to be honest, I think it would be unclear what just sticking that in the bill would mean. It works more effectively as part of the functional powers given to the commission, which we think are very clear.
Coercive and covert powers
Part 7 of the NACC Bill would provide coercive and covert powers for the NACC Commissioner to:
direct the heads of Commonwealth agencies to provide information, documents and things
issue notices requiring people to produce information, documents and things
issue summonses requiring people to attend hearings
enter and search premises occupied by Commonwealth agencies, to obtain relevant material, and
obtain search warrants to enter and search any premises, to obtain relevant material.
The NACC (C+TP) Bill will provide the Commission with access to covert investigative powers under the Crimes Act 1914 (Cth), Surveillance Devices Act 2004 the Telecommunications (Interception and Access) Act 1979 (Cth), including powers to obtain telecommunications interception warrants and to conduct controlled operations. These powers will enable the Commission to obtain information about corruption that would otherwise be unobtainable.
The Commission’s access to covert powers will be provided on the same basis as ACLEI, state anti-corruption commissions and other law enforcement agencies, including thresholds, safeguards and oversight. For example, the Commission will be able to apply for a telecommunications interception warrant, where it is investigating a ‘serious offence’ within the meaning of the Telecommunications (Interception and Access) Act 1979 (being an offence generally punishable by a maximum penalty of at least seven years’ imprisonment).
The Explanatory Memorandum outline the issuing of surveillance device and computer access warrants:
An eligible Judge or a nominated [Administrative Appeals Tribunal] member may grant such warrants for a corruption investigation by the Commissioner if satisfied that there are reasonable grounds for the Commissioner’s suspicions that:
one or more relevant offences have been, are being, are about to be, or are likely to be, committed;
an investigation into those offences is being, will be, or is likely to be, conducted; and
the use of a surveillance device, or access to data held in a computer, is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders.
In relation to warrants authorised by members of the Administrative Appeals Tribunal (AAT), the Department said:
We were asked by Senator Chandler about the tenure of AAT members, and we have provided the advice that, under the AAT Act, a member can be appointed for up to seven years and can be eligible for reappointment.
The Department also discussed how these powers may interact with Australia’s national security:
The issue of contested warrants was considered by the Parliamentary Joint Committee on Intelligence and Security, and not recommended. There's also the obvious issue that if you're going to execute a search warrant rather than issue a notice to produce, the reason you'd do that would be because you're concerned about evidence being lost or destroyed. Then the whole issue is asking a person, against whom you intend to exercise such a power, to come to a hearing, gives them the opportunity to destroy evidence.
[…]
I might say three things. One is that in the development of the bill we worked closely with the national intelligence community and the Inspector-General of Intelligence and Security on constructing the bill to ensure that the legislation itself has appropriate protections for national security information, and they're set out in part 11, to ensure that that information is appropriately dealt with. So the commission will have access to that information, but then it will be appropriately secured and not further disclosed—that's the basic effect of those provisions. Then, in addition to that, the commission itself will be bound by the mandatory cybersecurity requirements that apply under the Protective Security Policy Framework of the Commonwealth, which includes the mandatory Essential Eight cybersecurity requirements, the secure gateway requirements and all of the other cybersecurity arrangements that will apply. We have been working on different tiered systems—obviously, very secure systems—to enable it to manage a range of information at different classifications as well. And I should say it's not just about the systems; Commonwealth protective security requirements will require it to have all the appropriate security clearances of personnel and physical security arrangements, as well as secure systems.
Evidence from national security experts is presented later in this Appendix.
Controlled operations
The C&T Bill would give the Commissioner ‘the power to conduct controlled operations and integrity testing operations, acquire and use assumed identities and issue witness identity protection certificates for operatives under the Crimes Act 1914’. The Department explained:
We were asked which state and territory anticorruption agencies have access to controlled operations for use against non-law-enforcement agencies. The answer is all of them, and we've provided that information in a table [see Table 1.1]. We were asked about integrity-testing operations as well. The WA Crime and Corruption Commission has an integrity-testing authority. ACLEI does at the moment, and the intention is to continue that for the NACC, but that would apply just in relation to the AFP, the Department of Home Affairs and the ACIC. But that power could be used, as is currently the case.
Controlled operations
|
|
|
|
NSW
ICAC and CC
|
Yes, Both the ICAC and CC via the Law Enforcement (Controlled Operations) Act 1997
|
|
Qld
CCC
|
Yes, via the Crime and Corruption Act 2001
|
|
Vic
IBAC
|
Yes, via the Crimes (Controlled Operations) Act 2004
|
|
WA
CCC
|
Yes, via the Corruption, Crime and Misconduct Act 2003
|
|
SA
ICAC
|
Yes, via Criminal Investigation (Covert Operations) Act 2009 (referred to as an ‘undercover operation’)
|
|
NT
ICAC
|
Yes, via the Police (Special Investigative and Other Powers) Act 2015
|
|
ACT
IC
|
Yes, via Crimes (Controlled Operations) Act 2008 as per Div 3.5.2
|
Source: Attorney-General's Department, Submission 35.1, p. 12.
Accountability and reporting
The NACC Bills provide for various accountability and reporting mechanisms:
The Commission will be required to prepare reports on its investigations, which:
must be provided to the Minister and, where a public hearing has been held, tabled in Parliament; and
can include findings of corrupt conduct (but not findings of criminal guilt).
The Commission can also publish reports or other information relevant to its activities if satisfied it is in the public interest to do so.
In response by concerns raised by some Committee Members about the lack of public reporting obligations for private hearings, the Attorney-General’s Department explained the proposed NACC’s role as an independent statutory office holder who can decide to publish reports that are in the public interest.
Senator SHOEBRIDGE: But the way this bill is drafted there could be millions and millions of dollars spent, months and months or years of NACC commission time and detailed reports provided, and the only people who know are the government, the Attorney-General and senior ministers. That's a real lack, isn't it, in a national anticorruption body? That's a real gap, isn't it?
Ms Chidgey: The annual report, unless there are particular sensitivities, also needs to identify investigations and could be subject then to parliamentary committee oversight and questioning as well. If we ended up in a situation where the commissioner wasn't publishing reports where that was in the public interest, obviously that would be an issue we'd expect the parliamentary joint committee to take up. But the bill is constructed on the basis that the commission is an independent authority acting appropriately in the exercise of its powers.
Senator SHOEBRIDGE: But all that's required in the annual report is to provide, in terms of identifying investigations, a description of the corruption investigations conducted by the commissioner that the commissioner considers raise significance issues. That description could be utterly generic.
Ms Chidgey: My point was rather that it would be identified and the parliamentary joint committee would have the capacity to make inquiries of the commission.
The Attorney-General’s Department also noted that the Attorney-General may table protected investigation reports using parliamentary privilege.
Protections
The NACC Bills would establish protections for whistleblowers and safeguards against undue reputational damage, including:
offences for reprisal action, and protection for persons making a disclosure to the Commission and Inspector under their legislation and the Public Interest Disclosure Act 2013;
protections for journalists and their sources;
provision for the Commissioner to make public statements to clarify the status of those appearing as witnesses, and to make findings that a person has not engaged in corruption;
limitations on investigating a matter already dealt with by another integrity agency; and
procedural fairness afforded to persons subject to potential adverse findings, and availability of judicial review.
Whistleblower protections
The Attorney-General’s Department outlined the provisions in the NACC Bill that provide protections for persons providing evidence or information to the Commission on a corruption issue, including whistleblowers. Their evidence noted:
Part 4 of the NACC Bill contains protections for persons providing evidence or information to the Commission in relation to a corruption issue. These protections will provide immunity from civil, criminal and administrative liability for whistleblowers and other persons, and would impose criminal penalties for anyone taking, or threatening to take reprisal action against, a whistleblower (clauses 24 and 30). The protections are modelled on those in the PID Act, but will be available for all persons—not just public officials.
The Department reiterated the Government’s intention to reform the Public Interest Disclosure Act 2013 (Cth):
The Government will progress reforms to the Public Interest Disclosure Act 2013 (Cth) to ensure it effectively protects whistleblowers in reporting wrongdoing and corruption, including responding to the 2016 review by Mr Philip Moss AM, and will continue to consider the need for a Whistleblower Protection Commissioner.
In relation to the anonymity of disclosers, the Department confirmed:
Disclosers will be able to provide information to the Commission anonymously. The staff of the Commission will be subject to strict confidentiality requirements when recording or sharing information that is capable of identifying a person who has disclosed information to the Commission, under Part 11 of the NACC Bill. The Commissioner and Inspector will also be able to impose restrictions on the further disclosure of information 7 shared with other parties, including for the purposes of protecting the identity of a person who has provided information in connection with an investigation (clause 233).
The Department noted evidence heard by the Committee that supported the establishment of a Whistleblower Protection Commissioner as part of the NACC:
In relation to the whistleblower protection commissioner, our view is that some of the proposed roles for such a commissioner would extend well beyond the scope of this bill in the sense of dealing with disclosures that are not public sector corruption in the sense that they cover matters that aren't corruption, such as maladministration or misconduct.
Privilege against self-incrimination
Under clause 113, answers, information, documents and things provided by a person would not be admissible in evidence against them in most criminal, civil penalty and confiscation proceedings. Further material derived from such material would be admissible. Provision of a use immunity, but not derivative use immunity, is consistent with the Law Enforcement Integrity Commission Act 2006 (Cth) (LEIC Act) and arrangements for most state and territory anti-corruption commissions.
The Government considered it was appropriate to abrogate the privilege against self-incrimination in the context of the NACC legislation because of the significant risk posed to the community by corrupt conduct. The public interest associated with investigating and exposing corrupt conduct outweighs an individual’s interest in avoiding self-incrimination in a corruption investigation. In a criminal trial that may follow a corruption investigation, the investigation material obtained would be subject to a use immunity—that is, it would not be admissible in proceedings against the witness. This would be appropriate to ensure the consequences to a witness of abrogating the privilege are limited to the extent necessary and proportionate to meet the risk posed to the community by corrupt conduct, and to ensure the witness’ fair trial.
The use of immunity would not apply to material derived from self-incriminatory material. That is appropriate to ensure the Commissioner can fulfil their statutory functions of detecting, preventing and investigating corrupt conduct that could be serious or systemic. Consistent with the approach taken in the Bill, the majority of anti-corruption legislation in the states and territories does not extend the immunity to derivative use of the material. Nor does the LEIC Act or the Australian Crime Commission Act 2002 (Cth).
In relation to the suggestion that abrogation of the privilege against self-incrimination in section 113 be conditioned upon requiring the NACC to demonstrate that all other less coercive avenues to obtain information have been exhausted prior to compelling a person to give evidence in circumstances where the privilege is abrogated, the Attorney-General’s Department stated:
Subsections 58(4) and 63(3) impose a higher threshold for the exercise of the Commissioner’s investigative powers in circumstances where the abrogation of the privilege is more likely to affect the fair trial of a witness. Those provisions apply where a person has been charged with a relevant offence or a relevant confiscation proceeding has commenced against the person (or such charges or proceedings are imminent). In those circumstances, the Commissioner is required to have reasonable grounds to suspect that the evidence, information, documents or things sought are necessary for the purposes of the corruption investigation even though the charge or proceeding is on foot or imminent. These provisions provide additional assurance that the Commissioner’s powers are appropriately balanced and that, in deciding to issue a notice to produce or a summons, the Commissioner must pay due regard to the fact that the person has been charged with an offence or is the subject of confiscation proceedings. This reinforces the point that a notice or summons is to be issued for the purposes of a relevant corruption investigation and not to bolster confiscation action or the prosecution of a person to whom a notice or summons is issued. Increasing the thresholds that apply to the use of the Commissioner’s investigative powers would go beyond what is appropriate and necessary to ensure witnesses can receive a fair trial for a relevant offence, and would undermine the effectiveness of a corruption investigation. A disclosure of investigation material under the legislation would be subject to any directions on the use or disclosure of the information imposed by the Commissioner. Breaching a confidentiality direction issued under section 100 would constitute an offence under section 101. That is appropriate to ensure the Commissioner and can restrict the use of investigation material and avoid possible prejudice to a subsequent prosecution, or the disclosure of sensitive or certified information. The Commissioner would be required to issue a confidentiality direction in certain circumstances, including to address a risk of prejudice to a witness’ fair trial, if the witness has been charged with a relevant offence or such a charge is imminent (paragraph 77(b)). Further, a court order may be required to disclose certain 'investigation material to a prosecutor of the witness (subsections 105(4) and 106(1)). The Commonwealth Ombudsman would oversee the use of particular coercive powers by the Commissioner.
In relation to the suggestion to remove the exception for confiscation proceedings, the Department stated:
Under section 113, answers and information given, and documents and things produced in a corruption investigation, would be admissible in confiscation proceedings if they are given or produced at a time when the proceeding had not commenced and were not imminent. They would not otherwise be admissible in a confiscation proceeding. The ability for proceeds of crime authorities to use investigation material in confiscation proceedings is consistent with the use of that material in civil proceedings generally (except for proceedings for the imposition or recovery of a penalty). Despite this, it is appropriate the use immunity applies to investigation material obtained after confiscation proceedings are commenced (or imminent) so that a hearing or notice could not be used to improperly bolster those proceedings. These limitations in the Bill reflect the limitations that currently apply to other investigative bodies, including the ACIC and ACLEI, taking into account amendments made by the Law Enforcement Legislation Amendment (Powers) Act 2015.
Legal professional privilege
The abrogation of legal professional privilege would not apply to:
advice or communications related to a person’s compliance with a direction or notice to produce, or their attendance or reasonably anticipated attendance, at a hearing (subclause 114(2)); or
legal advice given, or communications made, for the purposes of, or in the course of, a person’s work as a journalist in a professional capacity (subclauses 114(3) and (4)).
Additionally, while the NACC Bill would preclude a person from refusing to answer a question or comply with a notice to produce on the basis of legal professional privilege, the Bill will not otherwise affect claims of privilege over that information (subclause 114(5)). This would ensure that, while the Commissioner would be able to obtain and rely on legally privileged material for the purposes of a corruption investigation, including in a private hearing, a person could later claim the privilege to resist:
the admission of the material in a subsequent prosecution or other proceeding
the publication of the material, including in an investigation report, or
the disclosure of the material, for a purpose unrelated to the corruption investigation.
The NACC Bill would preserve legal professional privilege for legal advice given and communications made for the purposes of, or in the course of, a person’s work as a journalist in a professional capacity (subclauses 114(3) and (4)).
Further safeguards
The Department also told the Committee about the proposed NACC’s role in supporting people involved (or who may be subject to) its investigations:
I think there are two issues. One is what support the commission itself provides for witnesses to look after their wellbeing and safety. Then, separately, there is the issue that we've discussed previously, about the nondisclosure notations from hearings and how they operate. Obviously there is scope for the commission to enable an individual to make any of those disclosures. We can look at whether we need to specify that directly in the legislation, which is a slightly different issue, I think, to the one that Dr Haines is raising, about how the commission might itself support witnesses, which is something that we would absolutely—and I think that issue is a focus for ACLEI and the Integrity Commissioner at the moment. I think we would say with confidence that the commission would absolutely have that at the forefront in the development of its procedures and arrangements, which is slightly different to the nondisclosure notation issue.
Oversight
Oversight of the NACC would be conducted by:
a Parliamentary Joint Committee, which will review the Commission’s performance and budget, and approve Commissioner, Deputy Commissioner and Inspector appointments; and
an Inspector, who will be an independent officer of Parliament able to investigate any corruption issues within the Commission and handle other complaints.
The Attorney-General’s Department summarised the provisions regarding NACC oversight set out in the Bills:
Given the significant powers available to the Commission, and the significance of its findings, it will be important for the Commission to be subject to comprehensive and effective oversight. The Commission will be overseen by an independent Inspector and a Parliamentary Joint Committee (Part 10 of the NACC Bill). The Commission’s use of covert powers will be overseen by the Commonwealth Ombudsman, consistent with arrangements for ACLEI and other law enforcement agencies. […]
The Committee will be established as soon as practicable after the first session of each Parliament. It will be important for the first Committee to be established promptly after the passage of the NACC Bill, to ensure the first Commissioner, Deputy Commissioners and Inspector may be appointed in order to commence their terms when the Commission is established.
Further, the Department outlined the role of the Inspector of the NACC to investigate:
…‘NACC corruption issues’ (described below) that could involve serious or systemic corrupt conduct, and
…complaints made in relation to the conduct or activities of the Commission or its staff.
With the exception of covert investigative powers, the Inspector will have similar powers to the Commission for the purposes of NACC corruption investigations, and slightly more limited powers for the purposes of complaint investigations (clause 214).
As the Inspector will be a specialist oversight body for the Commission alone, their office will be small, and will not have the capacity to develop and sustain the capabilities required to exercise covert investigative capabilities in-house. However, the Inspector will be able, and the Department expects they will, partner with the AFP, and other Commonwealth, state and territory agencies (as appropriate) that have access to such powers. The C&T Bill will ensure the Inspector can obtain and use information obtained through other agencies’ use of covert investigative powers where relevant to their functions.
The Commonwealth Ombudsman would have oversight of the NACC’s covert powers. The Department explained:
This is consistent with the arrangements for other law enforcement agencies authorised to use these powers. The Ombudsman will conduct inspections and report publicly on the Commission’s compliance with:
surveillance devices and computer access powers under the Surveillance Devices Act 2004
telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the Telecommunications (Interception and Access) Act 1979
industry assistance powers under the Telecommunications Act 1997, and
controlled operations under the Crimes Act 1914. The Ombudsman and the Inspector will be able to share information.
This will ensure a seamless approach to oversight of the Commission while leveraging the Ombudsman’s expertise in overseeing covert powers.
Evidence provided to the Committee by the Commonwealth Ombudsman during this inquiry is presented later in this Appendix.
Commonwealth agencies
Through its inquiry, the Committee heard from Commonwealth agencies who would be involved with the proposed NACC in the course of their work. These agencies included the:
Australian Human Rights Commission;
Australian National Audit Office (ANAO);
Australian Public Service Commission; and the
Australian Commission for Law Enforcement Integrity
ACLEI told the Committee about its current role as ‘a narrow-jurisdiction anticorruption commission […] limited to law enforcement agencies’. ACLEI also provided some comparison of the LEIC Act and similar provisions in the NACC Bills.
Broad jurisdiction
ACLEI told the Committee that the definition of corrupt conduct set out in the NACC Bill is broader than the definition employed in the LEIC Act:
Of particular note is that limb 4 would enable the NACC to investigate a former public official for a subsequent misuse of documents or information that were obtained while a public official. Under the LEIC Act, the jurisdiction of ACLEI is limited to conduct undertaken by staff members while they are staff members of a law enforcement agency.
ACLEI also explained that the LEIC Act defines serious or systemic corruption:
Serious corruption is defined as corrupt conduct engaged in by a staff member of a law enforcement agency that could see a staff member charged with an offence with a term of imprisonment of 12 months or more, so it's a relatively low bar for an offence with a term of imprisonment of 12 months or more. Then systemic corruption is defined as instances of corruption that reveal a pattern of corrupt conduct. Again, for that definition it's a fairly straightforward definition of what you would expect 'systemic' to mean.
ACLEI gave evidence that the position is different in the NACC Bill, where serious or systemic is not defined and will be given its ordinary meaning.
Comprehensive powers
Ms Jaala Hincliffe, Integrity Commissioner, summarised ACLEI’s approach to hearings:
While I've been integrity commissioner, I've not held any public hearings and I believe that ACLEI has never held a public hearing. Under my act I think there's a two-step process that I need to go through to determine holding a hearing. The first step is: do I have reasonable grounds to suspect that the evidence, document or thing that's being sought from the hearing will be relevant to the investigation of a corruption issue, and is the hearing the best investigative tool by which to obtain it? The second part of that first step is, I think, an important one because a hearing is a coercive power in which the rights of a person are impacted. Self-incrimination is not an excuse which someone can use not to answer a question that I ask them in a hearing. Because of the coercive nature of the power and the impacts that it has on their rights, I think serious consideration needs to be given as to whether or not it's the most appropriate investigative tool to use.
Once I've determined that, yes, that first step of the test is satisfied and that a hearing is appropriate then I need to go to the second part of the test, which is whether the hearing should be held in public or private. I need to consider that every single time I consider whether to hold a hearing, and the LEIC Act sets out a range of factors that I need to consider in deciding whether to hold the hearing in public or private or partially in public or partially in private. And it's a balancing between the confidentiality and the prejudice to reputation of a person, against the public interest in the hearing occurring in public. […]
The matters in which I've run private hearings have been where witnesses have required the protections of the hearing for various reasons, including where witnesses are whistleblowers who require some of the protections that occur under my provisions or require the protections under my hearing powers because of secrecy provisions that allows them to provide me with information. For witnesses who have declined a voluntary interview but who we believe have important information for the investigation, very occasionally I have used a hearing power in relation to a person of interest where I have really no other options to finalise the investigation to determine what's happened. I'm very cautious at that point because of the ramifications of putting a person of interest into a hearing in relation to the use of that evidence in a subsequent prosecution of that person, so I take that step very cautiously.
Transitional arrangements
The Committee notes the information provided in ACLEI’s submission about the ACLEI’s resources transition to the NACC:
ACLEI is working with the Attorney-General’s Department to enable the NACC to commence operations in 2023. This includes ensuring all ACLEI’s resources transition smoothly to the NACC and supporting the Commonwealth public sector in understanding their responsibilities of the NACC’s commencement.
The work undertaken by ACLEI and [the Attorney-General’s Department] is overseen by a Sponsoring Group jointly chaired by the Secretary of [the Attorney-General’s Department] and the Integrity Commissioner. Under the guidance of the Sponsoring Group, ACLEI and the Attorney-General’s Department will:
undertake significant recruitment to increase ACLEI’s staffing in preparation for the commencement of the NACC
develop policies and processes aligned with the Bills to support the operations of the new agency
establish a new, secure and independent ICT environment for the NACC including critical digital forensics and triage and assessment functionality
ensure the NACC has appropriate facilities to accommodate additional staff and perform its functions effectively, and
engage with Commonwealth agencies and other stakeholders to assist them to prepare for the commencement of the NACC.
Australian Federal Police
The AFP told the Committee about its anti-corruption work and working arrangements with Commonwealth integrity bodies. At the Committee’s public hearing, the AFP explained:
From our operational experience we know that corrupt behaviour is often linked or integral to other serious forms of criminality—for example, espionage and foreign interference, foreign bribery, secrecy offences and transnational organised crime. The AFP will continue to respond to serious, complex and organised crime offences such as these. We'll work closely with the new commission in its early days to establish practical arrangements to clarify and formalise how the AFP and the commission will work together to refer matters between agencies, to deconflict and to avoid duplication of effort.
We also recommend the proposed oversight that the commission will have of Commonwealth law enforcement agencies, including the AFP. Since its establishment in 2006, the Australian Commission for Law Enforcement Integrity… has played an integral role in detecting, investigating and preventing corrupt conduct in the AFP and other Commonwealth law enforcement agencies. We are keen to ensure that the collaborative and robust working relationship that we currently have with ACLEI continues under the proposed new commission.
The AFP also explained its role in investigating allegations of serious and complex corrupt conduct which fall outside of ACLEI’s remit, including bribery, misuse of Commonwealth public office, or release of confidential information in exchange for a benefit. The AFP said it anticipated the NACC would take a lead role in these matters once established, noting it would continue to work closely with the NACC to support investigations into matters where there is a broader criminal nexus and other potential offences intersecting with the corrupt behaviour.
The AFP expected to establish a memorandum of understanding with the NACC to clarify and formalise how they would refer matters between agencies, de-conflict and avoid duplication of effort.
The AFP also gave evidence that it investigates systemic fraud:
We presently investigate systemic fraud and take into account systemic fraud. Our work through some of the joint task forces, including Taskforce Integrity, is key. Our role in relation to that work is advisory, with a focus on prevention and providing advice to an agency and others on fraud prevention in relation to the programs that they will introduce.
The AFP said if they identify systemic weaknesses in the fraud control guidelines and processes of an agency, they will engage with that agency and provide advice.
In terms of reporting on systemic fraud issues, the AFP said they provide advice to the ACIC, who will then provide advice to relevant agencies to understand systemic issues. They also said they provide the Commonwealth Fraud Prevention Centre within the Attorney-General’s Department with lessons learned and outcomes of investigations.
With regards to the provisions of the Bills, the AFP noted that ‘the Bill provides a discretion to determine the appropriateness of holding public hearings, where an individual may be compelled to answer questions that may incriminate them’. The AFP explained:
This is particularly relevant to ensure procedural fairness and the integrity of criminal investigations, should a matter subsequently proceed to a criminal prosecution. Judicious application will determine effectiveness. We suggest the NACC Bill does appropriately allow for this factor to be taken into consideration by the NACC Commissioner.
Australian Human Rights Commission
At the Committee’s public hearing on 20 October 2022, the Australian Human Rights Commission summarised its broad support for the Bills and highlighted particular aspects requiring further consideration:
The [Australian Human Rights Commission] supports many aspects of the current bills, particularly the equal application of the jurisdiction of the National Anti-Corruption Commission across the public sector; its ability to launch own-motion inquiries and take referrals from members of the public; thirdly, the safeguards around its independence; fourthly, the protections for whistleblowers, witnesses and people subject to adverse findings; and fifthly its ability to hold public hearings.
However, the [Australian Human Rights Commission] has some concerns in relation to some elements of the bill… First, while we broadly support the jurisdiction given to the commission, we are concerned with the scope of clause 8(1)(e) of the bill. The clause provides that corrupt conduct includes '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.'… the catch-all phrase gives the commissioner a broad discretion to decide what falls within the scope of 'corruption of any other kind' and expands the jurisdiction without further parliamentary approval.
Secondly, the [Australian Human Rights Commission] has concerns with warrants being granted by nominated AAT members under the Surveillance Devices Act and the Telecommunications Interception and Access Act. For an additional level of protection we consider this power should only be exercised by eligible judges. This would mean that warrants are granted by a person who is ordinarily a member of the judiciary, rather than a member of the executive. We consider this to be appropriate in the circumstances where the National Anti-Corruption Commission, as part of the executive branch, is investigating the public sector.
Thirdly, while we consider that the National Anti-Corruption Commission should have the ability to hold public hearings, we recognise the impact such hearings [may have on] safety and wellbeing. Accordingly, in our view clause 73(3)(c) should be a mandatory consideration of the commissioner in deciding whether to hold a hearing, or part of a hearing, in public. We note the Hon Robert Redlich AM KC, Commissioner of the Victorian Independent Broad-based Anti-corruption Commission, raised similar concerns in his evidence.
Fourthly, we consider there is uncertainty around the requirement of exceptional circumstances for the holding of public hearings. In our view, clarification is needed to ensure this requirement achieves an appropriate balance between the impact of such hearings on individuals and the interests of open justice.
In conclusion, I would like to reiterate our support for the creation of the commission and many of the protections for human rights that are provided by these bills. However, as I've indicated, we consider some further protections and clarification of current protections are necessary.
With this considered, the Australian Human Rights Commission recommended:
Recommendation 1
Clause 8(1)(e) should be amended or removed, as ‘corruption of any kind’ provides the Commissioner with significant discretion to expand its jurisdiction without parliamentary approval.
Recommendation 2
Applications by the NACC for warrants issued under the Surveillance Devices Act 2004 (Cth) or the Telecommunications (Interception and Access) Act 1979 (Cth) should be granted only by eligible Judges (and not nominated AAT members).
Recommendation 3
Clause 73(3)(c) should be a mandatory consideration for the Commissioner when deciding whether to hold a hearing, or part of a hearing, in public.
Recommendation 4
The Joint Select Committee seek clarification from the Government on the ‘exceptional circumstances’ that would justify the holding of a public hearing.
The Australian Human Rights Commission’s submission also commented on the privilege against self-incrimination:
It is important to recognise that there are significant safeguards and protections that either do not apply or are limited as a result of the NACC bill and Consequential Bill. The Explanatory Memorandum itself recognises that the measures in these Bills limit several key human rights, including the right to a fair trial, the right to the presumption of innocence, the privilege against self-incrimination and the prohibition on interference with privacy. The Commission considers it essential to ensure that any such limitations are reasonable, necessary, and proportionate.
…there are many protections that do not apply or are limited by the NACC bill and Consequential Bill, including the right to a fair trial, the right to the presumption of innocence, and the privilege against self-incrimination. Such protections would ordinarily apply to any person prosecuted publicly in a criminal trial for criminal offences relating to corruption. Private hearings provide some balance against the impact on these rights and protection against the reputational risks arising from allegations of corruption.
Further, the Australian Human Rights Commission considered the provisions regarding findings or decisions of the NACC that could be subject to judicial review:
The Commission considers that the availability of judicial review provides a significant safeguard for individuals affected by findings or decisions of the Commissioner. While the availability of judicial review provides a significant safeguard, this does mean that any review is limited to errors of law. The absence of a merits review is particularly significant given that the NACC does not provide individuals with the full range of protections and safeguards that would be available to them if subjected to court proceedings.
Australian National Audit Office
In evidence given to the Committee at a public hearing, the ANAO outlined its role and oversight by the Parliamentary Joint Committee of Public Accounts and Audit:
The committee's statutory role with respect to its relationship with us is that, firstly, they act as a representative of the parliament in giving us the parliament's views on what things could be audited—providing the parliament's priorities with respect to audits. It undertakes a role with respect to our budget, where we provide a budget submission to the committee every year at its request, setting out what our funding is and what issues we have with our funding. After considering our budget, the committee makes representations to the government and then makes a presentation to the parliament on budget day with respect to how they see the funding of the office. So it considers whether we're appropriately resourced. And it receives the reports from our independent auditor; that's with respect to a financial audit. But, also, every 18 months we have a performance audit done of our operations, and that report is tabled in parliament and considered by the committee.
It's involved in my appointment processes. The process involves the executive government putting forward a proposition of who should be appointed, then the committee considers that. That issue of appointment was considered by the committee in the context of its review of our act under the last parliament, and it recommended to government that the way that happens should be reversed—that the committee should run the process, and then it goes to government to decide whether it supports or rejects the proposal. That is sort of where state auditor-general appointments have been moving over recent years; there's been a tendency to move appointments away from the executive towards the parliament. It has a core function in examining all the reports that we table in parliament and considering those. It largely does that in the context of considering whether entities are acting on the reports, rather than looking at doing an examination of the quality of the report or anything like that. But that can come into consideration.
The ANAO also explained the process it follows if it identifies corruption during an audit inquiry:
Mr Hehir: We refer it to an appropriate body. Sometimes, if we identify some form of fraudulent activity within an entity, we might go to the accountable authority and point out to them that we've identified that. We'd then generally follow up with them to make sure that they've undertaken action. We also refer things to relevant investigatory bodies. We've referred things to the AFP. We've referred things to various integrity commissioners. So it depends. In Defence, we've referred it to the inspector-general of Defence, when we've identified issues—generally, around fraud and corruption. There was an audit in the last parliament, with respect to the Leppington Triangle, where we referred matters to the police. But we've done other referrals.
Ms Mellor: One of the interesting things for us is that there isn't an obligation to refer. We're not an investigatory body, and everything we do is confidential because we are doing it for the parliament. So, if we were to raise a matter with an investigatory body, that would be the Auditor-General deciding to not treat some information as confidential in order to pass it on. It's not a referral in the way that can happen elsewhere; it's a public interest test, on the Auditor-General, to decide if something should be handed to someone else.
Mr Hehir: And when we do it, particularly to AFP and people like that, we have to be very careful that they understand that everything we do is covered by parliamentary privilege. If they want to act on it, they have to be clear about what, of that which we give them, they can actually utilise in their investigative process… if it went to prosecution. There's an interaction there that we have to make, but, in my time, there'd be an issue probably every one to two years that we'd refer to an integrity body.
Australian Public Service Commission
The Australian Public Service Commission told the Committee about the intersections between its pro-integrity work and the work that would be undertaken by the NACC:
Under the Public Service Act, the APS [(Australian Public Service)] Commission is responsible for upholding integrity standards and conduct in the APS. We do this by collaborating with stakeholders on initiatives to foster of strong culture of integrity across the APS. We provide best-practice guidance materials and we provide the best possible advice to agencies and people on applying the APS values, the employment principles and the code of conduct in connection with their employment. The Public Service Act sets out the functions, responsibilities and powers of the Australian Public Service Commissioner.
There are about 250,000 Commonwealth public servants, and of those around 160,000 are APS employees. These employees are governed by an integrity framework. It means we've got values that provide the philosophical underpinnings of the APS and set out the parliament's expectations of the Public Service as an institution. We have employment principles which govern the relationship between APS agencies, as employers, and their employees. We have a code of conduct which sets out clear rules relating to the professional conduct of APS employees. Failure to meet obligations under that code of conduct may result in a misconduct investigation that can have consequences for employment.
While the APS values and code of conduct apply to APS employees, the remaining Commonwealth government officials have general duties and obligations under differing legislation, and they must still adhere to certain standards of behaviour even though their behaviour is governed by other enabling legislation and the Public Governance, Performance and Accountability Act.
The NACC Bill provides the NACC with anti-corruption functions which, in our view, must be distinguished from the APS Commissioner's integrity functions under the APS Act. We've been consulted on our key priorities, and these include referring matters to and from the NACC that are relevant to the APS Commissioner's statutory powers of investigation, review and consultation under the Public Service Act framework; preserving the APS Commission's remit to be pro integrity, education and leadership; and clarifying the roles and proposed intersection of the NACC and the Parliamentary Workplace Support Service in light of the APS Commissioner's dual role as the Parliamentary Service Commissioner. We are satisfied with how our questions have been resolved to date and, as with any legislation that impacts the APS and its performance, we will continue to work closely with the NACC on the operational aspects of implementation.
Commonwealth Ombudsman
The Commonwealth Ombudsman explained the parameters of the oversight role that it would have for the NACC:
Subject to passage of the bills, my office would have power to oversee the National Anti-Corruption Commission's use of covert and intrusive powers under various legislative regimes; we would have jurisdiction to investigate administrative actions of the National Anti-Corruption Commission; we would have the discretion, but not obligation, to make referrals of corruption issues raised by public interest disclosures that we receive regarding other agencies; we would have mandatory obligations to refer public interest disclosures about my office that contain serious or systemic corruption issues to the National Anti-Corruption Commission; we would have the discretion, but not obligation, to refer information concerning complaints to the National Anti-Corruption Commission which raise a serious or systemic corruption issue; and, in the case of potential corruption allegations or complaints about the National Anti-Corruption Commission, we could refer those to the inspector of the National Anti-Corruption Commission; and we would be subject to the information-gathering powers of the National Anti-Corruption Commissioner.
The Commonwealth Ombudsman further elaborated on this in its submission:
I am satisfied that the mechanisms for my Office to oversee the NACC’s use of covert and intrusive powers are sufficient. Subject to being appropriately resourced, I am also satisfied with the mechanisms for my Office to oversee state integrity agencies’ use of the covert and intrusive industry assistance powers under Part 15 of the Telecommunications Act 1997.
Additionally, the Commonwealth Ombudsman briefly addressed the provisions of the Bills regarding protections for journalists’ informants:
Paragraph 31 is about protection of journalists' informants. The journalist information warrant provision that exists already in electronic surveillance legislation can be difficult to interpret for agencies which are considering whether they need to seek a journalist information warrant. They have to consider, for example, if the person is working in a professional capacity as a journalist, or if they are the employer of someone working in a professional capacity as a journalist. In our observation, that can be challenging for agencies. We normally suggest that an agency which is considering whether they need to seek a journalist information warrant from an external issuing authority should first seek legal advice to clarify for them whether it's more likely than not they should go down that path, as a matter of caution. As we said in our submission, we think that it would be useful if the Attorney-General's Department developed some further guidance on this question for the benefit of agencies which are considering exercising these coercive and intrusive powers..
The Commonwealth Ombudsman’s concluded that in their ‘experience overseeing the TIA Act has shown that frequently this assessment is not straightforward’.
Past and present commissioners of state and territory-based anti-corruption bodies
The Committee heard from several past and present commissioners of state and territory-based anti-corruption bodies, including:
The Hon Dennis Cowdroy AO KC, former ACT Integrity Commissioner;
The Hon Peter Hall KC, Former Chief Commissioner, NSW ICAC;
Western Australia Corruption and Crime Commission;
South Australian Independent Commission Against Corruption (SA ICAC); and
Victorian Independent Broad-Based Anti-Corruption Commission (Victorian IBAC).
In their evidence, past and present commissioners shared insights from their experience operating in their respective jurisdictions and offered matters for the Committee to consider as part of its inquiry into the NACC Bills.
The Hon Dennis Cowdroy AO KC
Mr Cowdroy, former ACT Integrity Commissioner, suggested the following amendments to the NACC Bill:
In section 3 of the draft bill, I think there should be the words 'during or' in subparagraph (b), so that it reads:
… to enable, during or after investigation of a corruption issue, the referral of persons for criminal prosecution …
It seems to me to be a waste of resources if the commission determines… that a criminal offence has probably been committed. The proceedings should then be terminated and referred to the DPP, because that is where the true criminal law lies, and it seems to me that it would be a waste of resources, a lack of efficiency and would only occur delay if the commission were required to proceed to the very end of an inquiry, only to then refer it, when it could have referred it at the outset.
In respect of section 8, about the meaning of 'corrupt conduct', I consider that there should be a subcategory mentioned in the definition of 'corrupt conduct' to include 'any conduct involving the expenditure of Commonwealth grants on a purpose or purposes other than the purpose or purposes for which the grants were allocated.'
Section 32 refers to 'any person'. I'm not sure whether that is intended to include any entity or organisation. That should be clarified, unless the Acts Interpretation Act definition of 'person' is said to be incorporated in that.
In section 41(1), on how the commissioner may deal with a corruption issue, one of the ways in which he should be able to deal with it is: '(e) by referring the corruption issue to the Director of Public Prosecutions for the Commonwealth.' All the preceding sections don't refer to the DPP. They refer to referring it back to an organisation or agency.
The Hon Peter Hall KC
Mr Hall shared his views on the provisions of the NACC Bills and insights from his experience as Chief Commissioner for NSW ICAC.
First, Mr Hall discussed the possible link between the definition of corrupt conduct to breaches of a Ministerial code:
The code plays a critical role in determining what is permissible and what is not in this pork barrelling exercise. The reason that pork barrelling exercise was initiated was—I took the view, having read both the federal Auditor-General's reports into the various funds we all know about and the two state fund pork barrelling exercises, which were completely over the top, that there was a clear case in those sorts of situations for a breach of the parliamentary code. In the course of the analysis in that matter, it is acknowledged of the realpolitik situation—that is to say, politicians are entitled to do things which will bring favourable responses from their electorate and so on. The real difference is: when the decision is primarily motivated by an extraneous purpose, such as currying electoral advantage, it offends the fundamental principles of public trust.
Mr Hall also supported the adoption of an additional limb to the definition of corrupt conduct from the Operation Jersey report that provides corrupt conduct includes ‘the allocation of public funds and resources to targeted electors for partisan political purposes’. Mr Hall elaborated:
There would be a question of how it's worded because there are some forms of pork barrelling which would be regarded as acceptable—although I wonder whether the Auditor-General would ever accept that description! But there are others that are beyond the pale. Pork barrelling involving small amounts of money doesn't suggest of itself that there's some other primary objective, but where there are large amounts of funds being used in that way, yes, I would support some amendment that would make plain the distinction.
Additionally, Mr Hall commented on the tension between legitimate exercises of ministerial discretion and exercises of the discretion for an improper purpose discussed in the Operation Jersey report in the context of election promises:
The problem with extravagant promises made during the course of an election, whether it be sports facilities or whether it be railway stations or whatever it be, is that, once the promise has been made, if the party making them have been returned to government, they try to retrofit the promise into reality. […]
The difficulty is that there was no proper analysis done up-front as to what truly was required and what could be achieved in terms of financial support for a particular project. There was a lack of discipline, lack of rigour, behind the promise that was made, which obviously is a recipe for a problem when the party comes to power. Either they break their promise, which they are loathe to do, or they'll shoehorn it in and use vast sums of money on occasions in order to try to achieve the promise. That can be inefficient, it could be costly, it could be taking funds away from other more deserving causes. There is a need to address this question of electioneering promises, where there is currently, it seems—not always but in many cases—a lack of any proper business case or analytical attempt to truly determine what is in the public interest.
Western Australia Corruption and Crime Commission
The Hon John McKechnie KC, Commissioner, shared insights from his experience leading the Corruption and Crime Commission Western Australia and highlighted the role that an anti-corruption body plays in addressing corruption by public officials:
There is sometimes a flavour of blaming the integrity agency for what parliament has, in fact, created. Justice Spigelman described an integrity agency as 'the integrity branch of government'. My own view is that, constitutionally, it is too early to know where integrity agencies actually fit. That is why we are having a range of opinions about their efficacy. They are partly in the executive, and they have coercive powers, but they also have to accord procedural fairness in a way that's similar to a court. They do not have the power to make binding declarations of right, as a court does, nor to adjudge guilt or innocence in a criminal trial. Yet, an integrity agency does have the power to affect change and to affect reputation. We are different from royal commissions, from whom we sprung, in that—and this is an essential power which NACC has, and which South Australia does not—a NACC must have the power to make their own propositions and to investigate on their own motion. That, to me, is an important power. Running with it, which NACC also provides, is the need to have intelligence. Again, I agree with Ann Vanstone that a form of intelligence, a form of data, are the allegations which are made—many of which will turn out to have little substance, and others of which cannot be investigated for practical reasons—but they provide enormously useful data as to the health of the public sector.
There are a couple of issues which have been raised that I may as well comment on, but no doubt the committee will have questions about them. The first is public hearings. Our approach is that we are cautious in having public hearings, but there are times when we think they are essential. We tend to use them in a different way from other jurisdictions to an extent, I suspect, in that, especially if there is a corruption convention prevention and education function, as there is in NACC, public examinations of persons not directly accused of misconduct can be very beneficial. Take a recent case in Western Australia where, as a result of commission activity and working cooperatively with the police, a gigantic public sector fraud was uncovered that raised some $22 million directly and a further $5 million in bribes. The person concerned is now serving a lengthy period of imprisonment. We conducted public examinations of the executive of the Department concerned to find out what went wrong, how the corruption was not uncovered for 10 years—and then not by the agency either—and what lessons could be learned. So there is a very valuable public education in public examination.
…those public examinations probably would not meet the exceptional test necessary currently in the NACC. In my view, there are very good reasons for public examinations in appropriate circumstances.
I have two other quick issues… One is inspectors. I don't believe any jurisdiction actually has the balance correct, because an inspector is not like a court of appeal. As a judge for 16 years I was well acquainted with court of appeal decisions sometimes agreeing with me and sometimes disagreeing. But they have the binding authority to overturn. The relationship between an inspectorate and a commission can, on occasions, although I have not personally had this experience, be quite fraught. It's important for each to stay on their tram line. There is a danger that an inspector might be second-guessing an equally qualified commissioner. That's just something to bear in mind.
The other issue, which applies not only to integrity agencies but also to courts, police and the like, is the mental health of witnesses and how best to protect that. We have put in place a range of measures over the years to do that. Part of the issue is that the persons who are subject to corruption investigations and may be corrupt have not previously seen themselves as criminals and it is quite confronting for them when they do. This has nothing to do with the corruption agency but more to do with what they have done. Those are my opening remarks, and I'm happy for any questions.
New South Wales Independent Commission Against Corruption
The Hon John Hatzistergos AM, Chief Commissioner, highlighted his reservations about the provisions in the NACC Bills regarding the authorisations of warrants and public versus private hearings:
Some of the debate that I've seen around some of the provisions of the bill I think ignores some realities. For example, one of the issues raised is the role of the Administrative Appeals Tribunal in approving warrants for telecommunications intercepts. We go to the AAT now in New South Wales to seek approval for telecommunications intercepts and certain information connected to that. We haven't had an issue as far as that's concerned. But it seems to have attracted some controversy.
The other issue that has been raised is public hearings versus private hearings. I'm a strong supporter of public hearings. I believe that they're important because they make the organisation accountable and they provide an opportunity for other people to come forward. We've had investigations which have commenced in public, and as a result of that information other people have come forward and we've been able to go into other areas which have raised significant issues of corruption. It also, I think, ensures transparency and accountability for the agency and justifies the purpose if the case, ultimately, is made for change. That's the other issue that I've heard ventilated at some length. That doesn't mean that I've supported every public hearing that's been held. I haven't. And the act has been changed in New South Wales to allow us to be much more focused in terms of that aspect of our operations. I'm happy to go to that detail if you wish. These are all matters that you need to take into account.
South Australian Independent Commission Against Corruption
By way of comparison to the provisions for hearings set out in the NACC Bill, the SA ICAC explained:
In SA public hearings were the subject of much debate and vigorous opposition. This was with good reason. Hearings should be held in private. If the body is to have the power to hold public hearings, it is imperative that such hearings should only be held in exceptional circumstances to be determined by an independent judicial officer with full due process and in any event with a right of appeal.
At the Committee’s public hearing, the Hon Ann Vanstone KC explained the parliamentary oversight for the SA ICAC:
Currently we are overseen by a parliamentary committee and a reviewer. Last year's major amendments created the position of an inspector with far greater powers, including the ability to search premises and so forth, but that has not yet been proclaimed. However, the reviewer has open access to all our documents. It is the Hon. John Sulan KC. He has remote access to anything he wants to look at on a continuous basis, and he comes into the offices of the commission, and is given any other materials he wishes to have. So although he furnishes an annual review, and he also would respond to any complaints about the commission, if there were any—but there aren't any—he constantly oversees us throughout the year and examines particular powers that we exercise. If and when the new provisions are proclaimed, and a new inspector and a deputy and staff are appointed, then I respectfully agree with Mr Redlich's view that there would need to be supervision of those powers exercised by the inspector, but that is down the track for us. As I say, I have no objection, of course, to our reviewer having open access at any time to examine all our exercises of power, quite outside any complaints he may receive, and to be assisted in getting what he wants in a format that is digestible to him, and with respect, the NACC Bill could well incorporate a wider audit power of that sort.
Ms Vanstone also commented on general damage to reputation when matters are investigated in public:
In discussing outcomes in South Australia and elsewhere, there has been a tendency in the media to speak of reputations being trashed by ICAC investigations or the investigations of similar bodies. …[W]hen a matter goes to court, there will, in South Australia, be an impact on reputation. ICAC investigations are no different from police investigations in that respect, in that there will be that impact. Of course, ours are in private, so there's not that general damage to reputation—until a matter gets to court. And, of course, when one of our matters gets to court, it generally attracts more publicity than the ordinary person who is charged with offences. It's a corollary of the criminal justice system, which is carried out in public, that there is this damage to reputation, and that is so even if that person is not convicted, ultimately, at trial.
Further, in relation to public hearings, Ms Vanstone told the Committee:
…I don't really see the point of having a mock court—in a sense, a quasi-court—set up outside the judicial system. Corruption commissions investigate matters that police generally don't or can't investigate. They need to get to the bottom of allegations. They need to have the tools that the NACC is going to be given, by the look of it. They need those tools; they need robust powers and jurisdiction, and I don't think building into the NACC process the sorts of protections which someone would ultimately get if they were prosecuted would be advisable. I think that would just weigh it down and lead to disputation and litigation along the way.
Victorian Independent Broad-Based Anti-Corruption Commission
The Victorian IBAC’s submission outlined guiding principles of the Victorian model ‘that IBAC considers to be essential to ensure the NACC is established under legislation that will enable it to operate effectively, efficiently and independently’. The Victorian IBAC explained that these include:
appropriate legislative provisions in the Legislation or other Acts to establish and protect the budgetary independence of the NACC
appropriate definitions of corrupt conduct to support the NACC’s performance of its powers and functions – for instance, the definition of corrupt conduct should not be confined to conduct that constitutes a criminal offence as it is in the IBAC Act
appropriate and effective investigative powers which enable effective and efficient investigations by the NACC
the ability for the NACC to hold public examinations, including in relation to expert evidence, in circumstances where the NACC is satisfied that there will be no unreasonable damage to the witness’s reputation and no serious risk to the witness’s welfare. With such conditions are in place there is no need for the legislation to require ‘exceptional circumstances’ to exist prior to a public hearing being held - appropriate legislative powers to support robust prevention and education functions, such as the ability for the NACC to:
make recommendations and publish those recommendations where appropriate
powers to report on all matters relevant to its functions, including where those matters have a prevention and education focus
powers to support the NACC conducting own motion investigations rather than being empowered only where a complaint or notification is made
appropriate powers and functions to support the complaint and notification process, including:
powers to permit referrals to other agencies and for the NACC to conduct reviews of the investigations conducted by other agencies
the ability of the NACC to consider referrals from third parties
mandatory reporting to the NACC of suspected corruption by public sector agency heads
the ability of the NACC to refer matters to a prosecuting authority
appropriate and independent oversight of the NACC to ensure transparency and accountability.
The Victorian IBAC also gave evidence that it considered the current definition of corrupt conduct would be insufficient to capture instances in which a third party engages in conduct that is intended to adversely affect the effective performance or exercise by a public officer or body of their functions or powers.
Further, the Victorian IBAC addressed the Bills’ provisions for public hearings:
A crucial way in which any anti-corruption agency exposes corrupt conduct is through the public examination of witnesses. Examining witnesses in public can make investigations more transparent and can increase public awareness of, and confidence in, the integrity system.
The nature of serious or systemic corruption is that many people may have knowledge of isolated pieces of information that may be relevant to a particular investigation. By holding a public examination, awareness and understanding of the matter under investigation is raised and witnesses can be prompted to come forward with relevant information that they had not previously understood the potential significance of.
The Bill currently only permits public hearings if the Commissioner is satisfied that exceptional circumstances justify the holding of the hearing in public and that it is in the public interest to do so.
In determining whether to hold a hearing or part thereof in public, the Bill allows the Commissioner to have regard to a number of factors, including the extent to which the corruption issue could involve corrupt conduct that is serious or systemic, whether certain information is of a confidential nature or relates to the commission of an offence, any unfair prejudice to a person’s reputation, privacy, safety or wellbeing, whether the person giving evidence has a particular vulnerability and the benefits of exposing corrupt conduct to the public.
…the IBAC does not consider that the existence of exceptional circumstances ought to be a decisive factor in determining whether a public hearing should proceed.
[…]
The NACC must be permitted to hold public examinations without a requirement for exceptional circumstances, so long as there is specific provision that the Commissioner cannot call a witness unless satisfied that there is no unreasonable damage to reputation and that there will be no damage to the witness’s welfare.
It is therefore IBAC’s position that a requirement that exceptional circumstances must exist for a public hearing to be held is unnecessary given the safeguards that already exist within cl.73(3) of the Bill.
Additionally, the Victorian IBAC noted on the NACC’s coercive powers proposed in the Bills:
…IBAC considers the powers to hold coercive hearings and require the production of information, documents and things are critical to the effective operation of the NACC. Appropriately, such powers have been included in the Bill.
IBAC also notes that the Bill currently adopts various search and seizure powers contained within the Crimes Act 1914 (Cth) (with appropriate modifications), and the inclusion of a power to enter certain places without a search warrant. The adoption of these provisions will put the NACC on a relatively equal footing to the Australian Federal Police, which IBAC considers to be an appropriate way in which to ensure that the NACC will have the investigative powers it requires to effectively investigate corruption issues.
Unlike the IBAC Act, the Bill appropriately contains a specific offence for the destruction of documents or things that are, or are likely to be, required by the Commissioner under a notice or at a hearing. To ensure the broadest operation of this offence, it could be expanded to include the destruction of documents relevant to the investigation of a corruption issue.
As legislation empowering the coercive examination of witnesses necessarily renders answers provided during such examinations inadmissible against that person, it is imperative that the ability to obtain derivative evidence for the purpose of future prosecutions is safeguarded by the provisions of the Bill.
IBAC supports the inclusion (in cl.104) of a broad range of agencies and prosecuting authorities in the list of entities permitted to use or disclose investigation material for the purpose of obtaining derivative material that could then be disclosed to and used by a prosecutor.
IBAC recommends that, wherever possible, regulations, policies and protocols are established between these agencies to provide clarity on whose responsibility it will be to gather this further evidence to support a prosecution.
Past and present inspectors of state and territory-based anti-corruption bodies
Mr Bruce McClintock SC
Mr McClintock is the current Inspector of the Northern Territory Independent Commissioner Against Corruption and a former Inspector of the NSW ICAC. In his submission, Mr McClintock focussed on the role of the Inspector of the NACC provided for in Part 10 of the NACC Bill:
The Inspector is, or should be, the most significant accountability and oversight mechanism for the new agency.
Unfortunately, Part 10, as presently drafted, is defective and not fit for purpose. It addresses a false issue, corrupt conduct within the NACC, and fails to give the Inspector the essential power to ensure that the NACC both complies with the law and behaves fairly. Part 10, as now drafted, confines the powers of the Inspector in ways that will have a significant adverse impact on the accountability of the NACC.
I provide in the next paragraph a suggested rewording of clause 184 of the Bill to deal with these issues. I have not set out the consequential changes to other provisions of Part 10 of the Bill which will be necessary if something approaching my formulation is adopted.
I suggest clause 184 be amended to read as follows:
184 Functions of the Inspector
(1) The Inspector has the following functions:
(a) to audit the operations of the NACC for the purpose of:
(i) monitoring compliance with the laws of the Commonwealth:
(ii) detecting agency maladministration and officer misconduct.
(b) to investigate complaints of agency maladministration or officer misconduct made in relation to the conduct or activities of:
(i) the NACC; or
(ii) an officer or staff member of the NACC;
(c) to provide relevant information and documents to the Committee;
(d) to receive public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013) and to deal with those disclosures;
(e) to report, and make recommendations, to both Houses of the Parliament on the results of performing the functions mentioned in paragraphs (a) to (e).
(2) The Inspector also has such other functions conferred on the Inspector by this Act or by any other Act.
(3) In this Part “agency maladministration” has the following meaning:
any conduct (by way of action or inaction) of the NACC--
(a) that is unlawful (that is, constitutes an offence or is corrupt conduct or is otherwise unlawful), or
(b) that, although it is not unlawful--
(i) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or
(ii) arises, wholly or in part, from improper motives, or
(iii) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration, or
(iv) arises, wholly or in part, from a mistake of law or fact, or
(v) is conduct of a kind for which reasons should have (but have not) been given, or
(c) that is engaged in 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.
(4) In this Part “officer misconduct” means any conduct on the part of an officer or staff member of the NACC, which, if engaged in by the NACC, would amount to agency maladministration.
One final point--although not often pointed out, a significant benefit of having an office such as an Inspector, is that he or she provides a quick, cheap and effective remedy for agency misconduct or incompetence, which means that citizens do not need to have recourse to the Federal Courts which are very much slower and extremely expensive for an ordinary person. This makes it even more important that the powers vested in the Inspector are fit for purpose. I regret to say that I do not think those set out in the current Bill are.
Mr McClintock disagreed with the proposal by some witnesses to remove ‘could’ from clause 43 of the NACC Bill:
I want to deal with something I heard before from the Law Council which—with great respect to them—I think is plain wrong. It's the issue, in section 43, of the use of the word 'could'—involve corrupt conduct. That's an issue that I've looked at in New South Wales, because the legislation is exactly the same. The legislation has to use that word. There's no alternative, and I'll explain why. There's no possibility of working rationally on the basis of reasonable suspicion. I've actually made a report to parliament in New South Wales about this…
The point is this. Take the analogy of a police officer sitting in a police station. Someone comes in and says to him, 'There's been a smash-and-grab down George Street, at Cartier.' At that moment, the police officer has no state of mind except that someone has come in and told him there's been a smash-and-grab. At the moment he walks out the door of the police station, he's commenced an investigation. He doesn't have to have any state of mind except that the information he's been given could involve the commission of a crime. That's the trigger for the start of the investigation. Even when he gets down to Cartier and sees that the window is broken, it may not be a smash-and-grab; it may be that someone has accidentally run off the road. The point about reasonable suspicion—or its analogs, its similar concepts—is that it kicks in when you come to arrest or charge someone. The analogy here would be with when the commission determines to make a finding of corrupt conduct or perhaps even hold a public hearing. But commencing an investigation, which is what section 41(3) is about, cannot involve any criteria of reasonable suspicion. It just has to be that the information given to the commission, if it turns out to be true, 'could' involve corrupt conduct. That's the word that has to be used. There can't be any other way of doing it.
Further, in response to a question on notice, Mr McClintock considered it is necessary to maintain a definition of ‘corruption issue’ which includes future conduct set out in clause 9(1)(c). He explained:
The principal reason is that conspiracy and attempt do not exhaust all possibilities of future corrupt conduct. Both concepts have highly technical legal definitions which undoubtedly will be applied by the courts which would restrict the reach of the provisions. A further reason is that such a definition is necessary to give power to the National Anti-Corruption Commission to enable it to intervene prior to the actual commission of an act of corrupt conduct. That is a clear public benefit.
Mr McClintock also touched on the provisions in the Bills regarding parliamentary oversight of the proposed NACC. With regards to the Chair of parliamentary oversight committees, Mr McClintock said:
Based on my experience I have to say that the model in New South Wales and in the Northern Territory is a government chair. The government has the majority in the reps or the legislative assembly and therefore has the power. I have honestly never noticed any political bias whatever in their conduct or supervision of my office and of the ICAC—not at all. I have only ever seen a desire on the part of the members of the committee to do the very best they can by the agencies in question. I have not agreed with everything that they have said, but I've never had any cause to doubt their sincerity or to think that the fact there is a government majority or a government chair has impacted on their role at all. In many ways, depending on what has actually been happening with the agency, you will find government members are the more hostile towards the agency than the opposition or the crossbench members.
I think that is one of those areas that looks significant now but probably will not turn out to be significant. I could be wrong.
Victorian Inspectorate
During their evidence, the Victorian Inspectorate canvassed matters regarding the role of the Inspector of the NACC outlined in the Bills:
The role of the proposed inspector under the NACC Bill is limited to detecting corrupt conduct within and relating to the NACC, investigations into NACC corruption issues and investigating complaints. I think the key difference in the oversight that we have is a monitoring role—a live monitoring role. The NACC Bill doesn't provide any monitoring or auditing role for the inspector that can ensure compliance of laws in real time, and there is no requirement to notify the inspector when coercive powers are exercised.
The Victorian Inspectorate’s submission compared some aspects of the NACC Bills to the Victorian IBAC:
8. The most significant difference in the oversight function is that the NACC Bill does not require the NACC to notify its Inspector of the use of coercive powers, as IBAC is required to do.
9. The benefits of the notification framework to the Victorian integrity system include:
9.1 Independent assurance
Reviews of the use of coercive powers provide assurance that statutory requirements are complied with and that powers are only used where they assist the agency to achieve the purposes of its investigation.
9.2 Protection of affected persons
The review process has the capacity to provide real-time protections for directly affected persons. IBAC must provide the VI with reasons for summonses and copies of other notices promptly after they are issued. This review function is potentially most important in relation to proposed public examinations. The notifications regime in Victoria is premised on IBAC informing the VI of its reasoning for holding a public examination in advance of issuing a relevant summons. The VI then has an opportunity to test IBAC's reasoning. While the legislation does not require IBAC to act on the views of the VI, in practice the interaction makes decisions more robust.
9.3 Supporting other functions
Reviews of statutory notifications also provide the VI with valuable insight regarding the quality of processes and decision-making within IBAC. The findings of reviews can inform the other functions of the VI, such as assessing the effectiveness and appropriateness of the policies and procedures of IBAC or investigating and assessing the conduct of IBAC and IBAC personnel in the performance of their duties, functions and powers.
10. With respect to any decision to conduct a public examination, the NACC Bill has adopted the mandatory 'exceptional circumstances' and 'public interest' factors in section 117 of the IBAC Act. That section also includes as a factor that a public hearing can be held without causing unreasonable damage to a person's reputation, safety or wellbeing. In the NACC Bill consideration of such damage is relegated to a factor to which regard may be had. Given the harm that such damage can do, consideration could be given to making it a mandatory pre-condition.
11. Reviewing statutory notices requires dedicated resources. However, given the valuable insight and quality assurance provided by this function for oversighted agencies such as IBAC, the Committee could consider recommending a similar requirement for the NACC to ensure its functions and powers are exercised lawfully and fairly.
Law societies
The Committee received evidence from law societies and other representative legal groups, including the:
Australian Lawyers Alliance;
Law Council of Australia (Law Council);
Queensland Law Society; and the
South Australian Bar Association.
Australian Lawyers Alliance
The Australian Lawyers Alliance discussed provisions in the Bills regarding public hearings, safeguards against reputational damage, whistleblowers, search warrants and oversight of the NACC:
The [Australian Lawyers Alliance] contends that what is in the public’s best interest must be at the forefront of decisions made about the NACC generally, including in relation to whether hearings are open to public. In turn, conducting public hearings will ensure ongoing public trust in the NACC.
However, the [Australian Lawyers Alliance] also acknowledges the shortcomings of public hearings, such as reputational damage for witnesses called to a public hearing to give evidence. The [Australian Lawyers Alliance] welcomes safeguards to reputational damage in the NACC Bill, as detailed in the next section of this submission.
The ‘exceptional circumstances’ bar will likely be tested in an appellate court once the NACC is operational. If in the meantime the ‘exceptional circumstances’ test in the NACC Bill is amended to expand the scope for holding public hearings, the [Australian Lawyers Alliance] is not concerned that there will be an overuse of public hearings. […]
The [Australian Lawyers Alliance] commends the safeguards against reputational damage contained in the NACC Bill. Being involved in an anti-corruption inquiry can easily attract reputational damage, even for third parties who give evidence as part of an anti-corruption investigation – such as at an anticorruption hearing – but who are themselves innocent of corruption. […]
[The Australian Lawyers Alliance] supports:
the inclusion of “unfair prejudice to a person’s reputation” as a factor to which the Commissioner may have regard when determining whether a hearing conducted by the NACC should be held in public;
the obligation on the Commissioner to include a non-disclosure notation in a notice to produce or a private hearing summons, should the Commissioner be satisfied that there would reasonably be prejudice to “a person’s safety or reputation” without that non-disclosure notation; and
discretion for the Commissioner to include a non-disclosure notation, even if the threshold in section 96(1)(a) is not met but the Commissioner is satisfied that not doing so might prejudice “a person’s safety or reputation”.
The [Australian Lawyers Alliance] also welcomes the inclusion of reputational damage as a consideration regarding the NACC’s reporting on anti-corruption investigations.
The [Australian Lawyers Alliance] notes, however, that the crucial time for protecting reputational damage, especially for innocent third parties and witnesses, is during the initial stages of an anti-corruption investigation. Reputational damage may already have been done by the end of an investigation or by the time of reporting, the ramifications of which are often extremely serious. […]
The [Australian Lawyers Alliance] believes that whistle-blowers must not only be protected, but encouraged to come forth and make reports of suspected corruption. Anonymous reporting to a Whistle-blower Protection Authority has a number of benefits in the public interest. For example, it serves to encourage the reporting and detection of corrupt conduct particularly where people are fearful of reporting suspected corruption due to recriminations being made against them. A central authority can assist in facilitating another means of referral to the proposed Commission.
The [Australian Lawyers Alliance] therefore encourages the Federal Government to continue to work towards a comprehensive whistle-blower regime to promote the exposure of corrupt conduct and indeed any harmful conduct that would otherwise be difficult to uncover and to investigate all aspects of the treatment of whistle-blowers. […]
Section 117 of the NACC Bill details the powers of the Commissioner to enter places occupied by Commonwealth agencies without a search warrant. This is followed by a series of exceptions to and qualifications on those powers. […]
Further, a declaration made under this section by the Attorney-General is not a legislative instrument. The [Australian Lawyers Alliance] strongly contends that a lack of Senate oversight for such broad powers is highly problematic.
The [Australian Lawyers Alliance] thus recommends that these powers are clarified and constrained, and that this section is made a legislative instrument in order to attract the appropriate scrutiny. […]
The [Australian Lawyers Alliance] supports the establishment of a national, independent tribunal to determine and authorise funding and resources for the NACC.
Human Rights Law Centre
Evidence given by the Human Rights Law Centre focussed on the provisions in the Bills regarding whistleblower protections. In his opening statement, Mr Kieran Pender, Senior Lawyer at the Human Rights Law Centre said:
The first is that the NACC bill in its current form is a missed opportunity when it comes to whistleblower protection, and that it will significantly hamper the effective operation of the NACC. To be effective, the NACC will be reliant on individuals who are aware of corrupt conduct speaking up. Unless the NACC can foster trust and confidence among such individuals, that they'll be protected and empowered in speaking up, they will remain silent. The current NACC bill does the bare minimum when it comes to protecting whistleblowers, and it must go further.
Secondly: the single most significant thing that this government could do to protect and empower whistleblowers would be to establish a whistleblower protection commissioner or authority to oversee and enforce whistleblowing law and to provide practical support to whistleblowers… Whether established within the NACC or as a standalone body, a whistleblower protection authority would be a vital contributor to an effective National Anti-Corruption Commission.
Thirdly: the whistleblower protection provisions in the NACC bill and its integration with the Public Interest Disclosure Act replicate rather than remedy existing shortcomings… The government has committed to PID Act reform, and has indicated that this will come before the NACC is operational. But its commitment so far has been limited to implementing the now-outdated recommendations of the 2016 Moss review. I would urge the committee to recommend that the government undertake comprehensive whistleblower protection reform as soon as possible to ensure that whistleblowers to the NACC are protected and empowered[.]
Finally, the need for robust whistleblower protections extends to protecting journalists from being forced to disclose their sources—the so-called 'shield' laws. In a number of states and territories we've had anticorruption commissions using coercive powers against journalists, and they have been rightly criticised for doing so. I think that section 31 of the NACC bill is a good start, but it needs to be improved before becoming law. It lacks the necessary breadth and depth to be effective in practice. Ultimately, improved shield provisions within the NACC bill must be the first step in wider comprehensive press freedom reform.
Further, the Human Rights Law Centre shared its view regarding the Bills’ provisions on the privilege against self-incrimination and legal professional privilege in response to a question on notice:
The [Human Rights Law] Centre shares the views of the [Law Council] that the privilege against self-incrimination and legal professional privilege are fundamental features of the Australian legal system and the wider international human rights framework. The International Covenant on Civil and Political Rights provides, for example, at Article 14(3) that in the determination of criminal guilt, everyone is entitled to minimum guarantees including ‘[n]ot to be compelled to testify against himself or to confess guilt.’ While legal professional privilege is not itself a recognised human right, it has been accepted as a necessary corollary of human rights protection – ‘a fundamental, constitutional or human right, accessory or complementary to other such rights’: see European Court of Justice in AM & S Europe Ltd v Commission of the European Communities [1982] ECR 157 [8].5.
While the NACC will not be determining criminal guilt, any limits on these important principles in the NACC context should be necessary, proportionate and subject to appropriate safeguards and oversight. While the Centre is not in a position to comment in detail on the proposed approach, we echo the LCA’s submission at the level of principle and call on the Committee to consider whether the present legislation appropriately balances the need for an effective NACC while minimising any unnecessary and disproportionate curtailment of core common law legal protections.
Law Council of Australia
The Law Council examined the provisions of the Bills in detail and made ‘the following recommendations to improve the effectiveness and fairness of the proposed NACC’.
Broad jurisdiction
Timeliness of investigations
The NACC should be required to report on the duration of its investigations in its annual report to Parliament under clause 271, including the reasons for any delays.
The Joint Committee’s functions at clause 177 should include consideration of the timeliness of the NACC’s investigations.
Conduct with ‘could adversely affect’
The phrase ‘or that could adversely affect’ should be deleted from paragraph 8(1)(a) of the NACC Bill.
‘Corruption of any other kind’
Paragraph 8(1)(e), concerning ‘corruption of any other kind’, should either be deleted from the NACC Bill, or clarified by way of including an exhaustive list of the types of conduct that would be captured.
Application of future conduct
The issue of whether a person will engage in corrupt conduct should be removed from the definition of ‘corruption issue’ (by removing paragraph 9(1)(c)).
Jurisdiction
A Federal Judicial Commission should be established as a matter of priority.
Suspicion threshold
The threshold for mandatory notification of corruption issues by agency heads under clause 33 of the Bill should be amended to reasonable suspicion that the corruption issue involves corrupt conduct that is serious or systemic.
Threshold for corruption investigation
The threshold for investigation by the Commissioner under sub-clause 41(3) (and sub-clause 55(a)) of the Bill should be amended to reasonable suspicion that the corruption issue involves corrupt conduct that is serious or systemic.
Comprehensive powers
Hearings
Hearings should by default be conducted in private, unless the Commissioner considers that a closed hearing would be either unfair to the person or otherwise contrary to the public interest.
The Bill should be amended to require that procedural fairness guidelines be developed with respect to public hearings. These could take the form of a legislative instrument.
Non-disclosure notations
Clause 98, concerning the non-disclosure notation offence, should be amended in line with section 114 of the Independent Commission Against Corruption Act 1988 (NSW) (NSW ICAC Act). This includes providing an exception for disclosure to registered medical practitioners or registered psychologists.
Post-charge coercive powers
The powers in the Bill to compulsorily question charged persons, or persons against whom charges are imminent, about the subject matter of those charges should be removed.
The compulsory questioning of a witness should be deferred until the disposition of any charges the witness is facing.
Post-charge sharing of investigation and derivative material to the prosecution
Post-charge disclosure of investigation and derivative material to the prosecutor should not be permitted.
Authorised officers
Clause 267, concerning authorised officers, should be clarified with respect to ‘suitable qualifications or experience’.
Protections
Legal professional privilege
Clause 113 should be amended so that abrogation of the privilege against self-incrimination does not apply to derivative, as well as direct use, of the answers given in related criminal and civil proceedings.
Clause 114 should be redrafted to remove the abrogation of legal professional privilege and to provide for an independent third party, such as a court, to determine claims made in relation to legal professional privilege. At the very least, steps should be taken to protect the disclosure of privileged material in investigation reports.
Clause 115 (which requires a legal practitioner who claims privilege on behalf of a person to provide the name and address of the person) should be removed from the NACC Bill.
Privileges and protections
The privilege against self-incrimination should only be abrogated to the extent that both a direct use and derivative use immunity apply in civil and criminal proceedings.
The abrogation of the privilege against self-incrimination in clause 113 should be conditional upon requiring the NACC to demonstrate that all other less coercive avenues to obtain information have been exhausted prior to compelling a person to give evidence in circumstances where the privilege is abrogated.
Paragraph 113(3)(a), providing for an exception to use immunity for confiscation proceedings, should be removed.
Journalists
A multifaceted approach to strengthening safeguards within warrant processes concerning journalists is required in the Crimes Act 1914 (Cth) (Crimes Act), having regard to factors such as officer qualifications, the public interest test, the role of a public advocate, and issuing officers.
Accountability and reporting
Reporting on corruption investigations
Part 8 provisions regarding reasonable opportunity to respond should include minimum notice periods.
Clause 156 should require the Commissioner to consider whether publication of the report is in the public interest, and if the Commissioner is of this opinion, to publish it.
Oversight
Functions of the Inspector
The functions of the Inspector under clause 184 should be expanded to include a proactive audit function of the NACC, modelled on paragraphs 57B(1)(a) and (d) of the NSW ICAC Act and paragraphs 122(2)(a) and (c) of the Law Enforcement Conduct Commission Act 2016 (NSW) (LECC Act).
Appointment and qualification of Commissioners
Sub-clause 242(5) should be removed and a clause inserted to allow for the extension of a Commissioner’s term for up to two years in the role of a Deputy Commissioner.
Surveillance powers
With respect to telecommunications interception and surveillance powers in general (including as exercised by the NACC and law enforcement and security agencies):
Only superior court judges should be eligible for appointment as issuing authorities for all types of surveillance warrants. The definitions of issuing authorities in Sections 11, 12, 13 of the Surveillance Devices Act 2004 (Cth)… and section 6DB of the Telecommunications (Interception and Access) Act 1979 (Cth)… should be amended accordingly.
However, as a minimum, the power to issue warrants authorising the most intrusive surveillance powers should be limited to superior court judges who are appointed in their personal capacities.
In the short term, Part 6 Division 3 of the [Surveillance Devices Act 2004 (Cth)] and Chapter 4A of the [Telecommunications (Interception and Access) Act 1979 (Cth)] should be amended to confer on the Commonwealth Ombudsman a standing function of review, including the ability to conduct own-motion reviews, in relation to the exercise of electronic surveillance powers to ensure that recurring areas of non-compliance are addressed.
In the long term, the Government should consider the Law Council’s broader submission on electronic surveillance reform regarding the need to ensure harmonised electronic surveillance thresholds build in necessity and proportionality as conditions that must be fulfilled for a warrant to be issued.
Judicial review
The amendments to the ADJR Act in the Consequential Amendments Bill (Schedule 1, Part 2), excluding review under the ADJR Act of a large number of powers of the proposed NACC and NACC Inspector, should be removed. If this is not accepted:
judicial review should be available for at least substantial interim decisions of the Commissioner, such as the decision to hold a public hearing; and
the exclusion of any powers of the NACC Bill from review under the ADJR Act should be clearly and specifically justified.
Queensland Law Society
Evidence given by the Queensland Law Society at the Committee’s public hearing outlined aspects of the Bills that in its view required further consideration:
First, the default setting should be that hearings are held in private, except under exceptional circumstances and where the commissioner must take into account the list of factors set out in subclause 73(3). Secondly, the terminology 'corruption of any other kind' in paragraph 8(1)(e) should be deleted, on the basis that it is vague and uncertain. The definition of a corruption issue should not include whether a person was engaging in corrupt conduct, as contemplated in paragraph 9(1)(c). While the commission should be appropriately empowered to investigate conspiracy or attempts to engage in corruption, we consider that capturing future corrupt conduct in the meaning of a corruption issue is ambiguous and not the most efficient use of the commission's resources.
The Queensland Law Society recommended that the Bills be amended to:
Remove subclause 8(1 )(e). Alternatively, include an exhaustive list of the conduct that will be captured by this subclause.
Remove subclause 9(1 )(c) to restrict the NACC’s investigation of corruption issues to past and present corrupt conduct.
Amend subclause 73(3) so that the Commissioner must (as opposed to may) have regard to the listed factors.
Amend clause 74 to include circumstances where the giving of evidence would disclose information that is protected by the privilege against self-incrimination.
Provide for judicial review of a decision made in relation to whether a hearing should be public or private.
South Australian Bar Association
The South Australian Bar Association suggested the Committee consider the functions of the SA ICAC:
If the Parliament is going to legislate for such a body, they should give serious consideration to the South Australian model as recently amended. Those amendments were supported by every single member of the South Australian Parliament… Any concept that receives unanimous support through a parliament deserves close attention when similar concepts are under consideration.
The reformulated SA Corruption Commission splits maladministration and misconduct issues from corruption investigations and leaves these as matters for the Ombudsman. The South Australian model leaves only serious corruption defined as the breach of certain criminal offences for the Commission to investigate. Further it creates an independent clearing house to handle complaints –the Office of Public Integrity – to decide which matters should go to which body. It maintains private hearings, a very important protection for the people appearing before the Commission.
The amendments were put forward following what was seen by members of Parliament as a serious overreach by the South Australian ICAC which lead to a suicide and the destruction of the lives and careers of several public servants and police officers.
The reformulated South Australian Act strikes the delicate balance of dealing appropriately with serious corruption whilst protecting the reputation of innocent public officers. While it is not perfect and (we suggest) more safeguards are needed, the Federal Parliament should give serious consideration to adopting and improving on the South Australian model.
Legal academics
The Committee heard from academics, including Emeritus Professor Chilla Bulbeck, Professor Colleen Lewis and Professor Anne Twomey.
Emeritus Professor Chilla Bulbeck
Professor Bulbeck called for the term ‘exceptional circumstances’ to be removed from the NACC Bills. She said the presumption of ‘hearings in private… weighs too heavily towards protecting politicians and others, and does not ensure sufficient transparency’. She expanded:
The purpose of uncovering corruption is to build citizens’ trust in our democracy with robust mechanisms to uncover corruption. The less transparent the workings of the commission, the less trust the public will have in its work and findings. As the Commission is not empowered to punish corrupt politicians and officials, public exposure is the ONLY consequence.
Professor Colleen Lewis
Evidence from Professor Lewis focussed on hearings and third parties. She stated her view that:
…the decision on whether to hold a public hearing… should not be constrained by exceptional circumstances. It would be really interesting to know when that particular barrier was imposed and perhaps to have a little more information about why it was imposed. I understand that we hear time and time again that it's to protect reputations from being sullied by public hearings. We've also been told by members of parliament at the state level and even at the federal level that anticorruption commissions have ruined reputations, that they're kangaroo courts et cetera et cetera…
I would also like to say that the public hearings are a preventive tool. They actually bring forward new evidence. They also act as a restraint on people who may be contemplating or involved in very minor misconduct from escalating that conduct, when they see the consequences of going down the corruption path at a public hearing.
Further, Professor Lewis advocated for the Bills to capture third parties:
…because if their behaviour involves serious dishonesty when trying unsuccessfully to influence the policy advice of public servants, or when trying unsuccessfully to influence the decision-making powers of ministers, it's still corrupt conduct. [W]e've been increasingly contracting out work. That's what governments have been doing. They are entering more and more into public-private partnerships. So I believe it's very important that trying to dishonestly influence public policy is something that should be within the remit of the National Anti-Corruption Commission.
Professor Anne Twomey
Professor Twomey, Professor of Constitutional Law at the University of Sydney, addressed many of the core aspects of the Bills in her submission, including the definition of corrupt conduct and corruption investigations and hearings.
The definition of corrupt conduct in proposed s 8 addresses dishonest or partial exercises of a public official’s powers, functions or duties in circumstances where one person (whether or not a public official) causes another person (who is a public official) to act in that manner. However, unlike the NSW ICAC Act, it does not directly address the dishonest or partial conduct of a public official if this has not been caused by another person. One might assume that dishonest and partial conduct by a public official would fall within the scope of ‘breach of public trust’ or ‘abuse of office’, but given that those phrases are rather general in nature it would be preferable to make this clear. It appears that proposed s 8(3) is intended to achieve this outcome, but I find it hard to understand as it seems to say that the conduct of a public official must adversely affect the honest or impartial exercise of that public official’s powers, functions or duties, which doesn’t really make sense. By being dishonest do I adversely affect the honest exercise of my powers? I think this could be cleaned up.
I also note that the Bill takes up the approach of the majority in the Cunneen case that actions by a third party (or by a public official, where those actions are not within the scope of his or her office), do not amount to corruption, even if they result in a corrupt advantage flowing to the person, if it occurs as a consequence of deceiving a public official, rather than causing the public official to act in a dishonest or partial manner. … I note that in NSW the ICAC Act was amended so that such conduct falls within the definition of corrupt conduct. Section 8(2A) was added, which provides:
(2A) 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.
Is there a good reason why such matters should not be covered by the Commonwealth Act?
[…]
One of the most concerning aspects of the Bill is the lack of transparency concerning corruption investigations. […]
Holding hearings in private then has a flow-on effect for transparency in terms of the publication of the report. Proposed s 154 states that the Commissioner must give the Minister (or the Prime Minister if the report is about the Minister) a copy of the investigation report. Proposed s 155 then states that if the Commissioner has given the Minister (or Prime Minister) an investigation report and one or more public hearings were held in the course of the investigation, then the Minister (or Prime Minister) must table the report in each House within 15 sitting days of its receipt. There is no such obligation where private hearings only were held, which will be the case for the vast majority of investigations. Proposed s 156 then states that the Commissioner ‘may’ publish the whole or part of an investigation report if the Commissioner has given it to the Minister (or Prime Minister) and the Commissioner is satisfied that it is in the public interest to publish the whole or the part of the report. This suggests that investigation reports into matters that have been the subject of only private hearings may not be published at all, either in Parliament or to the public in general. Even the person who referred the corruption issue may be left in the dark as to the result of the investigation, as proposed s 158 states that the Commissioner ‘may’ advise the person of the outcome, but there is no obligation to do so. There is also no obligation to advise the person who was being investigated about the outcome of the corruption investigation unless the Commissioner makes a finding that the person has engaged in corrupt conduct (proposed s 159).
The upshot is that the NACC will be a body with great powers that can investigate matters in secret, hold secret hearings and issue secret reports containing secret findings. This will undermine public trust in the NACC and is inconsistent with the principle of transparency.
While it is true that public hearings can damage reputations, even when allegations of corruption are not substantiated, it remains important, where allegations have met a threshold of substantive evidence, and it is in the public interest to do so, for hearings to be able to be held in public.
[…]
I have some concern that proposed ss 46 and 47 would exclude from the scope of matters the NACC could investigate anything that ‘could be’ the subject of investigations by the Independent Parliamentary Expenses Authority or the Electoral Commissioner. The words ‘could be’ open up a wide area. It may be that neither authority has any intention of dealing with the matter, but if so the NACC cannot proceed with an investigation unless the relevant person refers it to the NACC and states that it could involve corrupt conduct that is serious or systemic. There is a risk that serious matters could fall in the gap between agencies, with no one addressing them.
National security experts
The Committee heard evidence from Dr James Renwick CSC FRSN SC and Dr William Stoltz regarding the bills’ implications for Australia’s national security and its associated legislation.
Dr James Renwick CSC FRSN SC
Dr Renwick, former Independent National Security Legislation Monitor, made a submission to the inquiry specifically addressing the bills’ provisions for public hearings. Dr Renwick suggested that the NACC Bills should adopt a provision set out in the NSW ICAC Act:
…based on s 31(2) of the NSW ICAC legislation which states:
A decision of the Commission to conduct a public inquiry under section 31 must be authorised by the Chief Commissioner and at least one other Commissioner.
Dr Renwick explained that this provision would remove:
…not only the risk of, but also the perception of the risk of, personal idiosyncrasy, it shares the heavy burden to be placed on the Commissioner and thereby protects the NACC when such an important decision is made, and it does not detract in any sense from the Commission’s independence.
Dr William Stoltz
Dr Stoltz, Policy Director at the Australian National University’s National Security College, told the Committee about the bills’ implications for national security, particularly in relation to the NACC’s investigation and information collection powers that may incidentally disclose Cabinet or national security information.
While Dr Stoltz supported the creation of the NACC, he recommended the bills be amended to:
…mitigate against the risks arising from the NACC deploying its most intrusive powers against the Prime Minister and Cabinet, it is recommended that the Bills be amended to accommodate the following requirements:
That where the NACC Commissioner seeks to undertake collection activities that would likely lead to the direct or incidental collection of Cabinet or national security information, they must first consult with the Governor-General and/or the Chief Justice of the High Court on the potential impact to the proper functioning of Cabinet.
That where the Commissioner seeks to undertake collection activities that would likely lead to the direct or incidental collection of information concerning the national security decision making of Cabinet or a Cabinet member, they must first consult with the Director-General of Security concerning any potential adverse security impacts.
That where the NACC undertakes collection activities that leads to the collection of national security information the Commissioner must notify, as appropriate, either the Director-General of Security or the head of the information's originating agency and consult with them on the proper storage, dissemination, and disposal of the information.
That covert interception and surveillance powers can only be used in relation to the Prime Minister or other Cabinet members where the corrupt conduct in question would constitute a 'serious corruption offence' (or similar concept laid down in the Bills) meaning the severity of the corruption being investigated would outweigh concerns for Cabinet confidentiality or national security information.
To preserve the integrity of NACC investigations and to prevent referrals to the NACC being politically weaponised, it should be an offence to disclose the existence of a NACC referral without the permission of the NACC Commissioner or their delegate.
New standing orders should be adopted to accommodate parliamentarians wishing to disclose a referral to Parliament. The standing orders should:
Strongly discourage the tabling of a NACC referral without the permission of the NACC Commissioner.
Explain that, if a referral is to be tabled, it should first be presented to the Parliament in writing in a manner that does not reasonably identify the Commonwealth official(s) to whom it pertains.
Subsequently, the Presiding Officers alone should have the discretion to judge if it is in the interest of the public or the Parliament for the official(s) to then be named.
Any unauthorised disclosure of a NACC referral by a parliamentarian should immediately trigger a vote of the relevant Chamber as to weather a censure motion should be moved against the member(s) in question.
Think tanks
The following think tanks submitted to the inquiry:
Accountability Round Table
Australian National University’s Transnational Research Institute on Corruption (TRIC)
Governance Institute of Australia
Institute of Public Affairs
The Australia Institute’s National Integrity Committee
The Centre for Public Integrity
Rule of Law Institute of Australia (Rule of Law Institute)
Transparency International Australia
Accountability Round Table
Although the Accountability Round Table broadly supported the establishment of the NACC, it recommended the Bills be amended in the following ways:
Recommendation 1: Amend s8(1) to read ‘or that could or is intended to adversely affect’ […]
Recommendation 2: s8(10) be amended to include attempts and conspiracies to corrupt those officials […]
Recommendation 3: The JCNACC will have a role under part 10 in selecting a shortlisted panel of candidates and appointments under Section 178 must have the support of a majority with such majority including either at least one member of the opposition OR both independents.
The Parliamentary Budget office should review and evaluate the content and adequacy of the NACC’s budget and finances annually.
Recommendation 4: Section s73(2)(a) should be deleted or amended to read ‘It is necessary and appropriate, in the interests of open justice and procedural fairness, to hold the hearing..’
Recommendation #4 [sic]: That the Committee take due notice that this Bill does not involve retrospectivity
Recommendation #5: There should be the provision of disincentives for stating that a person or persons have taken a complaint to NACC.
The Accountability Round Table also queried the provisions in the Bills’ that would restrict public hearings:
The inclusion of the ‘exceptional circumstances test’ in s72(2)(a) is inconsistent with the National Committee of Judges’ design principles, Labor’s national ICAC design principles announced prior to the election (which received widespread support by comparison with the former government’s secretive model) and goes beyond the requirements of any State or Territory Commission Act including Victoria.
While the extent of corruption in the public sector is almost impossible to estimate, anti-corruption agencies must remain open forums if they are to contribute to the objective of generating public trust in government. It is well documented that in NSW and Victoria the process of public hearings has assisted in flushing out corruption at the State and municipal level, encouraging witnesses to come forward and government agencies to address corruption risks.
Public hearings are regarded as essential by the Commissioners of ICAC and IBAC, and as a crucial mechanism in promoting integrity and investigating and exposing corruption. A decision that it is in the public interest to hold a public hearing in NSW and Victoria will only be made after detailed investigation has found that the evidence is sufficiently cogent to justify putting someone publicly in the witness box. It is common practice for Courts and Royal Commissions to take place in public, for example the Hayne Commission into Banking Matters. Under Commonwealth legislation, federal judges, including of the High Court, may be examined in public. Why should only politicians and their staff be entitled to such secrecy?
Australian National University’s Transnational Research Institute on Corruption
The TRIC is a cross disciplinary centre collating the Australian National University’s expertise in the study of corruption. In its submission, the TRIC discussed the proposed NACC’s prevention and education roles and concluded:
While many of the resources share common ground, context matters. For the NACC, issues of corruption in matters of national security are one area which will distinguish it from its state and territory-based counterparts. Thus, the NACC’s prevention and education will need to be tailored and further developed to fit the Commonwealth context. In essence, corruption prevention and education for the NACC can take a thin approach [(Crime and Corruption Commission Western Australia)] or a far thicker approach (IBAC, [Queensland Crime and Corruption Commission], the ICACs and ACLEI).
It is recommended that the Committee give due consideration to the envisaged prevention and education functions of the NACC. In particular, whether the intent is for the NACC to follow a thin, black-letter law approach to prevention and education or a thick, legally guided, but not legally bound best-practice oriented approach.
Governance Institute of Australia
The Governance Institute of Australia recommended:
…the scope of the Commissioner’s functions be expanded to enable investigations of maladministration where there might be a ‘reasonable suspicion of corrupt conduct’. The Commissioner’s prevention functions should also be expanded to enable the Commissioner to conduct and report on public integrity surveys and to make recommendations for improvements in governance. […]
…there should be a single test for holding public hearings – the Commissioner is satisfied that it is in the public interest to do so. […]
…the NACC have its own separate Parliamentary appropriation not tied to any one portfolio. […]
…the NACC Bill incorporate appropriate safeguards in relation to the Attorney General’s ability to issue a certificate under Clause 235. […]
…the role of the NACC be enhanced to give it a role in relation to whistleblowers which would enhance its ability to fight corruption and fill an important gap in the current Australian whistleblower protection regime.
Institute of Public Affairs
A submission received from the Institute of Public Affairs broadly opposed the Bills and the establishment of the NACC. The Institute of Public Affairs explained:
The proposed legislation includes numerous flaws which would give the NACC an uncertain and thereby expansive jurisdiction to investigate what it considers “corrupt conduct”:
Clause 8(1)(e) defines “corrupt conduct” as “any conduct of a public official” that “constitutes, involves or is engaged in for the purpose of corruption of any other kind.”
This vague language would give the NACC almost limitless discretion to define corrupt conduct as it sees fit and determine its own jurisdiction to exercise its sweeping powers. This is a hallmark of arbitrariness.
Clause 8(1)(a) includes within the definition of corrupt conduct anything that “could adversely affect” the honest or impartial exercise of a public official’s powers.
The “could test” is a low threshold to trigger the NACC’s extraordinary powers. It would effectively overturn the presumption of innocence as it does not require wrongdoing, just the suspicion that wrongdoing could occur, where wrongdoing does not even have a tangible definition in the Bill.
The Bill would require the NACC to investigate conduct which is “serious or systemic” This would mean that the commission would not even need to pursue serious corruption, just conduct which it deems “systemic.”
The bill lacks judicial oversight of the NACC’s functions and conduct… According to the Attorney-General, the NACC will not even need to go to a court of law to obtain a warrant to surveil the telecommunications and homes of individuals who are caught up in its investigations. Instead, these warrants could be signed off by a member (not a judge) of the Administrative Appeals Tribunal whose role would be to undertake a “review for lawfulness.” This is incompatible with the functions of a non-judicial body such as the AAT.
[…]
Under clause 73, the power of the NACC to hold public hearings will be exclusively vested in the NACC Commissioner. There are several factors the Commissioner may have regard to when making the decision to hold a public hearing, but these considerations are not mandated.
[…]
Under the bill., elected politicians, including leaders of governments who have been endorsed by the electorate at general elections, could nonetheless be pressured into resigning by an unelected agency for conduct that does not even meet the standard definition of corruption. The consequence of this is that it would empower unelected judges and bureaucrats to select the prime minister.
[…]
Research of the Institute of Public Affairs has identified that the anti-corruption agencies are by their nature inconsistent with the values of the rule of law and parliamentary democracy. The language of the Bill will not restrain the NACC from justifying its existence by pursuing marginal cases of non-serious conduct. As former High Court justice Dyson Heydon noted in a 2010 case, special purpose bodies tend to “lose touch with the traditions, standards and mores of the wider profession and judiciary” while becoming “overenthusiastic about vindicating the purposes for which they were set up.”
Meanwhile, the NACC itself will be insulated from criticism on the basis that any criticism of an anti-corruption commission will be perceived as being “weak on corruption.” This was epitomised when the NSW state government passed laws to retrospectively validate conduct by the NSW ICAC which the High Court had found to be beyond its jurisdiction and therefore unlawful. Rather than being accountable, ICAC was able to weaponise its status as an anti-corruption agency to publicly call for the law to be changed to validate its actions.
The Australia Institute’s National Integrity Committee
Of particular concern to the Australia Institute’s National Integrity Committee was the provisions in the Bills regarding hearings:
As drafted, the NACC legislation specifies that the Commissioner may decide to hold a public hearing only where there are exceptional circumstances to justify holding the hearing in public and it is in the public interest to do so (s73).
This is too high a threshold and will prevent most public hearings taking place, even where it is clearly in the public interest to do so.
The phrase “exceptional circumstances“ should be struck out. The matters which are to be considered in determining the public interest test already include the risk of unfair reputational damage. This should be sufficient protection provided these considerations are made obligatory.
We note that in deciding whether to hold a public hearing, the Commissioner “may” have regard to a number of matters. We suggest that the Commissioner instead “must” consider these matters prior to determining whether to hold a public hearing. If this amendment is made the need for the inclusion of “exceptional circumstances” would not be required.
Alternatively, as in the case of the NSW Independent Commission Against Corruption, a decision to hold a public inquiry must be made by the Chief Commissioner and at least one other Commissioner, to ensure that public hearings are only held when it is in the public interest to do so, and reputations are not unfairly prejudiced.
The Centre for Public Integrity
In its submission, the Centre for Public Integrity recommended the following amendments to the Bills.
Broad jurisdiction
The Centre for Public Integrity recommends that section that section 8(1) be amended to include an additional paragraph after paragraph (a):
(b) any conduct of any person that has the potential to impair the efficacy or probity of an exercise of an official function, or public administration, by a public official
Alternatively, we recommend that an additional subsection be included after subsection (1):
(2) 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.
Independence from Government
The Centre for Public Integrity recommends that a clarifying subsection be included at cl. 40:
(2) To avoid doubt, the Commission may conduct an investigation on its own initiative
Alternatively, cl. 40 could be restructured as follows so that the power of the NACC to commence an investigation is identical to that of the New South Wales ICAC:
(1) The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it.
Comprehensive powers
The Centre for Public Integrity recommends that cl. 73 of the Bill be amended as follows:
(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.
[…]
The Centre for Public Integrity recommends:
Mandating the minimum factors that the Commission has power to consider as part of the cl. 62 public interest test;
Mandating the steps that the Commission is empowered to take by cl. 48(2) and cl. 149(5);
Requiring the agreement of the Chief Commissioner and at least one Deputy Commissioner before a public hearing may be held;
Requiring that in each investigation report a prominent table be included listing all persons appearing, their reason for appearing (either as suspect or witness) and whether adverse findings were made against them;
Requiring that public hearings are presided over by legally-qualified Commissioners.
[…]
The Centre for Public Integrity recommends that an additional subsection providing as follows be included at cl. 73:
(6) A hearing may be held in public only where it is presided over by the Commissioner, or a Deputy Commissioner appointed pursuant to s 242(4).
[…]
The Centre for Public Integrity recommends that an additional subsection be included at cl. 124, replacing the currently proposed subsection (2B) (which would become subsection (2C)).
(2B) For the purposes of issuing a warrant to which subsection (2A) applies, an ‘issuing officer’ is a judge of a State or Territory Court, or a judge of the Federal Court.
[…]
Accountability and reporting
The Centre for Public Integrity recommends that the reporting clauses be redrafted to achieve greater clarity. […]
The Centre for Public Integrity recommends that s 157(2)(b) be amended as follows:
(2) The investigation report must not include an opinion, finding or recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other person, unless the Commissioner has given the head of the agency, the head of the entity or the other person concerned:
(a) a statement setting out the opinion, finding or recommendation; and
(b) three months, or such longer period as determined by the Commissioner, to respond to:
(i) the opinion, finding or recommendation
(ii) the proposed publication of the opinion, finding or recommendation […]
The Centre for Public Integrity recommends that cl. 74 be amended to read as follows:
Evidence may be given in private if giving the evidence would:
(a) breach a secrecy provision; or
(b) disclose any of the following:
(i) legal advice given to a person;
(ii) a communication that is protected against disclosure by legal professional privilege;
(iii) information that the Commissioner is satisfied is sensitive information;
(iv) section 235 certified information;
(v) intelligence information […]
The Centre for Public Integrity recommends that the review clause be structured as follows:
(1) The Minister must cause a review to be undertaken of the first 5 years of the operation of:
(a) this Act; and
(b) the amendments made by the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 8 2022.
(2) The review must commence no later than 5 years and one month after the day on which the Act commences.
(3) The review must be completed no later than 12 months after the day on which it commences.
(4) The review must be conducted by a former judge of the High Court of Australia, or of the Federal Court of Australia, or of a Supreme Court of a State or Territory.
(5) The review must include, but is not limited to, consideration of:
(a) the Act’s provisions in respect of public hearings;
(b) the Act’s definition of ‘corrupt conduct’;
(c) oversight mechanisms provided for by the Act; and
(b) emerging practice both domestically and internationally in respect of any matter dealt with by the Act
(6) The review must include an opportunity for the following to make written submissions on the operation of this Act:
(a) persons who are or have been public officials; and
(b) members of the public
(7) An entrusted person must, if requested to do so by the persons undertaking the review, assist them in:
(a) conducting the review; and
(b) preparing the written report.
(8) The Minister must cause a copy of a report of the review to be laid before each House of Parliament as soon as reasonably practicable after the review is completed, and at most seven days after it is completed.
We also recommend the exclusion of cl. 278(7), pursuant to which the statutory review would not be required if any parliamentary committee commences (or completes) a review during the 5-year period. A committee review is no substitution for an independent statutory review in circumstances where a committee undertaking such a review might be dominated by the executive.
Oversight
The Centre for Public Integrity recommends that cl 172(1) of the NACC Bill be amended as follows:
(1) There must be a Chair of the Committee, who must be elected by the members of the Committee from time to time.
(2) The Chair must not be a member of a political party forming the Government.
Alternatively, if this robust independence is unable to be achieved, some additional
protection must be put in place for appointments (and funding recommendations: see below).
The clause in relation to appointments might take the form of the following provisions, which are drawn from the Crime and Corruption Act 2001 (Qld):
The Minister may nominate a person for appointment to the office of chairperson or deputy chairperson only if—
(a) the Minister has consulted with—
(i) the parliamentary committee; and
(ii) except for an appointment as chairperson—the chairperson; and
(b) the nomination is made with the bipartisan support of the parliamentary committee.
…bipartisan support, of the parliamentary committee, means—
(a) support of the members of the parliamentary committee unanimously; or
(b) support of a majority of the members, other than a majority consisting wholly of members of the political party or parties in government in the Legislative Assembly.
[…]
A provision in relation to funding recommendations might look like the below:
(1) The Committee may only make a recommendation pursuant to s 177(1)(g) if the recommendation is made with the bipartisan support of the parliamentary committee.
The Centre for Public Integrity also recommends that a clause similar to the following be included in the Bill:
(1) If the Committee makes any recommendation to the Parliament pursuant to s 177(1)(g), and such a recommendation is not accepted, the Minister must table a statement of reasons in each House.
(2) A statement of reasons required to be tabled under subsection (1) must be tabled within seven days of any budget or funding announcement relating to the Commission[.]
The Ethics Centre
The Ethics Centre suggested amendments to the drafting of clause 73 of the NACC Bill. These included:
1. The heading for Section 73 be amended to read ‘Hearings’, and
2. The entirety of Sections 73 (1) and 73 (2) be replaced by a new section 73 (1) to read as follows:
Hearings to be held in a form that promotes the public interest
(1) A hearing may be held in public, if the Commissioner believes that to do so will be in the public interest. Otherwise, hearings will be held in private.
[…]
As amended, the whole of Section 73 would read as follows:
73 Hearings
Hearings to be held in a form that promotes the public interest
(1) A hearing may be held in public, if the Commissioner believes that to do so will be in the public interest.
Otherwise, hearings will be held in private.
(2) In deciding whether to hold a hearing, or part of a hearing, in public, the Commissioner may have regard to the following:
(a) the extent to which the corruption issue could involve corrupt conduct that is serious or systemic;
(b) whether certain evidence is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence;
(c) any unfair prejudice to a person’s reputation, privacy, safety or wellbeing that would be likely to be caused if the hearing, or the part of the hearing, were to be held in public;
(d) whether a person giving evidence has a particular vulnerability, including that they are under the direct instruction or control of another person in a relative position of power;
(e) the benefits of exposing corrupt conduct to the public, and making the public aware of corrupt conduct.
(4) Subsection (3) does not limit the matters to which the Commissioner may have regard.
Public hearings—Commissioner’s statements about witnesses
(5) Before a witness gives evidence in public at a hearing, the Commissioner may, if the Commissioner thinks it appropriate, make a statement about one or more of the following:
(a) whether the witness appears voluntarily or in response to a summons to attend the hearing;
(b) whether or not conduct of the witness is the subject of the corruption investigation.
The Ethics Centre also commented on the issue of ‘pork-barrelling’:
Reading the Bill’s Memorandum, we are left with the impression that there is a concern to ensure that politicians should retain the capacity to make election promises that foreshadow the selective expenditure of public funds on projects and causes that might not otherwise satisfy a more disinterested ‘public interest’ test. The suggestion seems to be that what otherwise might be deemed impermissible will be allowed if made in the context of an ‘election promise’.
Rule of Law Institute of Australia
In its submission, the Rule of Law Institute made 15 recommendations covering a variety of aspects of the Bills. These included:
1. Where two years has elapsed since the commencement of the investigation without conclusion, the investigation should lapse, unless a Court orders. […]
2. The NACC should immediately notify the public of the lapsing of any investigation. […]
3. A person being investigated should be free to disclose to his or her family that the person is being investigated by the NACC and discuss the matter with them. […]
4. Members of a person’s family should be free to attend a private investigation. […]
5. A person and his legal practitioner must be given reasonable notice of a private investigation. […]
6. […] A transcript of a private investigation must be made by the NACC and made available to the person and the person’s legal personal representative at the end of the day’s investigation or earlier if available.
7. […] The NACC must conduct a private investigation in the utmost good faith and fairness and if it does not do so, it may be subject to complaint to the Australian Federal Police. The complaint will be dealt with by the Australian Federal Police with all the necessary powers to investigate and publish the result.
8. A question put at a private investigation by NACC may not be put at a public hearing.
Where the NACC refers any matter to the Commonwealth Director of Public Prosecutions, it must act in good faith and without prejudice at the same time refer all associated witness statements and documents to it and not omit anything.
If the Commission fails to do so, the Commission shall immediately withdraw the referral and not make any referral against the person again, unless a Court otherwise orders.
This shall not affect any action for damages against the NACC.
10. […] A decision by the NACC to hold a public hearing can only be made in the following circumstances:
The NACC Commissioner has first given in writing the reasons why he/she considers there are “exceptional circumstances” and this has not been challenged in the Federal Court
The person must not have been asked at a private investigation questions that are likely or could be likely to be asked at the public hearing; and
The adverse consequences of the holding of the public hearing on the person and his family are reasonably likely to be less than not holding the public hearing.
11. The Bill should not operate retrospectively […]
12. […] The NACC should not be able to tap the telephone of the Prime Minister, the Attorney-General, any Premier of a State, any High Court Judge, or any State Judge unless the Inspector has first approved in writing. Likewise, where any of their homes are to be secretly bugged.
13. The staff of the NACC should be subject to the Bill.
14. The Bill does not distinguish corrupt conduct which does not involve criminal conduct.
15. Impossibly Wide Description of Corrupt Conduct […]
It is the Institute’s view that these provisions would introduce a degree of vagueness into federal law that could embroil the NACC in controversy. Future disputes about the role of NACC could be minimised by making these changes:
Removing the “could test” in clause 8(1)(a) which would empower the NACC to apply a speculative standard;
Changing the wording in section 8(1)(a)(i) and section 8(1)(a)(ii) to insert a requirement for probity instead of a requirement for impartiality; and
Removing the proposed extension of the NACC’s jurisdiction into unknown areas that is outlined in clause 8(1)(e).
Transparency International Australia
In its submission, Transparency International Australia recommended:
1) Strengthening, through greater clarity, that evidence must be given in private if a public hearing might prejudice a person’s safety or actual, planned or likely criminal proceedings;
2) Empowering the Inspector of the National Anti-Corruption Commission (NACC) to independently verify that the Commission has appropriate procedures and safeguards to ensure public hearings are only used when appropriate, and investigate any concerns that safeguards are not being followed;
3) If the term ‘exceptional circumstances’ is retained – defining that term to mean that on balance, the circumstances are such that it is (a) either necessary or preferable, and (b) appropriate, for evidence to be given in public rather than in private (or similar).
The holding of public hearings, or partial public hearings, are important to build the public’s trust in the NACC, bring new evidence to light and investigate corruption effectively. Transparency International Australia does support the principle that compulsory investigative hearings should normally be held in private, unless there is a clear public interest in hearings on particular matters being held in public, in the manner of a royal commission (cl. 73(1)).
The requirement that public hearings may only be held where the Commissioner is satisfied that exceptional circumstances exist, as proposed (par 73(2)(a)), is not an accurate or useful threshold for this purpose. It poses dangers for the effective operation of the Commission – whether through tactical litigation or inaccurate political expectations or both. This is due to its vagueness and uncertainty, as well as its underlying implication that specific but undefined extraordinary circumstances must exist to justify a public hearing.
Professor AJ Brown, Griffith University, appeared in his capacity as a Board Member of Transparency International Australia at a public hearing on 18 October 2022. Professor Brown expanded on Transparency International Australia’s view on the provisions in the Bills’ regarding the role of the Inspector of the NACC:
[Mr McClintock’s] recommendation is that the best current model for defining that jurisdiction for the inspector is the law enforcement corruption commission in New South Wales's definition of the scope of maladministration. I guess the key point that we're 100 per cent in agreement on is the need for that complaint jurisdiction to be focused on the issues of the legality, the propriety and the use of powers that will go to the core business of the commission. Currently in the bill it's not defined at all, so there's an unlimited breadth, potentially, of different types of complaints, and that's unnecessarily problematic.
Parliamentarians
The Committee heard from current and former Parliamentarians who shared their views on the provisions on the NACC Bills.
The Committee received submissions from Dr Sophie Scamps MP, Ms Zali Stegall OAM MP and Mr Andrew Wilkie MP from the Australian House of Representatives; The Hon Frank Pangallo MLC from the South Australian Legislative Council; and former Senator for Western Australia Mr Andrew Murray.
All Parliamentarians were broadly supportive of the provisions in the Bills that would establish the NACC, but suggested various amendments. This section outlines those arguments.
Dr Sophie Scamps MP
The submission from Dr Scamps, Independent Member for Mackeller, suggested the following amendments to the Bills:
Recommendation 1: That the Parliament of Australia amend this Bill to omit clause 73(2)(b) [which ‘establishes that public hearings can only occur if the Commissioner is satisfied that it would be both in (a) the public interest and (b) in ‘exceptional circumstances’] […]
Recommendation 2: That the Australian Government provide further details of the timetable and scope of the reform of the PID Act […]
Recommendation 3: That the Parliament of Australia enact a robust Whistle-blower Protection Commissioner […]
Recommendation 4: That the Parliament of Australia amends this Bill, so the Joint Select Committee on the National Anti-Corruption has a non-government chair and majority […]
Recommendation 5: That the Parliament of Australia amends the Bill to establish an Assistant Commissioner for Education, Training, and Prevention.
Ms Zali Steggall OAM MP
The submission from Ms Steggall, Independent Member for Warringah, who focussed on how the proposed NACC would interact with the Parliament:
The Commissioner should be obliged to investigate any case which is referred by the Parliament. […]
The Commissioner should report directly to Parliament rather than to the Executive. In any event, where an investigation report is to be tabled in each House of Parliament by the Minister or Prime Minister, the report should be tabled within a fixed period of calendar days (for example 14 days) in such a way that it can be accessed by Members of Parliament outside sitting periods. […]
I reiterate my views… regarding independent five-year funding for the Commission, and also support the idea that funding should be via an Independent Funding Tribunal Model.
Parliament should have the right (with adequate time to consider) to review and veto any proposed change to funding arrangements. […]
That the requirement that there be “exceptional circumstances” before public hearings be held be removed. […]
That the Chair of the Parliamentary Joint Committee not be a Government member. […]
That there be a statutory requirement to report to Parliament as soon as practicable after the conclusion of a public hearing, and/or within a year. […]
That any persons who have an adverse finding against them in a report should have a fixed timeframe in which to respond, rather than the “reasonable opportunity” set out in s.157. […]
That the Bill be amended to include wording similar to s.8(2A) of the NSW Independent Commission Against Corruption. […]
That the Bill be amended to include provisions setting up the role and powers of a whistleblower protection commissioner. […]
That s.74 of the Bill be amended to provide that the Commissioner has discretion whether or not to hear such evidence in private.
Mr Andrew Wilkie MP
Mr Wilkie, Independent Member for Clark, outlined his concerns regarding the threshold for public hearings set out in the Bills and protections for whistle blowers:
…I echo the concerns of experts that the threshold for public hearings is too high. As noted by eminent jurist, Stephen Charles AO KC, the 'exceptional circumstances' threshold for public hearings will hamper the proper airing of corruption, as potential new witnesses cannot come forward with additional information if they are unaware that an investigation or hearing is occurring. Moreover, the absence of a solid definition will likely subject the Commission to lengthy court challenges, thereby delaying hearings and investigations. […]
As a consequence of my own history as a whistleblower, I also have concerns about the inadequate protections for whistle blowers in the Bill. The Bill essentially replicates protections from the Public Interest Disclosure Act 2013 ('PID Act) which, given the known deficiencies of the PID Act, is grossly inadequate. I acknowledge the AttorneyGeneral has committed to some reforms of the PID Act. These reforms must be comprehensive, fit-for-purpose, and implemented as a matter of urgency.
The Hon Frank Pangallo MLC
Mr Pangallo told the Committee about the strengths and weaknesses of the SA ICAC model:
There must be a place for independent scrutiny of government and its public officers to engender trust and confidence in the operations of the machinery of government and its processes, including the Parliament itself.
However, they cannot be star chambers where legal rights and privileges are trampled on and their strong coercive powers are abused. As a matter of balance, they must be accountable.
This was the experience in South Australia after disturbing evidence was provided to not one, but two committees of which I was the Presiding Member. They were the Crime and Public Integrity Policy Committee in 2019-20 and the Select Committee into Reputational Harm and Damage Caused by ICAC Investigations from 2020 to 2021.
There was much disquiet about ICAC in its previous construction and of its practices, with accusations of abuse of its power from within the legal profession as well as the victims of ICAC - individuals who had been subjected to failed investigations who had their careers and livelihoods destroyed by the secretive process.
Victims of ICAC investigations which found no wrongdoing had nowhere to turn in seeking redress because the secrecy provisions of the ICAC Act prevented them from discussing the investigation with anyone - from family members to medical professionals and importantly lawyers. […]
Integrity agencies should never consider themselves above the Parliament. […]
The architects of the original SA ICAC Act failed to deal with the serious psychological damage to individuals.
Unsurprisingly there have been suicides, attempted suicides and other mental health issues resulting from secretive ICAC investigations where, under the previous provisions of the Act, there was a power for the ICAC to brief the DPP directly without charges being formally laid against the individual.
This goes against a fundamental core principle in law - a right to a defence of an accusation of an offence – that is to know what offence you are accused of committing which was a missing link under the previous provisions.
I would urge you to ensure this Bill has appropriate measures which mandate support and protection.
Mr Andrew Murray
Mr Andrew Murray, former Senator for Western Australia and former Commissioner for the Royal Commission into Institutional Responses to Child Abuse, wrote to the Committee about the provisions in the Bills for private and public hearings.
However misguided such a view might be considered by supporters of the NACC Bill, in such provisions the Government risks the media and the public consequently regarding the NACC process as being hidden and secret, and therefore suspect.
Further. the Government possibly risks eminent Australians, on integrity grounds, being unwilling to serve as Commissioners because of such provisions; or worse, (as unfair or wrong as it might be for those individuals), members of the public, the media, or the professions possibly regarding Commissioners who agree to serve under this provision as having less integrity.
Commissioners should not have their hands tied so tightly and should have more discretion, as is fitting and essential for their independence and role.
My conclusion is that, at the very least, the Committee should recommend the ‘exceptional circumstances’ provision be dropped. […]
Clause 76 allows a witness to request a private hearing, but since under the legislation it is almost automatic that there will be a private hearing, there is no provision of a similar right for a witness to request a public hearing. Correcting this oversight might be considered appropriate by the Committee.
Journalists and media organisations
The Committee heard from several media organisations whose evidence primarily focussed on the Bill’s provisions for journalist and whistleblower protections, including:
Australia’s Right to Know (ARTK);
International PEN Melbourne Centre (PEN Melbourne); and the
Media, Entertainment and Arts Alliance.
Australia’s Right to Know
ARTK was of the view that public hearings should be the default for hearings by the NACC, rather than private hearings as the default proposed by the Bills:
Section 73 of the NACC Bill states that hearings conducted by the NACC are to be held in "private", except in "exceptional circumstances". It is our view that this provision should be reversed: that NACC hearings should be heard in public, particularly insofar as journalists are required to give evidence, unless exceptional circumstances dictate otherwise. This reversal would better support the goals of the NACC Bill in exposing and preventing corruption and educating the public about corruption.
ARTK also commented on the Bills’ provisions for search warrants and protections for journalists:
ARTK's principal concern is that section 31(4) does not extend to the issuing or execution of search warrants (and, as discussed below, other forms of warrant). If a journalist refuses to answer questions or produce documents which would identify their source relying on section 31, or the NACC suspects that the journalist will respond as such, they can simply seek and execute a warrant, obtaining copies of materials identifying the informant. Under the current form of the NACC Bill, the journalist cannot prevent the NACC from taking or utilising such information. […]
The recently introduced shield laws in Queensland recognise that even in the execution of a warrant a journalist should be entitled to claim protection over documents which may identify a journalists' source: it is not clear why similar protections have not been included in the NACC Bill.
In our view, determining whether the public interest in protecting journalists and their sources is outweighed by the public interest in granting the search warrant must be part of the test for issuing a warrant. This should also include as part of the test that other avenues to obtain the material have been exhausted.
We also note that the public interest consideration currently only applies where the relevant evidential material relates to an alleged offence against a secrecy provision by a person other than the journalist (though we note that various secrecy provisions apply to almost every member of the public service under the Public Service Act and related instruments). A public interest test should be a prerequisite in relation to any warrant sought to be executed on a journalist or media organisation.
Any such test should require the decision maker to weigh the following public interest factors:
a.
the importance of preserving the confidentiality of sources;
b.
the importance of facilitating the exchange of information between journalists and members of the public to facilitate reporting of matters in the public interest;
c.
the gravity of the matter;
d.
the extent to which the information that is being sought is likely to assist a current investigation;
e.
whether reasonable attempts have been made to obtain the information sought by other means;
f.
the nature and extent of any conditions or restrictions proposed by the eligible judge; and
g.
any other relevant matter.
Australian Broadcasting Corporation
The ABC’s submission shared concerns about the Bills’ provisions for private hearings, search warrants and protections for journalists:
Given the deterrent effect of public exposure, the ABC doubts the policy underlying the closed hearing approach taken in the Bill. Transparency and opening will instil public confidence in the exercise of power and allow the Commission to show the public that action against corruption is being taken. […]
The search warrant provisions ought to reflect the public interest in media freedom in Australia and the valuable contribution this makes to Australian democracy.
Further, the ABC recommended amending the meaning of corrupt conduct in clause 8 to exclude the possibility of its application to ABC journalists’ use of leaked information or documents in the normal course of the journalists’ work. At the Committee’s public hearing, the ABC explained:
Our concern arises from the definition of 'corrupt conduct', which includes the misuse of information or documents by public agency employees, which would apply to journalists. In 2019 the AFP raided ABC premises as part of an investigation relating to the alleged use of leaked documents, so we're more than aware of the risk for laws like this to be used against journalists by investigating authorities. This can occur even when the parliament didn't intend for the laws to be used in this way. That is why we've submitted, in our written submission, that there ought to be an express carve out for the activities of ABC journalists from the definition of corrupt conduct. On that, division 122 of the Commonwealth Criminal Code Act contains provisions covering the use of secret government information. That part of the code includes a defence for journalists using secret government information in the course of their work. By the introduction of that defence, parliament has acknowledged the importance of not stymying legitimate journalism. I don't see that value being reflected in this bill given the absence of a carve out for ABC journalism from the definition of corrupt conduct.
Free TV Australia
In its submission, Free TV Australia opposed the provisions for default private hearings set out in the Bill and stated:
These provisions risk stifling journalists’ work investigating the very kinds of conduct that the NACC legislation aims to expose and eradicate. This is because the provisions are likely to jeopardise reporting of investigations and of the underlying incidents or practices to which those investigations relate. These provisions may also prevent media organisations from reporting on their own activities, to the extent they are themselves caught up in investigations (if only because the NACC seeks information from them).
Free TV Australia also commented on their support for Bills’ provisions concerning the protections of journalists. However, they suggested that there be further consideration be given to the drafting of sections 114 and 73 as they relate to the work of journalists:
The protections in section 114 for legal professional privilege when it applies to the work of professional journalists are also an important protection measure. However, it is also recommended that clause 114 of the Bill (or another provision) stipulate that a journalist working in a professional capacity is not subject to any disclosure requirement under the legislation where compliance with that requirement would result in disclosure of information communicated in confidence to that journalist.
The provisions in section 73, allowing for a default position of private hearings, and section 95, preventing reporting on the NACC’s investigations, risk stifling Australian journalism. To ensure the vitality of public interest journalism in Australia, and a commitment to transparency, it is recommended that the Bill should ensure, at least, that journalists who report on matters relating to NACC investigations, without themselves breaching NACC orders directed at them, are not thereby exposed to criminal liability. In addition, it is recommended that the NACC be prohibited from making non-publication orders directed at journalists save in exceptional circumstances where a NACC investigation could not continue without the making of such an order.
Further, Free TV Australia discussed protections for journalists’ sources:
This imposition of the public interest test prior to issuing search warrants relating to journalists in section 124 is important to protecting journalists’ sources, and retaining trust and engagement with public interest journalism in Australia. This protection should be bolstered, by raising the threshold for the issue of such a search warrant. The issuing of a search warrant in respect of journalist premises is an extreme step that should be taken only in exceptional circumstances.
While journalists are excluded from some of the powers of the NACC through the Bill, the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (the Consequential Bill) amends gives the NACC certain powers under the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004. The protection in relation to journalists’ informants should also extend to the exercise of powers arising from amendments made by the Consequential Bill.
Finally, Free TV Australia suggested that the definition of ‘public official’ in the Bills be ‘narrowed’:
The extension of the definition of ‘public official’ to include private sector employees involved in the delivery of goods and services to the Commonwealth goes beyond the scope of the NACC. It would be inappropriate for the definition of ‘public official’ to be used to extend the powers of the NACC to private companies, and their employees.
International PEN Melbourne Centre
PEN Melbourne told the Committee about its ‘major concern’ that the Bills do ‘not offer sufficient protection to whistleblowers and journalists’.
PEN Melbourne urges that effective protections be put in place for those journalists and whistleblowers who expose the wrongdoings of government agencies and authorities that are considered to be the public’s right to know. Whistleblowers acting in the public interest must be protected for their own safety and ongoing careers and thus prevent the chilling effect the lack of protections would have on those who see wrongdoing and are afraid to report.
Introducing the Bills to parliament Attorney-General Mark Dreyfus KC MP said: ‘I will also be introducing separate reforms to the PID Act to improve whistleblower protections, with the aim of having these reforms in place when the Commission commences operation.”
PEN Melbourne refers the Attorney-General to the recommendations of the 2017 Parliamentary Joint Committee on Corporations and Financial Services and that the current legislation be amended to include the establishment of an independent whistleblower protection authority, or at least a whistleblower protection commissioner to cover both public and private sections.
Unions
The Committee heard from the following union groups:
Australian Council of Trade Unions
Australian Federal Police Association
Community and Public Sector Union
Construction, Forestry Maritime, Mining and Energy Union (Construction General Division) (CFMEU) and the
United Firefighters Union, Victoria Branch.
Australian Council of Trade Unions
The Australian Council of Trade Unions stated its support for the creation of the NACC proposed by the Bills and emphasised the importance of sufficient staffing and resourcing to achieve a full functionality:
The types of conduct captured by the NACC Bill’s definition of corrupt conduct affect good government and consequently public confidence. […]
Ensuring that an anti-corruption body has adequate resources to employ suitably qualified staff is vital to its being able to effectively investigate public corruption. The ACTU has previously made submissions as to the importance of ensuring that a national anti-corruption body is adequately resourced and, whilst this does not directly bear on the passage of the NACC Bill, we repeat that submission now. […]
The creation of the NACC is not a “silver bullet” in the fight against public corruption, but it is an important and indispensable part of that fight. For the sake of accountability and public confidence, there needs to be a body whose sole focus is the identification and investigation of public corruption. We are of the view that the NACC would be such a body.
Australian Federal Police Association
While the Australian Federal Police Association broadly supported the Bills, it underlined the importance of appropriate ‘funding, staffing and resourcing of the NACC’ to mitigate ‘potential operational impact… on the AFP’. The Australian Federal Police Association explained this further during evidence given at the Committee’s public hearing on 20 October 2022:
This has an impact onto the AFP, because ACLEI currently borrow and second staff members from the AFP to assist with investigations. But also, importantly, where there is forensic evidence… the provisions of the AFP are often used to facilitate some of that investigation. So it's really important that that's recognised within this space.
The Australian Federal Police Association’s submission commented on three aspects of the Bill:
[1.] Funding and Resources
To ensure that the NACC can function as intended, it must be well-funded and resourced. This funding must also allow the NACC to become entrenched in the Australian Public Service (both functionally and culturally). Funding and resources must be fixed and provide scope for the growth of the NACC. An underfunded and under-resourced NACC would only foster corruption.
Once the NACC is established, the AFPA assumes that most of the resources of… (ACLEI) would transition across to the new body.
However, these alone would not be sufficient to cope with the additional workload of including public servants and politicians in the investigation scope.
Corruption investigations are complex and require specialist skills. Such skills are rare in Australia, hence the employment pool the NACC would have to draw from would be relatively small. Investigative resources would likely be required from the AFP during the early days of the NACC, potentially impacting AFP operational activity and readiness. The AFPA believes that this would require exceptional management, engagement and mindfulness on the part of both the Commissioner of the AFP and NACC.
[2.] Appointment of NACC Commissioner
While the AFPA acknowledges that this role will ultimately be a political appointment, the appointment must be transparent and made away from party influence.
[3.] Public and Private Hearings
The preference of the AFPA is for the default setting to be private hearings, except in 'exceptional circumstances.’ It anticipates that the definition of ‘exceptional circumstances’ will evolve over time, and initially that there might not be an agreed consensus on what qualifies as ‘exceptional’. Common sense discussions will play a large part in forming a ‘benchmark’.
Community and Public Sector Union
The Community and Public Sector Union ‘strongly’ supported the creation of the proposed NACC and highlighted that the body would ‘give them the confidence that the integrity of agencies [within the Australian Public Service] is being upheld and actions are being taken to ensure that agencies are free from corruption’.
At the Committee’s public hearing on 20 October 2022, the Community and Public Sector Union summarised its position on the provisions of the NACC Bills, including:
…we welcome that the proposed anticorruption commission has broad jurisdiction to investigate serious or systemic corrupt conduct, including in these areas in relation to contractor and labour hire arrangements that may be used by the Commonwealth and decisions relating to the outsourcing of government work and the award of government contracts and grants. The National Anti-Corruption Commission's investigation and inquiry powers and functions should not, however, be used as an alternative for dealing with allegations that concern disciplinary or misconduct issues which do not meet that threshold requirement which is set out in the bill regarding systemic or serious corrupt conduct. Those types of issues should rather be dealt with through existing internal agency disciplinary and investigation processes.
In relation to getting the balance right, it's important that due consideration and individual privacy concerns and the public interest in those balances, that those issues continue to be part of this process. The CPSU believes that enabling public hearings when it is in the public interest while ensuring a default of private hearings to protect against unfair prejudice to an individual or to a public servant's reputation, their privacy, their safety or well-being when called to give evidence, does this. The bill addresses these issues.
…the success of an anti-corruption commission will be enforcing best-practice whistleblower protections. Public servants must feel safe. Parliamentary staff should also feel safe to refer allegations of corruption and provide information in relation to corruption issues, including as part of an investigation process. We understand that public servant whistleblowers will have protections under the bill in relation to disclosures equivalent to those under the Public Interest Disclosure Act. However, we note that whistleblower protections in the PID Act have some deficiencies that were identified in the Moss review in 2016, and also a further inquiry by the Parliamentary Joint Committee on Corporations and Financial Services, which was an enquiry into whistleblower protections in the corporate public or profit sectors. Acting on the recommendations of those inquiries, those reviews, and reforming the PID Act to ensure that they are in place when the NACC commences operation should be a priority.
We note that access for disclosures and potential disclosures to trade union support and advice needs to be considered [inaudible] PID Act. It was recently considered by the International Labour Organization in its technical meeting on the protection of whistleblowers in the public service sector. That ILO meeting found that protected avenues for whistleblowers to receive independent advice from the appropriate bodies, including workers' organisations, is very important for whistleblower protection.
Lastly, on the creation and design of the National Anti-Corruption Commission… the CPSU notes that the ALP government has committed $262 million over four years for the establishment and the ongoing operation of the proposed National Anti-Corruption Commission. However, as far as we are aware there has been no indication as to the level of staffing proposed for the effective functioning of the commission. Given that it is proposed that ACLEI's own staff will form part of the new anticorruption commission, it is crucial that ACLEI's own staff and their union are meaningfully consulted in the development of the proposed commission to ensure that there is an effective transition to the new model.
The Community and Public Sector Union also highlighted some matters for the Committee’s consideration. First, the Community and Public Sector Union commented on the NACC Bill’s inclusion of ‘grey area’ corruption risk areas is essential to cover conduct in relation to government outsourcing, contracting and sub-contracting arrangements, and said that:
It is appropriate that private individuals and entities involved in Commonwealth funded services projects, contracts or who seek to benefit from public decisions are covered by the remit of any proposed integrity commission.
Second, in relation to NACC investigations, the Community and Public Sector Union said that it:
…recognises the importance of the NACC’s ability to hold public hearings and investigations, however the NACC must be required to have due regard to protecting unfair prejudice to a public servant’s reputation, privacy, safety or wellbeing when called to give evidence. The CPSU notes that such factors form part of the Bill’s relevant considerations in determining whether a hearing is to be held in public. It is critical the legislation retains such safeguards in relation to the exercise of discretion to holding public hearings.
Construction, Forestry Maritime, Mining and Energy Union (Construction General Division)
The CFMEU strongly supported the creation of the NACC and stated:
The CFMEU opposes corruption in all spheres of public life and activity. The CFMEU has consistently supported the establishment of an anti-corruption commission at the federal level. Elected officials and senior public servants should be accountable. The public should have confidence that those officials will not engage in corrupt conduct and will face appropriate sanctions if they are found to have done so.
In this regard, the absence of an anti-corruption commission at the federal level is a glaring anomaly. The CFMEU welcomes the Albanese government’s determination to act swiftly to close this significant gap in the Australian political landscape by establishing the [NACC].
However, the CFMEU recommended three amendments to the NACC Bills:
[To provide] [d]efinitions of “serious” and “systemic” corrupt conduct
That the Commissioner's powers be expressly limited to exclude matters involving alleged breaches of workplace laws only
That hearings be held by default in public, but that the Commissioner may determine to hold a hearing in private, if satisfied that exceptional circumstances justify holding the hearing in private, and that it is in the public interest to do so[.]
United Firefighters Union, Victoria Branch
The submission from United Firefighters’ Union, Victoria Branch identified multiple issues with the provisions of the Bills and made five recommendations seeking to clarify the Inspector’s role in investigating complaints set out in the NACC bills:
Recommendation 1: Clarify that the Inspector can and has the responsibility for investigating all complaints about unauthorised disclosures (regardless of whether the unauthorised disclosure is made by a staff member of NACC or not) in respect of a potential contravention of ss 98, 101, 228 and 233.
Recommendation 2: If a complaint is made to the Inspector about a potential contravention of ss 98, 101, 228 and 233, and there is evidence that the unauthorised disclosure is made by a staff member of the NACC, the Inspector must give a direction for the NACC to cease continuing taking any action in relation to the investigation which the unauthorised disclosure relates to.
Recommendation 3: If a complaint is made to the Inspector about a potential contravention of ss 98, 101, 228 and 233, and there is evidence that the unauthorised disclosure is made by a staff member of the NACC, the Inspector must not refer the matter to NACC for investigation or engage in a joint investigation with NACC.
Recommendation 4: If the Inspector concludes that there has been potential contravention of ss 98, 101, 228 and 233, the Inspector must refer a brief of evidence to the Australian Federal Police or the Commonwealth Director of Public Prosecutions for consideration.
Recommendation 5: Clarify that s 31 does not apply to an investigation by the Investigator in respect of a potential contravention of ss 98, 101, 228 and 233.
Civil liberties groups
The Committee heard from civil liberties advocates during the inquiry, including Civil Liberties Australia, the NSW Council for Civil Liberties and the Queensland Council for Civil Liberties. This section provides a summary of key points raised in their evidence.
Civil Liberties Australia
At the Committee’s public hearing, Civil Liberties Australia expressed its concerns with the provisions Bills as currently drafted and stated:
[Civil Liberties Australia] would support a NACC that meets four key criteria. The commission must be truly independent, with a capacity to receive complaints from whistleblowers and to conduct its own investigations without interference of executive government. Corrupt conduct is corrupt conduct, and the definition should be the same for everybody covered in this legislation. That the definition of corruption in public institutions to be investigated by the NACC includes all of those that they are corrupted by, including members of the private sector. And, as sunlight is the best disinfectant, all hearings before the NACC should be conducted in public and the outcomes of every investigation publicly available, unless the commission issues reasonable public reasoning as to why this is not the case…
The NACC will be part of a national infrastructure and will hold to account politicians particularly and heavies at the big end of town by comparison with citizens. [Civil Liberties Australia] believes there is a similar power imbalance between politicians, the bureaucracy and citizens at the bottom end of town which needs to be addressed by a federal human rights act. It would form an equally important part of the infrastructure to a National Anti-Corruption Commission. The NACC deals with specific instances of power imbalance and the federal human rights act deals with the power imbalance between individuals and government generally.
Further, Civil Liberties Australia called for a ‘federal Human Rights Act’ to complement the NACC, and submitted that:
It is time a federal HRA provided Australia with a mechanism for early correction of incalculable harms like the Robodebt fiasco. It is time a NACC and a federal HRA operated jointly to give the nation protection from abuse at the political, bureaucratic and corporate level...and also to safeguard society at community level when people's individual rights are ignored, evaded or abused.
New South Wales Council for Civil Liberties
While the NSW Council for Civil Liberties broadly supported the provisions of the Bills, it identified particular concern that the proposed NACC would be ‘constrained’ from holding public hearings:
The [NSW Council for Civil Liberties’] primary concern with the Bill is that the NACC's power to hold public hearings is constrained under s73(2) of the Bill by the requirement that the Commissioner be satisfied that:
h.
exceptional circumstances justify holding the hearing, or the part of the hearing, in public; and
i.
it is in the public interest to do so.
The 'exceptional circumstances' requirement should be removed from the Bill and the NACC should be able to hold public hearings consistently with appropriate public interest and fairness safeguards. […]
[The NSW Council for Civil Liberties] recommends that the NACC should have the power to investigate serious and/or systemic corrupt conduct by a person who is not a public official when the corrupt conduct will have an adverse effect on public administration (rather than just on the conduct of public officials). It should not be a requirement that the conduct affects the honesty or impartiality of a public official in the exercise of an official function.
[…]
The [NSW Council for Civil Liberties] considers the Bill should be amended to provide additional safeguards for the fundamental right of parties to obtain full and frank legal advice. Such amendments may include the following:
a.
Individuals and non-governmental parties be entitled to assert claims of legal professional privilege to resist production of confidential communications with their legal advisor in response to compulsory notices. It may be appropriate that this right be abrogated if an individual is summoned to appear before the NACC, or if that person is a public officer.
b.
In respect of individual corruption allegations, that individual would be entitled to assert legal professional privilege in relation to advice provided to them [in relation to the investigation].
c.
Consideration should be given to establishing an independent third party to determine claims made in relation to legal professional privilege or referring such matters to a court with appropriate jurisdiction, so that spurious privilege claims do not frustrate the ability to conduct investigations. […]
[The NSW Council for Civil Liberties] recommends that s173(1) of the Bill should be amended so that it is silent as to the political alignment of the Chair enabling the parliamentary members to elect a Chair from any political party thereby strengthening both the independence of the committee and public perception of independence in the oversight of the NACC. […]
[The NSW Council for Civil Liberties] recommends the Bill be amended to so that decisions as to the NACC’s funding are made by an independent tribunal such as the existing Remuneration Tribunal or a specific NACC tribunal.
The NSW Council for Civil Liberties also submitted the NACC Bill does not provide the NACC with sufficient jurisdiction to address the wide suite of corrupt practices which may impact the proper function of government, but which may not necessarily involve wrongdoing by a public official. The NSW Council for Civil Liberties elaborated:
For example, as noted by The Centre for Public Integrity, the jurisdiction of the NACC would not currently extend to private companies 'colluding to corrupt a procurement process, or apply for a mining permit with false information'. It might also, concerningly, not extend to corrupt or fraudulent conduct in a privatisation process which, given the public interest in the disposition and functioning of public assets and critical infrastructure, is a significant defect in the design of the Bill.
Queensland Council for Civil Liberties
The Queensland Council for Civil Liberties accepted the establishment of the NACC proposed by the Bills ‘with some reluctance’ and told the Committee:
Accepting that there is a need for this body it is absolutely vital that it is not given an unrestrained roving commission to enforce vague notions of integrity. […]
It is clear that the pursuit of the legitimate objectives of this body might imperil a number of other important civil liberties - most obviously, the right to reputation and privacy, and the right to a fair trial.
The Queensland Council for Civil Liberties’ submission primarily addressed the definition of corruption and voiced its support for the provisions concerning private hearings:
…given that the proposed Commission may refer evidence it uncovers for criminal prosecution, public investigations pose a risk to the right to a fair trial. Public corruption investigations potentially have a prejudicial effect, particularly as the Commission’s investigations may consider information that would not be admissible at a trial.
There is also the practical consideration that publicising an investigation may compromise the effectiveness of that investigation. Publicity means forewarning, and thus it creates opportunities for strategies to be formulated to frustrate an investigation. The flipside of this, it is argued, is that publicity might encourage new witnesses to provide information. However, in practice this very rarely happens, and so it is not a convincing counterargument.
We therefore support the default position that hearings are to be held in private. We note that the concept of “exceptional circumstances” is a much more fixed concept than the “public interest” test, and that it therefore is an appropriate threshold (as to hold a public hearing, the Commissioner must be satisfied that exceptional circumstances justify a public hearing, and it is in the public interest). We therefore support the law as proposed in the Bill.
Other stakeholders
The Committee heard from a range of organisations and individuals throughout its inquiry. This section summarises their evidence presented to the Committee.
Academy of the Social Sciences in Australia
The Academy of the Social Sciences in Australia supported the establishment of the NACC and made four recommendations seeking to further strengthen the Bills:
Recommendation 1: Amend the definition of corrupt conduct to include distinctions between ethical breaches and criminal acts, and social and economic corruption […]
Recommendation 2: Include an increased focus on education in the Bill which prioritises corruption prevention and the responsibilities of all in such prevention. […]
Recommendation 3: Clearly outline how whistleblower protections will be strengthened, particularly how anonymity will be maintained […]
Recommendation 4: Amend penalties to a maximum number of years imprisonment[.]
Australian Professional Government Relations Association
The Australian Professional Government Relations Association (APGRA) commented on the Bills’ provisions regarding lobbying activities and the education and prevention of corrupt conduct:
Noting that the conduct of registered lobbyists will be subject to investigation under the NACC legislation, APGRA welcomes the clarification about lobbying activity provided in the Explanatory Memorandum to the Bill. We note that lobbying a public official on behalf of a client will not be covered by the concept of corrupt conduct ‘where nothing in the conduct or the relevant circumstances could be expected to induce or influence a public official to exercise a power dishonestly or partially’. …APGRA’s view is that lobbying is a legitimate undertaking in a free and open democratic society, and we are pleased that the NACC legislation does not seek to curtail lobbying activity that is conducted by registered practitioners in line with the requirements of the Federal Government’s integrity framework.
APGRA notes that the NACC will also have education and prevention functions. We strongly support efforts to provide education and information about corruption to public officials and the general public. APGRA recommends that the NACC should consider specific education sessions tailored to third parties who regularly interact with public officials in the course of their work, including registered lobbyists…
Australian Psychological Society
In its submission, the Australian Psychological Society highlighted the negative ‘psychological consequences’ for people who are the subject of a corruption investigation and recommended:
…that appropriate measures be taken to protect the reputation of participants in such hearings, particularly those who may unexpectedly find themselves caught up in an investigation by virtue of their employment with or for an individual or organisation being investigated.
For example, the APS considers it imperative that people involved in corruption commission inquiries are supported and educated throughout the process of providing evidence, to address uncertainty and to enable them to better manage the potential stress and anxiety associated with their participation and possible risks to their reputation.
The Australian Psychological Society expanded on this point while giving evidence at the Committee’s public hearing:
Shame and reputational damage can be incredibly harmful, with victims at risk of quite serious and life-threatening mental health conditions. Individuals who experience public humiliation and shame can suffer major depression, suicidal ideation, extreme rage and anxiety, and, research shows, even psychosis. These effects can actually continue over the long term and even, in some cases, for the remainder of a person's life. So regard for mental health and welfare of participants during public hearings, we believe, should be informed by psychological best practice, such as treating participants in a trauma informed manner and making trauma debriefing available.
Australians for a Murdoch Royal Commission
The Australians for a Murdoch Royal Commission’s submission focussed on provisions relating to journalists and the Electoral Commissioner, and recommended the following amendments to the Bills:
Recommendation 1: The Committee should recommend the Joint Standing Committee on Electoral Matters review the Australian Electoral Commission’s investigative powers to ensure they are fit for purpose.
Recommendation 2: The National Anti-Corruption Commission should be encouraged to implement a protocol for notifying the Electoral Commissioner of potential breaches of the Commonwealth Electoral Act 1918 where appropriate.
Recommendation 3: Section 31(1)(a)(ii) should be amended to read: “the information is given in the normal course of the journalist’s work as a journalist and while not engaged in other business activities”[.]
Further to Recommendation 3, Australians for a Murdoch Royal Commission explained its view that:
…the NACC should make a clearer distinction between working journalists and employees of businesses that produce journalism. These protections should not be available to executives within media businesses at large, nor even to newsroom executives (such as a newspaper editors) in cases where their activities are more consistent with those of a business manager than a journalist.
Bank Reform Now
Contrary to the provisions of the Bills, Bank Reform Now submitted that the hearings of the proposed NACC should be held in public by default, and held in private only in exceptional circumstances.
Canberra Alliance for Participatory Democracy
The Canberra Alliance for Participatory Democracy advocated for public hearings to establish public trust in the proposed NACC and submitted that:
We have one concern about the draft legislation, that of the default position on hearings into specific episodes of corruption being held in private. We suggest that this does not address the failing trust in government and that the default position should be open hearings with discretion for the Commissioner to hold private hearings in circumstances which would need to be specified both in general in the legislation and in the Commissioners report on that inquiry.
[…]
Given recent loss of trust in politicians and the growing impression among voters of parliamentarians looking after their own and vested interests… it is important in re-establishing this trust that the mechanism set up to investigate possible corruption is seen to be open and transparent. Default non-public hearings will not restore trust and will perpetuate the perception of trying to hide corruption.
Curtin Electorate
Ms Kate Chaney MP, Independent Member for Curtin, made a submission on behalf of the Curtin Electorate. In its submission, the Curtin Electorate recommended:
1. That the phrase “public trust” be defined.
2. That the exemption from investigation be removed for: third parties that are performing delegated functions of public officials; and third parties whose conduct damages government but does not affect the exercise of a public official’s powers.
3. That the ‘exceptional circumstances’ test in section 73(2)(a) be removed.
4. That the Commission be required to consider each of the factors included under section 73(3) in determining the public interest of public hearings and these are listed under separate sections.
5. That the review and update of the Public Interest Disclosure Act (2013) is completed before the NACC is operational.
6. That section 17 (Functions of the Commissioner) be expanded to include whistle-blower protection.
7. That the term “journalist” be interpreted broadly in the application of the Bill.
8. That the Parliamentary Joint Committee on the National Anti-Corruption Commission is chaired by an Independent MP.
9. That the funding sought by the NACC and the funding allocated by the Government be made public each year.
10. That NACC powers of investigation cover online communication and resources.
11. That the phrase “sensitive information” is defined.
GetUp!
GetUp! welcomed the introduction of the NACC Bills; stating ‘[i]t marks an opportunity to restore trust in federal government and ensure the open and transparent operations of government necessary for a health democracy’.
GetUp! presented two recommendations to amend the Bills:
1
Lower the threshold for public hearings: The legislation currently requires "exceptional circumstances" for public hearings. GetUp – alongside experts, judges, and the broader public – understand this will result in fewer investigations and will undermine the Commission’s ability to fight corruption. The public interest must be put first and that requires a lower threshold for public hearings.
2
Install stronger whistleblower protections: The legislation currently provides weak protection for those coming forward to expose corruption, instead deferring to future reform that would inevitably be piecemeal and fractured. It fails to install an overarching body dedicated to the protection and support of whistleblowers, without whom any anti-corruption efforts would fail. The legislation should create a 'whistleblower protection commissioner' or separate authority which can stand up for whistleblowers and the public interest.
Huis voor Klokkenluiders (Dutch Whistleblowers’ Authority)
Huis voor Klokkenluiders was established in July 2016 as an independent state authority in the Netherlands to provide advice through legal aid, investigate wrongdoing and retaliation and promote integrity in organisations.
Huis voor Klokkenluiders shared reflections on their experience setting up an agency to address matters similar to the proposed NACC:
I would say: make sure that all your processes are thought through and that you also have a clear and common vision. That was also difficult for us in the beginning, because it started from three different already existing organisations that were brought together. They all had their own working processes and goals, and so they had to find how to work together and to have a common goal and to be very clear in who does what.
One of the things that are also important is, for instance, that the cases that the advice Department is tackling don't mingle with the investigations that are being done by our investigations Department, so it stays very separate and they don't exchange information they should not. So you have to be very careful with that to make sure that everybody stays objective and impartial. Those things are very important.
I think expectation management for the public is very important so that people know what they can expect from this authority and what they cannot, because you cannot tackle everything. You have to be quite clear on that. So take enough time to prepare everything and to make sure that everything is transparent and clear and that also, behind the scenes, you know what you stand for and how to go about it.
Mr John Hoitink
Mr Hoitink, former Chief Executive Officer of the ACT Integrity Commission, discussed the budgeting and funding measures for the NACC proposed in the Bills:
With regards to the adequacy of the NACC’s budget, Mr Hoitink told the Committee:
As for whether that is sufficient, it certainly seems to be a sufficient amount at this stage, and I say that very much because I'm not aware of how far ACLEI have already gone in relation to the establishment of new policies and procedures. When I look at the current remit of ACLEI and the fact that they look at law enforcement agencies, and when I look at the vast range of additional government Departments, there is going to have to be a lot of work in relation to establishing contacts, policies, processes and MOUs with all those different agencies, which will require a substantial amount of people to actually be there to get this up and running properly from day one. I suppose, from my perspective, what I would not like to see when NACC does open its doors is that it's still chasing its tail trying to make sure that there are sufficient policies and processes in place to make sure that it works effectively.
Mr Hoitink also discussed the need for a separate tribunal to oversee funding for the NACC:
I think there's a requirement for a National Anti-Corruption Commission, or any commission, to be independent and free of government or the bureaucrats—and I say that with all due respect—for the actual budget process... I know that when I was working in New South Wales there was some tension, shall I say, between the commission and the budget process in how it was actually monitored and the fact that, essentially, it was bureaucrats who could well be under investigation or whose Departments could be under investigation. It should really be an independent process. As Commissioner Redlich has said, having a tribunal that is able to consider the funding would be a far more beneficial methodology.
Mr Greg Melick AO SC
Among topics discussed throughout Mr Melick’s evidence to the Committee, he discussed the important role that integrity commissions (or anti-corruption commissions) play in educating and preventing corrupt conduct:
…the strongest part of any such commission is its educative function. Part of the problem… in anticorruption matters is that many people don't even know what the rules are. They don't properly understand conflicts of interest. In Tasmania the two areas of major concern that cause the majority of our work are local councils and tertiary institutions. We concentrate heavily on education, and I think the yardstick of a successful anticorruption commission would be reducing its workload…
But I think you've also got to have a balance. If you're dealing with an anticorruption commission—bearing in mind that in Tasmania we have a misconduct commission as much as anything else; if we have corruption, we refer it to the police. If you're going to have a national anticorruption commission which is going to exercise coercive powers, you then have to be very careful about the balance… As the members of the committee should be aware or probably are aware of from the case of X7 and Lee, you cannot compel somebody to provide information or give evidence, and then provide that evidence to investigative authorities for the purpose of a criminal investigation. So the balance becomes fairly difficult. I think it's very important that an anticorruption commission recognises the fact that there should be a crossover line where it goes no further and the matter goes to the police.
Mr Melick was of the view that hearings should occur in public unless specific circumstances indicated it would be more appropriate to hold the hearing in private. He also discussed the Tasmanian Integrity Commission’s reporting requirements:
We publish reports at the conclusion of hearings. We then decide which ones are appropriate. The [Tasmanian Integrity Commission] legislation is in a little bit of a state of flux at the moment as to under what circumstances we can table a report in parliament or publish a report. But, generally speaking, we provide an annual report which outlines the matters we've been doing in general terms—a lot of it's anonymised or redacted—and the results thereof. I've always thought it a specious argument to say that you must hold public hearings to show the public you're actually doing your job. In all my time at the National Crime Authority, we didn't have any public hearings, but we were obviously doing our job, because lots of prosecutions were successful. When you have such extraordinary powers, it's so dangerous that people want to go out beating their chests and saying: 'How great we are! Look at all the damage we've done and what we've uncovered.' I think 'softly, softly and carry a big stick' is the way to go in an organisation such as this.
In response to a questions taken on notice, Mr Melick explained the Tasmanian Integrity Commission’s obligations to notify people who are subject of a complaint:
If a matter does not proceed past triage there is no requirement to notify a person against whom a complaint has been made and they would not normally be made aware of a complaint.
If the fact that a complaint has been made public it is a matter for the Commission’s discretion as to whether the public is informed that the complaint was either dismissed or not found proved. The Commission has publicised such findings in cases where a complainant has published the fact that they have made a complaint.
There is no formal process but considerations of fairness are paramount so if a complainant publicises their complaint normally a dismissal will be publicised.
Professor Tim Prenzler
Professor Prenzler, Professor of Criminology, School of Law and Society at the University of the Sunshine Coast made a submission covering many aspects of the Bills. In Professor Prenzler’s view:
The definition of corruption in the Bill appears very broad – which is a good thing. However, there appear to be contradictions in usage between the terms ‘corrupt conduct’, ‘corruption issues’ and ‘corrupt conduct that is serious or systemic’. In that regard, the legislation needs to be clearer about whether or not there is coverage of all the types of misconduct which have caused concern nationally in recent years. […]
It appeared to me that the proposed commission will have numerous best practice inquisitorial methods available to it in investigate matters. However, I could not see references to drug and alcohol testing, and it was unclear to me if a standard range of covert tactics would be available to the commission. […]
I was also unsure about how investigative findings will be adjudicated. For example, will the commission have a disciplinary authority based on a civil standard of proof or capacity to prosecute matters in an administrative tribunal? If it refers criminal matters to a public prosecutor and is dissatisfied with the response or outcome can it deal with the same matter administratively? If it does not have disciplinary capacity it is most likely that its findings will be undermined by weak sanctions in inhouse disciplinary systems. […]
As far as I can see there are no provisions for direct transparency and accountability to the community for the work of the new commission. If this is the case, then the legislation should specify a requirement for regular reporting on key performance indicators, including, but not limited to, complainant and other stakeholder experience and perceptions surveys, and reports from independent audits of the quality of investigations and case dispositions. […]
The terms ‘alternative dispute resolution’, ‘conciliation’ and ‘mediation’ did not appear in my search of the Bill despite the fact that these responses, especially mediation, provide well attested methods for managing many complaints to the satisfaction of all parties, with opportunities to learn lessons for improved practice. […]
I also could not see any provision in the Bill for obligations to proactively support the welfare of complainants and/or informants and, indeed, all parties to a matter, including the subjects of complaints. […]
It was not clear to me what procedures and rules will be in place to ensure that all commission staff are independent and that independence is evident to all stakeholders.