Bills Digest No. 35, 2022–23

PDF Version [614KB]

Cathy Madden
Politics and Public Administration Section

Bernie Lai
Foreign Affairs, Defence and Security Section
9 November 2022

Key points The National Anti-Corruption Commission Bill 2022 (NACC Bill) would create a National Anti‑Corruption Commission (NACC), led by a National Anti-Corruption Commissioner and up to three Deputy Commissioners. The NACC would investigate and report on serious or systemic corruption in the Commonwealth public sector, refer evidence of criminal corrupt conduct for prosecution, and undertake education and prevention activities regarding corruption. The NACC will be overseen by a statutory Joint Standing Committee of the Parliament and an Inspector, empowered to require the Commission to provide information about its work. The proposed establishment of a NACC has gained wide support. Some points of contention remain with particular provisions of the NACC Bill, centred around the NACC’s jurisdiction, the threshold for conducting public hearings, whistleblower protections and oversight of the NACC.

Contents

The Bills Digest at a glance
Purpose of the Bills
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Other provisions
Concluding comments

 

Date introduced:  28 September 2022
House:  House of Representatives
Portfolio:  Attorney-General
Commencement: The Act created by the National Anti-Corruption Commission Bill 2022 (NACC Bill) will commence on the day after Royal Assent (for Parts 1 and Part 10, Division 1) and on the earlier of Proclamation or 12 months after Royal Assent (for Parts 2–9, Part 10, Divisions 2–4, and Parts 11–13).
Most of the Act created by the National Anti‑Corruption Commission (Consequential and Transitional Provisions) Bill 2022 will commence at the same time as section 40 of the Act created by the NACC Bill (that is, on the earlier of Proclamation or 12 months after Royal Assent). However, sections 1 to 4 of the Consequential Amendments Bill will commence on Royal Assent and item 56 of Schedule 2 will commence on the later of the day after Royal Assent and immediately after the commencement of Part 10, Division 1 of the NACC Bill (but will not commence at all if Part 10, Division 1 does not commence).

Links: The links to the Bills, their Explanatory Memorandum and second reading speeches can be found on the home pages for the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2022.

 

The Bills Digest at a glance

Purpose

The National Anti-Corruption Commission Bill 2022 (NACC Bill) creates a National Anti-Corruption Commission (NACC), led by a National Anti-Corruption Commissioner and up to three Deputy Commissioners. The NACC would investigate and report on serious or systemic corruption in the Commonwealth public sector, refer evidence of criminal corrupt conduct for prosecution, and undertake education and prevention activities regarding corruption. Like state and territory anti-corruption commissions across Australia, the proposed NACC is set to possess powers similar to those of a royal commission. The proposed powers include:

• to investigate both public and private sector targets, including ministers, parliamentarians, staffers, statutory officer holders and employees of all government entities, as well as third parties such as businesses and their employees
• to investigate any conduct that adversely affects (or could adversely affect) the honesty or impartiality of a public official’s conduct, even if the conduct does not amount to any criminal offence, as long as it is considered to involve ‘serious or systemic’ conduct
• to operate independently of government with a discretion to start investigations on its own initiative or in response to referrals (including anonymous referrals from whistleblowers and the public)
• to compel the production of documents and information, obtain warrants to search premises and seize evidence, enter certain Commonwealth premises without a search warrant, use surveillance devices, intercept telecommunications and compel witnesses to attend hearings to answer questions under oath if necessary
• to investigate allegations which occurred before or after its establishment.

The NACC will be overseen by a statutory Joint Standing Committee of the Parliament and an Inspector, empowered to require the Commission to provide information about its work.

Key issues

• While the proposed definition itself has not attracted much controversy, a key point of contention has been whether the act or practice of ‘pork barrelling’ would fall within the descriptions of ‘corrupt conduct’.
• An area of concern centres on the scope of the Commission’s power to examine ‘third parties’ outside government who inappropriately influence federal officials, with the Greens pushing for greater jurisdiction on this front.
• Under the NACC Bill, the NACC will have the power to hold public hearings in ‘exceptional circumstances’ and where it is in the ‘public interest’ to do so. These matters will be left to the discretion of the Commissioner who may consider any factor that is relevant to reaching a decision.
• The NACC Bill includes (in Part 4) protections for people who make corruption-related disclosures, including protections for journalists’ informants. However, there has been some criticism that the protections in the Bill do not go far enough. The Bill omits one of the key provisions of Dr Helen Haines’ Australian Federal Integrity Commission Bill 2020; the Whistleblower Protection Commissioner.
• Some concern is emerging over the membership of a Parliamentary Committee to oversee the NACC, with suggestions the chair of the Committee should be able to come from any political party, not just the governing party. The Parliamentary Committee approves Commissioner appointments and can report on the sufficiency of the NACC’s budget. However, the budget is ultimately determined by the Cabinet.

 

Purpose of the Bills

The purpose of the NACC Bill is to:

• establish a new Commonwealth anti-corruption agency, the National Anti-Corruption Commission, which would investigate and report on serious or systemic corruption in the Commonwealth public sector, refer evidence of criminal corrupt conduct for prosecution, and undertake education and prevention activities regarding corruption
• strengthen corruption prevention across the Commonwealth Government, by enabling the NACC to undertake public inquiries and provide advice on corruption risks and vulnerabilities and strategies to address them
• appoint the National Anti-Corruption Commissioner as the head of the NACC and provide the Commissioner with broad powers to investigate corruption issues and conduct public inquiries.[1]

The purpose of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (Consequential Amendments Bill) is to:

• repeal the Law Enforcement Integrity Commissioner Act 2006, which would see the Australian Commission for Law Enforcement Integrity (ACLEI) transition to become part of the NACC
• make consequential amendments to 25 other Commonwealth laws, including the Administrative Decisions (Judicial Review) Act 1977, the Anti-Money Laundering and Counter‑Terrorism Financing Act 2006, the Australian Crime Commission Act 2002, the Australian Federal Police Act 1979, the Inspector-General of Intelligence and Security Act 1986, the Ombudsman Act 1976, the Public Interest Disclosure Act 2013, the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979
• outline the transitional arrangements necessary to support the establishment of the NACC to ensure the effective transition of ACLEI’s existing roles and functions to the NACC.[2]

Structure of the Bill

The NACC Bill is divided into 13 Parts:

Part 1 deals with preliminary matters and provides a simplified outline of the NACC Bill.

Part 2 sets out the definitions of key terms.

Part 3 establishes the NACC and sets out the functions of the NACC and its office holders.

Part 4 provides special protections for whistleblowers under the NACC Bill.

Parts 5–7 set out the NACC’s processes for referring, dealing with and investigating corruption issues.

Part 8 sets out the requirements for the NACC’s reporting on corruption investigations.

Part 9 sets out the NACC Commissioner’s discretion to conduct public inquiries into corruption risks, vulnerabilities and measures to prevent corruption in Commonwealth agencies.

Part 10 establishes the major oversight mechanisms for the NACC.

Part 11 sets out the arrangements concerning the NACC’s confidentiality, consultation and information-sharing requirements.

Part 12 sets out the administrative arrangements for the NACC, its office holders and its staff members.

Part 13 addresses a range of miscellaneous issues.

Background

The NACC Bill is the culmination of an extensive period of debate and discussion on the model for a best-practice, independent, broad-based, public sector, anti-corruption commission for the Commonwealth. The Commonwealth has been a laggard in this area, with all states and territories already having legislated for various forms of anti-corruption or integrity commissions (Table 1).

Table 1:     Current state and territory anti-corruption commissions

Jurisdiction	Year of establishment	Anti-corruption agency
New South Wales	1988	Independent Commission Against Corruption
Victoria	2012	Independent Broad based Anti-corruption Commission
Queensland	2014	Crime and Corruption Commission
South Australia	2013	Independent Commission Against Corruption
Western Australia	2004	Corruption and Crime Commission
Tasmania	2010	Integrity Commission
Australian Capital Territory	2019	Integrity Commission
Northern Territory	2018	Office of the Independent Commissioner Against Corruption

Source: compiled by the Parliamentary Library

The Commonwealth uses a multi-agency approach to combat corruption within the public service and Parliament. This includes ACLEI, the Commonwealth Ombudsman, the Australian National Audit Office (ANAO), the Australian Public Service Commission, and the Independent Parliamentary Expenses Authority.

Of these agencies the only dedicated anti-corruption agency in the Commonwealth jurisdiction is ACLEI, and the Consequential Amendments Bill provides for the transitional arrangements for ACLEI to be subsumed into the NACC. ACLEI currently has oversight of the Australian Federal Police (AFP), Australian Criminal Intelligence Commission (ACIC), Australian Transaction Reports and Analysis Centre (AUSTRAC), Australian Competition and Consumer Commission (ACCC), Department of Home Affairs (DoHA) (including the Australian Border Force (ABF)) and prescribed aspects of the Department of Agriculture, Fisheries and Forestry (DAFF).

Numerous Bills have been introduced in previous Parliaments in various attempts to establish a federal or National Integrity Commission.[3]

Greens

The Greens introduced Bills to establish a National Integrity Commission in 2010, 2012, 2013 (restored to the Notice Paper in 2016), 2017, 2018 and 2019.[4] Greens Senator Larissa Waters introduced the National Integrity Commission Bill 2018 (No. 2) which passed the Senate in September 2019 but lapsed at the end of the 46th Parliament.

Crossbench

Independent MP Cathy McGowan’s National Integrity Commission Bill 2018 was introduced in November 2018 but lapsed at dissolution of the 45th Parliament. In October 2020 independent MP Helen Haines introduced the Australian Federal Integrity Commission Bill 2020 and independent Senator Rex Patrick introduced essentially the same Bill, the Australian Federal Integrity Commission Bill 2021 in October 2021. Dr Haines also reintroduced her Bill as the Australian Federal Integrity Commission Bill 2021 (No. 2) at this time but debate was denied, and it lapsed when the House dissolved for the 2022 Federal Election.[5]

Coalition

The former Morrison Coalition Government announced in December 2018 that it would establish a Commonwealth Integrity Commission (CIC) and released a consultation paper on its proposed model and a Exposure Draft of the Commonwealth Integrity Commission Bill 2020 in November 2020.[6]

Australian Labor Party

The Australian Labor Party had promised in 2018 to establish a National Integrity Commission.[7] During the 2022 Federal Election campaign the party promised to establish a National Anti-Corruption Commission (NACC) before the end of the year.[8] Labor indicated that its legislation would be similar to the Australian Federal Integrity Commission Bill 2020, introduced by independent MP Helen Haines.

National Anti-Corruption Commission Bill 2022

Designing and implementing an effective operational structure will be critical to a NACC’s success and encompass questions of jurisdiction, independence, powers and accountability. Since gaining office, Attorney-General Mark Dreyfus has consulted with the crossbench and the Opposition about the detail of the proposed NACC. Some of the concerns raised during this period included:

• the definition of corruption and whether limiting the NACC’s remit to serious and systemic corrupt conduct would be too restrictive
• whether third parties such as lobbyists, unionists and contractors would be included in the NACC’s jurisdiction
• whether the NACC would have retrospective powers and, if so, whether a time limit would be specified (such as 10 or 20 years)
• the ability of the NACC to hold public and private hearings, and whether there would be adequate safeguards for witnesses
• the ability for the NACC to decide to begin investigations based on complaints, referrals from other agencies, and own motion investigations
• whether there would be strong whistleblower protections, including a Whistleblower Protection Commissioner
• whether there would be adequate oversight of the NACC in the form of a non-partisan joint parliamentary committee and/or an independent Inspector
• whether the NACC would have adequate funding to fulfil its functions.[9]

A number of the issues raised by key stakeholders and commentators have been addressed in the NACC Bill as outlined in the second reading speech.[10]

While achieving a level of approbation from stakeholders, there has been critical reaction to several aspects, particularly:

• the definition of third parties
• the high threshold for holding public hearings
• the adequacy of whistleblower protections and
• the adequacy of the oversight of the NACC.

Committee consideration

Joint Select Committee on National Anti-Corruption Commission Legislation

The NACC Bill has been referred to the Joint Select Committee on National Anti-Corruption Commission Legislation for inquiry and report by 10 November 2022.[11]

Parliamentary Joint Committee on Intelligence and Security

An amendment to subsection 110A(1) of the Telecommunications (Interception and Access) Act 1979 (TIA Act), at item 250 of Schedule 1 to the Consequential Amendments Bill, has been referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for review. Such a review is required by subsection 110A(11) of the TIA Act.[12]﷟

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills considered the Bills in Scrutiny digest 6 of 2022.[13] The Committee noted various concerns with the NACC Bill, including:

• retrospective application
• reversal of the evidential burden of proof by several defences established by the NACC Bill
• abrogation of privilege against self-incrimination in some circumstances
• abrogation of legal professional privilege in some circumstances
• broad scope of offence provisions
• powers for the NACC to use evidentiary certificates in its applications for courts to deal with contempt
• immunity from civil liability for the Inspector of the NACC, persons assisting the Inspector, and staff members of the NACC
• privacy issues arising from the NACC’s information gathering powers
• broad delegation of administrative powers and functions.[14]

The Committee also noted various concerns with the Consequential Amendments Bill, including:

• the coercive investigator powers to be transferred from ACLEI to the NACC
• exclusion of certain decisions made under the NACC Bill from judicial review by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977.[15]

Policy position of non-government parties/independents

The proposed establishment of the NACC received broad support from the Coalition, the Greens and the independents at the time of introduction in September 2022.

Opposition Leader Peter Dutton welcomed the Bills in their current form with a statement of ‘in‑principle’ support. He expressed concern that amendments to enable more public hearings would be problematic as they could become ‘show trials’ that would damage reputations.[16]

The crossbench has been highly supportive of many elements of the proposed NACC, although many have expressed concerns about the threshold for public hearings.[17] Dr Haines has been appointed deputy chair of the Joint Select Committee on the National Anti-Corruption Commission Legislation possibly in recognition of her strong advocacy for a federal integrity commission.[18]

Position of major interest groups

As discussed below, major interest groups, such as the National Integrity Committee (as part of the Australia Institute and comprised of a group of former judges),[19] the Law Council of Australia,[20] and Transparency International Australia,[21] have welcomed the proposed introduction of the NACC but indicated differing positions on particular aspects of the NACC Bill, such as the issue of public versus private hearings.[22]

Financial implications

The Albanese Government has committed $262.6 million over 4 years to support the establishment of the NACC. This was announced in the Budget October 2022–23.[23]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the NACC Bill’s and the Consequential Amendments Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that both Bills are compatible, but acknowledges that the Bills limit 7 different human rights contained in the International Covenant on Civil and Political Rights.[24]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights considered the Bills in Human rights scrutiny report no. 5 of 2022.[25]

The Committee recommended amendments to a number of provisions to assist their compatibility with human rights.[26] It also recommended that the statement of compatibility with human rights be updated to:

• set out the compatibility of provisions providing for immunity from civil proceedings (clauses 196 and 269) with the right to an effective remedy[27]
• explain why clause 97 would only require the Commissioner to consider cancelling a non-disclosure notation after a period of 5 years has passed (and not some shorter period of time)[28]
• set out the compatibility of clause 82 with the rights to freedom of expression and assembly[29] and
• set out the compatibility of subclauses 124(2A)–(2B) with the right to freedom of expression.[30]

The Committee also recommended that a foundational human rights assessment of existing covert surveillance powers be undertaken, in particular of the powers in the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004, the Proceeds of Crime Act 2002 and the Crimes Act 1914 to assess their compatibility with human rights, in particular the right to privacy.[31]

Key issues and provisions

Jurisdiction

Definition of ‘corrupt conduct’

Clause 8 of the NACC Bill clarifies the meaning of ‘corrupt conduct’ within the NACC’s jurisdiction. This has implications in terms of application to private actors.

Subclause 8(1) defines the term as:

1. any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly:
1. the honest or impartial exercise of any public official’s powers as a public official; or
2. the honest or impartial performance of any public official’s functions or duties as a public official;
2. any conduct of a public official that constitutes or involves a breach of public trust;
3. any conduct of a public official that constitutes, involves or is engaged in for the purpose of abuse of the person’s office as a public official;
4. any conduct of a public official, or former public official, that constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official
5. 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.

This definition covers ‘any conduct of any person (whether or not a public official)’ that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise (or performance) of any public official’s powers (or functions or duties) (paragraph 8(1)(a)). This definition extends to the conduct of people outside the Commonwealth parliament and public sector in two ways:

• if their conduct adversely affects, or could adversely affect, the honest or impartial exercise of a public official’s powers, or the honest or impartial performance of a public official’s functions and duties (paragraph 8(1)(a))
• if they conspire with another person (whether or not a public official) for that other person to engage in corrupt conduct covered by subclause 8(1) (subclause 8(10)).[32]

Section 2C of the Acts Interpretation Act 1901 provides that in any Commonwealth Acts, an expression used to denote persons generally, such as ‘person’, include a body politic or corporate as well as an individual.

Clause 10 defines ‘public official’ (see ‘Classes of individuals covered’, below).

The definition in subclause 8(1) is also significantly broader than simply criminal offences, as is the case in South Australia[33] and, to some extent, in Queensland.[34] Professor AJ Brown noted that the proposed Commonwealth definition of corrupt conduct is ‘a definition that’s simpler, more flexible, and less legalistic or complicated than most State definitions. In a win for democracy, there’s almost no difference in treatment between politicians and anyone else.’[35]

The term ‘conduct’ itself is not exhaustively defined in the NACC Bill. Subclauses 8(4)–(10) do provide clarification in relation to particular forms of conduct, such as conduct before the commencement of the proposed Act, in subclause 8(4). By comparison, the Independent Commission Against Corruption Act 1988 (NSW) states that ‘conduct’ can include various forms of omission by stating ‘conduct includes neglect, failure and inaction’. [36]

Pork barrelling

While the proposed definition itself has not attracted much controversy, a point of contention has been whether the practice of ‘pork barrelling’ would fall within the descriptions of ‘corrupt conduct’ in subclause 8(1). Pork barrelling has been defined by the NSW ICAC as ‘the allocation of public funds and resources to targeted electors for partisan political purposes’.[37]

The Explanatory Memorandum to the NACC Bill refers to ‘an allocation of grants for the purpose of gaining political advantage, or to provide a benefit to a political donor’ as an example that may be considered partial and within the definition of corrupt conduct:

… There would be an expectation that grants processes are generally conducted in the public interest and without regard to political considerations. A grants allocation that favours a political donor or confers another political advantage may also be extraneous to the power to give the grant. This situation should be distinguished from the situation where a decision-maker makes a grant in the public interest, in the expectation that they will receive acknowledgement or recognition—including political recognition—or exercising their powers in an effective manner … It should also be distinguished from a situation where a government has made an election commitment to provide a grant to a particular recipient – in such circumstances there would be no duty or expectation of impartiality and the grant guidelines could provide for that outcome.[38]

On this issue, one of the most cited examples by the media since the introduction of the NACC Bill has been the award of funding under the Community Sport Infrastructure Program by the former Coalition Government before the 2019 federal election. In relation to this controversy, the ANAO has found ‘evidence of distribution bias in the award of grant funding’ and that the award of funding ‘was not consistent with the assessed merit of applications’.[39] Attorney-General Mark Dreyfus commented on this issue when asked by David Speers of the ABC whether this incident would be covered by the NACC Bill:

SPEERS: It’s still a little unclear whether government pork barreling would or wouldn’t be covered, or at what point the so-called Sports Rorts scandal under the Morrison Government. You said the Sports Rorts scandal reveals government corruption is beyond question. You said it showed why a Commission was needed. Was that corruption?

ATTORNEY-GENERAL: Well, I thought that it was a rort on any view. I thought the idea that a decision made in the Prime Minister’s office, when he had no power over the matter, with 51 coloured spreadsheets revealed by the Auditor-General, that looked pretty corrupt to me. But it’s not going to be my decision. It’s going to be a matter for this independent Commissioner to decide if someone refers a matter to her or him to decide.[40]

In a separate interview with the ABC on the day of introduction of the NACC Bill, the Attorney-General provided a similar tentative response:

When people talk about pork barreling they’re usually talking about misuse of what are known as discretionary grant programs, and we have to look at them as operating in a spectrum. So, it's not going to be corruption if you've got a minister deciding on a tight set of guidelines for a discretionary grant program not to accept the advice of a senior public servant That's not corruption. At the other end of the spectrum, you can conceive of a huge amount of money, millions of dollars being devoted by government to a program that had no guidelines and was clearly misused. Now, at that end of the spectrum you are starting to think about corruption. But I'm not going to draw the line. I’m certainly not going to give hypothetical examples. It's going to be a matter for this commission.[41]

Based on these media statements by the Attorney-General, the practice of pork barrelling will likely be assessed on a case-by-case basis by the NACC as to whether it constitutes ‘corrupt conduct’ under subclause 8(1) of the NACC Bill.

Corruption investigation threshold – serious or systemic corrupt conduct

Subclause 41(3) provides that the Commissioner may conduct, or continue to conduct, a corruption investigation only if the Commissioner is of the [subjective] opinion that the issue could involve corrupt conduct that is serious or systemic.

Neither ‘serious’ nor ‘systemic’ are defined. Evidently their ordinary meaning is intended.[42]

Decisions not to define ‘serious’ or ‘systemic’ corrupt conduct in similar state or territory laws were the subject of comment by Grant Hoole and Gabrielle Appleby of the Gilbert + Tobin Centre of Public Law in 2017. They described this approach as involving risks:

… Failure to define these terms defers significant interpretive latitude to the officials responsible for implementing these commissions. It escalates the risk that the incremental evolution of jurisdiction, as concepts like ‘serious’ and ‘systemic’ are interpreted in new contexts, could lead to missteps that compromise the underlying purpose of a commission. This could include, for example, the commission reaching into spheres better reserved for other institutions, provoking conflict or incoherence and weakening confidence in the system as a whole.[43]

The Explanatory Memorandum offers a non-exhaustive list of factors indicating whether particular types of corrupt conduct could be ‘serious’:

• where the corrupt conduct could involve the commission of a criminal offence – the seriousness of that offence, including by reference to the maximum penalty set by the Parliament for the offence
• where the corrupt conduct involves corruptly causing a financial loss or gain – the quantum of that financial loss or gain
• where the corrupt conduct involves the misuse of information – the sensitivity of that information, and the harm that may result from its misuse
• where the corrupt conduct involves an abuse of office – the nature of the office, the manner in which the person is alleged to have abused their office, and the nature and extent of the improper benefit or loss that has resulted or that may result
• whether the conduct was done covertly or involved deception
• whether the conduct was done in a planned and deliberate fashion.[44]

The Explanatory Memorandum also uses ‘a pattern of corrupt conduct’ as an example of systemic corruption.[45] This phrase appears to have been borrowed from the current definition of systemic corruption in section 5 of the Law Enforcement Integrity Commissioner Act 2006.

Further, in this Bill, the requirement that the Commissioner be ‘of the opinion’ that the corruption issue could involve corrupt conduct that is serious or systemic is a subjective test satisfied by the Commissioner holding that state of mind. This appears to give the Commissioner significant interpretive latitude to form the relevant opinion that would enliven their power to initiate or continue a corruption investigation.

Classes of individuals covered

Divisions 2–4 of Part 2 of the NACC Bill define the terms ‘public official’, ‘Commonwealth agency’ and ‘staff members’ of a Commonwealth agency. Those definitions are relevant to the operation of the definition of ‘corrupt conduct’ in subclause 8(1).

Subclause 8(2) provides that paragraph 8(1)(a) (which provides that conduct of any person that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise (or performance) of any public official’s powers (or functions or duties) is corrupt conduct) would not apply in relation to conduct of any of the following persons:

• the Governor-General and 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
• the Inspector of the NACC or a person assisting the Inspector.

The definition of ‘public official’ would also not apply to the above persons (subclauses 10(1) and 12(5)).

Pursuant to clause 10, a public official can be a parliamentarian, a staff member of a Commonwealth agency or a staff member of the NACC. This definition also extends to anyone who is acting for and on behalf of, or as a deputy or delegate of, any public official mentioned above.

Officials of registered industrial organisations performing particular statutory duties

The table in subclause 12(3) provides that, generally, an individual exercising Commonwealth powers or performing Commonwealth functions could be a staff member of a Commonwealth agency for the purposes of the NACC Bill. This is a deeming provision. For example, subclause 12(3), Item 1, indicates that individuals who are a statutory office holder are (deemed to be) a ‘staff member’ of the agency listed in Column 2 of the table.

However, item 2 of the table within subclause 12(3), expressly excludes ‘an official of a registered industrial organisation’ from the class of individuals to which subclause 12(3) applies. A similar exclusion is included in subclause 14(1), which clarifies the definition of ‘statutory office holder’.

The Shadow Attorney-General, Julian Leeser, has criticised this exclusion and claimed that there is a lack of any explanation for the exclusion in the Explanatory Memorandum.[46]

The Explanatory Memorandum clarifies that:

… individuals exercising powers or functions conferred by or under a Commonwealth law who are officials of registered industrial organisations would not be staff members of a Commonwealth agency. The functions and powers exercised by these individuals are also not of a public nature. [emphasis added][47]

This clarification appears consistent with comments by the Attorney-General Mark Dreyfus in response to the Shadow Attorney-General’s criticism:

… the activities under this bill for this Commission are directed at the public sector in Australia. It’s not directed at private activity. It’s directed at the public sector and the interaction that third parties have with public officials adversely affecting the way they go about their duties in an impartial and honest manner.[48]

Various Acts passed by the Parliament have excluded ‘an official of a registered industrial organisation’ from the definition of a ‘public official’ or a ‘Commonwealth public official’. These Acts have included the Criminal Code Act 1995 (see the Dictionary at the Schedule to the Criminal Code) and the Public Interest Disclosure Act 2013 (section 69). Further, the Revised Explanatory Memorandum to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018, which was passed during the Coalition Government’s term, acknowledged and did not seek to alter the exclusion of ‘an official of a registered industrial organisation’ from the definition of a ‘Commonwealth public official’ in the Dictionary to the Criminal Code.[49]

Noting the Shadow Attorney-General’s criticism, it appears an implication of the proposed exclusion in subclause 12(3) of the NACC Bill is that if a public official has engaged in conduct that adversely affects the honest or impartial exercise of a union official’s powers under the Fair Work Act 2009 or the Work Health and Safety Act 2011, then that conduct of the public official in relation to the union official is not ‘corrupt conduct’ as defined in paragraph 8(1)(a) of the NACC Bill. Similarly, as the union official is not a staff member of a Commonwealth agency as defined in subclause 12(3) (noting that they may come within the definition of staff member in subclause 12(1) if they are, for example, a contracted service provider under a Commonwealth contract) and, therefore, absent relevant additional factors, not a public official as defined in clause 10, it appears that paragraphs 8(1)(b)–(e) also do not apply to them.

Nevertheless, a union official may still be captured by paragraph 8(1)(a) of the NACC Bill if they are a third party ‘seeking to adversely affect public decision making in a corrupt way’, as the Attorney‑General has clarified.[50] The exempt persons list in subclause 8(2) also does not refer to trade unions or officials of a registered industrial organisation.

Public and private hearings

The most disputed area relating to anti-corruption commissions’ investigatory powers is the ability to hold public hearings or examinations.[51] The proposed NACC can hold public hearings when conducting corruption investigations under Part 7 of the NACC Bill.[52] Public hearings are seen by most commissioners of state and territory anti-corruption bodies as key to investigating and exposing corruption. The opposing claim, broadly speaking, is that bodies, such as the NSW ICAC, run the risk of acting as a ‘kangaroo court’, damaging people’s reputations and making it impossible to prosecute fairly those charged with offences after public hearings.[53] It is relevant to note that the NSW Act does provide a list of statutory factors that are to be considered by ICAC to be taken into account in determining whether or not it is in the public interest to conduct a public inquiry, including ‘whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned’. ^[54] The benefits and risks of holding public hearings have been summarised by Transparency International as:

On one hand, even if they limit what evidence can be used in court or disciplinary proceedings, public hearings can be more effective than closed investigations for:

(a)   exposing wrongdoing and flushing out evidence which can be used

(b)   creating higher public awareness of corruption issues, and

(c)   maximising the deterrent effect of the risk of being “caught” by the commission.

On the other hand, compulsory public hearings run the risk of:

(a)   negative impacts on the reputation of persons of interest or other witnesses – sometimes very serious ones – as well as legal and other costs

(b)   further complicating the evidence available in later proceedings, due to claims that the fairness of any criminal trial or disciplinary action has already been prejudiced, and

(c)   raising public perceptions of corrupt conduct without necessarily providing public reassurance that anything will be done, due to delays before public reports or any actual action.

One response to this problem is to limit the scope of investigations to criminal offences and have no public hearing powers, leaving a criminal trial to do that job, if one ever happens.[55]

Labor’s design principles for a national integrity commission included ‘public hearings’ with the qualification of public interest. The Attorney-General, Mark Dreyfus, says the addition of ‘exceptional circumstance’ is to prevent unfair prejudice to reputations.[56] In a further response, Mr Dreyfus elaborated on the threshold for public hearings:

The most important part of this is that the Commission will have power to hold public hearings. That will be when there are exceptional circumstances, in the opinion of the commission, and where it's in the public interest to do so, in the opinion of the commission.

There are a number of factors outlined in the Bill, which the commission may consider before deciding to hold a public hearing, and it is appropriate, in the view of the government, that the discretion sits with the commission. We are not going to be directing the commission as to when it should hold private hearings and when it should hold public hearings, but I think all of those in this House would be aware that there will be a number of circumstances which will dictate against holding a public hearing. It might be that the subject matter of the investigation is concerned with national security information, or it might be that the subject matter of the investigation deals with matters that are either the subject of a current criminal trial or a projected criminal trial. All of those are going to be matters that would suggest to the commission that no public hearing should be held at a particular time, but a time may come later in the investigation when a public hearing is going to be appropriate. But, at all times, we think that this matter should be left to the discretion of the commission.[57]

The threshold for public hearings also marks a difference to the design of the Commission from that proposed in the Australian Federal Integrity Commission Bill 2020 put forward by Dr Helen Haines, which did not include the additional threshold of ‘exceptional circumstances’ that is specified in paragraph 73(2)(a) of the NACC Bill.[58]

The default in the NACC Bill, like a number of the state and territory anti-corruption commissions, is for hearings to be heard in private (subclause 73(1)).[59]

Subclause 73(2) sets a high threshold for the holding of public hearings, including two limbs to be satisfied:

1. exceptional circumstances justify holding the hearing, or part of the hearing, in public; and
2. it is in the public interest to do so.

A non-exhaustive list of factors which may be considered for public hearings are set out in subclause 73(3):

In deciding whether to hold a hearing, or part of a hearing, in public, the Commissioner may have regard to the following:

1. the extent to which the corruption issue could involve corrupt conduct that is serious or systemic
2. whether certain evidence is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence
3. 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
4. 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
5. the benefits of exposing corrupt conduct to the public, and making the public aware of corrupt conduct.

The term ‘exceptional circumstances’ is not defined in the legislation. This has been a point of contention, as discussed below.

A number of safeguards are provided in the NACC Bill to protect against reputational harm:

• A witness may request to give evidence in private (clause 76).
• Procedural fairness is accorded to individuals or agencies who will be subject to a critical finding, opinion or recommendation (clauses 153, 157, 166, 170, 219, 223 and 231).
• The Commissioner will have the power to make a statement before a witness gives evidence in public, clarifying whether the witness appears voluntarily or as a result of a summons, and/or whether the conduct of the witness is the subject of the corruption investigation (subclause 73(5)).
• The Commissioner must include an opinion in an investigation report that a person whose conduct has been investigated has not engaged in corrupt conduct (subclause 149(4)).
• The Commissioner may include a statement in an investigation report that a person who gave evidence at a hearing is not the subject of any findings or opinions in relation to the corruption investigation (subclause 149(5)).

Selected state and territory anti-corruption commissions

Most state and territory anti-corruption commissions (except for South Australia) provide for a threshold, often a public interest test, in deciding to hold a public hearing. Only Victoria’s Independent Broad-based Commission Against Corruption (IBAC) includes an ‘exceptional circumstances’ threshold in addition to a public interest test.[60]

Independent Broad-based Anti-Corruption Commission, Victoria

To hold public examinations, IBAC must be satisfied on reasonable grounds that:

• exceptional circumstances apply
• it is in the public interest to hold a public examination
• the public examination can be held without causing unreasonable damage to the reputation, safety or wellbeing of the people involved and
• the conduct that is the subject of the investigation may constitute serious or systemic corrupt conduct.[61]

The term ‘exceptional circumstances’ is not defined in the Independent Broad-based Anti-corruption Commission Act 2011 (Vic).

What constitutes ‘exceptional circumstances’ was considered by the Victorian Court of Appeal in R and M v Independent Broad-based Anti-corruption Commissioner in 2015.[62] In this case, the applicants submitted that, in order that the circumstances be ‘exceptional’ for the purposes of paragraph 117(1)(a) of the Victorian Act, they must be extremely unusual, or fall outside the range of misconduct that might be reasonably anticipated that the respondent would encounter. The Court considered this issue in the following terms:

… As a matter of ordinary usage, in order to be ‘exceptional’, circumstances must be highly unusual, and quite rare, for the type of circumstances which would normally be the subject of examination by IBAC under Part 6 of the IBAC Act. The requirement of ‘exceptional’ circumstances thus involves both a qualitative distinction between the circumstances which might ordinarily be inquired of by the respondent, and, in addition, an assessment that those circumstances might be reasonably rare.

…

Thus, in order that IBAC has power to conduct an examination publicly, it must first determine (inter alia), on reasonable grounds, that the circumstances are exceptional in that sense, namely, that they are clearly unusual and distinctly out of the ordinary. The question on review for the primary judge, and for this Court on this application, is whether the conclusion by the respondent, that the circumstances were of such a character, was one that could reasonably be considered to be based on reasonable grounds.

As identified by the primary judge, the two principal grounds, upon which the respondent determined that such exceptional circumstances existed, were, first, the degree of force displayed by police members towards vulnerable women, on the three separate occasions, including the occasion affecting person A, since 2010. Secondly, the respondent took into account the existence of a relatively high incidence of complaints of that type about excessive use of force at the Ballarat Police Station.[63]

The Court ultimately rejected the applicants’ submissions and found that the relevant ground of their appeal ‘must fail’.[64] This was later affirmed by a High Court ruling in March 2016.[65] This challenge in connection with Operation Ross contributed to public examinations being delayed more than one year.[66]

The Centre for Public Integrity cited this case to call for the requirement of ‘exceptional circumstances’ in relation to IBAC’s decisions on the use of public hearings to be removed:

… insofar as it risks exploitation by persons under investigation in order to cause delay and potentially interfere with investigations.[67]

In a 5-year review of IBAC, the Commissioner noted that the power to convene public examinations is used carefully; there have been only 5 public examinations across 55 completed investigations.[68]

At a recent Estimates hearing in the Victorian Parliament, IBAC Commissioner Redlich made the point that:

I do not think … that there is a serious alternate view to the view that public hearings are by far the most effective way of placing in the public domain issues about corruption or police misconduct, not only because of their educative purposes …

I do not think there can be any argument that public hearings are still the most effective way of developing trust in the institutions that have to investigate and expose corruption. I do not think there is a doubt that by placing matters in the public domain one is best able to ensure that there is a public and executive government appetite to embrace reforms that are exposed when particular wrongdoing is revealed. Minds can differ about the extent to which public hearing rights should be limited. Yes, our requirements are more onerous than they are in other circumstances.[69]

Independent Commission Against Corruption, New South Wales

The ability of the NSW Independent Commission Against Corruption (NSW ICAC) to hold public inquiries as well as its ability to make findings of corrupt conduct has attracted considerable comment, both supportive and critical.

For the purposes of an investigation, the NSW ICAC may conduct a public inquiry if it is satisfied that it is ‘in the public interest’ to do so. In determining whether it is in the public interest, the ICAC will consider the following:

1. the benefit of exposing to the public, and making it aware, of corrupt conduct,
2. the seriousness of the allegation or complaint being investigated,
3. any risk of undue prejudice to a person’s reputation (including prejudice that might arise from not holding an inquiry),
4. whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.[70]

Following the High Court judgment in Independent Commission Against Commission v Cunneen and the Parliamentary Committee on the ICAC inquiry in relation to two reports of the Inspector of the ICAC (see below), legislative changes have been introduced to require that a decision to hold a public inquiry must be made by the Chief Commissioner and at least one other Commissioner, under subsection 6(2) of the Independent Commission Against Corruption Act 1988 (NSW).[71]

In New South Wales, holding public hearings by ICAC is contested.[72] In 2016 the Inspector of the ICAC, David Levine, called for examinations conducted by ICAC to be private to avoid reputational damage and maintain a proper focus.[73] Mr Levine’s view was contrary to the recommendations made by an independent review in 2005, and the Independent Panel Review in 2015.[74] These reviews found that public inquiries serve an important role in the disclosure of corrupt conduct and for disclosing ICAC’s investigative processes.[75] The 2015 review did not recommend any change to ICAC’s powers to hold public hearings.

Crime and Corruption Commission, Queensland

In the Queensland model, there is a presumption against a hearing being public. Subsection 177(1) of the Crime and Corruption Act 2001 (Qld) provides that ‘[g]enerally, a hearing is not open to the public’. The Crime and Corruption Commission (CCC) may open a ‘crime investigation hearing’ to the public if it considers that this will make the investigation to which the hearing relates more effective and that it ‘would not be unfair to a person or contrary to the public interest’.[76] A similar test is applied to a ‘witness protection function hearing’.[77] In contrast, for any other type of hearing the Commission may open the hearing to the public if it considers that ‘closing the hearing to the public would be unfair to a person or contrary to the public interest’.[78]

Independent Commission Against Corruption, South Australia

In South Australia, all corruption inquiries by the Independent Commission Against Corruption (SA ICAC) must carried out in private. The Commission can only investigate a matter if it is referred to it as potential corruption, from the Office for Public Integrity (OPI).[79] As a result of 2021 amendments to the SA ICAC Act, the Commission can no longer send a brief of evidence directly to the Director of Public Prosecutions but must now refer the matter to the relevant law enforcement agency.[80]

Crime and Corruption Commission, Western Australia

Examinations by the Western Australian Crime and Corruption Commission (CCC) are generally in private, although the CCC may open an examination, or part of an examination, to the public if it considers it is in the public interest to do so, after having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements.[81]

Number of public hearings

The NSW ICAC conducts more public hearings than all other state and territory anti-corruption commissions. However, public hearings remain a small proportion of all the hearings conducted; media reports indicate only 5% of the NSW ICAC’s hearings are public.[82] 

A recent comparison of state and territory anti-corruption commissions in Table 2 below shows that public hearings are used very sparingly.

Table 2:     State and territory jurisdictions hearings and public reports 2012–2021

	NSW	Vic	QLD	WA	SA	Tas	ACT	NT
Public hearings	45	5	3	5	1	0	0	0
Private examinations	1064	373 days	226 days	239 days	72	0	11	66
Reports made public	44	15	7	77	3	17	0	7

Source: Australia Institute, Submission: Giving Our Watchdog Teeth, Response to the Tasmanian Integrity Commission Act Legislative Reform Discussion Paper, (Canberra: Australia Institute, September 2022), 12, 17.

The reporting indicates that when anti-corruption commissions have discretion to hold a public hearing, they use it sparingly.

The 2016 Senate Select Committee inquiry into a National Integrity Commission (NIC) reported that the effectiveness and use of public versus private hearings by state anti-corruption agencies, and whether a NIC should be empowered to hold public hearings, were the subject of lengthy debate during its inquiry. However, the Committee did not make a recommendation regarding the matter.[83]

Reputational harm

Two state parliamentary committees have recently conducted inquiries into reputational harm that canvass many of the issues arising from holding public hearings.[84]

The review conducted by the NSW Committee on the Independent Commission against Corruption found that there is currently a broad range of safeguards in place to minimise reputational impact on individuals being adversely named in the ICAC’s investigations.[85] Nevertheless, the Committee also recommended that:

The Committee conduct a review of the threshold for determining whether to hold public hearings in both legislation and practice by the ICAC compared to like bodies in other jurisdictions.[86]

The South Australian Select Committee recommended:

that Parliament consider amendments to the ICAC Act that contemplate a publication protocol and exoneration protocol whereby at the conclusion of an investigation and/or prosecution that makes no adverse findings against a person or persons, their names are published in a prominent publication, on annual reports and on the ICAC website attesting to that fact.[87]

Reactions of key interest groups – hearings

The proposed higher threshold for public hearings has been widely condemned by key stakeholders.

The Opposition has indicated its support for the NACC, with Opposition leader Peter Dutton stating that ‘... in relation to the hearings, I think the government has got that right’.[88] Since then it has been reported that the Opposition wants the threshold lifted so a superior court judge acting independently of the NACC has the final say over public hearings.[89]

The Greens have indicated support for the NACC Bill but have called for changes to the public hearing provisions.[90]

The crossbench members issued a joint statement that indicated overall support for the NACC Bill but separately raised concerns over the higher threshold for public hearings.[91]

The Australia Institute’s National Integrity Committee has welcomed the NACC Bill but raised concerns with the threshold for public hearings.[92] Stephen Charles, a former Victorian Court of Appeal judge and board member of the Accountability Round Table and the Centre for Public Integrity, has stated that the definition of ‘exceptional circumstances’ is prone to court challenges requiring the corruption body to present to the court all the evidence it had amassed ‘so those being investigated know what the investigation is’. Anthony Whealy, chairman of the Centre for Public Integrity, stated this would ‘... give them [those being investigated] an enormous advantage in delaying and evading an investigation ... [which] will lead to corruption being hidden behind closed doors.’[93]

The Law Council of Australia welcomed the legislation but has called for the NACC to be aimed at addressing serious and/or systemic corrupt conduct, be empowered to hold public hearings where a closed hearing would be unfair to the person or contrary to the public interest, be heavily focused on education and corruption prevention, and to have consistent processes, powers and requirements when dealing with law enforcement and other public sector corruption.[94]

Former NSW ICAC Commissioner Ian Temby has suggested removing the ‘exceptional circumstance’ threshold but putting a time limit on reporting of the public inquiry.[95] Attorney‑General Mark Dreyfus addressed the issue of time limits saying that:

I think it’s undesirable that inquiries drag on and on, but I can point to instances, for example, where you are waiting for a criminal trial that is connected to be completed why you wouldn't want to bring to an end investigations, where you’re still pursuing inquiries for a whole range of reasons where you know someone’s about to be charged. All of those are reasons why an anti-corruption commission like this is not going to complete its inquiry.[96]

Will the NACC’s decision to hold a public hearing be subject to judicial review?

The Consequential Amendments Bill proposes to exclude provisions in Part 6 of the NACC Bill (regarding ‘Dealing with corruption issues’) from the operation of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).[97] This extends to subclause 73(2) of the NACC Bill, which concerns the Commissioner’s discretion to hold a hearing, or part of a hearing, in public. This means that a decision made under subclause 73(2) is not reviewable under the ADJR Act. This also has an implication that the Commissioner is not required to provide written reasons under the ADJR Act for their decision to hold or not to hold a public hearing.[98] However, this exclusion from the ADJR Act would not limit a person’s ability to seek judicial review under the Judiciary Act 1903 or in the High Court’s original jurisdiction.[99]

When asked by Dr Helen Haines about whether the public versus private hearing issue ‘would lead to extended legal proceedings and delay corruption investigations’ on 28 September 2022, Attorney-General Mark Dreyfus responded:

… Subject to the standing order about not giving legal advice, we’ve very carefully considered the question of whether or not this discretion, vested in the Commissioner, might give rise to legal proceedings. We are confident that this won’t be a matter that is going to be readily litigated[100].

In any event, any oversight or regulatory body with powers to adversely impact individuals’ rights is susceptible to legal challenges to its jurisdiction by those subject to its powers. As former New South Wales Chief Justice, Tom Bathurst, commented on this issue extra-judicially:

… On the one hand … such review exposes the bodies in question to harassment and interferes with their functions by unmeritorious claims designed to frustrate or stifle a legitimate inquiry. However, more than countervailing this consideration is, I think, the fact that these bodies, particularly having regard to the coercive powers they generally have and the fact that reports, even if not directly affecting legal rights, can directly damage a person’s reputation, and commonly act as a precursor to further acts which may affect such rights, makes at least some form of judicial review necessary if individuals’ fundamental rights are to be protected.[101]

Whistleblower protections

Whistleblower protections are included in the NACC Bill within Part 4. However, these proposed provisions differ markedly from Dr Haines’ Australian Federal Integrity Commission Bill 2020 (2020 Bill) through omission of a Whistleblower Protection Commissioner. Under the 2020 Bill, the Whistleblower Protection Commissioner was intended to provide support and protection to persons who made disclosures of wrongdoing and to investigate and report on issues of reprisal, detrimental action (or failures to prevent detrimental action), arising or resulting from disclosures of wrongdoing.[102]

The 2020 Bill had drawn from the 2017 inquiry by the Parliamentary Joint Committee on Corporations and Financial Services, which had recommended a whistleblower protection authority to assist reporters, investigative agencies and regulators with advice, case support, enforcement action and remedies for detrimental conduct.[103]

The Albanese Government has indicated it is considering major changes to the Public Interest Disclosure Act 2013 (PID Act), including implementing the recommendations of the 2016 Moss Review of the PID Act.[104] The Attorney-General has indicated that the aim is for these new measures to be in place by the time the NACC is established in mid-2023.[105]

The PID Act establishes a framework to encourage and facilitate reporting of wrongdoing by public officials in the Commonwealth public sector. The Act also aims to ensure that Commonwealth agencies investigate and respond to public interest disclosures, and it provides protections to public officials who make qualifying public interest disclosures. The Commonwealth Ombudsman and the Inspector General of Intelligence and Security are the statutory authorities responsible for the promotion of the PID Act, as well as the monitoring and reporting on its operation.

Disclosable conduct is defined in section 29 of the PID Act to include ‘conduct engaged in by a public official that involves, or is engaged in for the purpose of, the public official abusing his or her position as a public official’ as well as, ‘conduct engaged in by a public official that could, if proved, give reasonable grounds for disciplinary action against the public official’.[106] In addition to these terms, the PID Act includes a table which sets out 10 additional categories of disclosable conduct.

‘Disclosable conduct’ only includes conduct of an agency, public official, or contracted service provider for a Commonwealth contract.[107]

The NACC Bill provides a range of protections to persons who provide evidence or information about a corruption issue to the NACC. This is designed to enhance the effectiveness of the NACC by encouraging people to provide information about corruption issues to the NACC without fear of retribution.

Part 4 of the NACC Bill deals with protections for disclosers. Clause 23 outlines what is meant by a NACC disclosure.

Clause 24 affords immunity from civil, criminal and administrative liability to any person who provides information about a corruption issue to the NACC. Clauses 29 and 30 provide for protection against reprisals or threat of reprisals. These are complementary protections to those provided under the PID Act (paragraph 10(1)(a) and subsection 19(1)).

The NACC Bill would also provide protection from the enforcement of contractual or other remedies against a person due to their NACC disclosure (clause 24).

Other provisions of the NACC Bill and the Consequential Amendments Bill that are relevant to this Part include:

• clause 35, which provides that staff members of Commonwealth agencies who become aware of certain corruption issues in the course of performing certain functions under the PID Act are required to refer those corruption issues to the Commissioner
• clause 39, the effect of which is that an internal disclosure under the PID Act referred to the Commissioner must continue to be dealt with by the referring Commonwealth agency under the PID Act by default
• clause 43, which would permit the Commissioner to direct, among other things, that an internal investigation by a Commonwealth agency under the PID Act be stopped, if that is required to ensure the effectiveness of an action the Commissioner has taken or will take in relation to the corruption issue
• clauses 204 and 208, and clause 43 as applied by clause 211, which provide equivalent arrangements for NACC corruption issues
• consequential amendments to the PID Act to be made by the Consequential Amendments Bill, which would ensure that a public official (within the meaning of that Act) obtains the protections available under that Act regardless of whether they make a PID internally or a NACC disclosure under this Bill.[108]

Clause 31 of the NACC Bill provides for protection of journalists’ informants.

Journalists and their employers will not be required to do anything under the NACC Bill that would disclose the identity of an informant or enable that identity to be ascertained (subclause 31(2)).

An additional test applies where a search warrant is sought in relation to a journalist or their employer and the material relates to the alleged commission of a secrecy offence by a person other than the journalist. In such circumstances, the public interest of issuing a search warrant must be balanced against the public interest in protecting the source’s identity (subclause 124 (2B)).

Whistleblowers play a vital role in upholding the rule of law and public accountability. It has been reported that only 1% of whistleblowers disclose information directly to a journalist, media organisation or public website.[109]

Most Australian jurisdictions now have ‘shield laws’, which create a rebuttable presumption of non-disclosure of an informant’s identity. Shield laws aim to ensure that a journalist or their employer are not compellable to disclose the identity of a confidential source in court.[110]

The approach to whether journalist shield laws apply to anti-corruption bodies across the jurisdictions is varied. Shield laws still fail to provide protection to those giving evidence to anti‑corruption bodies, including the Victorian IBAC and the Queensland CCC.[111] Tasmania and the ACT allow journalists to claim privilege before integrity bodies, while other jurisdictions provide little or no guidance.[112] However, in the ACT, the privilege can be overturned if the ACT Supreme Court decides that identifying the source is in the public’s interest.[113]

Reactions from key stakeholders

Additional protections for whistleblowers ranked highly among concerns crossbenchers shared for the NACC, with many advocating for additional protections to be provided by including an independent body that oversees and supports whistleblowers in the NACC scheme.[114]

Griffith University Professor of Public Policy and Law, A. J. Brown, has researched Australia’s whistleblower laws and argues that they are in need of reform. Professor Brown has stated that cases like the Richard Boyle case (who is a whistleblower from the Australian Taxation Office) had proved the need for an independent whistleblowing authority to sort out where the public interest in disclosure lies. Establishing such an authority would ensure that there was more than one avenue available to protect whistleblowers, which would help reduce long, damaging and costly court processes.[115]

Transparency International, while welcoming the NACC Bill, has reiterated calls for the establishment of a centralised, independent authority to ensure whistleblowers are heard and protected.[116]

A submission to the Joint Select Committee by Australia’s Right to Know Coalition has called for stronger powers to protect journalists from search warrants and measures to ensure journalists’ sources are not revealed.[117]

Oversight of the NACC

Part 10 of the NACC Bill sets out the oversight mechanisms for the NACC, which will be the Parliamentary Joint Committee on the National Anti-Corruption Commission (PJCNACC) and the Inspector of the National Anti-Corruption Commission (the Inspector). In addition, the Consequential Amendments Bill provides for the Ombudsman to oversee the NACC’s use of relevant powers and mechanisms under various Commonwealth laws.

Parliamentary Joint Committee on the National Anti-Corruption Commission

The PJCNACC will consist of 12 members, with 6 members from the Senate and 6 members from the House of Representatives.[118] The 6 members appointed by each of the Senate and the House of Representatives must consist of:

• 3 members of the Government
• 2 members of the Opposition
• 1 member from the crossbench.[119]

According to the Explanatory Memorandum, this composition ‘would ensure that members of minor parties and independent members of Parliament would be eligible to serve on the Committee, allowing the Committee to take a multi-partisan approach to its work’.[120] Subclause 173(5) of the NACC Bill provides that at PJCNACC meetings at which the Government Chair is present, the Chair has a deliberative vote, and a casting vote if votes are equal.

This proposed composition of the PJCNACC has raised some media attention, with the ABC questioning Attorney-General Mark Dreyfus about the independence of the PJCNACC, which will have a Government majority and a Government chair:

…

TINGLE: Finally, you’re attempting to make the Commission as independent as possible, but a lot [will ride] on the parliamentary oversight committee. The Government’s going to have three [members], the opposition two and the [independents] one; who’s going to chair the committee?

ATTORNEY-GENERAL: It’s going to be a Government Chair of the Committee.

TINGLE: So that gives the Government an ultimate say on this. Is that a question mark over the independence of the Committee?

ATTORNEY-GENERAL: Not at all. It’s an unusual thing to see a specification of not merely Government and Opposition, but also an actual position in both Houses for a crossbench member and that means that there’s going to be a say right across the Parliament and we’re confident that that special kind of committee, even with the Government chair, is going to provide plenty of oversight.[121]

Clause 177 outlines the PJCNACC’s functions, which are:

• considering proposed recommendations for appointments of the NACC Commissioner, a Deputy Commissioner and the Inspector in accordance with clause 178 (paragraph 177(1)(a))
• monitoring, reviewing and reporting to the Parliament on the performance by the Commissioner and the Inspector of their functions (paragraphs 177(1)(b)–(c))
• examining reports tabled in Parliament relating to the NACC and the Inspector (paragraph 177(1)(d))
• examining trends and changes in corruption and reporting to the Parliament on desirable changes to the functions, powers, procedures, structure and staffing of the NACC or the Inspector (paragraph 177(1)(e))
• inquiring into and reporting upon any question in connection with the PJCNACC’s functions that is referred to it by either house of the Parliament (paragraph 177(1)(f))
• reviewing the NACC’s budget and finances, and reporting to both Houses of the Parliament on (paragraph 177(1)(g)):
• whether the NACC has sufficient finances and resources to effectively perform its functions (sub-paragraph 177(1)(g)(i))
• whether the NACC’s budget should be increased to ensure that it will have sufficient finances and resources to effectively perform its functions (sub-paragraph 177(1)(g)(ii))
• any other matter arising out of the review that the PJCNACC considers relevant (sub-paragraph 177(1)(g)(iii)).

Similar functions are conferred on comparable parliamentary joint committees, such as the Parliamentary Joint Committee on Law Enforcement (PJCLE) and the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (PJCLEI).[122] However, the PJCLE and the PJCLEI do not expressly have the same budget and finances review function which the PJCNACC is being accorded under paragraph 177(1)(g).[123] The Explanatory Memorandum states that this function of the PJCNACC

… would ensure a regular mechanism for external review of the sufficiency of the NACC’s budget and staffing levels, ensuring the government and Parliament have clear advice on the sufficiency of the NACC’s budget over time. It would also be an additional safeguard to hold future governments accountable for budget decisions regarding the NACC.[124]

However, given that the budget is ultimately determined by the Cabinet and that the PJCNACC is chaired by a Government member who can exercise a casting vote if votes are equal,[125] there may be questions raised as to how effective the budget review process will be. An alternative model of funding applies for the federal Auditor-General under section 50 of the Auditor-General Act 1997, headed 'Guaranteed availability of parliamentary appropriations'.

Indeed, a similar issue has been raised in New South Wales in relation to the funding model for the NSW ICAC, as pointed out by the NSW Auditor General in October 2020:

The process for determining the annual appropriation funding for ICAC does not recognise ICAC’s status as an independent agency

The Cabinet Expenditure Review Committee (ERC) makes the decisions about the budget proposals that are presented to it from ICAC. Members of Cabinet could potentially be investigated directly by ICAC and ICAC's investigations have the potential to damage the reputation of government more broadly. There is a risk that these factors could influence the ERC’s decision-making about funding for ICAC. Cabinet conventions mean that all discussions held at ERC are considered Cabinet-in-Confidence and are not made public or shared with agencies or Parliament. The limited transparency about why decisions about ICAC’s funding were made means that it is not possible for Parliament to understand the basis for decisions about ICAC's funding.

…

ICAC is classified as an independent entity in NSW Treasury’s budget guidelines. However, ICAC was still limited to making a single budget proposal in 2019–20 and its budget proposals still required the approval of the NSW Treasury Secretary to be progressed. This is not consistent with ICAC’s accountability arrangements, in which it is accountable to Parliament, rather than a minister or the secretary of a department. There are currently no additional safeguards to this risk, such as independent advice and greater transparency to Parliament.

The Executive’s involvement in the funding decisions for ICAC can create tensions which could limit the effectiveness of the current financial arrangements. Good governance principles suggest that an effective decision-making process should ensure that those who could be investigated do not determine the funding of the investigating body. In the case of ICAC, this is very difficult to achieve because of its broad remit. However, including additional safeguards in the process for determining appropriation funding would provide better protection against risks to ICAC’s independence and its ability to fulfil its legislative mandate.[126]

In 2020, the NSW ICAC proposed a new funding model that aimed to ensure it is properly funded by a mechanism that is independent of the executive branch of the NSW Government.[127] However, in May 2022, that proposal was reportedly rejected by NSW Premier Dominic Perrottet on the basis that the Executive should be in charge of funding allocations.[128]

The Inspector of the National Anti-Corruption Commission

The Inspector will be an independent officer of the Parliament (subclause 182(2)) with the following functions:

• detecting corrupt conduct within, and relating to, the NACC (paragraph 184(1)(a))
• undertaking preliminary investigations into NACC corruption issues or possible NACC corruption issues (paragraph 184(1)(b))
• investigating NACC corruption investigations that could involve corrupt conduct that is serious or systemic (paragraph 184(1)(c))
• referring NACC corruption issues to the NACC, Commonwealth agencies and State or Territory government entities (paragraph 184(1)(d))
• investigating complaints made in relation to the conduct or activities of the NACC or its staff members (paragraph 184(1)(e))
• providing relevant information and documents to the PJCNACC (paragraph 184(1)(f))
• receiving and dealing with public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013) (paragraph 184(1)(g))
• reporting and making recommendations to both houses of the Parliament on the results of performing any of its functions (paragraph 184(1)(h)).

Pursuant to clause 185, the Inspector is appointed by the Governor-General, on the recommendation of the Minister. Before making a recommendation to the Governor-General, the Minister must seek the approval of the PJCNACC.

Commonwealth Ombudsman

A further layer of oversight will be provided by the Commonwealth Ombudsman. The Consequential Amendments Bill provides for the Ombudsman to oversee the NACC’s use of the following powers and mechanisms:

• controlled operations under Part IAB of the Crimes Act 1914 (items 35–88 of the Consequential Amendments Bill)
• surveillance devices and computer access powers under the Surveillance Devices Act 2004 (items 188–200 of the Consequential Amendments Bill)
• telecommunications interceptions, stored communications, telecommunications data (metadata) and international production orders under the Telecommunications (Interception and Access) Act 1979 (items 206–260 of the Consequential Amendments Bill)
• the NACC’s access to the industry assistance framework under Part 15 of the Telecommunications Act 1997 to obtain reasonable assistance from communications providers to support the NACC’s powers (items 263–270 of the Consequential Amendments Bill).[129]

Other provisions

Parliamentary standards

In addition to introducing the Australian Federal Integrity Commission Bill 2020, Independent MP Helen Haines also introduced the Commonwealth Parliamentary Standards Bill 2020, which included a Parliamentary Standards Commissioner and a Parliamentary Integrity Adviser. The NACC Bill captures potential corrupt conduct by parliamentarians both under the definition of ‘public official’ (clause 10) and under provisions relating to political activities outlined in subclause 8(13).

Political activities could constitute corrupt conduct if they do or could adversely affect the probity of a public official’s conduct or involve the use of public resources under the Public Governance, Performance and Accountability Act 2013.[130]

A Joint Select Committee on Parliamentary Standards was appointed by resolution of the House of Representatives on 26 July 2022 and resolution of the Senate on 27 July 2022. The Committee is examining the development of a code or codes of conduct for Commonwealth parliamentarians, parliamentary staff, and parliamentary workplaces to ensure safe and respectful behaviour including options for the enforcement of a code.[131] The Joint Committee is due to report by 1 December 2022.

Whatever form these mechanisms for enforcement take, such as a Parliamentary Integrity Commissioner, there could be possible interactions with the NACC when needed, and reporting to NACC if appropriate.

Concluding comments

The Federal Government has gained broad support for its proposal to create a national anti-corruption commission. Although Labor can easily pass legislation through the House of Representatives, where it has a majority, it may need the backing of the Greens and one crossbencher in the Senate if it does not have the Coalition’s support in that Chamber.

The crossbench has been highly supportive of many elements of the NACC, although many have expressed concerns about the higher threshold for public hearings.

Opposition Leader Peter Dutton welcomed the Bill in its current form with a statement of ‘in‑principle’ support and a warning against making any changes to encourage more public hearings that could become ‘show trials’ that would damage reputations.

A recent survey conducted by the Australia Institute found 84% of those polled backing public hearings and 67% calling for those to be held in more circumstances than that proposed by the Government.[132]

In an address to the National Press Club on 12 October 2022, the Attorney-General said that he believes ‘the Government has got this Bill right’ but also suggested that he is open to further negotiation, stating ‘I’m prepared to listen to other views, because I want the Parliament to enact the best possible anti-corruption commission.’[133]

The provisions of the Bills are now subject to inquiry by the Joint Select Committee. It has been reported that several crossbench members plan to reiterate their criticisms through the inquiry process, including voicing suggestions around public hearings, oversight and government funding of the commission.[134]

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[1].       Explanatory Memorandum, National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022, 3.

[2].       Explanatory Memorandum, 6.

[3].       Cathy Madden, ‘National Integrity Commission’, Parliamentary Library Briefing Book: Key Issues for the 47th Parliament, (Canberra: Parliamentary Library, June 2022); Cat Barker, ‘Corruption and integrity issues’, Parliamentary Library Briefing Book: Key Issues for the 46th Parliament, (Canberra: Parliamentary Library, July 2019); Cat Barker, ‘Corruption and integrity issues’ Parliamentary Library Briefing book: Key Issues for the 45th Parliament, (Canberra: Parliamentary Library, August 2016); Senate Select Committee on the Establishment of a National Integrity Commission, Report, (Canberra: The Senate, September 2017). See also Australian Federal Integrity Commission Bill 2021 (No. 2) (Helen Haines MP); Australian National Integrity Commission Bill 2018 (Senator Larissa Waters).

[4].       Australian Parliament, National Integrity Commissioner Bill 2010 homepage (42nd Parliament); Australian Parliament, National Integrity Commissioner Bill 2010 homepage (43rd Parliament); Australian Parliament, National Integrity Commissioner Bill 2012 homepage; Australian Parliament, National Integrity Commission Bill 2013 homepage; Australian Parliament, National Integrity Commission Bill 2017 homepage; Australian Parliament, National Integrity Commission Bill 2018 (No. 2) homepage; Australian Parliament, National Integrity Commission Bill 2019 homepage.

[5].       ‘Business: Rearrangement: Division’, House of Representatives, Debates, 25 November 2021.

[6].       Scott Morrison (Prime Minister), Commonwealth Government to Establish New Integrity Commission, media release, 13 December 2018; ‘Commonwealth Integrity Commission Bill - Exposure Draft’, Attorney-General’s Department, 2 November 2020.

[7].       Bill Shorten (Leader of the Opposition) and Mark Dreyfus (Shadow Attorney-General), ‘A National Integrity Commission - Restoring Trust in Politics & the Public Sector’, media release, 30 January 2018.

[8].       ‘Fighting corruption’, Australian Labor Party, n.d.

[9].       Greg Brown, ‘Rushton Wary of Watchdog Becoming “Political Witch Hunt’’’, Australian, 1 June 2022; Lisa Visentin, ‘Greens Push to Broaden Powers for Watchdog’, Age, 10 July 2022, 1; Amanda Stoker,’ Opinion: Labor’s Double-Talk on Integrity’, Australian Financial Review, 27 July 2022; Paul Karp, ‘Federal ICAC Should Be Overseen by Non-Government MPs to Ensure Funding, Crossbench Says’, Guardian, 4 August 2022; James Massola, ‘Greens Raise Commission Funding Aims [Greens Raise Aims on ICAC]’, Age, 29 August 2022, 1; Sarah Martin and Paul Karp, ‘Federal ICAC: Independents Want Safeguards to Ensure Body Cannot Be Politicised’ Guardian, 31 August 2022; Anthony Galloway, ‘“Sticking points” on Plan for Integrity Watchdog’, Sunday Age, 18 September 2022, 1; Adam Bandt (Leader of the Australian Greens) et al., ‘Crossbenchers Committed to Delivering Anti-Corruption Commission with Teeth’, joint media release, 26 September 2022.

[10].    Mark Dreyfus, Second Reading Speech: National Anti-Corruption Commission Bill 2022, House of Representatives, Debates, (proof), 28 September 2022, 3.

[11].    The Committee held public hearings on 18–21 October 2022, however, please note this Bills Digest was drafted before the hearings.

[12].    See also Explanatory Memorandum, 335.

[13].    Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 6, 2022, 26 October 2022: 16–41.

[14].    Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 6, 2022, 26 October 2022: 16–38.

[15].    Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 6, 2022, 26 October 2022: 38–41.

[16].    Peter Dutton (Leader of the Opposition) and Julian Leeser (Shadow Attorney-General), ‘Transcript of Joint Press Conference: Parliament House, Canberra: 28 September 2022: National Anti-Corruption Commission’, media release, 28 September 2022.

[17].    Philip Coorey, ‘Crossbench on a Limb as Dutton Backs the NACC’ Australian Financial Review, 29 September 2022, 4.

[18].    ‘Committee Membership’, Joint Select Committee on National Anti-Corruption Commission Legislation.

[19].    National Integrity Committee, ‘Retired Judges Welcome Landmark Integrity Bill, But Public Interest & Hearings Require Protection’, media release, 28 September 2022.

[20].    Law Council of Australia, ‘National Anti Corruption Commission Bill’, media release, 28 September 2022.

[21].    Transparency International Australia, ‘Landmark Anti-corruption Legislation is an Historic Step Towards Restoring Trust in Government’, media release, 28 September 2022.

[22].    Anna MacDonald, ‘Experts Criticise Exceptional Public Hearings Proviso in NACC Legislation’, Mandarin, 5 October 2022.

[23].    Australian Government, ‘Part 2: Payment Measures’, Budget Measures: Budget Paper No. 2: October 2022–23, 51–52.

[24].    The Statement of Compatibility with Human Rights can be found at pp. 7–54 of the Explanatory Memorandum to the Bills.

[25].    Parliamentary Joint Committee on Human Rights (PJCHR), Human Rights Scrutiny Report, 5, 2022, 20 October 2022.

[26].    The relevant provisions are clauses 82, 95 and 124. See PJCHR, Human Rights Scrutiny Report, 5, 2022, 20 October 2022: 17, 20 and 25.

[27].    PJCHR, Human Rights Scrutiny Report, 5, 2022, 20 October 2022: 17.

[28].    PJCHR, Human Rights Scrutiny Report, 5, 2022, 20 October 2022: 17.

[29].    PJCHR, Human Rights Scrutiny Report, 5, 2022, 20 October 2022: 20.

[30].    PJCHR, Human Rights Scrutiny Report, 5, 2022, 20 October 2022: 25.

[31].    PJCHR, Human Rights Scrutiny Report, 5, 2022, 20 October 2022: 31.

[32].    Explanatory Memorandum, 70.

[33].    Independent Commissioner Against Corruption Act 2012 (SA), section 5.

[34].    Crime and Corruption Act 2001 (Qld), section 15.

[35].    A. J. Brown, ‘How Does the Government’s Long-awaited Anti-corruption Bill Rate? An Integrity Expert Breaks It Down’, Conversation, 28 September 2022.

[36].    Independent Commission Against Corruption Act 1988 (NSW) section 3.

[37].    Susanna Connolly, ‘The Regulation of Pork Barrelling in Australia’, Australasian Parliamentary Review 35, no. 1 (Winter/Spring 2020): 24–53, quoted in NSW Independent Commission Against Corruption (ICAC), Report on Investigation into Pork Barrelling in NSW, (Sydney: ICAC, August 2022), 14.

[38].    Explanatory Memorandum, 72.

[39].    Australian National Audit Office (ANAO), Award of Funding under the Community Sport Infrastructure Program: Australian Sports Commission, Audit report, 23, 2019–20, (Canberra: ANAO, 2020), 52.

[40].    Mark Dreyfus (Attorney-General), ‘Transcript of Interview with David Speers: ABC Insiders: National Anti-Corruption Commission’, media release, 2 October 2022.

[41].    Mark Dreyfus (Attorney-General), ‘Transcript of interview with Laura Tingle: ABC TV 7:30: 28 September 2022: National Anti-Corruption Commission’, media release, 28 September 2022, [3].

[42].    Explanatory Memorandum, 116–117.

[43].    Grant Hoole and Gabrielle Appleby, ‘Integrity of Purpose: A Legal Process Approach to Designing a Federal Anti-corruption Commission’, Adelaide Law Review 38, no. 2 (2017): 422.

[44].    Explanatory Memorandum, 116–117.

[45].    Explanatory Memorandum, 117.

[46].    Julian Leeser (Shadow Attorney-General), ‘Interview with Kieran Gilbert on Sky News’, media release, 3 October 2022.

[47].    Explanatory Memorandum, 87.

[48].    Mark Dreyfus (Attorney-General), ‘Transcript of Interview with David Speers: ABC Insiders: National Anti-Corruption Commission’, media release, 2 October 2022.

[49].    Revised Explanatory Memorandum, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018, 89–90, 151–152, 176–177, 187–188, 214–215, 227–228, 320–321.

[50].    Dreyfus, ‘Transcript of interview with David Speers’, 2 October 2022, [5].

[51].    The term ‘public examinations’ is used in Victoria (Independent Broad-based Anti-corruption Commission Act 2011 (Vic)), South Australia (Independent Commission Against Corruption Act 2012 (SA)) and Western Australia (Corruption Crime and Misconduct Act 2003 (WA)).

[52].    The NACC will be able to conduct public inquiries under Part 9 of the NACC Bill which will have a broader focus than the investigations conducted under Part 7.

[53].    National Integrity Committee, ‘Public Hearings Key to Investigating and Exposing Corruption: A National Integrity Commission Must Have the Ability to Hold Public Hearings if the Commissioner Considers It Would Make the Investigation More Effective and Be in the Public Interest’, Briefing paper, (Canberra: Australia Institute, 2018); Hoole and Appleby, ‘Integrity of purpose, 397–439; Chris Merritt, ‘Prejudice: ICAC public hearings a disgrace that must stop’, Australian, 16 October 2020, 21.

[54].    Independent Commission Against Corruption Act 1988 (NSW), section 31.

[55].    Transparency International Australia (TIA), Australia’s National Integrity Commission: the Blueprint for Action, (Melbourne: TIA, November 2020), B-13–B-14.

[56].    Mark Dreyfus, Answer to Questions without Notice: National Anti-Corruption Commission, [Questioner: Helen Haines], House of Representatives, Debates, (proof), 28 September 2022, 76.

[57].    Mark Dreyfus, Answer to Question without notice: Commonwealth Integrity Commission, [Questioner: Kate Chaney], House of Representatives, Debates, (proof), 27 September 2022, 27.

[58].    Australian Federal Integrity Commission Bill 2020, clause 86; Australian Federal Integrity Commission Bill 2021 (No. 2), clause 85.

[59].    See: Independent Broad-based Anti-corruption Commission Act 2011 (Vic), section 117; Crime and Corruption Act 2001 (Qld), section 177; Integrity Commission Act 2009 (Tas), section 48; Corruption Crime and Misconduct Act 2003 (WA), section 139.   

[60].    Independent Anti-Corruption Against Commission Act 1988, (NSW), section 31; Crime and Corruption Commission Act 2001 (Qld), section 177; Independent Broad-based Anti-corruption Commission Act 2011 (Vic), section 117; Independent Commission Against Corruption Act 2012 (SA), Schedule 2; Corruption, Crime and Misconduct Act 2003, (WA), sections 139 and 140; Integrity Commission Act 2009 (Tas), section 48; Integrity Commission Act 2018 (ACT), section 143; Independent Commissioner Against Corruption Act 2017, (NT), section 35 (which provides that all examinations have to be conducted in private).

[61].    Independent Broad-based Anti-corruption Commission Act 2011, (Vic), section 117.

[62].    R and M v Independent Broad-based Anti-corruption Commissioner [2015] VSCA 271 (30 September 2015), paragraphs 60–80.

[63].    R and M v IBAC, paragraphs 67, 71–72.

[64].    R and M v IBAC, paragraph 80.

[65].    R & Anor v Independent Broad‑based Anti‑corruption Commissioner [2015] HCATrans 293 (13 November 2015); R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8.

[66].    Independent Broad-based Anti-corruption Commission (IBAC), Exposing and Preventing Corruption in Victoria: Special report: IBAC’s First Five Years, (Melbourne: IBAC, 2017), 5.

[67].    Centre for Public Integrity (CPI), Sharpening the Watchdog’s Teeth – How to Strengthen the Victorian IBAC, Briefing paper, (CPI: June 2022).

[68].    Independent Broad-based Anti-corruption Commission (IBAC), Exposing and Preventing Corruption in Victoria: Special report: IBAC’s First Five Years, (Melbourne: IBAC, 2017), 13.

[69].    Robert Redlich (Commissioner, Independent Broad-based Anti-corruption Commission), Evidence to Integrity and Oversight Committee, Inquiry into Performance of Victorian Integrity Agencies 2020/21: Focus on Witness Welfare, 9 May 2022, 24.

[70].    Independent Commission Against Corruption Act 1988 (NSW), section 31.

[71].    Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1, [2015] HCA 14; Independent Commission Against Corruption Amendment Act 2016 (NSW); Explanatory Note, Independent Commission Against Corruption Amendment Bill 2016; Mike Baird (Premier of New South Wales), Second Reading Speech: Independent Commission Against Corruption Amendment Bill 2016, NSW Legislative Assembly, Debates, 15 November 2016, 39.

[72].    Australian Associated Press, ‘NSW ICAC’s Ability to Hold Public Hearings to be Scrutinised’, Guardian, 8 September 2016.

[73].    David Levine, Report to the Premier: The Inspector’s Review of ICAC, (Sydney: Office of the Inspector of the Independent Commission Against Corruption, May 2016), 2.

[74].    Murray Gleeson and Bruce McClintock, Independent Panel – Review of the Jurisdiction of the Independent Commission Against Corruption: Report, (Sydney: NSW Department of Premier and Cabinet, July 2015), 59; Bruce McClintock, Independent Review of the Independent Commission Against Corruption Act 1988: Final Report, Inquiry into the Independent Commission Against Corruption Act 1988, (Sydney: NSW Government, January 2005), 110–112.

[75].    Gleeson and McClintock, 59.

[76].    Crime and Corruption Commission Act 2001 (Qld), subparagraph 177(2)(a)(i).

[77].    Crime and Corruption Commission Act 2001 (Qld), paragraph 177(2)(b).

[78].    Crime and Corruption Commission Act 2001 (Qld), sub-paragraph 177(2)(c)(i).

[79].    Independent Commission Against Corruption Act 2012 (SA), section 18E and subclause 3(3) of Schedule 2.

[80].    Independent Commission Against Corruption Act 2012 (SA), section 36.

[81].    Corruption, Crime and Misconduct Act 2003 (WA), sections 139 and 140.

[82].    Michelle Grattan, ‘They’re Not Too Different After All’, Canberra Times, 1 October 2022, 46.

[83].    Senate Select Committee on a National Integrity Commission, Report, (Canberra: The Senate, September 2017), xiii, 200.

[84].    Parliament of NSW, Committee on the Independent Commission Against Corruption, Reputational Impact on an Individual Being Adversely Named in the ICAC’s Investigations, Report, 4/57, (Sydney: The Committee, November 2021); South Australia Legislative Council, Report of the Select Committee on Damage, Harm or Adverse Outcomes Resulting from ICAC investigations, (Adelaide: The Committee, 2021).

[85].    NSW Committee on the Independent Commission against Corruption, Finding 5, 10.

[86].    NSW Committee on the Independent Commission against Corruption, Recommendation 3, 17.

[87].    South Australia Legislative Council, Recommendation 8.7, 43

[88].    Dutton and Leeser, ‘Transcript of Joint Press Conference: Parliament House, Canberra: 28 September 2022: National Anti-Corruption Commission’, media release, 28 September 2022, [3].

[89].    Philip Coorey, ‘Coalition Keen to Keep Corruption Hearings Private’, Australian Financial Review, 4 October 2022, 4.

[90].    David Shoebridge, ‘3 Things About the New NACC Bill That We’ll Be Trying to Fix’, media release, 28 September 2022.

[91].    Adam Bandt (Leader of the Australian Greens) et al., ‘Crossbenchers Committed to Delivering Anti-Corruption Commission with Teeth’, joint media release, 26 September 2022; Paul Karp, ‘Dutton Says “Balance is Right” on Labor’s Anti-corruption Laws, Clearing Path for Bill to Pass’, Guardian, 28 September 2022.

[92].    Australia Institute, ‘Retired Judges Welcome Landmark Integrity Bill, But Public Interest & Hearings Require Protection’, media release, 28 September 2022. See also: Australia Institute National Integrity Commission, Submission to the Joint Select Committee on National Anti-Corruption Commission Legislation, Inquiry into the National Anti-Corruption Commission Bills 2022, [Submission no. 49], October 2022. 

[93].    Phillip Coorey, ‘National Corruption Body Mimics Flawed Vic Model, Experts Warn’, Australian Financial Review, 27 September 2022.

[94].    Law Council of Australia, ‘National Anti Corruption Commission Bill’, media release, 28 September 2022. See also: Law Council of Australia, Submission to the Joint Select Committee on National Anti-Corruption Commission Legislation, Inquiry into the National Anti-Corruption Commission Bills 2022, [Submission no. 40], 14 October 2022.

[95].    David Crowe, ‘Set Deadlines on Corruption Inquiries to Avoid Endless Speculation: Temby’, Sydney Morning Herald, 30 September 2022.

[96].    Dreyfus, ‘Transcript of Interview with David Speers’, media release, 2 October 2022.

[97].    See items 2 and 3 of Schedule 1 to the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022.

[98].    Administrative Decisions (Judicial Review) Act 1977, section 13.

[99].    Explanatory Memorandum, 305.

[100].  Mark Dreyfus, Answer to Question without Notice: National Anti-Corruption Commission, [Questioner: Helen Haines], House of Representatives, Debates, 28 September 2022.

[101].  T. F. Bathurst, ‘New Tricks For Old Dogs: The Limits of Judicial Review of Integrity Bodies’, Judicial Review 14, no. 1 (September 2018): 1–34, 8.

[102].  Explanatory Memorandum, Australian Federal Integrity Commission Bill 2020; Australian Federal Integrity Commission Bill 2020, Part 9.

[103].  Parliamentary Joint Committee on Corporations and Financial Services, Whistleblower Protections, (Canberra: The Senate, September 2017), 141–163.

[104].  Mark Dreyfus, Questions without Notice: Commonwealth Integrity Commission, [Questioner: Helen Haynes], House of Representatives, Debates, (proof), 7 September 2022; Philip Moss, Review of the Public Interest Disclosure Act 2013, (Canberra: Department of the Prime Minister and Cabinet, 15 July 2016).

[105].  Mark Dreyfus, Second Reading Speech: National Anti-Corruption Commission Bill 2022, House of Representatives, Debates, (proof), 28 September 2022, 3.

[106].  Public Interest Disclosures Act 2013 (PID Act), subsection 29(2). ‘Disciplinary action’ is not defined in the PID Act. ‘Public official’ means one of the individuals listed in column 1 of the table contained in section 69.

[107].  PID Act, paragraphs 29(1)(a)–(c).

[108].  Explanatory Memorandum, 95, 322–329; items 163 to 183 of Schedule 1 to the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022.

[109].  A. J. Brown et al., Clean as a Whistle: a Five Step Guide to Better Whistleblowing Policy and Practice in Business and Government. Key Findings and Actions of Whistling While They Work 2, (Brisbane: Griffith University, August 2019).

[110].  See, for example, Evidence Act 1995 (Cth), section 126K; Evidence Act 1995 (NSW), section 126K; Evidence Act 2008 (Vic), section 126K; Evidence Act 2011 (ACT) section 126K; Evidence Act 1906 (WA), section 20I; Evidence Act 1977 (Qld), sections 14Q–14Z.

[111].  Independent Broad-based Anti-corruption Commission Act 2011 (Vic), section 99; Evidence Act 1977 (Qld), section 14S.

[112].  Department of Justice and Attorney-General (Qld), Shielding Confidential Sources: Balancing the Public’s Right to Know and the Court’s Need to Know. Shield Laws to Protect Journalists’ Confidential Sources, Discussion paper, (Brisbane: Department of Justice and Attorney-General, June 2021), 19. Note that Queensland introduced shield laws in 2022 but not for those appearing before the Crime and Corruption Commission; Integrity Commission Act 2009 (Tas), section 92; Independent Commission Against Corruption Act 1988 (NSW), section 37.

[113].  Integrity Commission Act 2018 (ACT), sections 162–163.

[114].  Zoe Daniel MP et al., ‘Joint Statement: Crossbenchers Committed to Delivering Anti-Corruption Commission with Teeth’, media release, 26 September 2022.

[115].  David Estcourt, ‘Tax Office Whistleblower’s Case Will Have National Integrity Implications’, Age, 2 October 2022.

[116].  Transparency International Australia, ‘Landmark Anti-corruption Legislation is an Historic Step Towards Restoring Trust in Government’, media release, 28 September 2022.

[117].  Zoe Samios, ‘Media Industry Concern on Journalist Protections’, Age, 17 October 2022, 29; Australia’s Right to Know, Submission to the Joint Select Committee on the National Anti-Corruption Commission Bills 2022, [Submission no. 53], 14 October 2022.

[118].  NACC Bill, subclause 172(2).

[119].  NACC Bill, subclause 172(3).

[120].  Explanatory Memorandum, 216.

[121].  Mark Dreyfus (Attorney-General), ‘Transcript of Interview with Laura Tingle: ABC TV 7:30: National Anti-Corruption Commission’, media release, 28 September 2022, [3].

[122].  Explanatory Memorandum, 218.

[123].  Parliamentary Joint Committee on Law Enforcement Act 2010, subsection 7(1); Law Enforcement Integrity Commissioner Act 2006, subsection 215(1).

[124].  Explanatory Memorandum, 215.

[125].  NACC Bill, paragraph 173(5)(b).

[126].  Audit Office of New South Wales, The Effectiveness of the Financial Arrangements and Management Practices in Four Integrity Agencies, Special report, (Sydney: Audit Office, 20 October 2020), 19–20.

[127].  NSW ICAC, The Need for a New Independent Funding Model for the ICAC, Special report, (Sydney: ICAC, May 2020); NSW ICAC, A Parliamentary Solution to a Funding Model for the ICAC, Special report, (Sydney: ICAC, November 2020).

[128].  Michael McGowan, ‘Independent Funding for NSW’s ICAC Rejected on “Philosophical” Grounds’, Guardian, 11 May 2022.

[129].  Explanatory Memorandum, 215–216.

[130].  Explanatory Memorandum, 79.

[131].  Joint Select Committee on Parliamentary Standards website.

[132].  Australia Institute, ‘Only 1 in 5 Support ‘Exceptional Circumstances’ Restriction on NACC Public Hearings’, media release, 12 October 2022.

[133].  Mark Dreyfus (Attorney-General), ‘Address to the National Press Club of Australia’, media release, 12 October 2022.

[134].  Josh Butler, Most Australians Want Federal Anti-corruption Body’s Hearings to Be More Open, Poll Suggests, Guardian, 12 October 2022.

 

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