Debate has begun in the House of Representatives, on the government’s National Anti-Corruption Commission (NACC) bill, with numerous sticking points needing approval to proceed, including public hearings and the inclusion or not of ‘pork-barrelling’.
When Attorney-General Mark Dreyfus introduced the legislation in September, it was received positively in the legal community, and broadly across the parliament.
The government’s model grants the NACC strong investigative powers to conduct its own independent investigations, compel the production of documents without a warrant, and conduct public hearings in some circumstances.
Greens senator David Shoebridge, who was a part of the oversight committee tasked with reviewing the bill, is confident the NACC will be a significant reform.
“I feel certain we will look back on this reform and say, in 20 years time, ‘Well, thank God, we did that,’” he said.
However, there are a number of clauses in the bill that are causing concern, and several amendments have been tabled by Independent MPs and minor parties that will be debated in the next couple of weeks. Here are the key battles coming up.
Mr Dreyfus raised a few eyebrows in the judicial community when he told the parliament that, “the default position of the NACC will be to conduct hearings in private”. Under the legislation, for a corruption investigation to have its hearings broadcast to the public, the NACC commissioner must be satisfied that it is in the public interest to do so and that it is an “exceptional” circumstance.
Barrister Geoffrey Watson, who has previously worked as a counsel assisting for the NSW ICAC, warns the exceptional circumstances clause will be exploited by people under investigation to delay hearings.
“People who come before the NACC are, generally speaking, going to be powerful or well heeled,” he said. “And what will happen is that litigation will be commenced challenging whether or not the public hearing occurs in exceptional circumstances.”
Australia is finally close to a #NACC being a reality. Yet the hang up is public hearings. An independent agency must determine, when public hearings will take place. Independent of Govt, oversight committees and MSM influences. It doesn't work any other way. #auspol
— Robert (@Vanished00One) November 24, 2022
The exceptional circumstances clause also appears in the legislation of Victoria’s integrity body, the IBAC. This is a higher threshold than the NSW integrity body ICAC operates under. A Central News investigation last year revealed that between 2012 and 2020, the IBAC held eight public hearings compared with the ICAC’S 34 public hearings.
Shoebridge shares Watson’s concerns and said public hearings are critical to the success of an anti-corruption body.
“That was the evidence we got from the overwhelming majority of witnesses that appeared before the inquiry. It was also the evidence of the head of the Victorian IBAC,” he said.
Shoebridge added that the Greens will “fight to the wire” to get the exceptional circumstances clause removed once the bill reaches the senate.
Watson also identified a problem in the legislation, when defining the threshold for which public officials can be investigated by the NACC. For the NACC to launch an investigation, it must be established that a public official has acted improperly. But Watson revealed that, while working for the ICAC, he worked on cases where public officials had been innocently duped by private interests.
“My favourite example is one where the RMS (Roads and Maritime Services) delegated the task of licencing truck drivers to a private organisation, which proceeded to take bribes and allocate licences to inappropriate truck drivers,” he said.
Watson said that a failure to expand the NACC’s jurisdiction in this manner would diminish its ability to perform one of its primary functions – assisting the efficient running of government.
The public support for the establishment of a federal integrity body has been largely driven by a series of high-profile ‘rort’ scandals. For example, a Sydney Morning Herald investigation in December 2021, revealed the Morrison government had allocated significantly more funding to Coalition-held marginal seats, than Labor-held seats.
Michelle Grattan has been covering politics for over 40 years. She says it is not clear the extent to which grant schemes will fall within the scrutiny of the NACC.
“Mark Dreyfus has said there’s a spectrum – at one end they’re fine, at another end they do descend into rorts and potential corruption,” she said.
Rorting of public money is a form of corruption. That's why I believe it's a mistake not to explicitly include pork barrelling in the NACC.#auspol #NACC #carporks #integritymatters #Goldstein #ZoeDanielMP pic.twitter.com/laNMkONuK9
— Zoe Daniel (@zdaniel) November 24, 2022
Independent MP Helen Haines proposed an amendment yesterday, definitively defining the allocation of public funds for “partisan political purposes” as corruption.
Grattan added that, even if the bill is amended to clearly define this spectrum, we should not expect the NACC to eliminate partisan spending.
“Governments do like to skew grants to maximise their political support,” she said. “So I don’t know that they’re going to suddenly become pure. I think they’ll just become more careful in setting processes in place [to avoid detection].”
Oversight and funding
The NACC bill outlines that the performance and funding of the body will be scrutinised by a parliamentary oversight committee. The committee will be comprised of 12 members: six from the government, four from the opposition, and two from the crossbench.
However, the chair of the committee will come from the government and will have the deciding vote in the event of a 50/50 split.
Labor and Liberal voting against @helenhainesindi's attempt to strengthen the NACC by removing the "exceptional circumstances" clause.
— Rachel Withers @email@example.com (@rachelrwithers) November 23, 2022
Watson is concerned that this makes the NACC too beholden to the agenda of the government of the day. He noted in a Sydney Morning Herald opinion piece that when the bill was read in parliament, only three members of the opposition were present.
“I just really worry about it. There’s hostility towards this. I don’t know why,” said Watson.
“Why do politicians see an integrity commission as being the enemy of good government? They should see it as their ally. These things are fragile. Governments change and moods change.”
Shoebridge proposed an amendment to the bill yesterday, stipulating the committee chair must be a member of either the opposition, or neither the government nor the opposition.
Main image illo by Charlie McLean.