Henry Pike (Bowman, Liberal National Party) Share this | Hansard source

I rise in support of the coalition's proposed amendments to the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022. The amendments offer commonsense protections to some of the more contentious elements of these bills. The additional protections we are seeking are to ensure that people brought before the NACC get a fair hearing and to ensure bipartisanship in the appointment of the commissioner.

The NACC Bill lays out the template for the creation of the National Anti-Corruption Commission. The NACC will exist to investigate and stop any cases of serious or systemic corruption. The commission will have the power to compel the production of documents, obtain search warrants, seize evidence and exercise limited powers of arrest. The commission would also have covert investigative powers, including telecommunications interception powers and the ability to use surveillance devices. So the way this entity is formed and the protections and oversights in place are of significant importance to the way the Commonwealth government operates. It is really imperative that this is done right and isn't rushed through.

The coalition supports the NACC Bill in principle but has proposed some strong amendments. If implemented correctly, an integrity commission can become an important tool in protecting our democracy and ensuring probity in government processes. But, as we've seen with many of the state integrity bodies, if done poorly these bodies can become something quite harmful to these purposes.

We've heard a lot from the government members about the coalition's record on this, but let's look at the facts rather than the popular narrative that has been spun recently. It was in fact the coalition that introduced Australia's first ICAC, in New South Wales back in 1988, and it was the former government, in 2018, that announced it would establish a Commonwealth Integrity Commission. It was again the former government, in 2020, that released a consultation paper alongside a proposed draft of the bill, and it was the then Labor opposition that opposed these proposals. So the push for a bipartisan approach to establishing a Commonwealth Integrity Commission was scuttled.

We support a corruption commission because corruption, of course, is wrong and should be stamped out. We believe that people who break the law should face the law. But, with such a broad application and all the powers of a royal commission, it is incredibly important that we get this absolutely right. We're introducing amendments that will ensure the extraordinary powers of the commission are applied in a fair and reasonable way. It shouldn't come as a surprise to the government or the crossbench, because many of the amendments we're proposing have come out of the additional comments that the coalition members of the committee made during that committee process. I acknowledge the great work done by the member for Menzies in leading the coalition's push on that front. This is about getting the balance right.

First of all, we will introduce an amendment that will close the loophole that the government has introduced for union representatives. The NACC applies to a broad range of Australians. This isn't just for parliamentarians and the people who work in this building, and it's broader than just Canberra public servants. It also applies to the members of the Australian Defence Force and the Australian Federal Police. It applies to the National Disability Insurance Scheme, to aged-care workers and to any contractor, subcontractor or other person working under a power under a law of the Commonwealth. It's very important to remember that this isn't just us establishing new rules for ourselves. We are subjecting many thousands of hardworking Australians to these new protocols and this new agency. Yet somehow the NACC does not apply to union officials exercising a power under a law of the Commonwealth. How can it be that union officials won't have to answer to the NACC but an NDIS worker or some of our ADF personnel may? We have many ADF personnel moving around this building today as part of the ADF Parliamentary Exchange Program. How can we look at them in the face and say that it's appropriate for them to face all the powers of the NACC but not for a union official to do so?

The government has been very evasive in denying that there is a carve-out, but it's there in black and white in proposed sections 12 and 14 of the bill. In a table in proposed section 12, item 2 in column 1 says:

An individual (other than an official of a registered industrial organisation) …

It explicitly carves out a union official from the definition of an individual. I know those on the left aren't big fans of individualism. Those who come out of the union movement often aren't fans of individualism. But to put into legislation that a union official isn't regarded as an individual might be taking things a little bit too far. Proposed section 14 says:

A statutory office holder is an individual (other than an official of a registered industrial organisation) …

It's truly unbelievable stuff; I was quite surprised to find that in there. I thought last week's IR changes were bad enough in terms of looking after the unions, but it's quickly descending into farce across nearly every bill the government is introducing into this House.

We're also introducing amendments supported by eminent experts in the field, including the Law Council of Australia, the Queensland Council of Civil Liberties and the South Australian Bar Association, to ensure the bill has adequate protections. We think it's important that it isn't just the commissioner that decides to commence a public hearing, as that sees too much power vested in one single official. This power should be shared between the commissioner and a deputy commissioner to ensure good governance. This proposal was supported by The Australia Institute, the Victorian Inspectorate and others. We think it should be compulsory, not optional, for the commissioner to consider factors including whether confidential information is involved, whether there would be unfair prejudice to a person's reputation or whether a person giving evidence has a particular vulnerability such as being under direct instruction or control of another person.

We're also seeking to amend the bill to ensure the commission should be required to commence an inquiry into matters that took place prior to the establishment of the commission but only if it is in the public interest for them to do so. The bill states that the commission will have the power to act retrospectively. But for this bill to have any credibility and for the new NACC to be fit for purpose, the parliament should place a limit on retrospective action. We don't need to go into endless witch hunts raking over the distant past, searching for faint relics no longer relevant or threatening. The commission created by this instrument must find any corrupt conduct which afflicts Australia today rather than waste precious resources on tit-for-tat battles over matters that are now old.

The coalition is also calling for all decisions of the commission to be subject to review under the Administrative Decisions (Judicial Review) Act, as significant aspects of the bill are not subject to that review. This was an amendment proposed by the Law Council of Australia, and the coalition believes this is a commonsense provision. The commission has the power to impose nondisclosure notations or gag orders on people. These prevent them from disclosing that they have appeared before the commission. We think it is essential that there be limited expectations to the interest of mental health and of the people that come before the commission. People should be able to make a disclosure to an immediate family member as long as they are not a person of interest themselves, a medical professional or a mental health professional. I note the government's amendments this morning have gone some way to addressing that.

The bill abrogates the privilege against self-incrimination and legal professional privilege. Our amendments ensure this is only done when absolutely necessary because of the significant impost on these fundamental rights. That amendment was also supported by the Law Council of Australia.

We believe that investigations shouldn't go on indefinitely. Justice delayed, as they say, is justice denied. Our amendment will propose a 12-month time limit on investigations. I think that's very fitting, given the length of time a lot of these state investigations have gone on for and the amount of damage that's been done over those long, drawn-out investigations that seem to go on forever.

We think bipartisanship is essential in the creation of a new body like the NACC. The coalition is proposing a three-quarter majority of the parliamentary committee should be required for appointments of the commissioner and the inspector. Without support of all sides of this chamber, the commission risks losing the trust of the public.

Sadly, vexatious complaints are part of life. The Law Council of Australia's submission noted:

The Bill does not include offences for making vexatious complaints, and the Law Council considers that this is appropriate, given that such offences may deter people from making a referral.

I encourage the government to look closer at those sorts of issues.

It's important we take lessons from the failures and abuses of power we have seen from some of the state based integrity commissions. We need to make sure that Australia in 2023 does not resemble Salem in 1693. Sadly, we have seen too many examples from the state based integrity commissions which would not have been out of place in Salem. Murray Kear, the former head of the New South Wales SES, was investigated by ICAC for dismissing a staff member allegedly in reprisal for the staff member making allegations about the conduct of another staff member. ICAC used its inquisitorial powers and falsely released a public report condemning him. Kear was forced to retire without ongoing wages and was rendered unemployable by the public nature of these findings. Kear took the case to court and the magistrate dismissed the charge, finding him not just not guilty, but proving him positively innocent. Despite this, ICAC never apologised nor exonerated Kear. This is just one example of many where ICAC has overstepped the mark.

We had Doug Barr, a South Australian police officer. He was investigated by the South Australian ICAC for his involvement in the investigation into the Salt Creek kidnapping. More than two years after the ICAC investigation started, Barr, unfortunately, took his own life. When the report was released it was made clear that Barr was not accused of corruption, and also that the report was dated for release eight days before Barr's untimely death. Had the investigation been more efficiently organised and less psychologically damaging for those involved it is likely Barr would still be with us today. As Barr's wife noted, 'The process is the punishment, whether you're guilty or not.'

We have the case of Georgina Vasilaveski, a former Renewal SA executive, and her then boss, John Hanlon. They were subject to an 18-month public investigation by the South Australian ICAC. However, despite the length and effort of the investigation, it was ultimately thrown out due to a lack of evidence. According to Vasilaveski, 'The complaint against me cost me my 20-year career in government.' She also claims it took three years to investigate a matter of $1,032.

A little bit closer to here we had the case of Margaret Cunneen, who was a top New South Wales DPP prosecutor. Cunneen was investigated by the New South Wales ICAC in 2014 for individual allegations which were almost certainly malicious and trivial in nature. The matter went to the High Court in April 2015, where the court ruled the investigation did not fall within the scope of ICAC's functions and did not have the power to investigate the allegations. Four out of five High Court justices agreed the ICAC had no power to investigate allegations against Cunneen because the allegations did not fit the definition of corrupt conduct in the New South Wales legislation.

And of course there is Michael Gallacher. In 2014, counsel assisting ICAC Geoffrey Watson implied, while questioning a witness, that Michael Gallacher, the then New South Wales police minister, had been complicit in hatching a corrupt scheme. No evidence was produced, but the accusation alone was enough to see Gallacher dumped from the Liberal Party frontbench following almost 40 years of public service—almost 16 years as a police officer and then 21 in the parliament. He later resigned from parliament. A letter from the ICAC inspector Bruce McClintock to Gallagher in 2018 noted that he had a 'very, very considerable degree of sympathy' for Gallacher, and felt that what happened to him was 'wrong and unfair'. He also noted that no finding of corrupt conduct had been made against Gallacher. Gallacher described it as five years of personal hell, noting that it was 'like a nightmare where you're calling out for help but nobody comes'.

The South Australian Bar Association has given a very strong submission to the inquiry into this bill and noted:

There have been many failed prosecutions in South Australia as the result of an ICAC Investigation.

And:

Corruption Commissions across the country have extraordinary powers. Terrorism suspects are given more rights when criminal charges are brought against them than a public servant who is brought before an anti-corruption commission.

I have outlined those concerning case studies because we can't end up in the situation where we have these sorts of injustices. We need a NACC framework that recognises that elected officials are also here to do a job, and we need to have adequate protections to prevent the model becoming a political tool.

The bill will cost $262 million over the forward estimates, and it is critical this money is used well. Definitions are important, particularly in legal proceedings. The bill requires far clearer, less ambiguous explanations of the terms and powers upon which it seeks to rely in founding the NACC. The coalition's amendments provide a much tighter and targeted approach to ensure that the NACC achieves its purpose. We cannot allow good men and women of all persuasions and all sides of politics to be sacrificed at the altar of the all-powerful commission merely to satisfy the media or the mob. We cannot allow the lives of innocent individuals to be destroyed by a press release without due process or protections. I commend the coalition's amendments to these bills to the House.

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