Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Hansard source

by leave—I move opposition amendments (1) to (8), (10) to (17) and (19) to (34), as circulated in my name, together:

(1) Clause 4, page 3 (lines 22 and 23), omit ", or that could adversely affect,".

(2) Clause 7, page 10 (lines 21 to 24), omit the definition of official of a registered industrial organisation.

(3) Clause 8, page 14 (line 6), omit "or that could adversely affect,".

(4) Clause 9, page 16 (line 25), omit "conduct; or", substitute "conduct.".

(5) Clause 9, page 16 (line 26), omit paragraph (1)(c).

(6) Clause 12, page 24 (table item 2, column headed "Individual"), omit "(other than an official of a registered industrial organisation)".

(7) Clause 14, page 27 (lines 2 and 3), omit "(other than an official of a registered industrial organisation)".

(8) Page 45 (after line 10), at the end of Division 3, add:

39A Offence — vexatious referrals

A person commits an offence if:

(a) the person refers a corruption issue to the Commissioner; and

(b) the Commissioner does not reasonably suspect that the conduct to which the issue relates has been, or is being, engaged in; and

(c) there is no basis on which a reasonable person could suspect that the conduct to which the issue relates has been, or is being, engaged in; and

(d) the referral is made with the intention of causing a detriment to another person.

Penalty: Imprisonment for 12 months.

39B Offence — disclosure of referrals

A person commits an offence if:

(a) a corruption issue is referred to the Commissioner; and

(b) the person discloses to the public that the corruption issue has been referred to the Commissioner; and

(c) the disclosure is not authorised by or under this Act.

Penalty: Imprisonment for 12 months.

(10) Clause 40, page 46 (after line 6), at the end of the clause, add:

(2) However, if the corruption issue could, in the Commissioner's opinion, involve corrupt conduct that occurred before the commencement of section 8, the Commissioner may deal with the corruption issue only if the Commissioner is satisfied that it is in the public interest to do so.

(11) Clause 45, page 50 (line 16), omit "is satisfied", substitute "and a Deputy Commissioner are satisfied".

(12) Clause 45, page 50 (line 17), after "Commissioner", insert "and a Deputy Commissioner".

(13) Clause 45, page 50 (line 23), omit "and the Commissioner considers", substitute "and the Deputy Commissioner and the Commissioner and the Deputy Commissioner consider".

(14) Clause 45, page 51 (line 7), after "Commissioner", insert "and a Deputy Commissioner".

(15) Clause 73, page 68 (line 8), omit all the words from and including "decides" to the end of subclause (1), substitute "and a Deputy Commissioner decide that the hearing, or part of the hearing, is to be held in public".

(16) Clause 73, page 68 (lines 10 and 11), omit all the words from and including "may decide" to and including "Commissioner is", substitute "and a Deputy Commissioner may decide that a hearing, or part of a hearing, is to be held in public if the Commissioner and the Deputy Commissioner are".

(17) Clause 73, page 68 (lines 15 and 16), omit all the words from and including "to hold" to and including "the Commissioner", substitute "a hearing, or part of a hearing, is to be held in public, the Commissioner and a Deputy Commissioner".

(19) Clause 73, page 69 (line 2), after "Commissioner", insert "and a Deputy Commissioner".

(20) Clause 81, page 72 (line 29), before "A person", insert "(1)".

(21) Clause 81, page 73 (after line 8), at the end of the clause, add:

(2) Subparagraph (1)(b)(ii) does not apply if the person was not given a reasonable opportunity to answer the question.

(22) Clause 82, page 73 (lines 23 to 26), omit paragraph (b).

(23) Clause 95, page 82 (lines 9 and 10), omit subclause (2), substitute:

(2) The notation:

(a) must permit disclosure of information to:

(i) the spouse of the recipient of the notice to produce or private hearings summons (unless the spouse is a subject of the corruption investigation in relation to which the notice or summons is given); and

(ii) any mental health professional who is providing mental health care to the recipient of the notice to produce or private hearings summons; and

(b) may permit disclosure of information in other specified circumstances.

(24) Clause 98, page 84 (line 32) to page 85 (line 6), omit paragraph (3)(e), substitute:

(e) by a legal practitioner for the purpose of giving legal advice to, or making representations on behalf of, the person on whom the notice or summons was served; or

(25) Clause 113, page 98 (lines 3 to 6), omit subclause (1), substitute:

(1) If:

(a) a person is required, by a notice to produce or at a hearing, to give an answer or information, or to produce a document or thing; and

(b) all other coercive powers available to the Commissioner to obtain the information, document or thing have been exhausted;

the person is not excused from giving the answer or information, or producing the document or thing, on the ground that doing so would tend to incriminate the person or expose the person to a penalty.

(26) Clause 113, page 98 (lines 7 to 11), omit subclause (2), substitute:

(2) However:

(a) the answer or information given, or the document or thing produced; and

(b) any information, document or thing obtained as a direct consequence of the giving of the answer or information or the production of the document or thing;

is not admissible in evidence against the person in:

(c) a criminal proceeding; or

(d) a proceeding for the imposition or recovery of a penalty; or

(e) a confiscation proceeding.

(27) Clause 113, page 98 (lines 17 to 20), omit subparagraph (3)(b)(i).

(28) Clause 113, page 99 (lines 1 and 2), omit the note.

(29) Page 99 (after line 5), after clause 113, insert:

113A Legal professional privilege

This Act does not affect the law relating to legal professional privilege.

(30) Clause 114, page 99 (lines 11 to 13), omit paragraphs (1)(a) and (b).

(31) Clause 114, page 99 (line 17) to page 100 (line 2), omit subclauses (2) to (5).

(32) Clause 115, page 100 (lines 12 to 28), omit the clause.

(33) Clause 154, page 127 (after line 32), at the end of the clause, add:

(7) The Commissioner must give an investigation report, or a protected investigation report, to a person in accordance with this section no later than 12 months (or such longer period as a court allows) after the earlier of the following:

(a) the time when the corruption issue to which the report relates was referred to the Commissioner;

(b) the time when the Commissioner became aware of the corruption issue to which the report relates.

(34) Clause 178, page 146 (after line 17), after subclause (2), insert:

(2A) If the proposed recommendation is for the appointment of the Commissioner or the Inspector, the decision to approve the recommendation must be supported by at least a three-quarters majority of all of the members of the Committee.

(2B) Paragraph 173(5)(b) does not apply in relation to a vote on a decision to approve or reject a proposed recommendation.

The coalition amendments are designed to improve the integrity, safeguards and operation of the National Anti-Corruption Commission. The National Anti-Corruption Commission has a very broad scope. It applies to parliamentarians and their staff, every Canberra public servant, our Defence Force, the Australian Federal Police, our diplomats and embassies around the world, and every contractor and every subcontractor who engages with the Commonwealth. It applies to almost every person exercising power under a law of the Commonwealth: pharmacists, NDIS workers, aged-care workers and Indigenous rangers.

One of my colleagues—I think it was the member for Menzies—estimated that probably around one million Australians are brought within the reach of this commission. But there's one group of people who are specifically carved out of the application of the commission—that is, union officials exercising a power under a law of the Commonwealth. For two months, we've been asking the Labor Party for an explanation about this carve-out for union officials exercising a power under a law of the Commonwealth. It's not mentioned in the explanatory memorandum. When questioned at the joint committee, the Attorney-General's Department couldn't give a satisfactory answer on the reasons for the exemption. When asked on Insiders about the carve-out, the Attorney-General initially denied it and then justified it on other grounds. The Prime Minister gave two different answers about it on two consecutive days, and last night, a little after 9.30, we got another different answer from the Attorney-General. Regardless, the coalition still believes that these provisions have no place in this bill. Any integrity commission worthy of the name should not have a carve-out for the owners of the Australian Labor Party. Our amendments seek to remove this carve-out.

Many of our other amendments are based on recommendations of the Law Council of Australia and other legal bodies. The words of the South Australia Bar Association capture the spirit of our amendments:

Corruption is wrong, but in our zeal to see corrupt public officials dealt with appropriately, we must not discard the protections of the rights and liberties that are central to our legal system.

On public hearings, we believe the safeguards could be further strengthened by mandating the factors to be taken into account when determining whether to have a public hearing. Our amendments provide for a better way of enhancing public confidence in the decision to hold a public hearing by having the commissioner determine exceptional circumstances and weigh those public interest factors in conjunction with a deputy commissioner.

A similar process should also be utilised when the commissioner is investigating a matter that has already been considered by another Commonwealth integrity agency. Our amendments also seek to further clarify the definition of corruption by amending section 8(1)(a) to remove the vague and superfluous phrase 'or that could adversely affect', consistent with the Law Council's submission, given that 'conspiracy' is included in section 8(10). We also seek to delete section 9(1)(c), which defines a corruption issue in relation to something that someone will do in the future. A person cannot be investigated and punished for actions they have not taken.

On retrospective investigations, section 8(4) enables the commission to investigate conduct that occurred prior to the establishment of the NACC, with no time limit on how far back that action may have occurred. The Law Council suggested including an additional threshold that will allow the NACC to conduct investigations into past conduct only when there's an identifiable public interest in doing so, and our amendments give effect to this. Our amendments also adopt provisions from the coalition's Commonwealth Integrity Commission Bill to make it an offence to make vexatious referrals or to disclose that a person has been referred to the NACC.

On the issue of privileges, our amendments seek to give effect to the Law Council's recommendation. Because the privilege against self-incrimination is waived, material that is elicited by the Anti-Corruption Commission in a scenario under which a person doesn't have the rights they would usually have in a criminal investigation process must not then be used either directly or derivatively in a criminal process. There are also good public policy reasons that a person should be able to consult with their lawyer in confidence. Our amendments also clarify that the bill does not affect the law relating to legal professional privilege.

Our amendments also seek to apply time limits to investigations so that the commission is required to complete investigations within a definite period of 12 months. Those time limits could be extended by application to a court, but we need to see investigations not remaining open indefinitely, as they have done in some jurisdictions.

Finally, we believe the appointments of the commissioner and inspector must be above politics, and, to that end, we believe that their appointment should be subject to a supermajority of nine out of 12 members of the joint standing committee. This ensures that those who fulfil these significant roles have bipartisan support. This particular recommendation was canvassed in the work of the Joint Select Committee on National Anti-Corruption Commission Legislation, and I thank all members of the joint committee. In particular, I want to acknowledge Senator Scarr and the member for Menzies, who thought deeply about these issues, but I do thank all members, including the member for Indi and the many government members who participated in that joint committee. I commend these amendments to the House.

See this speech in context