David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise to speak on the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022. Finally, finally, we are going to get a national anticorruption commission. After years of delay and broken promises in parliament after parliament, we are now going to get, in just a matter of a few days, a national anticorruption commission to fill the gap in oversighting corruption that's been there staring everybody in the face at the federal level. The Northern Territory's got one. Victoria's got one. New South Wales has had one for decades—and haven't they needed it! Finally, we're going to have that torch of anticorruption, that powerful independent NACC, focusing on the workings of this place, the workings of the federal government and all those corporates and others who seek to corrupt this institution and federal politics.

The Greens made an election commitment to the people of Australia and those millions of people who voted for the Greens that we would do everything in our power to pass a national anticorruption commission bill and to make it the most powerful and independent version we could. We have been delivering on that. I'm proud to be part of a record 12 Greens senators in this place who have given the support necessary to deliver a powerful national anticorruption commission. If it was left just to the major parties to bounce between themselves and cut deals, there is no way we would be getting the Anti-Corruption Commission we've got now. I want to pay tribute to my colleague Senator Waters for having done so much heavy lifting in this space and for having passed, I would say, a stronger anticorruption commission bill in a previous parliament and having navigated that through the Senate, only for it to run aground on the rocky shores of a Morrison-Dutton coalition-dominated chamber downstairs. Thank goodness we got rid of those rocky shoals with the last election.

I want to pay tribute as well to the member for Indi, Dr Helen Haines, and the work she has done. And to the civil society groups as well, who have for years been working with politicians—Greens and others—to try to get this parliament to pass not just any anticorruption bill but the best possible one. There are too many to mention, but I note particularly the Centre for Public Integrity, the Human Rights Law Centre, Transparency International and so many others.

While we are getting a powerful bill, there is a glaring gap in it. That glaring gap is about public hearings. The now Labor government went to the election with a promise on that. They had the seven elements and they had shiny brochures. They handed them out and they said, 'If you vote for us, this is the kind of NACC you'll get.' Tragically, they have betrayed one of those key elements with this bill. They said in black and white that they supported a national anticorruption commission where the test for having a public hearing would be what's in the public interest. There it is, laid out in their brochures in black and white: that's what the test would be. And yet what do we see with this bill? We see a test negotiated with we don't know who that puts in place the need for the commission to find 'exceptional' circumstances before a public hearing can be held.

Public hearings bring other witnesses out. They hold anticorruption commissions to account and they provide a necessary cautionary example to other politicians, bureaucrats or entities which are trying to corrupt the Commonwealth government. We know that they have worked extremely well at a state level and we know, from the evidence we got at the inquiry, that those state based anticorruption commissions that have a test for public hearings based solely on public interest, and which don't have exceptional circumstances, think that's extremely valuable. We also know that those anticorruption commissions that have an exceptional circumstances test want to get rid of it as quickly as they can.

At the inquiry we heard, for example, from the current New South Wales ICAC commissioner. What did he say? He said:

The other issue that has been raised is public hearings versus private hearings. I'm a strong supporter of public hearings. I believe that they're important because they make the organisation accountable and they provide an opportunity for other people to come forward. We've had investigations which have commenced in public, and as a result of that information other people have come forward and we've been able to go into other areas which have raised significant issues of corruption. It also, I think, ensures transparency and accountability for the agency and justifies the purpose if the case, ultimately, is made for change.

That's three decades of experience in the New South Wales ICAC there. I can think of multiple inquiries—one, for example, into corruption in a very major council, Canterbury-Bankstown council in Sydney—where the holding of public hearings and the exposure of what some of those corrupt council officials and councillors were doing brought out additional witnesses, who saw people lying in public hearings and then came and gave their version to the ICAC. Ultimately, they were essential for changing and exposing the corruption in those councils, producing the most powerful reports and the recommendations needed to clean up corruption. It was public hearings that produced those.

The Victorian Independent Broad-based Anti-corruption Commission officers suffer under an act which requires them to find exceptional circumstances before they can hold a public hearing. That has already tied them up in legal challenges and it has also limited the ability of IBAC to do its job. We just had a state election in Victoria in circumstances where there have been multiple secret inquiries undertaken by IBAC involving the current government in Victoria. But most voters in Victoria don't know what the content is. They don't know what their government had been accused of and they voted without that information. Compare that to New South Wales, where the public hearings have led to a contest of ideas. People know what the former Premier and other senior members have been up to in New South Wales. In New South Wales, voters will be exercising their rights at the ballot box far more informed than voters were in Victoria. What did the Victorian IBAC say? They said this:

A crucial way in which any anti-corruption agency exposes corrupt conduct is through the public examination of witnesses. Examining witnesses in public can make investigations more transparent and can increase public awareness of, and confidence in, the integrity system.

The nature of serious or systemic corruption is that many people may have knowledge of isolated pieces of information that may be relevant to a particular investigation. By holding a public examination, awareness and understanding of the matter under investigation is raised and witnesses can be prompted to come forward with relevant information that they had not previously understood the potential significance of.

The Bill currently only permits public hearings if the Commissioner is satisfied that exceptional circumstances justify the holding of the hearing in public and that it is in the public interest to do so.

They go on to say:

… the IBAC does not consider that the existence of exceptional circumstances ought to be a decisive factor in determining whether a public hearing should proceed.

I quoted from the current commissioner of the New South Wales Independent Commission Against Corruption, and the former commissioner, as well, gave the same evidence. The New South Wales ICAC don't have the exceptional circumstances test, and they've told everyone in this chamber, 'Don't put it in, because it will cripple the ability of the NACC to work.' On the flipside, we have the Victorian IBAC, where they do have the exceptional circumstances test and they've laboured under it for years, and they say: 'Don't repeat the Victorian mistake. Don't put in place exceptional circumstances.'

It seems there is a collective will amongst the major parties to have such a high threshold for public hearings that, basically, politicians will continue to be a protected class at a federal level. What's so special about federal politicians that they should be shielded from public scrutiny and from having to answer, in public, allegations of corruption? What's so special? The only thing special about the Commonwealth level is there's more money and more funds and more opportunity to corrupt. Of course it should be subject to at least the same level of scrutiny as we have in New South Wales. Sunlight is a great disinfectant, and this bill does not provide sufficient sunlight. We will be moving amendments to seek to correct that error in the committee stage.

Can I finish on this point. We've had multiple concerns raised in the committee hearings, and I'm sure many members have had concerns raised, about when anti-corruption commissions have gone off the rails and been unfair to witnesses and produced unfair results. Almost uniformly, those concerns have come about from private hearings—private hearings that have gone on for months or years, where witnesses have been gagged and can't speak in public, where they've been unable to tell their spouse or key people in their life what's been happening to them, because it's all been happening in secrecy. And it's in secrecy where anticorruption commissions can veer into substantial and real unfairness against witnesses, where they cannot be providing the kind of natural justice that you would expect. One of the best cures for that is to have the hearings in public, where the corruption commission needs to justify its work and needs to justify its processes to the broader public.

We recognise that there have been some improvements made to the bill in the other place. There have been greater protections for journalists, but there's still more to be done in that regard. We recognise also that there have been some minor improvements to other aspects of the bill. But we went backwards in one key regard in the amendments that happened downstairs. That was narrowing the definition of 'corruption' to remove a generalised jurisdiction for tracking down corruption within the NACC. We don't understand the rationale for that. We simply ask this—and we'll ask it in committee when we try and reinstate that: exactly what corruption is it that the Labor Party and the coalition don't want the NACC to look at? If there's corruption, however defined, the NACC needs to have the ability to investigate it.

In terms of other unfinished business, one of the aspects that we have concern about is the oversight committee. From the day this legislation was tabled, the government was on notice that a government controlled oversight committee does not have the independence required to do its job properly. The best solution to that is for the government to adopt the Greens amendment which requires a non-government chair of the committee, therefore ensuring that the government doesn't have complete control and the opposition doesn't have a veto on key questions, like the appointment of a commissioner.

I've got to be clear. If we don't get the numbers to support that very rational Greens amendment, which is supported by integrity experts across the country, then we're going to be looking very genuinely to any other amendment that seeks to remove complete executive control from that committee. One of those would be to have a supermajority when the committee votes to appoint commissioners in order to remove the government's complete control, because we're not just making a NACC for the current government; we're protecting it against a more noxious government in the future that may want to impose the worst of commissioners on the NACC. And, of course, it shouldn't just be at the whim of the government of the day in a committee completely controlled by the government of the day.

We know as well that more work needs to be done on oversight. The current inspector is basically a mini-NACC of NACC, looking for serious or systemic corruption in NACC. We hope that there will be none of that work to do or, at best, a tiny amount to do. At state and territory levels the inspectors have a far broader role, basically to be a permanent ombudsman oversighting the NACC. We will be moving amendments to implement that based largely on the excellent recommendations of Bruce McClintock SC, the current inspector of the New South Wales and Northern Territory anticorruption commissions.

We will also be looking to improve the protections for journalists to ensure that where warrants are being sought against journalists those warrants are contestable. We know that works in the UK, and it can work here as well.

Finally, as Greens, we are focused on the outcome. We want the best, the most independent and the most transparent NACC that we can achieve. We will work across this parliament to get the numbers to achieve that. I think we've got a lot of work to do in committee, but I can say this clearly: in just a few short days we will finally have a National Anti-Corruption Commission, and it's well past time.