Linda White (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That the Senate take note of the report.

I rise to speak to the Joint Select Committee Advisory report on the provisions of the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022, dated November 2022 and tabled out of session.

In late September this year the Attorney-General referred consideration of the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022—which we affectionately refer to as the 'NACC bills'—to a joint select committee with representatives from both houses. I was privileged to serve as chair of this committee. The committee subsequently invited organisations and interested members of the public to make submissions in relation to the provisions of the bills, and held hearings across four days in October.

On 10 November 2022 the committee's report was provided to the President of the Senate and tabled in the House of Representatives by Dr Helen Haines, the member for Indi and deputy chair of the committee. The report contained the unanimous view of all committee members that the creation of a National Anti-Corruption Commission was critical to restoring the public's trust and confidence in elected representatives and public officials. The committee was greatly assisted in its work by the contributions from a broad range of views put by organisations and individuals from all states and territories, including trade unions, academics, civil society organisations, law societies, media organisations and government departments. Over 120 submissions were received, and 40 organisations and individuals appeared at the committee's hearings.

On behalf of the committee, I thank those who took the time to offer their views about the provisions of the legislation and for their thoughtful and considered contributions. In particular, the committee had the benefit of hearing from former and current commissioners and inspectors from state and territory based anticorruption bodies. Their experiences and the views they offered in relation to the functionality of the legislation in their jurisdictions, and how the NACC bills could be improved, were of invaluable assistance to the committee's work. I thank those who appeared before the committee for making the time to offer these contributions. I would also like to express my thanks to the committee secretariat, who did an exemplary job of managing the submission and inquiry process, and who were instrumental in the preparation of the committee's report. Their professionalism and hard work were deeply appreciated by the committee. I would also like to acknowledge the work and dedication of my own staff, Caitlin and Ben, in assisting me with this very important task.

The committee's report ultimately made six recommendations for changes to the legislation. These changes include permitting witnesses involved in investigations to disclose relevant matters to a psychologist or other medical practitioners; adjusting the definition of corrupt conduct; extending the role of the inspector to include an audit function in relation to the use of coercive powers; clarifying that the commissioner can investigate matters on their own motion; ensuring that all persons within a media organisation are offered protections in relation to the disclosure of journalists' sources; and requiring a person who is the subject of an investigation to be notified of the outcome.

I'm pleased that the recommendations are now reflected in the government's proposed amendments to the legislation being debated now in the other place. The Attorney-General is to be commended for moving to introduce the NACC as soon as possible and for subjecting the provisions of the legislation to the scrutiny of the public and the joint select committee.

The introduction of the National Anti-Corruption Commission represents a watershed moment in Australian history. The transparency and accountability of our nation's parliamentarians and public officials are plainly a significant issue of concern for the electorate. This government is committed to restoring trust and confidence at a national level, and the creation of the National Anti-Corruption Commission is a significant part of a suite of reforms designed to achieve this outcome.

I thank my fellow committee members for the dedication and commitment to collaboration they exhibited in the review process. The level of engagement and close attention to detail displayed by all members in the course of the public hearings and our deliberations was surely an example of parliament working at its best. For me, as a first-time chair, the bar set by the members of this committee is one all others will be measured against. I'm proud to commend the report and the NACC bills to the Senate.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

It's a real privilege to follow the Chair of the Joint Select Committee on National Anti-Corruption Commission Legislation. I want to make a number of comments in this regard. Firstly, I want to provide some acknowledgements, and, secondly, I'd like to make a number of substantive points. With respect to acknowledgements, I think the chair of the joint select committee, Senator White, did an absolutely outstanding job chairing the committee. It was a big ask for a senator who is new to this place to undertake that role, and I think Senator White performed it admirably and did an outstanding job. There was a combination of a velvet glove and an occasional flourish of the iron fist to bring the joint select committee back to heel, and it was very effective chairing.

On one occasion, committee members were aghast to see, in no less than the Australian Financial Review, the chair's role in this regard characterised as 'sit and steer'. I'm left to reflect that, far from being 'sit and steer', it was more 'chair and coalesce'. We did coalesce. We came together. All the members of the committee came together and made a unanimous report. There is great significance in the fact that everyone—members of the government; members of the opposition; Senator Shoebridge, representing the Greens, who also made an outstanding contribution to the conduct of the committee; and Dr Helen Haines from the other place—came together and made a unanimous report. There is great significance in that, and I think the NACC legislation is far better for the work of the committee than it otherwise would have been. As Senator White said, this is parliament at its best.

I would like to make one further acknowledgement before I raise a number of substantive points, and that is an acknowledgement of the wonderful work of the secretariat. It was outstanding. We had a very, very tight timetable, and the secretariat performed above and beyond. My heartfelt congratulations go to them in that regard.

There are three points I'd like to make, which I think need to be reflected upon as we continue on this journey. The first is the importance of the inspector. It was the Roman poet Juvenal who coined the phrase 'Who is to watch the watchman?' In the context of a National Anti-Corruption Commission, which has extraordinary powers—coercive powers—in situations where privileges, such as the privilege against self-incrimination and the privilege surrounding communications between a person and their lawyers, are, to some extent, abrogated, it is extremely important that the inspector have considerable ambit to audit the exercise of coercive powers by the NACC but also the resources to conduct that oversight role. That's something I think we need to look at as we progress down this path.

The second point I would like to make is in relation to appointments. Many of us on the committee came to the view that, whilst the legislation can say one thing, of great importance is who is actually appointed to the key roles at the NACC: who is going to be the commissioner, who is going to be the inspector, who are going to be the deputy commissioners and who is going to be the chief executive officer? The people who fill those roles will have extraordinary powers and it is very, very important that the right people are selected to those roles. In that respect, personally I am of the view that the joint standing committee which is going to be established under the bill to supervise the NACC should actually achieve a supermajority in terms of selecting who those individuals are. It's not good enough, from my personal perspective, for it to be a simple majority in circumstances where the parliamentary joint standing committee is chaired by a government member who has a casting vote. I think that is something which needs to be considered. I actually believe that, in the vast majority of cases, the parliamentary joint standing committee will act in a collegiate fashion. It is most likely that, in the vast majority of cases, unanimous decisions will be made with respect to accepting recommendations which are made with respect to appointments. But I think it's a perception issue as much as anything. It is important that there's a perception that the government can't necessarily carry the day on its own with respect to the appointment of these important positions.

The third point I would like to make is in relation to whistleblowers. We heard some very strong testimony that there needs to be reform with respect to the management of whistleblowers, in particular, so that whistleblowers, whether they are in the public sector or the private sector, are given the support and guidance they need in order to effectively discharge the important role which they conduct and carry out in our civic society. I think the evidence is there that, at this point in time, there's a maze of laws that need to be navigated by whistleblowers. As someone who used to be a whistleblower officer for a major company in the private sector, I think it's absolutely important that whistleblowers have the courage to put up the red flag with respect to issues and should be given support and should be able to get the guidance they need to discharge their important role in our civic society. With that, I look forward to making further contributions during the debate on the bill.

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

I also rise to speak to the report on the inquiry into the National Anti-Corruption Commission Bill. I will start as well by thanking and commending the work of the chair and acknowledge Senator Scarr's contributions in that regard. The chair approached this in a very even-handed and collegiate way, sometimes having to pull out the velvet glove and cover the iron fist to keep us on track. We had a very short amount of time and an overwhelming number of witnesses who wanted to come before us. I think in four days, through those hearings, the committee fully explored a number of the critical issues. So I do want to acknowledge the work of the chair. I think she did an excellent job keeping us all on track and ensured that the process itself was multipartisan and genuinely fair. I want to acknowledge also the work of the deputy chair, Dr Haines, the member for Indi. I acknowledge her work as well leading up to this bill. Between them, the chair and the deputy chair formed a pool of experience and common sense that got us through the inquiry and produced the final outcome, which was everybody on the committee supporting a national anti-corruption commission. No matter what their politics are, everyone on the committee supported a national anti-corruption commission. I think it was a significant achievement.

Of course, it didn't come out of nowhere. I want to acknowledge the ongoing work of Senator Waters, who managed to get a majority in this chamber to pass a NACC bill in the previous parliament. We were that close to getting NACC legislation years ago, only to be deflected by some pretty toxic politics. That's why I want to acknowledge the achievement in getting everybody on that committee to support getting the NACC Bill hopefully legislated by the end of this year.

There are a number of matters that I want to put onto the record—concerns about where we landed. The first is, on behalf of the Greens, my party, we don't support recommendation 5 of the committee which seeks to narrows the definition of 'corruption', taking away a generic definition that would allow the National Anti-Corruption Commission to investigate and pursue a broad range of corruption. In relation to the moves that are being taken now to narrow the definition of corruption, we say: what corruption do people not want the National Anti-Corruption Commission to look into? Please identify for us the corruption that you don't want the NACC to have jurisdiction for and, if you can do that in a coherent way, we'll listen. But until such time, we don't see any cause, any rational reason, to narrow the definition of corruption and the jurisdiction for the commission.

One of the other issues that I think was a significant missed opportunity in the report was the failure to actually translate the evidence we got on public hearings—the necessity for public hearings and the importance of hearings. That did not translate into the appropriate recommendation from the committee. We had current and former commissioners from the New South Wales and Victorian anticorruption commissions come to us. The commissioners from New South Wales said that, from their perspective, they found public hearings were essential for their anticorruption work for a variety of reasons, not least of which that it was a check and balance on the anticorruption commission itself, which had to justify its work and its fair processes in public. Having public hearings was actually an accountability measure on the New South Wales Independent Commission Against Corruption.

Public hearings also enabled witnesses who were otherwise not known to the commission to see what was happening and bring forward critical evidence. In relation to a number of inquiries by the New South Wales Independent Commission Against Corruption, those witnesses who have come forward after seeing public hearings have been essential for uncovering some deep and entrenched corruption and then fixing it in New South Wales.

We heard from the IBAC commissioner in Victoria about how their legislation largely prohibits public hearings—in fact, it mirrors the proposed model that we're seeing pushed by the government and the opposition—and limits them to where there are exceptional circumstances. The IBAC commissioner came and said: 'Don't repeat the mistakes in Victoria. Don't make the same mistakes.' But, unfortunately, we don't see that evidence, as well as the evidence of advocacy groups and current and former judges. A slew of highly credentialed witnesses came and said, 'Remove the exceptional circumstances test, and allow public hearings to be held in the public interest.' But, unfortunately, the committee's report does not reflect that evidence. I think that's a significant mistake. I can assure you now that it will ongoing work in our party, and we hope that with good will a majority in this chamber, in the Senate, will fix that obvious mistake in the bill.

When it comes to inspectors, we also heard some compelling evidence from, amongst others, Bruce McClintock SC, who's the current inspector of the New South Wales ICAC and I think is also the inspector of the Northern Territory equivalent. His compelling evidence was that the proposed role for inspector in the current bill is far too narrow. Basically, the inspector effectively should be a permanent ombudsman overseeing the role of the NACC. But in the proposed federal model that we see in the bill the inspector is really just a mini NACC of NACC, whose jurisdiction is only limited to seeing whether or not there is serious or systemic corruption in the NACC. That is very, very unlikely to ever occur and it's not the role we see for inspectors in state and territory equivalents, who, with their extraordinary royal commission powers, are effectively a check and balance on an anticorruption commission, to ensure those powers aren't being abused and to ensure that natural justice is delivered—to be an on-the-beat ombudsman focused on fair processes. We think there's a lot of work for this chamber to do to expand the role of the inspector in this debate.

I'd also like to say that when it comes to journalist protection, I acknowledge that the recommendation from the inquiry is to increase journalist protections. I sought, on behalf of my party, to have those recommendations strengthened in the committee hearing, and I'm glad to see that tabled today in the government's proposed amendments is a proposed amendment to go further than the committee recommendation and to strengthen, again, some of the protections for journalists to ensure that wherever a warrant is sought against a journalist then the public interest in protecting journalism and protecting journalists' sources and their important accountability role is considered in any warrant. I think we need to go further, and there is a very powerful case to ensure that warrants for the production of evidence or for the attendance of journalists are contestable by journalists. In that regard, the UK example was reported to us in the committee as the best example.

The proposed oversight of the National Anti-Corruption Commission is for a government dominated committee, where the government, through the chair, will have the casting vote and will be able to control the operations of the oversight committee. The principal role of the National Anti-Corruption Commission will be to hold the government to account. It's largely to hold the executive to account. Sometimes non-government senators and MPs go rogue, but it's largely to hold the government to account. Therefore, having a government controlled, government dominated committee as the principal oversight mechanism is a significant problem in the bill.

I note the proposition by Senator Scarr, and it's a matter that he pursued in the hearings, that at least on the choice of commissioner there should be a super majority. That is one of the options, to remove some of the executive monopoly power that's proposed in the current bill. The other option is to ensure that the chair cannot be a member of the government, so the government does not have a majority on that committee. That's important not just for the selection of a commissioner or commissioners; it's also important for ensuring that there's independent funding. In that regard, it was a missed opportunity for the committee not to recommend the same committee oversight processes that apply to the Audit Office. These should also apply to the oversight of the NACC.

I want to finish on this. If you took us back two years and you took this parliament back two years, the idea that we would see politicians, from across the political spectrum, unite in support for a national anticorruption commission would probably have been seen as close to unachievable. But we managed to achieve it in the committee. I commend the chair, I commend the deputy and I commend all members of the committee for working towards that goal. Let's get this done.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.