Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 2979 together:

(1) Clause 2, page 2 (at the end of the table), add:

(2) Page 90 (after line 11), at the end of the Bill, add:

Schedule 8 — Penalties imposed by the Parliament

Parliamentary Privileges Act 1987

1 Subsection 7(5)

Repeal the subsection, substitute:

(5) A House may impose on a person a fine:

(a) not exceeding 50 penalty units, in the case of a natural person; or

(b) not exceeding 250 penalty units, in the case of a corporation;

for an offence against that House determined by that House to have been committed by that person.

(5A) The Consolidated Revenue Fund must not be appropriated for the purposes of paying a fine imposed under subsection (5).

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

These amendments seek to change the existing penalties in the Parliamentary Privileges Act. Essentially, these amendments would replace the existing penalty units and penalties, roughly triple the existing $5,000 penalty for individuals and quadruple the existing $20,000 penalty for bodies corporate. Amendment (2) also says that any such penalty cannot be paid out of consolidated revenue.

The potential second-order effects of that change are not clear to us. It is not immediately apparent which other acts would interact with this particular amendment, and the circumstances in which those interactions may or may not occur—for instance, how would this particular amendment interact with a fine paid by a person who receives an allowance or a subsidy from the government?

In terms of changes to the Parliamentary Privileges Act, these are things that I'd say all parties in the Australian Senate obviously take very, very seriously. The reason is that it is an act which entrenches parliamentary sovereignty and regulates the relationship between the branches of government. It is the reason, as we all know, that we're all able to stand in this place and say whatever we need to say in support of our constituents, the reason that the witnesses before our committees are able to speak freely, without fear of being called before the police or the courts, and it is also fundamental to our democracy. So, when changes to the Parliamentary Privileges Act are being put forward, we do need to very seriously consider them. We need to very seriously consider the implications of them but also what the interactions with other pieces of legislation will be. And we can't make any apologies for being cautious in this regard.

On this particular issue, the decision to have a specific listed penalty instead of penalty units wasn't actually a drafting error; it was deliberate. The penalties were set in 1987. Just five years later, in 1992, we changed the Crimes Act to introduce the penalty unit regime, including a mechanism to convert fixed penalties into penalty units. But, at that time, we specifically excluded penalties that were not handed down by the courts—for those who are interested, that is subsection 4AB(2) of the Crimes Act. That was debated at the time. It was considered by the parliament. It is quite clear that it was a deliberate decision to treat penalties handed down by the parliament differently.

It might also be unsurprising that we would treat penalties under the Parliamentary Privileges Act differently because they are the result of what is a fundamentally different process. A person receiving such a penalty has not been convicted by a court. They don't have all the usual protections that apply in judicial proceedings, such as the presumption of innocence, rights around procedural fairness and the ability to appeal or ask for a review of a decision. Penalties handed down under the Parliamentary Privileges Act, which senators would be aware does include penalties of imprisonment, are decided by the houses of the parliament themselves, according to procedures they determine, and are fundamentally unreviewable by any other body.

So, when it comes to a proposal—in this case, it is amendments to a piece of legislation that is now in committee stage before the Australian Senate—to lift the penalties that can be imposed by this place, we do need to proceed with caution. As I said, in this regard, we have not had the time yet to actually properly analyse what could be the flow-on effects from these amendments. On that basis, the opposition won't be supporting them.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The government will also not be supporting the amendments. The government is not currently proposing any changes to the penalties that may be imposed by the houses under section 7 of the Parliamentary Privileges Act 1987. Neither the Senate nor the House of Representatives has imposed a financial penalty in living memory, so, from the government's point of view, we don't believe that the case for the amendments has been made out in practice. If there were a future circumstance where the financial penalties under the Parliamentary Privileges Act were considered inappropriate, the houses may enforce the observance of their privileges and immunities and punish people found guilty of contempt, including a commitment to prison.

Question negatived.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

by leave—Please note my support for that amendment.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

by leave—Mine too, please.

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

by leave—On behalf of the Greens, I ask the same.

Tammy Tyrrell (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

by leave—I would like my support noted as well.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 2961 together:

(1) Clause 2, page 2 (at the end of the table), add:

(2) Page 90 (after line 10), at the end of the Bill, add:

Schedule 8 — National Anti-Corru p tion Commission Hearings

1 Subsection 73(2)

Repeal the subsection, substitute:

(2) The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that it is in the public interest to do so.

2 Subsection 73(3)

Omit "may", substitute "must".

This bill amends the NACC Act, and I have a couple of questions about the NACC. During the committee process into what is now the NACC Act, the committee heard overwhelming evidence from experts that the discretion of the NACC commissioner to hold public hearings should not be curtailed. In fact, the committee heard evidence from commissioners from state integrity commissions that it should be the case that there should be a presumption towards having public hearings. This was put forward to ensure that we have public trust in the NACC and ongoing recognition of the work that it's doing, that it is seen as an institution that not only is important but is undertaking continuous work and that there is some sort of visibility of what is happening.

We see that the Labor Party sided with the coalition to set up the legislation in a way that we have no real oversight of what is happening in the NACC. There's a presumption towards having private hearings. Yes, they report from time to time, but we've seen recently, since the NACC was established, some real concerns being raised, particularly in relation to the robodebt matter. I acknowledge that the inspector-general, which I thank Senator Shoebridge and members of the crossbench for pushing so hard for, is considering this matter. Public confidence has clearly been shaken, and public confidence in the NACC is incredibly important. This amendment would ensure that we do have public hearings—that the NACC is able to hold them and hold them not just when they think there are exceptional circumstances. Minister, has the government reconsidered the unnecessary limit on the ability of the NACC to conduct public hearings to only where there are exceptional circumstances?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The short answer, Senator Pocock, is no. I will outline at this moment the government's position on this amendment: we won't be supporting the amendment. The reality is that the National Anti-Corruption Commission does have the discretion to hold public hearings under the existing law. The commissioner can hold the hearing or part of a hearing in public if satisfied that it is in the public interest and exceptional circumstances justify doing so. The commissioner may consider a number of factors outlined before deciding to hold a public hearing, including the seriousness or systemic nature of the corrupt conduct and any unfair prejudice to a person's reputation, privacy, safety or wellbeing that would likely be caused if the hearings were held in public. Also, they can consider the benefits of exposing corrupt conduct to the public and making the public aware of corrupt conduct. From the government's point of view, this provides an appropriate balance between the benefits of public hearings and the potential for prejudice to subsequent criminal prosecutions, reputations, safety, privacy, wellbeing or confidentiality.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Thank you, Minister; I appreciate your response. Does the government accept that failure to reconsider the unnecessary condition of exceptional circumstances—it was pointed out during the very extensive hearings that this as an incredibly high bar and witnesses said that, if you go with this, there will basically never be public hearings—is out of line with what experts presented to the committee and, most importantly, out of line with community expectations when it comes to the National Anti-Corruption Commission?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I'm very much aware that there are members of the public and experts—a range of people—who have supported broader public hearings than what are being provided for, but I'm confident that the government has made the right decision in allowing public hearings to occur if the National Anti-Corruption Commission believe that's necessary and, importantly, if they're satisfied that, firstly, it is in the public interest to do so and, secondly, exceptional circumstances justify doing so. As I said, we believe that provides an appropriate balance between the benefits of public hearings that can arise in some circumstances and be made available in some circumstances and the potential to prejudice subsequent criminal prosecution, reputations, safety, privacy, wellbeing or confidentiality.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Minister, does the government accept that the change proposed in this amendment would improve public confidence in the NACC?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I'm not sure that I would accept that. I know that there are people who express that view. There are people who express different views. We think that we've struck the right balance.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Minister, do you really think that the majority of Australians are happy with the NACC holding all of their hearings in private and that having more transparency is not a good thing?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Again, the commissioner does have the discretion to hold a public hearing. Senator Pocock, with respect, I think the way that you're presenting the argument suggests that there's no power to hold a public hearing. That's not the case. The commissioner is independent of government. We have confidence in them to make the right decisions based on the evidence before them as to whether a public hearing is warranted, taking into account the public interest and the exceptional circumstances that would justify doing so.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I accept that you are incredibly skilled at this. When you say that the commissioner has the ability to have a public hearing, yes, that is correct, but the parliament, as you've outlined, sets out the circumstances in which that may happen. Currently, we have a NACC where you have to meet an incredibly high bar. Numerous witnesses warned the committee that this will essentially mean that there are almost no circumstances that meet all of the criteria. Whilst it may be possible, the practical outcome is that it's very rare and very unlikely to happen. It seems to me that we actually need to be building up trust in our institutions, and I'm hearing from so many people I represent, who say, 'We want more transparency not less.'

What's the argument for this? I accept you say that you've struck the right balance, but why aren't we allowing the commissioner—if we trust them so much, and I think there should be a high level of trust in the commissioner—to have a neutral presumption and that it's totally up to the commissioner? If the commissioner thinks that this is in the public interest, then they can hold a public hearing. That to me aligns with the rhetoric I hear about trust in the NACC and the independence of the NACC. If we really believed that, we would say: 'We trust you. We believe we have put very good people in there who are well qualified to do that job, and it's up to you. If you think it's in the public interest to hold a public hearing, you do it.' But that's not what we've done. We've said: 'We trust you. We should be saying to Australians, "The NACC is doing important work," which we believe it is, but also, even if you think it's in the public interest, you have to also meet all these other criteria, including exceptional circumstances.'

I'm just interested why, on the one hand that you think they're independent, that we trust them and that it's up to them, but on the other hand that we're almost hamstringing them a bit? They're hamstrung to actually make a decision because they have to meet these criteria. Those things don't seem to square to me.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Thanks, Senator Pocock. I can't add a lot more to what I've said already to explain the government's reasoning here. I accept that there is an issue around public confidence in government. That's not unique to Australia, unfortunately. But that's one of the reasons why it took the Albanese government to actually create a national anticorruption commission in Australia. We called for it for years when the coalition were in power. They refused to do so. We now have one, and that's a good thing. The commission have the discretion to hold public hearings where they're satisfied that it's in the public interest and exceptional circumstances justify doing so. This body has only been in operation for a relatively short time. I dare say that there will come a point where the commission decides that those factors are satisfied and that it should have a public hearing. I think that just because it hasn't had one yet isn't necessarily an indicator that it won't in the future, so the discretion exists for the commission to hold public hearings if it satisfies those criteria.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I just want to go back into the public confidence, if I might. Quite frankly, I've got this problem from the military people with the commissioner that you have picked. We've heard about the veterans royal commission for three years. We've heard about the cover-up stories that have been going on in Defence, let alone what's going on at the Inspector-General of the Australian Defence Force. By the way, this was an assistant inspector-general of the Australian Defence Force. You want the military to have confidence in having him there in the first place when you're not running public hearings? One of the reasons that we ended up at that royal commission for veterans was because of the cover-up that has been going on for years in the Defence Force. You tell me how military members are supposed to have confidence while this is all going on behind closed doors because they don't have the right to come out in public. This is how they've been treated for the last 20 years in the military. How do you expect the Australian people to have confidence in a system that failed veterans when it's a man that's been in and out of that uniform and part of the Defence Force for years? You explain that public confidence to me.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Thanks, Senator Lambie. I understand that you aren't supportive of the commissioner who was appointed to this role. I respect your right to have those views. Obviously the government doesn't share those views in relation to the commissioner, and we have confidence that he will make the right decisions based on the factors that have been held there.

I should also make the broader point about trust in democracy and trust in government. This is not the only measure this government has taken in order to try and rectify that problem. There is an issue there around public confidence. It's one of the reasons we created the National Anti-Corruption Commission. We've pursued much broader reform as well when it comes to the powers of the Ombudsman, privacy commissioners and the Inspector-General of Intelligence and Security. Right now, Senator Farrell is trying to negotiate a package of reforms on electoral funding but we haven't yet been able to get agreement from either the coalition or the Greens on the package being put forward. There are a range of things this government has done that go to that point about public confidence in democracy, and we intend to pursue those further.

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

Minister, if you want to get a resolution by negotiation, you need to talk to people, and that's what this government has refused to do time after time—and that includes on urgent and necessary reform to the electoral process, just as it included on appropriate amendments to the NACC legislation. Your government negotiated with the coalition amendments to the NACC legislation to shut down public hearings and to put in place this artificial test of exceptional circumstances that this amendment by Senator David Pocock is trying to address. Do you not now acknowledge that, with public confidence in the NACC falling, with open questions about the decision not to investigate the robodebt scandal and having all that done behind closed doors with no public hearings, it was wrong to shackle the NACC and put in such an artificially high test for transparency and daylight?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

No.

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

I think the lack of reflection we got from the minister in that answer sums up what's wrong in the public's eye with this duopoly of secrecy between Labor and the coalition. They had a federal election and thought something was going to change. They had a federal election where, before that, we had the Prime Minister talking about transparency and pointing out the outrageous behaviour of the former government in secretly appointing ministries. We had this rhetoric from Labor in opposition, but as soon as they came in it was like they'd adopted Scott Morrison's speaking points on transparency. They were captured by office and have become almost indistinguishable from the coalition when it comes to issues of transparency, like starving the FOI system—in fact, the backlogs in the FOI system have grown under this government with an Attorney-General who railed against it when he was in opposition.

We have a prime minister who, when he was the opposition leader, talked about the need for sunlight and a national anticorruption commission that would finally address public concerns about secrecy and corruption at a federal level, only to whack through legislation under a deal with Peter Dutton that put in this ridiculous test of 'exceptional circumstances' before we can have a public hearing of the NACC. Minister, what happened between Labor in opposition, where you supported Senator Waters's bill for a national anticorruption commission that had an open discretion for public hearings, where you supported Senator Waters's bill for an open discretion allowing a national anticorruption commission to decide if it would have public hearings, and Labor getting into government and suddenly siding with Peter Dutton to put in an 'exceptional circumstances' test? Is it that, now you're in government, you no longer support sunshine and transparency? Is that what happened, Minister?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

We traversed the issues that Senator Shoebridge has just asked about extensively in the original debate for the NACC; I don't intend to go over that again. I understand Senator Shoebridge wants to use the chamber to get up and deliver Greens political party talking points, and he's got a right to do that. I understand it suits the Greens political party's political agenda to suggest the NACC is ineffective. The reality, though, is that, according to the most recent statistics from the NACC, as of 9 October this year they were conducting 31 preliminary investigations and 29 corruption investigations, including six joint investigations, they were overseeing or monitoring 19 investigations by other agencies, they had six matters before the courts and they had 465 referrals pending assessments. So, unfortunately for Senator Shoebridge and the Greens political party, the facts don't bear out what they're saying. The NACC is actively investigating a broad range of potential corruption and misconduct activities, as it should.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Minister, all up, how many hearings have there been?

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

Public hearings.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Well, you can ask about the other hearings, those behind closed doors. How many public hearings have there been?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

As I said, there have been no public hearings to date.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

Imagine that!

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Well, the Greens are objecting to that, and you can have a crack at the independence of the NACC's commissioner, who has the discretion to decide this. It's your right to impugn the independence of the National Anti-Corruption Commission, if that's what the Greens political party wants to do, but I've already said in this debate that they retain the discretion to hold those public hearings at a future point if the commissioner decides that it's in the public interest to do so and exceptional circumstances justify doing so.

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

That was an unworthy contribution from the minister, but you would expect nothing more from this minister. The Greens have made it clear that we want a national anticorruption commission that has the support of the public. The public can look to it and have confidence in its integrity, its processes and its decision-making. We said in the course of the debate that if, in another crooked deal with the coalition for secrecy, you put it all behind closed doors, you will undermine confidence in the NACC, and what has happened? Well, 12 months on, we've seen public confidence in the NACC seriously undermined.

Does the government really believe that the secret decision by the NACC not to investigate robodebt has not damaged the public's confidence? Do you really believe that has had no damage?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Unlike the Greens political party, I'm not going to be using this chamber to undermine confidence in the National Anti-Corruption Commission.

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

Minister, it's not just the Greens. Pretty much the entirety of the crossbench wants to build and support public confidence in the National Anti-Corruption Commission. As happens time after time when there are votes on transparency in this place, we see the whole of the crossbench pretty much unite to try and get some transparency. There's a bunch that our collective disagrees on—we'll probably disagree on something later this afternoon—but what you'll find time after time with the crossbench is that we have collective support for transparency and openness. From the Greens' perspective, we think that's how you have public confidence in institutions. We think that's how you get public support for the NACC.

So I ask you again, Minister: On reflection, don't you think that having the first major decision of the National Anti-Corruption Commission be to reject an investigation into the robodebt scandal, and having that happen in secret, has been a blow to public confidence in the NACC? Don't you at least accept that?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I don't intend to take lectures from the Greens political party about transparency, especially when you look at the fact that the Greens party doesn't even allow public coverage or media coverage of its national conferences. We know that the Greens like to come in and lecture the Labor Party about how the world should be. We also know that the Greens political party doesn't uphold the same standards in their own backyard.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

I have just one question really. Minister, is this about maintaining corruption and keeping it in house?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

No.

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

Minister, do you have any explanation that you can give to the chamber and the public about why under your government there's been such a huge increase in the value of penalty units? To assist, between you and the coalition, but it's overwhelmingly been under your government—

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Shoebridge, I need to interrupt you to advise senators that the time for the consideration of the bill has expired. After the question before the chair is put, the questions on the remaining stages of the bill will be put.

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

The question before the chair is that the Senator David Pocock and Jacqui Lambie Network amendments on sheet 2961 be agreed to.