While the National Anti-Corruption Commission (NACC) Bill is a major achievement, there are some blemishes. Public hearings are a crucial mechanism in promoting integrity and investigating and exposing corruption and should not be limited.
I spent Tuesday and Wednesday last week with my daughter Lucy in Parliament House, Canberra. We were there to witness the Attorney-General, Mark Dreyfus KC, bringing into parliament his Bill for the creation of a National Anti-Corruption Commission (NACC) and his Second Reading speech. Present in the House were a large cohort of government members, and cross-benchers including Dr Helen Haines MP, and only three members of the Opposition.
The fact that it was possible to introduce the NACC Bill in only four months after the May election is a major achievement for Labor and a triumph for the Attorney and his staff. The Bill has been well-received by the public and most of the press, some ill-informed criticism coming, as was to be expected, from writers in The Australian. It will be remembered that the Oz had enthusiastically supported the sham proposal produced by Christian Porter when Attorney-General, and which had been praised by the last Prime Minster. The Australian’s writers were never supporters of the proposal for a federal integrity commission, so it is unsurprising that the only model to gain their support was a farce.
While the NACC Bill has been mostly well received, there are some blemishes in it, one of them being major.
To start with the minor matters: cl.8 deals with the meaning of corrupt conduct, and thus delineates the NACC’s jurisdiction. That clause retains the substance of the High Court’s ruling in the Cunneen case, the effect of which was that the NSW ICAC had jurisdiction only to investigate corrupt public servants (and, of course, politicians), not cases where corrupt outsiders were dealing with honest public servants. The government’s purpose is apparently to limit the amount of work the NACC can cover, because of the likely enormous quantity of complaints expected. This limit, however, would prevent the Commission being able to deal with situations where dishonest outsiders attempt to corrupt Commonwealth dealings (by lies or misrepresentations for example). It would seem preferable that such matters remain within the NACC’s jurisdiction, leaving it to the discretion of the Commissioner to decide whether the matter is important enough to investigate.
Secondly, the Attorney announced that the government would provide funds of $262 million for the first four years. This is much larger than the figure the Coalition government proposed for its body. Having regard to the known funding of the state integrity bodies, however, it was generally expected that the federal body would need more than $100 million annually to meet its requirements.
The third question relates to the Oversight Parliamentary Committee which, under Part 10 of the Bill will have, in addition to its oversight function, the right to deal with appointments to the NACC of the Commissioner, a Deputy Commissioner and the Inspector. It will also review the NACC’s budget and finances. By cl.173, the Chair of the Committee must be a member of the Government, giving the government control of the appointments and funding of the NACC. There are other ways in which these provisions could be structured and it is questionable whether the government should have such control of appointments and funding. We should not leave such important questions to trust in the integrity of a future government.
The principal flaw in the Bill relates to the circumstances in which the NACC may hold public hearings. Cl.73 provides that hearings must be held in private, unless the Commissioner decides to hold one in public. Cl.73(2) provides that the Commissioner may decide to hold a hearing in public if the Commissioner is satisfied that –
“(a) exceptional circumstances justify holding the hearing, or the part of the hearing, in public; and
(b) it is in the public interest to do so.”
Cl.73(3) then provides that in deciding whether to hold a hearing in public the Commissioner may have regard to the following five sub-clauses which include the seriousness of the issue, whether unfair prejudice to a person’s reputation, privacy, safety or wellbeing would be likely to be caused, whether a person giving evidence has a particular vulnerability, and the benefit of exposing corrupt conduct to the public.
Until recently, the government’s proposal for the NACC had included no mention of “exceptional circumstances,” and the ungainly wording of the clause has led many to assume that the present form of cl.73 resulted from a last-minute intervention to include these limiting words in the cl.73(2). Some thought that this took the form of an offer from the Opposition to support the Bill if the NACC’s ability to hold public hearings was limited in this way.
The requirement for “exceptional circumstances” is taken from s.117 of the Victorian IBAC legislation, which has severely restricted the number of public hearings the IBAC has been able to hold. In the period from 2013 to 2020, the IBAC held only nine public hearings, while in the same period the NSW ICAC, which has no such limitation, held 42. Seventy-five percent of ICAC’s hearings take place in private.
Public hearings are regarded as essential by the Commissioners of ICAC and IBAC, and as a crucial mechanism in promoting integrity and investigating and exposing corruption. But most hearings by such integrity bodies take place in private, only a small proportion being public. The vast majority of ICAC’s hearings take place in private. Invariably detailed investigation will be held in private before a decision is made that the evidence is sufficiently cogent to justify putting someone publicly in the witness box. The Attorney-General has said that public hearings are more difficult to conduct and they raise questions as to reputational harm. But that is one of the very matters the NACC Commissioner is required to consider before deciding that it is in the public interest to hold a public inquiry.
It is common practice for Royal Commissions to take place in public: for example, the Hayne Commission into Banking matters took place entirely in public; so also, nearly all the Fitzgerald Inquiry. Under Commonwealth legislation, federal judges, even of the High Court may be examined in public. It seems that only politicians are to be entitled to such secrecy – and only a parliament can establish an integrity body such as the NACC with all the necessary additional powers that are not available to police and the ordinary security services. In this context it was Justice Brandeis of the US Supreme Court who said, “Sunlight is the best disinfectant.”
In any event, it is clear that the requirement of “exceptional circumstances,” with its attendant ambiguity, will be a severely restricting factor on the NACC’s ability to hold public hearings. The government may, with the support of the Opposition, be able to legislate without the support of the cross-bench, but they will face determined opposition from that quarter, and on arguments the public may well find persuasive. Inevitably, well-funded litigants will argue in court proceedings that there are no exceptional circumstances, and investigations will be long delayed and made less effective in consequence.
The question of retrospectively has been frequently raised, asking how far back the NACC might investigate, with the Opposition arguing that it should look forward, not trawl through past events. The reality is that the NACC is no different from police forces which regularly investigate past events. It could theoretically look back 20 years or more, but is unlikely to do so. While there may be grants, programs or other issues which are still spending taxpayers’ money improperly, there is no reason why the NACC should not investigate them, if it chooses to do so.
There is, however, likely to be such an avalanche of complaints when the new body is ready to commence investigations that the Commissioner will have a huge task in deciding which matters justify investigation.
The Attorney-General and his staff, and the Albanese government, are to be congratulated on their achievement in having this Bill so quickly before the parliament and they deserve the thanks of the community for working to restore integrity to government in Australia, and hopefully, reversing the slide in Australia’s position on Transparency’s Corruption Perceptions Index.